                                                                             PD-0474-14
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                           Transmitted 7/15/2015 9:47:59 AM
July 15, 2015                                               Accepted 7/15/2015 10:00:20 AM
                                                                             ABEL ACOSTA
                        PD-0474-14                                                   CLERK




                 COURT OF CRIMINAL APPEALS
                       AUSTIN, TEXAS


                      LAWRENCE DONOVAN
                            Petitioner

                                   v.

                          STATE OF TEXAS
                               Respondent


                          On Appeal from the
                Court of Appeals for the Second District
                           Fort Worth Texas
                      Cause No. 02-11-00033-CR


                    MOTION FOR REHEARING



                                        John H. Cayce, Jr.
                                        State Bar No. 04035650
                                        john.cayce@kellyhart.com
                                        KELLY HART & HALLMAN LLP
                                        201 Main Street, Suite 2500
                                        Fort Worth, Texas 76102
                                        Telephone: (817) 332-2500
                                        Telecopier: (817) 878-9280

                                        ATTORNEY FOR PETITIONER


                 ORAL ARGUMENT REQUESTED
                                        TABLE OF CONTENTS


INDEX OF AUTHORITIES..................................................................................... ii

GROUNDS FOR REHEARING ............................................................................... 1

ARGUMENT .............................................................................................................1

PRAYER FOR RELIEF ............................................................................................6
CERTIFICATE OF COMPLIANCE, TEX. R. APP. P. 79.2.................................... 6
CERTIFICATE OF COMPLIANCE, TEX. R. APP. P. 9.4...................................... 7

CERTIFICATE OF SERVICE ..................................................................................7




MOTION FOR REHEARING                                                                                            Page i
                                    INDEX OF AUTHORITIES

State Cases
Ohio v. Garry,
  877 N.E.2d 755 (Ohio Ct. App. 2007).................................................................. 4

State Statutes
11 DEL. CODE § 4371 (2010) .....................................................................................5

Other Authorities
Andrew L. Gates III, Comment, Arrest Records—Protecting the
  Innocent, 48 TUL. L. REV. 629, 634 (1974) .......................................................... 4

Fruqan Mouzon, Forgive Us Our Trespasses: The Need for Federal
   Expungement Legislation, 39 U. Mem. L. Rev. 1, 3-4 (2008) ............................. 4




MOTION FOR REHEARING                                                                                      Page ii
                         GROUNDS FOR REHEARING
      On July 1, 2015, the Court issued its unanimous Opinion affirming the

judgment of the court of appeals. (Copy attached). The Opinion effectively grants

trial courts the unbridled discretion to ignore the binding legal effect of a final

expunction order in revoking a condition of community supervision. In so doing,

the Opinion will create uncertainty in the bench and bar about the legal rights of

persons who have had their records expunged, and will jeopardize the protections

Texas’ expungement laws were designed to afford individuals with expunged

records. This will have a deleterious effect on society as whole by undermining

one of the primary policy reasons for expunctions—to enable persons with arrest

or conviction records to integrate back into society and live normal, happy lives.

The Motion for Rehearing (“the Motion”) should be granted to address these

serious public and jurisprudential concerns.

                                   ARGUMENT
      Mr. Donovan’s probation for injury to a child, a non-sex offense, was

revoked after he refused to “fully” participate in a sex-offender treatment program

in which the treatment provider pressured him to admit to the commission of a sex

offense that had earlier been the subject of a “not guilty” judgment and subsequent

expunction order. 1   When Mr. Donovan and his attorneys protested that the



1
   No reason was ever given to Mr. Donovan or his counsel for adding the sex-offender
treatment condition to his probation.
MOTION FOR REHEARING                                                           Page 1
treatment provider was violating explicit language of the expunction statute by

requiring discussion of the expunged sex offense during group counseling sessions,

the trial judge told the treatment provider that Mr. Donovan would not be required

to “admit” the expunged offense during the group therapy meetings.2 RR.II: 14,

46.

