Opinion
02-22-00335-CV
05-25-2023
Ex parte D.D.
On Appeal from the 362nd District Court Denton County, Texas Trial Court No. 22-3950-362
Before Sudderth, C.J.; Birdwell and Womack, JJ.
MEMORANDUM OPINION
Dana Womack, Justice
I. Introduction
Appellant D.D. appeals the trial court's order denying his petition for expunction. In what we construe as his sole issue, D.D. contends that the trial court abused its discretion by denying his petition. We will hold that the trial court did not abuse its discretion by denying D.D.'s petition for expunction because the petition was not verified as required by Article 55.02, Section 2(b) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 55.02, § 2(b). Moreover, even if D.D. had verified his petition for expunction, we would still hold that the trial court did not abuse its discretion by denying the petition because D.D. has failed to prove his right to relief under Article 55.01. See id. art. 55.01. We will thus affirm the trial court's order denying D.D.'s petition for expunction.
D.D. has filed three appellate briefs in this appeal: (1) an original brief; (2) a supplemental "Brief Factual Basis"; and (3) a supplemental "Brief The Legal/Law Part." None of those briefs contain a clearly delineated "Issues Presented" section, nor do any of those briefs "state concisely all issues or points presented for review" as required by the Texas Rules of Appellate Procedure. See Tex.R.App.P. 38.1(f). Nevertheless, liberally construing D.D.'s briefs, we glean that he asserts one issue challenging the trial court's denial of his petition for expunction. See Campise v. Davila, No. 10-23-00025-CV, 2023 WL 2916688, at *2 (Tex. App.-Waco Apr. 12, 2023, no pet. h.) (mem. op.) ("Liberally construing Campise's brief, we glean that Campise asserts one issue challenging the trial court's granting of appellees' no-evidence motion for summary judgment."); Yates v. WIOSA, LLC, No. 04-22-00083-CV, 2022 WL 17480469, at *2 (Tex. App.-San Antonio Dec. 7, 2022, no pet.) (mem. op.) ("Liberally construing Fleener's brief, we read her sole issue as complaining that her . . . [alleged] superior title somehow deprived the county court of jurisdiction.").
II. Background
In 2003, D.D. was indicted by a Denton County grand jury for aggravated sexual assault in cause number F-2003-0427-C. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii). As alleged in the indictment, on or about June 1, 2002, D.D. "intentionally or knowingly cause[d] the sexual organ of [the victim], a child younger than 14 years of age who was not the spouse of said defendant, to contact the sexual organ of the defendant." Later in 2003, a jury found D.D. guilty of the charged aggravated sexual assault, and D.D. was sentenced to life imprisonment.
In May 2022, D.D. filed his unverified "Motion to Request for ExpugantRecord Hearing and Request to Attend Hearing and be present at Hearing"-which we will construe as a petition for expunction. See Tex. Code Crim. Proc. Ann. art. 55.02. Through his petition for expunction, D.D. requested that the trial court expunge certain records in cause number F-2003-0427-C that related to alleged anal and vaginal penetration of the victim. The State filed an answer to D.D.'s petition for expunction, and the trial court held a hearing on the petition. No witnesses were called at the hearing, and no exhibits were offered or admitted. Following arguments from D.D. and the State regarding D.D.'s petition for expunction, the trial court denied the petition. This appeal ensued.
Despite spelling errors, grammatical errors, and capitalization inconsistencies, we have listed the title of D.D.'s petition verbatim. Later in this opinion, we similarly list verbatim the titles of other motions filed by D.D.
It appears that the trial court also construed this motion as a petition for expunction, as the trial court's order on the motion was styled, "Order Denying Petition for Expunction of Criminal Records."
III. Discussion
In what we construe as his sole issue, D.D. complains that the trial court abused its discretion by denying his petition for expunction.
