Opinion
No. 08-17-00132-CV
07-30-2019
In the MATTER OF the Expunction of A.H.
ATTORNEY FOR APPELLEE: Hon. Mario Ortiz, Law Office of Mario Ortiz Saroldi, 310 N. Mesa, Ste. 900, El Paso, TX 79901. ATTORNEY FOR APPELLANT: Hon. Kevin McCary, Assistant County Attorney, 500 E. San Antonio, Rm. 503, El Paso, TX 79901.
ATTORNEY FOR APPELLEE: Hon. Mario Ortiz, Law Office of Mario Ortiz Saroldi, 310 N. Mesa, Ste. 900, El Paso, TX 79901.
ATTORNEY FOR APPELLANT: Hon. Kevin McCary, Assistant County Attorney, 500 E. San Antonio, Rm. 503, El Paso, TX 79901.
Before McClure, C.J., Rodriguez, J., and Larsen, J., Larsen, J. sitting by assignment
OPINION
ANN CRAWFORD McCLURE, Chief Justice
The County of El Paso appeals from an order granting A.H.'s petition for expunction, arguing that the trial court erred in granting the petition because A.H. did not plead or prove that he met all of the mandatory requirements under the Texas expunction statute. We agree, and we therefore reverse the trial court's order and render judgment denying the expunction.
This case was submitted on the County's brief only since A.H. did not file a brief.
FACTUAL AND PROCEDURAL BACKGROUND
On September 23, 2015, A.H. was indicted by a grand jury on seven counts of Aggravated Sexual Assault of a Child under the age of 14, one count of Aggravated Sexual Assault of a Child under the age of six, and four counts of Indecency with a Child by Sexual Contact, all of which stemmed from incidents that allegedly occurred on May 5, 2000. The alleged victims of the 12 offenses were children who had previously been placed in foster care in A.H.'s home, all of whom provided investigators with statements describing multiple incidents in which A.H. and his wife had engaged in sexual acts with them, either individually or in a group and/or had engaged in inappropriate touching. Following his arrest on the indictment, a jury trial was set for March 6, 2017, but on February 28, 2017, the prosecutor filed a motion to dismiss the indictment, citing "prosecutorial discretion" as the sole basis for the motion. The trial court granted the motion that same day.
A.H.'s wife was indicted on a total of seven counts of Aggravated Sexual Assault of a Child and four counts of Indecency with a Child Sexual by Contact with regard to these same incidents.
Shortly thereafter, A.H. filed a petition seeking the expunction of all records and files pertaining to his arrest on the charged offenses pursuant to the Texas expunction statute found in Article 55.01 of the Texas Code of Criminal Procedure. In support of his request, A.H. alleged that all of the charges against him had been dismissed, no charges were currently pending, and he was never convicted of any of the charges and/or placed on community service for any of the offenses for which he was arrested. The County opposed A.H.'s petition, asserting that these factual allegations were not sufficient to entitle A.H. to an expunction, and that instead, A.H. was required to also plead and prove the existence of one of the following two additional conditions under the expunction statute: (1) the applicable statute of limitations had run on all of the charged offenses thereby prohibiting a future prosecution, or (2) the prosecutor's dismissal of the indictment was based on a determination that the "presentment [of the indictment was] made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense." TEX.CODE CRIM.PROC.ANN. art. 55.01(a)(2)(A)(ii)(c) ; 55.01(a)(2)(B). The County argued that A.H. could not prove the existence of either condition because no statute of limitations exists for the charged offenses, and because A.H. presented no evidence that the prosecutor had moved to dismiss the indictment because of any mistake or false information affecting the presentment of the indictment.
In his petition, A.H. alleged that: "1) No indictment or information charging Petitioner with commission of a felony or misdemeanor has is currently pending against Petitioner [and] all charges arising out of this arrest have been dismissed since 02/28/17; 2) Petitioner has been released from custody on this arrest; 3) Petitioner was not finally convicted of any offense arising out of said arrest and there are not charges currently pending against Petitioner arising out of the arrest; 4) There was no court-ordered supervision under Tex. Code Crim. Pro. Arts. 42.12 or 42.13 relating to this arrest; [and] 5) Petitioner was not released on a conditional discharge under the Controlled Substances Act."
