author: Opinion by Justice CASTILLO.

text:
    The STATE of Texas, Appellant, v. Juan Antonio SOTELO and Sasha Alana Silva Sotelo, Appellees.
    Nos. 13-03-423-CR, 13-03-424-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    May 12, 2005.

      Armando R. Villalobos, Dist. Atty., Gordon K. Lemaire, Asst. Dist. Atty., Brownsville, for appellant.
    Peter C. Gilman, Olmito, for appellees.
    Before Justices RODRIGUEZ, CASTILLO, and GARZA.
   OPINION

Opinion by Justice CASTILLO.

The State of Texas argues that the trial court abused its discretion by ordering disclosure of the identity of the confidential informant. Appellees, Juan Antonio Sotelo and Sasha Alana Silva Sotelo, counter that the trial court ruled correctly because (1) the informant was a witness to the offense, and (2) the credibility of the informant was at issue and, thus, could aid in their defense. We reverse and remand.

I. Standard of Review

We review a trial court’s grant of a motion to disclose a confidential informant under an abuse of discretion standard. See Taylor v. State, 604 S.W.2d 175, 179 (Tex.Crim.App.1980). Under this standard, we affirm the judgment unless the trial court’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990) (en bane). We may not substitute our judgment for that of the trial court; rather, we must decide whether the trial court’s decision was arbitrary or unreasonable. Id. We must consider all of the circumstances of the case to determine whether the trial court abused its discretion by requiring the State to disclose the informer’s identity. Cf. Portillo v. State, 117 S.W.3d 924, 928 (Tex.App.-Houston [14th Dist.] 2003, no pet.).

II. Texas Rule of Evidence 508

The State has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting, in an investigation of a possible violation of a law to a law enforcement officer. Tex.R. Evid. 508(a). Exceptions to the rule require the State to disclose the identity of a confidential informant if: (1) the informer may reasonably be able to give testimony necessary to a fair determination of the issues of guilt or innocence, Tex.R. Evid. 508(c)(2); or, (2) “information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the judge is not satisfied that the information was received from an informer reasonably believed to be reliable or credible.” Tex.R. Evid. 508(c)(3). The remaining exception applies to the State’s voluntary disclosure. Tex.R. Evid. 508(c)(1).

A defendant who makes a request for disclosure under rule 508 has the threshold burden of demonstrating that the informant’s identity must be disclosed. See Bodin v. State, 807 S.W.2d 313, 318 (Tex.Crim.App.1991) (en banc). In order to overcome the State’s privilege under rule 508(c)(2), the defendant bears the threshold burden of demonstrating there is a reasonable probability the informer may give testimony necessary to a fair determination of the issue of guilt or innocence. Portillo, 117 S.W.3d at 928; see Tex.R. Evid. 502(c)(2). The informant’s potential testimony must significantly aid the defendant, and mere conjecture or supposition about possible relevancy is insufficient. Id. (citing Bodin, 807 S.W.2d at 318). The fifing of a motion to disclose is insufficient to obtain a hearing, much less compel disclosure. Id. However, because the defendant may not actually know the extent of the informant’s involvement, he is only required to make a plausible showing of how the testimony may be important. Id. The trial court should order disclosure of the informant’s identity if the trial court finds a reasonable probability exists that the informant could give testimony necessary to a fair determination of guilt or innocence. See id. Evidence from any source, but not mere conjecture or speculation, must be presented to make the required showing that the informer’s identity must be disclosed. Bodin, 807 S.W.2d at 318.

In this case, the indictments charged the Sotelos with one count each of possession with intent to deliver cocaine and one count of possession of marihuana. In his motion for disclosure, Mr. Sotelo requested disclosure because he was a “witness in favor of the defense.” As grounds in support of her motion, Mrs. Sotelo asserted disclosure was required because the informant participated in the alleged offense, was present both at the time of the alleged offense and at the time of Mrs. Sotelo’s arrest, and was a material witness on the issue of her culpability. For purposes of our review, we conclude that the assertions implicate rule 508(c)(2), the exception which requires disclosure where the informant may be able to give testimony necessary to a fair determination of the issues of guilt or innocence. See Tex.R. Evid. 502(c)(2). We turn to the record evidence.

III. Relevant Facts

Evidence showed that, on or about October 14, 2002, a narcotics investigation team led by police officer Jose Davila, assigned to the Brownsville Police Department (“BPD”) special investigations unit, executed a search warrant to search the Sotelos’ residence. The search yielded about sixty-five grams of cocaine and about two pounds of marihuana. As the result, the Sotelos were arrested and subsequently indicted. Four law enforcement officers testified for the State. Police officer Albert Torriz, assigned to the BPD and the FBI task force, testified that he worked with the informant on three previous occasions. On each of the cases, the informant provided credible and reliable information. Two of the cases involved the FBI and Secret Service; another was with the task force. Torriz received information about the presence of narcotics at the Sotelos’ residence from the informant. Torriz relayed the information to officer Davila, and the two met with the informant. Torriz told Davila of his prior experience with the informant including that the informant was reliable and credible.

According to Davila, the informant told him (1) he saw cocaine at the Sotelos’ residence within the previous forty-eight hours, and (2) the Sotelos were in the business of selling narcotics. The informant did not tell Davila whether he ingested drugs at the Sotelos’ residence at the time he saw the drugs there. Davila believed the informant to be credible and reliable because he had previously provided information to the BPD and a narcotics task force which led to seizure of narcotics and arrests in approximately seven cases. Davila had personal knowledge of the conviction of one individual as the result of information the informant provided. The informant did not go to the Sotelos’ residence when Davila executed the search warrant. The informant only provided information for purposes of the search warrant. Davila refused to voluntarily disclose the informant’s name for fear of retaliation on the man’s life.

Police officer Daniel Marks, also assigned to the special investigations unit, testified that he previously worked with the informant on one case and the information provided was reliable and credible' and resulted in the seizure of narcotics and arrest of several individuals. Marks learned of the informant through officer Torriz. Marks was present at the time of the Sotelos’ arrest at their residence. He testified the informant was not present at the scene.

Both Davila and Marks testified that they had information from sources other than the informant that the Sotelos were involved in narcotics. The other sources included the local narcotics task force, FBI, DEA, and Crimestoppers.

FBI special agent Greg Bodin testified that he worked with the informant once previously and the informant provided information that led to narcotics arrests and seizure. He was familiar with other officers who had used the same informant, who proved to be credible and reliable.

The trial court ruled that the State must reveal the identity of the informant. The State asserted it would not disclose the identity. The trial court dismissed both cases. This appeal ensued.

TV. Discussion

By their motion to disclose the identity of the informant, the Sotelos implicated rule 508(c)(2) and, thus, must demonstrate that there is a reasonable probability the informer may give testimony necessary to a fair determination of the issue of guilt or innocence. See Bodin, 807 S.W.2d at 318; see also Portillo, 117 S.W.3d at 930. We are mindful that, because the defendant may not actually know the extent of the informant’s involvement, he is only required to make a plausible showing of how the testimony may be important. See Portillo, 117 S.W.3d at 930. Even so, evidence from any source, but not mere conjecture or speculation, must be presented to make the required showing that the informer’s identity must be disclosed. Bodin, 807 S.W.2d at 318.

In this case, the evidence does not show that the informant may have been able to give testimony necessary to a fair determination of the issues of guilt or innocence. The evidence before the trial court showed that the informant provided information to law enforcement proven to be credible and reliable in prior cases. Evidence showed that the information the informer provided the case agent proved credible and reliable because it led to a narcotics seizure at the Sotelos’ residence and their arrest. Evidence established that the informant was not present at the scene at the time of the search, seizure, and arrest leading to the indictment.

On this record, we conclude that the trial court’s ordering disclosure of the informant’s identity was outside the zone of reasonable disagreement and, thus, constituted an abuse of discretion. See Montgomery, 810 S.W.2d at 380. Accordingly, we sustain the State’s sole issue in each case.

V. Conclusion

Having sustained the State’s sole issue in each case, we reverse the ruling of the trial court and remand.

      . At the conclusion of the evidentiary hearing, defense counsel argued, in part, that the informant had information material to the defense, stating, “He is a person that can testify as to whether he himself took the drugs there- [W]e need the confidential informant revealed to develop the defense in this case concerning chain of events and what actually occurred during that time.’’

      . The hearing also involved the Sotelos’ motion to suppress.

