IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
SEPTEMBER 14, 2007
______________________________CHAD DAVIS,
Appellant
v.
TEXAS DEPARTMENT OF PUBLIC SAFETY,
Appellee
_________________________________FROM THE 21ST DISTRICT COURT OF BASTROP COUNTY;
NO. 26,092; HON. JOHN PLACKE, PRESIDING _______________________________ Memorandum Opinion _______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Chad Davis (Davis) appeals from an order denying his request for the expunction of a judgment convicting him of failing to identify himself. We affirm the order.
Davis sought to expunge the judgment because it was purportedly void. That is, he contended that he was never convicted of the offense; rather, the charge allegedly was dismissed once the fine was paid. Davis acknowledged the existence of the judgment but argued that "[n]one of [the] events [mentioned in it] took place." In short, the "judgment [was] . . . falsified by the state," the "facts in this case [were] not as . . . represented," and, therefore, the "judgment [was] void because it never happened," he concluded.
We review the decision to deny expungement under the standard of abused discretion. Ex parte M.R.R., 223 S.W.3d 499 (Tex. App.-Amarillo 2006), overruled in part on other grounds by State v. Beam, 226 S.W.3d 392 (Tex. 2007). We further note that courts lack inherent or equitable power to expunge criminal records; rather, that relief arises from statute and strict compliance with its conditions or terms is required. Tex. Dep't of Public Safety v. Woods, 68 S.W.3d 179, 182 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (requiring strict compliance with the statutory provisions).
Next, the several situations wherein expungement is permitted in Texas contemplate a dismissal or acquittal of the charges levied. Tex. Code Crim. Proc. Ann. art. 55.01 et seq. (Vernon 2006). That is, the proceeding must have resulted in either an acquittal or dismissal but not a final conviction. See id. art. 55.01(a)(2)(B) (stating that the charge must not have resulted in a final conviction). Yet, the record before us contains neither. Instead, Davis purports to attack, through a civil expungement proceeding, McCarroll v. Texas Dep't of Public Safety, 86 S.W.3d 376, 378 (Tex. App.-Fort Worth 2002, no pet.) (noting that expungement is civil in nature), the validity of a final judgment rendered in a criminal case at the close of the last century. (1) Given that the charge here resulted in a final conviction, even though he believes it to be void, Davis could not satisfy the conditions of art. 55.01. Thus, he was not entitled to expunge the judgment.
Finally, that the trial court convened no oral hearing or trial to entertain Davis' petition does not mandate reversal. To the extent that statute obligates the trial court to set the matter for hearing, see Tex. Code Crim. Proc. Ann. art. 55.02 §2(c) (Vernon 2006) (stating that the trial court shall set the matter for hearing), this does not mean that an evidentiary hearing whereat all interested parties may personally appear is needed. Ex parte Current, 877 S.W.2d 833, 839 (Tex. App.-Waco 1994, no writ). Indeed, the court may act without a hearing if the facts necessary to decide the issue are before it. Ex parte Baldivia, No. 07-05-0046-CV, 2007 Tex. App. LEXIS 142 at *4 (Tex. App.-Amarillo January 10, 2007, no pet.). Appearing of record here is the final judgment of conviction, the existence of which negated any entitlement Davis had to expunction. So, an evidentiary hearing whereat all were to personally appear was unnecessary.
Accordingly, the trial court did not abuse its discretion in denying expunction, and we overrule Davis' issues and affirm the trial court's order.
Brian Quinn
Chief Justice
1. Other avenues exist through which one can belatedly attack a final conviction. They too are found
in the Code of Criminal Procedure.
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NO. 07-09-00334-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 28, 2010
THE STATE OF TEXAS, APPELLANT
v.
MEREDITH JOLENE LOZANO, APPELLEE
FROM THE COUNTY COURT OF YOAKUM COUNTY;
NO. 10624; HONORABLE JIM BARRON, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
The State of Texas, by interlocutory appeal, appeals the granting of a motion to suppress by the trial court.[1] Finding that the trial court erred by granting the motion to suppress, we reverse.
Factual and Procedural Background
Because the facts that resulted in the issuance of a search warrant to collect a specimen of blood from appellee, Meredith Jolene Lozano (Lozano), are not contested in this appeal, we will refer to only so much of the background facts as necessary for this opinion. On May 25, 2008, Denver City, Texas, police officer, Ryan Taylor, initiated a traffic stop on Lozano. After initiating the traffic stop, Taylor began investigating Lozano for driving while intoxicated. As part of the investigation, Taylor requested a specimen of Lozanos breath for analysis. Lozano declined to give a breath specimen. Taylor then prepared an affidavit in support of a search warrant to obtain a specimen of Lozanos blood. The affidavit was presented to a Justice of the Peace, acting as a magistrate, in Yoakum County, Texas. The magistrate issued the search warrant, and the blood specimen was collected.
