## In the Court of Appeals Se cond Appellate District of Texas at Fort Worth

___________________________ No. 02

- 22

- 00435

- CV

___________________________

On Appeal from the 231st District Court Tarrant County, Texas Trial Court No. 231

- 719628

- 22

Before Sudderth, C.J.; Bassel and Womack, J J. Memorandum Opinion by Justice Bassel 

### J ARON 

### M AURICE 

### L YNCH 

### , Appellant

V



### . S AMANTHA 

### J ACQUELINE 

### L OPEZ 

### , Appellee2 MEMORANDUM OPINION
I. I n tro duc tion
I n a single issue, Appellant Jaron Maurice Lynch challenges the trial court ’ s denial of his moti on for new trial directed at a ten

- year family

- vi olence pro tective
order rendered b ecause Appellant represented “ a c redible threat to the physical safety

o f ” Appellee Sa mantha Jacqueline Lopez

. We overrule Appellant ’ s issue because his
motion failed to present facts supporting a prong of the proof neces sary to obtain a

new trial

— that he had a meritorious defens e to Appellee’s claim that she was entit led

to a pro t ective order

. Further , Appellant is not entitle d to a new trial b ased on his
claim that t he protective order improperly prohi bits hi s possessi o n of a firearm

. A
section of the F amily Code enables Appel lant to chall enge th is allegedly objecti on able prohibi t ion . Because the Family Code provides an adequate remedy fo r Appellant to

mount a challenge to the firearm prohibition , ther e is no reason fo r equity to
intervene and a brogate the entire protective or der and t hus deprive Appelle e of the
ord er ’ s protect i ons from Appellant ’ s thre at of future fa mily violence

. Accordingly, we
affirm

. II. Fac tual and procedural background Appe llant ’ s brief set s out the chronology an d back ground of this matt er in a
succi nct fashion :3 On July 5, 2 022, [A p pell ee] fi led an application for a protective order in the 231st District Court, alleging various bad acts [ 1 ] by [Appellant]

. On July 6, 2022, the trial court s ig ned a temporary ex parte pr otecti v e order and show [

- ] cau se order, ordering [Appel lant] t o appear in the 231st Associate Court on July 19, 2022, at 9:00 a.m. On July 19, 2022, [ Appe llee ] filed a motion to rei ssue citation and temporary ex parte or der and show [

- ] cause order because of lack of service on [Appellant ]. The t rial co urt signed a temporary e x parte order and show [

- ] cause order that same day, ordering [Appellant] to appea r in the 324th Associate Court on Augus t 2, 2022, at 9:00 a.m. On July 20, [Appellant] was served at “100 N. Lamar” in Tarrant County , which i s the Tarra nt County Correction s Center, where [Appellant] was imprisoned at the time. T he return ordered [Appellant] to appear in the 231st Assoc iate Cou rt on August 2, 2022, at 9:00 a.m

. On August 2, 2022, the associa te judge h eld a final tri al. [Appellan t] did not appear, and the bailiff called the hallways and called the 324 th Associate Court as well. [ Appellee ] test ified that [Appellant] and she had been engaged, that [Appellant] had commit ted var ious bad
a c ts aga inst her, that she believ ed [Appellant] had charges against him f

or other bad acts, an d that she was concerned for her future safety. She also testi fied that [she] and [Appel lant] together did not have any children. [R ec ord re ferences omitted. ]
After r endition of the default protective order, Appellant filed a motion for

new trial that wa s supported b y his declaration

. Though the declaration
ackno wledged that Appellant had received the applicatio n for a protective order

se tt ing the date of a hearing , A pp ellant professed that he was confused an d thought
that the protective

- order matt er was the same matter as a cri minal charge pending against him. No one attended the protective

- order hearing on Appellant ’ s behalf

1 Appellee ’ s brief n otes that she filed the application ba sed up on allegations of

“ fami ly violence, ” not “ bad ac t s. ”4 b eca use Appellant claims tha t he mi s taken ly be lieved the la wyer whom he had hired
to handle the criminal matter would be handling the matter of which he had received
notice

. The declaration also stated , “ I have young children that this protective order will adversely affect my cons erv ator ship, a cces s, and possession if this protective
order stands. ” The declaration did not deny tha t Appellant had committed family
violence against Appellee.
The trial court si gn ed n otic es and amended notices of h earin g for the motion
for new tri al , but for rea son s not explained in the record , it was apparently not heard and was overruled by operation of law

