Texas Penal Code § 38.10 prohibits a person lawfully released from custody, with or without bail, on condition that he subsequently appear commits an offense if he intentionally or knowingly fails to appear in accordance with the terms of his release. The statute first took effect on January 1, 1974, and the last amendments were effective on September 1, 1994.
If you had an excuse for the failure to appear in court, contact us to learn more about how to get back in court as soon as possible so that you have the best chance of getting the warrant for your arrest can be set aside so that the court can just set a new court date.
The consequences for bailing jumping by failing to appear in court include being charged with a Class C misdemeanor if the underlying offense is punishable by a fine only, a Class A misdemeanor if the underlying offense is a misdemeanor, or a felony of the third degree if the underlying offense is a felony.
Attorneys for Bail Jumping in Tarrant County, TX
If you were charged with bail jumping under Texas Penal Code Section 38.10, then contact an experienced criminal defense attorney in Fort Worth, TX, at Law Offices of Richard C. McConathy. Our attorneys represent clients with a pending felony or misdemeanor bond and related charged failing to appear in court or jumping bail.
Call for a free consultation to discuss the warrant pending against you, ways to avoid additional charges for bail jumping, and how an attorney can help you fight the case for the best possible result.
Let us put our experience to work for you. Call (817) 422-5350 today.
Elements of Bail Jumping under Texas Penal Code § 38.10
The criminal charge of bail jumping and failure to appear in court requires the prosecutor for the State of Texas to prove that the defendant:
- was lawfully released from custody, with or without bail;
- on condition that the defendant subsequently appear; and
- the defendant intentionally or knowingly failed to appear in accordance with the terms of the release.
Penalties for Bail Jumping Texas
The penalties for bailing jumping or failing to appear in court depend on the classification of the underlying charge. The offense can be charged as a Class C misdemeanor if the offense for which the actor's appearance was required is punishable by fine only. For any other underlying misdemeanor, the failure to appear in court is charged as a Class A misdemeanor. The offense can be charged as a felony of the third degree if the offense for which the actor's appearance was required is classified as a felony.
Defenses for Failing to Appear in Court
Defenses for bail jumping or failing to appear in court for a scheduled court appearance include:
- It is a defense to prosecution under this section that the appearance was incident to community supervision, parole, or an intermittent sentence; and
- It is a defense to prosecution under this section that the actor had a reasonable excuse for his failure to appear in accordance with the terms of his release.
In a prosecution for failure to appear, the defendant has the initial burden of production to show a reasonable reason for failing to appear, and once he does so, the State has the burden of persuasion to disprove that defense beyond a reasonable doubt. See TEX. PENAL CODE ANN. § 2.03; § 38.10(c).
In Kirk v. State, 421 S.W.3d 772, 777 (Tex. App.–Fort Worth 2014, pet. ref’d), the court found that “[a]fter the defendant has introduced some evidence supporting a defense under section 2.03 of the penal code, the State bears the burden of persuasion to disprove it. The burden of persuasion does not require the production of evidence; rather, it requires the State to prove its case beyond a reasonable doubt.” (citation omitted).
Likewise, in Zuliani v. State, 97 S.W.3d 589, 594 n.5 (Tex. Crim. App. 2003), the court found that the “defendant bears the burden of production and the State bears the burden of persuasion on a defense under Penal Code section 2.03.” Section 38.10(c) creates a defense, not an affirmative defense. See TEX. PENAL CODE ANN. § 2.03.
Problems with Notice of the Court Date
The failure to appear in accordance with the terms of one's release is a crime only if the failure is intentional or knowing. The required culpable mental state cannot be shown absent proof the defendant had notice of the proceeding at which he failed to appear.
An instanter bond gives proper notice and, in the absence of evidence of a reasonable excuse, is sufficient to prove an appellant intentionally and knowingly failed to appear.
However, a bail bond must state whether the defendant is charged with a misdemeanor or felony and must set forth the time, place, and court where the defendant is required to appear. TEX. CODE CRIM. PROC. ANN. art. 17.08.
When the instanter bond does not show prima facie evidence that the defendant had actual notice, then the state must do more than prove the terms of the bond in order to meet its burden of proving an intentional or knowing failure to appear. Instead, the state must offer evidence that the defendant did have actual notice, or that the defendant engaged in a course of conduct designed to avoid receiving notice.
Defenses for a Reasonable Excuse
It is a defense to the charge if the defendant has a reasonable excuse. A reasonable excuse is one that an ordinary and prudent person would rely on under the same or similar circumstances to justify his failure to make a court appearance. Whether a defense is reasonable is usually a matter for the jury.” Luce v. State, 101 S.W.3d 692, 694 (Tex. App.–Texarkana 2003, no pet.).
It is a defense to the offense of Bail Jumping and Failure to Appear Felony that the defendant had a reasonable excuse for his failure to appear in accordance with the terms of his release. An excuse is a reason that justifies an act or omission or that relieves a person of a duty.
Bail Jumping and Failure to Appear Felony Statistics - Visit the Texas Tribune to find an app showing the aggregated crime statistics for Texas prison inmates based on the National Crime Information Center (NCIC) data submitted by Texas Department of Criminal Justice staff for felony charges for bail jumping and failure to appear in court. Find statistics on jumping bail crimes by the prison sentence distribution, the number of inmates, inmates by race, and inmates by sex.
Finding a Lawyer for Jumping Bail Crimes
Contact an experienced criminal defense attorney in Fort Worth at Law Offices of Richard C. McConathy to find out ways to avoid being indicted in Tarrant County, TX, on charges for bail jumping and failure to appear. Don't make an additional mistake after a failure to appear warrant is issued in Tarrant County, TX. Take a pro-active approach to resolving your case after you miss a court date.
Our Fort Worth Attorneys can help you clear the warrant under the best possible terms. Call (817) 422-5350 to discuss your case.
This article was last updated on Monday, April 3, 2017.
Principal Location: 1511 Dallas Pkwy #400 Dallas, TX 75248