The trial court held a hearing on A.H.'s petition on April 27, 2017, and thereafter issued an order granting the expunction. At the County's request, the trial court thereafter entered Findings of Fact and Conclusions of Law. In its findings, the trial court found that the indictment against A.H. had been dismissed in its entirety, that no charges were currently pending against A.H., and that A.H. had never been convicted of any of the charged offenses and/or placed on community supervision for any of the offenses arising out of his arrest. In addition, the trial court found that no statutes of limitations existed for any of the charged offenses. However, the trial court found that the "State of Texas' dismissal [of the indictment] indicates absence of probable cause at the time of dismissal to believe the petitioner committed the offense." Based on these findings, the trial court concluded that A.H. was "entitled to an expungement under article 55.01(2)(A)(ii)" of the Code of Criminal Procedure.
The trial court expressly found that: "1. The Petitioner was indicted September 23, 2015 on a 12-count indictment for Sexual Assault of a Child, Indecency with a Child by Sex ual contact, and Aggravated Sexual Assault of a Child .... 2. Petitioner was released from custody on this arrest. 3. A special setting jury trial on that case was set for 03/06/17. 4. Six days before the special setting jury trial, on 02/28/2017, the State of Texas dismissed all charges against the Petitioner. 5. The State of Texas dismissed all charges based on prosecutorial discretion. 6. The State of Texas' dismissal indicates absence of probable cause at the time of the dismissal to believe the petitioner committed the offense. 7. No charges against Petitioner are currently pending. 8. There is no statute of limitations on the charges for which Petitioner was indicted for. 9. Petitioner was not finally convicted of any offense arising out of said arrest and there are not charges currently pending against Petitioner arising out of the arrest. 10. There was no court-ordered supervision under Tex. Code Crim. Pro. Arts. 42.12 or 42.13 relating to this arrest. 11. Petitioner was not released on conditional discharged under the Controlled Substances Act." We note that the trial court erred in its description of the indictment, as all eight of the sexual assault counts were aggravated offenses.
This appeal followed.
DISCUSSION
In two issues, the County contends that the trial court erred in granting A.H.'s petition for expunction because A.H. did not meet his burden of establishing that he had met all of the conditions set forth in the Texas expunction statute. For the reasons set forth below, we agree.
Applicable Law
The right to an expunction is a statutory privilege. See In Matter of Expunction of A.M. , 511 S.W.3d 591, 594 (Tex.App.--El Paso 2015, no pet.) ; see also In re E.R.W. , 281 S.W.3d 572, 573 (Tex.App.--El Paso 2008, pet. denied). The Texas expunction statute is found in Article 55.01 of the Texas Code of Criminal Procedure, which lays out the various factual situations in which a person may be entitled to an expunction, and the conditions the petitioner must meet in order to be entitled to an expunction. See TEX.CODE CRIM.PROC.ANN. art. 55.01 ; see also State v. T.S.N. , 547 S.W.3d 617, 623 (Tex. 2018) (recognizing that the expunction statute covers a variety of factual situations).
When, as here, an indictment was filed against a defendant but later dismissed, the defendant may be entitled to an expunction if he can establish that the following preliminary conditions were met: (1) he was released from custody; (2) the charges filed against him did not result in a final conviction; (3) the charges are no longer pending; and (4) he was not placed on community supervision under Chapter 42A for any of the charged offenses. TEX.CODE CRIM.PROC.ANN. art. 55.01(a)(2). However, the mere fact that a prosecutor may decide to dismiss an indictment against a defendant or otherwise decline to pursue charges against him, does not, standing alone, entitle the defendant to an expunction. See, e.g., Ex parte Barham , 534 S.W.3d 547, 551 (Tex.App.--Texarkana 2017, no pet.). Instead, the defendant must also plead and prove that he has met at least one of the additional conditions listed in the expunction statute, only two of which we consider in this appeal. First, the statute provides that a person is entitled to an expunction if he establishes that the indictment or information that was filed against him was dismissed or quashed because "the presentment [of the indictment was] made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense." TEX.CODE CRIM.PROC.ANN. art. 55.01(a)(2)(A)(ii)(c). Second, the statute entitles a person to an expunction if he establishes that a prosecution for the offenses for which he was arrested is "no longer possible because the limitations period has expired." TEX.CODE CRIM.PROC.ANN. art 55.01(a)(2)(B).
