Affirmed and Opinion filed August 6, 2013.




                                           In The

                       Fourteenth Court of Appeals

                                  NO. 14-12-00901-CV

                    EX PARTE RONALD DARNELL CEPHUS


                      On Appeal from the 232nd District Court
                              Harris County, Texas
                          Trial Court Cause No. 1003667

                                    OPINION

       Appellant, Ronald Darnell Cephus, is a pro se inmate incarcerated in the
Institutional Division of the Texas Department of Criminal Justice.1 He brings this
appeal from the denial of his petition for expunction of his criminal records.



1
  A jury convicted appellant of robbery, enhanced by a prior conviction for aggravated robbery,
sentenced him to confinement for seventy-five years in prison, and assessed a fine of $7,500 on
June 29, 2005. This court affirmed his conviction on direct appeal. See Cephus v. State, 2006
WL 2862140, No. 14-05-00681-CR (Tex. App.—Houston [14th Dist.] Oct. 10, 2006, pet. ref’d)
(mem. op., not designated for publication).
         Appellant filed a pro se petition for expunction of records pursuant to article
55.01 of the Texas Code of Criminal Procedure. The trial court denied the petition
in an order signed August 22, 2012. Appellant then brought this appeal in which he
generally complains that the trial court erred in denying the petition. This court
struck appellant’s initial brief for non-compliance with the briefing rules, and we
directed appellant to re-brief. See Tex. R. App. P. 38.9. Appellant filed an amended
brief, which also does not comply with the Rules of Appellate Procedure. The State
asks that we strike the second brief. We have construed the brief liberally,
however, and will address appellant’s arguments.

         The Texas Code of Criminal Procedure provides a right to the expunction of
criminal records under certain circumstances, such as an acquittal or pardon. See
Tex. Code Crim. Proc. art. 55.01. A statutory expunction proceeding is civil rather
than criminal in nature, and the petitioner bears the burden of proving that all
statutory requirements have been satisfied. In re A.G., 388 S.W.3d 759, 761 (Tex.
App.—El Paso 2012, no pet.). The trial court must strictly comply with the
statutory requirements and has no equitable power to extend the protections of the
expunction statute beyond its stated provisions. Texas Dep’t of Pub. Safety v.
J.H.J., 274 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.). We
review a court’s decision whether to grant an expunction for abuse of discretion.
Ex parte Reed, 343 S.W.3d 306, 308 (Tex. App.—Houston [14th Dist.] 2011, no
pet.).

         The legislature intended for article 55.01 to permit the expunction of records
of wrongful arrests. Harris Cnty. Dist. Attorney’s Office v. J.T.S., 807 S.W.2d 572,
574 (Tex. 1991). Article 55.01 of the Code of Criminal Procedure provides in
pertinent part as follows:

         (a) A person who has been placed under a custodial or noncustodial

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      arrest for commission of either a felony or misdemeanor is entitled to
      have all records and files relating to the arrest expunged if:
      (1) the person is tried for the offense for which the person was
      arrested and is:
      (A) acquitted by the trial court, except as provided by Subsection (c);
      or
      (B) convicted and subsequently
      (i) pardoned for a reason other than that described by Subparagraph
      (ii); or
      (ii) pardoned or otherwise granted relief on the basis of actual
      innocence with respect to that offense, if the applicable pardon or
      court order clearly indicates on its face that the pardon or order was
      granted or rendered on the basis of the person's actual innocence; or
      (2) the person has been released and the charge, if any, has not
      resulted in a final conviction and is no longer pending and there was
      no court-ordered community supervision under Article 42.12 for the
      offense, unless the offense is a Class C misdemeanor, provided that:
      (A) regardless of whether any statute of limitations exists for the
      offense and whether any limitations period for the offense has
      expired, an indictment or information charging the person with the
      commission of a misdemeanor offense based on the person's arrest or
      charging the person with the commission of any felony offense arising
      out of the same transaction for which the person was arrested:
      (i) has not been presented against the person at any time following the
      arrest, and [specified time periods have elapsed]; . . . or:
      (ii) if presented at any time following the arrest, was dismissed or
      quashed, and the court finds that the indictment or information was
      dismissed or quashed because the person completed a pretrial
      intervention program authorized under Section 76.011, Government
      Code, because the presentment had been made because of mistake,
      false information, or other similar reason indicating absence of
      probable cause at the time of the dismissal to believe the person
      committed the offense, or because the indictment or information was
      void . . . .
Tex. Code Crim. Proc. art. 55.01(a).


