Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 362nd District Court Denton County, Texas
Trial Court No. 18-8118-362
Sudderth, C.J.; Gabriel and Birdwell, JJ.
Crowder Jr. appeals the denial of his motion for new trial
seeking to set aside a default judgment. We affirm.
August 20, 2018, police executed a search warrant at a
residence in Denton. In Crowder's bedroom, police found a
digital scale, forty-four bags containing crack cocaine, and
$1, 705 in cash. Crowder had an additional $737 in his
pocket. He was arrested the same day.
September 5, 2018, the State petitioned for forfeiture of the
money as contraband. See Tex. Code Crim. Proc. Ann.
art. 59.02(a). Crowder did not answer, and the trial court
rendered a default judgment of forfeiture on October 9, 2018.
November 8, 2018, Crowder filed a motion for new trial. In
his unsworn declaration, Crowder stated that he had won the
money in question at a casino in Oklahoma. Crowder stated
that he had remained in the county jail since his arrest, and
he had been served with citation for the forfeiture suit
while in jail. After he received notice of the default
judgment, he asked his criminal defense counsel how to
proceed. His counsel helped him file a belated answer and a
motion for new trial, along with his unsworn declaration.
focus of this appeal is whether Crowder has stated a valid
excuse for failing to respond to the State's forfeiture
action. In his declaration, Crowder explained that because he
was not an attorney, he "did not understand the
significance of any deadlines contained in" the papers
that were served on him, and he "did not possess the
legal experience or knowledge of legal matters necessary to
enable" him to file an answer. According to Crowder, he
"simply did not understand what was required of [him] by
the legal papers concerning the civil lawsuit." Crowder
admitted that he had criminal defense counsel when he
received the petition but that he failed to notify counsel of
the forfeiture suit. Nonetheless, Crowder maintained,
"My failure to timely file an answer to this suit was
not intentional or the result of conscious
hearing on the motion for new trial, the State did not put on
evidence to controvert Crowder's declaration. After
reviewing Crowder's declaration, the trial court denied
the motion for new trial. This appeal ensued.
sole issue, Crowder contends that the trial court erred by
denying his motion. Crowder contends that he satisfied all
three of the elements necessary to set aside a default
judgment, and the trial court therefore abused its discretion
in refusing a new trial.
review a trial court's denial of a motion for new trial
for abuse of discretion. In re R.R., 209 S.W.3d 112,
114 (Tex. 2006). A default judgment should be set aside and a
new trial granted if (1) the failure to answer was not
intentional or the result of conscious indifference but was
due to a mistake or accident, (2) the defendant sets up a
meritorious defense, and (3) the motion is filed at such time
that granting a new trial would not result in delay or
otherwise injure the plaintiff. Id. at 114-15
(citing Craddock v. Sunshine Bus Lines,
Inc., 133 S.W.2d 124, 126 (Tex. 1939)). The
defendant's burden as to the first Craddock
element has been satisfied when the factual assertions, if
true, negate intentional or consciously indifferent conduct
by the defendant and the factual assertions are not
controverted by the plaintiff. Sutherland v.
Spencer, 376 S.W.3d 752, 755 (Tex. 2012).
indifferent conduct occurs when "the defendant knew it
was sued but did not care." Id. "When
determining whether the defendant's failure to file an
answer was intentional or due to conscious indifference, a
court looks to the knowledge and acts of the defendant."
R.R., 209 S.W.3d at 115. Some excuse, although not
necessarily a good one, will suffice to show that a
defendant's failure to file an answer was not because he
did not care. Sutherland, 376 S.W.3d at 755.
However, not understanding a citation and then doing nothing