When a person has been arrested, but no indictment or information has been filed, a different provision in the expunction statute applies. Under this provision, the person is entitled to an expunction, if, among other things, he has been released from custody and never convicted of the offenses or placed on community supervision, provided that at least three years have elapsed from the date of his arrest. Tex.Code Crim.Proc.Ann. art. 55.01(a)(2)(A)(i)(c). In the trial court, A.H. referred to this Code provision, finding it significant that three years had nearly elapsed since his arrest. We note, however, that this provision was not relevant to A.H.'s case, as he had already been formally indicted by a grand jury.
In addition to the two situations discussed herein, a petitioner may also be entitled to an expunction if he can establish that he was acquitted of all the charges for which he was arrested; if he was convicted, but later pardoned of the charged offenses; or if the indictment or information that was filed against him was later dismissed because he completed a veterans treatment court program or a pretrial intervention program, or because the indictment or information was void. Tex.Code Crim.Proc.Ann. art. 55.01 (a)(1)(2)(A)(ii)(a)(b)(d).
An indictment is considered as "presented" when it has been duly acted upon by the grand jury and received by the court. Tex.Code Crim.Proc.Ann. art. 12.06.
Although the expunction statute is found in the Texas Code of Criminal Procedure, an expunction proceeding is considered a civil cause of action. See State v. T.S.N. , 547 S.W.3d at 619 ; see also In Matter of Expunction of A.M. , 511 S.W.3d at 594. Further, because a cause of action for expunction is statutory in nature, all conditions listed in the statute are considered mandatory, and therefore, all of the listed conditions must be met before a person is entitled to expunction. In Matter of Expunction of A.M. , 511 S.W.3d at 594 ; see also In re D.W.H. , 458 S.W.3d 99, 104 (Tex.App.--El Paso 2014, no pet.).
When a party holding criminal records opposes a petition for expunction, the petitioner has the burden of presenting evidence that his case meets all of the mandatory conditions set forth in the expunction statute. In Matter of Expunction of A.M. , 511 S.W.3d at 594 ; In re C.V. , 214 S.W.3d 43, 44 (Tex.App.--El Paso 2006, no pet.). Merely pleading that the statutory conditions have been met is insufficient to carry this burden, as allegations in a petition are not considered evidence. See Ex parte K.R.K. , 446 S.W.3d 540, 544 (Tex.App.--San Antonio 2014, no pet.) ; see also In re Expunction of A.R. , 225 S.W.3d 643, 646 (Tex.App.--El Paso 2006, no pet.) (petitioner could not rely on allegations made in his verified pleadings as proof that he satisfied the statutory requirements for receiving an expunction).
As a general rule, a trial court has no discretion to deny a petition for expunction if the petitioner meets his burden of establishing that all of the statutory conditions have been met. In the Matter of the Expunction of A.G. , 388 S.W.3d 759, 761 (Tex.App.--El Paso 2012, no pet.). Conversely, a trial court has no equitable power to extend the clear meaning of the expunction statute, and the trial court therefore has no authority to grant an expunction if the petitioner fails to demonstrate strict compliance with the conditions imposed by the statute. In re A.G. , 388 S.W.3d at 761, citing In re J.O. , 353 S.W.3d 291, 293 (Tex.App.--El Paso 2011, no pet.) ; In re Expunction of Jones , 311 S.W.3d 502, 504-05 (Tex.App.--El Paso 2009, no pet.).
Standard of Review
A trial court's ruling on a petition for expunction is generally reviewed for an abuse of discretion. See State v. T.S.N. , 547 S.W.3d at 620, citing Heine v. Tex. Dep't of Pub. Safety , 92 S.W.3d 642, 646 (Tex.App.--Austin 2002, pet. denied) ; see also In the Matter of the Expunction of A.G. , 388 S.W.3d at 761. Under the abuse of discretion standard, we afford no deference to the trial court's legal determinations because a court has no discretion in deciding what the law is or in applying it to the facts. State v. T.S.N. , 547 S.W.3d at 620, citing In re Labatt Food Serv., L.P. , 279 S.W.3d 640, 643 (Tex. 2009). Thus, we review a trial court's legal conclusions de novo. Id., citing State v. Heal , 917 S.W.2d 6, 9 (Tex. 1996).