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       In his petition, appellant sought the expunction of records in the following
seven cases:2

       1. Cause No. 0677953 in the 174th District Court of Harris County, a
       conviction for aggravated robbery;
       2. Cause No. 0679595 in the 174th District Court of Harris County; a
       conviction for credit card abuse;
       3. Cause No. 0681131 in the 174th District Court of Harris County; a
       robbery conviction;
       4. Cause No. 0998670 in the 232nd District Court of Harris County,
       an indictment for robbery, which was dismissed and re-filed as Cause
       No. 1009435;
       5. Cause No. 1009435 in the 232nd District Court of Harris County, a
       conviction for robbery;
       6. Cause No. 1003667 in the 232nd District Court of Harris County,
       the robbery conviction in the underlying case in which appellant filed
       the petition for expunction from which this appeal arises; and
       7. Cause No. 1020121 in the 232nd District Court of Harris County,
       which was a duplicate robbery indictment filed in error and dismissed
       two days later.

       Article 55.01 provides that dismissal of an indictment is a ground for
expunction under certain circumstances. Tex. Code Crim. Proc. art. 55.01(a)(2)(A).
Appellant claimed in his expunction petition that all the indictments at issue have
been dismissed, which is incorrect. Five of these indictments resulted in final
convictions. As noted above, although the indictments in Cause Nos. 0998670 and
1020121 were dismissed, appellant was convicted of the same substantive charges
made in both of those cases. To be eligible for expunction, the petitioner has the
burden of proving that “he has been released and the charge . . . [did] not result in
a final conviction.” Tex. Code Crim. Proc. art. 55.01(a)(2). Appellant has been


2
  In the petition, appellant states that there are eight cases, but he has listed only the seven cases
referenced in this opinion.
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convicted of five charges and has not been released. Consequently, these
dismissals do not provide a basis for expunction.

      In his brief on appeal, appellant failed to address the older convictions listed
in numbers 1, 2, and 3 above. Accordingly, appellant has waived any claim to
expunction of these cases. See Canton-Carter v. Baylor College of Medicine, 271
S.W.3d 928, 930 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“In the review
of a civil case, an appellate court has no discretion to consider an issue not raised
in the appellant's brief.”). Moreover, appellant did not provide any evidence with
his petition that these earlier cases resulted in an acquittal, pardon, dismissal of the
charges, or failure to present a charge. Allegations in a petition to expunge criminal
records are not evidence; the petitioner is required to prove compliance with the
statute. Ex parte Guajardo, 70 S.W.3d 202, 206 (Tex. App.—San Antonio 2001,
no pet).

      In appellant’s expunction petition, he also argued that the robbery conviction
in cause number 1003667, the underlying case, was void because there was no
arrest warrant. This court affirmed appellant’s conviction on direct appeal, and the
conviction is final. A collateral attack on a final judgment may not be brought in an
expunction proceeding. See In re Retzlaff, 345 S.W.3d 777, 779 (Tex. App.—El
Paso 2011, no pet.). Moreover, only a void judgment may be collaterally attacked.
See Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005). A judgment is void
only when it is apparent that the court rendering judgment “had no jurisdiction of
the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter
a particular judgment, or no capacity to act.” Id. (quoting Austin I.S.D. v. Sierra
Club, 495 S.W.2d 878, 881 (Tex. 1973)). The record does not reflect that any of
the judgments at issue, including the judgment in cause number 1003667, are void.

      The record also does not establish that any of appellant’s indictments are

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void. Even if a void indictment is shown, the expunction statute still requires that
the indictment must have been dismissed or quashed prior to conviction. See Tex.
Code Crim. Proc. art. 55.01(a)(2)(A)(ii) (stating conditions of expunction include
“the person has been released and the charge . . . has not resulted in a final
conviction” and that “an indictment or information . . . was dismissed or quashed .
. . because the indictment or information was void. . . .”) (emphasis added).
Appellant has not made this showing.

      Furthermore, even where an indictment has been dismissed, the petitioner
has the burden of proving that the dismissal was because of a factual “mistake,
false information, or other similar reason indicting absence of probable cause at the
time of dismissal.” Tex. Code Crim. Proc. art. 55.01(a)(2)(A)(ii); see also Harris
Cnty. Dist Attorney’s Office v. Hopson, 880 S.W.2d 1, 3 (Tex. App.—Houston
[14th Dist] 1994, no writ). Appellant made no such showing.

      Appellant’s reliance on In re E.R.W., 281 S.W.3d 572 (Tex. App.—El Paso
2008, pet. denied) is misplaced. In that case, the court of appeals held that the
applicant, E.R.W., had presented evidence showing that capital murder charges
were dismissed because the presentment had been made due to mistake, false
information, and a lack of probable cause. Id. at 575. Therefore, he met the
statutory requirements for expunction of his criminal record. Id. In E.R.W., the
applicant was not tried and convicted of the charge for which expunction was
sought; here, appellant was convicted of all the charges at issue.

