Court of Appeals of Texas, Fourth District, San Antonio
the 166th Judicial District Court, Bexar County, Texas Trial
Court No. 2017-CI-08970 Honorable Stephani A. Walsh, Judge
Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D.
Chapa, Justice Beth Watkins, Justice
ELENA D. CHAPA, JUSTICE
restricted appeal, the Department of Public Safety (DPS)
challenges an order granting D.L.W.'s petition for
expunction. DPS argues the order is not supported by
sufficient evidence. We reverse and render an order denying
appellant's petition for expunction.
filed a petition for expunction, alleging the charges for
which he was arrested- robbery and criminal mischief-were
dismissed. At a March 15, 2018 hearing, D.L.W. testified
briefly, explaining he had difficulty obtaining employment
because of his arrest records. The trial court admitted an
exhibit titled "Judgment, Admonishments." The trial
court granted the expunction on April 26, 2018, finding
D.L.W. was entitled to an expunction under article
55.01(a)(1)(A) of the Texas Code of Criminal Procedure, which
applies when a criminal case is tried and the defendant is
acquitted. DPS filed a notice of restricted appeal on October
filed its brief on appeal and argued, in addition to its
legal sufficiency and other issues, it was entitled to a
reversal because there is no reporter's record. However,
a reporter's record was thereafter filed in this case.
The record shows DPS filed its notice of restricted appeal
within six months after the expunction order was signed; DPS
was a party to the underlying lawsuit; and DPS did not
participate in the hearing resulting in the expunction order.
Because this is a restricted appeal, our sole remaining
inquiry is whether "error is apparent on the face of the
record." See Wray v. Papp, 434 S.W.3d 297, 299
(Tex. App.-San Antonio 2014, no pet.). D.L.W. did not file a
brief in this appeal.
argues error is apparent on the face of the record because
the expunction order is not supported by sufficient evidence.
See In re E.M.V., 312 S.W.3d 288, 291 (Tex.
App.-Dallas 2010, no pet.) (holding error is apparent on the
face of the record if record shows trial court had
insufficient evidence to support its order). "A trial
court's ruling on a petition for expunction is reviewed
for abuse of discretion." State v. T.S.N., 547
S.W.3d 617, 620 (Tex. 2018). A trial court abuses its
discretion in granting an expunction without sufficient
evidence. Ex Parte Green, 373 S.W.3d 111, 113-15
(Tex. App.-San Antonio 2012, no pet.).
sole basis for the expunction order is "that [D.L.W.] is
entitled to expunction as provided by Article 55.01(a)(1)(A),
Texas Code of Criminal Procedure." Subject to some
exceptions not applicable in this case, article
55.01(a)(1)(A) provides, "A person who has been placed
under . . . arrest . . . is entitled to have all records and
files relating to the arrest expunged if . . . the person is
tried for the offense for which the person was arrested and
is . . . acquitted by the trial court." Tex. Code Crim.
Proc. art. 55.01(a)(1)(A). D.L.W. had the burden to prove
these requirements. See Ex parte K.R.K., 446 S.W.3d
540, 544 (Tex. App.-San Antonio 2014, no pet).
testified, "I got arrested," and described his
difficulty obtaining employment and his lack of criminal
activity since his arrest. The "Judgment,
Admonishments" exhibit contains the following, all of
which relate to D.L.W.'s charge for robbery:
■ a February 7, 2006 indictment;
■ an October 9, 2006 filing that contains the
court's admonishments and defendant's waivers and
affidavit of ...