S.J. v. State

438 S.W.3d 838

S.J., Appellant

v.The STATE of Texas, State.

No. 02–13–00462–CV.

Court of Appeals of Texas, Fort Worth.

July 10, 2014.

Deric King Walpole, McKinney, for Appellant.

Paul Johnson, Criminal District Attorney, Charles E. Orbison, Assistant Criminal District Attorney and Chief of Appellate Division, Andrea R. Simmons & Lauri Frohbieter, Assistant Criminal District Attorneys, Denton County District Attorneys Office, Denton, for State.

PANEL: LIVINGSTON, C.J.; WALKER and McCOY, JJ.

OPINION

TERRIE LIVINGSTON, Chief Justice.

In one issue, appellant S.J. appeals the trial court's order denying his petition for expunction of records concerning his arrest for aggravated assault.¹ On an issue of first impression in this court, we conclude that chapter 55 of the code of criminal procedure authorizes expunction of records concerning an arrest and not concerning distinct offenses arising from an arrest. Therefore, we hold that appellant is not entitled to expunction because he cannot satisfy the statutory requirements for all charges arising from his arrest. We affirm.

Background Facts

In September 2013, appellant filed a petition for expunction of records concerning his January 19, 2010 arrest for aggravated assault, which occurred in Denton County. He alleged that the trial court's case relating to that arrest had been dismissed in September 2010 and that the statute of limitations had expired. He also asserted that the charge had not resulted in a final conviction and was no longer pending. He asked the trial court to order several governmental entities and officials to remove records concerning the arrest.

The State filed an answer to the petition, contending that appellant was “barred from expunging any records [relating to the aggravated assault arrest] because individual charges cannot be expunged when the arrest resulted in court-ordered community supervision for another offense.” The State contended that after appellant's arrest and May 2010 indictment for aggravated assault, he entered into a plea bargain in September 2010 in which he pled nolo contendere to terroristic threat (a misdemeanor under the circumstances of this case) ² in exchange for dismissal of the aggravated assault charge (a felony).³ The State asserted that as part of the plea bargain with respect to the terroristic threat charge, a county criminal court had deferred its adjudication of appellant's guilt and had placed him on community supervision for twelve months. Finally, the State argued, “[Appellant] pleaded [nolo contendere] to Terroristic Threat[,] thereby admitting that his arrest was not wrongful.”

To its answer, the State attached a copy of the September 2010 combined motion and order dismissing the aggravated assault case in the trial court.⁴ The motion stated,

NOW COMES the State of Texas, ... and respectfully requests the Court to dismiss the above entitled and numbered cause.

The Defendant is pleading guilty to terroristic threat [in the county criminal court's cause number]. As a part of the plea agreement the State is dismissing this instant case in the interest of justice.

The State also attached a copy of the county criminal court's order granting deferred adjudication of appellant's guilt for terroristic threat. The order stated that appellant had pled nolo contendere to committing terroristic threat on January 19, 2010 and that the county criminal court had found that the evidence substantiated appellant's guilt for that offense.

The trial court held a hearing on appellant's petition. Appellant testified that he had been arrested on January 19, 2010 for aggravated assault and that the charge had been dismissed. He also testified that contrary to the language in the State's motion to dismiss the aggravated assault case, he did not plead guilty to terroristic threat and had never acknowledged wrongdoing for any event that occurred on January 19, 2010. On cross-examination by the State, appellant testified that he did not know the facts that supported the State's charge for terroristic threat. After the State represented that both offenses alleged the same victim and date, the trial court stated, “I find it a little incredible to believe that this Defendant had no idea what he was pleading to when he pled to a terroristic threat.”

The trial court denied appellant's petition for expunction. Appellant brought this appeal.

Statutory Requirements for Expunction

Appellant contends only that the trial court erred by denying his petition. We review a trial court's decision denying a petition for expunction for an abuse of discretion. See Ex parte Cephus, 410 S.W.3d 416, 418 (Tex.App.-Houston [14th Dist.] 2013, no pet.); Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex.App.-Austin 2002, pet. denied). However, to the extent a ruling on an expunction petition 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 applying the law to the facts. Tex. Dep't of Pub. Safety v. Dicken, 415 S.W.3d 476, 478 (Tex.App.-San Antonio 2013, no pet.). “When ... the trial court makes no separate findings of fact or conclusions of law, we draw every reasonable inference supported by the record in favor of the trial court's judgment. We must then affirm the judgment of the trial court on any legal theory that finds support in the evidence.” Murray v. Murray, 276 S.W.3d 138, 143 (Tex.App.-Fort Worth 2008, pet. dism'd) (citation omitted).

