Opinion
No. 05-10-00153-CV
Opinion issued May 25, 2011.
On Appeal from the 366th Judicial District Court Collin County, Texas, Trial Court Cause No. 366-05145-2009.
Before Justices FITZGERALD, LANG-MIERS, and FILLMORE.
MEMORANDUM OPINION
Appellee Nader Akhavan sued for and obtained an order expunging certain criminal records. The Collin County Criminal District Attorney's Office appeals, contending the order is supported by legally and factually insufficient evidence. We reverse the trial court's order and render judgment denying Akhavan's petition.
I. Background
In June 2007, a Collin County grand jury indicted Akhavan in cause number 366-81216-07 on two counts of indecency with a child by sexual contact. He pleaded not guilty, and the case went to trial in May 2008. The jury acquitted Akhavan of count II but deadlocked as to count I, with ten jurors voting to acquit. Soon thereafter, the judge signed a judgment of acquittal as to count II and an order of mistrial as to count I. In November 2009, the District Attorney filed a motion to dismiss the case, stating therein, "[I]t has been determined that the State is unable to make a prima facie case." The motion to dismiss was granted.
In December 2009, Akhavan filed a petition for expunction. The District Attorney filed an answer containing a general denial in the instant case, which related to the indecency count that had resulted in a mistrial. The trial judge held a hearing on Akhavan's petition. During the hearing, the judge took judicial notice of the court's file. Akhavan testified that he had testified at his criminal trial that he did not commit the alleged crimes, and that he had suffered difficulty in finding a job because of his criminal record. The District Attorney called one witness, Jodee Neil, who was an assistant district attorney who had participated in the prosecution and trial of Akhavan. Neil testified that the District Attorney moved to dismiss the case because the father of the alleged victim was difficult and uncooperative. She further testified that the alleged victim never recanted and that there was no indication that any of the evidence that had been given to the grand jury was false. No other witnesses testified at the expunction hearing.
The trial judge granted Akhavan's petition for expunction at the end of the hearing. The District Attorney appealed. See Tex. Code Crim. Proc. Ann. art. 55.02, § 3(a) (West Supp. 2010) ("The person who is the subject of the expunction order or an agency protesting the expunction may appeal the court's decision in the same manner as in other civil cases.").
II. Standard of Review
We review a trial court's ruling on a petition for expunction under an abuse-of-discretion standard. Ex parte Jackson, 132 S.W.3d 713, 715 (Tex. App.-Dallas 2004, no pet.); accord Ex parte Harpole, No. 05-08-01513-CV, 2009 WL 4046043, at *2 (Tex. App.-Dallas Nov. 24, 2009, no pet.) (mem. op.). Under this standard, legal and factual insufficiency of the evidence are not independent grounds of error, but they are factors in determining whether the trial court abused its discretion. Ex parte Harpole, 2009 WL 4046043, at *2. If an essential element of expunction is supported by legally insufficient evidence, we must reverse an order granting expunction. See, e.g., State v. Bhat, 127 S.W.3d 435, 436 (Tex. App.-Dallas 2004, no pet.).
III. Analysis
A.
Law of expunction
Article 55.01 of the Texas Code of Criminal Procedure controls the right of a person who has been placed under arrest for either a felony or misdemeanor to have all records and files relating to the arrest expunged. Collin Cnty. Criminal Dist. Attorney's Office v. Dobson, 167 S.W.3d 625, 626 (Tex. App.-Dallas 2005, no pet.). The petitioner seeking expunction bears the burden of proving strict compliance with the statutory requirements. Id.
Article 55.01 requires proof of several elements. See generally Tex. Code Crim. Proc. Ann. art. 55.01(a) (West Supp. 2010). As pertinent to this case, Akhavan had to prove either (i) that the limitations period expired before the date he filed his petition for expunction, or (ii) that the indictment was dismissed "because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe [he] committed the offense or because it was void." Id. art. 55.01(a)(2)(A)(i)-(ii). And he had to prove that he had not been convicted of a felony in the five years preceding the date of his arrest. Id. art. 55.01(a)(2)(C).
B.
Issues presented
In its first issue, the District Attorney contends that Akhavan adduced insufficient evidence in support of both prongs of article 55.01(a)(2)(A). In its second issue, the District Attorney contends that Akhavan adduced insufficient evidence that he had not been convicted of a felony within five years before his arrest, as required by article 55.01(a)(2)(C). We conclude that the District Attorney's first issue is dispositive. C. Mistake, false information, or other similar reason
Akhavan does not contend that the limitations period for the alleged crime expired before he filed his petition for expunction, so the question is whether he adduced sufficient evidence that the indictment was dismissed "because the presentment had been 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 or because it was void." Id. art. 55.01(a)(2)(A)(ii).
Article 55.01(a)(2)(A)(ii) required Akhavan to show "that a mistake, false information, or other similar reason caused the presentment of the indictment and that, in turn, caused the dismissal." Kendall v. State, 997 S.W.2d 630, 632 (Tex. App.-Dallas 1998, pet. denied). That is, "the statute requires proof that the original presentment of the indictment was made because of mistake, false information, or other reason that would, at the time of the dismissal, indicate a lack of probable cause to believe the person committed the offense." T.L.B. v. Tex. Dep't of Pub. Safety, No. 03-10-00196-CV, 2011 WL 182889, at *3 (Tex. App.-Austin Jan. 20, 2011, no pet.) (mem. op.) (emphasis in original). In support of the trial judge's implicit finding that Akhavan satisfied this element, Akhavan relies on his testimony that his criminal trial ended in a hung jury in which ten jurors voted to acquit and on the State's motion for dismissal of the indictment, in which the State averred, "Upon review of all facts associated with this case by Crystal Levonius, Assistant District Attorney, it has been determined that the State is unable to make a prima facie case."
