Ex Parte Lyle Richard Brummett a/k/a Lyle Richard Stone--Appeal from 216th Judicial District Court of Kerr County

MEMORANDUM OPINION

Nos. 04-05-00916-CV; 04-05-00917-CV; 04-05-00918-CV & 04-05-00919-CV

EX PARTE Lyle Richard BRUMMETT a/k/a Lyle Richard Stone

From the 216th & 198th Judicial District Courts, Kerr County, Texas

Trial Court Nos. 05-553-A; 05-554-B; 05-555-A & 05-556-B

Honorable Stephen B. Ables , Judge Presiding

Opinion by: Rebecca Simmons , Justice

Sitting: Catherine Stone , Justice

Karen Angelini , Justice

Rebecca Simmons , Justice

Delivered and Filed: July 5, 2006

AFFIRMED

Lyle Richard Brummett a/k/a Lyle Richard Stone appeals the trial court's orders denying his petitions for the expunction of records relating to four offenses. On appeal, Brummett contends that the trial court erred in denying his petitions because he qualified for the expunctions under article 55.01 of the Texas Code of Criminal Procedure. Brummett also raises equal protection and due process challenges relating to the continued use of the records; however, if the trial court did not err in denying the expunction petitions, then any continued use of the records was not a result of any error by the trial court. Accordingly, we only address whether the trial court erred in denying Brummett's petitions. Because we conclude that the trial court did not err in denying the petitions, we affirm the trial court's orders.

Background

Brummett filed a petition to expunge the records relating to each of the following offenses: (1) burglary on or about July 21, 1975; (2) rape on or about November 16, 1975; (3) rape on or about September 2, 1975; and (4) credit card abuse on or about September 23, 1975. With regard to the burglary offense, Brummett alleged in his petition that he was never indicted or tried for the offense, and the trial court granted the district attorney's motion to dismiss the charge on November 14, 1975. With regard to the two rape offenses and the offense of credit card abuse, Brummett alleged in his petitions that he was served with a copy of the indictments, but the trial court granted the district attorney's motion to dismiss the offenses on June 27, 1977.

The Texas Department of Criminal Justice filed an opposition to Brummett's petitions, asserting that he failed to prove the facts required to justify an expunction. In addition to the absence of proof, the Department further asserted that Brummett was not entitled to expunction because the offenses were part of the same criminal episode. The Department's opposition explained that in addition to the offenses referenced by Brummett, Brummett pled guilty to two counts of murder and was sentenced on April 21 and 27, 1977, respectively. Finally, the Department asserted that in view of the continual arrests for the six offenses, the various indictments, and Brummett's ultimate conviction for which he was sentenced to imprisonment, Brummett was never "released from the charge" as required by the statute governing expunction.

The trial court set the petitions for a hearing "by submission" and then entered orders denying the petitions.

Discussion

We review a trial court's ruling on a petition for expunction under an abuse of discretion standard. Henine v. Tex. Dept. of Public Safety, 92 S.W.3d 642, 646 (Tex. App.--Austin 2002, pet. denied); Ex parte Guajardo, 70 S.W.3d 202, 205 (Tex. App.--San Antonio 2001, no pet.). An expunction proceeding is a civil proceeding, in which the petitioner bears the burden of proof in meeting the statutory requirements. Harris v. State, 733 S.W.2d 710, 711 (Tex. App.--San Antonio 1987, no writ). The allegations in a petition are not evidence, and the petitioner must prove compliance with the statutory conditions. Guajardo, 70 S.W.3d at 206. The purpose of article 55.01 is to allow those who have been wrongfully arrested to expunge their arrest records, and a petitioner must strictly comply with the conditions imposed by the statute. Houston Police Dept. v. Berkowitz, 95 S.W.3d 457, 460 (Tex. App.--Houston [1st Dist.] 2002, pet. denied); Harris, 733 S.W.2d at 711.

In order to be entitled to an expunction under article 55.01, Brummett was required to prove each of the following conditions exist:

(A) an indictment or information charging the person with commission of a felony has not been presented against the person for the 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 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. art. 55.01(a)(2) (Vernon Supp. 2005). In this case, the record contains no evidence that an indictment was not presented against Brummett with regard to the burglary offense or that the indictments for the abuse of credit card and two rape offenses were dismissed "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." Id.; In re Expunction of J.A., 186 S.W.3d 592, 596 (Tex. App.--El Paso 2006, no pet.) (reversing expunction order where record contained no evidence regarding the reason for the dismissal); see also Ex parte Scott, 818 S.W.2d 226, 227 (Tex. App.--Corpus Christi 1991, no writ) (stating that the applicant must prove that there has been neither an indictment or information charging a felony or that the felony indictment or information was dismissed). Furthermore, Brummett never alleged that he was not convicted of a felony in the five years preceding the date of his arrest, and the record contains no evidence to support such a finding. See In re Expunction of J.A., 186 S.W.3d at 596 (reversing expunction order where record contained no evidence that petitioner had not been convicted of a felony in five years preceding date of arrest). Accordingly, the record does not establish that the trial court abused its discretion in denying the petitions.

Conclusion

The orders of the trial court are affirmed.

Rebecca Simmons , Justice