      . Davila had no knowledge of the status of the remaining cases.


source: Caselaw Access Project

author: Justice CASTILLO.

license: Public Domain

text:
    Dario BARGAS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 13-02-030-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    May 12, 2005.

      John S. Gilmore, Jr., Gilmore & Gran-berry, Joseph V. Collina, Corpus Christi, for appellant.
    Patrick L. Flanigan, Dist. Atty., Sinton, for state.
    Before Justices HINOJOSA, CASTILLO, and CHAVEZ.

      . The assignment of retired Justice Melchor Chavez to this Court by the Supreme Court of Texas pursuant to section 74.003 of the government code expired on August 31, 2003. See Tex. Gov't Code Ann. § 74.003 (Vernon 2005). Accordingly, Justice Chavez did not participate in this decision.

   OPINION

Opinion by

Justice CASTILLO.

Dario Bargas, Jr., brings this appeal from the trial court’s denial of his petition to expunge his criminal record following Bargas’s acquittal by a jury. We reverse and remand.

I. BACKGROUND

A grand jury indicted Bargas for attempted murder and aggravated assault on May 25, 2000. The matter proceeded to a jury trial in the 36th Judicial District Court, San Patricio County, Texas. On January 30, 2001, the jury returned a verdict of not guilty. A judgment acquitting Bargas of all charges was entered January 30, 2001.

Article 55.02(1) of the Texas Code of Criminal Procedure requires that Bargas raise his request for expunction in the trial court “presiding over the case in which the defendant was acquitted.” Tex. Code Crim. PROc. Ann. art. 55.02(1) (Vernon Supp.2004-05). Article 55.02(2) requires that a petition for expunction be filed in the district court in which the person was acquitted. See Ex parte Myers, 68 S.W.3d 229, 232 (Tex.App.-Texarkana 2002, no pet.). An expunction cannot be considered in any court other than that specified in the statute, because the Legislature’s designation of venue is mandatory and jurisdictional. Id. On March 16, 2001, Bargas filed a petition to expunge his arrest record in the 156th Judicial District Court, San Patricio County, Texas. He alleged that he had been arrested and charged, but was entitled to expunction because the indictment or information charging him had been dismissed because of a mistake, false information or other similar reason indicating absence of probable cause. The petition included a request for a hearing and alleged Bargas was entitled to expunction because there was no final conviction, no court ordered supervision, no conditional discharge, and he had not been convicted of a felony in the five years preceding the date of arrest.

The response filed by the State asserted that the petition was factually incorrect, in that the felony indictment had not been dismissed; instead it was disposed of by acquittal after a jury trial. The State further alleged the petition for expunction failed to satisfy the requirements of article 55.02 of the code of criminal procedure and therefore should be denied.

On April 10, 2001, Bargas amended his petition for expunction to reflect the indictment had been disposed of by acquittal, but did not specifically cite article 55.02 of the Code of Criminal Procedure. The State’s amended response (filed May 16, 2001) focused on Bargas’s continued failure to satisfy all requisites of article 55.02. Bargas subsequently filed his third amended petition on May 29, 2001. Bargas sought the relief of expunction based upon his acquittal, and for the first time urged that the trial court had failed to advise him of his right to expunction as required under articles 55.02 and 55.05 of the code of criminal procedure. Tex.Code Crim. PROC. Ann. arts. 55.02, 55.05 (Vernon Supp.2004-05). He therefore requested waiver of the statutory requirement that a hearing be held within thirty (30) days of acquittal. On that same day, May 29, 2001, Bargas also filed a motion to transfer the matter from the 156th Judicial District Court to the 36th Judicial District Court, where the underlying criminal matter had proceeded to trial.

No further action was taken in the matter until October 8, 2001, when a notice of hearing was issued, scheduling the hearing for December 6, 2001. On December 7, 2001, a second notice was sent out, reflecting a hearing date of December 14, 2001. Both these hearing notices were issued by the 156th Judicial District Court. The hearing proceeded on December 14, 2001; the transcript reflects it was held before the 156th Judicial District Court (Judge Yeager presiding). The order denying Bargas’s petition was signed and entered December 26, 2001, by Judge Yeager, though that order carries a caption indicating it emanated from the 36th Judicial District Court. Bargas’s notice of appeal and all subsequent requests for clerk and reporter records were filed in the 156th Judicial District Court. We find no signed order of transfer, and note further that the court initially referred to itself as the 156th Judicial District Court during the hearing.

Despite the confusion in the record, we determine that, as indicated in the briefs of both Appellant and Appellee, Bargas did file in the appropriate district court and this matter is properly on appeal from the 36th Judicial District Court. We base this conclusion on the following facts: (1) all orders of the court are signed by Judge Yeager; (2) Judge Yeager presided over the expunction hearing and signed the final order denying the petition; (3) Judge Yeager presided over the earlier jury trial of Bargas; (4) at the hearing on the ex-punction matter, Judge Yeager took judicial notice that “this was the Court in which Mr. Bargas was acquitted” on January 30, 2001; (5) the State had no objection to this conclusion; and (6) no party has raised this as an issue on appeal.

II. THE HEARING

At the expunction hearing, the State, joined by the City of Portland, objected that Bargas’s request for expunction was untimely, inasmuch as more than 30 days had passed since Bargas’s acquittal. The judge determined that he would proceed with the hearing, and Bargas was given the full opportunity to present his case.

Bargas testified that, although he had signed affidavits in support of his petition and his amendments thereto, he could not guarantee that he had read them or that the petitions did not inadvertently contain some error. The State contended that the first petition in fact improperly requested expunction under the general provisions of the expunction statute, and not until the third amended petition (filed May 29, 2001) did Bargas claim that the trial judge had failed to follow the strict requirements of article 55.02. The State further contended, and Bargas agreed, that Bargas had been represented at the underlying trial by three attorneys with considerable experience and expertise in criminal law.

After taking judicial notice that this same court had presided over the trial in which Bargas had been acquitted, the trial court also took judicial notice that it had not admonished Bargas with regard to ex-punction as provided in article 55.02 of the code of criminal procedure.

Bargas’s attorney also testified at the hearing that, at the time of Bargas’s acquittal, he was unaware of the statutory provision requiring that any hearing on expunction be held within thirty (30) days of the acquittal. Bargas does not dispute that the request for expunction was neither filed nor heard within thirty (30) days of his acquittal.

The State responded at the hearing that Bargas essentially “slumbered on his rights” in failing to make a timely request, and that he was therefore barred from the relief of expunction. The State further countered that, at the most, Bargas could argue for a tolling of the “thirty day” period until he did learn of his right to request expunction, but that he did not timely request an expunction hearing even under that scenario. Counsel for the State stated: “I would urge the Court to go ahead and deny the Petition for Expunction as not being timely heard by the Court.” When later questioned by the trial court, the State stated the court had no jurisdiction to grant an expunction based upon an acquittal after the thirtieth day. The State further responded that the subparts of article 55.01 were mutually exclusive: if all requisites of article 55.01(a)(1)(A) were not met, and if Bargas did not qualify for expunction under one of the other subparts of article 55.01, then he would not be entitled to expunction.

Counsel for the City of Portland responded that article 55.01(a)(1)(A) did not contemplate a civil proceeding, but rather that the matter be incorporated within the underlying criminal case. He urged that waiver of the thirty (30) day requirement would be inappropriate, first because it is a statutory requirement and the court had no authority to waive the requirement, and second because “this is an individual for whom notice was not necessary.” Counsel for the City contended further that because Bargas is an attorney and ostensibly familiar with the law, had represented criminal defendants, and was represented in the underlying matter by counsel, there was no need for the trial court to have provided the admonishment.

Bargas asserted that he had indeed requested a hearing in his original petition, filed March 16, 2001. Bargas also argued that the court was required to admonish him of his right to an expunction but had not done so, and that the thirty day limitation applied to the trial court’s duty to act, not to the defendant.

All participants at the hearing, including the trial court, had some difficulty determining which version of the statute was applicable to the matter at hand. The trial court read the statute to require that Bar-gas’s request for expunction be part of the underlying criminal proceeding, that the matter indicated a problem with jurisdiction, and denied the petition for expunction. The parties were invited to, but did not request, findings of fact or conclusions of law.

III. ISSUE ON APPEAL

Bargas brings one issue on appeal: “whether a trial court that fails to admonish — regarding the new, statutory 30 day time limit for entering its order for ex-punction of criminal records following acquittal — thereby loses its jurisdiction to expunge, if a petitioner thereafter fails to file his petition to expunge within that 30 day window.”

