In the

Court of Appeals

Second 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, JJ. 

Memorandum Opinion by Justice Bassel

JARON MAURICE LYNCH, Appellant

V. 

SAMANTHA JACQUELINE LOPEZ, Appellee
2

MEMORANDUM OPINION

I. Introduction

In a single issue, Appellant Jaron Maurice Lynch challenges the trial court’s 

denial of his motion for new trial directed at a ten-year family-violence protective 

order rendered because Appellant represented “a credible threat to the physical safety

of” Appellee Samantha Jacqueline Lopez. We overrule Appellant’s issue because his

motion failed to present facts supporting a prong of the proof necessary to obtain a 

new trial—that he had a meritorious defense to Appellee’s claim that she was entitled

to a protective order. Further, Appellant is not entitled to a new trial based on his 

claim that the protective order improperly prohibits his possession of a firearm. A 

section of the Family Code enables Appellant to challenge this allegedly objectionable 

prohibition. Because the Family Code provides an adequate remedy for Appellant to 

mount a challenge to the firearm prohibition, there is no reason for equity to 

intervene and abrogate the entire protective order and thus deprive Appellee of the 

order’s protections from Appellant’s threat of future family violence. Accordingly, we 

affirm.

II. Factual and procedural background

Appellant’s brief sets out the chronology and background of this matter in a 

succinct fashion:
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On July 5, 2022, [Appellee] filed 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 signed a temporary ex parte 

protective order and show[-]cause order, ordering [Appellant] to appear 

in the 231st Associate Court on July 19, 2022, at 9:00 a.m. 

On July 19, 2022, [Appellee] filed a motion to reissue citation and 

temporary ex parte order and show[-]cause order because of lack of 

service on [Appellant]. The trial court signed a temporary ex parte order 

and show[-]cause order that same day, ordering [Appellant] to appear in 

the 324th Associate Court on August 2, 2022, at 9:00 a.m. 

On July 20, [Appellant] was served at “100 N. Lamar” in Tarrant 

County, which is the Tarrant County Corrections Center, where 

[Appellant] was imprisoned at the time. The return ordered [Appellant]

to appear in the 231st Associate Court on August 2, 2022, at 9:00 a.m. 

On August 2, 2022, the associate judge held a final trial.

[Appellant] did not appear, and the bailiff called the hallways and called 

the 324th Associate Court as well. [Appellee] testified that [Appellant]

and she had been engaged, that [Appellant] had committed various bad 

acts against her, that she believed [Appellant] had charges against him 

for other bad acts, and that she was concerned for her future safety. She

also testified that [she] and [Appellant] together did not have any 

children. [Record references omitted.]

After rendition of the default protective order, Appellant filed a motion for 

new trial that was supported by his declaration. Though the declaration 

acknowledged that Appellant had received the application for a protective order

setting the date of a hearing, Appellant professed that he was confused and thought 

that the protective-order matter was the same matter as a criminal charge pending

against him. No one attended the protective-order hearing on Appellant’s behalf

1

Appellee’s brief notes that she filed the application based upon allegations of 

“family violence,” not “bad acts.”
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because Appellant claims that he mistakenly believed the lawyer 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 conservatorship, access, and possession if this protective 

order stands.” The declaration did not deny that Appellant had committed family 

violence against Appellee.

The trial court signed notices and amended notices of hearing for the motion 

for new trial, but for reasons not explained in the record, it was apparently not heard

and was overruled by operation of law. Subsequently, Appellant filed a notice of 

appeal.

III. Analysis

A. Appellant’s motion for new trial failed to present facts that support 

one of the prongs of proof necessary for him to obtain a new trial—

that he had a meritorious defense to Appellee’s request for a

protective order.

The standard of review and the elements that Appellant had to establish to 

obtain a new trial were recently reiterated by the Texas Supreme Court when it listed 

the prongs of the venerable Craddock test:

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). The rule of 

Craddock v. Sunshine Bus Lines[, 133 S.W.2d 124 (Tex. [Comm’n Op.] 