. Subsequent ly, Appellant file d a notice of appeal.
III. Anal ysis
A. Appellant’s motion for new trial failed to p resent fa cts that support on e of the prong s of proo f neces sary for h i m to obtain a new trial

— t hat he h ad a meritorious defen se to Appe llee ’ s request for a protect ive order.
The standard of review and t he ele ments that Appellant ha d to establish to
obtain a new trial were recently reitera ted by the Te x as Supr eme C ourt w hen it listed
the prongs of the v ener able Craddock test : We review a trial court ’ s denial of a motion for new trial for abuse of discreti on. In re R.R

. , 209 S.W.3d 1 12, 114 (Tex. 2006)

. The rule of Craddock v. Sun shine Bus Line s [, 133 S.W.2d 124 (Tex. [Comm ’ n Op.] 1939),] entitl es a defau lting party to a new trial when [] “(1) the fa ilur e to appear was not intentional or the result of conscious indifference [] but
was the result of a n accident or mistake, (2) th e motion for new trial sets up a meritorious defens e, and (3) gra nting the m otion w ill occasio n no delay or otherwise injure th e pl aintiff.” Dolgencorp of Tex., Inc. v. Lerma ,5 288 S.W.3d 92 2, 925 (Tex. 2009) (ci ting Craddock , 1 33 S.W.2d at 126 )

. . . . If a defaulting pa rty moves f or a new trial a nd satisfie s Cradd ock , then t he trial court abuses its discretion in failing to grant a new trial. [ Id. ] at 926.
B. Gregg Price, P.C. v. Series 1

– Vira ge Master LP , 6 61 S. W.3d 419, 4 2 3

– 2 4 (Tex. 2 023 ).
Th e Craddock test appli es to determ ine whether a tria l court sh o uld set aside a no

answer default judgment

. Milestone Operating, Inc. v. ExxonMobil Corp. , 388 S.W.3d 307,
30 8

– 0 9 (Tex. 2012)

. A nother ven erable supreme court opinion

— Ivy v. Carrell

— establishe s w h at allegations ar e necessary to m e et the C raddock test ’ s s econd p rong by setting up a
meritorious defense

. 407 S. W.2d 212, 213 (Tex. 1966)

. A late r opinion of the supreme court describe s the stand ard of Ivy as f ollows : The second prong o f t he Craddock tes t requires [a new

- tr ial mo va nt ] t o “set up” a meritorious defense in its motion for new trial. [ Craddock , ] 133 S.W.2d at 126. Setti ng up a meritorio us defense does not require proof “in the accep ted sense.” Iv y , 407 S.W.2d at 214. Rather , the
m oti on se ts up a meritoriou s defen se if it alle ge s facts w hich in law would constitute a defense to the plaintiff ’ s cause of action and is suppo rted by affidavit s or other evidence providing prima facie pro of that the def endant has such a defense. I d

. (test imo ny g iven at the motion for new t rial hearin g used to d etermine whether d efendant provided prima facie evidence of a meritorious defense); se e Guar. Bank v. T

hompson , 632 S.W.2d 338, 339 (Tex. 2006).
L erma , 288 S.W.3 d at 92 7

– 28 (footnote omitted)

. “ A meritorious def ense is one tha t,
if tr ue, wou ld cau se a di fferent res u lt on retrial, though it need not be a t otally opposite result. ” Tak e 5 LLC v. Smith , No. 05

- 22

- 00390

- CV , 2023 WL 12290 28 , at * 5 ( Tex . App

. — Dallas Jan. 31, 2 023, no pet. ) (mem. op.) ( citing L’Arte De La Mod e, Inc. v

. Neim an Marcus G rp. , 39 5 S.W. 3d 291, 29 6 (Tex. App.

— Dallas 2013, no pet. ) ).6 Setting up a meritorious def ense requires the articulation of the facts supporting the defense b ecause “ conclu sory statements are not sufficient to meet the
second Craddock eleme nt. ” Djomo v. Tche ngwe , N o. 01

- 20

- 0058 1

- CV, 2022 WL 2836805, at *2 (Tex. App.

