Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ex parte Baham

Court of Appeals of Texas, Fifth District, Dallas

April 5, 2017

EX PARTE MICHAEL ALLEN BAHAM

         On Appeal from the 199th Judicial District Court Collin County, Texas, Trial Court Cause No. 199-04681-2015

          Before Justices Evans, Stoddart, and Boatright.

          MEMORANDUM OPINION

          DAVID EVANS JUSTICE.

         The Texas Department of Public Safety filed this restricted appeal challenging the trial court's order granting the expunction of records relating to Michael Allen Baham's arrest and prosecution for the offense of assault causing bodily injury/family violence. In four issues, TDPS generally complains that Baham was not entitled to expunction under article 55.01(a)(2)(A), the basis set forth in the expunction order. For the reasons that follow, we modify the order of expunction to clarify that Baham was entitled to expunction under article 55.01(a)(1)(A) and affirm the trial court's order as modified.

         BACKGROUND

         On November 12, 2015, Baham filed a verified petition in district court to expunge all records and files arising out of his prosecution for a January 25, 2015 offense of assault causing bodily injury/family violence. In his petition, Baham alleged he was acquitted of the offense on November 5, 2015 following a trial before the County Court at Law No. 6 in Collin County. Baham sought expunction "[p]ursuant to Chapter 55 of the Code of Criminal Procedure" based on his acquittal, also stating he had not been convicted of a felony in the five years preceding the date of his arrest and the offense for which he was charged did not arise out of a criminal episode. The petition listed seven entities, including TDPS, as respondents. The trial court considered and granted the petition for expunction by order signed on December 4, 2015. The order was also signed by Baham's counsel and by a Collin County assistant district attorney, who agreed to the form of the order. The official court reporter has indicated in a letter to this Court that no hearing was held on this matter. TDPS filed this restricted appeal.

         ANALYSIS

         A party can prevail in a restricted appeal only if it was a party in the underlying suit and did not participate in the hearing that resulted in the judgment complained of, filed its notice of appeal within six months after the judgment was signed, and establishes error apparent on the face of the record. See Tex. R. App. P. 26.1(c), 30; Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (per curiam).

         TDPS was named a respondent in Baham's petition, did not participate in a hearing on the expunction order, and filed this restricted appeal less than six months after the expunction order was signed. Accordingly, the disposition of this appeal depends on whether error is apparent on the face of the record. For purposes of a restricted appeal, the face of the record consists of all papers on file in the appeal, including the reporter's record, if any. See Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam).

         Because expunction is a statutory privilege, the petitioner bears the burden of proving all statutory requirements have been met. Collin Cnty. Criminal Dist. Attorney's Office v. Dobson, 167 S.W.3d 625, 626 (Tex. App.-Dallas 2005, no pet.). Moreover, the trial court must strictly comply with the statutory procedures for expunction. See State v. Echeverry, 267 S.W.3d 423, 425 (Tex. App.-Corpus Christi 2008, pet. denied).

         All four of TDPS's issues in this appeal are premised on the following recital in the trial court's expunction order. "The Court finds that Michael Allen Baham is entitled to expunction as provided by Article 55.01(a)(2)(A), Texas Code of Criminal Procedure, with respect to the following offense charged against Petitioner, . . . ." TDPS contends that because article 55.01(a)(2)(A) applies to expunctions based on indictments or informations that have not been presented or have been dismissed or quashed, rather than expunctions based on acquittals, the trial court's order necessarily establishes error on the face of the record. TDPS argues that because the trial court's order cites article 55.01(a)(2)(A) as the basis for the expunction, Baham's failure to meet the requirements for expungement under that section or comply with the procedural requirements of section 2 of article 55.02 constitutes reversible error. In response, Baham contends it is undisputed that that he was acquitted of the charged offense for which he was arrested and the trial court's order citing article 55.01(a)(2)(A) instead of article 55.01(a)(1)(A) as the basis for the expunction is simply a mistake tantamount to a clerical error.

         Section 1 of article 55.02 provides a truncated procedure for expunction of records for an acquitted defendant that requires neither the filing of a petition nor a hearing. See Tex. Code Crim. Proc. Ann. art. 55.02 § 1 (West Supp. 2016); In re State Bar of Tex., 440 S.W.3d 621, 624 (Tex. 2014) (orig. proceeding). After requesting expunction, the defendant must provide the trial court with information set forth in section 2(b) of article 55.02. Tex. Code Crim. Proc. Ann. art. 55.02 § 2(b) (West Supp. 2016); In re State Bar of Texas, 440 S.W.3d at 624. Once the necessary information is provided, 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." Tex. Code Crim. Proc. Ann. art. 55.02 § 1. The order is prepared and filed by the acquitted defendant's counsel or the prosecutor, if the defendant is without counsel. Id. The court clerk then sends the order to TDPS and other entities named in the order. Id., art. 55.02 § 3(c); In re State Bar of Texas, 440 S.W.3d at 624.

         In this case, Baham filed a verified petition for expunction with the trial court containing the information listed in section 2(b) of article 55.02. He asserted he was entitled to an expunction pursuant to chapter 55 of the code of criminal procedure because he had been acquitted of the offense following a bench trial, and further stated the offense did not rise out a criminal episode.[1] The trial court's docket sheet indicates in the "Case Information" section that the "Case Type" is "Exp - 30 day Acquittal." Likewise, under the "Events & Orders of the Court" section of the docket sheet, the first entry is "Expunction 30 Day Acquittal (OCA)" Indeed, TDPS concedes in its appellate brief that Baham was acquitted of the offense for which he seeks expunction.

         TDPS makes no argument that Baham was not entitled to expungement based on the acquittal pursuant to 55.01(a)(1)(A). Instead, it contends that because the trial court's order cites article 55.01(a)(2)(A) as the basis for the expunction, Baham's acquittal will not support an expunction under 55.01(a)(2)(A) requiring reversal of the order. As noted above, however, Baham sought expunction "[p]ursuant to Chapter 55 of the Code of Criminal Procedure" based on his acquittal. The record shows that Baham was acquitted in the underlying criminal prosecution on November 5, 2015, provided the trial ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.