Opinion
No. 04-15-00174-CV
02-10-2016
EX PARTE Juan Jose GARCIA
MEMORANDUM OPINION
From the 49th Judicial District Court, Zapata County, Texas
Trial Court No. 8,044
Honorable Paul Canales, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Jason Pulliam, Justice REVERSED AND REMANDED
The Texas Department of Public Safety filed this restricted appeal challenging the trial court's expunction order, asserting: (1) the evidence is legally insufficient to support the expunction order; (2) the trial court erred in ordering an expunction at a hearing for which DPS did not receive notice; (3) the trial court erred in ordering an expunction without holding a hearing; and (4) if a hearing was held, no reporter's record was made of the hearing. Appellee Juan Jose Garcia did not file an appellee's brief. Applying this court's existing precedent, we sustain DPS's fourth issue and reverse the trial court's order based on the absence of a reporter's record.
PROCEDURAL HISTORY
In the underlying cause, Garcia filed a verified petition for expunction of records which he subsequently amended. In his amended petition, Garcia sought to have the records relating to the following arrests expunged: (1) 2002 arrest for aggravated sexual assault; (2) 1994 arrest for attempted murder; (3) 2001 arrest for sexual assault; (4) 2001 arrest for possession of marihuana; (5) 1997 arrest for possession of a controlled substance; (6) 1997 arrest for evading arrest; (7) 1996 arrest for possession of marihuana; (8) 1994 arrest for possession of a controlled substance; (9) 1993 arrest for burglary of a habitation; (10) 1993 arrest for possession of a controlled substance; and (11) 2008 arrest for possession of marihuana. DPS filed an original answer generally denying all allegations in the petition.
Although the trial court initially entered an order dismissing the cause for lack of prosecution, the trial court later entered an order granting an agreed motion to reinstate. On the same day, the trial court entered an order granting Garcia's amended petition as to all of the requested records except the records relating to the: (1) 1996 arrest for possession of marihuana; and (2) 2008 arrest for possession of marijuana. The official court reporter filed an affidavit in this court stating no hearing was held on September 29, 2014; therefore, the appellate record does not contain any reporter's record from September 29, 2014.
The motion is not included in the clerk's record, but the order is signed as agreed to by a Zapata County assistant district attorney.
DISCUSSION
A party can prevail in a restricted appeal only if: (1) it filed notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Ins. Co. of State of Penn. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009). For purposes of a restricted appeal, the face of the record consists of all papers on file in the appeal, including the reporter's record. Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Flores v. Brimex Ltd. P'ship, 5 S.W.3d 816, 819 (Tex. App.—San Antonio 1999, no pet.). The absence of legally sufficient evidence to support a judgment is reviewable in a restricted appeal. Norman Commc'ns, 955 S.W.2d at 270; Flores, 5 S.W.3d at 819.
In this case, the record establishes DPS timely filed a notice of restricted appeal, was a party to the underlying lawsuit, did not participate in the hearing that resulted in the trial court's order, and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law. With regard to DPS's challenge to the legal sufficiency of the evidence, in the absence of a reporter's record, we cannot know what evidence, if any, was introduced before the trial court. Ex Parte Ruiz, No. 04-11-00808-CV, 2012 WL 2834898, at *1 (Tex. App.—San Antonio July 11, 2012, no pet.) (mem. op.). "However, because DPS has complained of the absence of a reporter's record [and the court reporter has confirmed that no such record exists], the trial court's order must be reversed, and the cause must be remanded for a new hearing." Id.
If no hearing was held and no evidence was presented, we would reverse the trial court's order because DPS filed a general denial requiring Garcia "to provide some evidence in addition to his verified pleading in order to carry his burden of proof." Ex parte K.R.K., 446 S.W.3d 540, 544 (Tex. App.—San Antonio 2014, no pet.). --------
CONCLUSION
The trial court's order is reversed, and the cause is remanded to the trial court for a new hearing.
Sandee Bryan Marion, Chief Justice