Ex Parte Andy Linares ( 2010 )

MEMORANDUM OPINION
No. 04-09-00398-CV
EX PARTE Andy LINARES,
Appellant
From the 111th Judicial District Court, Webb County, Texas
Trial Court No. 2008-CVK-001376-D2
Honorable Raul Vasquez, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: March 24, 2010
REVERSED IN PART AND AFFIRMED IN PART
The Texas Department of Public Safety (DPS) appeals from the trial court’s order
expunging Appellee Andy Linares’ charge for driving while intoxicated (DWI). DPS complains
that Linares was not entitled to an expunction of records related to his arrest for driving while
intoxicated because he failed to establish, by legally sufficient evidence, that his arrest did not
result in a final conviction, and that he had not received court-ordered community supervision.
Because the trial court erred in granting Linares an expunction for his DWI charge, we reverse
the judgment of the trial court and render judgment denying Linares’ request for expunction with
regard to the DWI. We affirm the judgment in all other respects.
04-09-00398-CV
FACTUAL BACKGROUND
Linares was arrested on December 22, 1994, and charged with the offense of driving
while intoxicated. On July 17, 1995, Linares entered a plea of guilty to the offense and was
placed on probation for a period of one year. Thirteen years later, Linares filed his petition for
expunction regarding two instances of arrest: (1) aggravated assault, which did not result in a
final conviction, and (2) driving while intoxicated. Neither party contests the expunction of the
1995 assault causing bodily injury. However, DPS argues that the DWI charge was barred from
expunction because it resulted in a final conviction of the offense. On January 7, 2009, the trial
court granted Linares’ petition and signed an order expunging both arrests on his record. This
restricted appeal followed.
STANDARD OF REVIEW
An appellate court reviews a trial court’s ruling on a petition for expunction under an
abuse of discretion standard. Ex parte Guajardo, 70 S.W.3d 202, 204 (Tex. App.—San Antonio
2001, no pet.). To successfully attack an order for expunction of records relating to an arrest by
restricted appeal, DPS must show that: (1) it was a party to the expunction suit; (2) it was served
with a copy of the petition for expunction and filed a written response, but it did not participate
either in person or through counsel in the hearing that resulted in the judgment; (3) it filed its
notice of appeal within the six-month deadline; and (4) that the face of record establishes that the
arrestee was not entitled to expunction. See Alexander v. Lynda’s Boutique, 134 S.W.3d 845,
848 (Tex. 2004); Tex. Dep’t of Pub. Safety v. Jacobs, 250 S.W.3d 209, 210 (Tex. App.—Dallas
2008, no pet.). Because it is clear from the record that DPS meets the first three of these
requirements, we consider only whether the face of the record establishes Linares was not
entitled to an expunction of the charge in question.
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DRIVING WHILE INTOXICATED OFFENSE
DPS contends the trial court erred in granting Linares an expunction of his DWI charge
because Linares served twelve months probation as a result of his arrest for DWI. See TEX.
CODE CRIM. PROC. ANN. art. 55.01 (Vernon 2006). The expunction statute was enacted by the
legislature to allow the expunction of wrongful arrest records. Harris County Dist. Attorney’s
Office v. D.W.B., 860 S.W.2d 719, 721 (Tex. App.—Houston 1993, no pet.); Harris County Dist.
Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991). It was not “intended to allow a
person who is arrested, pleads guilty to an offense, and receives probation pursuant to a guilty
plea to expunge arrest and court records concerning that offense.” D.W.B., 860 S.W.2d at 721;
see also State v. Arellano, 801 S.W.2d 128, 131-32 (Tex. App—San Antonio 1990, no pet.).
A review of the record before us establishes that Linares was charged with and entered a
plea of guilty to DWI. The trial court subsequently found Linares guilty and placed Linares on
probation for a period of one year. Because Linares’ DWI charge resulted in a final conviction,
he does not meet all of the statutory requirements for an expunction of this charge under article
55.01. See TEX. CODE CRIM. PROC. ANN. art. 55.01. Furthermore, counsel for Linares conceded
at the initial expunction hearing that “the other incident,” referring to the DWI charge, was not
eligible for expunction.
Accordingly, because Linares failed to prove that he satisfied the conditions imposed by
article 55.01, we reverse the judgment of the trial court with regard to the DWI offense, and
render judgment denying Linares petition for expunction on the DWI offense. See Tex. Dep’t of
Pub. Safety v. Olivares, No. 13-06-035-CV, 2007 WL 2128889, *4 (Tex. App.—Corpus Christi
July 26, 2007, no pet.) (explaining that appellee’s final conviction and twelve months on
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probation for DWI prevented expunction on the charge). We affirm the judgment in all other
respects.
Rebecca Simmons, Justice
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