Texas Department of Public Safety v. Angel L. Claudio--Appeal from 275th District Court of Hidalgo County

NUMBER 13-01-014-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,

v.

ANGEL L. CLAUDIO, Appellee.

On appeal from the 275th District Court

of Hidalgo County, Texas.

O P I N I O N

Before Justices Dorsey, Ya ez, and Rodriguez

Opinion by Justice Dorsey

The Texas Department of Public Safety appeals the order of expunction by the 275th Judicial District Court of Hidalgo County on the grounds that: 1) the appellee produced no evidence to prove that he had not been convicted of a felony in the five years preceding his arrest; and 2) the trial court failed to file findings of fact and conclusions of law after timely requested.

Background

Appellee, Angel L. Claudio, was arrested on April 2, 1993, for indecency with a child and was indicted for this offense on August 1, 1996. The 275th Judicial District Court dismissed the indictment on May 14, 1997, and appellee was not later re-indicted. Appellee then filed a petition for expunction of his prior arrest and indictment records that was granted on October 5, 2000. That expunction order is the subject of this appeal.

Jurisdiction

First, appellee argues that this Court is without jurisdiction over this appeal because the appellant's brief was not timely filed. Appellant's filing of a request for findings of fact and conclusions of law allotted appellant ninety days to file his notice of appeal. See Tex. R. App. P. 26.1(a)(4). Therefore, since the order was signed on October 5, 2000, appellant's notice of appeal was due on or before January 3, 2001. The Texas Rules of Appellate Procedure allow timely filing by mail. See Tex. R. App. P. 9.2(b)(1)(A-C). A document is considered timely filed if: A) it was sent to the proper clerk of by the United States Postal Service first-class, express, registered, or certified mail; B) it was placed in an envelope properly addressed and stamped; and C) it was deposited in the mail on or before the last day for filing. Id. Therefore, although appellant's notice of appeal was file-marked on January 5, 2001, appellant provided a receipt for certified mail showing the notice was mailed on December 27, 2000. See Tex. R. App. P. 9.2(b)(2). The notice was timely mailed and filed pursuant to Tex. R. App. P. 9.2(b)(1)(A-C). We have jurisdiction.

Failure of Appellee to Present Testimonial Evidence

Appellant argues that the trial court should not have granted the petition for expunction because appellee failed to submit evidence meeting the requisites for the right to expunction, i.e. that he had not been convicted of a felony during the five years preceding the April 1, 1993, arrest. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(C) (Vernon Supp. 2002).

The parties appeared before the court on August 14, 2000, and the court requested that the parties submit briefs supporting their arguments. The trial court made its ruling on August 21, 2000, without entry of a final order.

The court held another hearing on October 5, 2000, after appellant filed a motion for rehearing. The court granted appellee's request to take judicial notice of all the documents in the court's file in ruling on the petition for expunction and signed the order granting appellee's petition for expunction on October 5, 2000. Appellant now challenges this order on grounds that it was not based on sufficient evidence.

In reviewing a sufficiency of evidence challenge, we must review the evidence in the light most favorable to the verdict. Morrison v. State, 608 S.W.2d 233, 235 (Tex. Crim. App. 1980); Clark v. State, 543 S.W.2d 125, 127 (Tex. Crim. App.1976); Gonzalez v. State, 636 S.W.2d 14 (Tex. App.BCorpus Christi 1982). In this case, the trial court took judicial notice of the documents in the court's file, including appellee's petition and sworn affidavit that stated that he had not been convicted of a felony within the five years preceding the April 1993 arrest. Therefore, we hold that the evidence taken into consideration by the trial court was sufficient to meet the elements necessary for granting the petition for expunction.

  Failure of Court to File Findings of Fact and Conclusions of Law 

Appellant alleges that the trial court's failure to file timely requested finding of facts and conclusions of law is reversible error. However, the failure of the trial court to file findings of fact and conclusions of law in this cause is immaterial and not reversible error. The trial court's failure to file the findings of fact and conclusions of law did not prevent the appellant from properly presenting his case to this Court. See Tex. R. App. P. 44.4(a)(1). Therefore, the court's failure to file its findings of facts and conclusions of law does not render its decision reversible. See id.

Conclusion

We hold that appellant's notice of appeal was timely filed with this Court, and that the evidence before the trial court was sufficient to grant the petition for expunction. We further hold that the trial court's failure to file findings of fact and conclusions of law was not harmful to the appellant's presentation of its appeal to this Court. Therefore, the Court's inaction does not amount to reversible error.

The order of expungement is hereby AFFIRMED.

______________________________

J. BONNER DORSEY,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 27th day of June, 2002.