


 
 
 


In The
Court of Appeals
For The
First District of Texas
_______________

NO. 01-01-00590-CV
____________

HARRIS COUNTY, Appellant

V.

E.B.H., Appellee



On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2000-50426



OPINION  ON  REHEARING
          The Court today heard E.B.H.’s motion for rehearing, and the same has been
duly considered and found to be without merit.  It is therefore ordered that the motion
for rehearing is denied.  However, this Court’s former judgment of July 25, 2002, is
vacated, set aside, and annulled.  We withdraw our previous opinion of July 25, 2002,
and substitute this opinion in its stead.
          This is an appeal from an order of expunction granted E.B.H. relating to his
criminal records for felony theft.  We reverse and render.Background
          E.B.H. filed a petition for expunction of certain criminal records pertaining to
four arrests and prosecutions for various offenses.  With regard to the fourth arrest
and prosecution, which are the subject of this appeal, E.B.H. pleaded not guilty to the
felony offense of theft of property valuing more than $750 and less than $20,000.  A
jury found him guilty, and the trial court assessed punishment at four years
confinement in the Texas Department of Criminal Justice-Institutional Division.  The
Fourteenth Court of Appeals reversed E.B.H.’s conviction and rendered a judgment
of acquittal based on the legal insufficiency of the evidence.  Heimlich v. State, 988
S.W.2d 382, 385 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).  
          E.B.H. then sued to expunge his criminal records, and the trial court rendered
judgment expunging E.B.H.’s criminal records.  Harris County appeals the judgment
of the trial court.
AnalysisIn two points of error, Harris County contends that E.B.H was not entitled to
an expunction of the felony theft criminal records.  
          The trial court expunction order stated as follows:
a.  An indictment charging Petitioner with the commission of the offense
of Theft of property of the value of more than $750.00 and under
$20,00.00 [sic] was presented, but it has been dismissed because the
presentment was made due to a mistake, false information, or other
similar reason indicating the absence of probable cause at the time of the
dismissal to believe that the person committed the offense; 
 
b.  Petitioner has been released and the charge has not resulted in a final
conviction, is no longer pending and there was no court ordered
community supervision under Article 42.12, C.C.P.;
 
c.  The Petitioner has not been convicted of a felony in the five years
preceding the date of his arrest; and 
 
d.  The offense for which Petitioner was acquitted did not arise out of a
criminal episode. . . . 
          Although the expunction order did not provide a statute upon which it was
based, the language set forth above corresponds to article 55.01(a)(2) of the Code of
Criminal Procedure.  Tex. Code Crim. Proc. Ann. art. 55.01(a)(2).
  After reviewing
the record, we found no evidence to show that the requirements of article 55.01(a)(2)
were met.  Specifically, there is no evidence proving the recitations in the expunction
order that E.B.H.’s indictment was “dismissed because the presentment was made due
to a mistake, false information, or other similar reason indicating the absence of
probable cause at the time of the dismissal to believe that the person committed the
offense.”
          E.B.H.’s indictment was not dismissed.  Instead, the Fourteenth Court of
Appeals reversed the conviction and rendered a judgment of acquittal based on
sufficiency of the evidence.  Heimlich, 988 S.W.2d at 385.  We hold that the evidence
is legally insufficient to show that E.B.H. was entitled to an expunction based on
Article 55.01(a)(2).
          Nor was E.B.H. entitled to an expunction under articles 55.01(a)(1)(A) and
55.01(b)(3).  Article 55.01(a)(1)(A) provides that a person is entitled to expunction
if he is “acquitted by the trial court.”  Tex. Code Crim. Proc. Ann. art.
55.01(a)(1)(A).  Article 55.01(b)(3) provides that a district court may expunge arrest
records if a defendant is “acquitted by the court of criminal appeals.”  Tex. Code
Crim. Proc. Ann. art. 55.01(b)(3).
          E.B.H. was not acquitted by the trial court or by the court of criminal appeals. 
Instead, the Fourteenth Court of Appeals rendered a judgment of acquittal.  Heimlich,
988 S.W.2d at 385.  We have previously decided this issue in Harris County Dist.
Attorney’s Office v. Jimenez, 886 S.W.2d 521, 522-23 (Tex. App.—Houston [1st
Dist.] 1994, writ denied).  We are bound by the plain language of the statute, which
refers to the “court of criminal appeals,” not to this Court.
          We acknowledge that Ex parte Current held that the statute is “nonsensical”
if it allows expunction after appellate acquittals only by the Court of Criminal
Appeals.  877 S.W.2d 833, 836 (Tex. App.—Waco 1994, no writ).  The Current court
concluded that “the legislature intended to allow for the expunction of criminal
records when the defendant is acquitted by an appellate court and did not intend to
limit that eligibility to defendants acquitted only by the Court of Criminal Appeals.” 
Id. at 839.  Notwithstanding its disposition, the Current court conceded that
prosecutors urged, and legislators agreed, that expunctions after appellate acquittals
were “less defensible” than expunctions after trial court acquittals.  Id. at 839.
  As
we stated in Jimenez, “We may not second-guess the legislature, even if we believe
that particular laws will have ‘disastrous or mischievous results.’”  Jimenez, 886
S.W.2d at 523.  We leave the problem to the legislature for further consideration. 
Wilkomirski v. Tex. Criminal Info. Ctr., 845 S.W.2d 424, 427 (Tex. App.—Houston
[1st Dist.] 1992, no writ).
          For the reasons outlined in Jimenez, E.B.H. is not entitled to expunction under
article 55.01 of the felony theft arrest and prosecution records.  We sustain Harris
County’s points of error one and two.Conclusion
          E.B.H.’s motions for rehearing and for en banc consideration are denied.  We
hold that E.B.H. was not entitled to an expunction of the criminal records pertaining
to his arrest and prosecution for the felony offense of theft of property valuing more
than $750 and less than $20,000.  We reverse that portion of the trial court’s
judgment, and we render judgment in favor of Harris County that E.B.H. was not
entitled to an expunction of the criminal records pertaining to his arrest for theft of
property valuing more than $750 and less than $20,000.  


                                                                                  Adele Hedges
                                                                                  Justice

Panel consists of Justices Hedges, Jennings, and Price.
 

A unanimous Court voted to overrule the motion for rehearing en banc.