— Houston [ 1st Dist.] July 21, 2022, no pet.) (mem. op.) ( first citing Lerma , 288 S.W.3d at 928 ; and then citing Ivy , 407 S.W.2d at 214 ) ; see also Dupuy v. Williams , No. 14

- 19

- 004 63

- CV, 2021 WL 5707430, a t *8 (Tex. App.

— Houston [14th Dist.] Dec. 2 , 2021, pet . denied) (mem. op.) (applying Craddock in the
context of a challenge to a default protective o rder and holding that trial court did not
abu se its discretion by d enying motion f or new trial when appellant faile d to pr ovide prima faci e proof of me ritorio us defense to protective order)

. Whe n a motion f or new t rial fails to present evidence supportin g one of the necessary prongs of proof

— such as the failure to estab lish a meritori ous de fense

— we wi ll affirm the denial of the motion for new tri al bas ed on t hat failure alone. Abuzaid v. Modjarrad & Assocs., P.C. , No. 05

- 16

- 00777

- CV, 2017 WL 5559591, at *7 (Tex. App.

— Dallas Nov. 14, 2017, no pet.) (mem. op.) (“Because i t is dispositiv e of

a ppellants ’ t hirteenth issue, we fi rst consider whet her app ellant s satis fied the se cond
pro ng of the Craddock test by setting up a meritorious defense as to the [appelle e ’ s] suit on a sworn account.”); see a lso Djomo , 2022 WL 2836805, a t *2 ( holding t hat tr ial court properly exercise d its d is cretion by denying motion for new trial direct ed to
entry o f protectiv e order because appellant’s motion failed to allege facts esta blishing a meritorious defense).7 Here , Appell ant failed to set up a meritorious d efense , and his failure to
establish tha t p rong of the Craddock test is fatal to h is clai m that he was entitled t o a new trial. With respect to his claim of a meritorious de fense, the total extent of the

stateme nts in Appellant ’ s declaratio n are as follow s : I h ave young children that this prote ctive order wi ll adversely affect my conservator ship, access , and possess ion if this protective order stands. I believe justice will not be properly served unless a full a nd complete new trial is gran ted. Fa ilu re t o gran t a new trial and allow me to pres ent evidence wou ld create a result that is so unju st an d unfai r as t o const itute
a n ab use of discretion.
This paragrap h stat es the adverse consequences of the ent ry of the protective order
bu t presen t s no f acts that wou ld constitute a defense to its rendition

. Specifically , the
dec laration d oes not d eny tha t the abuse a bout which Appellee testified had occurred

or claim that s he had a motive to falsify her testimo ny. See Cantu

- Garcia v. Medr ano , N o . 14

- 21

- 00171

- CV , 202 2 WL 16645509 , at * 3 (Tex. App.

— Houston [ 14 th D ist. ]
Nov . 3, 2022, no pet.) (mem. op.) ( “ [Appellant ’ s ] motion and de clarati on sufficie ntly set up a meritorious d efense; he explicitly denied the alleg ed conduct occurred and
offer ed a motive for [app ellee ] t o have fabricated the alleg ation. ” )

. Simply, the
declaration does n ot offer even concluso ry st atements of facts s upport ing the
existence of a meritorious defens e . F urther, Appellant ’ s subjective be lief that justi ce will not be served unless he receives a new trial is not evidence , see, e.g. , Tex. Div.

– Tranter, Inc. v. Carroz za , 876 S.W.2d 312, 314 (Tex. 1994), and even if it were, it has no bearing on the existe nce of a defense

.8 A ppellant has pres ented no facts that me et the se c ond pr o ng of the Craddoc k

t est. T hus, the trial court acted within its discretion when it did not hear hi s motion
for new tr ial because that motion lack ed the facts necessary to show that Appellant
would be entitled to reli ef

. 2
B. Appellant ’ s contention that the prot ect ive ord er co n tains a n erroneous provision does not warrant the granting of a new trial ; the Family Cod e p rovides Appellant an adequate remedy to address the alleged impropri ety by allo wing him to seek mod ification of the order

. Appella n t argues that le gal dev elopme n ts aft er the rend ition of the protective
order warrant a new trial because the order impr op erly prohibits him from possessing
a fir earm
. Specifically, h e argu es that
at the time [ he ] could make a complaint i n the trial co urt regard ing th e const itutionalit y of the prohibitio n against possessing a firearm, case law was clear th at the prohibition was held to be constitutional. See Unit ed

