Opinion
No. 05-04-01295-CV
Opinion Filed September 26, 2005.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. X04-367-Q.
Affirm.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
MEMORANDUM OPINION
Pierro Leroi Jackson appeals the trial court's denying his petition for expunction of records relating to his arrest for felony theft. For the reasons stated below, we affirm the trial court's order.
The State urges us to dismiss this appeal for lack of jurisdiction. The trial court entered its order granting the State's motion for summary judgment and denying appellant's petition for expunction on June 28, 2004. Appellant's notice of appeal was due by July 28, 2004. See Tex.R.App.P. 26.1. Appellant's notice of appeal and motion for new hearing are file-stamped September 3, 2004. However, the envelope in which the notice of appeal was mailed was addressed to the proper clerk, and it is postmarked July 15, 2004, well before the last day for filing. Under the particular circumstances of this highly unusual case, we give appellant the benefit of the doubt and address the merits of his appeal.
Article 55.01 of the Texas Code of Criminal Procedure controls the right of a person who has been placed under arrest for either a felony or misdemeanor to have all records and files relating to the arrest expunged. Tex. Code Crim. Proc. Ann. art. 55.01(a) (Vernon Supp. 2005). A petitioner is entitled to have his criminal records expunged if he meets conditions under either article 55.01(a)(1) or 55.01(a)(2). See id. Article 55.01 requires strict compliance with all conditions imposed by the statute. Tex. Dep't of Pub. Safety v. Woods, 68 S.W.3d 179, 183 (Tex.App.-Houston [1st Dist.] 2002, no pet.).
Article 55.01(a)(1)
Article 55.01(a)(1) provides a right to expunction when:
A person is tried for the offense for which the person is arrested and is:
(A) acquitted by the trial court, . . .; or
(B) convicted and subsequently pardoned.
Tex. Code Crim. Pro. art. 55.01(a)(1). In his first point of error, Jackson argues he was in fact tried and acquitted of the felony theft charge. However, the record indicates the indictment was dismissed on the State's motion, and Jackson was not tried for theft. Accordingly, he cannot establish a right to expunction under this provision. We overrule Jackson's first point of error.
Article 55.01(a)(2)
Alternatively, the statute provides a right to expunction when the petitioner establishes each of the following conditions:
(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. art. 55.01(a)(2).
Appellant's third point of error asserts that Jackson had not been convicted of a felony in the five years preceding the date of the arrest. See id. art. 55.01(a)(2)(C). The relevant dates are not controverted. The record indicates Jackson was arrested on July 24, 1985 for possession of a controlled substance. On December 9, 1985, Jackson pleaded guilty to that felony offense, and the trial court placed him on deferred adjudication probation. On November 30, 1988 the State initiated proceedings to adjudicate Jackson's guilt on the possession charge, alleging he had violated the terms and conditions of his probation. And on November 14, 1989, the trial court signed a "Judgment Adjudicating Guilt" that imposed a sentence of two years' confinement. Finally, appellant was arrested and indicted for felony theft — the arrest he seeks to expunge — in 1992.
Appellant argues he was convicted when the trial court placed him on deferred adjudication probation in 1985, making his 1992 arrest more than five years later. However, a deferred adjudication does not become a conviction unless and until the probation is revoked and guilt is adjudicated. Jordan v. State, 36 S.W.3d 871, 876 (Tex.Crim.App. 2001). In Jackson's case, this occurred in 1989, just three years before the 1992 arrest he seeks to expunge. Accordingly, Jackson cannot establish the conditions for expunction under article 55.01(a)(2)(C). We overrule his third point of error. Given our resolution of Jackson's first and third points of error, we need not address his remaining contentions. We affirm the order of the trial court.