Ex Parte Neil Garrett Atkinson ( 2018 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00068-CV
EX PARTE NEIL GARRETT ATKINSON
On Appeal from the 124th District Court
Gregg County, Texas
Trial Court No. 2018-1182-B
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
On June 15, 2018, Neil Garrett Atkinson filed a petition for expunction of all records and
files relating to a dismissed assault-causing-bodily-injury charge that allegedly occurred in Gregg
County, Texas, on August 9, 2016. The expunction was granted on July 16, 2018. The Texas
Department of Public Safety (DPS) appeals the trial court’s order of expunction and argues, among
other things, that the case must be reversed and remanded for a new trial because no reporter’s
record was made of the hearing. Atkinson concedes the error and agrees that this case should be
reversed. Because we concur with the DPS and Atkinson, we reverse the trial court’s order of
expunction and remand the cause for a new hearing.
I. Procedural Background
“The right to expunction is a ‘statutory privilege’ allowed by Article 55.01 of the Texas
Code of Criminal Procedure.” Ex parte Tippens, No. 06-17-00100-CV, 2018 WL 1440462, at *1
(Tex. App.—Texarkana Mar. 23, 2018, no pet.) (mem. op.) (citing Ex parte M.R.L., No. 10-11-
00275-CV, 2012 WL 763139, at *3 (Tex. App.—Waco Mar. 7, 2012, pet. denied) (mem. op.); see
TEX. CODE CRIM. PROC. ANN. art. 55.01 (West Supp. 2017)). In pertinent part, the version of
Article 55.01 applicable to this case provided:
(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 was no
court-ordered community supervision under Chapter 42A for the offense,
unless the offense is a Class C misdemeanor, provided that:
2
(A) regardless of whether any statute of limitations exists
for the offense and whether any limitations period for the offense
has expired, an indictment or information charging the person with
the commission of a misdemeanor offense based on the person’s
arrest or charging the person with the commission of any felony
offense arising out of the same transaction for which the person was
arrested:
....
(ii) if presented at any time following the arrest,
was dismissed or quashed, and the court finds that the
indictment or information was dismissed or quashed because
the person completed a pretrial intervention program
authorized under Section 76.011, Government Code . . . .
Act of May 26, 2015, 84th Leg., R.S., ch. 770, § 2.23, 2015 Tex. Gen. Laws 2321, 2373–74
(current version at TEX. CODE CRIM. PROC. art. 55.01(a)(2)(A)(ii)). 1
Before the trial court’s July 16, 2018, order expunging records of the August 9, 2016, arrest,
the DPS had filed an answer arguing that Atkinson could not expunge records of the arrest because
it resulted in judgments of conviction in two other cases. The answer attached these judgments
and further stated that the assault-causing-bodily-injury charge was only dismissed in exchange
for Atkinson’s plea of no contest to the two other charges.
On June 19, 2018, the trial court set the matter for a hearing and all parties agree that the
trial court held a hearing on Atkinson’s petition on July 16, 2018. See TEX. CODE CRIM. PROC.
ANN. art. 55.02, § 1a(c) (West 2018). However, the court reporter had informed this Court that no
reporter’s record was available from the expunction hearing. On appeal, the DPS argues that the
1
“The trial court must strictly comply with the statutory procedures for expunction, and it commits reversible error
when it fails to comply.” Tippens, 2018 WL 1440462, at *1 n.2 (quoting Ex parte M.G., No. 10-13-00021-CV, 2013
WL 3972225, at *1 (Tex. App.—Waco Aug. 1, 2013, no pet.) (mem. op.)).
3
evidence was legally insufficient to support the trial court’s order of expunction and that the case
must be reversed for lack of a reporter’s record of the hearing.
II. A New Hearing Is Required
“The purpose of the expunction statute is to allow an individual who has been wrongfully
arrested to expunge the records of that arrest.” Ex parte Ho, No. 06-17-00120-CV, 2018 WL
2071392, at *1 (Tex. App.—Texarkana May 4, 2018, no pet.) (mem. op., not designated for
publication) (quoting Ex parte Myers, 24 S.W.3d 477, 480 (Tex. App.—Texarkana 2000, no pet.);
see Tippens, 2018 WL 1440462, at *2 (quoting M.R.L., 2012 WL 763139, at *3). “[W]hen a
defendant admits guilt as to an offense arising out of an arrest, by that admission, the defendant
concedes that the arrest was not wrongful for purposes of the expunction statute.” Tippens, 2018
WL 1440462, at *2 (quoting M.R.L., 2012 WL 763139, at *3); see Ho, 2018 WL 2071392, at *2;
Harris Cty. Dist. Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991) (“[T]he expunction
law clearly 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.’”) (quoting Tex. Dep’t of Pub. Safety v. Failla, 619 S.W.2d 215, 217 (Tex. Civ. App.—
Texarkana 1981, no writ)). “The entry of a valid guilty plea has the effect of admitting all material
facts alleged in the formal criminal charge.” Flores-Alonzo v. State, 460 S.W.3d 197, 203 (Tex.
App.—Texarkana 2015, no pet.) (quoting Rohr v. State, No. 08-12-00219-CR, 2014 WL 4438828,
at *1 (Tex. App.—El Paso Sept. 10, 2014, no pet.)). “With one exception not applicable here, a
plea of nolo contendere or ‘no contest’ has the same legal effect as a guilty plea.” Id. (quoting
Rohr, 2014 WL 4438828, at *1); see TEX. CODE CRIM. PROC. ANN. art. 27.02(5) (West 2006).
4
“If expunction is not available for all charges stemming from an arrest, it is not available
for any of them.” Ho, 2018 WL 2071392, at *2 (quoting Tex. Dep’t of Pub. Safety v. A.M., No. 03-
17-00114-CV, 2018 WL 1177601, at *2 (Tex. App.—Austin Mar. 7, 2018, no pet.) (mem. op.)).
“When an arrest is not wrongful, removal and destruction of records relating to it harms the
public’s interest of using the records ‘in subsequent punishment proceedings, including subsequent
applications for probation.’” Id. (quoting S.J. v. State, 438 S.W.3d 838, 841 (Tex. App.—Fort
Worth 2014, no pet.) (quoting J.T.S., 807 S.W.2d at 574).
Although the attachments to the DPS’ answer indicated that Atkinson may not have been
entitled to expunge records from his August 9, 2016, arrest, “[w]ithout a reporter’s record, we
cannot know what evidence, if any, was introduced at the hearing.” Id. at *3 (quoting Tippens,
2018 WL 1440462, at *3). “We also cannot take as true the allegations in the DPS’ answer.” Id.
(quoting Tippens, 2018 WL 1440462, at *3). Here, “because DPS has complained of the absence
of a reporter’s record, the trial court’s order must be reversed, and the cause must be remanded for
a new hearing.” Id. (quoting Tippens, 2018 WL 1440462, at *3). We sustain the DPS’ point of
error complaining of the lack of a reporter’s record.
III. Conclusion
We reverse the trial court’s order of expunction and remand the matter for a new hearing.
Bailey C. Moseley
Justice
Date Submitted: November 9, 2018
Date Decided: November 12, 2018
5