2 Appellan t also argues that his

t i mely m otion and declarat ion establish a merito rious defense because h e explained that he was in jail at the time of trial , A ugust 2 , 2022 , but t he d efault protective order required him to com plete a batterer’s interv ention and prevention program by August 12, 20 22, only ten days lat er. . . . The reco rd is devoid of any evidence that [Appellant] could actua lly have completed these se rvices due t o his in carc eration , and because it required the p rogr a m to be completed a t specified locat ions outside of the jai l, his incarceration wou ld have precluded him from doing so.
I n addition to the fact that this argument is not made in th e mo tio n for n ew tri al, the dec laration contains no facts supp o rting it . T he declaration doe s not state tha t Appellant was i n j ail o n August 12, 2022. Furt her , the or der did not req uire Appellant to complete the batter er ’ s course b y August 12 but me rely re qu ired him t o enro ll in the course by that date.9 States v. Rahimi , No. 2 1

- 11001, 2023 WL 1459240, at *2 ( 5th Cir. Feb. 2, 20 23) (recognizi ng that ch alleng es to c onstitutio n ality of law prohib iting possession of firearm was foreclosed by United States v. McGinnis , 956 F.3d 747 (5th Cir. 2020) and Unite d States v. Emerson , 270 F.3 d 203 (5th Cir. 2001)). Based on new case law that was decided a ft e r the t ime to make a complain t, the default protec tive order’s prohibition of [Appellant ’ s ] “[p]ossessing a firearm” is unconstitutional. See id

. at *10 (holdi ng 18 U.S.C. § 922(g)(8) tha t prohibits possession of firea rm under civil protecti ve order unco n sti tutiona l; rel ying on N.Y. State Rifle & Pistol Ass’n, In c. v. Bruen , 142 S. Ct. 2111 (202 2)); see Blair v. Fletcher , 849 S.W.2d 344, 345 (Tex. 1993) (holding that appellate decision sho uld be made in light of change in the law). Although th e court in Rah imi said t he val idity
o f th e under lying protective order wa s not at issue, the reasoning fr om Rahimi appli es just the same

— civil proceedings are insufficient to prohibit the possession o f firearms. See [ 2023 WL 1459240 , ] at *6. Th is would further result in a differe nt ou tco me in a new t rial. As conceded by Appell ant, he did not make t his a rgument to the trial court
beca use the “ new case law

. . . was decided a f te r the t ime to make a complaint

. ” W e

c annot und erstand h ow th e trial court abused its discretion by failing to grant a new
trial based on an argument that it did not hear. And as Appellee notes , the case cited
b y Appe l lant 3 d eal s wi th f ederal l aw and not the provisions of the T e xas Family Cod e that app ly t o the requirements of a protective order in a family

- violence conte x t. See
T ex. Fam. Code Ann. § 85.022(b)(6) ( “ In a protective order, the cour t may prohibit
the person found to h ave c ommitted f amily violence from [] . . . possessing a firear m, unless t he person is a peace offi cer, as defined by Sec tion 1.07, Penal Code, actively

3 A l though Appel lant cites “ United States v. Rahimi , No. 2 1

- 11001, 2023 WL 145924 0, at *2 ( 5th Cir. Feb. 2, 20 23) , ” that decision was withdrawn because it was superseded on March 2, 2023, by United States v. Rahi mi , 61 F. 4th 4 4 3 (5th Cir. 2023) , pet ition for cert. filed , No. 22

- 915 (U.S. Mar. 21, 2023)

.10 engaged in employment as a sworn, full

- time paid employee o f a state agency or politic al subd ivisio n . . . . ” )

. But there is a more fundamental reason why Appellant ’ s argum ent is
unavaili ng . Appellant does not d eny that he has committed fa mil y v iolence or that the
violence that he committed in the past warr ant s a find ing that he might co mmi t such
violen ce i n t he future

. Instead , he challenges a narrow aspect of the protective order.
Tha t challenge

— should it be valid

— does not require the interve ntion of equi t y to grant him a new trial

. Appellant has a reme dy , and th at re medy is adequate to addres s his complaint without havi ng to take the further st ep o f holding a new trial

