Ex Parte Keith Rogers Post

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00138-CV
EX PARTE KEITH ROGERS POST
On Appeal from the 21st District Court
Burleson County, Texas
Trial Court No. 27,422, Honorable Reva Towslee Corbett, Presiding
September 24, 2014
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
The Texas Department of Public Safety (Department) has filed a restricted
appeal of an order of expunction granted to Keith Rogers Post. The Department
contends that Post was not entitled to an expunction because he had, in fact, been
convicted of an offense as a result of his arrest. Post did not favor the Court with a
brief. We will reverse.
Factual and Procedural Background
On January 9, 2011, Post drove his truck at approximately 90 mph around a
curve on a wet road. At the scene, he was arrested and, subsequently, charged with
the offense of reckless driving, a class B misdemeanor offense.1 On March 13, 2012,
Post entered a plea of guilty to the class C offense of reckless driving and paid a fine of
$500 plus costs of court. The cause number for the class B complaint was C-CR-11-
20,218 in the County Court of Burleson County, Texas. The Judgment and Sentence
for the plea of guilty to the class C offense of reckless driving is in cause number 20,218
in the County Court of Burleson County, Texas.
On July 12, 2013, Post filed a petition for expunction of records related to the
charge of reckless driving. The petition avers that the applicable cause number and
court is cause number 20,218 in the County Court of Burleson County, Texas.
The Department filed an answer asserting that Post was barred from obtaining
an expunction because he had, in fact, been convicted of an offense as a result of the
arrest in question. The trial court granted the expunction on November 4, 2013. The
Department was not present at the hearing. Further, no reporter’s record was made of
the hearing.
The Department now brings this restricted appeal. We will reverse the judgment
granting the expunction and render judgment denying the expunction.
Analysis
The record before this Court affirmatively demonstrates that the Department did
not participate in the trial of the expunction and did not have an opportunity to correct an
erroneous judgment. See Freebird Bail Bonds v. State, No. 10-11-00301-CR, 2013
Tex. App. LEXIS 9646, at *3 (Tex. App.—Waco Aug. 1, 2013, no pet.) (mem. op., not
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See TEX. TRANSP. CODE ANN. § 545.401 (West 2011).
2
designated for publication) (citing TAC Americas, Inc. v. Boothe, 94 S.W.3d 315, 318
(Tex. App.—Austin 2002, no pet.)). To be successful in a restricted appeal, the
Department’s notice of restricted appeal must be filed 1) within six months after the
judgment is signed; 2) by a party to the lawsuit; 3) who did not participate in the hearing
that resulted in the judgment complained of; 4) who did not file a timely post-judgment
motion or request for findings of fact and conclusions of law; and 5) error must be
apparent on the face of the record. See TEX. R. APP. P. 30; Freebird Bail Bonds, 2013
Tex. App. LEXIS 9646, at *3. Additionally, the face of the record, for the purpose of the
restricted appeal, consists of all papers on file in the appeal. See Freebird Bail Bonds,
2013 Tex. App. LEXIS 9646, at *3 (citing TAC Americas, 94 S.W.3d at 318; see also
Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per
curiam)).
The record demonstrates that the Department timely filed its notice of restricted
appeal on March 28, 2014. Further, the record demonstrates that the Department was
a party to the lawsuit and did not participate in the hearing that resulted in the judgment
of expunction. Likewise, the record demonstrates that there was no post-judgment
motion filed by the Department and there was no request for findings of fact and
conclusions of law. Therefore, the first four elements of a successful restricted appeal
are present. See TEX. R. APP. P. 30; Freebird Bail Bonds, 2013 Tex. App. LEXIS 9646
at *3.
We now turn to the issue of whether error is apparent on the face of the record.
Expunction of criminal records is governed by Chapter 55 of the Texas Code of Criminal
Procedure. Specifically at issue before us are the requirements of article 55.01. See
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TEX. CODE CRIM. PROC. ANN. art. 55.01 (West Supp. 2014). Post alleged in his petition
for expunction that the misdemeanor offense was dismissed and, therefore, he is
entitled to an expunction. As pertinent for our consideration, article 55.01 provides as
follows:
(a) A person who has been placed under a custodial or noncustodial
arrest for commission of either a felony or misdemeanor is entitled to
have all records and files relating to the arrest expunged if:
(2) the person has been released and the charge, if any, has
not resulted in a final conviction and is no longer pending
and there is no court-ordered community supervision
under Article 42.12 for the offense, unless the offense is
a Class C misdemeanor . . . .
The record of the trial court that is before this Court indicates that if Post’s class
B misdemeanor offense of reckless driving was dismissed, it was dismissed as part of a
plea bargain by which Post would enter a plea of guilty to the class C misdemeanor
offense of reckless driving. Before us we have, as part of the record, the judgment and
sentence for the class C misdemeanor offense of reckless driving. This is important
because the burden to prove that the applicant has complied with the statute and is
therefore entitled to an expunction is on the applicant. See McCarroll v. Tex. Dept. of
Pub. Safety, 86 S.W.3d 376, 378 (Tex. App.—Fort Worth 2002, no pet.). The law
provides that a plea to an offense that corresponds to the offense for which the
applicant was arrested will serve to bar an expunction. See In re O.R.T., 414 S.W.3d
330, 335 (Tex. App.—El Paso 2013, no pet.). This will be true even where the offense
that an applicant pleads guilty to is a class C misdemeanor. See Rodriguez v. State,
224 S.W.3d 783, 785 (Tex. App.—Eastland 2007, no pet.).
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As previously stated, the record before this Court clearly points to the fact that
Post entered a plea bargain agreement to plead guilty to the class C offense of reckless
driving. Accordingly, Post was not entitled to expunction of the records for his arrest for
the Class B misdemeanor offense of reckless driving. The same is clear from the face
of the record. See TEX. R. APP. P. 30; Freebird Bail Bonds, 2013 Tex. App. LEXIS
9646, at *3. We sustain the Department’s first issue and, therefore, need not reach its
second issue. See TEX. R. APP. P. 47.1.
Conclusion
Having sustained the Department’s first issue, we reverse the judgment of the
trial court and render judgment denying the expunction.
Mackey K. Hancock
Justice
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