A. Standard of Review
We review a trial court's ruling on a petition for expunction for an abuse of discretion. Ex parte R.P.G.P., 623 S.W.3d 313, 317 (Tex. 2021). A trial court abuses it discretion if it acts without reference to guiding rules and principles or if its actions were arbitrary and unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
B. The Law Regarding Expunctions
Expunction is a civil remedy governed by Article 55.01 of the Texas Code of Criminal Procedure. R.P.G.P., 623 S.W.3d at 316; see Tex. Code Crim. Proc. Ann. art. 55.01. "An expunction order allows the person arrested to 'deny the occurrence of the arrest and [deny] the existence of the expunction order [except in a criminal proceeding]' and prohibits governmental and private entities named in the order from releasing, maintaining, disseminating, or using the expunged records and files 'for any purpose.'" R.P.G.P., 623 S.W.3d at 316 (citing Tex. Code Crim. Proc. Ann. art. 55.03).
Expunction is neither a constitutional nor common-law right, but, rather, it is a statutory privilege. T.C.R. v. Bell Cnty. Dist. Att'ys Off., 305 S.W.3d 661, 663 (Tex. App.-Austin 2009, no pet.); McCarroll v. Tex. Dep't of Pub. Safety, 86 S.W.3d 376, 378 (Tex. App.-Fort Worth 2002, no pet.). Because expunction is a statutory privilege, "the statutory requirements are mandatory." R.P.G.P., 623 S.W.3d at 316. Indeed, a court has no equitable power to go beyond what the expunction statute provides, and "a petitioner is only entitled to expunction when all statutory requirements are met." A.S. v. Tex. Dep't of Pub. Safety, No. 03-15-00331-CV, 2015 WL 9583882, at *2 (Tex. App.-Austin Dec. 31, 2015, no pet.) (mem. op.). Substantial compliance with the statutory requirements will not suffice. Id. (citing Carson v. State, 65 S.W.3d 774, 781- 82 (Tex. App.-Fort Worth 2001, no pet.) (op. on reh'g)). Because an expunction proceeding is civil rather than criminal in nature, the burden of proving that the statute has been satisfied is on the petitioner rather than the State. Id.; Benner v. State, No. 2-07-271-CV, 2008 WL 1932094, at *1 (Tex. App.-Fort Worth Jan. 1, 2008, pet. denied) (mem. op.).
C. Application of the Law to the Facts
1. D.D.'s Failure to Verify His Petition
Pursuant to Article 55.02, Section 2(b) of the Texas Code of Criminal Procedure, a petition for expunction "must be verified." Tex. Code Crim. Proc. Ann. art. 55.02, § 2(b). An unverified petition "does not conform with the statutory requirements of a petition for expunction." Eaglin v. State, No. 09-05-380-CV, 2006 WL 204999, at *3 (Tex. App.-Beaumont Jan. 26, 2006, no pet.) (mem. op.).
Here, D.D.'s petition for expunction was unverified. Because D.D. did not satisfy the statutory requirements for expunction-one of which requires that the petition be verified-the trial court did not abuse its discretion by denying D.D.'s petition. See Ex parte Davis, No. 11-11-00008-CV, 2012 WL 6754120, at *1 (Tex. App.-Eastland Dec. 21, 2012, no pet.) (mem. op.) (holding that trial court did not err by denying unverified petition for expunction); Ex parte Jones, No. 10-10-00376-CV, 2011 WL 653182, at *1 (Tex. App.-Waco Feb. 23, 2011, no pet.) (mem. op.) (same); see also Ex parte L.S., No. 02-18-00096-CV, 2019 WL 622587, at *2 (Tex. App.-Fort Worth Feb. 14, 2019, no pet.) (mem. op.) (affirming trial court's denial of petitions for expunction where petitions did not comply with Article 55.02's requirements).
2. D.D.'s Failure to Prove His Right to Relief Under Article 55.01
Even if D.D. had verified his petition for expunction, we would still hold that the trial court did not abuse its discretion by denying his petition because D.D. has failed to prove his right to relief under Article 55.01. That article 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:
(1) the person is tried for the offense for which the person was arrested and is: (A) acquitted by the trial court, except as provided by Subsection (c); (B) convicted and subsequently: (i) pardoned for a reason other than that described by Subparagraph (ii); or
(ii) pardoned or otherwise granted relief on the basis of actual innocence with respect to that offense, if the applicable pardon or court order clearly indicates on its face that the pardon or order was granted or rendered on the basis of the person's actual innocence; or
(C) convicted of an offense committed before September 1, 2021, under Section 46.02(a), Penal Code, as that section existed before that date; or
(2) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision under Chapter 42A for the offense ....Tex. Code Crim. Proc. Ann. art. 55.01(a)(1), (2) (indentation altered).