. Here , the Fam ily Code provides a remedy by which Appellant may obtain re lief
without abrogating th e protect ions of the order that Appelle e may need to shield her
from Appella nt
. Sectio n 87.001 of the Family Code accords Appellant the right to ask
the trial court to mo dify the protective order should he conten d t he protective order ’ s firearm pr ovision is n o lo nger va lid. See Tex. Fam . Code Ann. § 8 7.001. The
parameters of Sect ion 87.001 w er e desc r ibed b y th e F ourteenth C ourt of A ppeals as follows :
In addition, under F amily Code [S] ection 87.001, “[o]n the motion of any party, the court, after notice and heari ng, may modify an existing protective or d er to [] (1) exclude any item included in the o rder [] o r (2) incl ud e any item t hat c ould have been included i n the order.” Tex. Fam. Code Ann. § 87.001

. . . . Under this statute, the trial court retains jurisdicti on and author ity to modify the Order thr oughout its penden cy, inc ludin g aft er this appeal from the Order comes to an en d. S ee id

. ; L.S. v. Shawn , No. 13

- 17

- 00224

- CV, 2018 WL 4100857, at *2

– 3 (Tex. App.

— Corpus Christi [

– Edi nburg] Aug. 29, 2018, no pet.) (me m. op.); In re S.S. ,11 217 S.W.3d 685, 686

– 87 (Tex. App.

— Eastland 2007, no pet. ); Coo ke v

. C

ooke , 65 S. W.3d 785, 788 (Tex. App

. — Dalla s 2001, no pet.). During the ef fective period of the Order, the trial court retains the po wer and jurisdiction on the motion of any party, and after n otice and hear ing, to modify the Order by ei t her del eting or a dd i ng items to the order, without an y requir ement of a showing of changed c ircumstances. See Tex. Fam. Code Ann. § 87.001; L.S. , 2018 WL 4100857, at *2

– 3;

. . . S.S. , 217 S.W.3d at 686

– 87; Cooke , 65 S.W.3d a t 788. J.A.T. v. C.S.T. , 641 S. W.3d 59 6, 61 6

– 17 (Te x. App.

— Hou ston [14th Dist.] 202 2, pet.
d enied)

. Further , the Craddock test i s an equitable doctrine

. In re Marriage of Williams , 646
S.W.3d 542 , 545 (Tex. 2022). T he Cradd ock test is not directed at errors that may be
present in a judgment but i s a rem edy de signed to protect a party from an exc usable
failure to answer . A s noted recen tly by the supreme court, “ [a] motion under Cra ddoc k
does n ot attempt to show an error in t he judgment; rather, i t seeks to excuse the defaulting party ’ s fai lure t o answer by sho wing th e Craddock elements. ” Id

. There is no need for equity to in tervene in this case

. Appellant offers no defe nse to the fact that the order was needed to p rot ect Appell ee and t hus has n ot
offered t he nec essary grounds to excuse h is failure to ans wer . Further, h e has a
mechanism available to c hallenge a provis ion of the order t hat he argues has become
invalid based o n e ven ts that occurr ed after its renditi on . Cr addock ’s equitable rule
serves no purpose when Appellant has a nother adequate remedy to address th e alleged impropriety in the order

. See Frost Nat ’ l Bank v. Burge , 29 S.W. 3d 580, 5 96 (Tex. App

. — Ho uston [14th Dist. ] 2000, n o pet.) ( “ Equ ity inv okes t he ‘ cou rt of12 c onsc ience, ’ and it applies o nl y when ‘ the legal remed y is not as complete as, less effective than, o r less satis factory than the equitab le remedy. ’ ” (citing First Heights Bank, FSB v. Gutierrez , 852 S.W.2d 5 96, 605 ( Tex. Ap p.

— Co rpus Ch risti

– Edinburg 1993, w r it den ied) ) )

. Acc ordingly, w e overrule Appellant ’s s ole issue and h old that the trial c ou rt did

not a buse its discretion by allo wing A ppel lant’s motio n for new trial to be overruled by operation of law

. IV
. C onclusion Having overruled Appellan t ’ s sole iss ue, w e affirm the default protective order. /s/ Dabney Bassel Dabney Bassel Justice
Delivered: Ju ne 8, 2023