Analysis
In the present case, there is no dispute that the indictment that was filed against A.H. was dismissed, that he was released from custody, that no charges are currently pending against him, and that he was never convicted of the offenses for which he was arrested and/or placed on community supervision, thereby satisfying the preliminary conditions for an expunction under the statute. However, the State argues in two separate issues that A.H. did not meet his burden of proving his entitlement to an expunction because he did not plead or prove any of the additional conditions imposed by the expunction statute. We review each issue separately.
No Statute of Limitations Exists for the Charged Offenses
In Issue One, the County contends that A.H. was not entitled to an expunction under Article 55.01(a)(2)(B) of the Code of Criminal Procedure because he did not meet his burden of proving that the statute of limitations had run on the charged offenses, thereby prohibiting a future prosecution. We agree.
As the County points out, and as the trial court recognized, the current version of Article 12.01 of the Texas Code of Criminal Procedure provides that there is no statute of limitations for the offenses of Aggravated Sexual Assault of a Child and of Indecency with a Child, with which A.H. was charged in the indictment. TEX.CODE CRIM.PROC.ANN. art. 12.01. We recognize that at the time the offenses were allegedly committed in May of 2000, the applicable statute of limitations for both offenses was ten years from the eighteenth birthday of the victim; however, effective September 1, 2007, the legislature amended the Code to eliminate any limitations period for either offense. See Act of May 18, 2007, 80th Leg., R.S., ch. 593, § 1.03, art. 12.01, 2007 TEX.GEN.LAWS 1120, 1120 (current version at TEX.CODE CRIM.PROC.ANN. art. 12.01(1)(B)(E) ); see also Ex parte Vallejo , No. 03-18-00297-CR, 2018 WL 5960801, at *2 (Tex.App.--Austin Nov. 14, 2018, pet. ref'd) (not designated for publication)(discussing 2007 legislative changes). Moreover, because the legislature did not expressly provide otherwise when it enacted this amendment to the Code, the amendment eliminating the limitations period applies to all offenses that were not time-barred at the time it was enacted. See Ex parte Vallejo , 2018 WL 5960801, at *2 (because the statute of limitations had not yet run on the offenses for which appellant was charged when the legislature amended Article 12.01 of the Code to eliminate any limitations period for the offenses of sexual assault of a child, aggravated sexual assault of a child, and indecency with a child, the new limitations period applied to appellant's case), citing Lindsey v. State , 760 S.W.2d 649, 653 (Tex. Crim. App. 1988) ; Archer v. State , 577 S.W.2d 244 (Tex. Crim. App. 1979) ; see also Phillips v. State , 362 S.W.3d 606, 613 (Tex. Crim. App. 2011), overruled on other grounds by Ex parte Heilman , 456 S.W.3d 159 (Tex. Crim. App. 2015) (recognizing that unless the legislature expressly provides otherwise, a statute extending the period of limitation for a criminal offense applies to all offenses not time-barred at the time the statute was enacted).
Article 12.01 of the Code provides in relevant part:
Except as provided in Article 12.03, felony indictments may be presented within these limits, and not afterward:
(1) no limitation:
...
(B) sexual assault under Section 22.011(a)(2), Penal Code, or aggravated sexual assault under Section 22.021(a)(1)(B), Penal Code ;
...
(E) indecency with a child under Section 21.11, Penal Code.
Tex.Code Crim.Proc.Ann. § 12.01 (1)(B)(E).
Our review of the record reveals that the statute of limitations had not yet run on any of the offenses for which A.H. was charged at the time the 2007 amendment took effect. In particular, the record indicates that the oldest alleged victim was 25 years old in December of 2014 when he provided his written statement to investigators, and he therefore would have been approximately 18 years old when the 2007 amendment took effect. Because the prior statute of limitations for the charged offenses was ten years from the victim's eighteenth birthday, and the oldest victim had not yet turned 28, the statute had not yet run on any of the charged offenses at the time the 2007 amendment took effect.
