
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-08-00675-CV


Anthony Fuller, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT
NO. 226,310-C, HONORABLE GORDON G. ADAMS, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		Anthony Fuller appeals a district court order denying his petition to expunge records
related to his arrests on two counts of possessing child pornography that were indicted but
ultimately dismissed.  Fuller sought to establish his entitlement to expunction as a matter of right
under article 55.01(a)(2) of the code of criminal procedure.  See Tex. Code Crim. Proc. Ann.
art. 55.01(a)(2) (West 2006); see also Heine v. Texas Dep't of Pub. Safety, 92 S.W.3d 642, 648
(Tex. App.--Austin 2002, pet. denied) (explaining that if petitioner proves each condition for
expunction under article 55.01(a)(2), trial court has mandatory duty to grant that remedy).  There is
no dispute that Fuller met his burden except with regard to the conditions set forth in paragraph (A)
of article 55.01(a)(2):

(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;


See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A).  It is undisputed that, in district court
Cause Nos. 55,192 and 55,193, indictments were presented charging Fuller with possession of
child pornography, a felony, and that both indictments were dismissed on November 24, 2004,
for the reason that Fuller had been sentenced in another felony proceeding.  Fuller has conceded
that he cannot satisfy the requirements in subparagraph (ii) of paragraph (A).  However, he asserts
that he met his burden under subparagraph (i) to prove that the limitations periods for the alleged
child pornography possession offenses had expired and that this suffices to satisfy paragraph (A). 
The State argues that Fuller could satisfy paragraph (A) only by proving the requirements of
subparagraph (ii) and that subparagraph (i) applies only in cases when no indictment or information
charging a felony offense is presented.
		In T. C.R. v. Bell Co. Dist. Attorney's Office, No. 03-08-00627-CV, ___ S.W.3d ____,
2009 Tex. App. LEXIS ____ (Tex. App.--Austin Aug. 6, 2009, no pet. h.), we determined that in
cases where an indictment or information charging a felony has been presented in connection with
the petitioner's arrest and later dismissed or quashed, the petitioner can satisfy paragraph (A) by
proving either the requirements of subparagraph (i) or (ii).  Consequently, Fuller is entitled to
expunction if he met his burden of proving that the limitations periods for his child pornography
possession offenses expired before his expunction petition was filed.  The State disputes whether
Fuller met this burden.  However, the record demonstrates conclusively that he did.
		The State acknowledges that the statute of limitations for possession of
child pornography is three years.  See Tex. Code Crim. Proc. Ann. art. 12.01(6) (West Supp. 2008). 
The district court found that both indictments charging Fuller with this offense were dismissed on
November 24, 2004.  These findings have not been challenged by either party.  Although Fuller did
not present evidence establishing when he allegedly committed the offenses or even when he
was indicted for them, the record reflects that the file-stamped date of his live expunction petition
is July 25, 2008.  This date is more than three years after the date Fuller's indictments for
child pornography possession were dismissed.  Thus, Fuller necessarily filed this pleading after the
three-year limitations period for the offenses had expired.  Consequently, Fuller has satisfied the
requirements of paragraph (A) as a matter of law.
		As there is no dispute that Fuller also satisfied article 55.01(a)(2)'s other conditions, (1)
the district court had a mandatory duty to grant his expunction petition, and, consequently, abused
its discretion in denying it.  See Heine, 92 S.W.3d at 648.  Accordingly, we reverse the district
court's denial of Fuller's expunction petition and remand to the district court for the entry of
appropriate orders expunging the files and records related to Cause Nos. 55,192 and 55,193.  See
Tex. Code Crim. Proc. Ann. art. 55.02 (West Supp. 2008).

						_____________________________________________
						Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Reversed and Remanded
Filed:   August 6, 2009
1.   As in T.C.R., we express no opinion regarding whether the circumstances of Fuller's 
dismissals might implicate other conditions in article 55.01(a)(2), as that question is not before us. 


