                            ACCEPTED
                       03-14-00274-CR
                              3661941
             THIRD COURT OF APPEALS
                        AUSTIN, TEXAS
                  1/6/2015 11:04:07 AM
                      JEFFREY D. KYLE
                                CLERK




       FILED IN
3rd COURT OF APPEALS
    AUSTIN, TEXAS
1/6/2015 11:04:07 AM
  JEFFREY D. KYLE
        Clerk
                                        TABLE OF CONTENTS

ITEM                                                                                                                         PAGE

Index of Authorities ... ... ... ... ... ... ... ... ... ...... ... ... ...... ... ... ... ... ... ... ... ... ... .....       4

Statement Regarding Oral Argument ... ..................... ...... ..... .......... ...                                        5

Statement of the Case ... ........ ......... ...... .... ........... ....... ... ......... ...... ........                     5

Statement of Facts ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...... ... ... ... ... ....     5

Summary of State's Argument ............................................................                                       7

Argument and Authorities ......... ... ... ... ................................................                                7

           First Issue on Appeal ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .....         7
                        TRIAL COURT ERR IN PERMITTING
                        DISTRICT ATTORNEY TO REPRESENT
                        DEPARTMENT OF PUBLIC SAFETY IN
                        EXPUNCTION HEARING?

                      Application and Analysis ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...                 8

           Second Issue of Appeal ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .....            9
                      TRIAL COURT ABUSE DISCRETION IN
                      DENYING PETITION FOR EXPUNCTION
                      WHERE PETITIONER HAD BEEN CON-
                      VICTED OF OFFENSE ARISING OUT OF
                      THE SAME ARREST?

                      Standard of Review ... ... ... ... ... ... ... ... ... ... ... ... ...... ... ... ... ... ...            9

                      Application and Analysis .................. ........ .... ............... .. .                          10


Prayer...................................................................................................                     12



                                                                   2
Certificate of Compliance with Rule 9 ..............................................                                              12

Certificate of Service ............... ...........................................................                                13

Appendix ... ... ... ... ... ... ... ... ... ... ... ... ... ...... ...... ... ... ... ...... ... ... ...... ... ... ... .. ...   14

            Indictment Cause No. 59822

            Information Cause No. 62960

            Judgment of Conviction Cause No. 62960

            Motion to Dismiss and Order Cause No. 59822




                                                                       3
                           INDEX OF AUTHORITIES

CASES                                                                                                 PAGE

Texas Department of Public Safety v. Butler, .....................................                     8, 9
      941 S.W.2d 318 (Tx. App. Corpus Christi 13th Dist.
      1997 no pet.)

Texas Department of Public Safety v. G.B.E., ...................................... 10, 11
      No. 03-13-00017-CV, 2014 Tex. App. LEXIS 3195
      (Tx. App. Austin 3rct Dist. 2014 no pet.), not designated
      for publication.

Travis County District Attorney v. M.M., ............................................. 9 - 11
      354 S.W.3d 920 (Tx. App. Austin 3rct Dist. 2011 no pet.)

OTHER


Texas Code of Criminal Procedure

       Article 55.01 ..............................................................................     10

       Article 55.01(a)(2) ....................................................................         10




                                                     4
STATEMENT REGARDING ORAL ARGUMENT
      The State does not request oral argument.

STATEMENT OF THE CASE

      The Appellant, Archie Scaife, filed a pro se Petition for Expunction

of Criminal Record seeking expunction of his arrest by the Killeen Police

Department for the offense of Aggravated Assault on a Public Servant on

May 13, 2006.     That arrest resulted in his indictment in Cause No.

59,882 in the District Court of Bell County, Texas. (CR-6).

      The Texas Department of Public Safety filed an answer to that

petition. (CR-153).

      After a hearing the Trial Court entered Findings of Fact and

Conclusions of Law (CR-259) and denied the expunction. (CR-205).

      The Appellant filed a motion for new trial (CR-263) which was

denied by the trial court after a hearing. (CR-301).

STATEMENT OF FACTS

      After hearing and receiving evidence the trial court entered the

following Findings of Fact:

      1. Petitioner was arrested by the Killeen Police Department on

         May 2, 2006.


                                     5
     2. As a result of that arrest the Petitioner was charged with the

        offense of Aggravated Assault on a Police Officer in Cause No.

        59,822.   Petitioner was also charged with the offense of

        Unlawful Possession of a Firearm by information in Cause No.

        62,960.

     3. The arrests in Cause Nos. 59,822 and 62,960 arose out of the

        same arrest.

     4. On May 13, 2008, the Petitioner entered a plea of guilty in

        Cause No. 62,920 to the offense of Unlawful Possession of a

        Firearm by a Felon in the 27th District Court of Bell County,

        Texas and received a sentence of 4 years in the Texas

        Department of Criminal Justice.

     5. The charge in Cause No. 59,922 was dismissed because the

        Petitioner plead guilty in the companion case in Cause No.

