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Ex parte V.T.C.

Court of Appeals of Texas, Fourth District, San Antonio

August 14, 2019

EX PARTE V.T.C.

          From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2018CI06739 Honorable Solomon Casseb III, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice

          MEMORANDUM OPINION

          LUZ ELENA D. CHAPA, JUSTICE

         The 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 expunction order.

         Background

         V.T.C. 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 hearing.

         On June 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 6, 2018.

         DPS 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.

         Article 55.01(a)

         DPS 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).

         Article 55.01(b)

         In its 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.

         A. Sufficiency of the Evidence

         DPS 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 ...


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