                             NUMBER 13-07-00406-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                            Appellant,

                                             v.

CARLOS JAVIER ECHEVERRY,                                                        Appellee.


   On appeal from the 24th District Court of Victoria County, Texas.


                                    OPINION

    Before Chief Justice Valdez and Justices Garza and Benavides
                       Opinion by Justice Garza

      Appellant, the State of Texas, appeals from the trial court’s granting of a petition for

expunction of records filed by appellee, Carlos Javier Echeverry. By six issues, the State

argues that the trial court erroneously granted Echeverry’s petition. We reverse and render

judgment denying the expunction.
                              I. FACTUAL AND PROCEDURAL BACKGROUND

        On April 19, 2007, Echeverry was charged by indictment with two counts of official

oppression, a misdemeanor.1 See TEX . PENAL CODE ANN . § 39.03 (Vernon 2003). On May

23, 2007, after a jury trial, Echeverry was acquitted of all charges. The trial court signed

its judgment of acquittal on June 11, 2007. On June 14, 2007, Echeverry filed an

unverified amended petition for expunction and a notice of the expunction hearing.2 The

notice provided that the expunction hearing would be conducted on June 15, 2007 at 1:30

p.m. The trial court conducted the expunction hearing on June 15, 2007, and it signed an

order granting expunction on the same day. The State timely filed its notice of appeal on

June 25, 2007. See TEX . R. APP. P. 26.1.

        On July 19, 2007, the State filed its request for findings of fact and conclusions of

law. The trial court denied the State’s request on July 27, 2007, asserting that the State

had not timely filed its request in accordance with rule 296 of the rules of civil procedure.

See TEX . R. CIV. P. 296 (providing that a request for findings of fact and conclusions of law

must be filed within twenty days after the judgment is signed). This appeal ensued.

                                          II. STANDARD OF REVIEW

        A trial court’s ruling on an expunction is reviewed under an abuse of discretion

standard. Heine v. Tex. Dep’t of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.–Austin 2002,

pet. denied); see Tex. Dep’t of Pub. Safety v. Morales, No. 13-07-00552-CV, 2008 Tex.


        1
          The indictm ent alleged that Echeverry, an officer of the Victoria Police Departm ent, intentionally
subjected Ann Soto to m istreatm ent and effectuated an unlawful traffic stop for the purpose of m aking sexual
advances. The indictm ent also provided that Echeverry, during the traffic stop, subjected Soto to sexual
harassm ent by touching her breast without her consent. The indictm ent alleged that the crim inal episode
transpired on or about August 20, 2006.

        2
            Echeverry’s original petition was not contained in the record.

                                                        2
App. LEXIS 3898, at *5 (Tex. App.–Corpus Christi May 22, 2008, no pet.) (mem. op.). A

trial court abuses its discretion when it acts without reference to guiding rules and

principles or if its actions are arbitrary and unreasonable.       Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

                                       III. ANALYSIS

       By its first two issues, the State argues that Echeverry: (1) failed to establish his

right to expunction by a preponderance of the evidence; and (2) failed to refute the

exception to the right of expunction contained in article 55.01(c) of the code of criminal

procedure. See TEX . CODE CRIM . PROC . ANN . art. 55.01(c) (Vernon 2006). Echeverry

contends that the expunction statutes are remedial in nature and are intended to be

construed liberally; therefore, because he was acquitted of all charges contained in the

indictment, he is entitled to expungement. Echeverry further asserts that the State failed

to prove that it is pursuing further criminal charges arising out of the criminal episode.

a. Applicable Law

       To be entitled to an expunction, the petitioner has the burden of proving that all the

statutory requirements have been satisfied. In re Expunction of C.V., 214 S.W.3d 43, 44

(Tex. App.–El Paso 2006, no pet.); see Bargas v. State, 164 S.W.3d 763, 770 (Tex.

App.–Corpus Christi 2005, no pet.); see also Morales, 2008 Tex. App. LEXIS 3898, at *5.

