$2,442.00 Current Money of the United States v. State

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00021-CV
___________________________
$2,442.00 CURRENT MONEY OF THE UNITED STATES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 362nd District Court
Denton County, Texas
Trial Court No. 18-8118-362
Before Sudderth, C.J.; Gabriel and Birdwell, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
James Crowder Jr. appeals the denial of his motion for new trial seeking to set
aside a default judgment. We affirm.
I. Background
On 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.
On 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.
On 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.
The 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
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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 indifference.”
At the 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.
II. Discussion
In his 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.
We 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
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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).
Consciously 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 following service does not constitute
a mistake of law that is sufficient to meet the Craddock requirements. R.R., 209 S.W.3d
at 115.
The State maintains that Crowder failed to satisfy the first element of the
Craddock test: offering a valid excuse for his failure to respond to the forfeiture action.
According to the State, Crowder’s explanation shows that he acted with conscious
indifference, and denial of a new trial was therefore appropriate. We agree.
Crowder’s sole explanation for not responding was that he was not an attorney
and he did not understand the documents that were served upon him. But many people
who are served with citation are not lawyers, and there was undisputed evidence
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Crowder had access to an attorney who could have explained—and eventually did
explain—the civil proceeding to him. Yet Crowder did not contact his attorney, even
though the civil forfeiture action directly related to the arrest that led to his detention.
Crowder offers no further justification for his failure to answer. This is therefore simply
a case where a person did not understand the citation and did nothing following service.
See id. Compare One Thousand Three Hundred Fifty Four U.S. Dollars v. State, No. 11-06-
00310-CV, 2008 WL 802989, at *2 (Tex. App.—Eastland Mar. 27, 2008, no pet.) (mem.
op.) (finding conscious indifference in a forfeiture case where there was no explanation
for inmate’s inaction other than his lack of understanding), with $8780.00 in U.S. Currency
v. State, No. 02-10-00241-CV, 2011 WL 1224627, at *3 (Tex. App.—Fort Worth Mar.
31, 2011, no pet.) (mem. op.) (finding no conscious indifference where inmate offered
some excuse—being misled by a jail employee—for his failure to respond to forfeiture
suit), and Davis v. State, No. 10-07-00369-CV, 2008 WL 4306233, at *2 (Tex. App.—
Waco Sept. 17, 2008, no pet.) (mem. op.) (finding no conscious indifference where
inmate offered some excuse—a miscommunication with his attorney—for his failure
to respond to forfeiture suit).
There are, of course, some circumstances under which a defendant may meet the
first prong of Craddock with a contention that he did not know what to do after being
served with a lawsuit, but that contention must be paired with some explanation or
action justifying the failure to answer. This was essentially the situation in R.R., 209
S.W.3d at 114. In that case, the Department of Family and Protective Services (DFPS)
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obtained a default judgment terminating a then-incarcerated mother’s parental rights.
The mother, Ambrea Rodgers, filed a motion for new trial in which she acknowledged
that she had been served with the petition to terminate her parental rights but averred
that she had no prior experience with DFPS and did not know how “the system”
worked. Id. at 114. Rodgers explained that she thought she would get an attorney
automatically like she did in her criminal cases, and she thought she was going to be
given a chance to handle the matter upon her release from jail. Id. In reversing the
intermediate court’s decision that Rodgers showed conscious indifference, the supreme
court explained that Rodgers had relied upon her DFPS caseworker’s representations
that Rodgers would get an attorney, and the caseworker’s failure to tell Rodgers that
she needed to write the court to oppose the termination or seek appointed counsel. Id.
The court also relied upon evidence that Rodgers had regularly written letters from jail
to her children and to the caseworker for updates about the children. Id. at 115. The
supreme court held that this was more than a statement that Rodgers did not answer
the petition because she did not understand the citation and was sufficient to “negate
the element of conscious indifference.” Id.
What distinguishes this case from R.R. is that Rodgers offered a detailed
explanation as to why she did not understand that she had to respond to the petition,
provided a rational reason—being misled by her caseworker—why she did not respond,
and took action showing her interest in the subject of the proceedings, which was her
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children rather than money.1 Crowder simply stated that he did not understand and sat
idly, even though he already had appointed counsel whom he could have consulted.
Without more, Crowder’s explanation does not negate conscious indifference.
At the hearing, the trial court expressed a similar view of Crowder’s explanation.
The trial court probed as to why Crowder did not show the citation to counsel even
though “he was in jail the whole time[.]” The court advanced several examples of valid
explanations, such as a party’s car breaking down on the way to the courthouse or a
mistake in calendaring the response—scenarios which showed excusable neglect but
not conscious indifference. But the trial court contrasted these scenarios with
Crowder’s explanation, which in the trial court’s perspective showed that Crowder
consciously ignored the citation: “I think it clearly shows that by ignoring the citation
completely that he had conscious indifference. He had it in hand, and he said, ‘I’m not
doing anything with this.’”
After an in-depth assessment of Crowder’s explanation, the trial court
determined that Crowder’s uncontroverted factual assertions did not negate conscious
indifference. The trial court carefully weighed the evidence and exercised its discretion
to reach a well-considered and correct choice. We hold that the trial court did not abuse
1
Cf. Martinez v. Martinez, 157 S.W.3d 467, 470 (Tex. App.—Houston [14th Dist.]
2004, no pet.) (stating that Craddock should be applied “liberally” in suits affecting the
parent-child relationship); Comanche Nation v. Fox, 128 S.W.3d 745, 749–50 (Tex. App.—
Austin 2004, no pet.) (same).
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its discretion by denying the motion for new trial. Id. at 114. We therefore overrule
Crowder’s sole issue.
III. Conclusion
We affirm the judgment of the trial court.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: July 25, 2019
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