IV. JURISDICTION AND STANDARD OF REVIEW

A court of appeals has jurisdiction under article V, section 6, of the Texas Constitution and under Texas Civil Practice and Remedies Code section 51.012 to entertain an appeal from a district court order relating to expunction of arrest records. Tex. Const, art. V, § 6 (amended 1978); Tex. Civ. PRac. & Rem.Code Ann. § 51.012 (Vernon 1997); S.P. v. Dallas County Child Welfare Unit of Tex. Dep’t of Human Res., 577 S.W.2d 385, 387-88 (Tex.Civ.App.-1979, writ ref'd n.r.e.).

A. The Statutory Provision for Expunction

A central purpose of the expunction statute is to allow a fresh start to individuals who have been wrongly charged. Harris County Dist. Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex.1991); Ex parte E.E.H., 869 S.W.2d 496, 498 (Tex.App.-Houston [1st Dist.] 1998, writ denied); see also Heine v. Tex. Dep’t of Pub. Safety, 92 S.W.3d 642, 648 (Tex.App.-Austin 2002, pet. denied) (articulating the Legislature’s intent to cure the evils attendant to wrongful arrests). It is designed to provide a means for those persons who have been arrested and indicted for a criminal offense as a result of mistake, false information, or other reason indicating the absence of probable cause for arrest or indictment, to expunge those records. State v. Arellano, 801 S.W.2d 128, 130 (Tex.App.-San Antonio 1990, no writ).

The statute also provides that a person is entitled to expunction of his records after an acquittal, so long as certain other conditions are satisfied. Tex.Rev.Civ. Stat. Ann. art. 55.01(a)(1)(A) (Vernon Supp. 2004-05). The statute was amended and expanded in 1993 by the Texas Legislature to make expunction specifically available to “persons acquitted of or pardoned for offenses.” Ex parte Current, 877 S.W.2d 833, 836 (Tex.App.-Waco 1994, no writ) (citing Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 7.02(a), (b), 1993 Tex. Gen. Laws 3763 (current version at Tex.Code CRim. PROC. Ann. arts. 55.01 and 55.02) (Vernon Supp.2004-05)). The Legislature further provided that expunction was available to persons acquitted of or pardoned for offenses “regardless of whether the offense was committed before, on, or after the effective date of this article.” Id.

Article 55.01 of the code of criminal procedure sets forth the substantive parameters for a person’s right to expunction. Article 55.01(a)(1)(A), entitled “Right to Expunction,” at all times relevant to the underlying matter, provided that:

A person who has been arrested 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) of this section ...

Tex.Code CRim. Proc. Ann. art. 55.01(a)(1)(A) (amended by Act of June 18, 1999, 76th Leg., R.S., ch. 1236, § 1, 1999 Tex. Gen. Laws 4279, amended by Act of April 10, 2001, 77th Leg., R.S., ch. 1021 § 1, 2001 Tex. Gen. Laws 2236, 2238, amended by Act of May 28, 2003, 78th Leg., R.S., ch.1236, § 1, 2003 Tex. Gen. Laws 3449, 3502.). Subsection (c) was amended in 1999 to provide that expunction will not be available unless the person also establishes that he or she has not been convicted of a felony in the five years preceding the date of the arrest. Tex. Code CRim. PROC. Ann. art. 55.01(c) (amended by Act of June 18,1999, 76th Leg., R.S., ch. 1236, § 1, 1999 Tex. Gen. Laws 4279-80).

Article 55.02 was similarly amended in 1999 to alter the procedure by which a defendant might secure expunction:

At the request of the defendant and after notice to the state and a hearing, the trial court presiding over the case in which the defendant was acquitted shall enter an order of expunction for a person entitled to expunction under art. 55.01(a)(1)(A) not later than the thirtieth (30th) day after the date of the acquittal. Upon acquittal, the trial court shall advise the defendant of the right to ex-punction. The defendant shall provide to the court all of the information required under Section 2(b).

Tex.Code CRiM. PROC. ANN. art. 55.02(1) (amended by Act of June 18, 1999, 76th Leg., R.S., ch. 1236, § 1, 1999 Tex. Gen. Laws 4280-82, amended by Act of May 28, 2003, 78th Leg., R.S., ch. 404, § 1, 2003 Tex. Gen. Laws 1652, 1653). Article 55.02(2) sets forth the very specific components that must be included in any petition for expunction.

However, our inquiry does not stop here. We must also note that substantive portions of the expunction statute were further amended in 2003, after the events in issue here. These amendments created two versions of article 55.02 section (a)(2). See Act of June 18, 2003, 78th Leg., R.S., ch. 339, §§ 2, 3, 2003 Tex. Gen. Laws 1490-91 (effective September 1, 2003), and Act of June 20, 2003, 78th Leg., R.S., ch. 1236, § 2, 2003 Tex. Gen. Laws 3500. This latter act also amended article 55.01, section 1, and article 55.03, section 3. See id., 2003 Tex. Gen. Laws 3499, 3500.

This latter Act operated to eliminate the distinction in procedure that previously existed for persons qualifying for expunction under either article 55.01(a)(1)(A), 55.01(a)(1)(B), or 55.01(b). See Act of June 20, 2003, 78th Leg., R.S., ch. 1236, § 2, 2003 Tex. Gen. Laws 3500. This version of article 55.02(2) provides that a person who is entitled to expunction of records and files under article 55.01(a) or (d), or a person who is eligible for expunction of records and files under article 55.01(b), may file an ex parte petition in a district court in the county where the offense was alleged to have occurred. Id. This is the procedure Bargas appears to have followed. Importantly, we note further that Chapter 1236, although effective September 1, 2003, was expressly made retroactive:

The changes in law made by this Act to Chapter 55, Code of Criminal Procedure, apply to a person seeking expunction of records and files relating to an arrest regardless of whether the arrest occurred before, on, or after the effective date of this Act.

Act of June 20, 2003, 78th Leg., R.S., ch. 1236, § 6(a), 2003 Tex. Gen. Laws 3502.

B. Standard of Review

We generally review the granting or denial of expunction under an abuse of discretion standard. Heine, 92 S.W.3d at 646. Many expunction proceedings fall under section 55.01(b), which provides that the trial court “may” expunge the records. An applicant who meets these criteria places the decision on the motion to expunge within the sound discretion of the trial court. Ex Parte Current, 877 S.W.2d at 836. However, this matter, involving an acquittal, falls under article 55.01(a). The sections of the statute are distinctly different, with article 55.01(a) providing an entitlement to expunction of criminal records. See Tex.Code Crim. Proc. Ann. art. 55.01(a) (Vernon Supp.2004-05). Once an applicant demonstrates his eligibility under the provisions of this section, the court has no discretion to refuse to order the records expunged. Ex Parte Current, 877 S.W.2d at 836; see also Heine, 92 S.W.3d at 648. The court similarly must comply with the statutorily required admonishment. Tex. Code Crim. Proo. Ann. art. 55.01(a) (Vernon Supp.2004-05).

In the circumstances of this case, there are no issues of fact in dispute. Instead, we are reviewing the impact of the trial court’s failure to properly admonish Bar-gas, and Bargas’s entitlement to expunction where the request for and hearing on expunction did not occur within the thirty (30) day time frame specified by article 55.02(1). Because the only issue presented for review is one of statutory construction, involving purely legal determinations, the proper standard of review is de novo. See Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002); Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992); Tex. Dep’t of Pub. Safety v. Loeb, 149 S.W.3d 741, 743 (Tex.App.-Austin 2004, no pet.).

V. ANALYSIS

A. There Is No Constitutional Issue

We note first Bargas’s suggestion, articulated in his prayer for relief, that the refusal of the trial court to expunge his criminal records in effect denied him due process. We reject that contention, and find no question of a constitutional level in this appeal. The right to expunction is neither a common law nor a constitutional right; rather, it exists as a statutory privilege which is granted and therefore can be limited by the Legislature. McCarroll v. Tex. Dep’t of Pub. Safety, 86 S.W.3d 376, 378 (Tex.App.-Fort Worth 2002, no pet.); State v. Autumn Hills Ctrs., Inc., 705 S.W.2d 181, 182 (Tex.App.-Houston [14th Dist.] 1985, no writ).

B. Expunction is Not Barred By a Lack of Jurisdiction

1. Petitioner’s Burden

Bargas is entitled to expunction only if all the statutory conditions are met.

