                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-10-00253-CV


$629.00 IN U.S. CURRENCY                                            APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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      Appellant Christopher Norried appeals the default judgment against his

interest in $629.00 in U.S. Currency. The State of Texas filed a notice of seizure

and intended forfeiture of the money on May 27, 2010. Mr. Norried was served

with the notice on May 28. On June 22, 2010, the trial court found that Mr.

Norried both failed to answer and failed to appear and entered a default

judgment ordering the forfeiture of the money.

      1
       See Tex. R. App. P. 47.4.
      Mr. Norried’s first six issues concern evidence that was not presented to

the trial court. We cannot consider evidence that does not appear in the record.

Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Thus, we

overrule Mr. Norried’s first six issues.

      In his seventh issue, Mr. Norried claims that he timely answered by mailing

a written answer through the mail system at the county jail where he was

incarcerated, and thus the default judgment was error.            The document was

received by the clerk, but it is not file stamped nor is there any other indication of

when it was received. The State claims that Mr. Norried cannot demonstrate that

he timely answered and thus, the default judgment should be upheld. Because

we hold that Mr. Norried’s answer should be deemed timely filed, we reverse the

trial court’s default judgment and remand the case to the trial court.

                                    Standard of Review

      Mr. Norried did not file a motion for new trial with the trial court but did file a

notice of appeal; therefore, this is a restricted appeal. See Tex. R. App. P. 30.

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

of restricted appeal was filed within six months of the date of the judgment or

order; (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 facts and conclusions of law; and (4) error is

apparent on the face of the record. See id.; Hubicki v. Festina, 226 S.W.3d 405,

407 (Tex. 2007). The only contested element in this case is whether there is

error on the face of the record.




                                      2
                                    Discussion

      A default judgment may not be granted based on a failure to answer 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). The clerk’s

record does not show when Mr. Norried’s answer was filed, but the fact that the

record contains a copy of his answer is evidence that the trial clerk received it.

The answer contains a statement by Mr. Norried that he put the document in the

county jail mail system on June 2, 2010, five days after he was served and well

within the statutory time to respond.     See Tex. R. Civ. P. 99(b) (directing a

defendant to file a written answer “on or before 10:00 a.m. on the Monday next

after the expiration of twenty days after the date of service thereof”). Because

Mr. Norried is a pro se inmate, his answer is deemed filed when he put it in the

county jail mail system. See Warner v. Glass, 135 S.W.3d 681, 682 (Tex. 2004)

(“[W]e decline to penalize a pro se litigant for failing to obtain a postmark or file-

stamp when the litigant has timely placed the document in the prison mail

system, the only delivery system to which he or she has access.”). 2 The State

      2
        We further note that there is a handwritten notation on the document in
different handwriting other than Mr. Norried’s that states “Do not have original.”
The notation is unsigned and there is no evidence in the record as to who wrote it
or when it was written. Given that the original copy of Mr. Norried’s answer is
missing and the only copy presented in the court’s record is not file-stamped, we
believe the only reasonable explanation is that there was some mistake in the
clerk’s office between the time they received Mr. Norried’s answer and the time
they placed the copy in the record. We refuse to hold this mistake against Mr.
Norried. See Warner, 135 S.W.3d at 684 (“Once a party has satisfied his duty to
put a legal instrument in the custody and the control of the court clerk, he should
not be penalized for errors made by the court clerk.”). We also note that the fact
that the answer is not file-stamped creates a reasonable presumption that neither
the State nor the trial court judge knew the answer had been filed. Although
error occurred, we do not place fault with the State or the trial court judge.


                                      3
does not contest Mr. Norried’s statement that he mailed his answer on June 2,

2010. Thus we hold that Mr. Norried timely filed an answer.

                                       Conclusion

      Because an answer was filed with the court, the default judgment was

error. See Tex. R. Civ. P. 239; Davis, 764 S.W.2d at 560. This error is apparent

on the face of the record. See Tex. R. App. P. 30; Hubicki, 226 S.W.3d at 407.

We reverse and remand this case to the trial court for further proceedings

consistent with this opinion.




                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: McCOY, MEIER, and GABRIEL, JJ.

DELIVERED: December 23, 2010




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