                             Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                       No. 04-12-00361-CV

                                     Juan Enrique LOZANO,
                                            Appellant

                                                  v.

                                       Rosa Ana LOZANO,
                                            Appellee

                      From the County Court at Law, Val Verde County, Texas
                                      Trial Court No. 2,611
                          Honorable Sergio J. Gonzalez, Judge Presiding

Opinion by:      Rebeca C. Martinez, Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Rebeca C. Martinez, Justice

Delivered and Filed: January 30, 2013

AFFIRMED

           In this restricted appeal, Juan Enrique Lozano appeals a no-answer default judgment

rendered against him, arguing that the answer was postmarked and thus filed before entry of the

judgment. We affirm the judgment of the trial court.

                                           BACKGROUND

           The parties were divorced in 2009. On April 5, 2012, Rosa Ana Lozano filed a motion

seeking to modify the divorce decree. Specifically, she sought to remove a provision from the

conservatorship order precluding her from moving the parties’ two children outside of Val Verde
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County as well as reimbursement of certain home expenditures and property taxes to be paid

from Juan’s share of the proceeds of the sale of the marital home. Juan was served with citation

on April 6, 2012 and the return of service was filed on April 9, 2012. His answer was thus due to

be filed by Monday, April 30, 2012; however, no answer was filed on or before that date. See

TEX. R. CIV. P. 99(b). On May 4, 2012, Rosa moved for entry of a default judgment based on

Juan’s failure to answer; the trial court granted the default judgment the same day and ordered

the geographic restriction lifted and that Rosa be reimbursed $15,671.78 from the proceeds of the

sale of the marital residence. On May 14, 2012, Juan filed an answer consisting of a general

denial. On June 11, 2012, Juan filed his notice of restricted appeal. He now argues that the trial

court erred in rendering the default judgment because he mailed his answer on May 3, 2012,

deeming it filed that day pursuant to the “mailbox rule.” See TEX. R. CIV. P. 5.

                                               ANALYSIS

       To prevail on a restricted appeal, an appellant must demonstrate: (1) he filed notice of

restricted appeal within six months after the date the judgment was signed; (2) he was a party to

the suit; (3) he did not participate in the hearing that resulted in the judgment complained of and

did not timely file a post-judgment motion or request for findings of fact and conclusions of law;

and (4) error is apparent on the face of the record. See TEX. R. APP. P. 30; Ins. Co. of State of

Pennsylvania v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (per curiam); Alexander v. Lynda’s

Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Here, the only element in dispute is whether there

is error apparent on the face of the record.

       The record, for purposes of a restricted appeal, consists of the clerk’s record and the

reporter’s record if one was made, and also includes any evidence presented to the trial court

before final judgment. See Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.

1997) (per curiam); Gen. Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942,
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944 (Tex. 1991) (“The rule has long been that evidence not before the trial court prior to final

judgment may not be considered in a [restricted appeal] proceeding.”). Error must be apparent

from the face of the record, not inferred from the record. Ginn v. Forrester, 282 S.W.3d 430,

431 (Tex. 2009) (per curiam); Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004) (per curiam). If

extrinsic evidence is necessary to challenge the judgment, a timely motion for new trial or bill of

review filed in the trial court is the appropriate remedy. Ginn, 282 S.W.3d at 432–33.

       If a defendant has not filed an answer at any time after he is required to do so, the

plaintiff may take a default judgment against him, provided that the return of citation has been on

file with the clerk for at least 10 days, excluding the days of filing and judgment. TEX. R. CIV. P.

107, 239. However, a default judgment may not be granted when the defendant has an answer

on file, even if the answer was filed late. TEX. R. CIV. P. 239; Davis v. Jefferies, 764 S.W.2d

559, 560 (Tex. 1989) (per curiam) (noting that default judgment was improper even though the

answer was not filed on or before answer date, but was filed two hours and twenty minutes

before the default judgment was signed, and even though the trial judge was unaware that the

answer was filed); see Alvarez v. Kirk, No. 04-04-00031-CV, 2004 WL 2480141, at *1 (Tex.

App.—San Antonio Nov. 4, 2004, no pet.) (mem. op.) (“If the defendant files an answer after the

deadline to answer but before the trial court considers a motion for default judgment, the court

cannot render a default judgment.”); see also Rosillo Creek Apartments, LLC v. Austin, No. 04-

11-00884-CV, 2012 WL 2914995, at *2 (Tex. App.—San Antonio July 18, 2012, no pet.) (mem.

op.) (same).

       Here, Juan contends that he mailed his answer on May 3, 2012. The record before us,

however, contains no evidence of when the answer was actually mailed. In fact, Juan concedes

that the record does not indicate a postmark date. Instead, Juan asks that we apply common

sense and infer that the answer was postmarked on May 3, 2012 in accordance with the “Track
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and Confirm” record from the United States Postal Service reflecting that label number

70112970000060290037 arrived “at unit” on Saturday, May 5, 2012. In a lengthy footnote in his

brief, Juan explains the procedure for routing mail from Laredo to San Antonio to Del Rio. He

asserts that “even without an explicitly-indicated postmark date, the record taken together with

the objectively verifiable fact that mail deposited in Laredo takes over 23 hours to travel from

Laredo to San Antonio to Del Rio, establishes that the answer was timely filed.” Juan concludes

that “the time at which the answer was filed must be ascertained through the chain of inference

supplied in this footnote.”

         We respectfully decline to infer that Juan’s answer was postmarked, and thus filed,

before the entry of the default judgment on May 4, 2012. In a restricted appeal, we are confined

to the face of the record, meaning that we cannot infer facts not contained in the record. See

Gold, 145 S.W.3d at 213 (“[A] restricted appeal requires error that is apparent, not error that

may be inferred.”) (emphasis in original). Given that the record does not demonstrate that the

answer was filed prior to the entry of the default judgment on May 4, 2012, we cannot conclude

that the trial court erred in rendering the default judgment. Because error is not apparent from

the face of the record, we overrule Juan’s issue on appeal and affirm the judgment of the trial

court.


                                                Rebeca C. Martinez, Justice




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