Accordingly, the current version of the Code, which provides that there is no limitation period for the charged offenses, applies to A.H.'s case. In turn, because no limitations period exists for any of the charged offenses, A.H. cannot, as a matter of law, establish that the statute of limitations has run on the charges for which he was arrested. We therefore conclude that A.H. was not entitled to an expunction under Article 55.01(a)(2)(B) of the Code of Criminal Procedure.
The County's Issue One is sustained.
A.H. did not Establish that the Dismissal of his Indictment was Based on a Mistake or Factual Error that Affected the Grand Jury's Probable Cause Determination
In Issue Two, the County contends that A.H. was not entitled to an expunction under Article 55.01(a)(2)(A)(ii)(c) of the Code of Criminal Procedure because he did not meet his burden of establishing that the prosecutor dismissed his indictment because of a mistake, false information, or "other similar reason" indicating the absence of probable cause in the presentment of the indictment. TEX.CODE CRIM.PROC.ANN. art. 55.01(a)(2)(A)(ii)(c). We agree.
As set forth above, the trial court found that the prosecutor dismissed A.H.'s indictment because of an "absence of probable cause at the time of dismissal to believe the petitioner committed the offense." However, this finding not only lacks any evidentiary support in the record, but even if it did, it would not provide a sufficient legal basis to entitle A.H. to an expunction.
First, there is nothing in the record that sheds any light on the reason why the prosecutor moved to dismiss the indictment. The motion to dismiss used by the prosecutor was a standardized form, which listed several possible reasons for the dismissal from which the prosecutor could choose, by checking a box next to the listed reason. Among the listed reasons were that the evidence was insufficient, the complaining witness had requested dismissal, or necessary witnesses could not be located. The prosecutor did not choose any of these listed reasons, and instead, checked the box for "other," writing in the term "prosecutorial discretion" next to it. It is well-established that a prosecutor has the sole discretion to determine whether to prosecute an offense, and therefore, the prosecutor is authorized to dismiss an indictment, with the trial court's permission, at any time and for virtually any reason, even when a grand jury has properly returned the indictment. See, e.g. , TEX.CODE CRIM.PROC.ANN. art. 32.02 ; see also Gunville v. Gonzales , 508 S.W.3d 547, 565-66 (Tex.App.--El Paso 2016, no pet.) (recognizing that a prosecutor has "no obligation to prosecute the presentment [of an indictment], to sign the return of an indictment, or even to prosecute an indictment properly returned."); see also Neal v. State , 150 S.W.3d 169, 173 (Tex. Crim. App. 2004) (recognizing that the decision of whether or not to prosecute a case generally rests entirely within a prosecutor's discretion). The prosecutor therefore had the discretion to dismiss the indictment against A.H. for any number of reasons, but she chose not to disclose those reasons in her motion to dismiss, and there is nothing in the record to indicate why she made that decision. Although we decline to speculate on the reasons why she may have dismissed the indictment, we can state with certainty that there is nothing in the record to support the trial court's finding that she did so because of an "absence of probable cause at the time of the dismissal to believe A.H. committed the charged offense."
Article 32.02 of the Code provides that: "The attorney representing the State may, by permission of the court, dismiss a criminal action at any time upon filing a written statement with the papers in the case setting out his reasons for such dismissal, which shall be incorporated in the judgment of dismissal. No case shall be dismissed without the consent of the presiding judge." Tex.Code Crim.Proc.Ann. art. 32.02.
