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Durham v. State

Court of Appeals of Texas, Ninth District, Beaumont

August 3, 2017

WILLIAM E. DURHAM, Appellant
v.
THE STATE OF TEXAS, Appellee

          Submitted on June 15, 2017

         On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CR28651

          Before McKeithen, C.J., Horton and Johnson, JJ.

          MEMORANDUM OPINION

          LEANNE JOHNSON, Justice

         William 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).[1] 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.

         Durham 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.

         Background Facts

         In 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).[2] 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 16, 2011.

         In a 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.

         On May 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).

         On 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 timely appealed.

         Applicable Law and Standard of Review

         The 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 ...

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