Texas Department of Public Safety v. Jorge Antonio Cantu ( 2002 )

No. 04-01-00210-CV TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant v. Jorge Antonio CANTU, Appellee From the 111th Judicial District Court, Webb County, Texas Trial Court No. 1999CVQ000974D-2 Honorable Raul Vasquez, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: May 22, 2002

DISMISSED FOR LACK OF JURISDICTION

This is a restricted appeal from an order of expunction of Appellee Jorge Antonio Cantu's arrest and indictment. Texas Department of Public Safety ("TDPS") argues that the evidence is legally and factually insufficient to support the order. We dismiss for lack of jurisdiction.

Background

Cantu was arrested and indicted for a felony offense. The indictment was later dismissed. Cantu then filed a petition for expunction and set the matter for a hearing before the trial court. TDPS filed a general denial, but did not attend the hearing. The trial court granted Cantu's petition and ordered his arrest and related indictment be expunged. TDPS filed notice of restricted appeal.

Restricted Appeals

To obtain reversal of an underlying judgment by restricted appeal, a party must satisfy the following elements: (1) a notice of restricted appeal must be filed within six months of the date of judgment; (2) by a party to the lawsuit; (3) who neither participated in the hearing that resulted in the judgment of which the party complains nor filed a timely post-judgment motion; and (4) error must be apparent on the face of the record. Flores v. Brimex Ltd. P'ship, 5 S.W.3d 816, 819 (Tex. App.--San Antonio 1999, no pet.); C & V Club v. Gonzalez, 953 S.W.2d 755, 757 (Tex. App.--Corpus Christi 1997, no writ); see Tex. R. App. P. 26.1(c), 30. Each one of these elements is mandatory and jurisdictional. See C & V Club, 953 S.W.2d at 757. Here, TDPS filed a notice of restricted appeal within six months of the date of judgment, was a party to the lawsuit, and did not participate in the hearing that resulted in the order of expunction. Thus, we turn to whether any error is apparent on the face of the record.

In its first and second issues, TDPS argues that the evidence is legally and factually insufficient, because (1) Cantu did not introduce evidence that the indictment against him was dismissed due to an absence of probable cause and (2) Cantu did not introduce evidence that he had not been convicted of a felony in the five years before his arrest. See Tex. Code Crim. Proc. art. 55.01(a)(2) (Vernon Supp. 2002). TDPS argues that Cantu did not introduce any evidence at the hearing, nor did he call any witnesses or testify on his own behalf. In support, TDPS cites to the record. The record, however, does not show that Cantu did not introduce any evidence. On September 5, 2000, the record reflects that Cantu and the Webb County District Attorney appeared before the trial court. Because a witness was not present, the trial court reset the matter for September 18, 2000. The record of September 18th reflects that the trial court decided to delay the proceeding until Cantu's attorney appeared. The reporter's record does not contain any other transcriptions. A docket entry, however, indicates that on September 18th, this case was called, Cantu and the Webb County District Attorney were present, and the trial court ordered Cantu's arrest and indictment be expunged. TDPS assumes that because there is no transcript, Cantu did not introduce evidence. Without a record of the proceeding, however, we cannot know what evidence, if any, was introduced. The lack of sufficient evidence is, therefore, not apparent on the face of the record. Had TDPS complained of the lack of a record of the proceeding, there might have been error apparent on the face of the record. See Chase Bank v. Harris County Water Control & Improvement Dist., 36 S.W.3d 654, 656 (Tex. App.--Houston [1st Dist.] 2000, no pet.) (holding that in context of restricted appeal, lack of reporter's record of post-answer default judgment entitled defendant to new trial). TDPS, however, chose to bring only sufficiency issues on appeal.

Because Cantu has not met all the requirements of a restricted appeal, we have no jurisdiction. We dismiss this appeal for lack of jurisdiction.

Karen Angelini, Justice

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