Tex. Dep’t of Pub. Safety v. Williams, 76 S.W.3d 647, 650 (Tex.App.-Corpus Christi 2002, no pet.); Harris County Dist. Attorney’s Office v. D.W.B., 860 S.W.2d 719, 721 (Tex.App.-Houston [1st Dist.] 1993, no writ). Where a cause of action is derived solely from a statute, the statutory provisions are mandatory, exclusive, and must be complied with or the action is not maintainable. Autumn Hills, 705 S.W.2d at 182 (citing Schwantz v. Texas Dep’t of Pub. Safety, 415 S.W.2d 12, 15 (Tex.Civ.App.-Waco 1967, writ ref'd)); Rowden v. Tex. Catastrophe Prop. Ins. Ass’n, 677 S.W.2d 83, 87 (Tex.App.-Corpus Christi 1984, writ refd n.r.e.). Because expunction is a statutorily created remedy, strict compliance with the statute is required; substantial compliance with statutory ex-punction requirements will not suffice. Carson v. State, 65 S.W.3d 774, 781-82 (Tex.App.-Fort Worth 2001, no pet.). By the same token, the expunction statute is remedial in nature and should be given the most comprehensive construction possible. Id. at 780.

Additionally, an expunction proceeding is civil rather than criminal in nature, and the burden of proving compliance with statutory conditions rests solely with the petitioner. See Houston Police Dep’t v. Berkowitz, 95 S.W.3d 457, 460 (Tex.App.-Houston [1st Dist.] 2002, pet. denied); Heine, 92 S.W.3d at 646; McCarroll, 86 S.W.3d at 378; Kendall v. State, 997 S.W.2d 630, 631 (Tex.App.-Dallas 1998, pet. denied); Ex parte Scott, 818 S.W.2d 226, 227 (Tex.App.-Corpus Christi 1991, no writ). At an expunction hearing, each law enforcement agency cited is entitled to represent itself, and any reversal of an expunction order must encompass all agencies in possession of relevant criminal records. Tex. Dep’t of Pub. Safety v. Deck, 954 S.W.2d 108, 113 (Tex.App.-San Antonio 1997, no writ) (en banc).

2. Statutory Construction

Our primary objective when construing a statute is to ascertain and give effect to the Legislature’s intent. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003); Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex.2000); Tex. Gov’t Code Ann. §§ 311.021, 311.023, 312.005 (Vernon 1998). In discerning that intent, we begin with the plain and common meaning of the statute’s words. McIntyre, 109 S.W.3d at 745. We must read the statute as a whole and not just isolated portions. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). If the statutory language is unambiguous, we must interpret it according to its terms, giving meaning to the language consistent with other provisions in the statute. See McIntyre, 109 S.W.3d at 745. We also consider the objective the law seeks to obtain and the consequences of a particular construction. Tex. Gov’t Code AnN. § 311.023(1), (5) (Vernon 1998); see also McIntyre, 109 S.W.3d at 745. When interpreting a statute, we are required to interpret an unambiguous statute literally, unless doing so would lead to an absurd result. See Griffith v. State, 116 S.W.3d 782, 785 (Tex.Crim.App.2003). Only when a literal reading of the statute leads to an absurd result will we resort to the use of extra-textual factors to determine legislative intent. Id. We presume that the Legislature would not do a useless act. Webb County Appraisal Dist. v. New Laredo Hotel, Inc., 792 S.W.2d 952, 954 (Tex.1990).

A court has no equitable power or discretion to extend the clear meaning of the expunction statute. Thomas v. State, 916 S.W.2d 540, 543 (Tex.App.-Waco 1995, no writ); Harris County Dist. Attorney’s Office v. M.G.G., 866 S.W.2d 796, 798 (Tex.App.-Houston [14th Dist.] 1993, no writ) (opin. on reh’g); Herron v. State, 821 S.W.2d 329, 330 (Tex.App.-Dallas 1991, no writ); Knight, 813 S.W.2d at 212. We remain mindful, however, that because the statute is remedial it is to be construed liberally. Arellano, 801 S.W.2d at 130.

3. The Trial Court Did Not Lack Jurisdiction Over the Expunction Proceeding

Bargas, on the face of his petition, was entitled to expunction of his criminal records under section 55.01(a)(1)(A) as it is currently written (which derives from the 1999 amendment). See Act of June 18, 1999, 76th Leg., R.S., ch. 1236, § 1, 1999 Tex. Gen. Laws 4279. As noted above, qualification for expunction under this section amounts to an entitlement to expunction. When article 55.01 was expanded by the Legislature in 1993 to extend the relief of expunction to those who had been acquitted (Act of June 19, 1993, R.S., ch. 900, § 7.02(a), 1993 Tex. Gen. Laws 3763), it was also made retroactive. Id. at § 7.02(b). We interpret that legislative intent to mean that this provision be liberally construed or broadly applied.

Bargas was denied expunction based upon his failure to comply with art. 55.02(1), which prescribes the procedural protocol for bringing a request for expunction to the trial court when a defendant has been acquitted. However, as we discussed above, 2003 amendments to Chapter 55 of the code of criminal procedure included changes that necessarily impact persons acquitted of a crime, and they now also fall within the parameters of article 55.02(2), as amended. The amendment eliminated the distinction in procedure which previously existed, depending upon whether the petitioner qualified for ex-punction under articles 55.01(a)(1)(A), 55.01(a)(1)(B), art. 55.01(b), or art. 55.01(d). See Act of June 20, 2003, 78th Leg., R.S., ch. 1236 §§ 1, 2, 2003 Tex. Gen. Laws 3499-3500. Further, this 2003 amendment was made to apply retroactively. Id. at § 6, 2003 Tex. Gen. Laws 3502.

Bargas’s petition was therefore impacted by this amendment which broadened the availability of relief under article 55.02(2) so that it now extends to persons who qualify for expunction under 55.01(a)(1)(A). A person who has been acquitted of a crime is also necessarily a person who was arrested. We conclude that article 55.02(2), as amended, does apply to Bargas, albeit by retroactive application of the law. We therefore construe this amendment to the statute to provide that Bargas was entitled to bring an ex parte petition for expunction in the court in which the offense was alleged to have occurred. Bargas is no longer limited to the single procedure set out in article 55.02(1), bringing the matter forward in the underlying criminal matter and resolving it within thirty days of acquittal. Therefore, any failure by Bargas to strictly adhere to the requirements of article 55.02(1) will not preclude him from the relief of expunction. This position is consistent with the basic rule that a procedure to request an expunction is a civil matter, and not a criminal one. It is further consistent with the legislative intent to make expunction broadly available to those who have been either acquitted, or wrongfully arrested.

We therefore determine that the trial court had jurisdiction to review and decide Bargas’s petition for expunction. We have already concluded that the petition was filed in a proper district court.

4. The Applicable Procedure and Legislative Intent

Article 55.02(1) sets forth a procedure by which a defendant who is acquitted is entitled to virtually automatic ex-punction. Certain prerequisites must be satisfied, including the provision of adequate information to the trial court. Article 55.02(1) requires that the trial court admonish the acquitted defendant of his right to expunction, and further that ex-punction be addressed and entered within thirty (30) days of the acquittal. The apparent legislative intent is that an acquitted defendant is entitled to have his record cleared as expeditiously as possible. The legislative amendments of this portion of the law have been directed to either expanding availability of expunction or to facilitating the procedure by which expunction may be obtained. We interpret the amendments of 1999, which incorporated the thirty day limitation, as an effort to expedite access to the remedy of expunction and not as an effort to narrow its availability. This interpretation is reinforced by the Legislature’s subsequent amendments in 2003.

We must next determine whether the retroactive amendment to article 55.02(2)(a), applying as it does to Bargas’s petition, provides for an alternative by which there is no requirement that ex-punction occur within thirty days of acquittal or the right to expunction is otherwise lost. The State argues that Bargas essentially “slumbered on his rights” in failing to make a timely request which would bar him from this relief.

We conclude that a petition for expunction under article 55.02(2)(a) has no thirty day time limit on the availability of this remedy.

At the hearing, the trial court inquired not only as to its jurisdiction to grant expunction, but also as to the applicability of article 55.02(2)(c). This provision (which has not been modified since the events in question) requires that a hearing be set on a petition for expunction no sooner than thirty days from the filing of the petition. Tex.Code CRim. PROC. Ann. art. 55.02(c) (Vernon Supp.2004-05). The record reflects that this provision may have been confused with that part of article 55.02(1) which calls for a hearing no later than thirty days from the date of acquittal. Tex.Code Crim. Proc. Ann. art. 55.02(1) (Vernon Supp.2004-05). All parties in this matter agree that proper notice was provided to all state agencies, and that the hearing did not occur sooner than thirty days from the filing of the petition.

