NO. 07-00-0535 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A SEPTE MBE R 21, 2001

______________________________ EX PARTE HALEY NICOLE READ

_________________________________ FROM THE 137 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2000-509,683; HO NORABL E CECI L G. PURY EAR, J UDGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. In this appeal, appellant Texas Departm ent of Public Safety (D PS) challenges an order ex pun ging record s re latin g totheindic tm ent of a ppe llee H aley

Nic ole Read (Read) fo r assault on a public official. In a single issue, the DPS contend s the e vi de nc e wa s legally insuffici ent to sustain the trial court’s finding that Read had not been conv icted of
a felony in the five years preceding the a rrest for the alleged offense giving rise to the indictment. For the reasons later stated, w e reverse the order of the t rial court and render judgment for th e DPS.1 Late r references to portions of article 55.01 are to t he Texas C ode of Crim inal Proce dure (Vernon P am ph. 2001 ). 2 On August 16, 1999, Read was arres ted for the offense of d riving while intoxicated. During the course of her arrest, s he apparently wasengaged in conduct that gav e rise to the indictment in qu est io n here. After negotiations betw een Read’s attorney

and the assistantdistrict attorney, an agreem ent was arrived at that Read w ould plead guilty to the DW I charges and the S tate would not s eek an indictment on the assault charge. W hether
or not the police department knew of this a greem ent is not show n in the re cord. H owe ver, another assistant district attorney, w ho apparently had no know ledge of the agreem ent, obtained an indictment on the assault charge. In conform ity with the earlier agreem ent, the first assistant district attorney obtained a dism issal of the indictment. Read then filed
a sworn pet ition in the dist rict court seeking expunct ion of the assault record pursuant to Chapter 55 of the Code of Criminal Procedure. 1 In her m otion, Read alleged that she m et each of the elem ents required under Chapter 55, including the averm ent that she had not be en convicted of a felony in the five years preceding her arrest. Although both th e Lubbock County District Attorney ’s o ffice and the DPS filed answers contesti ng Read’s quest for expunction, the di strict attor ney’s office subsequently filed an am ended answer stating it would not contest Read’s petition. At the hearing, the D PS argued Rea d was no t entitled to the expunction becau se the type of “m istake” about which theprosecutor testified wa s not one within the purview of ar ti cl e 5 5. 01 (a )( 2) (A ), whi ch st at es exp un ct i on ma y be granted “because of m istake,3

false inform ation, or o ther similarreason indicating absence of probable cause.” It presented the testim ony of the arresting officer, who averred there wasno m istake in the testimony

presented bef ore the Lubbock Count y grand jury . In its order granting the mot ion, the trial court stated it was doing so because the indictm ent wasreturned beca use of a m istake and Read had not been convicted of a felo ny w ithin five years preceding her arrest. As relevant here, after request, the trial court entered a su pportin g findi ng of fact that Read had not been convicted of a felony w ithin five years preceding her arrest.
As we havenoted, the DPS bottom s its appeal on the contention that there w as no evidence produced at the hearing supporting the finding thatRead had not been convicted of a fe lony

w ithin thereq uisite five-y ear per iod. Re ad r

esp ond s th at b eca usethis
com plaint was not

presented to th e t rial court, it has been waived. In s upport of that position, she cites and re lies on Texas R ule of Appel latePr oce dur e 33 .1. Tha t ru le, in relevant part, provides that i n order to preserve a question for appe llate review, a clear object io n must have been m ade at the tri al leve l. However, we have held that no such objection is necessary to pr eserve a no -ev iden ce c halle nge in a non -j ury tria l. Letson v. Barnes , 979 S.W.2d 414, 419 n.2 (Tex .App.--Am arillo 1998, pet. denied). See also O’Farill Avilav. Gonz

