Ex parte C.A.

EX PARTE C.A.

No. 02-19-00434-CV

Court of Appeals Second Appellate District of Texas at Fort Worth

March 4, 2021

On Appeal from the 16th District Court Denton County, Texas

Trial Court No. 19-8822-16

Before Kerr, Bassel, and Womack, JJ.

Memorandum Opinion by Justice Kerr MEMORANDUM OPINION

Introduction

The Texas Department of Public Safety appeals an order expunging C.A.'s January 14, 2015 arrest. In four issues, the Department argues: (1) legally insufficient evidence supports the expunction order; (2) to grant C.A. relief, the trial court necessarily misinterpreted the relevant statute; (3) the trial court erred by not holding a hearing; and (4) assuming the trial court held a hearing, error occurred because no court reporter was present. The only parties who apparently appeared at the expunction hearing, C.A. and the Denton County District Attorney's office, have not filed a response.

We hold that (1) the evidence is presumed legally sufficient absent a reporter's record; (2) the statute on which the Department relies was relevant only if the Department was present at the hearing to argue it and to present evidence supporting it, but the Department was not present, so the statute was not relevant; (3) the trial court held a hearing; and (4) the Department did not preserve its contention that the absence of a court reporter at the hearing constituted error. We overrule the Department's four issues and affirm the trial court's expunction order.

Background

A. C.A. files her petition.

C.A. filed her expunction petition on September 16, 2019. Regarding her January 14, 2015 arrest, C.A. alleged:

3. Petitioner is entitled to an expunction of all records and files relating to said alleged offense of Possession of a Controlled Substance, Penalty Group 3, less than 28 grams under Article 55.01(a)(2) of the Texas Code of Criminal Procedure, because an indictment or information was presented, but the same was subsequently dismissed. Petitioner further states that [s]he has been released, that the charge has not resulted in a final conviction and is no longer pending, and that there was no court-ordered community supervision under Article 42.12 of the Texas Code of Criminal Procedure.

4. Petitioner has not been convicted of a felony in the five years preceding the date of said arrest.

Although these paragraphs appear to track an older version of the expunction statute found in Article 55.01 of the Texas Code of Criminal Procedure, the Department did not raise with the trial court any problems with C.A.'s petition, nor does it argue on appeal that C.A.'s petition was deficient on this basis.¹

B. C.A. serves the Department and notifies it of the hearing.

On September 19, 2019, three days after C.A. filed her petition, C.A. served the Department notice of an October 30, 2019 hearing. In its brief, the Department acknowledges having received notice.

C. The Department files an answer that goes beyond a general denial.

One week before the October 30, 2019 hearing, the Department filed its "Original Answer & General Denial." Ranging beyond a simple general denial, the Department asserted that C.A. was not entitled to an expunction because in a later criminal proceeding, she had allegedly admitted committing the offense for which she was arrested in January 2015 as part of a plea in bar under Section 12.45 of the Texas Penal Code. That section permits a defendant to admit an unadjudicated offense for sentencing purposes in another criminal proceeding and bars the State from later prosecuting the defendant for the unadjudicated-but-admitted offense.² The Department pleaded that when a person admits guilt as part of a plea in bar under Section 12.45, the person concedes that the underlying arrest was proper forexpunction purposes.³ See Travis Cty. Dist. Atty. v. M.M., 354 S.W.3d 920, 926-28 (Tex. App.—Austin 2011, no pet.).

D. The trial court conducts an evidentiary hearing and signs an order.

On October 30, 2019, the same date as the hearing, the trial court signed an expunction order that began:

On this 30th day of October[] 2019, came to be heard the above numbered Petition for Expunction of Records. Petitioner appeared with counsel and the Denton County District Attorney appeared. All requirements of law concerning notice to the other parties have been comp[li]ed with and it appearing to the Court that it has jurisdiction over this cause and all parties entitled to notice of these proceedings have received the same, the Court proceeded to hear evidence on this cause. After the presentation of evidence, it is the decision of the court that petitioner is entitled to have [her] records expunged, as provided by law.

An assistant district attorney signed the expunction order and agreed with both its form and content. The order does not identify the Department as appearing, and the Department admits in its brief that it did not.