VI. CONCLUSION

We conclude that the subsequent 2003 amendment to article 55.02 (Act of June 20, 2003, 78th Leg., ch. 1236, §§ 1, 2, 6, 2003 Tex. Gen. Laws 3499-3500) extended availability of the procedure identified in article 55.02(2) to individuals entitled to expunction under article 55.01(a)(1)(A). We further conclude that the 2003 amendment is to be applied retroactively. Id. at § 6, 2003 Tex. Gen. Laws 3502.

We therefore conclude that the trial court had jurisdiction to hear Bargas’s petition for expunction, and that the expunction was not barred by Bargas’s failure to either bring the matter forward in the underlying criminal matter, or to request and secure a hearing and ruling on the expunction within thirty days of the acquittal. We conclude that the error complained of “probably caused the rendition of an improper judgment” and is therefore reversible error. Tex.R.App. P. 44.1(a)(1). Because we reach this conclusion, we need not assess the impact of the trial court’s failure to properly admonish Bargas.

We reverse and remand.

      .On April 10, 2001, the City of Portland also filed a response and objection to the petition for expunction, alleging factual incorrectness for the same reason. The responses of the State and of the City of Portland, including all amended responses, were filed in the 156th Judicial District Court.

      . Both amended petitions erroneously carried the caption for the 343rd Judicial District Court.

      . The caption on the motion to transfer also erroneously reflects that the matter was then pending in the 343rd Judicial District Court.

      . Formerly Tex.Rbv.Civ. Stat. Ann. art. 2249.

      . The 1999 amendments, effective August 30, 1999, were not retroactive. See Act of June 18, 1999, 76th Leg., R.S., ch. 1236, § 5, 1999 Tex. Gen. Laws 4282.

      . The requirement for a hearing was eliminated by Act of June 20, 2003, 78th Leg., R.S., ch. 404, 2003 Tex. Gen. Laws 1652-53 (effective September 1, 2003).

      . The importance the Legislature attached to this particular statute is reflected in the language of the 1999 amendment: “The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the constitution rule requiring bills to be read on three several days in each house be suspended, and this rule is hereby suspended, and that this Act take effect and be in force from and after its passage and it is so enacted.” Act of June 18, 1999, 76th Leg., R.S., ch. 1236, § 7, 1999 Tex. Gen. Laws 4283.

      . The nearly contemporaneous act, which also modified article 55.02 did not make this same change. The two versions of article 55.02(2) now exist simultaneously. Chapter 339 was not made retroactive. See Act of June 18, 2003, 78th Leg., R.S., ch. 339, §§ 2, 3, 4, 2003 Tex. Gen. Laws 1490-91. We note further that an additional statute passed by the same Legislature modified 55.01(a)(1) by eliminating the requirement of a hearing. That statute also was not made retroactive. See Act of June 20, 2003, 78th Leg., ch. 404, 2003 Tex. Gen. Laws 1652-53.

      . Article 55.02(2)(c), prior to the retroactive amendments of 2003, did not apply to a person entitled to expunction of records filing under section 55.01(a)(1)(A). It applied to those individuals applying for expunction under articles 55.01(a)(1)(B), 55.01(a)(2), or 55.01(b).


author: Opinion by Justice ROSS.

text:
    In re Luis JARAMILLO.
    No. 06-05-00066-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted May 16, 2005.
    Decided May 17, 2005.
    Luis Jaramillo, New Boston, pro se.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Justice ROSS.

Luis Jaramillo, an inmate with the Texas Department of Criminal Justice, has filed a petition for writ of mandamus asking us to order the Honorable Jeff Addison, Judge of the County Court at Law of Bowie County, to conduct a hearing pursuant to Rule 145 of the Texas Rules of Civil Procedure regarding Jaramillo’s affidavit of indigency.

Jaramillo appears to have filed a lawsuit December 29, 2004, in the County Court at Law, alleging the conversion of his personal property. According to the petition for writ of mandamus filed with this Court, Jaramillo also filed an “Application To Proceed in Forma Pauperis” with the trial court. The trial court issued an order April 5, 2005, denying Jaramillo’s “Application To Proceed in Forma Pauperis.” The trial court further ordered Jaramillo to pay court costs associated with the case by October 1, 2005.

We asked for the trial court to file a response to Jaramillo’s petition for writ of mandamus. The trial court has now informed us that it vacated the order denying Jaramillo’s application to proceed as an indigent. The trial court also, however, dismissed Jaramillo’s case, without prejudice, for want of jurisdiction. The trial court did so after determining the value of damages being sought in Jaramillo’s petition was $120.00, an amount that is below the $500.00 minimum threshold for civil cases filed in a statutory county court. See Tex. Gov’t Code Ann. § 25.003(c)(1) (Vernon 2004).

Because the trial court has vacated the disputed order, and because there is no longer a case or controversy related to the underlying petition for writ of mandamus, we dismiss Jaramillo’s petition as moot.


author: J. HARVEY HUDSON, Justice.

text:
    David HARRIS, Appellant v. The STATE of Texas, Appellee.
    No. 14-03-01376-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 17, 2005.

      James M. Leitner, Houston, for appellants.
    William J. Delmore, III, Houston, for appellees.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.
   OPINION

J. HARVEY HUDSON, Justice.

Appellant, David Harris, appeals his conviction for burglary and his sentence of fifteen years’ incarceration in the Texas Department of Criminal Justice, Institutional Division. On appeal, appellant claims (1) he was prosecuted and punished in violation of the Double Jeopardy Clause, (2) the trial court erred in denying his motion for a mistrial when the jury was told he previously had been in jail, and (3) the evidence is legally and factually insufficient to support his conviction. We affirm.

The record reflects the complainant, Chanta Flaniken, and appellant had two small children. While there is a dispute regarding whether they enjoyed a common law marriage, it is undisputed they were estranged at the time of the offense. Accordingly, Flaniken lived in an apartment; appellant lived in a house with his grandmother.

On April 18, 2003, Flaniken telephoned appellant and asked if he would “watch the kids” while she went “out” for the evening. Appellant agreed. Flaniken subsequently dropped off the children at appellant’s residence. During the course of the evening, however, appellant began repeatedly calling Flaniken on her cell phone. Appellant also left messages threatening to beat Flaniken if she got home after 1:00 a.m. Flaniken did not return home until well after 1:00 a.m.

At approximately 7:30 a.m., appellant called Flaniken at her apartment and informed her he was coming over. Although Flaniken told him not to come, appellant, nonetheless, arrived outside her apartment a short time later. Appellant started beating on the front door, demanding that Flaniken let him in. Flaniken told appellant she was not going to let him in and went upstairs to her bedroom. Flaniken then “heard the door like it got busted open.” Appellant ran upstairs to Flaniken’s bedroom. Flaniken attempted to call the police, but appellant snatched the phone from her. Appellant then pushed Flaniken on the bed and said he was going to get a knife.

Flaniken fled down the stairs ahead of appellant, grabbed a knife, and threw it under the stove or couch where appellant could not get it. Flaniken told appellant to leave, but he would not. Appellant then punched her in the shoulder, pushed her on to the couch, and then started choking her.

Officer Antonio Boutte of the Houston Police Department responded to the dispatcher’s call of a burglary in progress at Flaniken’s apartment. Officer Boutte approached the back door of the apartment, and looking through a window, saw appellant in the act of choking Flaniken. When Officer Bouttee yelled, “Police Department,” appellant released Flaniken.

At approximately the same moment, Officer Rodney Jaime of the Houston Police Department was approaching the front door of Flaniken’s apartment. Officer Jaime heard what sounded like a struggle and someone screaming inside the apartment. Appellant then opened the front door as if to flee, but when he saw Officer Jaime, he ran back inside.

After appellant was placed in custody, Officer Jaime observed that the interior door frame of the front door was on the floor, which indicated the door had been kicked in. Officer Jaime related that in such circumstances, “The latch usually stays. The door frame usually breaks.”

Flaniken told the police appellant had choked her. Officer Bouttee observed that the area around Flaniken’s neck was “reddish” and her clothes were “messed up.”

