IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
APRIL 10, 2006
______________________________
FERNANDO SAN LUIS, APPELLANT
V.
BLANCA D. BARAHONA AND MARTA A. REYES, APPELLEES
_________________________________
FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;
NO. 2003-594806; HONORABLE PAULA LANEHART, JUDGE
_______________________________
Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
MEMORANDUM OPINION
By restricted appeal, appellant Fernando San Luis challenges a default judgment rendered in favor of appellees Blanca D. Barahona and Marta A. Reyes. By two issues, Luis contends the trial court erred in rendering default judgment because (1) it failed to strictly comply with an order for substituted service of citation, and (2) it failed to hear evidence with respect to unliquidated damages. We reverse and remand.
In October 2001, Luis was involved in an automobile collision with Barahona and Reyes. Barahona and Reyes subsequently filed this suit alleging negligence and seeking to recover damages sustained as a result of the collision. On November 24, 2003, after several unsuccessful attempts to serve citation, Barahona and Reyes filed a motion for substituted service supported by an affidavit pursuant to Rule 106(b) of the Rules of Civil Procedure. Counsel for Barahona and Reyes filed another supporting affidavit on December 1, 2003, attesting Luis could be served at his "usual place of abode" at 5207 Loyce Street, Amarillo, Texas 79109. The same day, the trial court entered an order granting the motion for substituted service and ordering that service of citation could be made by leaving a copy of the citation, a copy of the petition, and a copy of the order with any person sixteen years of age at the following location:
Defendant's usual place of abode: 5207 Loyce Street, Amarillo, Texas 79109.
On December 5, 2003, citation was filed with a return indicating Luis was served through Gunny Sgt. David Clark at 1100 S. Fillmore in Potter County, Texas. When Luis subsequently failed to appear, the trial court issued notice of intent to dismiss for want of prosecution. On March 4, 2005, following a status request, the court rendered default judgment in favor of Barahona and Reyes. Luis timely filed this restricted appeal per Rule 30 of the Rules of Appellate Procedure.
A restricted appeal is available for the limited purpose of providing a party who did not participate at trial with the opportunity to correct an erroneous judgment. Starks v. Texas Dept. Crim. Justice, 153 S.W.3d 621, 624 (Tex.App.-Amarillo 2004, no pet.). In order to be entitled to relief by restricted appeal, Luis, being a party to the suit, must file his petition within six months of the date of judgment, demonstrate that he did not participate in the trial, and show that error is apparent from the face of the record. See Tex. R. App. P. 26.1, 30; Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex. 1985).
Considering the issues in logical order, we first consider Luis's second issue by which he contends the trial court erred in rendering a default judgment against him awarding Barahona and Reyes monetary damages for personal injuries sustained in the accident without hearing evidence to support the award. We agree.
Although the default judgment (1) signed by the trial court recites that evidence was "considered," the docket sheet simply reflects that default judgment was rendered on Barahona and Reyes's claims. According to the affidavit of due diligence in the clerk's record, the court reporter avers that upon a search of the court records, the plaintiffs did not appear in person and that the default judgment was signed without appearance by either party to the case and without taking evidence in the matter. Rule 243 of the Rules of Civil Procedure requires that if the cause of action is unliquidated, the trial court shall hear evidence before rendering judgment. In Arenivar v. Providian Nat. Bank, 23 S.W.3d 496, 498 (Tex.App.-Amarillo 2000, no pet.), we held the trial court erred in rendering judgment without hearing evidence.
Moreover, the default judgment does not conform to the pleadings contrary to Rule 301 of the Rules of Civil Procedure. Here, the pleadings of Barahona and Reyes did not seek to recover attorney's fees; however, among other things, the default judgment awarded Barahona and Reyes each $5,000 in attorney's fees. Accordingly, the trial court erred in rendering judgment for attorney's fees. E.g., City of Austin v. Castillo, 25 S.W.3d 309, 314 (Tex.App.-Austin 2000, pet. denied). Luis's second issue is sustained. Our disposition of this issue pretermits our consideration of the remaining issue. Tex. R. App. P. 47.1.
Accordingly, the default judgment is reversed and the cause is remanded for further proceedings.
Don H. Reavis
Justice
1. It appears that the judgment was prepared by and approved as to form by counsel for Barahona and Reyes.
to an alley. Upon talking to Hodges, White was told that Hodges was parked there while appellant went down the alley to use the restroom. Shortly thereafter, appellant appeared from some bushes near a vacant house. This was the same vacant house that appellant was ultimately charged with burglarizing. White questioned appellant and she was released. White discovered the owner of the vacant house, interviewed her, and discovered that certain items had been taken from the house. Upon returning to the vacant house, White found a number of items stacked on the front porch, including a purse that contained no identification. Some days later, White went to appellant’s place of employment to interview her about the burglary at the vacant house. Upon beginning the interview, appellant began crying and made statements about the items left on the porch, including the purse which she claimed belonged to her. White testified, at a pretrial hearing, that during his interview with appellant he felt he had enough information to formulate probable cause to arrest her. However, White further testified that he did not attempt an arrest or inform appellant that he felt he had probable cause to arrest. At the conclusion of this pretrial hearing on the admissibility of appellant’s oral statements, the trial court ruled that they were admissible. Appellant was convicted of the charge of burglary of a building and this appeal resulted.
Appellant’s Oral Statements
Appellant’s sole contention is that, once officer White formulated in his mind that he had probable cause to arrest appellant for the burglary of the vacant house, appellant was in custody unless the officer had advised appellant that she was free to leave. According to appellant, White rendered the oral statements inadmissible because, even though appellant was in custody, she was not given her Miranda rights prior to making the incriminating oral statement.
We will review the decision of the trial court to overrule the motion to suppress de novo, as there is no controversy regarding the factual background nor is the decision based on the credibility of the witness. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999). Appellant’s contention is grounded upon her view that the opinion in Dowthitt v. State stands for the proposition that once an officer develops, in his own mind, probable cause to arrest a suspect, the suspect is in custody for Miranda purposes unless the officer advises the suspect that they are free to leave. See Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996). However, appellant misconstrues the Dowthitt holding. In Dowthitt, the Texas Court of Criminal Appeals stated that the custody determination is based entirely upon objective circumstances. Id. (citing Stansbury v. California, 511 U.S. 318, 324, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994)). A person is in custody only if it is established that the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with arrest. Id.
Given the facts in the record, it is clear that on the day of the interview at appellant’s place of employment, it was never communicated to appellant that she was under arrest or otherwise restrained of her freedom. Accordingly, the oral statements made by appellant on that day were not the result of custodial interrogation and the trial court did not err in admitting them before the jury. Id.
Additionally, we note that appellant gave a written confession that was introduced during the trial. Appellant has not attacked the introduction of the written confession before the jury. Accordingly, that evidence is before the court for all purposes. A review of the written statement reveals that it covers much of the same material and makes further admissions. Therefore, even were we to find that the oral statements were admitted in error, the written statement would render this error harmless beyond a reasonable doubt. Tex. R. App. P. 44.2(a).
Conclusion
Having overruled appellant’s sole contention, the judgment of the trial court is affirmed.
Mackey K. Hancock
Justice
Do not publish.