"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." Kendall, 997 S.W.2d at 632; accord Ex parte Brewer, No. 05-08-00598-CV, 2009 WL 1801037, at *2 (Tex. App.-Dallas June 25, 2009, no pet.) (mem. op.). "Likewise, any `other similar reason' must establish that the grand jury acted on incorrect facts." Kendall, 997 S.W.2d at 632. A dismissal that is based on mere insufficiency of the evidence to obtain a conviction is not a sufficient basis for expunction. T.L.B., 2011 WL 182889, at *3; In re E.R.W., 281 S.W.3d 572, 575 (Tex. App.-El Paso 2008, pet. denied); Barker v. State, 84 S.W.3d 409, 413 (Tex. App.-Fort Worth 2002, no pet.). The E.R.W. case illustrates the kind of evidence that will satisfy the requirement of incorrect or erroneous facts. The petitioner in that case had been accused of arson, but the indictment was later dismissed because expert reports concluded that there was no evidence of arson and that the factors initially relied on to show arson "ha[d] been proven to be incorrect by advances in the field of fire analysis." 281 S.W.3d at 575. The court of appeals held that this evidence was sufficient to show that the presentment of the indictment had been made due to mistake, false information, and a lack of probable cause. Id.
Akhavan adduced no evidence that the grand jury that indicted him acted on incorrect facts born of mistake, false information, or other similar reason. The fact that a subsequent jury could not reach a verdict on one count against him does not tend to show that the grand jury acted on incorrect facts. Likewise, the State's later averment that it could not make a prima facie case against him shows no more than insufficient evidence to convict. "A prima facie case represents the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." Williams v. State, 767 S.W.2d 872, 874 (Tex. App.-Dallas 1989, pet. ref'd) (en banc). Thus, the State's inability to make a prima facie case signifies only insufficient evidence, not false or mistaken information before the grand jury.
This case is similar to State v. Sink, in which the State moved to dismiss an indictment after the trial court ruled that the complaining witness, who was three years old, was incompetent to testify. 685 S.W.2d 403, 404 (Tex. App.-Dallas 1985, no writ) (per curiam). In the State's motion to dismiss, it averred, "Without this [witness's] testimony a prima facie case cannot be proved[.]" Id. Despite this averment, we held that the evidence in the subsequent expunction proceeding was insufficient to show the essential element of expunction that the grand jury indicted " because of a mistake, false information or the like." Id. at 405 (emphasis in original). Likewise, in Kendall we affirmed the denial of expunction, even though the order dismissing the indictment recited "absent th[e] suppressed evidence, the State will be unable to present a prima facie case." 997 S.W.2d at 632. In the same way, the State's averment in this case that it could not make a prima facie case against Akhavan shows only that State believed it possessed insufficient evidence to convict at the time of dismissal, not that mistaken or false information was presented to the grand jury. An assistant district attorney testified that the State moved to dismiss because the alleged victim's father was refusing to cooperate. She further testified that "there was no indication that any of the evidence given to the grand jury was false." Although the trial judge was free to disbelieve her testimony, such disbelief could not convert her testimony into affirmative evidence in support of Akhavan's petition. See R.T. Herrin Petroleum Transp. Co. v. Proctor, 338 S.W.2d 422, 427 (Tex. 1960) ("[T]estimony from an interested witness, while it need not be accepted as true by a jury, is not evidence that the exact opposite of what the witness said is true.").
Because Akhavan adduced no evidence that the indictment was dismissed because the presentment was made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal, the trial court abused its discretion by granting his petition for expunction.
D.
Alternative grounds for affirmance
Akhavan argues that we should affirm the order of expunction even if he presented insufficient evidence of the elements required by article 55.01. First, he argues that article 55.01 violates his substantive due process rights under the Fourteenth Amendment. Second, he argues that he has shown an entitlement to a equitable right of expunction.
We conclude that Akhavan's constitutional challenge to article 55.01 is not properly before us. "In the absence of an appropriate pleading raising the issue of unconstitutionality, the trial court is generally without authority to reach the issue." In re Doe 2, 19 S.W.3d 278, 284 (Tex. 2000). Akhavan did not plead that article 55.01 was unconstitutional; in fact, he filed his petition specifically "under authority of Chapter 55 of the Texas Code of Criminal Procedure." Akhavan's counsel referred to due-process concerns only briefly in his closing argument at the expunction hearing. We conclude that Akhavan's constitutional challenge to article 55.01 was not preserved in the trial court. See generally Tex. R. App. P. 33.1(a).
Akhavan's argument for equitable expunction is also not properly before us. He did not mention equitable expunction in his petition for expunction; he pleaded for expunction only and specifically under chapter 55 of the code of criminal procedure. We may not affirm a judgment based on a legal theory that was not presented to the trial court and to which the opposing party had no opportunity to respond. Victoria Gardens of Frisco v. Walrath, 257 S.W.3d 284, 289-90 (Tex. App.-Dallas 2008, pet. denied).
We reject Akhavan's proposed alternative grounds for affirmance.
IV. Conclusion
The trial court abused its discretion by granting Akhavan's petition for expunction. We reverse the order granting expunction of criminal records and render judgment denying Akhavan's petition.