Opinion
NO. 03-17-00159-CV
05-01-2018
D. J. H., Appellant v. Hays County District Attorney and Texas Department of Public Safety, Appellees
FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
NO. 16-1798 , HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING MEMORANDUM OPINION
D.J.H. appeals from an order of the district court denying his petition to expunge records related to his 2012 arrest and subsequent indictment for the felony charge of burglary of a habitation. Finding no reversible error, we will affirm the order.
See Tex. Penal Code § 30.02(c)(2). Although the parties refer to additional charges against D.J.H., the State has not argued that these relate to the same arrest that preceded D.J.H.'s burglary charge or otherwise bear upon his entitlement to expunction here. Cf. Texas Dep't of Pub. Safety v. G.B.E., 459 S.W.3d 622, 629 (Tex. App.—Austin 2014, pet. denied) (en banc) (discussing "arrest-based" focus of Article 55.01(a)(2), which effectively requires expunction petitioner to establish entitlement to expunction for all charges relating to an arrest in order to obtain relief as to any).
D.J.H. sought expunction of the burglary charge based on Article 55.01(a)(2) (A)(ii)(b) of the Code of Criminal Procedure, which entitles "[a] person who has been placed under . . . arrest for commission of either a felony or misdemeanor" to have "all records and filed relating to the arrest expunged if," as relevant here:
(1) "the person has been released";"Expunction . . . is not a constitutional or common-law right, but purely a statutory privilege," and D.J.H. thus bore "the burden of demonstrating that each of the[se] required conditions has been met." Further, because the allegations in D.J.H.'s verified petition were joined through general denial by both the prosecutor (the Office of the Hays County Criminal District Attorney (the State)) and the Texas Department of Public Safety, with the former also appearing in opposition at the hearing on the petition, D.J.H. was required to present evidence, not "just allegations in [a] verified pleading," in order "to carry [his] burden of proof."
(2) "the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered supervision under Chapter 42A for the offense";
(3) if a charging instrument was presented at any time following the arrest, it was "dismissed or quashed"; and
(4) "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."
Texas Dep't of Pub. Safety v. Nail, 305 S.W.3d 673, 675 (Tex. App.—Austin 2010, no pet.) (op. on reh'g) (quoting T.C.R. v. Bell Cty. Dist. Atty's Office, 305 S.W.3d 661, 663 (Tex. App.—Austin 2009, no pet.)).
G.B.E., 459 S.W.3d at 625; see Travis Cty. Dist. Atty. v. M.M., 354 S.W.3d 920, 923 (Tex. App.—Austin 2011, no pet.) (en banc) ("The cause of action created by the expunction statute is civil rather than criminal in nature, and the burden of proving compliance with the statutory requirements rests with the petitioner.").
Only the State has filed a brief in opposition to D.J.H. on appeal.
Texas Dep't of Pub. Safety v. A.M., No. 03-17-00114-CV, 2018 WL 1177601, at *4 (Tex. App.—Austin Mar. 7, 2018, no pet. h.) (mem. op.) (citing Ex parte K.R.K., 446 S.W.3d 540, 544 (Tex. App.—San Antonio 2014, no pet.) (allegations in verified pleading alone insufficient to prove entitlement to expunction because State's appearance at expunction hearing was equivalent to general denial); Texas Dep't of Pub. Safety v. Borhani, No. 03-08-00142-CV, 2008 WL 4482676, at *4 (Tex. App.—Austin Oct. 3, 2008, no pet.) (mem. op.) (concluding there was no evidence supporting expunction order because "[t]he allegations alone in a verified petition, after being put in issue by a general denial, do not constitute proof of those allegations")); see G.B.E., 459 S.W.3d at 630 ("[T]he Department filed a general denial in response to G.B.E.'s verified petition and, as a consequence, put the matters in the petition at issue and G.B.E's allegations subject to proof.").