Moreover, even if the record did support the trial court's finding that the prosecutor dismissed the indictment on this basis, such a finding would not entitle A.H. to an expunction. The expunction statute is not focused on the state of the evidence at the time of the dismissal ; instead, the focus of the statute is on the state of the evidence that was presented to the grand jury to support the indictment. See Texas Dept. of Pub. Safety v. Mendoza , 952 S.W.2d 560, 563 (Tex.App.--San Antonio 1997, no writ) ("[I]n looking at the reason for the dismissal, the court must focus on the evidence the grand jury considered when it presented the indictment since the statute requires the cause to be dismissed ‘because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause....’ "). Thus, in order to be entitled to an expunction, the petitioner has the burden of coming forward with evidence demonstrating that his indictment was dismissed because the grand jury based its decision to indict on "erroneous" or "incorrect" facts. See In Matter of Expunction of A.M. , 511 S.W.3d at 596 (recognizing that a "finding that the presentment of the indictment was made because of false information or mistake requires proof that the grand jury based its decision on erroneous facts."); see also Ex parte Kilberg , 802 S.W.2d 17, 18-19 (Tex.App.--El Paso 1990, no writ) (recognizing that the phrase "or other similar reason" means there must be a showing that the grand jury acted on "incorrect facts."). In other words, the statute requires the petitioner to affirmatively demonstrate that the indictment was dismissed because "there was no factual underpinning" supporting the grand jury's probable cause determination. See Ex parte Kilberg , 802 S.W.2d at 19. For example, a petitioner will be entitled to an expunction if he demonstrates that his indictment was dismissed because of newly-discovery scientific evidence that exculpates him, which in turn, justifies a finding that the grand jury's decision to indict him was based on erroneous or false information. See, e.g. , In Matter of Expunction of A.M. , 511 S.W.3d at 593-97 (where petitioner presented evidence that his daughter had falsely accused him of child sexual assault, and that subsequent DNA testing had exculpated him, trial court could have determined that the grand jury based its decision on erroneous facts); In re E.R.W. , 281 S.W.3d 572, 575 (Tex.App.--El Paso 2008, pet. denied) (defendant accused of arson was entitled to expunction where indictment was dismissed after arson experts determined that that the factors initially relied on to show arson during the grand jury proceedings had later been proven to be incorrect by advances in the field of fire analysis, and that no arson had occurred).
However, when a prosecutor dismisses an indictment not because of any infirmities in the evidence presented to the grand jury, but because he or she believes there is insufficient evidence to prove a defendant's guilty beyond a reasonable doubt at the time of trial--such as when a witness is no longer available or willing to testify at trial--this is not a basis for obtaining an expunction under the statute. See In re C.V. , 214 S.W.3d 43, 45 (Tex.App.--El Paso 2006, no pet.) ; see also In re I.V. , 415 S.W.3d 926, 930 (Tex.App.--El Paso 2013, no pet.) (where prosecutor moved to dismiss a defendant's case based on witness misconduct during trial, which compromised the State's case, the defendant was not entitled to an expunction, as the dismissal was not related to any infirmities in the grand jury proceedings). Accordingly, even if the trial court had a factual basis for finding that the prosecutor dismissed the indictment against A.H. because she believed there was a lack of evidence "at the time of the dismissal," i.e., the week before A.H.'s trial, this would not entitle A.H. to an expunction. Instead, as set forth above, the expunction statute required the trial court to find that the prosecutor dismissed the indictment against A.H. due to a "mistake, false information, or other similar reason" indicating the absence of probable cause in the presentment of the indictment; the court, however, the trial court made no such finding.
More importantly, our review of the record reveals that A.H. presented no evidence that would have justified the trial court in making this required finding. As set forth above, the appellate record contains written statements from the alleged victims, dating from September of 2014 through May of 2015, chronicling several instances in which A.H. and his wife allegedly forced the victims to engage in sexual acts and/or engaged in inappropriate touching. There is nothing in the record to indicate that these statements were later determined to be false or that they were given as the result of any mistake. In particular, A.H. presented no evidence indicating that any of the victims had recanted their statements or that any new exculpatory evidence had come to light that would have called into question the validity of the evidence upon which the grand jury initially relied in making its decision to indict. Accordingly, we conclude that A.H. did not meet his burden of establishing that he was entitled to an expunction under Article 55.01(a)(2)(A)(ii)(c) of the Texas Code of Criminal Procedure.
The County's Issue Two is sustained.
Conclusion
Because A.H. did not come forward with evidence to satisfy the mandatory conditions for obtaining an expunction as required by Article 55.01 of the Code of Criminal Procedure, we conclude that the trial court erred in granting his petition for an expunction. We therefore reverse the trial court's order and render judgment denying the expunction.