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Ex parte McKinney

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

April 20, 2017

EX PARTE DARLENE GAIL MCKINNEY

         On appeal from the 103rd District Court of Cameron County, Texas.

          Before Justices Contreras, Benavides, and Hinojosa

          MEMORANDUM OPINION

          DORI CONTRERAS Justice

         Appellant, the Texas Department of Public Safety (the Department), brings this restricted appeal from the trial court's order expunging the arrest records of appellee, Darlene Gail McKinney. The Department contends by two issues that the trial court erred in expunging records of two arrests for driving while intoxicated (DWI). We reverse and render judgment denying McKinney's petition for expunction.

         I. Background

         McKinney was arrested for DWI on May 23, 1998 and July 20, 2013. After the 1998 arrest, McKinney was charged by information with DWI, a Class B misdemeanor. See Tex. Penal Code Ann. § 49.04 (West, Westlaw through 2015 R.S.). Pursuant to an agreement, the State moved to dismiss the DWI charge in exchange for McKinney's plea of guilty to reckless driving, a misdemeanor carrying a punishment not to exceed a fine of $200 and confinement in county jail for thirty days. See Tex. Transp. Code Ann. § 545.401 (West, Westlaw through 2015 R.S.). The trial court granted the State's motion to dismiss the DWI charge and the State then filed a new information alleging reckless driving under a separate cause number. On February 9, 1999, McKinney pleaded guilty to the offense of reckless driving. The trial court deferred a finding of guilt, placed McKinney on community supervision for nine months, and assessed a $200 fine. The conditions of community supervision, which were attached to the judgment, contained a handwritten addendum stating that "Defendant shall have unsupervised probation."

         Following her 2013 arrest, McKinney was again charged by information with DWI. In February 2015, the State charged McKinney in a separate cause number with the offense of failing to drive within a single lane on a multiple-lane roadway, a misdemeanor, also allegedly committed on July 20, 2013. See id. § 545.060(a) (West, Westlaw through 2015 R.S.); see also id. § 542.301 (West, Westlaw through 2015 R.S.). McKinney pleaded nolo contendere to the latter offense on February 23, 2015, and the trial court found her guilty and sentenced her to a fine and court costs of $300.10. The State then moved to dismiss the DWI charge and the trial court granted the motion.

         On March 16, 2015, McKinney filed a petition to expunge the records of both the 1998 and 2013 arrests under article 55.01(a)(2) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2) (West, Westlaw through 2015 R.S.). The Department filed an answer asserting that expunction is barred (1) as to the 1998 arrest because that arrest resulted in the imposition of court-ordered community supervision, and (2) as to the 2013 arrest because that arrest resulted in a conviction.

         McKinney testified at a May 27, 2015 hearing that her attorney in the 1998 case told her that her conviction for reckless driving would make her arrest eligible for expunction because her "probation . . . was specifically to be unsupervised." McKinney stated that she would not have agreed to plead guilty to the reckless driving charge if she believed that expunction was not available. As to the 2013 arrest, McKinney's attorney argued that offense was "not a charge deriving from the arrest" because the order dismissing the DWI charge states that the reason for the dismissal was that she "was convicted in another case." Counsel further stated that "we intended to get deferred adjudication on that, as well, " but "the Judge didn't write it down as deferred adjudication." After hearing further argument from counsel at another hearing on September 22, 2015, the trial court granted McKinney's petition for expunction as to both the 1998 and 2013 arrests.

         This restricted appeal followed.[1]

         II. Discussion

         A. Restricted Appeal

         To attack an order by restricted appeal, the Department must show: (1) it was a party who did not participate in the hearing that resulted in the judgment complained of; (2) it filed a notice of appeal within six months after the order was signed; (3) it did not timely file a post-judgment motion or request findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Tex.R.App.P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Tex. Dep't of Pub. Safety v. Fredricks, 235 S.W.3d 275, 278 (Tex. App.-Corpus Christi 2007, no pet.).

         The record indicates that the Department was a party, that it did not appear at either hearing, [2] that it filed a notice of restricted appeal within six months of the expunction order, and that no post-judgment motions or request for findings of fact and conclusions of law were filed. We therefore must determine if error is apparent from the face of the record. See Alexander, 134 S.W.3d at 848; Fredricks, 235 S.W.3d at 278. The "face of the ...


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