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Ex parte L.M.W

Court of Appeals of Texas, Twelfth District, Tyler

April 24, 2019

EX PARTE: L.M.W.

          APPEAL FROM THE 2ND JUDICIAL DISTRICT COURT CHEROKEE COUNTY, No. A201800004 TEXAS

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          James T. Worthen Chief Justice

         The Texas Department of Public Safety (DPS) appeals the trial court's order granting an expunction of L.M.W.'s arrest for public intoxication and deadly conduct. DPS presents two issues on appeal. We reverse and render.

         Background

         L.M.W. was arrested on October 24, 2016, and charged with deadly conduct and public intoxication. She completed a pre-trial diversion program for dismissal of the deadly conduct charge. She pleaded no contest to the public intoxication charge, for which she was convicted, sentenced to a fine of $215.00, and granted one day of jail time credit.

         In March 2018, L.M.W. filed a petition to expunge any and all of the records arising from the October 2016 arrest. She alleged that the arrest did not result in a final conviction. DPS filed an answer and general denial asserting that L.M.W. did not qualify for expunction of her records because the October 24, 2016, arrest resulted in a final conviction for public intoxication. Copies of the information, arrest report, probable cause affidavit, final judgment, and payment receipts were attached to DPS's answer. After a hearing in which DPS did not participate and L.M.W. was the only witness, the trial court granted L.M.W.'s petition. This restricted appeal followed.

         Expunction

         In its second issue, which is dispositive, DPS contends L.M.W. did not present legally sufficient evidence to support her assertion that the public intoxication charge did not result in a final conviction.

         Standard of Review

         A party can prevail in a restricted appeal only if (1) it filed notice of the restricted appeal within six months after the judgment was signed, (2) it was a party to the underlying lawsuit, (3) it 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. See Tex. R. App. P. 26.1(c), 30; Ins. Co. of State of Penn. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009). For purposes of a restricted appeal, the face of the record consists of all 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); Flores v. Brimex Ltd. P'ship, 5 S.W.3d 816, 819 (Tex. App.-San Antonio 1999, no pet.). The absence of legally sufficient evidence to support a judgment is reviewable in a restricted appeal. Norman Commc'ns, 955 S.W.2d at 270; Flores, 5 S.W.3d at 819. We review a trial court's order granting or denying a petition for expunction under an abuse of discretion standard. See Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.-Austin 2002, pet. denied). A trial court abuses its discretion if it acts "without reference to any guiding rules or principles." E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). If an expunction ruling turns on a question of law, we review it de novo because a "trial court has no 'discretion' in determining what the law is or applying the law to the facts." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A trial court abuses its discretion if it misinterprets or misapplies the law. Id.

         In our legal sufficiency review, we determine "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Basley v. Adoni Holdings, LLC, 373 S.W.3d 577, 582 (Tex. App.-Texarkana 2012, no pet.). We credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable fact-finder could not. City of Keller, 168 S.W.3d at 827. The evidence is legally insufficient if (1) there is a complete absence of evidence of a vital fact; (2) the rules of law or of evidence bar the court from giving weight to the only evidence offered to prove a vital fact; (3) there is no more than a mere scintilla of evidence offered to prove a vital fact; or (4) the opposite of the vital fact is conclusively established by the evidence. Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010). There is more than a scintilla of evidence when the evidence reaches a level enabling reasonable and fair-minded people to differ in their conclusions. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). "Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or suspicion' of a fact." King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

         Governing Law

         Although the law that governs expunctions is part of the code of criminal procedure, an expunction proceeding is civil in nature and is governed by the rules of civil procedure. See Carson v. State, 65 S.W.3d 774, 784 (Tex. App.-Fort Worth 2001, no pet.). Expunction is not a constitutional or common law right, but purely a statutory privilege. Tex. Dep't of Pub. Safety v. Nail, 305 S.W.3d 673, 675 (Tex. App.-Austin 2010, no pet.). The trial court must strictly comply with statutory requirements and has no equitable power to extend ...


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