TEXAS DEPARTMENT OF PUBLIC SAFETY, FROM A DISTRICT COURT APPELLANT, v. ARCHANA SHYAM GUPTA, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00920-CV
 
TEXAS DEPARTMENT OF PUBLIC SAFETY, FROM A DISTRICT COURT
 
                APPELLANT,
 
v.
 
ARCHANA SHYAM GUPTA,
 
                APPELLEE.        OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE CHIEF JUSTICE ENOCH AND JUSTICES WILLIAMS FN:1 AND
 
STEPHENS FN:2
OPINION BY JUSTICE STEPHENS
JULY 7, 1989
         The Department of Public Safety, by the Attorney General of Texas, appeals the judgment of a Dallas County District Court, expunging the criminal record of Archana Shyam Gupta. In two points of error, the Department of Public Safety contends that the trial court erred by entering the expunction order because first, the nunc pro tunc order on which the judgment is based is void, and second, Archana Shyam Gupta failed to satisfy the statutory requirements of article 55.01 of the Texas Code of Criminal Procedure. We disagree with both contentions of Appellant and affirm the judgment of the trial court.
        Archana Shyam Gupta plead guilty on March 15, 1984, to the misdemeanor charge of theft and received as punishment six months deferred adjudication, and payment of a fine and court costs. The order expressed specific conditions of probation but was silent as to supervision. After successful completion of her term of probation, the court dismissed the proceedings by its written order of September 28, 1984.
        On July 31, 1987, Archana Shyam Gupta filed her petition in the district court seeking expunction of her criminal record. On September 18, 1987, the parties to this appeal entered into a written stipulation which set out the terms of probation, the fine imposed by the court, and a statement that Archana Shyam Gupta had completed the probationary period and paid the applicable fine, that she had not been convicted of a felony in the five years preceding the date of arrest, that no indictment or information charging her with a felony had been presented, that she had been released, that the charge against her did not result in a final conviction, and that it was no longer pending. Additionally, the parties stipulated that Archana Shyam Gupta was not required to report to a probation officer during the term of her probation period.
        No further action was taken on Appellee's petition until April 19, 1988, when a nunc pro tunc order was entered by the court that adjudicated her original case. The nunc pro tunc order was entered to amend the silent portion of the original deferred adjudication order in order to reflect that her probation was to be unsupervised. Appellee then filed an amendment to her petition for expunction. On June 3, 1988, the court heard the matter and granted Appellee's motion for expunction.
        In its first point of error, the Department of Public Safety contends that the trial court erred in its consideration of the nunc pro tunc order, which was a void order. We disagree.
        The Department of Public Safety argues that the nunc pro tunc order was void ab initio because the trial court had lost plenary power over its judgment and that the error corrected was judicial and not clerical, and thus, the nunc pro tunc order should not have been considered by the trial court at the expunction hearing. We do not reach this point because it has not been preserved for our review. The record reveals that at the expunction hearing, in district court, the nunc pro tunc order of the county court was entered as evidence without objection. Thus, that point has been waived, and argument on appeal that the judgment should not have been considered is improper. Line Enterprises v. Hooks & Matteson, 659 S.W.2d 113, 118 (Tex. App.--Amarillo 1983, no writ); Abeyta v. Traveler's Ins. Co., 566 S.W.2d 708, 710 (Tex. Civ. App.--Amarillo 1978, writ dism'd); Lamb County Appraisal Dist. v. South Plains Hosp.-Clinic, Inc., 688 S.W.2d 896, 908 (Tex. App.--Amarillo 1985, writ ref'd n.r.e.). Additionally, we note that the parties stipulated that supervision during the probationary period of Archana Shyam Gupta was not required. Point number one is overruled.
        In its second point of error, the Department of Public Safety contends that Archana Shyam Gupta was not entitled to expunction because she failed to satisfy the statutory requirements of article 55.01 of the Texas Code of Criminal Procedure, specifically in that she failed to satisfy provision number 4 "that there be no court-ordered supervision." The Department of Public Safety argues that a judgment silent on its face as to supervision of probation carries with it implied supervision. We decline to address this question further because the unobjected evidence offered at trial shows no court-ordered supervision and the written stipulation of the parties agrees that there was no court-ordered supervision. Point of error number two is overruled.
        The judgment of the trial court is affirmed.
 
                                                          
                                                          BILL J. STEPHENS
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-00920.F
 
FN:1 The Honorable Claude Williams, Chief Justice, retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
FN:2 The Honorable Bill J. Stephens, Justice, retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
File Date[01-02-89]
File Name[880920F]