Opinion
05-21-01046-CV
06-30-2023
ROBERT JOSEPH YEZAK, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-04110-2021
Before Justices Pedersen, III, Goldstein, and Smith
MEMORANDUM OPINION
BONNIE LEE GOLDSTEIN JUSTICE
Robert Joseph Yezak appeals the trial court's default judgment against him in this bond-forfeiture case. In five issues, labeled as "arguments" in Yezak's brief, Yezak contends that the trial court erred because (1) his failure to appear was not intentional or the result of conscious indifference, (2) he has a meritorious defense, (3) reinstating the case will not harm or delay the State's case, (4) the judgment deprived him of due process, and (5) his right to a jury trial was not waived. We affirm in this memorandum opinion. See TEX. R. APP. P. 47.2(A).
BACKGROUND
Our record is relatively small, consisting of twelve documents, a few of which provide summary insight as to the facts of this case: the trial court's docket sheet; a July 29, 2021 judgment nisi; the October 11, 2021 final judgment; and Yezak's notice of appeal. No reporter's record was made of the proceedings.
The July 29 judgment nisi was filed with a surety bond attached. The bond lists Yezak as the principal and Bankers Insurance Company (Bankers) as the surety. The bond is in the amount of $15,000 and states that some time prior to March 25, 2021, Yezak was arrested and charged with "DWI 3rd or more." The judgment nisi states that a hearing was scheduled in the DWI case for July 1, 2021, but Yezak failed to appear. On the State's request, the trial court entered the judgment nisi, ordering that the bond be forfeited "unless good cause shall hereafter be shown why [Yezak] did not appear, as required." The State filed the judgment nisi and served a copy on Bankers and Yezak. Bankers' filed original answer on August 2, 2021, asserting a general denial and five statutory affirmative defenses. Yezak did not file an answer.
Texas DWI statutes impose harsher penalties on the second and subsequent DWI convictions. See TEX. PENAL CODE ANN. § 49.09.
The return of service is not in our record. The trial court's docket sheet lists the citation to Yezak as having been filed on July 30, 2021. A notation next to the citation states, "served 7/30/2021."
On October 11, 2021, the trial court entered its final judgment. In the final judgment, the court found that the State and Bankers appeared and announced ready but Yezak "failed to appear and wholly made default." The trial court also found that there was no sufficient cause for Yezak's failure to appear at the July 1 criminal hearing. The trial court ordered that the judgment nisi was "hereby made final" and awarded the State its costs, expenses, and interest in the amount of $137.67, all of which were taxed against Yezak and Bankers jointly and severally.
After entry of the final judgment, Yezak, representing himself, filed a handwritten notice of appeal. We set forth the notice of appeal in full:
Now comes Robert Joseph Yezak who brings this notice of appeal to the Judgment against him for court costs of 321.00 and interest amount of 137.67. The defendant suffered a well[-]documented heart attack and was later in custody of the Bell County Jail. Defendant had not been served or allowed any means to participate in any hearing. The defendant has no attorney on record for any civil case and was only notified by his criminal attorney that there was an unopen[e]d letter delivered to his office after the fact. The defendant was forwarded the Judgment to the Bell County Jail after the defendant was denied a meaningful opportunity at a meaningful time to appear in Court.
I attest that all the statements in this document are true and correct to the best of my knowledge. I have no access to the law library, paper, pen, or stamped envelopes. I have been declared indigent by Collin County Indigent Services. I have no phone access or ability to communicate with my attorney. My address is [Bell County Jail address], my birthdate is [date]. I have deposited this appeal in the only place designated for mail on November 10, 2021.
Attached to the notice of appeal is a scanned copy of the envelope in which it was sent from the Bell County Law Enforcement Center. The envelope bears a postmark date of November 29, 2021. The notice of appeal bears a file stamp from the Collin County District Clerk dated December 2, 2021.
DISCUSSION
Appellant's first three issues track the Craddock factors. See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939) (requiring a new trial if the defendant shows (1) that the default was neither intentional nor the result of conscious indifference, (2) a meritorious defense, and (3) that a new trial would cause neither delay nor undue prejudice). In his fourth issue, appellant contends that entry of default judgment against him deprived him of his due process rights under the Fourteenth Amendment. In his fifth issue, appellant contends that the default judgment deprived him of his right to a jury trial under other amendments to the U.S. Constitution. The State contends that appellant waived these arguments for appeal. We agree with the State.
The three methods for seeking to set aside a default judgment are by direct appeal, restricted appeal, or equitable bill of review. See Haynes v. Hawkes, No. 05-17-00304-CV, 2018 WL 3134884, at *1 (Tex. App.-Dallas June 27, 2018, no pet.) (mem. op.). Here, appellant filed a direct appeal. To preserve an issue for appeal, the record must show that the complaint was raised in the trial court "by a timely request, objection, or motion" stating the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint. Tex.R.App.P. 33.1(a). Appellate Rule 33.1 applies even to constitutional issues. In re N.L.T., 420 S.W.3d 469, 473 (Tex. App.-Dallas 2014, pet. denied). In the case of a no-answer default judgment, a motion for new trial is required to preserve issues for appellate review. See TEX. R. CIV. P. 324(B) ("A POINT IN A MOTION FOR NEW TRIAL IS A PREREQUISITE TO THE FOLLOWING COMPLAINTS ON APPEAL: (1) A COMPLAINT ON WHICH THE EVIDENCE MUST BE HEARD SUCH AS ONE OF JURY MISCONDUCT OR NEWLY DISCOVERED EVIDENCE OR failure to set aside a judgment by default." (emphasis added)).
Ordinarily, the notice of appeal must be filed within thirty days after the judgment or order appealed from is signed. TEX. R. APP. P. 26.1(a). If the notice of appeal is sent by mail, we consider it timely if it is received within ten days after the deadline. See TEX. R. APP. P. 9.2(b). Because this is an appeal from a default judgment, if the notice of appeal for a direct appeal were untimely filed, we could treat this as a restricted appeal. See TEX. R. APP. P. 26.1(c) (providing that a notice of restricted appeal must be filed within six months after the order or judgment appealed from is signed); Nielsen v. Chase Bank USA NA, No. 14-11-00079-CV, 2011 WL 6202786, at *1 (Tex. App.-Houston [14th Dist.] Dec. 13, 2011, no pet.) (mem. op.) (treating untimely filed appeal after default judgment as a restricted appeal). However, for pro se litigants who are incarcerated, filings are deemed filed when placed with prison officials for mailing. Ramos v. Richardson, 228 S.W.3d 671, 673 (Tex. 2007); Warner v. Glass, 135 S.W.3d 681, 684-85 (Tex. 2004). Yezak states in the notice of appeal that he deposited it "in the only place designated for mail on November 10, 2021." The State does not dispute Yezak's statement and instead treats this as a direct appeal. We conclude that Yezak's notice of appeal was timely and treat this as a direct appeal.
Appellant did not file a motion for new trial after entry of default judgment against him. We therefore conclude that he has waived his issues for appeal.
CONCLUSION
We overrule appellant's issues and affirm the judgment of the trial court.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered.