                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-16-00308-CV
                            ____________________

                       WILLIAM E. DURHAM, Appellant

                                          V.

                       THE STATE OF TEXAS, Appellee

________________________________________________________________________

                     On Appeal from the 75th District Court
                            Liberty County, Texas
                          Trial Cause No. CR28651
________________________________________________________________________

                           MEMORANDUM OPINION

      William E. Durham is currently incarcerated in the Institutional Division of

the Texas Department of Criminal Justice. In this pro se appeal, he challenges the

trial court’s order denying his petition for expunction of records in cause number

CR28651 wherein he was arrested for failure to register as a sex offender. In one

issue, Durham argues that the trial court abused its discretion in denying his petition

for expunction. Durham contends that he “has a statutory right to have this dismissed


                                          1
offense removed from his record” pursuant to section “55.01 § (A)(ii)” of the Texas

Code of Criminal Procedure. Article 55.01 does not contain a subsection labeled

“55.01 § (A)(ii).” However, article 55.01 does contain a subsection (a)(2)(A)(ii). See

Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A)(ii) (West Supp. 2016).1 Therefore,

we construe Durham’s issue on appeal to pertain to article 55.01(a)(2)(A)(ii) of the

Texas Code of Criminal Procedure.

      Durham also argues that the trial court waited over five months to set a hearing

on the expunction petition, the hearing was inadequate, and that Durham complied

with the statutory requirements outlined in section 2 of article 55.02 of the Texas

Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 55.02, § 2 (West

Supp. 2016) (“Procedure for Expunction”). We affirm.

                                 Background Facts

      In December 2010, Durham was indicted by a grand jury in Liberty County

in cause number CR28475 for the felony offense of failure to comply with the sex-

offender registration requirements. Durham v. State, No. 01-12-00459-CR, 2013



      1
         Article 55.01(a) of the Texas Code of Criminal Procedure was amended in
2015, but the amendments were not effective until January 1, 2017. See Act of May
26, 2015, 84th Leg., R.S., ch. 770, § 2.23, 2015 Tex. Gen Laws 2320, 2372-73. We
will apply the article as it existed at the time of filing and before the subsequent
amendment became effective. Therefore, all cites to article 55.01 refer to the statute
as it existed on February 3, 2016, the date Durham filed his petition for expunction.
                                          2
Tex. App. LEXIS 7301, at **1-2 (Tex. App.—Houston [1st Dist.] June 13, 2013,

pet. ref’d).2 According to Durham’s petition for expunction, he was released on bond

on December 23, 2010. On March 30, 2011, Durham was indicted by a grand jury

in Liberty County in cause number CR28651 for the offense of “Sex Offenders Duty

to Register Life/Annually” allegedly committed on or about January 16, 2011.

      In a motion to dismiss, Durham alleged that cause number CR28475 was tried

on April 27, 2012. In cause number CR28475, the jury found Durham guilty of the

offense of failure to comply with the sex-offender registration requirements, and

after Durham pleaded true to a felony-enhancement allegation in the indictment, the

jury assessed punishment at twelve years in prison. See id. at *3.

      On May 29, 2013, the State filed a motion to dismiss cause number CR28651

because Durham “was sentenced to twelve (12) years TDC in cause number

CR28475.” That same day, the trial court signed an Order for Dismissal in cause

number CR28651. On June 13, 2013, the First Court of Appeals affirmed Durham’s

conviction in cause number CR28475. See id. at **16-17. The Court of Criminal




      2
        The First Court of Appeals noted that the appeal of CR28475, originally filed
with this Court, was transferred to the First Court of Appeals. See Durham v. State,
No. 01-12-00459-CR, 2013 Tex. App. LEXIS 7301, at *1 n.3 (Tex. App.—Houston
[1st Dist.] June 13, 2013, pet. ref’d) (citing Tex. Gov’t Code Ann. § 73.001 (West
2013)).
                                          3
Appeals refused discretionary review. See In re Durham, No. PD-0802-14, 2014

Tex. Crim. App. LEXIS 1184 (Tex. Crim. App. July 23, 2014).

      On February 3, 2016, Durham filed a pro se Petition for Expunction of

Records, seeking to expunge all records and files relating to cause number CR28651

arguing that the case “was dismissed by the trial court.” On February 12, 2016, the

trial court signed an order setting a hearing on Durham’s expunction petition for July

28, 2016. At the July 28, 2016 hearing the trial court stated it “denie[d] the request

for an expunction for reasons that will go unexplained.” Thereafter, the trial court

signed an order denying Durham’s petition for expunction. Durham timely appealed.

                      Applicable Law and Standard of Review

             The relevant section of article 55.01 at issue reads 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) 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 the
          offense, unless the offense is a Class C misdemeanor, provided that:
              (A) regardless of whether any statute of limitations exists for the
              offense and whether any limitations period for the offense has
              expired, an indictment or information charging the person with
              the commission of a misdemeanor offense based on the person’s
              arrest or charging the person with the commission of any felony
              offense arising out of the same transaction for which the person
              was arrested:
                     ...
                                          4
                   (ii) if presented at any time following the arrest, was
                   dismissed or quashed, and the court finds that the
                   indictment or information was dismissed or quashed
                   because the person completed a pretrial intervention
                   program authorized under Section 76.011, Government
                   Code, 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 the indictment or information was void[.]

Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A)(ii).

      The purpose of an expunction statute is to permit the expunction of records of

wrongful arrests. Harris Cty. Dist. Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574

(Tex. 1991); Travis Cty. Dist. Attorney v. M.M., 354 S.W.3d 920, 926 (Tex. App.—

Austin 2011, no pet.). “When an arrest is not wrongful, removal and destruction of

records relating to it harms the public’s interest of using the records ‘in subsequent

punishment proceedings, including subsequent applications for probation.’” S.J. v.

State, 438 S.W.3d 838, 841 (Tex. App.—Fort Worth 2014, no pet.). A petitioner’s

right to expunction is purely a matter of statutory privilege. Id. A statutory

expunction proceeding is a civil rather than a criminal proceeding, and the petitioner

has the burden of proving that he has strictly complied with the requirements of the

expunction statute. Houston Police Dep’t v. Berkowitz, 95 S.W.3d 457, 460 (Tex.

App.—Houston [1st Dist.] 2002, pet. denied); see also Collin Cty. Criminal Dist.

Attorney’s Office v. Dobson, 167 S.W.3d 625, 626 (Tex. App.—Dallas 2005, no
                                          5
pet.). As set above, under section (a)(2)(A)(ii) a person is entitled to expunction

following a dismissal of an indictment if the person proves (1) he has been released;

(2) the charge has not resulted in a final conviction; (3) the charge is no longer

pending; (4) there was no court-ordered community supervision under article 42.12

of the Code of Criminal Procedure; and (5) the indictment was dismissed or quashed

(a) because the person completed a pretrial intervention program under section

76.011 of the Government Code or (b) because the indictment’s presentment was

due to “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 (c) because the indictment was void. See Tex. Code Crim. Proc. Ann.

art. 55.01(a)(2)(A)(ii). Simply because the charges may have been dismissed does

not, by itself, entitle a petitioner to expunction. See id.

      We review a trial court’s ruling on a petition for expunction under an abuse

of discretion standard. Tex. Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex.

App.—Houston [14th Dist.] 2008, no pet.); Heine v. Tex. Dep’t of Pub. Safety, 92

S.W.3d 642, 646 (Tex. App.—Austin 2002, pet. denied). Generally, when the

petitioner alleges that he is entitled to an expunction under article 55.01(a), if the

petitioner meets conditions and provisions of the statute, the trial court has no

discretion but to grant the petition. In re J.O., 353 S.W.3d 291, 293 (Tex. App.—El

                                            6
Paso, 2011, no pet.). We review a trial court’s interpretation or application of

expunction statutes de novo. T.C.R. v. Bell Cty. Dist. Attorney’s Office, 305 S.W.3d

661, 668-69 (Tex. App.—Austin 2009, no pet.). “‘When . . . the trial court makes no

separate findings of fact or conclusions of law, we draw every reasonable inference

supported by the record in favor of the trial court’s judgment.’” S.J., 438 S.W.3d at

841 (quoting Murray v. Murray, 276 S.W.3d 138, 143 (Tex. App.—Fort Worth

2008, pet. dism’d). “We must then affirm the judgment of the trial court on any legal

theory that finds support in the evidence.” Id.

                                      Analysis

      Durham does not contend that he was acquitted of the offense identified in the

petition, nor does he argue that he was convicted and subsequently pardoned for that

offense. Rather, Durham argues that the trial court erred in denying his petition for

expunction because he has a right to expunction under article 55.01(a)(2)(A)(ii) of

the Texas Code of Criminal Procedure because the charge was dismissed. Durham

presented no evidence with his petition. Durham does not allege that the indictment

in cause number CR28651 was dismissed because he successfully “completed a

pretrial intervention” or 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 Durham committed the offense. See

                                          7
Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A)(ii). Durham also does not contend

that the indictment or information was void. See id. Durham asserts that the “g[]ist

of this Request for Expunction is simply this, [t]he case was filed against Appellant

in the 75th Judicial District Court of Liberty County, Texas and subsequ[e]ntly

dismissed, regardless of the reasons why the case was dismissed.” Durham has failed

to meet his burden to establish that the conditions outlined in the statute have been

met. See id. The record on its face only reflects that cause number CR28651 was

dismissed after Durham was sentenced to twelve years in prison in cause number

CR28475.3

      Durham also argues on appeal that the trial court violated article 55.02 of the

Texas Code of Criminal Procedure by setting the expunction hearing “over five

months[]” after he had filed his expunction petition, and he contends that the hearing

was “inadequate[.]” Section 2(c) of article 55.02 of the Texas Code of Criminal

Procedure provides that the trial court shall set a hearing on a petition for expunction

“no sooner than thirty days from the filing of the petition” and shall give reasonable

notice of the hearing to each respondent named in the petition. Tex. Code Crim.



      3
        We note that in Durham’s reply brief he concedes that his arrest in cause
number CR28651 was the basis for the revocation of his deferred adjudication
probation. Durham’s reply brief provides no citation to the record for this assertion.
See Tex. R. App. P. 38.1(i).
                                           8
Proc. Ann. art. 55.02, § 2(c) (emphasis added). The trial court set the expunction

hearing for July 28, 2016. The trial court did not violate article 55.02 in setting the

hearing because the hearing was “no sooner” than thirty days from the filing of the

petition. See id.

       To the extent Durham argues the hearing was inadequate, “[a] trial court may

rule on an expunction petition without conducting a formal hearing and without

considering live testimony, if it has at its disposal all the information it needs to

resolve the issues raised by the petition.” Ex parte Mason, No. 05-11-00046-CV,

2013 Tex. App. LEXIS 4536, at *6 (Tex. App.—Dallas Apr. 9, 2013, pet. denied)

(mem. op.). We conclude based upon the record before us that the trial court had at

its disposal all the necessary information necessary to support its denial of the

expunction petition.

       We conclude that Durham failed to satisfy the requirements of article 55.01,

and the trial court did not err in denying his expunction petition relating to his arrest

in cause number CR28651. We overrule Durham’s issue and affirm the trial court’s

judgment.

       AFFIRMED.


                                                      _________________________
                                                         LEANNE JOHNSON
                                                               Justice
                                           9
Submitted on June 15, 2017
Opinion Delivered August 3, 2017

Before McKeithen, C.J., Horton and Johnson, JJ.




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