Ex parte Current

• Decision Date: 25 May 1994
• Docket Number: No. 10-94-015-CV,10-94-015-CV
• Citation: 877 S.W.2d 833
• Parties: Ex parte Carl Clifton CURRENT, Jr.
• Court: Texas Court of Appeals

Page 833

877 S.W.2d 833

Ex parte Carl Clifton CURRENT, Jr.

No. 10-94-015-CV.

Court of Appeals of Texas Waco.

May 25, 1994.

Carl Clifton Current, Jr., pro se.

Dale S. Hanna, Dist. Atty., William G. Mason, Asst. Dist. Atty., Cleburne, for appellee.

Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

THOMAS, Chief Justice.

Carl Current, Jr., proceeding in forma pauperis, moved to expunge the records of his conviction for burglary of a building. See TEX.CODE CRIM.PROC.ANN. art. 55.01 (Vernon Supp.1994). Although Current claims that the court erred in dismissing his motion, the record reflects that the court actually denied the motion. He argues that the court abused its discretion by ruling on the motion without holding an evidentiary hearing and that the State failed to carry a burden of demonstrating that he was not entitled to an expunction. We will reverse.

The facts are not in dispute. A jury convicted Current of the burglary offense in September 1990. This court determined that the evidence was insufficient to support the conviction, reversed the judgment, and remanded the cause to the trial court with instructions to enter a judgment of acquittal. See Current v. State, 10-90-183-CR (Tex.App.--Waco, November 27, 1991, no pet.) (not designated for publication). Consistent with our instructions, the court signed a judgment of acquittal on February 17, 1993.

Current filed his "motion to expunge records" in the trial court on October 27, 1993. He alleged in the motion that he was charged with the offense of burglary of a building, that this court reversed the conviction and issued a mandate for a judgment of acquittal, and that a judgment of acquittal was rendered. The Johnson County District Attorney's Office responded, conceding that this court had reversed the conviction and ordered a judgment of acquittal, but arguing that Current was not entitled to expunction because the indictment had not been dismissed. In the order denying Current's request to have his records expunged, the court included its factual findings that Current was indicted for the felony offense of burglary of a building and that the indictment was not dismissed.

Current claims that the court denied him due process when it ruled on the motion without holding an evidentiary hearing. Our resolution of this issue depends on our consideration of Current's eligibility for expunction under the statute. Thus, we defer this issue until after our discussion of his eligibility for expunction.

To obtain expunction of his records, Current, as the petitioner, has the burden of proving that he met the provisions of the statute. See Harris County Dist. Atty's Off. v. M.G.G., 866 S.W.2d 796, 798 (Tex.App.--Houston [14th Dist.] 1993, no writ). Effective September 1, 1993, before Current filed his motion to expunge, the legislature amended article 55.01 to read:

Art. 55.01 Right to Expunction

(a) A person who has been arrested for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:

(1) the person is tried for the offense for which the person was arrested and is:

(A) acquitted by the trial court; or

(B) convicted and subsequently pardoned; or

(2) each of the following conditions exist:

(A) an indictment or information charging him with commission of a felony has not been presented against him for an offense arising out of the transaction for which he was arrested or, if an indictment or information charging him with commission of a felony was presented, it has been dismissed and the court finds that it was dismissed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;

(B) he has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered probation under Article 42.12, Code of Criminal Procedure, nor a conditional discharge under Section 481.109, Health and Safety Code; and (C) he has not been convicted of a felony in the five years preceding the date of the arrest.

(b) A district court may expunge all records and files relating to the arrest of a person who has been arrested for commission of a felony or misdemeanor under the procedure established under Article 55.02 of this code if the person is:

(1) tried for the offense for which the person was arrested;

(2) convicted of the offense; and

(3) acquitted by the court of criminal appeals.

See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 7.02(a), 1993 Tex.Sess.Law.Serv. 3589, 3766 (Vernon) (codified at TEX.CODE CRIM.PROC.ANN. art. 55.01) (new text emphasized). The legislature specifically provided that "[t]he change in law ... permitting expunctions for persons acquitted of or pardoned for offenses applies to a defendant acquitted of or pardoned for an offense regardless of whether the offense was committed before, on, or after the effective date of this article." See id. § 7.02(b) (also found in the Historical and Statutory Notes following article 55.01 (Vernon Supp.1994)). Thus, this new law applies to Current's motion for expunction.

