Appeal from the 353rd District Court Travis County, Texas
Trial Court Cause No. D-1-FM-14-001670
consists of Justices Christopher, Spain, and Poissant.
MARGARET "MEG" POISSANT, JUSTICE
Aisha Hughes (Mother) brings this appeal from a no-answer
default judgment in favor of appellee Mark Pocoroba
(Father). For the reasons stated below, we affirm.
March 23, 2017, a final order was signed in a suit affecting
the parent-child relationship ("SAPCR").
See Tex. Fam. Code § 105.006. The subject of
the suit, A.P., is a child born of a relationship between
Mother and Father. In February 2018, Father filed a petition
to modify the parent-child relationship. After efforts to
serve Mother failed, Father filed a motion for alternative
service. The motion was granted on March 30, 2018. That same
day, Mother was served in accordance with the order
permitting alternative service. The record before this court
contains no answer, or any filing of any kind, to the
April 26, 2018, a no-answer default judgment was signed in
the form of a final order. On May 11, 2018, Mother filed a
pro se motion to set aside the default judgment. A
hearing on the motion to set aside was held on May 24, 2018.
Mother appeared pro se. The trial court denied the
motion. On June 26, 2018, counsel for Mother timely filed a
notice of appeal.
appellant's brief, Mother claims the trial court abused
its discretion by granting Father's petition to modify
the parent-child relationship. Specifically, in four issues,
Mother claims there is legally and factually insufficient
evidence of any material and substantial change of
circumstance to support: (1) any modification of
conservatorship of the child; (2) any modification of
possession of the child; (3) any modification of child
support; or (4) to find that any of the modifications ordered
are in the best interest of the child.
Rule 239 of the Texas Rules of Civil Procedure, "the
plaintiff may . . . take judgment by default against [the]
defendant if he has not previously filed an answer."
Tex.R.Civ.P. 239. The plaintiff may take such a
"no-answer" default judgment without further notice
if the defendant has not filed a written answer or otherwise
"appeared" in the action. See Schoendienst v.
Haug, 399 S.W.3d 313, 316 (Tex. App.-Austin 2013, no
pet.). In cases of no-answer default, "a defaulting
defendant admits all facts properly pled in the
plaintiff's petition except for the amount of
unliquidated damages." Dolgencorp of Tex., Inc. v.
Lerma, 288 S.W.3d 922, 930 (Tex. 2009). Therefore, a
no-answer default judgment can be rendered on the pleadings
without requiring the plaintiff to offer evidence or prove
his case. See Stoner v. Thompson, 578 S.W.2d 679,
682 (Tex. 1979); In re K.B.A., 145 S.W.3d 685, 690
(Tex. App.-Fort Worth 2004, no pet.). As a consequence,
appellants are precluded from challenging the sufficiency of
the evidence. See Norton v. Martinez, 935 S.W.2d
898, 901 (Tex. App.-San Antonio 1996, no pet.)
("Appellants may not now challenge the sufficiency of
the evidence where their failure to answer constitutes an
admission of such liability."). Accordingly, we overrule
reply brief, Mother cites Craddock and argues, for
the first time, that the trial court erred by denying her
motion to set aside the default judgment. Craddock v.
Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939).
The Texas Rules of Appellate Procedure do not allow an
appellant to include in a reply brief a new issue not raised
by appellant's original brief. See Plasma Fab, LLC v.
BankDirect Capital Fin., LLC, 468 S.W.3d 121, 134, n.7
(Tex. App.-Austin 2015), aff'd on other grounds,
519 S.W.3d 76 (Tex. 2017) (recognizing issues that were not
raised in appellant's brief or argued by
appellee were waived); see also 38.1(f)
("The brief must state concisely all issues or points
presented for review. The statement of an issue or point will
be treated as covering every subsidiary question that is
fairly included."); Tex.R.App.P. 38.1(i) ("The
brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities
and to the record."). Accordingly, we only can consider
those issues presented in Mother's brief.
affirm the trial court's final order.
 The Texas Supreme Court ordered the
Third Court of Appeals to transfer this case to the
Fourteenth Court of Appeals. We must therefore decide the
case in accordance with the precedent of the Third Court of
Appeals if our decisions otherwise would have been