Archie Scaife v. State ( 2015 )

ACCEPTED
03-14-00274-CR
3661941
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/6/2015 11:04:07 AM
JEFFREY D. KYLE
CLERK
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
1/6/2015 11:04:07 AM
JEFFREY D. KYLE
Clerk
TABLE OF CONTENTS
ITEM PAGE
Index of Authorities ... ... ... ... ... ... ... ... ... ...... ... ... ...... ... ... ... ... ... ... ... ... ... ..... 4
Statement Regarding Oral Argument ... ..................... ...... ..... .......... ... 5
Statement of the Case ... ........ ......... ...... .... ........... ....... ... ......... ...... ........ 5
Statement of Facts ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...... ... ... ... ... .... 5
Summary of State's Argument ............................................................ 7
Argument and Authorities ......... ... ... ... ................................................ 7
First Issue on Appeal ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..... 7
TRIAL COURT ERR IN PERMITTING
DISTRICT ATTORNEY TO REPRESENT
DEPARTMENT OF PUBLIC SAFETY IN
EXPUNCTION HEARING?
Application and Analysis ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 8
Second Issue of Appeal ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..... 9
TRIAL COURT ABUSE DISCRETION IN
DENYING PETITION FOR EXPUNCTION
WHERE PETITIONER HAD BEEN CON-
VICTED OF OFFENSE ARISING OUT OF
THE SAME ARREST?
Standard of Review ... ... ... ... ... ... ... ... ... ... ... ... ...... ... ... ... ... ... 9
Application and Analysis .................. ........ .... ............... .. . 10
Prayer................................................................................................... 12
2
Certificate of Compliance with Rule 9 .............................................. 12
Certificate of Service ............... ........................................................... 13
Appendix ... ... ... ... ... ... ... ... ... ... ... ... ... ...... ...... ... ... ... ...... ... ... ...... ... ... ... .. ... 14
Indictment Cause No. 59822
Information Cause No. 62960
Judgment of Conviction Cause No. 62960
Motion to Dismiss and Order Cause No. 59822
3
INDEX OF AUTHORITIES
CASES PAGE
Texas Department of Public Safety v. Butler, ..................................... 8, 9
941 S.W.2d 318 (Tx. App. Corpus Christi 13th Dist.
1997 no pet.)
Texas Department of Public Safety v. G.B.E., ...................................... 10, 11
No. 03-13-00017-CV, 2014 Tex. App. LEXIS 3195
(Tx. App. Austin 3rct Dist. 2014 no pet.), not designated
for publication.
Travis County District Attorney v. M.M., ............................................. 9 - 11
354 S.W.3d 920 (Tx. App. Austin 3rct Dist. 2011 no pet.)
OTHER
Texas Code of Criminal Procedure
Article 55.01 .............................................................................. 10
Article 55.01(a)(2) .................................................................... 10
4
STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
STATEMENT OF THE CASE
The Appellant, Archie Scaife, filed a pro se Petition for Expunction
of Criminal Record seeking expunction of his arrest by the Killeen Police
Department for the offense of Aggravated Assault on a Public Servant on
May 13, 2006. That arrest resulted in his indictment in Cause No.
59,882 in the District Court of Bell County, Texas. (CR-6).
The Texas Department of Public Safety filed an answer to that
petition. (CR-153).
After a hearing the Trial Court entered Findings of Fact and
Conclusions of Law (CR-259) and denied the expunction. (CR-205).
The Appellant filed a motion for new trial (CR-263) which was
denied by the trial court after a hearing. (CR-301).
STATEMENT OF FACTS
After hearing and receiving evidence the trial court entered the
following Findings of Fact:
1. Petitioner was arrested by the Killeen Police Department on
May 2, 2006.
5
2. As a result of that arrest the Petitioner was charged with the
offense of Aggravated Assault on a Police Officer in Cause No.
59,822. Petitioner was also charged with the offense of
Unlawful Possession of a Firearm by information in Cause No.
62,960.
3. The arrests in Cause Nos. 59,822 and 62,960 arose out of the
same arrest.
4. On May 13, 2008, the Petitioner entered a plea of guilty in
Cause No. 62,920 to the offense of Unlawful Possession of a
Firearm by a Felon in the 27th District Court of Bell County,
Texas and received a sentence of 4 years in the Texas
Department of Criminal Justice.
5. The charge in Cause No. 59,922 was dismissed because the
Petitioner plead guilty in the companion case in Cause No.
