Opinion filed September 5, 2013




                                        In The


        Eleventh Court of Appeals
                                     __________

                              No. 11-12-00077-CV
                                  __________

                EX PARTE BRADY BRADFORD HELM


                     On Appeal from the 106th District Court
                                  Gaines County, Texas
                        Trial Court Cause No. 11-06-16247



                     MEMORANDUM OPINION
      The trial court entered an order in which it granted an expunction of records
“on BRADY BRADFORD HELM pursuant to an arrest made on June 4, 2008,
charging [Helm] with the offense of Possession of Marijuana in Cause
Number 16,333 of original case in County Court of Gaines County, Texas.” The
Texas Department of Public Safety appeals from the trial court’s order in this
restricted appeal.   We reverse and render judgment denying the motion for
expunction.
      On June 4, 2008, Helm was arrested for a state jail felony offense of
possession of a controlled substance and for a misdemeanor offense of possession
of marihuana. Helm was charged with the possession of a controlled substance
offense in cause no. 08-3884 in the 106th District Court of Gaines County. He was
charged with the possession of marihuana offense in cause no. 16,333 in the
County Court of Gaines County. Based on a plea agreement, Helm pleaded guilty
to the possession of a controlled substance offense. Pursuant to Section 12.45 of
the Penal Code, Helm admitted guilt to the possession of marihuana offense and
requested the trial court in cause no. 08-3884 to take the possession of marihuana
offense into account when determining the sentence for the possession of a
controlled substance offense. See TEX. PENAL CODE ANN. § 12.45 (West 2011).
The trial court in cause no. 08-3884 entered an order adjudicating the possession of
marihuana offense and sentenced Helm to deferred adjudication community
supervision for eighteen months on the possession of a controlled substance
offense. Helm successfully completed his community supervision and then filed
his motion to expunge records that related to the possession of marihuana offense.
Following a hearing, the trial court entered its order expunging those records.
      In its sole appellate issue, the Department asserts that the trial court erred
when it granted the motion for expunction. The Department argues that, because
Helm was placed on community supervision for an offense that stemmed from the
same arrest as the possession of marihuana charge, expunction of the arrest on the
marihuana charge is not available to Helm.
      Article 55.01 of the Code of Criminal Procedure governs expunction
proceedings. TEX. CODE CRIM. PROC. ANN. art. 55.01 (West Supp. 2012). The
primary purpose of the expunction statute is to permit the expunction of records of
wrongful arrests. Harris Cnty. Dist. Attorney’s Office v. J.T.S., 807 S.W.2d 572,
574 (Tex. 1991); Travis Cnty. Dist. Attorney v. M.M., 354 S.W.3d 920, 926 (Tex.
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App.—Austin 2011, no pet.). Here, Helm admitted guilt on the possession of
marihuana offense and requested the trial court in cause no. 08-3884 to take the
admitted offense into account when determining the sentence on the possession of
a controlled substance charge. By admitting guilt, Helm also admitted that the
arrest was not wrongful. M.M., 354 S.W.3d at 928.
      Helm filed his motion to expunge records before the effective date of the
2011 amendments to Article 55.01. Therefore, the former version of Article 55.01
applies in this case. See Act of May 31, 2009, 81st Leg., R.S., ch. 1103, § 17(b),
2009 Tex. Gen. Laws 3019. Under the former statute, one of the requirements for
expunction was that “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.”       Former TEX. CODE CRIM. PROC. art. 55.01(a)(2)(B)
(2009).
      In this case, two charged offenses stemmed from the same arrest. Helm was
placed on community supervision for the possession of a controlled substance
offense. The issue before us was before the Waco court in Ex parte M.R.L.,
No. 10-11-00275-CV, 2012 WL 763139 (Tex. App.—Waco March 7, 2012, pet.
denied) (mem. op.). In that case, M.R.L. was charged with a misdemeanor offense
of driving while intoxicated and a misdemeanor offense of racing in a motor
vehicle with an open container. 2012 WL 763139, at *1. Both of the charged
offenses stemmed from the same arrest.           M.R.L. was placed on deferred
adjudication community supervision for the racing offense. Id. Upon M.R.L.’s
petition for expunction, the trial court granted an expunction of records that related
to the arrest for driving while intoxicated. As stated above, a requirement for
expunction under the former statute was that “there was no court ordered
community supervision under Article 42.12 for any offense other than a Class C
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misdemeanor.” Former CRIM. PROC. art. 55.01(a)(2)(B) (emphasis added). The
Waco court concluded that, because the legislature used the terms “for any
offense” rather than “for the offense,” “for that offense,” or “for that charge” and
because M.R.L. was placed on community supervision for an offense other than a
Class C misdemeanor arising from the arrest, expunction was not available to
M.R.L. for the driving while intoxicated offense. Id. at *3.
      We agree with the sound reasoning of the Waco court. Helm was placed on
deferred adjudication community supervision for the state jail felony offense of
possession of a controlled substance. Based on the “for any offense” language in
former Article 55.01(a)(2)(B), we conclude that expunction was not available to
him for the misdemeanor possession of marihuana offense. The trial court abused
its discretion by granting the motion for expunction. The Department’s issue is
sustained.
      We reverse the trial court’s expunction order and render judgment denying
expunction of records related to the possession of marihuana offense and arrest.




                                                    TERRY McCALL
                                                    JUSTICE


September 5, 2013
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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