Double Jeopardy

In his first point of error, appellant contends the trial court committed reversible error in overruling his plea in bar because he “had already been prosecuted and punished for the same conduct under a separate contempt order regarding the same conduct, in violation of [his] federal constitutional right against double jeopardy.” (Emphasis added). Appellant then alleges in the body of his appellate brief that he was subjected to double jeopardy because he “had been previously prosecuted for a violation of a family court protective order for the same conduct under which the appellant was ... prosecuted.” (Emphasis added). Citing Ex parte Rhodes as authority, appellant presents his supplication for an acquittal stating that his “plea in bar reflected that a copy of the family court’s contempt order was attached to the plea,” but was missing from the appellate record. 974 S.W.2d 735 (Tex.Crim.App. 1998) (emphasis added). Accordingly, this court abated the appeal on August 19, 2004, and ordered the district clerk to supplement the record with the missing documentation.

It has been said there “is nothing more horrible than the murder of a beautiful theory by a brutal gang of facts.” Here, the appellate record (as supplemented by the district clerk) offers absolutely no hint of support for appellant’s contention. Appellant was never prosecuted for violating a protective order, never held in contempt, and never punished for violating a protective order. In short, the factual representations in appellant’s brief are entirely specious. Moreover, the complaint on appeal is a gross exaggeration and amplification of the argument presented to the trial court. At trial, appellant argued that the mere imposition of a protective order (not a violation of a protective order) is sufficient to constitute punishment particularly where attorney fees and costs have been imposed against him. We might well, at this point, overrule appellant’s first point of error because (1) it does not comport with the objection made at trial and (2) is entirely unsupported by the record. See In re D.T.C., 30 S.W.3d 43, 48 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (holding an objection at trial not comporting with complaint on appeal does not preserve error for appellate review); Wyatt v. State, 836 S.W.2d 334, 335 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd) (holding mere assertions in appellant’s brief, unsupported by record, present nothing for review). In the interest of justice, however, we will consider the much more modest (and factually accurate) argument presented to the trial court as if it had been properly presented for appellate review.

The record reflects the burglary of Flaniken’s apartment occurred on April 19, 2003, and appellant was subsequently charged by indictment on May 20, 2003. The burglary cause of action was assigned to the 337th District Court. In the meantime, Flaniken apparently applied for a protective order in the 246th District Court. On May 21, 2003, a hearing was conducted on Flaniken’s application for a protective order, and after considering the pleadings and evidence, the 246th District Court found “that family violence has occurred and that family violence is likely to occur again in the future.” Accordingly, the 246th District Court issued a protective order instructing appellant not to (1) commit further violence against Flaniken, (2) communicate directly with her, (3) communicate a threat to Flaniken via any person, or (4) go near her residence or place of employment. The court further ordered appellant to reimburse the prosecuting attorney $300 as reasonable and necessary attorney fees, pay the district clerk $61 for filing fees and costs of service, and also to pay the clerk for unspecified court costs, charges, and expenses incurred in connection with the protective order.

Thereafter, on August 11, 2003, appellant filed a special plea of double jeopardy in the 337th District Court in which he alleged that he already had been punished for the burglary of Flaniken’s apartment in the 246th District Court when that court (1)assessed attorney’s fees of $300.00 against him, (2) ordered him to reimburse Harris County the sum of $61.00 for filing fees, and (3) ordered him to pay the unspecified amount of all costs, fees, charges or expenses incurred in connection with the protective order. The 337th District Court denied appellant’s double jeopardy plea.

The Double Jeopardy Clause of the Fifth Amendment to the United States. Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy for life or limb.” U.S. Const. amend. V. The Double Jeopardy Clause protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 768 n. 1, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994).

A protective order is in the nature of a civil injunction. See Tex. Fam.Code Ann. § 88.002(5) (Vernon 2002). The applicant for a protective order must allege that the respondent has committed an act of family violence. Tex. Fam.Code Ann. § 82.004 (Vernon 2002). The application must then be served upon the respondent in the same manner as citation under the Texas Rules of Civil Procedure. Tex. Fam.Code Ann. § 82.043 (Vernon 2002). The respondent may, but is not required to, file an answer. Tex. Fam.Code Ann. § 82.021 (Vernon 2002). If, after a hearing, the court finds the respondent committed family violence, it may require the respondent to (1) complete a battering intervention and prevention program, (2) counsel with a social worker, family service agency, physician, psychologist, licensed therapist, or licensed professional counselor, or (3) perform acts necessary or appropriate to prevent or. reduce the likelihood of family violence (e.g., refrain from committing further acts of violence, communicating with the applicant, going near the applicant’s residence, etc.). Tex. Fam.Code Ann. § 85.022 (Vernon 2002). The purpose of a protective order is “to prevent an individual from engaging in [further] violent or threatening acts against, harassing, contacting or communicating with, or being in physical proximity to another individual.” Tex. Fam.Code Ann. § 88.002(5). As is common in many civil proceedings, the court may assess reasonable attorney fees against the party found to have committed family violence. Tex. Fam.Code Ann. § 81.005 (Vernon 2002).

Here, the record is silent as to what incident formed the basis for the issuance of the protective order. Flaniken testified in the criminal trial that appellant previously had choked and hit her, and that he had broken her door on two other occasions. Moreover, Flaniken’s application for a protective order was not introduced in the trial court and is not in the appellate record. Thus, it is possible the protective order was issued on some basis other than the April 19, 2003 incident. Accordingly, appellant has not shown that the conduct forming the basis for the protective order is the same conduct underlying the instant criminal prosecution.

However, even if it had been established that Flaniken obtained a protective order on the basis of appellant’s April 19, 2003 burglary and assault, no jeopardy would attach to prevent appellant’s criminal prosecution.

In support of his argument, appellant relies on Ex parte Rhodes, 974 S.W.2d 735 (Tex.Crim.App.1998). We do not find Rhodes applicable to the facts in the case at bar. In a divorce proceeding, the trial court entered a decree ordering that the parties’ child reside in Harris County, and enjoining either party from changing the child’s residence without prior court approval. Id. at 736. In violation of that order, the defendant removed his child to Malaysia and Singapore. Id. The defendant was arrested after returning to the United States and charged with interference with child custody. Id. Prior to his arrest, the defendant’s wife had instituted proceedings to have him found in contempt of court for violating the custody order. Id. at 736-37. The court found the defendant was in contempt of court for violating the custody order, assessed as punishment a $100 fine and $2500 in legal fees, and required the defendant to post a $2500 bond to ensure future compliance with the custody order. Id. at 737. The Texas Court of Criminal Appeals held that because the defendant already had been prosecuted for contempt of court, his subsequent prosecution for interference with child custody was barred by the double jeopardy clause. Id. at 742.

Here, appellant contends that he “had already been prosecuted and punished for the same conduct under a separate contempt order regarding the same conduct.” However, unlike Rhodes, there is nothing in the record to suggest that there was any “contempt” action against appellant concerning the same conduct as in the current prosecution for burglary. See Harren v. State, No. 03-99-00752-CR, 2000 WL 766263, at *2 (Tex.App.-Austin June 15, 2000, no pet.) (not designated for publication) (stating that issuance of protective order following act of family violence is not akin to conviction for criminal contempt for violating court order). Instead, after the occurrence of the burglary on April 19, 2003, the trial court granted Flaniken’s request for a protective order against appellant; therefore, appellant’s conduct on April 19, 2003, could not have violated a contempt order which had not yet been entered and the subsequent prosecution for burglary is not barred by a prior conviction for the same offense.

The El Paso Court of Appeals has considered the issue of whether the entry of a protective order constitutes punishment for double jeopardy purposes. Ex parte Chairez, No. 08-00-00083, 2001 WL 63033, at *3 (Tex.App.-El Paso January 25, 2001, no pet.) (not designated for publication). In Chairez, the court first observed that if a civil sanction or remedy imposed on a person does not constitute “punishment,” then a subsequent criminal prosecution of that person arising out of the same situation, circumstances, or conduct does not implicate or violate protections against double jeopardy. Id. at *2. The Chairez court also explained that the primary purpose of the Family Code authorizing the entry of a protective order is to prevent domestic violence and protect the victims of domestic violence, not to punish the offenders. Id. This same policy was addressed in the Texas Code of Criminal Procedure. Id. at *3. Thus, the Chairez court determined that the entry of a protective order does not constitute punishment for double jeopardy purposes. Id.

The Austin Court of Appeals similarly held the primary purpose of a protective order is to protect against future acts of family violence. Harren, 2000 WL 766263, at *2. Therefore, such proceeding issuing the protective order is not the equivalent of prosecution and the protective order is not punishment. Id.

