David Lightfoot Hernandez v. Cindy Foreman ( 2013 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00160-CV
David Lightfoot Hernández, Appellant
v.
Cindy Foreman, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-12-000036, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant David Lightfoot Hernández, an inmate in the Texas Department of
Criminal Justice, brings a restricted appeal from a final summary judgment against claims he
asserted against appellee, Cindy Foreman. In three issues, Hernández complains that Foreman
did not serve him with her summary-judgment motion and other motions, that Foreman and the
district court failed to serve him with notice of hearings in violation of his due process rights, and
that the district court abused its discretion in not allowing him to participate in the hearings.
In support of his issues, Hernández relies on a declaration he filed with this Court
stating that he never received copies of the relevant motions.1 However, in a restricted appeal,
the complained-of error must be apparent from the face of the record. See Ginn v. Forrester,
1
See Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (West Supp. 2012) (providing procedure
for inmates to file unsworn declarations in lieu of affidavits).
282 S.W.3d 430, 431 (Tex. 2009) (per curiam). Hernández instead seeks to rely on new evidence
that is extrinsic to the record. We cannot consider that evidence here. See Alexander v. Lynda’s
Boutique, 134 S.W.3d 845, 848-49 (Tex. 2004) (affidavit filed in supreme court constituted extrinsic
evidence that could not be considered in restricted appeal); General Elec. Co. v. Falcon Ridge Apts.,
811 S.W.2d 942, 944 (Tex. 1991) (affidavit filed in appellate court averring that notice was neither
given nor received constituted extrinsic evidence that could not be considered in appeal by writ
of error, the predecessor to restricted appeals). Instead, “[t]he appropriate remedy when extrinsic
evidence is necessary to the challenge of a judgment is by motion for new trial . . . or by bill of
review filed in the trial court.” General Elec. Co., 811 S.W.2d at 944.2
As Hernández has not demonstrated error on the face of the record, we overrule
Hernández’s appellate issues and affirm the district court’s judgment.
__________________________________________
Bob Pemberton, Justice
Before Justices Puryear, Pemberton and Field
Affirmed
Filed: March 6, 2013
2
However, we intend no comment as to the ultimate merits of such a claim for relief, should
Hernández pursue it.
2