1939),] entitles a defaulting party to a new trial when[] “(1) the failure to 

appear was not intentional or the result of conscious indifference[] but 

was the result of an accident or mistake, (2) the motion for new trial sets

up a meritorious defense, and (3) granting the motion will occasion no 

delay or otherwise injure the plaintiff.” Dolgencorp of Tex., Inc. v. Lerma, 
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288 S.W.3d 922, 925 (Tex. 2009) (citing Craddock, 133 S.W.2d at 126). . . . 

If a defaulting party moves for a new trial and satisfies Craddock, then the 

trial court abuses its discretion in failing to grant a new trial. [Id.] at 926.

B. Gregg Price, P.C. v. Series 1 – Virage Master LP, 661 S.W.3d 419, 423–24 (Tex. 2023). 

The Craddock test applies to determine whether a trial court should set aside a noanswer default judgment. Milestone Operating, Inc. v. ExxonMobil Corp., 388 S.W.3d 307, 

308–09 (Tex. 2012).

Another venerable supreme court opinion—Ivy v. Carrell—establishes what 

allegations are necessary to meet the Craddock test’s second prong by setting up a 

meritorious defense. 407 S.W.2d 212, 213 (Tex. 1966). A later opinion of the 

supreme court describes the standard of Ivy as follows:

The second prong of the Craddock test requires [a new-trial movant] to 

“set up” a meritorious defense in its motion for new trial. [Craddock,] 

133 S.W.2d at 126. Setting up a meritorious defense does not require 

proof “in the accepted sense.” Ivy, 407 S.W.2d at 214. Rather, the 

motion sets up a meritorious defense if it alleges facts which in law 

would constitute a defense to the plaintiff’s cause of action and is 

supported by affidavits or other evidence providing prima facie proof 

that the defendant has such a defense. Id. (testimony given at the 

motion for new trial hearing used to determine whether defendant 

provided prima facie evidence of a meritorious defense); see Guar. Bank v. 

Thompson, 632 S.W.2d 338, 339 (Tex. 2006).

Lerma, 288 S.W.3d at 927–28 (footnote omitted). “A meritorious defense is one that, 

if true, would cause a different result on retrial, though it need not be a totally 

opposite result.” Take 5 LLC v. Smith, No. 05-22-00390-CV, 2023 WL 1229028, at *5 

(Tex. App.—Dallas Jan. 31, 2023, no pet.) (mem. op.) (citing L’Arte De La Mode, Inc. v. 

Neiman Marcus Grp., 395 S.W.3d 291, 296 (Tex. App.—Dallas 2013, no pet.)).
6

Setting up a meritorious defense requires the articulation of the facts 

supporting the defense because “conclusory statements are not sufficient to meet the 

second Craddock element.” Djomo v. Tchengwe, No. 01-20-00581-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. 14-19-00463-CV, 2021 WL 5707430, at *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 order and holding that trial court did not 

abuse its discretion by denying motion for new trial when appellant failed to provide 

prima facie proof of meritorious defense to protective order). 

When a motion for new trial fails to present evidence supporting one of the 

necessary prongs of proof—such as the failure to establish a meritorious defense—we 

will affirm the denial of the motion for new trial based on that 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 it is dispositive of 

appellants’ thirteenth issue, we first consider whether appellants satisfied the second 

prong of the Craddock test by setting up a meritorious defense as to the [appellee’s]

suit on a sworn account.”); see also Djomo, 2022 WL 2836805, at *2 (holding that trial 

court properly exercised its discretion by denying motion for new trial directed to 

entry of protective order because appellant’s motion failed to allege facts establishing 

a meritorious defense).
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Here, Appellant failed to set up a meritorious defense, and his failure to 

establish that prong of the Craddock test is fatal to his claim that he was entitled to a 

new trial. With respect to his claim of a meritorious defense, the total extent of the 

statements in Appellant’s declaration are as follows:

I have young children that this protective order will adversely affect my

conservatorship, access, and possession if this protective order stands. I 

believe justice will not be properly served unless a full and complete new 

trial is granted. Failure to grant a new trial and allow me to present 

evidence would create a result that is so unjust and unfair as to constitute 

an abuse of discretion. 

