Court of Appeals of Texas, Ninth District, Beaumont
WILLIAM E. DURHAM, Appellant
THE STATE OF TEXAS, Appellee
Submitted on June 15, 2017
Appeal from the 75th District Court Liberty County, Texas
Trial Cause No. CR28651
McKeithen, C.J., Horton and Johnson, JJ.
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 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). 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.
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.
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 Tex.App. LEXIS 7301, at **1-2 (Tex. App.-Houston [1st
Dist.] June 13, 2013, pet. ref'd). 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
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.
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 Appeals
refused discretionary review. See In re Durham, No.
PD-0802-14, 2014 Tex.Crim.App. LEXIS 1184 (Tex. Crim. App.
July 23, 2014).
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
Law and Standard of Review
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