       Of course, Mr. Donovan had every reason to believe the trial judge’s

instructions would be honored and that he could safely rely on her instructions in

refusing to discuss the expunged offense at future meetings. Indeed, had the trial

judge informed Mr. Donovan when she added the sex-offender treatment condition

to his probation that he would be required to discuss the expunged offense during

treatment, he would have never acquiesced to the condition being added to his

probation in the first place. 3

       Despite the trial judge’s instructions, however, the treatment provider

continued to insist on Mr. Donovan’s admission to the expunged sex offense.

RR.II: 56. Moreover, at the revocation hearing, the trial judge did an “about

face”—she reversed her earlier directive that the expunction order should be

honored, and announced that she now determined the order was “illegal” and

“baseless.” RR.III: 8-9.

2
    The record is devoid of any notice to Mr. Donovan’s defense counsel that the
expunction order would be ignored by the treatment provider, or that Mr. Donovan would
be required to admit to a sex offense in order to complete the program.
3
  This became abundantly clear when Mr. Donovan later objected to the condition and
requested that it be rescinded.
MOTION FOR REHEARING                                                            Page 2
      Contrary to the Court’s opinion, this Catch-22 situation resulting in the

revocation of Mr. Donovan’s probation was not “within [Mr. Donovan’s] control.”

Op. at 10. By allowing the revocation judgment to stand under these egregious set

of facts, the Court has effectively condoned the direct violation of Texas

expunction law by a trial court. This will foster untold confusion and mischief in

the Texas criminal justice system.

      For example, assume that a person who was found not guilty of an

intoxication-related offense obtains an expunction order. If she is later placed on

probation in an unrelated case, under the Court’s Opinion, the treatment provider

could ask her to admit to the intoxication offense as part of a treatment program

with impunity. If she did not admit to the expunged offense, her probation could

be lawfully revoked by the trial judge. This is just one of a myriad of potential

situations where the legal protections historically afforded by an expunction order

could be disregarded in a court of law under the Court’s opinion, to the detriment

of innocent persons who rightfully rely on those protections.

      The Court’s decision also undermines the public policy behind Texas’

expunction law. Expunctions serve an important purpose in society, especially in

cases like this where the individual was adjudged “not guilty” of the expunged

offense.   As one scholar has noted with regard to ex-offenders (which

Mr. Donovan is not):



MOTION FOR REHEARING                                                          Page 3
        The mere existence of a criminal history can produce assumptions of
        past dishonesty and future untrustworthiness in the minds of all those
        aware of that history. Those assumptions often create substantial
        obstacles to acquiring, among other things, employment and housing.
        In addition, some ex-offenders are disqualified at least temporarily
        from obtaining federal loans or grants for post-secondary education.
        Even government programs designed to assist the poor, like food
        stamps, are unavailable to some ex-offenders, making rehabilitation
        far more arduous.4

Reintegration into society without employment or housing and without any

chances of attaining help is, at best, unlikely.

        Persons with arrest records can suffer the same marginalizing effects

suffered by those with criminal records. 5 Thus, the policies behind expunging

arrest records are substantially the same as those behind expunging conviction

records. As an Ohio appellate court wrote in 2007:

        [I]n America, people are presumed innocent unless tried and
        convicted. In this case, the defendant was tried and found not guilty,
        but continues to suffer punishment in the form of a criminal arrest
        record. This we cannot allow. 6
Indeed, the legislature in Delaware codified a public policy similar to that which

underlies Texas’ expungement statute:

        The General Assembly finds that arrest records can be a hindrance to
        an innocent citizen’s ability to obtain employment, obtain an
        education or to obtain credit. This subchapter is intended to protect

4
  Fruqan Mouzon, Forgive Us Our Trespasses: The Need for Federal Expungement
Legislation, 39 U. Mem. L. Rev. 1, 3-4 (2008).
5
  See Andrew L. Gates III, Comment, Arrest Records—Protecting the Innocent, 48 TUL.
L. REV. 629, 634 (1974) (observing that “a mere arrest record has considerable potential
for causing harm to an individual,” particularly when the person attempts to obtain a job).
6
    Ohio v. Garry, 877 N.E.2d 755 (Ohio Ct. App. 2007) (emphasis added).
MOTION FOR REHEARING                                                                 Page 4
        innocent persons from unwarranted damage which may occur as the
        result of arrest and other criminal proceedings which are unfounded or
        unproven.7

        In Mr. Donovan’s case, the expunged offense was unfounded and unproven.