On appeal, we review the district court's order denying expunction under an overarching abuse-of-discretion standard. With respect to the district court's determination of whether D.J.H. had met his evidentiary burden as to statutory requirements, this standard effectively reduces to whether D.J.H. has presented evidence establishing those requirements conclusively. "Evidence is conclusive only if reasonable people could not differ in their conclusions." We view the evidence in the light favorable to the district court's order, crediting favorable evidence if a reasonable fact-finder could, and disregarding contrary evidence unless a reasonable fact-finder could not.
See, e.g., Nail, 305 S.W.3d at 678.
See, e.g., G.B.E., 459 S.W.3d at 624 (district court abuses its discretion if it acts arbitrarily, unreasonably, without regard to guiding rules or principles, or without supporting evidence (citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998))); see also Shields Ltd. P'ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017) (where party attacks legal sufficiency of adverse finding (or failure to find) on issue on which it bears the burden of proof, judgment must be sustained unless record conclusively establishes all vital facts in support of the issue).
City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
See id. at 827.
The sole evidence D.J.H. presented at the expunction hearing consisted of what both sides acknowledge to be two court records from the criminal proceedings that had followed D.J.H.'s indictment for burglary of a habitation. The first document is a "Motion to Dismiss" signed by a representative of the State and filed on November 14, 2013. It states the following reason or ground for dismissing the burglary charge:
defendant has entered into a Deferred Prosecution Agreement for Burglary of a Habitation, Lesser included Criminal Trespass for 2 (Two) Years. Agreement on file. Dismissal conditioned on completion of agreement.At the bottom of the same document is a preprinted "Order" that was signed by a presiding district judge on the same day. It reflects merely that the "foregoing motion" had been presented and considered, and the cause dismissed.
The second document in evidence was the "Deferred Prosecution Agreement" referenced in the "Motion to Dismiss," which also reflects signatures and filing on November 14, 2013. This document incorporates: (1) D.J.H.'s waivers of rights and confession and guilty plea to the offense of burglary with lesser-included criminal trespass; (2) D.J.H.'s agreement to various specific conditions (including refraining from committing any offenses above that of minor traffic violations, performing 60 hours of community service, and having no contact with an identified female whom the parties indicate was the crime victim) in return for the State's agreement "not to prosecute [D.J.H.] further for the offense(s)." D.J.H. also specifically agreed that if he "fails to comply with or violates any of the specified terms and conditions of this agreement, then the [State] is no longer subject to the agreement and may re-file the charges and prosecute the case to the full extent of the law." In that event, D.J.H. further agreed to plead guilty, stipulated to the admissibility of the Agreement and his accompanying confession, and "waive[d] any statute of limitations objections to the re-filed charge(s)." The Agreement was made effective beginning when D.J.H. and the State had completed the documents and "[t]he Court has granted the State's conditional motion to dismiss" (i.e., November 14, 2013) and was to run for two years thereafter.
Although the document itself, a preprinted form, referred to the duration as "2 (TWO) (days/months/years)" without specifying which of the three applied, D.J.H. has not disputed that he agreed to a two-year term.
The State conceded that D.J.H. met his burden to prove that he had been released, that he had not been finally convicted for nor received court-ordered supervision on the burglary charge, and that the indictment had been dismissed. The State similarly acknowledged that the Deferred Prosecution Agreement sufficed as "a pretrial intervention program authorized under Section 76.011, Government Code" for purposes of the remaining requirement under Article 55.01(a)(2)(A)(ii)(b)—"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." The State joined issue, however, as to whether D.J.H.'s evidence established that the indictment had been dismissed "because" D.J.H. had "completed" this program. In part, the State contrasted this statutory language, which contemplates a program already "completed" at the time of the order, with the language of the dismissal motion and order, which had instead specified that the dismissal was "conditioned" on D.J.H.'s future completion of the program.
The State also went further by representing to the district court that D.J.H. had ultimately violated the Agreement during its term, thereby rendering impossible his subsequent "completion" of the program, the condition for dismissal of the burglary charge. However, the State presented no evidence to support these assertions, or any other evidence, leaving the proof confined to the two documents presented by D.J.H.
