      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00622-CV



                                   Sebastian Rangel, Appellant

                                                  v.

                                Travis County Attorney, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
        NO. D-1-EX-08-000131, HONORABLE BOB PERKINS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Sebastian Rangel petitioned the district court for the expunction of records concerning

his alleged commission of the offense of escape. See Tex. Penal Code Ann. § 38.06 (West Supp.

2008). The offense was allegedly committed in 2001 while Rangel was in prison for aggravated

assault. The district court denied the petition, and Rangel appeals from the district court’s order.

In a single point of error, Rangel asserts that the district court abused its discretion when it denied

his petition without first allowing him to present evidence at a hearing.

               Article 55.01 of the code of criminal procedure governs a petitioner’s right to an

expunction, while article 55.02 governs the procedures for expunctions. See Tex. Code Crim. Proc.

Ann. art. 55.01 (West 2006), art. 55.02 (West Supp. 2008). These procedures include a requirement

that the trial court set a hearing on a petition for expunction. 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. Ann.
art. 55.02, § 2(c) (providing that “[t]he court shall set a hearing on the matter”)). Inmates do not,

however, have an absolute right to personally appear at this hearing. Id. (citing Ex parte Guajardo,

70 S.W.3d 202, 205 (Tex. App.—San Antonio 2001, no pet.)). Nor do such hearings have to be oral.

See Ex parte Wilson, 224 S.W.3d 860, 863 (Tex. App.—Texarkana 2007, no pet.); Ex parte Current,

877 S.W.2d 833, 839 (Tex. App.—Waco 1994, no writ); see also Gulf Coast Inv. Corp. v. Nasa 1

Bus. Ctr., 754 S.W.2d 152, 153 (Tex. 1988) (“Unless required by the express language or the

context of the particular rule, therefore, the term ‘hearing’ does not necessarily contemplate either

a personal appearance before the court or an oral presentation to the court.”). “A trial court may

rule on an expunction petition without conducting a formal hearing and without the consideration

of live testimony, if it has at its disposal all the information it needs to resolve the issues raised by

the petition.” Wilson, 224 S.W.3d at 863 (citing Current, 877 S.W.2d at 839-40). Such information

may be found, for example, in the pleadings, affidavits, or other evidence in the judicially noticeable

record. See id. We review a trial court’s decision regarding an inmate’s presence at an expunction

hearing for abuse of discretion. See Heine, 92 S.W.3d at 650.

                We first observe that Rangel was provided with notice of the district court’s decision

to forego a formal hearing. In a July 10, 2008 letter, the district court advised Rangel that it was

“setting this matter for July 25, 2008 and a decision will be made at that time.” The district court

added, “Since you are in the penitentiary, I will be deciding this based on the written record only.”

On appeal, Rangel asserts that in deciding the case based on the written record only, the district court

violated his due process rights. However, the record does not reflect that Rangel made this

complaint at any point prior to the hearing. Thus, it appears that Rangel has waived error. See



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Tex. R. App. P. 33.1(a)(1)(A); McCarroll v. Texas Dep’t of Pub. Safety, 86 S.W.3d 376, 379-

80 (Tex. App.—Fort Worth 2002, no pet.) (concluding that petitioner failed to preserve error

on complaint that his absence from hearing violated his procedural due process and equal

protection rights).

               However, even assuming Rangel had preserved error, we could not conclude on this

record that the district court abused its discretion in deciding the matter without allowing Rangel

to appear. The district court had at its disposal all the information it needed to resolve the issue of

whether Rangel was entitled to an expunction. A person is entitled to an expunction only when all

statutory requirements have been satisfied. See Heine, 92 S.W.3d at 646. One such requirement is

that the person not have been convicted of a felony offense in the five years preceding the date of

the arrest. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(C). Attached to his petition, Rangel

filed a copy of the State’s motion to dismiss the escape charges. The motion specifies that the

charges were dismissed because Rangel had been convicted of the offense of aggravated assault

with a deadly weapon. In a letter sent to both the district court and Rangel, the State advised

the district court that it was opposing the expunction because the escape offense Rangel sought

to expunge was committed on January 26, 2001, and Rangel’s pen packets showed that he

was convicted of the offense of aggravated assault with a deadly weapon, a felony offense, on

October 17, 2000. These dates were not controverted. Thus, based on the written record alone, the

district court could have concluded that Rangel was unable to satisfy one of the statutory

requirements for expunction.




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               Rangel contends, however, that the above conviction is “void or, in the alternative,

did not take effect until March 2003,” because of the alleged issuance of a judgment nunc pro tunc

concerning the deadly-weapon finding. According to Rangel, the convicting court “did not have

plenary power to change a judicial error on the judgment.” Rangel raises this argument for the

first time on appeal. Thus, again, error has not been preserved. See Tex. R. App. P. 33.1(a)(1)(A).

Moreover, an improper judgment nunc pro tunc would not render the original judgment of conviction

void or change the effective date of Rangel’s conviction. See, e.g., Nix v. State, 65 S.W.3d 664,

668 (Tex. Crim. App. 2001) (explaining that judgment is void “only in very rare situations”); Jones

v. State, 795 S.W.2d 199, 202 (Tex. Crim. App. 1990) (“The written judgment is not itself

the conviction but evidence, among other things, that a conviction has occurred.”). In any event, if

Rangel had wanted to present this argument to the district court, he could have done so without

appearing in person. When the district court advised Rangel that it would be deciding his entitlement

to expunction “based on the written record only,” it also informed Rangel that he had 30 days “to file

any additional pleadings.” In that time, Rangel filed a response to the State’s general denial but did

not file any documentation regarding or make any reference to the alleged judgment nunc pro tunc.

               We overrule Rangel’s sole point of error. The order of the district court is affirmed.



                                                      ____________________________________

                                                      Bob Pemberton, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: July 30, 2009

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