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 Curll

Court of Appeals of Texas, Fourth District, San Antonio

March 28, 2018

EX PARTE James Kenneth CURLL

          From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2016CI08228 Honorable Richard Price, Judge Presiding.

          Sitting: Karen Angelini, Justice, Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice.

          MEMORANDUM OPINION

          Patricia O. Alvarez, Justice.

         REVERSED AND RENDERED

         Appellant 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.

         Factual Background

         On 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."

         On May 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 ensued.

         Restricted Appeal

         A 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.).

         A. Filed within Six Months

         Here, 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 pet.).

         B. Party to the Underlying Action

         The 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. ...


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.