At the conclusion of the hearing, the district court signed an order denying D.J.H.'s expunction petition. Subsequently, upon D.J.H.'s request, the district court issued findings of fact and conclusions of law that were evidently drafted by the State. Included among these were some affirmative findings or conclusions echoing the State's assertions during the hearing—D.J.H. had "violated a condition of the Deferred Prosecution Agreement during the two (2) year term, specifically D.J.H. contacted the victim," "failed to comply with the terms of the Deferred Prosecution Agreement," and "did not successfully complete a pretrial intervention program authorized under Section 76.011, Government Code."
D.J.H.'s appeal centers primarily on challenging the legal sufficiency of the evidence to support these affirmative findings and conclusions that he violated the Agreement and failed to complete the program. These challenges in themselves have merit—as previously indicated, the State presented only counsel's argument or assertions, not any evidence, to support its account of the purported violations. Yet this error does not require reversal here because the findings in question are ultimately immaterial to our review of the district court's order. This is so because the State had no burden at trial to obtain these findings in the first place, which affirmatively negate D.J.H.'s entitlement to expunction. Rather, the burden of proof, as previously explained, lay with D.J.H. to present evidence to affirmatively establish his entitlement to expunction under Article 55.01(a)(2)(A)(ii), a burden that translates on appeal to requiring that D.J.H. demonstrate that the evidence established his entitlement conclusively. This inquiry further distills here to whether D.J.H. has demonstrated that the evidence established conclusively that his burglary charge was dismissed "because [he] completed a pretrial intervention program authorized under Section 76.011, Government Code," i.e., that the charge was dismissed because he complied with the Agreement for the duration of its two-year term.
The evidence was hardly conclusive in establishing D.J.H.'s satisfaction of these requirements. Leaving aside that the dismissal motion and order reflect that D.J.H. had not yet begun the intervention program when the order was signed, let alone "completed" it as Article 55.01(a)(2)(A)(ii) contemplates, neither this document nor the Agreement in itself speaks to whether D.J.H. had successfully completed the program thereafter. Accordingly, we cannot conclude that the district court abused its discretion in denying D.J.H. expunction under Article 55.01(a)(2)(A)(ii). While D.J.H. correctly identifies a failure of proof regarding whether or not he subsequently complied with the Agreement, that absence of proof ultimately operates to his own detriment as the petitioner.
D.J.H. also complains of a conclusion of law, also included in the findings and conclusions proposed by the State, that "[b]y waiving the statute of limitations" in the Deferred Prosecution Agreement, "D.J.H. is not and cannot be entitled to an expunction pursuant to Article 55.01(a)(2)(B), as the statute of limitations can never run on the offense because D.J.H. violated a term of [the Agreement]." Article 55.01(a)(2)(B) entitles a person to expunction if (1) "the person has been released"; (2) "the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered supervision under Chapter 42A for the offense"; and (3) "prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired." The import of the conclusion is that prosecution of D.J.H. for the burglary offense would remain possible even after limitations would otherwise run, forever negating the third requirement for expunction under Article 55.01(a)(2)(B).
The district court also found or concluded that the statute of limitations for burglary of a habitation is five years and that the offense had occurred on or about October 10, 2012. The import of these findings, combined with the timing of the district court's order, is that the relevant five-year limitations period would not have expired by the time of the order (or more precisely, that D.J.H. had failed to meet his burden of proof to show that it had expired), such that D.J.H. was not entitled to expunction under Article 55.01(a)(2)(B) even without regard to the potential effect of any limitations waiver under the Agreement. Consequently, assuming without deciding that D.J.H. preserved this alternative expunction ground below, we could not conclude that the district court abused its discretion in denying D.J.H. expunction under Article 55.01(a)(2)(B) at that time. And against that backdrop, the complained-of additional conclusion regarding the future or potential effect of the Agreement on limitations is immaterial dicta, and we take no position on the merits of that assertion at this juncture.
CONCLUSION
We affirm the district court's order denying D.J.H.'s expunction petition.
/s/_________
Bob Pemberton, Justice Before Chief Justice Rose, Justices Pemberton and Goodwin Affirmed Filed: May 1, 2018