“The trial court must strictly comply with the statutory procedures for expunction, and it

commits reversible error when it fails to comply.” Tex. Dep’t of Pub. Safety v. Fredricks,

235 S.W.3d 275, 278 (Tex. App.–Corpus Christi 2007, no pet.). Article 55.01 of the Texas

Code of Criminal Procedure sets forth the rules that a trial court must apply in determining



                                             3
a person’s right to expunction. See TEX . CODE CRIM . PROC . ANN . art. 55.01. Specifically,

article 55.01(a) provides, in relevant part, that a person is entitled to expunction of an arrest

record if:

         (1) the person is tried for the offense for which the person was arrested and
         is:

                    (A) acquitted by the trial court, except as provided by Subsection (c)
                    of this section; or

                    ....

         (2) each of the following conditions exist:

                    (A) an indictment or information charging the person with commission
                    of a felony has not been presented against the person for an offense
                    arising out of the transaction for which the person was arrested for .
                    . . and:

                            (i) the limitations period expired before the date on which a
                            petition for expunction was filed under Article 55.02;

                    ....

         (c) A court may not order the expunction of records and files relating to an
         arrest for an offense for which a person is subsequently acquitted, whether
         by the trial court or the court of criminal appeals, if the offense for which the
         person was acquitted arose out of a criminal episode, as defined by Section
         3.01, Penal Code, and the person was convicted of or remains subject to
         prosecution for at least one other offense occurring during the criminal
         episode.[3]


         3
             Section 3.01 of the penal code provides that a “crim inal episode” is:

         [T]he com m ission of two or m ore offenses, regardless of whether the harm is directed toward
         or inflicted upon m ore than one person or item of property, under the following
         circum stances:

                    (1) the offenses are com m itted pursuant to the sam e transaction or pursuant to two
                    or m ore transactions that are connected or constitute a com m on schem e or plan; or

                    (2) the offenses are the repeated com m ission of the sam e or sim ilar offenses.

T EX . P EN AL C OD E A N N . § 3.01 (Vernon 2003).

                                                         4
Id. art. 55.01(a)(1)(A), (a)(2)(A)(i), (c). If a petitioner demonstrates that he has satisfied

each of the requirements under article 55.01 of the code of criminal procedure, the trial

court does not have any discretion to deny the request for an expunction; the court must

grant the request. Heine, 92 S.W.3d at 648 (citing Perdue v. Tex. Dep’t of Pub. Safety, 32

S.W.3d 333, 335 (Tex. App.–San Antonio 2000, no pet.)).

       Moreover, article 55.02 provides the following:

       Sec. 1. At the request of the defendant and after notice to the state, the trial
       court presiding over the case in which the defendant was acquitted, if the trial
       court is a district court, or a district court in the county in which the trial court
       is located shall enter an order of expunction for a person entitled to
       expunction under article 55.01(a)(1)([A]) not later than the 30th day after the
       date of acquittal. . . . The defendant shall provide to the district court all of
       the information required in a petition for expunction under Section 2(b).

              ....

       Sec. 2.

              ....

              (b) The petition must be verified and shall include the following or an
              explanation for why one or more of the following is not included . . . .

TEX . CODE CRIM . PROC . ANN . art. 55.02, §§ 1, 2(b) (Vernon Supp. 2007).

b. Discussion

       At the expunction hearing, Victoria County District Attorney Stephen B. Tyler

testified that his office was also investigating Echeverry for:

       tampering with or fabricating physical evidence. That would be the
       destruction of the videotape in his car. The abuse of official capacity. That
       would be utilizing his car in a harassing manner or stopping a citizen with the
       car and harassment for his use of the telephone in pursuing a woman not job




                                                5
         related.

Each of these possible charges stemmed from the same criminal episode occurring on or

about August 20, 2006.4 Tyler later noted that the investigation was ongoing, but he did

not disclose precisely the current stage of the investigation. He merely stated that his

office may pursue further charges based on this criminal episode at any point during the

statutory period.5 See id. art. 12.02 (Vernon 2005) (“An indictment of information for any

misdemeanor may be presented within two years from the date of the commission of the

offense, and not afterward.”). Echeverry did not offer any evidence or testimony to rebut

the contentions made by Tyler.

         The trial court granted Echeverry’s petition for expunction on June 15, 2007. At this

time, the two-year statute of limitations period for misdemeanors had not fully run.6

Echeverry has not directed us to, nor are we aware of, any authority requiring the State to



         4
          The characterization of the events transpiring on or about August 20, 2006, as a crim inal episode
is undisputed.