This paragraph states the adverse consequences of the entry of the protective order 

but presents no facts that would constitute a defense to its rendition. Specifically, the 

declaration does not deny that the abuse about which Appellee testified had occurred

or claim that she had a motive to falsify her testimony. See Cantu-Garcia v. Medrano, 

No. 14-21-00171-CV, 2022 WL 16645509, at *3 (Tex. App.—Houston [14th Dist.] 

Nov. 3, 2022, no pet.) (mem. op.) (“[Appellant’s] motion and declaration sufficiently 

set up a meritorious defense; he explicitly denied the alleged conduct occurred and 

offered a motive for [appellee] to have fabricated the allegation.”). Simply, the 

declaration does not offer even conclusory statements of facts supporting the

existence of a meritorious defense. Further, Appellant’s subjective belief that justice 

will not be served unless he receives a new trial is not evidence, see, e.g., Tex. Div.–

Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994), and even if it were, it has no 

bearing on the existence of a defense.
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Appellant has presented no facts that meet the second prong of the Craddock

test. Thus, the trial court acted within its discretion when it did not hear his motion

for new trial because that motion lacked the facts necessary to show that Appellant 

would be entitled to relief.

2

B. Appellant’s contention that the protective order contains an 

erroneous provision does not warrant the granting of a new trial; 

the Family Code provides Appellant an adequate remedy to 

address the alleged impropriety by allowing him to seek

modification of the order.

Appellant argues that legal developments after the rendition of the protective 

order warrant a new trial because the order improperly prohibits him from possessing 

a firearm. Specifically, he argues that

at the time [he] could make a complaint in the trial court regarding the 

constitutionality of the prohibition against possessing a firearm, case law 

was clear that the prohibition was held to be constitutional. See United 

2

Appellant also argues that his

timely motion and declaration establish a meritorious defense because he 

explained that he was in jail at the time of trial, August 2, 2022, but the 

default protective order required him to complete a batterer’s 

intervention and prevention program by August 12, 2022, only ten days 

later. . . . The record is devoid of any evidence that [Appellant] could

actually have completed these services due to his incarceration, and 

because it required the program to be completed at specified locations 

outside of the jail, his incarceration would have precluded him from 

doing so.

In addition to the fact that this argument is not made in the motion for new trial, the 

declaration contains no facts supporting it. The declaration does not state that 

Appellant was in jail on August 12, 2022. Further, the order did not require Appellant 

to complete the batterer’s course by August 12 but merely required him to enroll in 

the course by that date. 
9

States v. Rahimi, No. 21-11001, 2023 WL 1459240, at *2 (5th Cir. Feb. 2, 

2023) (recognizing that challenges to constitutionality of law prohibiting 

possession of firearm was foreclosed by United States v. McGinnis, 956 

F.3d 747 (5th Cir. 2020) and United States v. Emerson, 270 F.3d 203 (5th 

Cir. 2001)). Based on new case law that was decided after the time to

make a complaint, the default protective order’s prohibition of 

[Appellant’s] “[p]ossessing a firearm” is unconstitutional. See id. at *10 

(holding 18 U.S.C. § 922(g)(8) that prohibits possession of firearm under 

civil protective order unconstitutional; relying on N.Y. State Rifle & Pistol 

Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022)); see Blair v. Fletcher, 849 S.W.2d 

344, 345 (Tex. 1993) (holding that appellate decision should be made in 

light of change in the law). Although the court in Rahimi said the validity 

of the underlying protective order was not at issue, the reasoning from 

Rahimi applies just the same—civil proceedings are insufficient to

prohibit the possession of firearms. See [2023 WL 1459240,] at *6. This 

would further result in a different outcome in a new trial.

As conceded by Appellant, he did not make this argument to the trial court

because the “new case law . . . was decided after the time to make a complaint.” We 

cannot understand how the 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 

by Appellant3 deals with federal law and not the provisions of the Texas Family Code 

that apply to the requirements of a protective order in a family-violence context. See 

Tex. Fam. Code Ann. § 85.022(b)(6) (“In a protective order, the court may prohibit 

the person found to have committed family violence from[] . . . possessing a firearm, 

unless the person is a peace officer, as defined by Section 1.07, Penal Code, actively 

3

Although Appellant cites “United States v. Rahimi, No. 21-11001, 2023 WL 

1459240, at *2 (5th Cir. Feb. 2, 2023),” that decision was withdrawn because it was 

superseded on March 2, 2023, by United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), 

petition for cert. filed, No. 22-915 (U.S. Mar. 21, 2023).
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engaged in employment as a sworn, full-time paid employee of a state agency or 

political subdivision . . . .”).