62,960. (CR-259)
Copies of the indictment in Cause No. 59,822 for which the Petitioner
seeks an expunction (CR-157), the complaint charging the Petitioner
with the offense of Unlawful Possession of a Firearm in Cause No.
62,960 (CR-158), the Judgment of Conviction in Cause No. 62,960, and
6
the Motion and Order Dismissing Cause No. 59,822 because the
Petitioner plead guilty in a companion case (CR-12) are all set out in the
Appendix.
SUMMARY OF STATE'S ARGUMENT
Although each of the persons and law enforcement agencies are
entitled to individual representation in an expunction proceeding,
nevertheless the District Attorney of the county may represent all of
them at the hearing should they opt not to attend.
The trial court did not abuse its discretion in denying the petition
for expunction because the Appellant entered a plea of guilty and was
convicted of an offense that arose out of the same arrest as that sought
to be expunged. The offense made the subject of the expunction request
was dismissed solely on the ground that the Appellant had pled guilty in
the companion case arising from the same transaction.
ARGUMENT AND AUTHORITIES
First Issue on Appeal
Did the trial court err in permitting the Assistant District Attorney
to represent and present the objections of the Texas Department of
Public Safety in the expunction hearing?
7
Application and Analysis
In this case the Texas Department of Public Safety filed an answer
to the Appellant's petition for expunction. The District Attorney did not.
Nevertheless the Bell County District Attorney's office appeared at the
hearing and presented the matters raised in the Department of Public
Safety's answer to the petition.
The law governing expunctions presents a unique situation in
which all persons and agencies that are parties to the expunction share
interwoven and identical interests and common goals that are achieved
by the maintenance of criminal records. Because an expunction is a civil
proceeding each agency is entitled to represent itself and is not bound
by the actions of the District Attorney. That does not mean, however,
that each of the concerned agencies are not represented by the District
Attorney. Coordination among agencies is mandated by the application
of the relief granted or denied. Relief granted or denied is applicable to
all. Texas Department of Public Safety v. Butler, 941 S.W.2d 318, 320
(Tx. App. Corpus Christi, 13th Dist. 1997 no pet.).
The District Attorney of the county is the primary representative
of the State and thus of the interests of all of the parties and agencies
concerned. In fact, having prosecuted the case, he or she is in the best
8
position to defend against the petition for expunction. Where the
individual agency does not choose to attend and participate in the
hearing, the District Attorney represents its interests in the
proceedings. Texas Department of Public Safety v. Butler at 320.
The trial court did not err in permitting the Bell County District
Attorney's Office to appear and represent the Texas Department of
Public Safety in the hearing.
Second Issue on Appeal
Did the trial court abuse its discretion in denying the petition for
expunction because the case was dismissed on the grounds that the
Appellant had plead guilty to a companion charge that arose out of the
same arrest and was convicted?
Standard of Review
Rulings on petitions for expunction are reviewed under an abuse
of discretion standard. A trial court abuses its discretion only if it acts
arbitrarily or unreasonably, without reference to guiding rules and
principles of law. The decision is reviewed de novo. Travis County
District Attorney v. M.M., 354 S.W.3d 920, 922 (Tx. App. Austin 3rct Dist.
2011 no pet.).
9
Application and Analysis
Expunction is neither a constitutional nor a common law right, but
rather a statutory privilege. It is governed by Article 55.01 of the Texas
Code of Criminal Procedure. A person is entitled to expunction only
when all of the statutory conditions have been met. The trial court is
without the power to extend relief beyond the clear meaning of the
statute. Travis County District Attorney v. M.M. at 923.
A person is not entitled to have any arrest records arising from a
multi-charge arrest expunged under Article 55.01(a)(2) when (1) one or
more charges result in a conviction for that charge and (2) any
remaining charge is dismissed as a result of a conviction of any charge
from the same arrest. Texas Department of Public Safety v. G.B. E., No. 03-
13-00017-CV, 2014 Tex. App. LEXIS 3195, (Tx. App. Austin 3rd Dist.
2014), not designated for publication, op. at page 12.
In this case the evidence is clear and undisputed that the
Appellant was arrested as a result of a single transaction for offenses of
Aggravated Assault on a Police Officer and Unlawful Possession of a
Firearm by a Felon. It is equally undisputed that the Appellant entered
a plea of guilty and was convicted of the offense of Unlawful Possession
of a Firearm by a Felon.
10
The offense of Aggravated Assault of a Police Officer was then
dismissed solely upon the grounds that the Appellant had entered his
plea of guilty to the same transaction offense of Unlawful Possession of
a Firearm.
