Daniel Lee Schinzing v. State

IN THE TENTH COURT OF APPEALS No. 10-06-00148-CR No. 10-06-00149-CR Daniel Lee Schinzing, Appellant v. The State of Texas, Appellee From the County Court at Law No. 1 Johnson County, Texas Trial Court Nos T200501480 and T200501481 MEMORANDUM Opinion Daniel Lee Schinzing was convicted in municipal court of two charges of failure to appear. See Tex. Pen. Code Ann. § 38.10(a), (e) (Vernon 2003). He appealed to the statutory county court where he was again convicted following a trial de novo before the court. The court assessed Schinzing’s punishment at a $100 fine in each case. Schinzing claims in his sole issue in each appeal that these convictions are improper because he was not charged by indictment or information. Article 4.03 of the Code of Criminal Procedure provides in pertinent part that this Court does not have jurisdiction in such a case if the fine imposed by the statutory county court “does not exceed one hundred dollars, unless the sole issue is the constitutionality of the statute or ordinance on which the conviction is based.” Tex. Code Crim. Proc. Ann. art. 4.03 (Vernon 2005). The fines imposed in these cases do not exceed $100 and Schinzing is not challenging the constitutionality of section 38.10 of the Penal Code, on which his convictions are based. Therefore, we dismiss these appeals for want of jurisdiction.[1] See Preston v. State, 145 S.W.3d 683, 684 (Tex. App.—Corpus Christi 2004, no pet.); Boyd v. State, 11 S.W.3d 324, 325 (Tex. App.—Houston [14th Dist.] 1999, no pet.). PER CURIAM Before Chief Justice Gray, Justice Vance, and Justice Reyna Appeals dismissed Opinion delivered and filed May 2, 2007 Do not publish [CR25] [1] Schinzing’s appeals in cause nos. 10-06-146-CR and 10-06-147-CR remain pending because the fines in those cases exceed $100. issues: (1) the district court erred in denying his petition for expunction; (2) the district court erred in holding an ex-parte hearing on his petition for expunction; (3) he was given ineffective assistance of counsel; (4) the district court erred in allowing petitioner to proceed pro se; (5) the district court erred in ruling on his petition for expunction rather than his “Petition for Writ of Error Coram Nobis.” Because Fox only perfected an appeal of the February 28, 1998 order, we only address the issues arising out of that hearing. Therefore, we address only the issues one, three, and four.DISCUSSION Fox first argues that the trial court erred in denying his petition for expunction. “The right to expunction is neither a constitutional nor common-law right, but rather a statutory privilege.” In re Wilson, 932 S.W.2d 263, 265 (Tex. App.—El Paso 1996, no writ). Expunction is a civil proceeding in which the petitioner bears the burden of proof on all statutory conditions of expunction. See id at 266; Ex parte Scott, 818 S.W.2d 226, 227 (Tex. App.—Corpus Christi 1991, no writ). At the hearing on his petition for expunction, Fox did not proffer any evidence. Therefore, Fox failed to meet his burden of proof under the expunction statute. Consequently, we affirm the court in its denial of Fox’s petition for expunction. Fox next argues that he was denied effective assistance of counsel at the expunction hearing. The Sixth Amendment to the United States Constitution states that, “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence [sic].” U.S. Const. amend. VI. However, this right to counsel does not apply to civil actions unless a party may be deprived of his liberty as a result of such proceeding. See Ex parte Gonzales, 945 S.W.2d 830, 836 (Tex. Crim. App. 1997)(“We also note that ‘the right to counsel turns on whether deprivation of liberty may result from a proceeding, not upon its characterization as “criminal” or “civil.”’” (quoting Ex parte Strickland, 724 S.W.2d 132, 134 (Tex. App.—Eastland 1987, no writ)). Since an expunction proceeding is not a proceeding which could result in Fox being deprived of his liberty, Fox does not have a right to representation by counsel in that proceeding. Consequently, he has no right to effective representation by counsel. Therefore, we overrule issue number three. In his fourth issue, Fox argues that the court erred in allowing him to proceed pro se. However, he cites no authority, and we can find none, that would restrict a court from allowing him to proceed pro se. If Fox felt that he was prejudiced by proceeding pro se, he could have requested a continuance. However, he chose not to exercise this option. Therefore, we hold that the court did not err in allowing Fox appear pro se at the expunction hearing. In summary, we conclude that because Fox cannot be deprived of his liberty as a result of an expunction hearing, he has no constitutional right to have counsel provided. Consequently, Fox has no constitutional right to effective assistance of counsel at the hearing on his petition for expunction. In addition, we conclude that the court was not restricted from allowing Fox to proceed pro se, and that Fox voluntarily made a decision to proceed pro se after discussion of other options with counsel. Finally, we conclude that the court did not err in denying Fox’s petition for expunction. For all of these reasons, we affirm the court’s decision below. BOBBY L. CUMMINGS Justice Before Chief Justice Davis, Justice Cummings, and Justice Vance Affirmed Opinion delivered and filed December 16, 1998 Do not publish