E. The Department files a timely notice of appeal and a timely request for the reporter's record.

Twenty-eight days after the trial court signed the expunction order, the Department filed a timely notice of appeal and request for the reporter's record. See Tex. R. App. P. 26.1, 34.6(b)(1). Within the latter, the Department stated that it did not know whether a hearing had taken place on the record:

The Texas Department of Public Safety is appealing this case to the Second Court of Appeals at Fort Worth, Texas. The Order of Expunction was signed by the trial court on October 30, 2019. The Department was not present at a hearing on this matter[] and does not know if a hearing was held on the record. The Department requests a transcription be made of the hearing, which was scheduled for October 30, 2019.

The court reporter responded that no hearing record was made. In its later-filed docketing statement, the Department acknowledged that there was no reporter's record.

Standard of Review

An expunction proceeding is a civil matter despite the fact that the expunction statute appears in the Texas Code of Criminal Procedure. Ex parte Green, 373 S.W.3d 111, 113 (Tex. App.—San Antonio 2012, no pet.); see Tex. Code Crim. Proc. art. 55.01. We review a trial court's expunction ruling for an abuse of discretion. Green, 373 S.W.3d at 113. A trial court abuses its discretion if it acts without reference to any guiding rules or principles. Id. To the extent an expunction ruling turns on a question of law, we review the ruling de novo because a trial court has no discretion in determining what the law is or in applying the law to the facts. Id. Thus, if a trial court misapplies or misinterprets the law, it abuses its discretion. Id.

Sufficiency of the Evidence

In the Department's first issue, it attacks the legal sufficiency of the evidence supporting the expunction order. The Department argues that because it filed an answer, the trial court could not decide the case on the pleadings but had to hearevidence to grant C.A. relief. As a general legal proposition, the Department is correct.

If this were a no-answer default judgment, the non-answering party would be deemed to have admitted all properly pleaded facts. Rouhana v. Ramirez, 556 S.W.3d 472, 476-77 (Tex. App.—El Paso 2018, no pet.) (citing Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979)); In re K.B.A., 145 S.W.3d 685, 690 (Tex. App.—Fort Worth 2004, no pet.). But when a defendant has answered, its non-appearance at trial does not constitute an abandonment of the defendant's answer, and it is not an implied confession of any issues joined by that answer. Rouhana, 556 S.W.3d at 477; K.B.A., 145 S.W.3d at 690. In such a situation, then, the plaintiff must offer evidence and prove its case as in a trial for any contested issue. Rouhana, 556 S.W.3d at 477 (citing Stoner, 578 S.W.2d at 682); K.B.A., 145 S.W.3d at 690. A judgment cannot be entered on the pleadings themselves. Rouhana, 556 S.W.3d at 477.

The order here shows that C.A. did not rest on her pleadings but actually presented evidence. Without a reporter's record of the hearing, we cannot assess evidentiary sufficiency and must instead presume that sufficient evidence supports the trial court's findings. Ex parte V.T.C., 593 S.W.3d 431, 434 (Tex. App.—San Antonio 2019, no pet.) (op. on reh'g).

We overrule the Department's first issue.

Application of Statute

In the Department's second issue, it maintains that in granting C.A. relief, the trial court necessarily misinterpreted the expunction statute. For this issue, the Department relies solely on the position asserted in its answer: C.A. escaped prosecution for the offense for which she was arrested on January 14, 2015 only by admitting—in a separate criminal proceeding and as part of a Section 12.45 plea in bar—that she had committed that offense, something that, for expunction purposes, defeats her requested relief. See M.M., 354 S.W.3d at 926-28.

A. Without a reporter's record, we presume the evidence presented at the hearing supported the trial court's ruling.

But the Department's argument assumes that the trial court had some sort of evidence before it about the plea in bar. Without a reporter's record, we cannot indulge this assumption. See V.T.C., 593 S.W.3d at 434. Indeed, without a reporter's record, we assume the opposite: that the trial heard evidence entitling C.A. to expunction of the January 2015 arrest. See id.

B. The plea-in-bar issue was the Department's to prove, not C.A.'s.

The Department next asserts that C.A., as the petitioner, had the burden of proving compliance with the expunction statute. See McCarroll, 86 S.W.3d at 378. Once again though, without a reporter's record, we presume that the trial court's ruling is consistent with C.A.'s having proved compliance. See V.T.C., 593 S.W.3d at434. The plea-in-bar scenario was extraneous to C.A.'s pleadings; that is, the statute does not require a petitioner to prove the absence of any plea in bar.

Although the Department faults C.A. for not addressing the Section 12.45 argument that it had raised in its answer...