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Texas Department of Public Safety v. Gonzalez

Court of Appeals of Texas, Fourth District, San Antonio

January 22, 2014

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
v.
Erika Denisse GONZALEZ, Appellee

From the County Court at Law No. 1, Webb County, Texas Trial Court No. 2012CVK00326C1 Honorable Alvino (Ben) Morales, Judge Presiding

Sitting: Catherine Stone, Chief Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice

MEMORANDUM OPINION

MARIALYN BARNARD, JUSTICE

The Texas Department of Public Safety ("DPS") filed this restricted appeal, attacking the trial court's entry of an expunction order in favor appellee Erika Denisse Gonzalez. DPS contends the face of the record shows the evidence was legally insufficient to support the expunction and the trial court did not comply with mandatory notice requirements. Because the face of the record reflects the evidence was legally insufficient to support the expunction, we reverse the trial court's judgment and render judgment denying the requested expunction.

Background

On February 17, 2012, Gonzalez filed a petition for expunction pursuant to article 55.01(a)(2) of the Texas Code of Criminal Procedure.[1] A hearing on the petition was initially set for April 3, 2012. DPS received notice of this hearing and filed a general denial in response. However, the trial court subsequently reset the hearing for May 8, 2012. No notice of the reset was sent to DPS. Consequently, DPS did not attend or participate in the hearing.

At the brief hearing, Gonzalez initially testified to her date of birth and other identifying information. The following exchange constitutes the entirety of the testimonial evidence offered in support of the expunction:

Ms. Tijerina (Counsel for Gonzalez): Ms. Gonzalez, you were arrested on or about – for Assault Felony 3 on October 29th, 2007; is that correct?
Ms. Gonzalez: Yes.
Ms. Tijerina: And also for Retaliation, Class A, on the same date?
Ms. Gonzalez: Uh-huh.
Ms. Tijerina: And for Burglary of a Habitation on the same date; is that correct?
Ms. Gonzalez: Yes.
Ms. Tijerina: And, to your knowledge, you were never convicted ...

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