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Ex parte J.D.F.

Court of Appeals of Texas, Seventh District, Amarillo

May 1, 2019

EX PARTE J.D.F.

          On Appeal from the 364th District Court Lubbock County, Texas Trial Court No. 2016-523-660, Honorable William R. Eichman II, Presiding

          Before CAMPBELL and PIRTLE and PARKER, JJ.

          MEMORANDUM OPINION

          JAMES T. CAMPBELL JUSTICE.

         J.D.F., a prison inmate appearing pro se, filed a petition for expunction of records pursuant to Chapter 55 of the Texas Code of Criminal Procedure.[1] The Texas Department of Public Safety filed a general denial answer, and the State also appeared in opposition to the petition.[2] The hearing on J.D.F.'s petition was accomplished through two brief trial-court settings. J.D.F., due to his incarceration, appeared by telephone while the State's attorney appeared in person. Presentation at the two settings was only by the arguments of the parties setting out their respective positions for the court. No evidence was admitted. At J.D.F.'s request, without objection, the court took judicial notice of the following facts:

An indictment, charging J.D.F., was presented on July 12, 2011, and was file marked the following day, July 13, 2011.
Count I of the indictment alleged J.D.F. committed the offense of sexual performance of a child[3] on or about April 22, 2010.
Count II of the indictment alleged compelling prostitution[4] on or about April 22, 2010.
Count III of the indictment alleged aggravated promotion of prostitution[5] on or about July 1, 2010.
On December 13, 2012, J.D.F. was convicted of the offense of aggravated promotion of prostitution in cause number 2011-431, 572.
Two counts in the indictment, apparently sexual performance of a child and compelling prostitution, were dismissed on December 13, 2012.

         Five days after the hearing concluded the trial court signed a written order stating, "the requested relief is DENIED."

         Analysis

         First Issue: Expunction Under Article 55.01(a)(2)(A)(ii)(c)

         J.D.F. argues by his first issue that he "was deprived his right to expunction when the court neglected to follow the source of right pursuant to [article] 55.01(a)(2)(A)(ii)."[6]Specifically, J.D.F. argues the charges of child sexual performance and compelling prostitution were dismissed on December 13, 2012, because their presentment was made due to mistake and false information indicating a lack of probable cause. See Tex. Code Crim. Proc. Ann. ...


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