                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-07-00369-CV

TREY DAVIS AND MONEY OF THE
UNITED STATES IN THE AMOUNT
OF $15,273.25,
                                                            Appellants
v.

THE STATE OF TEXAS,
                                                            Appellee


                           From the 85th District Court
                               Brazos County, Texas
                         Trial Court No. 04-000476-CV-85


                           MEMORANDUM OPINION


     Trey Davis appeals the trial court’s overruling of Trey’s motion for new trial. We

reverse.

     In a search of the house of Trey’s father, W. E. Davis, pursuant to a search warrant,

police officers found $15,273.25 in cash, including $14,000.25 in Trey’s bedroom, in

January, 2004. The State petitioned for forfeiture of the cash as contraband pursuant to

Texas Code of Criminal Procedure Chapter 59.          See TEX. CODE CRIM. PROC. ANN.

arts. 59.01-59.14 (Vernon 2006 & Supp. 2007). Trey did not answer, and the trial court
rendered an interlocutory default judgment of forfeiture as to Trey’s interest in the cash.

The trial court thereafter rendered final judgment of forfeiture as to Trey’s interest, and

as to W. E.’s interest in all but $1,471.00 of the cash. Trey filed a motion for new trial,

which was overruled by operation of law.

     In one issue, Trey contends that the trial court erred in overruling Trey’s motion for

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) (per curiam) (citing Director, State Employees

Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994)); accord United Beef

Producers, Inc. v. Lookingbill, 532 S.W.2d 958, 959 (Tex. 1976) (per curiam); Freeman v.

Pevehouse, 79 S.W.3d 637, 640 (Tex. App.—Waco 2002, no pet.); see Ables v. Donley, 8 Tex.

331, 336 (1852).

     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.

R.R., 209 S.W.3d at 114-15 (citing Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 392,

133 S.W.2d 124, 126 (1939)); see Levine v. Shackelford, Melton & McKinley, L.L.P., 248

S.W.3d 166, 167 (Tex. 2008) (per curiam).

     “Failing to file an answer intentionally or due to conscious indifference,” so as to

fail to satisfy the first Craddock prong, “means ‘the defendant knew it was sued but did

not care.’” R.R., 209 S.W.3d at 115 (quoting Fid. & Guar. Ins. Co. v. Drewery Constr. Co.,

186 S.W.3d 571, 576 (Tex. 2006) (per curiam)); see Craddock, 134 Tex. 388, 133 S.W.2d 124.

Davis v. State                                                                       Page 2
“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. at 115 (citing Evans, 889 S.W.2d at 269). “[S]ome excuse, although not

necessarily a good one, will suffice to show that a defendant’s failure to file an answer

was not because the defendant did not care.”          Id. (citing Fid. & Guar. at 576); see

Craddock, 134 Tex. at 391-92, 133 S.W.2d at 125.

     “A meritorious defense has been set up so as to meet the second Craddock prong if

the facts alleged in the movant’s motion and supporting affidavits set forth facts which

in law constitute a meritorious defense, regardless of whether those facts are

controverted.” R.R., 209 S.W.3d at 116 (citing Evans, 889 S.W.2d at 270); see Craddock,

134 Tex. 388, 133 S.W.2d 124.

     “[A]n offer to reimburse the plaintiff for costs incurred in obtaining the default

judgment or readiness for trial may be important factors for the trial court to look at in

determining whether” the movant has satisfied the third Craddock prong.                 Cliff v.

Huggins, 724 S.W.2d 778, 779 (Tex. 1987) (citing Angelo v. Champion Rest. Equip. Co., 713

S.W.2d 96, 97 (Tex. 1986)); accord Villegas v. Morse, No. 10-06-00415-CV, 2008 Tex. App.

LEXIS 4496, at *9-10 (Tex. App.—Waco June 18, 2008, no pet. h.) (mem. op.); see

Craddock, 134 Tex. 388, 133 S.W.2d 124; cf. R.R., 209 S.W.3d at 116-17. “If a defendant

alleges that granting a new trial will not injure the plaintiff, the burden then shifts to the

plaintiff to present proof of injury.” R.R. at 116 (citing Evans, 889 S.W.2d at 270).

     “[T]he trial court should liberally construe the evidence when passing upon a

motion for new trial.” Simmons v. McKinney, 225 S.W.3d 706, 709 (Tex. App.—Amarillo

Davis v. State                                                                           Page 3
2007, no pet.); accord Sexton v. Sexton, 767 S.W.2d 131, 133 (Tex. App.—San Antonio

1987, no writ).

     1.   Trey’s motion for new trial, supported by his affidavit, stated:

     When [Trey] was served with notice of this suit he was incarcerated in the
     Brazos County Jail. He gave this petition to his father, W.E. Davis. W. E. Davis
     had also been served with notice of this suit as well as two other forfeiture
     suits. Dan Cogdell, an attorney in Houston, Texas, had been hired to represent
     [Trey] in his pending criminal case in Brazos County, and Cogdell filed an
     answer on behalf of W. E. Davis in this suit and also was supposed to file an
     answer on behalf of [Trey]. No answer was filed.

(1 C.R. at 53.)

     The State argues that Trey’s statements are not corroborated by other affidavits,

and the State refers to the record of the hearing on W. E.’s interest, which is not before

us. The State also points to W. E.’s answer, which Cogdell filed on behalf of W. E. only.

But Cogdell’s having filed an answer for W. E. does not tend to contradict Trey’s

allegation that Cogdell was “supposed” to answer for Trey as well.

     Construing the evidence liberally, we hold that the evidence shows that Trey’s

failure to file an answer was not because he did not care, and thus Trey satisfied the first

Craddock element.

     2.   Trey’s motion for new trial, supported by his affidavit, stated that the cash in

his bedroom did not constitute contraband, but “was monies that” he “had received

from two insurance claims that were settled and paid in 2003.” (1 C.R. at 53); see TEX.

CODE CRIM. PROC. ANN. art. 59.01(2) (Vernon Supp. 2007). Trey’s motion describes the

incidents that gave rise to the two settlements, and the circumstances and amount of

each.

Davis v. State                                                                        Page 4
     The State does not argue that Trey failed to satisfy the second Craddock element,

meritorious defense.

     Construing the evidence liberally, we hold that Trey’s allegations, if proved, would

constitute a meritorious defense to the forfeiture action, and thus that Trey satisfied the

second Craddock element.

     3.   Trey’s motion for new trial, supported by his affidavit, stated that he “is ready

for trial and is willing to reimburse” the State “for all reasonable expenses incurred in

obtaining the interlocutory default judgment.” (1 C.R. at 54.)

     The State does not argue that Trey failed to satisfy the third Craddock element,

prejudice to the State.

     Construing the evidence liberally, we hold that the evidence shows that the State

would not be prejudiced by a new trial, and thus that Trey satisfied the third Craddock

element.

     CONCLUSION. The trial court abused its discretion in overruling Trey’s motion. We

sustain Trey’s issue.

     Having sustained Trey’s sole issue, we reverse and remand.



                                              TOM GRAY
                                              Chief Justice

Before Chief Justice Gray,
    Justice Vance, and
    Justice Reyna
Reversed and remanded
Opinion delivered and filed September 17, 2008
[CV06]


Davis v. State                                                                       Page 5
