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Ex parte Martinez

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

May 31, 2018

EX PARTE MARCO MARTINEZ

          On appeal from the 148th District Court of Nueces County, Texas.

          Before Valdez Chief Justice and Benavides and Longoria Justices

          MEMORANDUM OPINION

          GINA M. BENAVIDES, Justice

         By its 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.

          I. Background

         Martinez 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 diversion program.

         On 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.

         Martinez 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 objection?
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.

         The trial court then granted Martinez's expunction. The Department filed its restricted appeal on June 8, 2017.[1]

         II. Restricted Appeal

         A. Standard of Review

         Restricted 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 purposes, ...


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