The Double Jeopardy Clause of the Fifth Amendment protects against multiple punishments for the “same offense.” State v. Houth, 845 S.W.2d 853, 856 (Tex.Crim.App.1992). It also protects against successive prosecutions for the “same offense” following acquittal or conviction. Id. While the imposition of a protective order is always in response to an act or threat of violence, it can hardly be said that the order is either a “prosecution” or a “punishment” for that act or threat of violence. Certainly, the Legislature never intended a protective order to constitute a “prosecution” or a “punishment.” In fact, it has authorized the issuance of a protective order and the subsequent criminal prosecution for the same underlying conduct. Chairez, 2001 WL 63033, at *4-5.

Assuming arguendo the entry of the protective order here was based on the same conduct underlying the instant criminal prosecution, we find the prosecution of the criminal charge is not barred by double jeopardy.

Motion FOR MistRial

In his second point of error, appellant claims the trial court erred in refusing to grant a mistrial after the jury heard he previously had been in jail in violation of his right to a fair and impartial jury trial. We review the trial court’s decision to deny a mistrial for an abuse of discretion. Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App.2004).

During the State’s examination, Flaniken testified:

Q. How long did you-all date?
A. On and off, about five years.
Q. And have you since ended that relationship?
A. Yes.
Q. How long ago did you end your relationship with him?
A. Since the last time [appellant] got out of jail. Like he got out in 2000— MR. LEITNER: Your Honor, I object to that.
THE COURT: Sustained.
MR. LEITNER: I ask the jury be instructed to disregard.
THE COURT: The jury will disregard the last comment.
MR. LEITNER: And I move for a mistrial.
THE COURT: Overruled.

Testimony that refers to or implies extraneous offenses can be rendered harmless by an instruction to disregard by the trial court, unless the evidence was so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury’s mind. Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App.1992). Flaniken’s response was not responsive to the prosecutor’s question. Rather than merely state that their relationship ended in 2000, Flan-iken added that it had ended “[sjince the last time [appellant] got out of jail. Like in 2000 — .” However, her testimony was not embellished in any manner. We do not find that this uninvited and unembell-ished reference to appellant’s incarceration was so inflammatory as to undermine the efficacy of the trial court’s instruction to disregard to the jury. See Id. (finding witness’ testimony, “this caller also provided information that she had a son ... who had recently been released from the penitentiary,” was not so inflammatory as to undermine efficacy of trial court’s instruction to disregard); Gardner v. State, 730 S.W.2d 675, 697 (Tex.Crim.App.1987) (finding witness’ testimony, “[the defendant] told me that even when he was in the penitentiary, that he had stomach problems,” was not so inflammatory as to undermine efficacy of trial court’s instruction to disregard); Hughes v. State, 962 S.W.2d 89, 92 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (finding witness’ testimony, “when [the defendant] got out of jail ...” was not calculated to inflame minds of jury and instruction to disregard was sufficient to cure any harm).

Furthermore, another reference to appellant’s prior incarceration was made during cross-examination. Flaniken testified in response to defense counsel’s questioning:

Q. From the very beginning what was y’all’s relationship like?
A. Off and on, because he’s been in and out of jail.

Appellant did not object to this testimony. “ ‘[Ifeadmissible evidence can be rendered harmless if other evidence is admitted at trial without objection and it proves the same fact that the inadmissible evidence sought to prove.’” Mayes v. State, 816 S.W.2d 79, 88 (Tex.Crim.App.1991) (quoting Anderson v. State, 717 S.W.2d 622, 628 (Tex.Crim.App.1986)). We conclude the trial court did not abuse its discretion in denying appellant’s motion for a mistrial, and even if the trial court had abused its discretion, the subsequent admission of the same evidence rendered any error harmless. Appellant’s second point of error is overruled.

Legal and Factual Sufficiency of the Evidence

In his third through eighth points of error, appellant claims the evidence is not legally and factually sufficient to support his conviction for burglary because the State failed to prove that (1) he committed assault or attempted assault, (2) Flaniken had no greater right to possession of the apartment than he did, and (3) he entered the apartment without the effective consent of Flaniken.

When reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App.1999). In conducting this review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993).

When reviewing the factual sufficiency of the evidence, we need answer only one question: Considering all of the evidence in a neutral light, was the trier of fact rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). There are two ways in which the evidence may be insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be evidence both supporting, and contrary to, the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met and the guilty verdict should not stand. Id. at 485.

It is within the province of the trier of fact to resolve any conflicts and inconsistencies in the evidence. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.Crim.App.1995). The trier of fact is free to believe or disbelieve part or all of a witness’ testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex.Crim.App.1998).

In his third and fourth points of error, appellant contends the evidence is legally and factually insufficient to support his conviction because the State failed to prove that he committed assault or attempted assault. With regard to the offense of burglary, the Texas Penal Code provides that

(a) A person commits the offense of burglary if, without the effective consent of the owner, the person:
(3) enters a building or habitation and commits or attempts to commit a felony, theft or assault.

Tex. Pen.Code Ann. § 30.02(a)(3) (Vernon 2003). A person commits the offense of assault when he (1) intentionally, knowingly, or recklessly causes bodily injury to another, or (2) intentionally, or knowingly threatens to cause imminent bodily injury to another. Tex. Pen.Code Ann. § 22.01(a)(1) and (2) (Vernon Supp.2004-05).

Appellant argues that although Flaniken testified that he threatened to get a knife and later pushed her around and Officer Boutte testified that he saw appellant place Flaniken in a choke hold, there was no testimony that Flaniken understood his statement to be an imminent threat of harm. Flaniken testified that appellant had left messages on her cell phone, stating that he was going to beat her, had started beating on her door, came into her apartment after she heard the door “busted open,” snatched the phone from her as she was attempting to call the police, stated he was going to get a knife, punched her in the shoulder, pushed her on the couch, and started choking her. Officer Boutte testified that when he arrived, he observed appellant with Flaniken in a choke hold and after appellant had been arrested, he observed Flaniken “crying hysterically.” Appellant testified that he did not threaten Flaniken with a knife or otherwise. He claimed he pushed her away when she came up to him “hollering” about the door he had broken open.

Given all the circumstances surrounding appellant’s actions, we find the evidence supports a determination beyond a reasonable doubt that Flaniken understood appellant’s statement to be a threat of imminent harm. When viewed neutrally, the evidence is not so obviously weak as to render the verdict clearly wrong or so greatly outweighed by contrary proof as to indicate manifest injustice.

Appellant also claims there was no showing that any contact between him and Flaniken resulted in bodily injury to her because Flaniken’s injuries were minor and she did not require medical attention. Bodily injury means physical pain, illness, or any impairment of physical condition. Tex. Pen.Code Ann. § 1.07(a)(8) (Vernon Supp.2004-05). Flaniken testified that appellant punched her on the shoulder, pushed her on the couch, and started choking her. Officer Boutte testified that he saw appellant with Flaniken in a choke hold and later observed reddish marks around Flaniken’s neck. Appellant testified that after he pushed Flaniken, she showed him a scratch she had sustained. Photographs showing a scratch sustained by Flaniken on her collarbone were admitted into evidence.

When viewed in the light most favorable to the verdict, we find the evidence supports a determination beyond a reasonable doubt that appellant intentionally and knowingly caused bodily injury to Flaniken. When viewed neutrally, the evidence is not so obviously weak as to render the verdict clearly wrong or so greatly outweighed by contrary proof as to indicate manifest injustice. Appellant’s third and fourth points of error are overruled.

In his fifth and sixth points of error, appellant asserts the evidence is legally and factually insufficient to support his conviction for burglary because the State failed to prove that Flaniken had a greater right to possession of the apartment than he did. “Owner” means a person who “has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.” Tex. Pen.Code Ann. § 1.07(a)(35)(A).

Appellant admits that the trial record shows that Flaniken resided alone at the apartment on Gillette Street and, consequently, had possession of the apartment, and that the lease agreement signed by Flaniken did not include his name. Appellant testified that he resided at his grandmother’s house on Webster Street, that his driver’s license reflects his residence was his grandmother’s house on Webster Street, and that he did not have keys to Flanikeris apartment.

Appellant, however, claims he and Flan-iken were husband and wife at the time of the incident, that during April 2003, he and Flaniken were “together every day,” and that he helped Flaniken with the bills. Appellant argues that under these circumstances, the record established a community property basis for possession of the apartment.

