Opinion
No. 04-05-00247-CV
Delivered and Filed: June 7, 2006.
Appeal from the County Court at Law Number 2, Webb County, Texas, Trial Court No. 2004-Cvq-001856-C3, Honorable Jesus Garza, Judge Presiding.
Reversed and Rendered.
Sitting: Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
The Texas Department of Public Safety appeals the trial court's order granting Maria Alba-Sanchez's petition for expunction of criminal records relating to her arrest for assault. We reverse and render.
Alba-Sanchez filed a petition pursuant to Chapter 55 of the Texas Code of Criminal Procedure seeking expunction of all records arising out of her December 2002 arrest for assault. The Texas Department of Public Safety timely filed a general denial. The Department also affirmatively pleaded that Alba-Sanchez is not entitled to an expunction because the arrest resulted in an information charging Alba-Sanchez with a Class A misdemeanor, upon which the trial court deferred adjudication and placed Alba-Sanchez on community supervision. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2) (Vernon Supp. 2005) (right to expunction only if "there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor"); Houston Police Dep't. v. Berkowitz, 95 S.W.3d 457, 461 (Tex.App. Houston [1st] 2002, pet. denied) (holding that "misdemeanor deferred adjudication constitutes `court-ordered community supervision' under article 42.12 for purposes of the expunction statute, and renders defendants ineligible for expunction of arrest records").
Alba-Sanchez did not produce any evidence at the hearing on her petition and the Department argues she therefore failed to meet her burden to establish she is entitled to an expunction order. We agree. "The petitioner in an expunction proceeding has the burden of proving compliance with the statutory conditions. The right to expunction is available only when all of the statutory conditions have been met." Kendall v. State, 997 S.W.2d 630, 631 (Tex.App. Dallas 1998, pet. denied) (citations omitted).
Alba-Sanchez did not file an appellee's brief.
Because there is no evidence to support the expunction order, we reverse the trial court's judgment and render judgment denying expunction. See Ex parte Elliot, 815 S.W.2d 251, 252 (Tex. 1991).