The fact situation is identical to that in Texas Department of Public
Safety v. G.B.E. and, exactly as in that case the Appellant has failed to
establish that all of the statutory requirements necessary for expunction
have been fulfilled. The burden to do so is upon the Petitioner. Travis
County District Attorney v. M.M. at 923. The trial court certainly did not
abuse its discretion in denying the expunction.
11
PRAYER
The State of Texas respectfully prays that the order denying the
petition for expunction herein be, in all things, be affirmed.
Respectfully Submitted,
HENRY GARZA
District Attorney
fs/ $a6 ~. flrlmn
BOB D. ODOM
Assistant District Attorney
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
CERTIFICATE OF COMPLIANCE WITH RULE 9
This is to certify that the State's Brief is in compliance with Rule 9
of the Texas Rules ofAppellate Procedure and that portion which must be
included under Rule 9.4(i)(1) contains 1141 words.
Is/ $a6 ~. fJrfmn
BOB D. ODOM
Assistant District Attorney
12
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this brief has been
served upon, Archie Terrell Scaife #1582863, Appellant pro se, by
depositing the same in the United States Mail, postage paid, return
receipt requested, addressed to him at James Byrd Unit, 21 FM 247,
Huntsville, Texas 77320, on this 6th day of January, 2015.
/sf $a6 fb. flrlmn
BOB D. ODOM
Assistant District Attorney
13
Appendix
14
' - - - - - - - · - -- - - ....
IN~~oof~~,~ ay:,~trmoRITf·aF THE.: sTAtE t>.E. ~:
·.~ .: YaKOJtAifi>~b'tb&t~ot~st..e.orT~duJ1~· em~ .Worn~··
ad _.; .. ~Hi.~ IQC!iiu tlunJ~ Tetm. ~;o. 2006 of tbe ~~~~'~~eo:. -ki ~11.
~
·~ ~
.
oatbi..__.t
. -~·
in aDd to eiUd caart at Mid tum that .
.· .
..
.......
b.ereU2after atyJed ~·ot. OD ar •bout the 13th da,y ot Yay A. D. 2006, and before tbe pntmtment or
tbJa~ mtbe CoaotiJ _... Stida .....-.,
. ,: .
i
·I
(' ~ >-
L,; ; $
~
~.-><
. ~.- w
~
0 X
4
· -~~
c
UJ "' 7.
-:)
-u..
_J 0'1 ' ·• • J
' l
._J
;s
.,p
8C"oo
Dlttrtct A&tlDmey ~th Judicial Dl8trict ofTexaa. Foreman of the.Ot.ad Jury
157
. ..
DA ~INFORMATION- GENE.. L . ' . ~. .· .. ,. ·.
• • •• • . .q ... _ • • : :',!:· .l~i.:H~·~.--- ....~: ,. -.- ·. _L·.:..::::~._~·,.-~Jtfllft.i?~=-=--~=--· . . -: :___ _:·.:: =
... ~tHE ~AME ..\Nb BYTfrE At.frHORitY OF THE STATE·dF TExAs
·COMES NOW HenryL. 'Garza, Oistrict Attomeyofthe 27tb·Judiciai District, Bell County,
Texas~ and presents in and to the :.$26th District Court of said County, that heretofore and before the
Presentinent o(this informatio11; .ARCHIE TERRELL SCAIFE, on or about the 13th day of May,
A. D~-. 2006, in the Co.unty an4 -~tate aforesaid,
Did·tbcD llld:tbcn, baviDa beca convicted of tho fe1oD:y otfcae ofPoueuion ofCoadne leu
1ban ODe snm, Go~ t?lii·day of Aupt, 2001. ia C11111D IIUIIlbci' S1,207, in tbe 264th Judicial
Diltrict Court 9fBell ~'Tau., in a cue 011 th8 docbt ofllid Court md cmtitled The
Stlde ofTaua ~:'Arcbi~'f.errall ~ iutaJticmalJy ot•bowiualY poiiDII a :titelrm before the
fifth ~. of tho cWWnntNeleue &om oonfiiMIDent fOlloWing convidion of INiid felony
• ,• ''. '·· r ' ;""
against the peace
:-
and djgnity
.. of the
·.
S~; ..
. ·, .·.·
¥ ,
.. ··:··:41'
WTI'tffiSs ~YMM!hiS " fQ,.Jil&y of A. 0., 2008
HENRY L. GARZA,
DISTRICT ATIORNEY
.,
CD
.-ocn
il
~~ = r-
:z: :E
> N
m
;;r
~
c::
Ji
)C-tZ
"'0
-F. c
-.1
-< C6l
158
•
I .,. ·~,raza?m msnuCT ·
....... . : ..
