

NO. 07-10-0215-CV
 
IN THE COURT OF
APPEALS
 
FOR THE SEVENTH
DISTRICT OF TEXAS
 
AT AMARILLO
 
PANEL C
 
 MAY 5, 2011

 
 

 
 
EX
PARTE AJMAN A. ADIL 

 
 

 
 FROM THE 108TH DISTRICT COURT OF
POTTER COUNTY;
 
NO.
98,039-E; HONORABLE DOUGLAS R. WOODBURN, JUDGE

 
 

 
Before QUINN, C.J., and HANCOCK and
PIRTLE, JJ.
 
 
MEMORANDUM OPINION

            The State
of Texas appeals an order by the trial court expunging the arrest records of
Appellee, Ajman A. Adil.  In a single issue,
the State asserts the trial court erred by entering an order of expunction
because the evidence was legally and factually insufficient.  We affirm. 

Background
            On February 10, 2004, Appellee was
arrested and subsequently indicted by a Potter County Grand Jury for felony possession
of marijuana in an amount of two thousand pounds or less but more than fifty
pounds.[1]  On September 1, 2004, the indictment was
dismissed.[2]  
            More than five years later, on
October 22, 2009, Appellee filed a verified petition for expunction, requesting
that all criminal records and files pertaining to her February 10, 2004 arrest
be expunged.  See Tex.
Code Crim. Proc. Ann. articles 55.01 and 55.02 (West Supp. 2010).[3]  On November 5, 2009, the State filed its
answer wherein the State generally denied the allegations in Appellee's
petition, while specifically asserting that Appellee did not meet the
requirements of article 55.01(a)(2)(A)(ii), to-wit:
dismissal of an indictment due to mistake, false information, or other similar
reason indicating an absence of probable cause to believe that Appellee had
committed the offense or because it was void. 
In response to the State's averments, Appellee asserted the reason for the
dismissal was irrelevant to her petition because she was relying solely upon the
provisions of article 55.01(a)(2)(A)(i), to-wit: lapse of the applicable period
of limitations.[4]  
            On December 21, 2009, the trial
court conducted a hearing.  At that
hearing, counsel for the State appeared and announced that the "crux"
of the dispute was whether the statute of limitations had run or not.  See Tex. Code Crim. Proc.
Ann. art. 12.01 (West Supp. 2010). Specifically, the State asserted that the
time during which Appellee had resided outside the state should not be included
in computing whether or not the applicable limitations period had expired.  See Tex. Code Crim. Proc.
Ann. article 12.05 (West 2005). 
The State, therefore, sought to establish that Appellee had resided
outside the State of Texas during the period in question.     
            Receiving no objection from Appellee's
counsel, the State proceeded with the burden of persuasion by calling Appellee
as a witness.  The State offered evidence
that, since Appellee's arrest, she had been a resident of Rhode Island and,
with the exception of the three to four days she spent in Texas at the time of
her arrest, had not returned to Texas. 
Based on this evidence, the State argued that the applicable period of
limitation was tolled by the provisions of article 12.05.[5]  No other evidence was presented and the trial
court took the matter under advisement.  On
May 19, 2010, the trial court granted Appellee's petition for expunction.  Neither party requested findings of fact or
conclusions of law and this appeal followed. 



Expunction
            The right to expunction is neither a
constitutional nor common law right but, rather, a statutory privilege.  Quertermous v. State, 52 S.W.3d 862, 864 (Tex.App.--Fort Worth
2001, no pet.).  Therefore, in
expunction proceedings, trial courts "have no inherent or equitable power
to expunge criminal records"; Ex
parte M. R. R., 223 S.W.3d 499, 500 (Tex.App.--Amarillo 2006, pet. denied),
overruled in part on other grounds, State
v. Beam, 226 S.W.3d 392, 394-95 (Tex. 2007), and, if a trial court fails to
comply with the statutory procedures for expunction, it commits reversible
error.  State v. Echeverry, 267 S.W.3d 423, 425 (Tex.App.--Corpus Christi
2008, pet. denied).  However, because the
statute is remedial in nature, those statutory provisions should be liberally
construed.  Ex parte E. E. H. 869 S.W.2d 496, 497
(Tex.App.--Houston [1st Dist.] 1993, writ denied).  
            Expunction proceedings are
authorized by Chapter 55 of the Texas Code of Criminal Procedure and are
considered civil causes of action, not criminal.  Ex parte Wilson, 224 S.W.3d 860, 861 (Tex.App.--Texarkana 2007, no
pet.); Pitts v. State, 113 S.W.3d
393, 395 (Tex.App.--Houston [1st Dist.] 2003, no pet.).  Article 55.01 provides, in pertinent part, as follows:
(a)       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 the 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
presentment had been made because of mistake, false information, or other
similar reason indicating an 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 . . . and
(C)       the person has
not been convicted of a felony in the five years preceding the date of the
arrest.
 