The purpose of expunction

The remedy of expunction allows a person who has been arrested for the commission of an offense to have all information about the arrest removed from governmental entities' and officials' records if he meets the requirements of article 55.01 of the code of criminal procedure. SeeTex.Code Crim. Proc. Ann. art. 55.01; Tex. Dep't of Pub. Safety v. Nail, 305 S.W.3d 673, 675 (Tex.App.-Austin 2010, no pet.). A petitioner's right to expunction is purely a matter of statutory privilege, and the petitioner bears the burden of demonstrating that all of the required statutory conditions have been met. Nail, 305 S.W.3d at 675; seeTex.Code Crim. Proc. Ann. art. 55.01; In re I.V., 415 S.W.3d 926, 929 (Tex.App.-El Paso 2013, no pet.) (stating that in a “statutory cause of action, all provisions are mandatory and exclusive”); Tex. Dep't of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (“The trial court ... has no equitable power to extend the protections of the expunction statute beyond its stated provisions.”).

The traditional and primary purpose of the expunction statute is to remove records of wrongful arrests. See Harris Cnty. Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 574 (Tex.1991) (citing Tex. Dep't of Pub. Safety v. Failla, 619 S.W.2d 215, 217 (Tex.Civ.App.-Texarkana 1981, no writ)); see alsoTex. Gov't Code Ann. § 311.023(1) (West 2013) (stating that in construing a statute, we may consider the object sought by the law); Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 87 (Tex.2006) (construing a statute's purpose while interpreting it). For example, the statute is not “intended to allow a person who is arrested, pleads guilty to an offense, and receives probation pursuant to a guilty plea to expunge arrest and court records concerning that offense.” J.T.S., 807 S.W.2d at 574 (quoting Failla, 619 S.W.2d at 217). When an arrest is not wrongful, removal and destruction of records relating to it harms the public's interest of using the records “in subsequent punishment proceedings, including subsequent applications for probation.” Id.

Our sister courts of appeals have repeatedly held that an arrest is not wrongful for purposes of the expunction statute when the defendant admits guilt with respect to an offense arising from the arrest. See, e.g., In re O.R.T., 414 S.W.3d 330, 335 (Tex.App.-El Paso 2013, no pet.); Travis Cnty. Dist. Attorney v. M.M., 354 S.W.3d 920, 926 (Tex.App.-Austin 2011, no pet.) (en banc op. on reh'g); Harris Cnty. Dist. Attorney's Office v. D.W.B., 860 S.W.2d 719, 721 (Tex.App.-Houston [1st Dist.] 1993, no writ). Likewise, in our view, an arrest is not wrongful when, as here, a defendant pleads nolo contendere to an offense arising from the arrest ⁵ and, as required by the code of criminal procedure, a court finds that evidence substantiates the defendant's guilt while deferring a formal adjudication of guilt. SeeTex.Code Crim. Proc. Ann. art. 42.12, § 5(a) (West Supp.2013); C.S.S. v. Tex. Dep't of Pub. Safety, No. 03–10–00707–CV, 2012 WL 2989240, at *2–3 (Tex.App.-Austin July 24, 2012, pet. denied) (mem. op.) (concluding that when a petitioner pleads nolo contendere to a misdemeanor offense and successfully completes deferred adjudication community supervision, the petitioner is not entitled to expunction of arrest records connected to the offense); Tex. Dep't of Pub. Safety v. Bernstein, No. 05–97–00306–CV, 1997 WL 606751, at *1 (Tex.App.-Dallas Oct. 2, 1997, no pet.) (not designated for publication) (“[T]he statute was not intended to allow a person who pleads guilty to an offense and receives probation to expunge arrest ... records concerning that offense. The same rationale applies to petitioners who plead nolo contendere.” (footnote omitted)).

Chapter 55's arrest-based scheme

Despite the indication that appellant's arrest was not wrongful because it was supported by evidence of his guilt for terroristic threat, he argues that the trial court abused its discretion by denying his petition for expunction because he met all of article 55.01's requirements with respect to the aggravated assault charge. Article 55.01 provides, in pertinent part,

(a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:

....

(2) the person has been released and the charge, if any, has not resulted in a...