Defendant tried for felony evading arrest, acquitted of felony but found guilty of misdemeanor evading (not using vehicle). Petition to expunge based on felony acquittal but misdemeanor conviction arises out of the same investigation and case file and indictment file, etc. Anybody have to deal with this situation before?

First, was your guy actually "acquitted" of the felony case or was he just found guilty of the lesser-included misdemeanor? I don't think being convicted of a LIO is the same as an acquittal for the purposes of the statute. But regardless...

Under 55.01(c), a person is not entitled to an expunction on an acquittal if he was convicted of another offense arising out of the same criminal episode. Sounds to me like your case would qualify.

Take a look at Article 55.01(c), which holds:

quote:

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A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, whether by the trial court or the court of criminal appeals, if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.

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In your case, the misdemeanor evading arrest conviction arose out of the same criminal episode for which the defendant was tried and acquitted for felony evading. As such, the defendant is not eligible for anything.

I haven't seen a good case construing subsection (c), so if your judge grants the expunction, take him up on appeal. Just make sure you're on the record and that you prove up that the misdemeanor was part of the same criminal episode. (You could also try it by MSJ because there really isn't a fact issue here, but that's usually more time-consuming than a short evidentiary hearing.)

Also, if it looks like this is going to be a case that needs to be appealed, call the DPS expunction lawyers (512-424-5841) and invite them to the party.

Good luck!

Do call Frank Davis at DPS. He is the principal Expunctions attorney who does most of our expunction appeals. Frank is very knowleable in the ins and outs of expunction law.

Janette Ansolabehere
DPS