The State, in fact, agreed Mr. Donovan was “not guilty” of the sex offense. Yet,

the legal effect of the expunction was ignored by the trial judge and Mr. Donovan

was treated, for all practical purposes, as if he had been convicted of the offense.

As a result, not only will Mr. Donovan unjustly suffer the loss of his liberty for

standing on his legal rights not to discuss or admit an expunged arrest record while

on probation for another offense, but, because the revocation of his probation was

based on his refusal to discuss or admit the expunged record, he will wrongly

suffer the same harmful, marginalizing effects that a person with a criminal

conviction record suffers—all as a result of the justifiable trust he placed in the

undisputed fact that the record of the expunged offense was, in fact, expunged.

        If the Court intends expunctions to have any force and effect at all, and to

continue to be used to protect innocent persons from unwarranted damage which

may occur as the result of arrest and other criminal proceedings which are

unfounded or unproven, the Motion must be granted and the Court’s opinion must

be withdrawn.




7
    11 DEL. CODE § 4371 (2010).
MOTION FOR REHEARING                                                              Page 5
                            PRAYER FOR RELIEF
      WHEREFORE, PREMISES CONSIDERED, Mr. Donovan prays that the

Court grant this Motion for Rehearing, order briefing on this cause, and set it for

re-submission at the earliest possible date. Moreover, upon submission and review

of the appellate record and the briefs and arguments of counsel, Mr. Donovan

prays that this Court reverse the trial court’s Judgment of Conviction, or

alternatively remand the case to the Second Court of Appeals and for such further

relief as the Court may deem appropriate.

                                             Respectfully submitted,

                                             /s/ John H. Cayce, Jr.
                                             John H. Cayce, Jr.
                                             State Bar No. 04035650
                                             john.cayce@kellyhart.com
                                             KELLY HART & HALLMAN LLP
                                             201 Main Street, Suite 2500
                                             Fort Worth, Texas 76102
                                             Telephone: (817) 332-2500
                                             Telecopier: (817) 878-9280

                                             ATTORNEY FOR PETITIONER

           CERTIFICATE OF COMPLIANCE, TEX. R. APP. P. 79.2
      In accordance with Tex. R. App. P. 79.2(c), I certify that this Motion for
Rehearing that refuses Petitioner’s Petition for Discretionary Review is grounded
only on substantial intervening circumstances or on other significant circumstances
which are specified in the Motion. I further certify that this Motion is so grounded
and that the Motion is made in good faith and not for delay.

                                             /s/ John H. Cayce, Jr.
                                             John H. Cayce, Jr.


MOTION FOR REHEARING                                                          Page 6
           CERTIFICATE OF COMPLIANCE, TEX. R. APP. P. 9.4
       This petition complies with the requirements of Texas Rules of Appellate
Procedure 9.4(3) because it has been prepared in a proportionally spaced typeface
using “Microsoft Word 2010” in fourteen (14) point “Times New Roman” style
font, and it contains 1,335 words, excluding the parts of the petition exempted by
the Texas Rules of Appellate Procedure.

                                            /s/ John H. Cayce, Jr.
                                            John H. Cayce, Jr.

                        CERTIFICATE OF SERVICE
      I certify that on this 15th day of July, 2015, a true and correct copy of
the foregoing document has been delivered to the following counsel of
record by electronic service and/or e-mail:

Debra Windsor, Chief, Post-Conviction
Kimberley Wesley, Assistant District Attorney
TARRANT COUNTY DISTRICT ATTORNEY’S OFFICE
401 W. Belknap, Fourth Floor
Fort Worth, Texas 76196-0201

State Prosecuting Attorney
209 W. 14th Street
Austin, Texas 78701
                                            /s/ John H. Cayce, Jr.
                                            John H. Cayce, Jr.




MOTION FOR REHEARING                                                         Page 7
