Court of Appeals of Texas, Fourth District, San Antonio
the 166th Judicial District Court, Bexar County, Texas Trial
Court No. 2016CI08228 Honorable Richard Price, Judge
Sitting: Karen Angelini, Justice, Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice.
Patricia O. Alvarez, Justice.
Texas Department of Public Safety appeals the trial
court's grant of an expunction of James Kenneth
Curll's arrest for assault bodily injury-married. Because
Curll failed to prove the statutory requirements of Texas
Code of Criminal Procedure article 55.01(a), we reverse the
trial court's order granting the petition for expunction.
April 27, 2014, Curll was arrested for assault bodily
injury-married and driving while intoxicated. On May 5, 2014,
Curll was charged by information No. 457859 with assault
bodily injury-married and by information No. 457860 with
driving while intoxicated with blood alcohol content 0.15 or
higher. On July 28, 2015, Curll entered a plea of no contest
to driving while intoxicated and was sentenced to thirty-days
confinement in the Bexar County Jail and a $600.00 fine. On
the same day, the assault charge was dismissed pursuant to
the State's motion asserting "a necessary and
material witness is missing."
13, 2016, Curll filed a petition to expunge the records
associated with the assault charge. See Tex. Code
Crim. Proc. Ann. art. 55.01(a)(2) (West 2018). In his
petition, Curll averred that he was arrested and charged by
complaint with assault bodily injury-married, but he was
"released from custody and no final conviction resulted
nor are charges pending inasmuch as all charges were
dismissed on July 28, 2015." On June 17, 2016, the
Department filed an answer denying that Curll was entitled to
an expunction because Curll was convicted of the driving
while intoxicated as a result of the arrest. The trial court
granted the petition on August 4, 2016, and this appeal
restricted appeal is limited to cases in which a party can
show (1) "[the party] filed notice of the restricted
appeal within six months after the judgment was signed,
" (2) "[the party] was a party to the underlying
lawsuit, " (3) "[the party] did not participate in
the hearing that resulted in the judgment complained of and
did not timely file any postjudgment motions or requests for
findings of fact and conclusions of law, " and (4)
"error is apparent on the face of the record."
Ins. Co. of State of Penn. v. Lejeune, 297 S.W.3d
254, 255 (Tex. 2009) (per curiam); Tex.R.App.P. 26.1(c), 30.
For purposes of a restricted appeal, "[t]he face of the
record . . . consists of all the papers on file in the
appeal, including the [reporter's record]."
Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d
269, 270 (Tex. 1997) (per curiam); Flores v. Brimex Ltd.
P'ship, 5 S.W.3d 816, 819 (Tex. App.-San Antonio
1999, no pet.).
Filed within Six Months
the Order of Expunction was signed by the trial court on
August 4, 2016, and the Department filed its notice of
restricted appeal on February 3, 2017. See Tex. R.
App. P. 26.1(c). Accordingly, the Department met the first
requirement for raising a restricted appeal. See
Tex. R. App. P. 30; Tex. Dep't of Pub. Safety v.
Foster, 398 S.W.3d 887, 890 (Tex. App.-Dallas 2013, no
Party to the Underlying Action
Department must also show that it was a party to the
underlying action and that it did not participate in the
hearing that resulted in the judgment complained of, and
"did not timely file a postjudgment motion or request
for findings of fact and conclusions of law."
See Tex. R. ...