alez , 974 S.W.2d 237, 248 (Tex.A pp.--San Antonio 1998, pet . denied). W e continue to adhere to that holding.
The DPS concedes that our rev iew m ust encom pass all the evidence in the record, that review m ust be in a light most favorable to the prevailing party and we m ust indulge4

every reasonable inference from the evidence in that party’s f avor. Merrell D ow Pharmaceuticals, Inc. v. Hav ner, 953 S.W.2d 706, 711 (Tex. 1987). H owever, t he D PS empha sizes tha t th ere w as a bso lute lyno testim ony produced at thehearing concerning Read’s criminal hi story. The DPS also asser ts that even though Re ad alleged in her petition that she had not been convicted of a felony in the previous five years and verified that allegation, that alone is not sufficient to support the trial court’s finding.
In support of its contention that Read’s sw orn allegations were not su fficient, the DPS cites Ex

parte My

ers , 24 S.W.3d 477 (Tex.App.--Texarkana 2000 , no pet.), in which the court stated, “ [g]eneral ly, pleadings, even if sworn or ve rified, are n ot eviden ce.” Id. at 481. In conside ring thi s statem ent, the use of the qualifier “general ly” suggests that there m ight be so m e situation s in w hich a sw orn pleading m ight be ev idence. H owe ver, i n espous ing its holding, the Myers court cited Laidlaw

Waste Systems, I

nc. v. Ci ty of Wilmer , 904 S.W.2d 656 (Tex. 1995 ). In Laidlaw , the court indicated there m ight be an exception to the general rule, but only if the pleading set out in “great detail” the essential facts. That lim ited exception w ould not b e applicable he re. M oreover, Read’s petition and attached affidavit were not adm itted into evidence at the m otion hearing.
Read also contend s that beca use t he district attorney agreed not to contest the expunction, “it can b e re aso nab lyinferred” that she m et all the statutory requireme nts. We do not agree. Any

such inference would be no mo re than a surm ise or suspicion of fact5

and would be, legally, no evidence. Texarka n a Memorial Hosp., Inc. v. Murdo ck , 946 S.W.2d 836, 83 8 (Tex . 1997).
Read ne xtargu es the DPSshould be estopped fromchallenging her motion because both the DPSand the district attorney’s off ice are agencies of the State and, as such, theDP S isestopp ed to ch alle nge the plea agr eement entered into by the distri ct attorney’s office, its fellow agency. This quest ion was directly addressed in State v. Brabson , 976 S. W.2d 18 2 (T ex .Cr im .A pp. 199 8), in which the court held that “[t]he Tex as D epartm entof Public Safety and t he Dallas County District Attorney are not the s am e parties.” Id. at 184. We are bound by that decision of our crim inal court of last resort and may not revisit that issue. See also E x par te Harrison , No. 1 1-00-359 -CV (Te x.A pp.-- Eastlan d June 1 4, 2001, no pet h .).
Final ly, citing Ex parte Andrews , 955 S.W.2d 178, 179-80 (Tex.App. --W aco 1997,
no pe t. ), Rea d a rg ue s th at we “should find there is som e evidence of an agreem ent” and sho uld reman d this cause to the trial court for the receipt of additional ev idence. H owe ver, in that case, the court rem anded the cause to t he trial court because it fo und af fidavits subm itted by the movant constituted “some” evi dence of an agreement with the distri ct attorney. It did no t reach nor discu ss thequestion whe ther, if t here was s ufficient evidence of a plea bargain with the district attorney, the DP S would be estopped from opposing the expunction. Andrewswas dec ided prior to the decision in Brabson that the tw o agencies6

werenot the sam e parties. Thus, th e Andrew s decision is distinguishabl e and is not relevant to our decision.
Because there wasno evidence before the tr ial court s upporting its finding that Read had not been convicted o f a felony in the previous five years, we m ust, and do,
sus tain the DPS ’s point. Accordingly, the order of the trial court is reversed and judgm ent here rendered denying Read’s petition.
John T. Boyd Chief Justi ce Do not publish.