I .;
I .. C~UBT
I
I BI:LL CoUNTY, TExAs
.. ·. I
ST1;~ ID No.: fX 068851M I
_·i'::.-
t;~ . JUDGMENT OF CONVICTION BY COURT-WAIVER OF JURY TRIAL
' ' 0 0 0 0 0 : ~: ' 0 ,, 0 0 -: M
1118/J003
JON JON MCDuBM.l'M'
N/A
Date,&.inc.oce ImpeNd:
'·•'· :.·
15118/JOOS . Data Seatenoe to Commaaca: G/1812008
Pu.ailbaat ud Plaoa
oiCopbtmeat: · FOUR (4) YEARS INSTITUTION~ DMSION, TDCJ
(J;.mNC.OP CONFI~ aUBPIHDBD, Dll'INIWft' PlACID ON COMMIJNlTY 9UPDVIS10N li'OR N/A .
· llil'5 CQ!iitfqeg· · JWtjtgti.ma.; Jut;itutiOP Pamle fA:
ssu.oo
/tiOO.OO CJ VICTIM(,.. below) 0
sN/A At*onaey $N/A AGENCY/AGENT (... below)
Fe ·
~.OS.1Uler. Betbtr&tioD ltequl"tn.Dta do not apply to the Deteadaat. Tlx. CODJ CJUW. hoc. chapter 82
'£M ,. ot~vicUID at d. time o!~ 61188 wu NIA .
· . · Jfpn45a$·:4 lliiiiibiw
'A fD f&1i..., ;;;;;;;;*' Miid-jj~ibn•• +Rfi:....
Tiat .
C1'ecliW: fi-pd•DC Ia 1Q 11m Wir.;,eip "!P''rWl gc is ""'qMittpwaaiiMcu4.ngete "'MtdaJimdfW belpw
·. N/ADAYS .: NOTES! N/A . . .
ANT'S·'PIN~ TAimN AT nm:m.m OP't)ISPOSJ'IlON OFTHB I
·,ABOVBSTYI.Eo
·.
AND
.1::!';':.
Ni:JMBBRBO
.
CAUSB.
.
·..... !
DONB 'I'HJ.S THB __../.._
·}_-"'!T)AY Of /J ~y 2008
' ,,
I.
I
/}·!/It
Taking
Official Print
I
.I
I!
*Indicate hare if print othor "than defendant'a right thumbprint is placed in box.
D
0 0~"------
161
DATE:
- . · ;. . .' May 9, 2008-
FILING AGENCY Killeen Police Department
e '·' """~·- ·~
c··,.0.. P , ' "'
OFFENSE: AGGRAVATED ASSAULT AGAINST A PUBLIC SERVANT · ~Q j_........
ADA: MCWILLPR ~
DA-N umber: 06-0820
NO. 59,822
TilE STATE OF TEXAS § IN THE 264 TH JUDICIAL
VS. § DISTRICT COURT OF
ARCHIE TERRELL SCAIFE § BELL COUNTY, TEXAS
·DISMISSAL
NOW COMES Henry Garza, District Attorney, in the above entitled and numbered cause, after
indictment of said cause and as grounds therefore would show the following:
D Insufficient evidence to obtain and secure a conviction
D Restitution made in full
D Unable to locate prosecuting witness
~ Defendant pled guilty in companion case
D Request of prosecuting victim
0 Lack of cooperation by victim
0 Insufficient investigation by authorities charged with that responsibility
0 Defendant deceased
D Other
HENRY L. GARZA
District Attorney (
a,,:rFIL ED
~a . m . _p.m . o'clock
BY:
~
Paul R. McWilliams
ASSIST ANT DISTRICT ATTORNEY
' ··~, d
' . ...... 1
IIIIIIIIJIII~ 111111 12
•...,
.
f
.
•. ,.
.... .
STATE OF TEXAS •
• ORDER •
COUNTY OF BELL •
On this the / ~ day ofMay, A. D., 2008, the foregoing motion ofthe State having been
considered and approved, the above styled and numbered cai.tse is hereby DISMISSED.
0 >-
,_
;::,
M
0
w Q
-
t"r"l
-J
>-
IJ... .....;:
:::;_.;;:
<:X:)
<::::>
<=
""' co
.... ./
1
· ..::..
.t
.',
13