in-the-matter-of-the-marriage-of-lori-anne-tieri-and-adolfo-giovanni-tieri ( 2008 )


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  •                     In The
    Court of Appeals
    Sixth Appellate District of Texas at Texarkana
    ______________________________
    No. 06-07-00125-CV
    ______________________________
    EX PARTE:
    GARY LYNN ROBINSON
    On Appeal from the 402nd Judicial District Court
    Wood County, Texas
    Trial Court No. 14,710-96
    Before Morriss, C.J., Carter and Moseley, JJ.
    Memorandum Opinion by Justice Carter
    MEMORANDUM OPINION
    Gary Lynn Robinson was convicted of aggravated assault January 29, 1997. The original
    judgment sentenced Robinson to twenty years' imprisonment, contained an affirmative finding that
    a deadly weapon was used in the commission of the offense, and ordered Robinson to pay
    $138,658.85 in restitution. Robinson did not timely appeal this judgment. The Texas Court of
    Criminal Appeals granted relief on Robinson's application for writ of habeas corpus and awarded
    him an out-of-time appeal. See Ex parte Robinson, No. AP-75,155 (Tex. Crim. App. Apr. 27, 2005)
    (not designated for publication). On appeal, this Court reformed the judgment of the trial court to
    delete the deadly weapon finding and affirmed the judgment as modified. Robinson v. State,
    No. 06-05-00129-CR, 2006 Tex. App. LEXIS 538 (Tex. App.—Texarkana Jan. 24, 2006, no pet.)
    (mem. op., not designated for publication). Robinson did not complain about the restitution on direct
    appeal.1
    On August 15, 2007, Robinson filed a document entitled "Petition for Expunction of
    Records" in which he requested the trial court to "delete, correct, and notify" numerous entities that
    the affirmative deadly weapon finding had been deleted.2 The trial court dismissed the petition for
    "failing to assert any ground for relief" and "as frivolous" August 20, 2007. On September 4, 2007,
    1
    We take judicial notice of our file in cause number 06-05-00129-CR.
    2
    We note that the mandate of this Court reforming the judgment of conviction and deleting
    the deadly weapon finding has been issued. We further note the record contains a judgment nunc
    pro tunc, dated May 3, 2006, which deletes the deadly weapon finding.
    2
    Robinson filed another document entitled "Petition for Expunction of Records" with identical
    allegations. The trial court denied the second petition September 6, 2007. On appeal, Robinson
    complains the restitution was improperly added to the judgment in violation of the plea agreement
    and without notice or opportunity to defend.
    First, Robinson did not complain to the trial court about the restitution in either document
    titled "Petition for Expunction of Records." Robinson has failed to preserve any error concerning
    restitution for appellate review. See TEX . R. APP . P. 33.1.
    Second, to the extent Robinson's complaints could be considered an application for a writ of
    habeas corpus, this Court has no original habeas corpus jurisdiction in post-conviction criminal
    matters. See TEX . GOV 'T CODE ANN . § 22.221 (Vernon 2004); Dodson v. State, 
    988 S.W.2d 833
    ,
    835 (Tex. App.—San Antonio 1999, no pet.). We note, while the appeal in this case was pending,
    Robinson filed an application for a writ of habeas corpus with the Texas Court of Criminal Appeals
    alleging identical claims as those presented in this case. The Texas Court of Criminal Appeals has
    recently denied relief—concluding Robinson could have raised these claims on direct appeal but
    failed to do so. See Ex parte Robinson, No. WR-40,449-08 (Tex. Crim. App. June 18, 2008) (not
    designated for publication).
    Last, as noted by the trial court, Robinson fails to provide any grounds for the expunction of
    his conviction. Chapter 55 of the Texas Code of Criminal Procedure sets out the situations in which
    a person is entitled to expunction. TEX . CODE CRIM . PROC. ANN . ch. 55 (Vernon 2006 & Supp.
    3
    2007). Because Robinson has not met the requirements of the statute, the trial court did not err in
    refusing to order an expunction.
    For the reasons stated, we affirm.
    Jack Carter
    Justice
    Date Submitted:       June 17, 2008
    Date Decided:         June 25, 2008
    4
    

Document Info

Docket Number: 06-08-00037-CV

Filed Date: 6/25/2008

Precedential Status: Precedential

Modified Date: 2/1/2016