But there is a more fundamental reason why Appellant’s argument is 

unavailing. Appellant does not deny that he has committed family violence or that the 

violence that he committed in the past warrants a finding that he might commit such

violence in the future. Instead, he challenges a narrow aspect of the protective order. 

That challenge—should it be valid—does not require the intervention of equity to 

grant him a new trial. Appellant has a remedy, and that remedy is adequate to address 

his complaint without having to take the further step of holding a new trial.

Here, the Family Code provides a remedy by which Appellant may obtain relief

without abrogating the protections of the order that Appellee may need to shield her

from Appellant. Section 87.001 of the Family Code accords Appellant the right to ask 

the trial court to modify the protective order should he contend the protective order’s 

firearm provision is no longer valid. See Tex. Fam. Code Ann. § 87.001. The 

parameters of Section 87.001 were described by the Fourteenth Court of Appeals as 

follows:

In addition, under Family Code [S]ection 87.001, “[o]n the motion of 

any party, the court, after notice and hearing, may modify an existing 

protective order to[] (1) exclude any item included in the order[] or (2) 

include any item that could have been included in the order.” Tex. Fam. 

Code Ann. § 87.001 . . . . Under this statute, the trial court retains 

jurisdiction and authority to modify the Order throughout its pendency, 

including after this appeal from the Order comes to an end. See id.; L.S. 

v. Shawn, No. 13-17-00224-CV, 2018 WL 4100857, at *2–3 (Tex. App.—

Corpus Christi[–Edinburg] Aug. 29, 2018, no pet.) (mem. op.); In re S.S., 
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217 S.W.3d 685, 686–87 (Tex. App.—Eastland 2007, no pet.); Cooke v. 

Cooke, 65 S.W.3d 785, 788 (Tex. App.—Dallas 2001, no pet.). During 

the effective period of the Order, the trial court retains the power and 

jurisdiction on the motion of any party, and after notice and hearing, to 

modify the Order by either deleting or adding items to the order, 

without any requirement of a showing of changed circumstances. 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 at 788.

J.A.T. v. C.S.T., 641 S.W.3d 596, 616–17 (Tex. App.—Houston [14th Dist.] 2022, pet. 

denied).

Further, the Craddock test is an equitable doctrine. In re Marriage of Williams, 646

S.W.3d 542, 545 (Tex. 2022). The Craddock test is not directed at errors that may be 

present in a judgment but is a remedy designed to protect a party from an excusable

failure to answer. As noted recently by the supreme court, “[a] motion under Craddock

does not attempt to show an error in the judgment; rather, it seeks to excuse the 

defaulting party’s failure to answer by showing the Craddock elements.” Id.

There is no need for equity to intervene in this case. Appellant offers no 

defense to the fact that the order was needed to protect Appellee and thus has not 

offered the necessary grounds to excuse his failure to answer. Further, he has a 

mechanism available to challenge a provision of the order that he argues has become

invalid based on events that occurred after its rendition. Craddock’s equitable rule 

serves no purpose when Appellant has another adequate remedy to address the 

alleged impropriety in the order. See Frost Nat’l Bank v. Burge, 29 S.W.3d 580, 596

(Tex. App.—Houston [14th Dist.] 2000, no pet.) (“Equity invokes the ‘court of 
12

conscience,’ and it applies only when ‘the legal remedy is not as complete as, less 

effective than, or less satisfactory than the equitable remedy.’” (citing First Heights 

Bank, FSB v. Gutierrez, 852 S.W.2d 596, 605 (Tex. App.—Corpus Christi–Edinburg

1993, writ denied))).

Accordingly, we overrule Appellant’s sole issue and hold that the trial court did 

not abuse its discretion by allowing Appellant’s motion for new trial to be overruled 

by operation of law.

IV. Conclusion

Having overruled Appellant’s sole issue, we affirm the default protective order.

/s/ Dabney Bassel

Dabney Bassel

Justice

Delivered: June 8, 2023