After the State filed an information and complaint alleging that Lozano had operated a motor vehicle while intoxicated, Lozano filed a motion to suppress the results of the search warrant. The motion to suppress alleged two grounds in support of suppression of the blood test results. First, the motion alleged that the officer lacked reasonable suspicion or probable cause to stop Lozano. Second, the motion alleged that there was a discrepancy between the date of birth for Lozano stated in the affidavit in support of the warrant and the date listed in the actual warrant. The trial court conducted a hearing on Lozanos motion to suppress and, after hearing the evidence, denied the motion to suppress as to the reasonable suspicion or probable cause to initiate the traffic stop but granted the motion because of the discrepancy between the affidavit and warrant as to Lozanos date of birth. By one issue, the State contends that the ruling of the trial court was in error and asks this Court to reverse the trial courts ruling. We reverse.
Standard of Review
As a reviewing court, we review the granting or denial of a motion to suppress under a bifurcated standard of review. See St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007). The trial court is the sole trier of fact and the judge of the credibility of the witnesses and the weight to be given their testimony. Id. Almost total deference is given to the trial courts determination of historical facts. Id. However, application of the law to the facts that does not turn on credibility and demeanor are reviewed de novo. See Keehn v. State, 279 S.W.3d 330, 334 (Tex.Crim.App. 2009).
Analysis
The trial courts order granting the motion to suppress concluded that there was reasonable suspicion and probable cause to support the detention of Lozano for suspicion of driving while intoxicated. However, the trial court found that the search warrant was insufficient because the warrant gave a different date of birth for Lozano than that reflected in the affidavit. Based upon this finding, the trial court suppressed the evidence that was procured by means of the search warrant.
With this factual basis, we are squarely presented with the issue of how we interpret the information provided in this search warrant. The State frames the question as being one of using a commonsensical, rather than hyper-technical, interpretation of the warrant. See Serrano v. State, 123 S.W.3d 53, 58 (Tex.App.Austin 2003, pet. refd) (citing Illinois v. Gates, 462 U.S. 213, 236, 76 L. Ed. 2d 527, 103 S.Ct. 2317 (1983)). Appellant, however, contends that the mistake on the warrant is much more than a technical mistake. The mistake in question goes directly to the issue of the identification of appellant and, as such, is part of the protection provided by the Fourth Amendment to minimize the search of innocent parties. See Long v. State, 132 S.W.3d 443, 447 (Tex.Crim.App. 2004).
The record reveals that the affidavit in support of the search warrant was attached to the actual warrant and incorporated by reference in the warrant. See id. at 448. This is an important consideration when there is a discrepancy in a description contained in the two documents. As stated by the Texas Court of Criminal Appeals in Green v. State, the affidavit given to secure a search warrant controls over the search warrant. 799 S.W.2d 756, 760 (Tex.Crim.App. 1990). The affidavit in question contained the correct date of birth for Lozano. Only in the warrant was there a mistake on the date of birth. It is upon the basis of the affidavit that the magistrate must decide whether there is probable cause for the issuance of a warrant and against whom the warrant should be issued. See id.
Therefore, when we return to one of the basic principles behind the requirement of a warrant, minimizing the danger of searching the person of an innocent bystander, we find that the affidavit correctly describes the person to be searched. See Long, 132 S.W.3d at 447 (citing Berger v. New York, 388 U.S.41, 58, 18 L. Ed. 2d 1040, 87 S.Ct 1873 (1967)). Appellant concedes that the affidavit contains the correct date of birth. And both the affidavit and warrant correctly identify appellant as the person whose blood was to be taken, by name as Meredith Jolene Lozano. The other identifying information in the affidavit, including appellants description as a white female and her approximate height and weight, also was correctly stated in the warrant. According to both the affidavit and the warrant, appellant was in custody in the Denver City police department at the time. The erroneous date of birth contained in the warrant is no more or less than a typographical mistake and, as such, does not vitiate the validity of the warrant. See Jones v. State, 914 S.W.2d 675, 678 (Tex.App.Amarillo 1996, no pet.); Rios v. State, 901 S.W.2d 704, 708 (Tex.App.San Antonio 1995, no pet.). Accordingly, we hold that the trial court erred by granting the motion to suppress. The States issue is sustained.
Conclusion
Having determined that the trial court erred by granting the motion to suppress, we reverse the trial court and remand this case for further proceedings consistent with this opinion.
Mackey K. Hancock
Justice
Do not publish.
[1] See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2009).