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Ex parte J.A.B.

Court of Appeals of Texas, Fourth District, San Antonio

October 23, 2019

EX PARTE J.A.B., Jr.

          From the 216th Judicial District Court, Kerr County, Texas Trial Court Nos. 18-833-A & 18-834-A Honorable N. Keith Williams, Judge Presiding

          Sitting: Rebeca C. Martinez, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice

          OPINION

          Beth Watkins, Justice

         The Texas Department of Public Safety appeals the trial court's orders granting the petitions for expunction filed in the underlying causes by J.A.B., Jr. The Department contends the trial court erred in granting the expunctions because: (1) the offenses for which J.A.B. was acquitted arose out of the same criminal episode as an offense for which he was convicted; and (2) the evidence is insufficient to support the expunctions. We reverse the trial court's orders and render judgment denying the petitions.

         Background

         J.A.B. filed petitions to expunge all criminal records and files pertaining to his 2016 arrest for two offenses of assault of a public servant. The Department filed an original answer and general denial asserting J.A.B. was not entitled to expunge the records of this arrest because he was convicted of the same or similar offenses which arose out of a criminal episode for which expunction is not available.[1] Specifically, the Department alleged J.A.B. was previously convicted of the following same or similar offenses:

• one count of assault of a public servant in 2010;
• two counts of harassment of a public servant in 2010; and
• one count of aggravated assault with a deadly weapon in 2015.

         The Department did not attend the hearing on J.A.B.'s petitions. J.A.B. testified the 2016 charges were filed while he was in jail in Kerr County, and he was alleged to have assaulted two officers who were trying to restrain him after they found contraband. He testified he was acquitted by a jury of the 2016 charges.

         With regard to the 2015 aggravated assault with a deadly weapon charge, J.A.B. explained that offense occurred after he was released from the juvenile correctional facility. He was placed on deferred adjudication for the offense, but was later adjudicated and sentenced to seven years' imprisonment. J.A.B. testified the victim in that offense was not a correctional officer, and he was not confined when the offense occurred. J.A.B. also stated the 2015 offense was "the offense dealing with the concert."

         Finally, J.A.B. explained that the 2010 charges of harassment of a public servant involved him spitting on a correctional officer while in a juvenile correctional facility. He also explained the 2010 charge of assault of a public servant occurred when he was "playing tug of war" with a correctional officer and her walkie-talkie. When he yanked the walkie-talkie from her hand, he hit another officer he did not see standing next to him.

         At the conclusion of the hearing, the trial court granted the petitions reasoning the 2015 offense was not the "same or similar" because it did not involve an assault on a law enforcement officer. The trial court also reasoned the 2010 offenses occurred when J.A.B. was a juvenile. The trial court's written orders state J.A.B. was entitled to the expunctions under article 55.01(a)(1)(A) of the Texas Code of Criminal Procedure.

         Standard ...


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