EX PARTE PETER MICHAEL DAVIS

AFFIRM and Opinion Filed December 6, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00336-CV
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EX PARTE PETER MICHAEL DAVIS
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On Appeal from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 69802-422
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MEMORANDUM OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice FitzGerald
        Peter Michael Davis petitioned the trial court for expunction of records involving an unadjudicated indictment for aggravated robbery. The trial court denied Davis's petition. In this Court, Davis challenges the constitutionality of his classification by the prison system and the trial court's order denying his petition for expunction. The facts and procedural history of this appeal are known to the parties; we do not relate them in detail here. We affirm the trial court's order.
        In his first point of error, Davis asserts that his classification as a violent offender by the Texas Department of Criminal Justice has denied him due process, equal protection, and the right to confrontation guaranteed by the Texas and United States Constitutions. He asks this Court to restrict TDCJ's authority to classify prisoners using an unadjudicated offense. Appellate courts have traditionally refused to consider matters involving inmate classification, directing such complaints to the review procedures of the Department of Corrections. See, e.g., Ex parte Palomo, 759 S.W.2d 671, 674 (Tex. Crim. App. 1988); see also Tex. Gov't Code Ann. chs. 498, 501 (Vernon 2004 and Vernon Supp. 2006). In this case, however, we need not reach the issue of deference to the Department's classification procedures, because Davis did not urge any constitutional concerns in the trial court. His petition and the transcript of the hearing deal solely with whether or not Davis satisfied the statutory requirements for expunction. Davis made no mention of any constitutional concerns with the classification system itself. Even constitutional error may be waived by failing to raise the issue in the trial court. See In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003). We overrule Davis's first point of error.
        In his second point of error, Davis argues the trial court erred in denying his petition for expunction. Davis sought expunction of the records of his April 21, 2004 indictment for aggravated robbery. According to Davis's petition, that indictment was dismissed on or about August 4, 2004, “in the interest of justice.” He sought expunction under article 55.01(a)(2) of the code of criminal procedure, which allows expunction of records of a criminal arrest when three conditions are met.   See Footnote 1  The petitioner in an expunction proceeding bears the burden of proving compliance with all statutory conditions. Herron v. State, 821 S.W.2d 329, 330 (Tex. App.-Dallas 1991, no pet.). Our review focuses upon whether Davis satisfied the third condition: “the person has not been convicted of a felony in the five years preceding the date of the arrest.” Tex. Code Crim. Pro. art. 55.01(a)(2)(C).
        It is undisputed that on December 11, 2003, Davis was convicted of felony possession with intent to deliver amphetamine. Thus, subsection (C) of article 55.01(a)(2) disallows expunction of records relating to any arrest occurring within five years after that date. See id.
        Davis was actually charged with the aggravated robbery two different times, and the indictment was dismissed both times. In Davis's brief on appeal, he focuses on his arrest on November 21, 2003. That arrest obviously occurred before the December 11 drug conviction. However, Davis's own petition acknowledges he was indicted for a second time on the aggravated robbery charge on April 21, 2004, a date clearly within the five-year period initiated by the drug conviction.   See Footnote 2  His records of that indictment cannot be expunged. See id. We conclude Davis has not established his entitlement to expunction of the records of his aggravated robbery indictment. We overrule his second point of error as well.
        We affirm the trial court's order.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
 
060336F.P05
 
Footnote 1 The statute, in relevant part, provides for expunction if each of the following conditions exists:
 
 
(A) . . . if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:
 
 
 
(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or
 
 
 
(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;
 
 
 
(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and
 
 
 
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
 
Tex. Code Crim. Pro. art. 55.01(a)(2) (Vernon Supp. 2006).
Footnote 2 Davis was not arrested in connection with the second indictment; he was already imprisoned in April 2004 for the drug conviction.