Roy, Willie Joseph v. Houston Police Department

• Court: Court of Appeals of Texas
• Decided: June 27, 2002
• Docket: 13-99-00685-CV
• Status: Published

Opinion

                                   NUMBER 13-99-685-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI B EDINBURG

WILLIE JOSEPH ROY                                                            Appellant,

                                                   v.

 HOUSTON POLICE DEPARTMENT                                           Appellee.

                        On appeal from the 333rd District Court

                                   of Harris County, Texas.

                                   O P I N I O N

        Before Chief Justice Valdez and Justices Dorsey and Rodriguez

                              Opinion by Chief Justice Valdez

Appellant, Willie Joseph Roy, appeals from the denial of his request for expunction of criminal records.  We affirm.

Appellant filed a petition for expunction of records with the 333rd District Court of Harris County, Texas, seeking to expunge two offenses from his criminal history.  This matter was set for hearing on August 20, 1999.  On the date of the hearing, the trial court entered an order denying all relief sought in appellant=s petition for expunction.  Appellant appeals from said order.

An appellant has the burden to present a record to the appellate court that shows the error about which he is complaining.  Zuyus v. No'Mis Comm., Inc., 930 S.W.2d 743, 748 (Tex. App.BCorpus Christi 1996, no writ).  The appellate record consists of the clerk's record and, if necessary to the appeal, the reporter's record. Tex. R. App. P. 34.1.

No reporter's record was filed in this case.  The judgment herein was signed on August 20, 1999, and the reporter=s record was due sixty days later, on October 19, 1999.  Tex. R. App. P. 35.1.  On November 10, 1999, after the deadline for the filing of the reporter=s record, appellant filed his docketing statement with this Court indicating that he had not yet requested the preparation of the reporter=s record, and stating that he would be requesting same.^[1]  We have received no information that the reporter=s record was ever requested.  On December 10, 1999, the trial court=s official court reporter responded to a request from the Clerk of this Court, and stated there is no reporter=s record in this cause.

Rule 34.6(f) of the Texas Rules of Appellate Procedure states that an appellant is entitled to a new trial under the following circumstances: (1) the appellant timely requested the reporter's record; (2) the reporter's record has been lost or destroyed; (3) the lost record is necessary to the appeal's resolution; and (4) the parties cannot agree on a complete reporter's record. See Tex. R. App. P. 34.6(f). These circumstances do not exist in the present case, as appellant made no timely request for the reporter=s record.

The parties may agree on the contents of the appellate record by a written stipulation filed with the trial court clerk.  Tex. R. App. P. 34.2.  The parties may also agree on a brief statement of the case in lieu of a reporter's record; this statement must be filed with the trial court clerk and included in the appellate record.  Tex. R. App. P. 34.3.  Neither of these options was exercised in this case.

Generally, the absence of a reporter's record precludes any relief on appeal. Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990).  However, the court of appeals is required to address every issue raised and necessary to the final disposition of an appeal.  Tex. R. App. P. 47.1; Office of Pub. Util. Counsel v. Pub. Util. Comm'n, 878 S.W.2d 598, 599-600 (Tex. 1994).  Where an appeal involves no factual dispute, but strictly questions of law, no reporter=s record is required.  Office of Pub. Util. Counsel, 878 S.W.2d at 599-600;  Segrest v. Segrest, 649 S.W.2d 610, 611 (Tex.

1983); Smith v. Grace, 919 S.W.2d 673, 678-79 (Tex. App.BDallas 1996, writ denied).  Therefore, we must determine whether such an issue is raised in this appeal.

In a single issue, appellant argues that certain charges should be expunged from his criminal history.  Appellant contends an indictment charging him with aggravated assault was dismissed because it was obtained through false information, or other similar reason.  We disagree.

Expunction may be granted only when every statutory condition is met.  Tex. Dept. of Pub. Safety v. Katopodis, 886 S.W.2d 455, 457 (Tex. App.BHouston [1st Dist.] 1994, no writ).  The burden of proving compliance with the statutory conditions rests solely with the petitioner.  Id.  Where an indictment is presented and subsequently dismissed, one of the statutory prerequisites to expunction is that a trial court find that such indictment was obtained through mistake, false information or other similar reason indicating absence of probable cause.  Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A)(ii) (Vernon Supp. 2002).

From the record before us, we cannot say that, as a matter of law, appellant proved compliance with the applicable statutory requirements of the expunction statute.  Accordingly, appellant's sole issue is overruled.

The judgment of the trial court is affirmed.

ROGELIO VALDEZ

Chief Justice

Do not Publish.

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

Opinion delivered and filed

this 27th day of June , 2002.

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^[1] Appellant states, in his brief, that he is not able to acquire the record to show how and why the trial court denied his request for expunction, but offers no further explanation as to why he is unable to obtain the reporter=s record.