Opinion
No. 05-07-01433-CV
Opinion issued June 19, 2008.
On Appeal from the 336th Judicial District Court Grayson County, Texas, Trial Court Cause No. 07-0777-336.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
Opinion By Justice WHITTINGTON.
MEMORANDUM OPINION
Derek Michael Fleck appeals the trial court's order denying his petition for expunction of all records and files relating to two offenses. In a single issue, appellant claims the trial judge erred in denying his request because he was never adjudicated or "finally convicted" of the charged offenses. For the reasons that follow, we conclude the trial judge did not err in denying appellant's petition. We affirm the trial court's order.
On three separate occasions, appellant was arrested and charged by information for three counts of assault causing bodily injury. One case was dismissed, and appellant pleaded guilty to disorderly conduct in the other two cases. Appellant subsequently filed a petition for expunction of all records and fines relating to all three cases. The trial judge agreed appellant met the statutory requirements for expunction with respect to the first case and granted appellant's petition to expunge that case. Neither appellant nor the State appeals this ruling. With respect to the other two cases, however, the judge concluded appellant did not meet the statutory requirements and denied appellant's requested relief. This appeal followed, challenging the trial judge's ruling denying appellant's petition for expunction of the two remaining cases.
The petitioner in an expunction proceeding has the burden of proving compliance with the statutory conditions. Herron v. State, 821 S.W.2d 329, 330 (Tex.App.-Dallas 1991, no writ) (citing State v. Sink, 685 S.W.2d 403, 405 (Tex.App.-Dallas 1985, no writ)). The right to expunction is available only when all the statutory conditions have been met. Herron, 821 S.W.2d at 330.
Article 55.01 provides, in pertinent part, that a person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:
(2) each of the following conditions exist:
(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:
(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;
(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and
(C) the person 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(a)(2) (Vernon 2006) (emphasis added).
Although appellant testified he did not have a "final conviction" in the remaining assault charges, we cannot agree. The record in this case shows appellant was arrested and charged by information for three counts of assault causing bodily injury on three separate occasions: November 21, 1996 (cause number 96-1-2031), February 3, 1998 (cause number 97-1-181), and June 2, 1998 (cause number 98-1-906). With respect to the November 1996 case, appellant testified he "did some domestic violence counseling," and the case was dismissed. Regarding the two remaining informations, appellant testified he pleaded to the offense of disorderly conduct in each case in exchange for a fine. Appellant introduced documents entitled "Judgment" and "Sentence" for each of the two cases. In cause number 97-1-181, the judgment recites appellant appeared and pleaded guilty in open court. It further states
after due consideration by the Court of the evidence as alleged in the complaint and information it is the opinion of the Court and it so finds that the defendant is guilty as confessed by him of the offense of Disorderly Conduct as charged and as confessed by him in his plea of guilty herein . . .
The judgment concludes by ordering appellant to pay a fine of $300. The judgment in cause number 98-1-906 likewise recites appellant appeared and pleaded guilty and that the trial judge found appellant guilty of disorderly conduct. Thus, the record reflects that, contrary to appellant's assertions, the assault charges resulted in final convictions, albeit of the lesser offenses of disorderly conduct. Because the record shows appellant did not meet the requirements of article 55.01(a)(2)(B), we cannot conclude the trial judge erred in denying appellant's petition for expunction of these two offenses. See Rodriguez v. State, 224 S.W.3d 783, 785 (Tex.App.-Eastland 2007, no pet.) (Rodriguez failed to satisfy article 55.01(a)(2) because record shows that, although theft charge was dismissed, Rodriguez was convicted of Class C offense for issuing bad check; thus, charge resulted in final conviction rendering Rodriguez's records ineligible for expunction); Tex. Dep't of Pub. Safety v. Aytonk, 5 S.W.3d 787, 788 (Tex.App.-San Antonio 1999, no pet.) (record clearly reflects Aytonk's plea of nolo contendre to lesser charge rendered him ineligble for expunction of arrest records). We overrule appellant's sole issue.
We affirm the trial court's order.