Appellee's Merit Brief in Vasilas v. State

Abstract

This is an appellate merits brief that was filed in connection with author's pro bono representation of James Vasilas in matter of Vasilas v. State. As of today (October 10, 2007), case is pending before highest criminal court in Texas, Court of Criminal Appeals. Oral argument took place on September 12, 2007. Vasilas is an attorney who has been charged with committing a third degree felony - tampering with record under TEX. PEN. CODE § 37.10(a)(5) - which carries with it a maximum possible sentence of up to two years in prison. Vasilas finds himself in this predicament after having represented a client who was charged but acquitted of state jail felony of delivery of marijuana. The jury convicted Vasilas's client only of lesser-included offense of possession of marijuana. Thereafter, Vasilas filed a petition for expunction of records relating to his client's arrest on delivery charge. The petition for expunction Vasilas filed averred that delivery charge against his client had been dropped. The State insiststhat petition of expunction contained statements Vasilas knew to be false and charged him in a four-count indictment under § 37.10. [Vasilas vehemently denies this accusation and points out, inter alia, that State insists he knew his averment was false, even though it is not at all clear what motivation he had to lie. Vasilas's client was almost surely entitled under express statutory terms to have his records expunged for having been found not guilty of charged crime of delivery. See TEX. CRIM. PROC. CODE. art. 55.01(a)(1)(A). Indeed, it is not even clear that his client would have been entitled to expunction on ground that State had dropped delivery charge.] The present appeal is from judgment of Dallas Court of Appeals reversing trial court's order initially granting Vasilas's motion to quash indictment brought against him. The Court of Appeals initially affirmed trial court's order on ground that petition was not a governmental record under TEX. PEN. CODE ANN. § 37.01(2)(A) (Vernon 2003). State v. Vasilas, 153 S.W.3d 725 (Tex. App. - Dallas 2005). The State appealed and Court of Criminal Appeals Court then reversed, ruling that that the clear and unambiguous language of § 37.01(2)(A) does not exclude petitions, such as petition for expunction, from definition of a record. State v. Vasilas, 187 S.W.3d 486, 487 (Tex. Crim. App. 2006). On remand, Court of Appeals ruled that trial court's order granting Vasilas's motion to quash should be reversed and remaining count in indictment reinstated against Vasilas. State v. Vasilas, 198 S.W.3d 480 (Tex. App. - Dallas 2006, pet. filed). Vasilas timely filed a petition for discretionary review which Court of Criminal Appeals granted. This merits brief was then filed on Vasilas's behalf. The case has been covered, inter alia, in Mary Alice Robbins, Possible Criminal Consequences for Incorrect Pleading Worry Amici, TEXAS LAWYER, Sept. 17, 2007.