 
            Even
though the burden of proving compliance with each statutory condition rests
with the petitioner, Taylor v. State,
266 S.W.3d 553, 556 (Tex.App.--Tyler 2008, pet. denied); Heine v. Texas Dep't of Public Safety, 92 S.W.3d 642, 646
(Tex.App.--Austin 2002, pet. denied), the trial court may rule on the verified
petition without conducting a formal hearing and without the consideration of
live testimony if it has at its disposal all the information it needs to
resolve the issues raised by the petition. 
Ex parte Wilson,
224 S.W.3d 860, 863 (Tex.App.--Texarkana 2007, no pet.).  


Standard of Review
            A trial
court's ruling on an expunction is reviewed under an abuse of discretion
standard; Ingram v. Tex. Bd. of Pardons
& Parole, No. 01-08-00973-CV, 2011 Tex.App. LEXIS
663, at *3 (Tex.App.--Houston [1st
Dist.] Jan. 27, 2011, no pet. h.) (mem. op.),
and a trial court abuses its discretion when it acts without reference to
guiding rules and principles or if its actions are arbitrary and unreasonable.  Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).  
Discussion
            At the
outset, we note that the State's sole argument on appeal, that the trial court
abused its discretion by entering an order of expunction when the evidence
presented at trial was legally and factually insufficient, does not conform to
the argument presented to the trial court. 
On appeal, the State asserts Appellee wholly failed to meet her burden
of proof as to any of the statutory
requirements for an order of expunction because she failed to offer any evidence
whatsoever; whereas, before the trial court, the State's only contention was
that the provisions of article 55.01(a)(2)(A)(i) were
not met because Appellee failed to present evidence that she was present in the
state for more than three years. 
Therefore, to the extent the State contends that Appellee failed to meet
her burden of proof on any of the statutory requirements other than the
provisions of article 55.01(a)(2)(A)(i), the State has
waived those issues. Moser
v. Davis, 79 S.W.3d 162, 169 (Tex.App.--Amarillo 2002, no pet.).  In other words, by appearing before the trial
court and expressly limiting the contested issue to Appellee's presence within
the state, the parties effectively stipulated to the other statutory
conditions.
            Because the trial court could take
judicial notice that the period of
limitations, to-wit: three years, had elapsed between the dismissal of Appellee's
indictment and the filing of her petition for expunction, the trial court had
at its disposal all the information it needed to resolve the issues raised by
the petition.  Based on that information,
the trial court could have reasonably concluded that Appellee's compliance with
the statutory requirement of article 55.01(a)(2)(A)(i)
was sufficiently established.  
            Furthermore, to the extent the
State’s issue can be construed as contending that the trial court erred by misapplying
the provisions of article 12.05 to the undisputed facts, we note that not only
did the State fail to provide this Court with a succinct, clear and accurate
statement of that argument as required by Texas Rules of Appellate Procedure
38.1(h), she also failed to provide any argument or authority that the
provisions of article 12.05 applied to the unusual facts of this case where
accusations against Appellee had been dropped for more than the statutory
period of limitations.[6]  Accordingly, the State also waived this
argument.  Id.  Because we cannot say
the trial court acted without reference to guiding rules and principles or that
its actions were arbitrary and unreasonable, the State’s sole issue is
overruled.


Conclusion
            The trial
court's order of expunction is affirmed. 

                                                                                                
 
Patrick A. Pirtle
                                                                                                      Justice  
 
Quinn, C.J., concurring.
 




[1]See Tex.
Health & Safety Code Ann. § 481.121(b)(5) (West
2010).  


[2]The State's Motion to Dismiss recites as grounds for the dismissal that the
"[o]fficer failed to show for suppression hearing."


[3]Throughout the remainder of this
opinion, provisions of the Texas Code of Criminal Procedure will be cited as
either "article ____" or "art. ____."


[4]The applicable statute of limitations
for an offense under § 481.121(b)(5) of the Texas
Health & Safety Code, the offense for which Appellee was arrested, is three
years.  See Tex.
Code Crim. Proc. Ann. art. 12.01(7) (West Supp. 2010). 


[5]Article
12.05 provides, in pertinent part:
(a)   The
time during which the accused is
absent from the state shall not be computed in the period of limitation.
(Emphasis added).


[6]Tolling
provisions of article 12.05(a) only apply when the citizen has been effectively
accused of an offense.  Ex parte Matthews, 892 S.W.2d 208,
210-11 (Tex.App.--Houston [1st Dist.] 1995)(op. on
reh'g), affd, 933 S.W.2d 134
(Tex.Crim.App. 1996), overruled in part on
other grounds by Proctor v. State, 967 S.W.2d 840, 844 (Tex.Crim.App.
1998).