Here, D.D. did not present any evidence at the hearing on his petition for expunction. And D.D.'s petition-even had it been verified-is not evidence of his right to relief. See Ex parte K.R.K., 446 S.W.3d 540, 544 (Tex. App.-San Antonio 2014, no pet.) ("We remain mindful that allegations in a petition seeking expunction are not evidence."); State v. Herron, 53 S.W.3d 843, 847 (Tex. App.-Fort Worth 2001, no pet.) ("In a civil case, a general denial puts a plaintiff on proof of every fact essential to his case. This is true even in expunction cases. A verified pleading is generally not evidence." (citations omitted)).
In his briefing, D.D. argues that the trial court did not allow him to present "facts" at the expunction hearing. Ostensibly, D.D. is referring to an exchange during the hearing where the trial court asked him if he had any "legal argument" as to why he was entitled to an expunction. After D.D. began talking about what the trial court considered to be "facts," the trial court told him, "You're talking about facts. I am talking about legal reasons. I don't want to hear your facts. That has no place in this hearing." Having reviewed the entire transcript of the hearing on D.D.'s petition for expunction, we disagree with D.D.'s suggestion that the complained-of exchange somehow precluded him from offering evidence at the hearing. In fact, at the beginning of the hearing, the trial court told D.D., "[I]f you have anything that you wish to offer to show that you have some legal basis for an expunction in your case now is your opportunity to do so." Despite that invitation, D.D. did not offer any evidence at the hearing.
Thus, because D.D. has presented us with no evidence proving that he has a right to relief under any of the above-quoted sections of Article 55.01, we cannot say that the trial court abused its discretion by denying his petition for expunction. See Ex parte J.D.F., No. 07-17-00202-CV, 2019 WL 1941341, at *2 (Tex. App.-Amarillo May 1, 2019, no pet.) (mem. op.) ("Without evidence to prove J.D.F.'s entitlement to expunction under [A]rticle 55.01(a)(2), the trial court did not abuse its discretion by denying J.D.F.'s petition."); Ex parte Burton, No. 04-17-00440-CV, 2018 WL 6624902, at *4 (Tex. App.-San Antonio Dec. 19, 2018, no pet.) (mem. op.) ("Because the record does not support Burton's assertion that he was entitled to expunction on the remaining charges in the petition, we affirm the trial court's order in all respects.");
Moreover, none of D.D.'s briefs contain any citation to the appellate record.
Tex. Dep't of Pub. Safety v. Borhani, No. 03-08-00142-CV, 2008 WL 4482676, at *3 (Tex. App.-Austin Oct. 3, 2008, no pet.) (mem. op.) ("Borhani was required to prove that he satisfied the conditions in [A]rticle 55.01(a)(2). However, the record does not reflect that Borhani presented any evidence to prove satisfaction of these requirements. Borhani has therefore failed to establish his entitlement to expunction." (citation omitted)). We overrule D.D.'s sole issue.
IV. Conclusion
Having overruled what we construe as D.D.'s sole issue, we affirm the trial court's order denying D.D.'s petition for expunction.
While this appeal was pending, and after D.D. had filed his three briefs, D.D. filed the following motions in our court: (1) "Motion for Permission to file Late or Out-Time Motion for Leave to file Motion to Set Aside and Vacate 'Order' Writ of Abuse"; (2) "Motion for Permission to file Late or Out of Time Motion for Leave to file Motion for Permission to Re-Open Closed Courts During Rebellion or Invasion . . . and Request to Re-Open Court"; (3) "Motion to Request Permission to file Out-Time or Late Motion to Supplement Record"; (4) "Motion to Request to Set Aside Judgment F-2003-0427-C because I was not found guilty for Anal and Vaginal pentration and request for partial expunction of judgment Anal pentration and Vaginal pentration records"; and (5) "Motion to Request to Set Aside Indictment F-2003-0427-C . . . and Request for partial expunction of 'Anal' and 'Vaginal' Records" (collectively, the Motions). Having considered the Motions, we deny them.