        62,960. (CR-259)

Copies of the indictment in Cause No. 59,822 for which the Petitioner

seeks an expunction (CR-157), the complaint charging the Petitioner

with the offense of Unlawful Possession of a Firearm in Cause No.

62,960 (CR-158), the Judgment of Conviction in Cause No. 62,960, and




                                  6
the Motion and Order Dismissing Cause No. 59,822 because the

Petitioner plead guilty in a companion case (CR-12) are all set out in the

Appendix.

SUMMARY OF STATE'S ARGUMENT

      Although each of the persons and law enforcement agencies are

entitled to individual representation in an expunction proceeding,

nevertheless the District Attorney of the county may represent all of

them at the hearing should they opt not to attend.

      The trial court did not abuse its discretion in denying the petition

for expunction because the Appellant entered a plea of guilty and was

convicted of an offense that arose out of the same arrest as that sought

to be expunged. The offense made the subject of the expunction request

was dismissed solely on the ground that the Appellant had pled guilty in

the companion case arising from the same transaction.

ARGUMENT AND AUTHORITIES

First Issue on Appeal

      Did the trial court err in permitting the Assistant District Attorney

to represent and present the objections of the Texas Department of

Public Safety in the expunction hearing?


                                    7
Application and Analysis

      In this case the Texas Department of Public Safety filed an answer

to the Appellant's petition for expunction. The District Attorney did not.

Nevertheless the Bell County District Attorney's office appeared at the

hearing and presented the matters raised in the Department of Public

Safety's answer to the petition.

      The law governing expunctions presents a unique situation in

which all persons and agencies that are parties to the expunction share

interwoven and identical interests and common goals that are achieved

by the maintenance of criminal records. Because an expunction is a civil

proceeding each agency is entitled to represent itself and is not bound

by the actions of the District Attorney. That does not mean, however,

that each of the concerned agencies are not represented by the District

Attorney. Coordination among agencies is mandated by the application

of the relief granted or denied. Relief granted or denied is applicable to

all. Texas Department of Public Safety v. Butler, 941 S.W.2d 318, 320

(Tx. App. Corpus Christi, 13th Dist. 1997 no pet.).

      The District Attorney of the county is the primary representative

of the State and thus of the interests of all of the parties and agencies

concerned. In fact, having prosecuted the case, he or she is in the best


                                     8
position to defend against the petition for expunction.        Where the

individual agency does not choose to attend and participate in the

hearing, the     District Attorney represents      its   interests in the

proceedings. Texas Department of Public Safety v. Butler at 320.

      The trial court did not err in permitting the Bell County District

Attorney's Office to appear and represent the Texas Department of

Public Safety in the hearing.

Second Issue on Appeal

      Did the trial court abuse its discretion in denying the petition for

expunction because the case was dismissed on the grounds that the

Appellant had plead guilty to a companion charge that arose out of the

same arrest and was convicted?

Standard of Review

      Rulings on petitions for expunction are reviewed under an abuse

of discretion standard. A trial court abuses its discretion only if it acts

arbitrarily or unreasonably, without reference to guiding rules and

principles of law.   The decision is reviewed de novo. Travis County

District Attorney v. M.M., 354 S.W.3d 920, 922 (Tx. App. Austin 3rct Dist.

2011 no pet.).




                                     9
Application and Analysis

      Expunction is neither a constitutional nor a common law right, but

rather a statutory privilege. It is governed by Article 55.01 of the Texas

Code of Criminal Procedure. A person is entitled to expunction only

when all of the statutory conditions have been met. The trial court is

without the power to extend relief beyond the clear meaning of the

statute. Travis County District Attorney v. M.M. at 923.

      A person is not entitled to have any arrest records arising from a

multi-charge arrest expunged under Article 55.01(a)(2) when (1) one or

more charges result in a conviction for that charge and (2) any

remaining charge is dismissed as a result of a conviction of any charge

from the same arrest. Texas Department of Public Safety v. G.B. E., No. 03-

13-00017-CV, 2014 Tex. App. LEXIS 3195, (Tx. App. Austin 3rd Dist.

2014), not designated for publication, op. at page 12.

      In this case the evidence is clear and undisputed that the

Appellant was arrested as a result of a single transaction for offenses of

Aggravated Assault on a Police Officer and Unlawful Possession of a

Firearm by a Felon. It is equally undisputed that the Appellant entered

a plea of guilty and was convicted of the offense of Unlawful Possession

of a Firearm by a Felon.


                                     10
      The offense of Aggravated Assault of a Police Officer was then

dismissed solely upon the grounds that the Appellant had entered his

plea of guilty to the same transaction offense of Unlawful Possession of

a Firearm.

      The fact situation is identical to that in Texas Department of Public

Safety v. G.B.E. and, exactly as in that case the Appellant has failed to

establish that all of the statutory requirements necessary for expunction

have been fulfilled. The burden to do so is upon the Petitioner. Travis

County District Attorney v. M.M. at 923. The trial court certainly did not

abuse its discretion in denying the expunction.




