Ex Parte Earl Preston Cheeks

Opinion

NO. 07-11-0430-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 21, 2012 ______________________________

Ex parte EARL PRESTON CHEEKS _______________________________

FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2011-556,765; HON. WILLIAM SOWDER, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

The Texas Department of Public Safety (the Department) appeals from an order

of expunction granted in favor of Earl Preston Cheeks (Cheeks). It contends that there

is no evidence to support the order because Cheeks served “probation” for the 1961

offense and reversal is required because the evidentiary hearing upon the motion to

expunge was not transcribed. Since Cheeks concedes the accuracy of the second

issue and need for a reversal and remand, we reverse the order granting expunction

and remand the cause to the trial court.1

Brian Quinn Chief Justice

1 We make no comment upon the first issue, that is, whether expunction could be granted, because the applicant had received probation. Again, there is no record of the evidence presented to the trial court, and the Department’s effort to fill the void by alluding to its answer to the motion and the attachments thereto are ineffective. Pleadings are not evidence. In re Marriage of M.C., 65 S.W.3d 188, 193 (Tex. App.–Amarillo 2001, no pet.).