      Appellant also asserted that he was sentenced three times in cause number
1003667, but this allegation is not confirmed by the record. The State responds that
appellant simply is mistaken in his belief that he was sentenced three times for the
same conviction. He has three separate robbery convictions. According to the
judgments, the first robbery was committed on September 28, 1993; the second

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was committed on July 28, 2004; and the third was committed on August 14, 2004.

      Appellant has also raised a due process argument, which we assume refers to
the denial of his motion requesting a bench warrant and oral hearing. By ruling on
the petition for expunction without granting an oral hearing, the trial court
implicitly denied appellant’s motion. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex.
2003); Tex. R. App. P. 33.1(a)(2).

      There is generally a requirement for the trial court to set a hearing on a
petition for expunction. See Heine v. Texas Dep’t. of Pub. Safety, 92 S.W.3d 642,
649 (Tex. App.—Austin 2002, pet. denied) (citing Tex. Code Crim. Proc. art.
55.02, § 2(c) (providing that “[t]he court shall set a hearing on the matter”)). A
“hearing” does not necessarily contemplate a personal appearance before the court
or an oral presentation to the court, however. See Cire v. Cummings, 134 S.W.3d
835, 844 (Tex. 2004).

      “A prison inmate’s right to access the courts does not entail the right to
appear personally.” Brewer v. Taylor, 737 S.W.2d 421, 423 (Tex. App.—Dallas
1987, no writ). An inmate does not have an absolute right to appear in person in
every court proceeding. In re Z.L.T., 124 S.W.3d at 165. The decision whether to
issue a writ of habeas corpus ad testificandum, more commonly called a bench
warrant, for an inmate to attend court rests in the sound discretion of the trial court.
Brewer, 737 S.W.2d at 424; see also Jones v. Jones, 64 S.W.3d 206, 210 (Tex.
App.—El Paso 2001, no pet.). Texas courts recognize a variety of balancing
factors that trial courts should consider when deciding whether to permit an
incarcerated party to appear at trial. In re Z.L.T., 124 S.W.3d at 165. These factors
include the cost and inconvenience of transporting the prisoner, the security risk
the prisoner presents to the court and public, whether the prisoner’s presence is
necessary to judge his demeanor and credibility, whether the prisoner’s claims are

                                           7
substantial and his probability of success, Id. Thus, an inmate is required to show
why his appearance at court is justified. Brewer, 737 S.W.2d at 424. A trial court
abuses its discretion in denying a motion for a bench warrant only if the inmate has
been effectively barred from presenting his case. Aguilar v. Alvarado, 39 S.W.3d
244, 248 (Tex. App.—Waco 1999, pet. denied).

      These balancing factors do not weigh in favor of permitting appellant to
appear at court. Because the court is not required to hear testimony or make
judgments about demeanor and credibility in an expunction proceeding, these
factors do not weigh in favor of allowing a personal appearance. See Brewer, 737
S.W.2d at 423. There is no indication in our record about what appellant’s
testimony would have been. Appellant was able to present his case through the
written evidence provided with his motion. See Whiteside v. Ford Motor Credit
Co., 220 S.W.3d 191, 194 (Tex. App.—Dallas 2007, no pet.) (holding that
appellant’s due process rights were satisfied as long as he received a reasonable
opportunity to present his written evidence); see also Ex parte Wilson, 224 S.W.3d
860, 863 (Tex. App.—Texarkana 2007, no pet.) (holding that a hearing on a
petition for expunction was not necessary when all relevant facts were available to
the court); McCarroll v. Texas Dep’t of Pub. Safety, 86 S.W.3d 376, 378 (Tex.
App.—Fort Worth 2002, no pet.) (holding any error in ruling on a petition for
expunction without a hearing was harmless). We conclude that appellant has not
established his entitlement to relief. See Tex. R. App. P. 44.1(a) (appellant has the
burden of showing that any trial court error probably caused the rendition of an
improper judgment or prevented appellant from properly presenting the case to the
court of appeals).

      Appellant failed to establish any grounds for expunction, and the trial court
did not abuse its discretion in denying his petition. Appellant also has not

                                         8
demonstrated that the trial court reversibly erred in denying his petition for
expunction without an oral hearing. Accordingly, the judgment of the trial court is
affirmed.




                                      /s/       John Donovan
                                                Justice


Panel consists of Justices Brown, Christopher, and Donovan.




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