Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 148th District Court of Nueces County, Texas.
Valdez Chief Justice and Benavides and Longoria Justices
M. BENAVIDES, Justice
sole issue, appellant, the Texas Department of Public Safety
(the Department) challenges the trial court's granting of
appellee Marco Martinez's motion to expunge his arrest
for possession of marijuana, a Class B misdemeanor, and
possession of drug paraphernalia, a Class C misdemeanor.
See Tex. Health & Safety Code §§
481.121, 481.125 (West, Westlaw through 2017 1st C.S.);
see Tex. Code Crim. Proc. Ann. § 55.01 (West,
Westlaw through 2017 1st C.S). We reverse and remand.
was charged with possession of marijuana and possession of
drug paraphernalia on May 15, 2014. See Tex. Health
& Safety Code §§ 481.121, 481.125. On October
31, 2014, Martinez entered into an agreement with the
District Attorney's Office to be placed on the pre-trial
diversion program for the possession of marijuana offense. On
April 29, 2015, the State filed a motion to dismiss the case
stating Martinez had successfully completed the pre-trial
August 19, 2014, Martinez pleaded nolo contendere to the
possession of drug paraphernalia charge, was found guilty by
the municipal court, and was fined $477.10.
subsequently filed his motion to expunge both the possession
of marijuana and possession of drug paraphernalia charges.
The Department and the Corpus Christi City Attorney's
Office filed an answer and general denial. On December 8,
2016, the trial court held a hearing on the motion to expunge
and took judicial notice of Martinez's petition. The
State appeared and said it had no objection to the
expunction. The trial court asked the parties:
Trial Court: What about the DPS objection? Was there a DPS
Martinez: There was, but that since has been taken care of.
We've-we're back here again, and they haven't
filed anything new or appeared, so.
trial court then granted Martinez's expunction. The
Department filed its restricted appeal on June 8,
Standard of Review
appeals are governed by Rule 30 of the Texas Rules of
Appellate Procedure. See Tex. R. App. P. 30. When a
party does not participate in person or through counsel in a
hearing that results in a judgment, that party may be
eligible for a restricted appeal. See id. When
addressing a restricted appeal, our review is limited to the
face of the record. Ex Parte Vega, 510 S.W.3d 544,
547 (Tex. App.-Corpus Christi 2016, no pet.). For these