Opinion filed August 22, 2013




                                      In The


        Eleventh Court of Appeals
                                    __________

                                No. 11-12-00227-CV
                                    __________

                       JAMIEA JOHNSON, Appellant

                                         V.

              MARVIN MARCHELLA HARRIS, Appellee

                     On Appeal from the 161st District Court
                                 Ector County, Texas
                         Trial Court Cause No. B-133,396


                      MEMORANDUM OPINION
      Jamiea Johnson appeals the no-answer default order entered against her in
the trial court. Johnson, pro se, contends that, even though she was served and
ordered to answer, she was confused because, when she was served in May 2012,
the document indicated that a hearing had already occurred in April 2012.
Johnson alleges that she called “Ector County” several times to find out when a
court date was set and was told nothing was set. We affirm.

                                   I. Background
      Marvin Marchella Harris filed an Original Petition in Suit Affecting the
Parent-Child Relationship of M.M.H. Jr. on April 18, 2012. The trial court set a
hearing for temporary orders to be held on April 30, 2012, although this hearing
was not held. Johnson was served with citation on May 11, 2012. The citation
contained a notice to Johnson that she had been sued, that a hearing on temporary
orders had been set for April 30, 2012, and that her answer was due on a certain
date. On June 11, 2012, the trial court held a hearing, and on July 3, 2012, it
entered a default order in favor of Harris and against Johnson. Johnson filed a
notice of appeal with the trial court on July 23, 2012, and again on July 30, 2012.
                                II. Default Judgment
      This is a direct appeal from the trial court’s default order.        Therefore,
Johnson must satisfy the Craddock test before the order can be set aside. See
Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939); Massey v.
Columbus State Bank, 35 S.W.3d 697, 699 (Tex. App.—Houston [1st Dist.] 2001,
pet. denied). To satisfy the Craddock test, an appellant must show the following:
(1) the failure to answer was not intentional or the result of conscious indifference;
(2) the appellant has a meritorious defense; and (3) granting a new trial will not
operate to cause delay or injury to the other party. Craddock, 133 S.W.2d at 126.
      In her sole issue, Johnson implicitly asks us to set aside the trial court’s
default order. The default order was properly entered against Johnson because she
neither timely answered nor appeared. Johnson was given notice that the default
order had been entered against her. Johnson does not explain why she failed to file
an answer but, instead, argues that the allegations made against her in the original


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petition were wholly false. We cannot determine whether the default order should
be set aside, however, because Johnson preserved no alleged error for appeal.
      A defendant’s first opportunity to attack a default judgment is in a motion
for new trial. See L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442, 443 (Tex.
1996); Brown v. Brown, 590 S.W.2d 808, 810 (Tex. Civ. App.—Eastland 1979,
writ dism’d by agr.). A motion for new trial is a prerequisite to a “complaint on
which evidence must be heard such as . . . failure to set aside a judgment by
default.” TEX. R. CIV. P. 324(b)(1); see also Massey, 35 S.W.3d at 699
(“Complaints regarding the trial court’s failure to set aside a default judgment must
be raised in a motion for new trial.”). Through this procedure, the trial court
considers and weighs the evidence. Ginn v. Forrester, 282 S.W.3d 430, 432 (Tex.
2009).
      The record shows that the trial court entered the default order on July 3,
2012. Johnson filed a “Motion to Appeal” on July 23, 2012, and again on July 30,
2012, a few days before the expiration of the thirty-day period to move for new
trial. See TEX. R. CIV. P. 329b(a). This shows that Johnson knew about the default
order within time to challenge it by moving for a new trial. That was a necessary
step that she had to take to preserve a complaint on appeal that the trial court failed
to set aside the default order. See TEX. R. CIV. P. 324(b)(1).
      Although Johnson made factual allegations in her pro se appellate brief
contesting the facts alleged in Harris’s petition, those facts are not part of the
appellate record, and we may not consider them. See Nogle & Black Aviation,
Inc. v. Faveretto, 290 S.W.3d 277, 286 (Tex. App.—Houston [14th Dist.] 2009, no
pet.); see also TEX. R. APP. P. 34.1. We hold that Johnson has waived appellate
review of her complaint that the trial court’s default order should be set aside under
Craddock. See Massey, 35 S.W.3d at 699 (holding default judgment could not be


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set aside where the appellant failed to raise Craddock factors in a motion for new
trial). We overrule Johnson’s sole issue.
                              III. This Court’s Ruling
      We affirm the order of the trial court.




                                                   MIKE WILLSON
                                                   JUSTICE


August 22, 2013
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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