                      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

                                            3
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)

                                             5
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



                                           6
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).


                                            7
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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