The two sections of this statute are distinctly different. Section (a) provides for an entitlement to the expunction of the criminal records. Once an applicant demonstrates his eligibility under the provisions of this section, the court does not have the discretion to refuse to order the records expunged. Section (b), however, states that the court "may" expunge the records; thus, an applicant who meets the criteria of this section places the decision on the motion to expunge within the sound discretion of the trial court. See Barlow v. Lane, 745 S.W.2d 451, 453-54 (Tex.App.--Waco 1988, writ denied). Although the court is required to exercise that discretion once the applicant demonstrates that he comes under section (b), the court's decision is reviewable only under the abuse-of-discretion standard.

In this court, the State argues that Current has not demonstrated that he satisfies any of the conditions in the statute which entitle him to expungement. We agree. Current does not allege that he has been pardoned for the offense; thus, subsection (a)(1)(B) is not at issue in this cause. Under subsection (a)(1)(A), Current is required to show that he was acquitted by the trial court. Reading the plain language of this statute, we conclude that subsection (a)(1)(A) applies when the defendant is acquitted without a finding of guilt by a trier of fact. In each of the other subsections, the existence of a conviction is expressly taken into consideration. See TEX.CODE CRIM.PROC.ANN. art. 55.01(a)(1)(B), (a)(2)(B), (b)(2). Thus, the absence of a reference to a conviction in subsection (a)(1)(A) implies that this section applies when no conviction has occurred. Because Current was convicted by a jury, he is not entitled to an expunction under subsection (a)(1)(A).

The court found that Current was indicted and that the indictment was not dismissed. This information is contained in the court's files, and the court was entitled to take judicial notice of those facts. See TEX.R.CIV.EVID. 201; Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.--Houston [1st Dist.] 1993, writ denied). Additionally, Current does not claim that the indictment was actually dismissed. Consequently, he does not meet the requirements of subsection (a)(2).

Current appears to argue that he is entitled to an expunction because the trial court signed a judgment of acquittal after this court ordered the entry of the judgment of acquittal; thus, he apparently reasons, he was "acquitted by the trial court." See TEX.CODE CRIM.PROC.ANN. art. 55.01(a)(1)(A). We do not believe that this subsection applies when an acquittal is ordered by an appellate court, even though the trial court may actually sign the judgment of acquittal. In most cases when an appellate court acquits a defendant, the court remands the cause to the trial court with instructions to enter a judgment of acquittal. See, e.g., Thorpe v. State, 863 S.W.2d 739, 742 (Tex.Crim.App.1993); Munoz v. State, 853 S.W.2d 558, 564 (Tex.Crim.App.1993); Turney v. State, 859 S.W.2d 500, 504 (Tex.App.--Houston [1st Dist.] 1993, pet. ref'd). "[Rendition] is an event which [entry] records." Jones v. State, 795 S.W.2d 199, 201 (Tex.Crim.App.1990); see also Jones v. State, 797 S.W.2d 33, 35 nn. 3-4 (Tex.Crim.App.1990) (Clinton, J., dissenting). Thus, when an appellate court remands a cause for "entry of a judgment of acquittal," the order presupposes a prior rendition of the judgment. The appellate court actually renders the judgment, not the trial court. See TEX.R.APP.P. 80(b); Bigley v. State, 865 S.W.2d 26, 28 (Tex.Crim.App.1993) (Baird, J., concurring).

Secondly, if this statute were to be read to apply whenever the trial court signs the actual judgment of acquittal, the factual distinction between sections (a) and (b) would be eliminated, a result we presume the legislature did not intend. See TEX.GOV'T CODE ANN. § 311.021(2) (Vernon 1988). Although the appellate court occasionally states that it is "rendering" the judgment of acquittal, see, e.g., Spencer v. State, 867 S.W.2d 81, 85 (Tex.App.--Texarkana 1993, pet. ref'd); Joseph v. State, 866 S.W.2d 281, 284 (Tex.App.--Houston [1st Dist.] 1993, no pet.), usually, as stated above, the court remands for further action by the trial court. Thus, if we were to accept this argument, in every case when an appellate court orders an acquittal--but the trial court actually signs the judgment--the acquitted defendant would be entitled to have his records expunged. We do not believe that this is the result intended by the legislature, and we will not read the statute to reach such a result. See TEX.GOV'T CODE ANN. § 311.021(2). Accordingly, we conclude that Current is not entitled...