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 
Davis v. State Page 2

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 3

“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 4

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 5

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]