Nicholas DeWhite Brooks v. Harris County District Attorney's Office and Tommy B. Thomas, Sheriff of Harris County, Texas--Appeal from 151st District Court of Harris County

Affirmed and Memorandum Opinion filed October 26, 2004

Affirmed and Memorandum Opinion filed October 26, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-04-00017-CV

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NICHOLAS DEWHITE BROOKS, Appellant

V.

HARRIS COUNTY DISTRICT ATTORNEY=S OFFICE AND TOMMY B. THOMAS, SHERIFF OF HARRIS COUNTY, TEXAS, Appellees

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Cause No. 03-06160

M E M O R A N D U M O P I N I O N

This is an appeal from an order denying expunction of appellant=s criminal records. Appellant seeks expunction of these records pursuant to Texas Code of Criminal Procedure article 55.01. Tex. Code Crim. Proc. Ann. art. 55.01 (Vernon Supp. 2004). In two points of error, appellant argues the trial court erred in (1) denying his petition for expunction, and (2) setting aside an earlier order granting expunction. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 12, 1989, appellant was arrested for burglary of a habitation. Appellant entered a plea of guilty to the charge and was sentenced to eight years= probation and a $400.00 fine. In April 1992, the criminal district court signed an order providing that the probationary period be terminated, appellant be allowed to withdraw his plea of guilty, the indictment be dismissed, and the judgment of conviction be set aside for the 1989 offense.

On April 6, 1993, a second felony complaint was filed against appellant for burglary of a habitation. The indictment in this second cause was dismissed June 29, 1993.

In February 2003, appellant filed a petition for expunction seeking expungement of the arrest records and files related to his 1989 and 1993 arrests for burglary of a habitation. The Harris County District Attorney=s Office and the Sheriff of Harris County filed general denials in response. A hearing was held on July 14, 2003, at which only appellant and his counsel appeared,[1] and the trial court signed an order that same day granting the petition for expunction. This order was rescinded on August 12, 2003. A second hearing was held October 20, 2003, and the Harris County District Attorney=s Office appeared at this hearing. On November 25, 2003, the trial court denied appellant=s petition for expunction. Appellant filed a request for findings of fact and conclusions of law, and the trial court denied the request.

DISCUSSION

Point of Error One: Denial of Motion for Expunction

In his first point of error, appellant contends the trial court erred in denying his motion for expunction of his criminal records. He claims that he satisfied the requirements of article 55.01(a)(2). See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2).

We review a trial court=s ruling on a petition for expunction for abuse of discretion. Heine v. Texas Dept. of Public Safety, 92 S.W.3d 642, 646 (Tex. App.CAustin 2002, pet. filed); Ex Parte Guajardo, 70 S.W.3d 202, 204 (Tex. App.CSan Antonio 2001, no pet.). Under article 55.01(a)(2), to be entitled to expunction of criminal charges the party seeking expunction must show:

(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, 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. Proc. Ann. art. 55.01(a)(2). Expunction is available only when all of the statutory conditions of the article have been met, and the burden of proof to establish that each of these conditions is satisfied is on the petitioner. Harris County Dist. Attorney v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.CHouston [14th Dist.] 1997, no pet.); see Guajardo, 70 S.W.3d at 206 (stating allegations in a petition are not evidence, and the petitioner must prove compliance with the statutory conditions). Article 55.01 requires strict compliance with the conditions imposed by the statute. Houston Police Dept. v. Berkowitz,

95 S.W.3d 457, 460 (Tex. App.CHouston [1st Dist.] 2002, pet. denied).

We first analyze whether the trial court=s denial of appellant=s request for expunction of the 1989 arrest was an abuse of discretion. Appellant concedes that he was placed on probation for the 1989 arrest, but he argues that the order setting aside the conviction and dismissing the indictment somehow made it so A[t]he 1989 probation never happened.@ However, the case appellant cites in support of this contention, Harris County Dist. Attorney=s Office v. D.W.B., 860 S.W.2d 719 (Tex. App.CHouston [1st Dist.] 1993, no writ), is distinguishable from this case because in D.W.B., the defendant was granted habeas corpus relief that included the grant of a new trial, restoring the case to its position before the former trial. 860 S.W.2d at 722. Unlike D.W.B., a new trial was not granted in this case. Instead, the 1992 order dismissing the indictment, setting aside the judgment, and allowing appellant to withdraw his plea of guilty in the 1989 arrest, states that appellant Asatisfactorily fulfilled the conditions of probation, [f]or a period in excess of one-third of the probationary period to which defendant was sentenced or two (2) years, whichever is the lesser.@ The 1992 order confirms that probation was imposed upon appellant. Therefore, appellant is unable to satisfy condition (B) of article 55.01(a)(2). See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(B); Berkowitz, 95 S.W.3d at 461.