Flaniken testified that appellant held himself out as her husband after they had children. When appellant did this, Flaniken did not correct him. Flaniken, however, testified they never lived together in the same household and the longest they stayed together was two nights. Appellant had no belongings at her apartment. The jury was not instructed in the charge to determine whether a common law marriage between appellant and Flaniken existed. However, even if a common law marriage existed between appellant and Flaniken, such marriage did not diminish in any way Flaniken’s greater right to possession of the apartment. See Gomez v. State, 905 S.W.2d 735, 741 (Tex.App.-Houston [14th Dist.] 1995), aff'd on other grounds, 962 S.W.2d 572 (Tex.Crim.App.1998) (stating marital relationship does not authorize spouse to enter estranged spouse’s residence).

We find the evidence, when viewed in the light most favorable to the verdict, supports a determination beyond a reasonable doubt that Flaniken had a greater right to possession of the apartment than appellant. When viewed neutrally, the evidence is not so obviously weak as to render the verdict clearly wrong or so greatly outweighed by contrary proof as to indicate manifest injustice. Appellant’s fifth and sixth points of error are overruled.

In his seventh and eighth points of error, appellant claims the evidence is legally and factually insufficient to support his conviction for burglary because the State failed to prove he entered the apartment without Flaniken’s effective consent. The charge defined “effective consent” as “assent in fact, whether express or apparent, and includes consent by a person legally authorized to act for the owner. Consent is not effective if induced by force, threat, deception or fraud.” See Tex. Penal Code Ann. § 1.07(a)(ll) and (19).

Appellant argues Flaniken’s testimony that she did not want him to enter the apartment on April 19, 2003, does not end the inquiry. Appellant states that he had spent the night with Flaniken in the apartment a few days before the alleged offense, he had been in the apartment on numerous other occasions, and he and Flaniken had an ongoing relationship.

In addition to Flaniken’s testimony that she did not want appellant to enter her apartment, appellant admitted that when Flaniken refused to unchain the door, he broke the chain on the door and pushed it open. Moreover, there is evidence that appellant actually kicked in the door. After Flaniken told appellant he could not come into the apartment and had returned upstairs, she heard the door “busted open.” Officer Jaime testified the front door frame was on floor, indicating that the door had been kicked in. Appellant denies kicking in the door, instead, asserting the police were responsible for kicking in the door.

We hold the evidence, when viewed in the light most favorable to the verdict, supports a determination beyond a reasonable doubt that appellant entered Flaniken’s apartment without her effective consent. When viewed neutrally, the evidence is not so obviously weak as to render the verdict clearly wrong or so greatly outweighed by contrary proof as to indicate manifest injustice. Appellant’s seventh and eighth points of error are overruled.

Accordingly, the judgment of the trial court is affirmed.

      . Francois La Rochefoucauld [1747-1827]— David S. Shrager and Elizabeth Frost, The Quotable Lawyer 109 (1986).

      . We note, in passing, that even if appellant's assertions of fact had been supported by the record, he would not be entitled to relief. Because the elements of contempt (or the violation of a protective order) are distinctly different from burglary of a habitation, punishment for one does not bar prosecution and punishment for the other. See Ex parte Arenivas, 6 S.W.3d 631, 635-36 (Tex.App.-El Paso 1999, no pet.) (holding elements of criminal contempt for violating protective order were different from elements for injury to child and, thus, punishment for contempt did not bar prosecution for injury to a child).

      .In a county with a population of more than 1.5 million, the district court is, in most cases, required to set the hearing date not later than 20 days after the application is filed. See Tex. Fam.Code Ann. § 84.02 (Vernon 2002).

      . The federal provision is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 795-96, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

      . Citing Ex parte Tharp, 935 S.W.2d 157, 159-61 (Tex.Crim.App.1996) (holding that administrative license suspension did not constitute punishment and, therefore, did not implicate protections against double jeopardy in regard to subsequent prosecution for DWI); Fant v. State, 931 S.W.2d 299, 308-09 (Tex.Crim.App. 1996) (holding that Texas' civil asset-forfeiture scheme did not constitute punishment and, therefore, did not implicate protections against double jeopardy in regard to subsequent prosecution for offense underlying asset forfeiture); Ex parte Sheridan, 974 S.W.2d 129, 131-34 (Tex.App.-San Antonio 1998, pet. ref’d) (holding that cancellation of defendant’s alcoholic beverage license because he lied on his application did not constitute punishment and, therefore, did not bar his subsequent prosecution for making false statements on his application).

      . See Tex.Code Crim. Proc. Ann. art. 5.01(a) (Vernon Supp.2004-05) ("Victims of family violence are entitled to the maximum protection from harm or abuse or the threat of harm or abuse as is permitted by law.”); Id. at 5.01(b) ("In any law enforcement, prosecuto-rial, or judicial response to allegations of family violence, the responding law enforcement or judicial officers shall protect the victim, without regard to the relationship between the alleged offender and victim.”).

      . Citing Tharp, 935 S.W.2d at 161 (holding an administrative driver’s license suspension for failing intoxication test is remedial rather than punitive, and does not bar prosecution for driving while intoxicated).

      . Compare Xex.Crim.Code Proc. Ann. art. 5.06(a)(1) (providing that neither the prosecuting attorney nor the court may "dismiss or delay any criminal proceeding that involves a prosecution for an offense that constitutes family violence because a civil proceeding is pending or not pending;”), and art. 5.06(b) ("A prosecuting attorney's decision to file an application for a protective order under Chapter 71, Family Code, should be made without regard to whether a criminal complaint has been filed by the applicant.”), with Tex. FamCode Ann. § 81.008 (Vernon 2002) (providing "relief and remedies provided by this substitle are cumulative of other relief and remedies provided by law”).

      . To find that a common law marriage exists in Texas, the following elements must be established: (1) an agreement to be married; (2) living together in Texas as husband and wife subsequent to the agreement to be married; and (3) representing to others in Texas that they were married. Tex Fam.Code Ann. § 2.401(a)(2) (Vernon 1998).


author: PER CURIAM.

text:
    In re EL PASO COUNTY COMMISSIONERS COURT, Relator.
    No. 08-05-00151-CV.
    Court of Appeals of Texas, El Paso.
    May 17, 2005.
    Jose R. Rodriguez, County Atty., El Paso, for Relator.
    Gonzalo Garcia, El Paso, pro se.
    Robin Collins, Ray, McChristian & Jeans, El Paso, for 210th Dist. Court.
    Before Panel No. 5 BARAJAS, C.J., McCLURE, and PARKS, JJ. PARKS, J., sitting by assignment.
   OPINION ON MOTION TO ENFORCE STAY

PER CURIAM.

On March 30, 2005, the El Paso County Commissioners Court filed a petition for writ of mandamus asserting that an order (dated March 9, 2005) entered by Respondent, the Honorable Gonzalo Garcia, Judge of the 210th District Court of El Paso County is void. The Commissioners Court also filed a motion for emergency relief seeking a stay of all proceedings in cause number 2005-1688, styled In re El Paso County Commissioners Court and Courthouse Expansion. The motion specifically requested that all orders entered in the case be stayed until the writ of mandamus is resolved by this Court. We granted that motion on March 31, 2005 pursuant to Tex.R.App.P. 52.10, and we expressly stayed all proceedings in the case.

Despite our order staying the March 9, 2005 order and all proceedings, Respondent issued three new orders in the case below on May 13, 2005:

1. an order requiring the county auditor to pay from the El Paso County Treasury an attorney invoice submitted by Robin Collins in the amount of $6,426.43 for expenses and legal services rendered between January 9, 2005 and March 31, 2005;
2. an order requiring the county auditor to pay an invoice submitted by Robin Collins for reimbursement of a subpoena fee; and
3. an order renewing Respondent’s previous orders prohibiting the Commissioners Court from expending or encumbering any funds from sources identified in the March 9, 2005 order.

The orders issued by Respondent are in direct violation of this Court’s stay order, and therefore are void. See In re Andres Martinez, 77 S.W.3d 462, 464 (Tex.App.-Corpus Christi 2002, orig. proceeding). Accordingly, we grant the motion to enforce the stay order. The three orders identified above are hereby set aside as void.

Further, we expressly order Respondent to not take any further action or enter any orders in cause number 2005-1688 (also referred to in Respondent’s orders as cause number 05-210-1688, 210DC-05-CTHSE), except on motion filed with this Court and on notice to the El Paso County Commissioners Court. This order will remain in effect until further order of this Court or until the original proceeding is decided.