                                    11
                                PRAYER

      The State of Texas respectfully prays that the order denying the

petition for expunction herein be, in all things, be affirmed.

                                            Respectfully Submitted,

                                            HENRY GARZA
                                            District Attorney

                                            fs/   $a6 ~. flrlmn
                                            BOB D. ODOM
                                            Assistant District Attorney
                                            P.O. Box 540
                                            Belton, Tx 76513
                                            (254) 933-5215
                                            FAX (254) 933-5704
                                            DistrictAttorney@co.bell.tx.us
                                            SBA No. 15200000


     CERTIFICATE OF COMPLIANCE WITH RULE 9

      This is to certify that the State's Brief is in compliance with Rule 9

of the Texas Rules ofAppellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 1141 words.




                                            Is/   $a6 ~. fJrfmn
                                            BOB D. ODOM
                                            Assistant District Attorney




                                     12
                  CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of this brief has been

served upon, Archie Terrell Scaife #1582863, Appellant pro se, by

depositing the same in the United States Mail, postage paid, return

receipt requested, addressed to him at James Byrd Unit, 21 FM 247,

Huntsville, Texas 77320, on this 6th day of January, 2015.




                                            /sf   $a6 fb. flrlmn
                                            BOB D. ODOM
                                            Assistant District Attorney




                                    13
Appendix




   14
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  Dlttrtct A&tlDmey ~th Judicial Dl8trict ofTexaa.                  Foreman of the.Ot.ad Jury




                                                                                                            157
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        DA ~INFORMATION- GENE.. L                                             .         '       .       ~.               .· .. ,.    ·.
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               ·COMES NOW HenryL. 'Garza, Oistrict Attomeyofthe 27tb·Judiciai District, Bell County,
        Texas~     and presents in and to the :.$26th District Court of said County, that heretofore and before the
        Presentinent o(this informatio11; .ARCHIE TERRELL SCAIFE, on or about the 13th day of May,
        A. D~-. 2006, in the Co.unty an4 -~tate aforesaid,
              Did·tbcD llld:tbcn, baviDa beca convicted of tho fe1oD:y otfcae ofPoueuion ofCoadne leu
              1ban ODe snm, Go~ t?lii·day of Aupt, 2001. ia C11111D IIUIIlbci' S1,207, in tbe 264th Judicial
              Diltrict Court 9fBell ~'Tau., in a cue 011 th8 docbt ofllid Court md cmtitled The
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              fifth ~. of tho cWWnntNeleue &om oonfiiMIDent fOlloWing convidion of INiid felony
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        against the peace
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                                    WTI'tffiSs ~YMM!hiS " fQ,.Jil&y of                                                              A. 0., 2008

                                                                                               HENRY L. GARZA,
                                                                                               DISTRICT ATIORNEY




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        ST1;~ ID No.:                     fX   068851M                                           I
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            t;~ . JUDGMENT OF CONVICTION BY COURT-WAIVER OF JURY TRIAL
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                                                                                                                                            161
DATE:
  -    . · ;.   .     .'              May 9, 2008-
FILING AGENCY Killeen Police Department
                                                                                               e                    '·' """~·- ·~
                                                                                                           c··,.0.. P          , ' "'
OFFENSE:      AGGRAVATED ASSAULT AGAINST A PUBLIC SERVANT                                                                           ·   ~Q j_........
ADA:                                  MCWILLPR                                                                                          ~
DA-N umber:                           06-0820

                                                                NO.     59,822

TilE STATE OF TEXAS                                                      §             IN THE 264 TH JUDICIAL

VS.                                                                     §              DISTRICT COURT OF
 ARCHIE TERRELL SCAIFE                                                   §             BELL COUNTY, TEXAS


                                                                   ·DISMISSAL

                    NOW COMES Henry Garza, District Attorney, in the above entitled and numbered cause, after

      indictment of said cause and as grounds therefore would show the following:




                                 D           Insufficient evidence to obtain and secure a conviction
                                 D           Restitution made in full
                                 D           Unable to locate prosecuting witness
                                  ~          Defendant pled guilty in companion case
                                 D           Request of prosecuting victim
                                 0           Lack of cooperation by victim
                                 0           Insufficient investigation by authorities charged with that responsibility
                                 0           Defendant deceased
                                 D           Other


                                                                             HENRY L. GARZA
                                                                             District Attorney                 (



  a,,:rFIL ED
  ~a . m . _p.m . o'clock
                                                                 BY:
                                                                             ~
                                                                             Paul R. McWilliams
                                                                             ASSIST ANT DISTRICT ATTORNEY




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                  ....   .
                             STATE OF TEXAS •
                                                       •                           ORDER         •
                             COUNTY OF BELL •



                         On this the          /   ~         day ofMay, A. D., 2008, the foregoing motion ofthe State having been

        considered and approved, the above styled and numbered cai.tse is hereby DISMISSED.




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