The record further reveals that appellant did not prove compliance with the other statutory conditions of section 55.01. Appellant presented no evidence to show that the charges against him were dismissed because of mistake, false information, or other similar reason indicating absence of probable cause. Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A)(ii). Appellant also did not produce evidence showing that he had not been convicted of a felony in the five years preceding the date of the 1989 arrest. Tex. Code Crim. Proc. Ann. Art. 55.01(a)(2)(C). Because appellant failed to produce evidence showing that he met conditions (A), (B), and (C) of Texas Code of Criminal Procedure article 55.01(a)(2), the trial court did not abuse its discretion in denying appellant=s petition for expunction of the 1989 arrest. See Texas Dept. of Public Safety v. Williams, 76 S.W.3d 647, 651 (Tex. App.CCorpus Christi 2002, no pet.); State v. Herron, 53 S.W.3d 843, 847-48 (Tex. App.CFort Worth 2001, no pet.).

Next, we address whether the trial court=s refusal to expunge appellant=s 1993 arrest was proper. The only evidence in the record concerning the 1993 arrest consists of appellant=s petition for expunction, the criminal district court=s order dismissing the indictment for the 1993 arrest, and docket sheets of the criminal district court. To prevail on the merits of his petition, appellant was required to present evidence showing he satisfied all of the conditions imposed by article 55.01. See Williams, 76 S.W.3d at 650-51. Appellant did not produce evidence showing that he met conditions (A), (B), and (C) of article 55.01(a)(2) with respect to the 1993 arrest.[2] Accordingly, the trial court did not abuse its discretion in denying expunction of the arrest.[3] We overrule point of error one.

 Point of Error Two: Trial Court=s Setting Aside Expunction Order

In his second point of error, appellant contends that the trial court abused its discretion in rescinding the July 14, 2003 order of expunction.

Under the Texas Rules of Civil Procedure, a trial court has plenary power to grant a new trial or to vacate, modify, correct, or reform a judgment within thirty days after the judgment is signed. Tex. R. Civ. P. 329b(d). Additionally, a trial court has authority sua sponte to set aside a judgment within the duration of its plenary power. Tex. R. Civ. P. 320. During the time in which a court may vacate, set aside, modify, or amend its previous order, such action, to be effective, must be memorialized by written order that is express and specific. McCormack v. Guillot, 597 S.W.2d 345, 346 (Tex.1980) (citing Poston Feed Mill Co. v. Leyva, 438 S.W.2d 366, 368 (Tex. Civ. App.CHouston [14th Dist.] 1969, writ dism=d w.o.j.)). A court must speak through its written orders, and we cannot presume an intent on the part of a court to vacate, set aside, modify, or amend an order in the absence of an express, specific, and written order. Id.

The trial court=s August 12, 2003 order setting aside the July 14, 2003 order of expunction consists of a handwritten entry on the signature page of the July 14 order stating, AOrder rescinded and Petition for Expunction reinstated. Signed August 12, 2003. [Judge=s signature] Judge Presiding.@[4] The language of the August 12 order clearly and unequivocally expresses an intent to set aside the July 14, 2003 order and to reinstate appellant=s petition for expunction.[5] Accordingly, the trial court did not abuse its discretion in setting aside the July 14 order. We overrule appellant=s second point of error and affirm the judgment.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed October 26, 2004.

Panel consists of Justices Anderson, Hudson, and Frost.

[1] A transcription of this hearing was not brought forward on appeal.

[2] The appellate record contains very little evidence of the 1989 and 1993 arrests. A supplemental clerk=s record contains the two orders dismissing the 1989 and 1993 arrests and copies of the criminal court=s docket sheet (two pages) for the 1993 arrest. One exhibit was introduced into evidence during the October 2003 hearing (a certified copy of the 1989 judgment), but this exhibit was not included in the appellate record.

[3] In his reply brief, appellant contends that the appellate court cannot presume that the trial court found all necessary facts to support the judgment because the trial court denied his request for findings of fact and conclusions of law. On appeal, appellant does not complain of the trial court=s denial of his request for findings of fact and conclusions of law. Therefore, error, if any, by the trial court in denying appellant=s request for findings of fact and conclusions of law is waived. See Perry v. Brooks, 808 S.W.2d 227, 229-30 (Tex. App.CHouston [14th Dist.] 1991, no writ).

[4] The August 12 order was signed during the trial court=s plenary power, within thirty days after entry of the July 14 order.

[5] Appellant contends on appeal that the August 12 order Afails to meet the criteria of an order@ because it (1) does not contain the full names of the parties, (2) does not identify the motion or the party who filed the motion, (3) does not state whether a hearing was held or whether any evidence was received at a hearing, (4) does not contain a certificate of service, and (5) fails to state that it was signed in the interest of justice Aas a minimal requirement for the reason it was rescinded.@ Appellant fails to cite any authority supporting this alleged error, so this point is waived. See Tex. R. App. P. 38.1(h). Furthermore, it is clear that the August 12 order unambiguously set aside the prior July 14 order of expunction, and there is no room for interpretation. Harper v. Welchem, Inc., 799 S.W.2d 492, 495 (Tex. App.CHouston [14th Dist.] 1990, no writ) (AIf a judgment is unambiguous with no room for interpretation, it is our duty to declare its effect in light of the literal language used.@).