         5
           Tyler’s testim ony that Echeverry is still subject to prosecution for, am ong other things, tam pering with
physical evidence is noteworthy. See id. § 37.09(a)(1) (Vernon Supp. 2007) (providing that “[a] person
com m its an offense if, knowing that an investigation or official proceeding is pending or in progress, he . . .
alters, destroys, or conceals any record, docum ent, or thing with intent to im pair its verity, legibility, or
availability as evidence in the investigation or official proceeding”). The Texas Penal Code states that
tam pering with physical evidence is a third degree felony. Id. § 37.09(c). Furtherm ore, the record reflects that
neither an indictm ent nor an inform ation has been presented regarding this offense. Therefore, article
55.01(a)(2)(A)(i) would be applicable, which requires that the relevant statute of lim itations expire before a trial
court m ay grant a petition for expunction pursuant to article 55.02. See T EX . C OD E C R IM . P R O C . A N N . §
55.01(a)(2)(A)(I) (Vernon 2006); id. art. 55.02 (Vernon Supp. 2007); see also State v. Beam, 226 S.W .3d 392,
395 (Tex. 2007) (approving of holdings by the Dallas Court of Appeals requiring “a party seeking expunction
to prove that the lim itations period for the applicable offense—whether m isdem eanor or felony— has expired
before filing the petition”) (citing Collin County Crim. Dist. Attorney’s Office v. Dobson, 167 S.W .3d 625, 627
(Tex. App.–Dallas 2005, no pet.); State v. Bhat, 127 S.W .3d 435, 436 (Tex. App.–Dallas 2004, no pet.)).

         6
          Because the crim inal episode occurred on or about August 20, 2006, the lim itations period for
charging Echeverry with an additional m isdem eanor does not end until August 20, 2008. M oreover, the
generic statute of lim itations period for felonies is three years from the date of the com m ission of the offense,
thus extending the lim itations period to August 20, 2009. See T EX . C OD E C R IM . P R O C . A N N . art. 12.01(6)
(Vernon Supp. 2007).

                                                          6
clearly specify which other crimes associated with the criminal episode it intends to charge

him with during the limitations period. In fact, Echeverry bore the burden of proving his

entitlement to expunction under article 55.01. See id. art. 55.01(a)(1)(a); see also In re

Expunction of C.V., 214 S.W.3d at 44; Bargas, 164 S.W.3d at 770; Morales, 2008 Tex.

App. LEXIS 3898, at *5. Because he was subject to prosecution for at least one other

offense occurring during the criminal episode and because he failed to produce evidence

to the contrary, Echeverry was not eligible for expunction. See TEX . CODE CRIM . PROC .

ANN . art. 55.01(a)(1)(A), (c).

       Echeverry, however, argues that article 55.02, section 1 provides that upon his

request for expunction and notice to the State, it was mandatory for the trial court to grant

his request because he was acquitted of all charges contained in the original indictment.

We disagree.

       Article 55.02, section 1 provides that the trial court “shall enter an order of

expunction for a person entitled to expunction under article 55.01(a)(1)([A]) not later than

the 30th day after the date of the acquittal.” Id. art. 55.02, § 1 (emphasis added). Article

55.02, section 1 clearly references article 55.01(a)(1)(A), which, as we have already stated,

required Echeverry to prove that he was not subject to further prosecution for at least one

other offense arising out of the criminal episode. Id.; see id. art. 55.01(a)(1)(A), (c).

Because Echeverry was still subject to prosecution for at least one other offense arising

out of the criminal episode at the time the trial court granted his petition for expunction,

Echeverry was not entitled to an expunction of records pursuant to article 55.02 of the code

of criminal procedure. See id. art. 55.02, § 1.



                                             7
      Therefore, based on the foregoing, we conclude that the trial court abused its

discretion in granting Echeverry’s petition for expunction. See Fredricks, 235 S.W.3d at

278; Heine, 92 S.W.3d at 646. Accordingly, we sustain the State’s first and second issues.

                                     V. CONCLUSION

      Because we have sustained the State’s first and second issues on appeal, we need

not address the State’s remaining four issues. See TEX . R. APP. P. 47.1. We reverse and

render judgment denying the expunction.




                                                DORI CONTRERAS GARZA,
                                                Justice

Opinion delivered and filed
this the 21st day of August, 2008.




                                            8
