Court of Appeals of Texas, Fourth District, San Antonio
the 288th Judicial District Court, Bexar County, Texas Trial
Court No. 2018CI06739 Honorable Solomon Casseb III, Judge
Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D.
Chapa, Justice Beth Watkins, Justice
ELENA D. CHAPA, JUSTICE
Department of Public Safety (DPS) appeals an order granting
V.T.C.'s petition for expunction. DPS argues the order is
not supported by sufficient evidence, contends the trial
court misconstrued the applicable statute, and complains
about the lack of a reporter's record. We affirm the
filed a petition for expunction, requesting an expunction
under Texas Code of Criminal Procedure article 55.01(b)(2)
based on the prosecutor's recommendation. DPS filed an
answer, alleging V.T.C. was not entitled to an expunction
under article 55.01(a) because V.T.C. had been placed on
community supervision. DPS's answer did not specifically
address article 55.01(b)(2), but generally denied
V.T.C.'s allegations. The case was set for a June 7, 2018
7, 2018, the trial court signed the expunction order, finding
V.T.C. was entitled to an expunction under article
55.01(b)(2) based on the prosecutor's recommendation. The
trial court made other findings under article 55.01(b),
specifically that V.T.C. had been arrested, and the charge
was dismissed after he completed deferred adjudication
community supervision. DPS filed a notice of appeal on July
filed a docketing statement in this appeal, stating there was
a reporter's record. After the court reporter filed a
notice stating she was not present at work on June 7, 2018,
this court gave DPS an opportunity to respond with proof
showing a record was taken. DPS did not provide such proof,
and stated it was likely that no record was taken. After two
attempts to obtain clarification from DPS about the status of
the reporter's record, we issued an order stating we
would consider only those issues that did not require a
reporter's record for a decision. DPS had represented to
this court it would contact "trial counsel" about
the reporter's record. An Assistant District Attorney
then filed a statement with this court swearing a record was
not requested at the expunction hearing and therefore one was
not taken. DPS then filed its appellant's brief
challenging the expunction order.
argues the trial court erred by rendering the expunction
order under article 55.01(a) because V.T.C. was placed on
deferred adjudication community supervision. However, article
55.01(a) and article 55.01(b)(2) are alternative provisions
under which a petitioner may obtain an expunction.
See Tex. Code Crim. Proc. art. 55.01(a), (b);
Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d
642, 648 (Tex. App.-Austin 2002, pet. denied). Because the
trial court granted V.T.C. an expunction under article
55.01(b)(2), we need not consider whether appellant was
entitled to an expunction under article 55.01(a).
See Tex. R. App. P. 47.1 (requiring that we address
only those issues raised and necessary to the appeal's
disposition). We therefore only consider DPS's issues
relating to article 55.01(b).
remaining issues, DPS argues (1) V.T.C. was not entitled to
an expunction under article 55.01(b) because the expunction
order is not supported by sufficient evidence, and the trial
court could not base its decision on V.T.C.'s pleadings
alone because they were controverted; and (2) it is entitled
to a reversal because there is no reporter's record.
Sufficiency of the Evidence
argues there is no evidence showing V.T.C. had the
recommendation of the prosecutor. In the expunction order,
the trial court found the prosecutor recommended the
expunction. We cannot assess the sufficiency of the evidence
admitted at a hearing without a record of the hearing.
See Ex parte Munoz, 139 S.W.3d 349, 352 (Tex.
App.-San Antonio 2004, no pet.). And, without a
reporter's record of the trial, we must presume
sufficient evidence supports the trial court's findings.
See In re L.C.H., 80 S.W.3d 689, 691 (Tex. App.-Fort
Worth 2002, no pet.). DPS was also notified before filing ...