Opinion
No. 08-16-00224-CV
09-28-2018
In the MATTER OF the Expunction of V.H.B.
ATTORNEY FOR APPELLEE: Hon. Jo Anne Bernal, County Attorney, 500 E. San Antonio, Room 503, El Paso, TX 79901. ATTORNEY FOR APPELLANT: Hon. Robin Norris, 2408 Fir Street, El Paso, TX 79925.
ATTORNEY FOR APPELLEE: Hon. Jo Anne Bernal, County Attorney, 500 E. San Antonio, Room 503, El Paso, TX 79901.
ATTORNEY FOR APPELLANT: Hon. Robin Norris, 2408 Fir Street, El Paso, TX 79925.
Before McClure, C.J., Rodriguez, and Palafox, JJ.
OPINION
ANN CRAWFORD McCLURE, Chief Justice
V.H.B. appeals the trial court’s denial of his petition for expunction. The expunction evidence showed that V.H.B. was 17 years old or older during a portion of the period alleged in the indictment, and the dismissal of V.H.B.’s indictment based on a detective’s mistake regarding V.H.B.’s age did not constitute evidence of a mistake indicating absence of probable cause at the time of dismissal to believe V.H.B. was the person who committed the offense. Because the trial court’s denial of his petition for expunction is supported by sufficient evidence, we affirm the trial court’s judgment.
BACKGROUND
V.H.B. was charged by indictment for the offense of continuous sexual assault of a child. TEX.PEN.CODE ANN. § 21.02 (West Supp. 2017). At the time of indictment, Section 21.02(b) provided that a person commits the offense of continuous sexual assault of a child if: (1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and (2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age. TEX.PEN.CODE ANN. § 21.02 (West Supp. 2017). The indictment in this case alleged that V.H.B. committed the offense of continuous sexual abuse of a child by four manner and means occurring during a period that was more than 30 days in duration, specifically on or about the dates of February 1, 2008, and December 30, 2010, when V.H.B. was 17 years of age or older. After the jury was empaneled, the State’s prosecutor moved to dismiss the indictment against V.H.B. for the reason that the "Detective made an error on defendant’s birthday." The trial court ordered the case dismissed for this reason. The State sought to have V.H.B. adjudicated a delinquent child in a juvenile court or, alternatively, certified for trial as an adult and to have his case transferred to a criminal court. Finding that the State’s petition to waive juvenile court jurisdiction and to transfer the case to criminal court was filed when V.H.B. was 21 years old, the trial judge presiding over the juvenile case dismissed the case for want of jurisdiction. See TEX.FAM.CODE ANN. §§ 51.0412, 54.02(j)(4)(A), (B) (West 2014).
See Acts 2007, 80th Leg., R.S., ch. 593, § 1.17, 2007 Tex.Gen.Laws 1127, amended by Acts 2017, 85th Leg., R.S., ch. 1038 (H.B. 1808), § 2, 2017 Tex.Gen.Laws 4072 (adding to 21.02(b)(2), "regardless of whether the actor knows the age of the victim at the time of the offense.").
We have recognized that the individual acts of sexual abuse enumerated in Texas Penal Code Section 21.02 for the offense of Continuous Sexual Assault of a Young Child or Children are simply the "manner and means" by which the series is committed. See Tex.Pen.Code Ann. § 21.02 ; Holton v. State , 487 S.W.3d 600, 607 (Tex.App.--El Paso 2015, no pet.).
Thereafter, V.H.B. filed in the trial court a petition for expunction. At the expunction hearing, V.H.B. testified that he was born on January 29, 1992. Consequently, V.H.B. was only 16 years old on February 1, 2008, the first date of the period alleged in the indictment. After considering the evidence and testimony and hearing arguments of counsel, the trial court denied the petition for expunction.
After first hearing and denying V.H.B.’s petition, the trial court granted his motion for new trial. It is the second expunction hearing from which V.H.B. now appeals the trial court’s denial of his petition for expunction.
At V.H.B.’s request, the trial court issued findings of fact and conclusions of law. Although we need not recite all of the trial court’s findings of fact, we note that regarding V.H.B.’s age, the trial court found that V.H.B. was born on January 29, 1992, was sixteen years of age, a juvenile, during a portion of the alleged time of commission of the predicate acts alleged in the indictment (February 1, 2008 to December 30, 2010), and was 17 years old on January 29, 2009, for purposes of prosecution as an adult under Texas law. The trial court also found, "[t]he indictment was not void" and "was not ‘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 dismissal to believe the person committed the offense or because the indictment was void[,]’ " that V.H.B.’s "age or error thereof has no bearing on whether there was probable cause to believe that an offense or offenses were committed during the said duration of time as alleged in the indictment, and that the error regarding V.H.B.’s age "is no evidence of mistake, false information, or other similar reason indicating absence of probable cause to believe that [V.H.B.] committed the offense." Regarding V.H.B.’s burden of proof, the trial court found that V.H.B. had failed to satisfy his burdens of proving that "he was a juvenile during the entire duration of time of commission of the alleged criminal acts set out in the indictment thereby divesting the District Court of jurisdiction (without proper adult certification) and rendering the indictment void," and "was unlawfully arrested or indicted for the said offense(s) and hence entitled to expunction of the said criminal records." Also finding that no applicable statute of limitations exists for the indicted or predicate acts alleged, and that V.H.B. remains subject to prosecution as an adult, the trial court then concluded as a matter of law that V.H.B. had failed to meet his burden of proving he was "entitled to expunction of criminal records under Tex. Code. Crim. Proc. Ann. Art. 55.01(a)(2) (2016)."
In finding 2(c), the trial court found the indictment had alleged the predicate acts occurred on or about February 1, 2008 through December 30, 2010.
DISCUSSION
Preservation of Error
The State raises an issue of preservation of error. A defendant who does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, waives and forfeits the right to object to the defect, error, or irregularity, and he may not raise the objection on appeal or in any other postconviction proceeding. TEX.CODE CRIM.PROC.ANN. § 1.14(b)(West 2005).
Noting that a defendant must make a pretrial objection to a substantive defect in the information or indictment or forfeit the right to complain about it on appeal, the State argues that V.H.B.’s failure to timely object to the indictment before his criminal trial commenced constitutes his concession on appeal that there was no mistake, false information, or other similar reason indicating absence of probable cause to believe he committed the offense. In support of this contention, the State correctly notes that in his brief on the merits, V.H.B. expressly agrees with the trial court’s finding of fact that V.H.B. raised "[n]o objection to a defect, error, or irregularity of form or substance in the charging instrument ... prior to trial commencing." However, we do not view V.H.B.’s complaint on appeal as challenging a defect in the indictment, nor do the provisions of the expunction statute discussed below require proof of a defect of form or substance. Rather, V.H.B. is challenging the trial court’s ruling regarding the existence of probable cause for the grand jury to indict him, and asserts that the trial court erred because the grand jury’s decision to indict him was based on a mistake, false information or other similar reason indicating an absence of probable cause to believe he committed the offense. We therefore proceed to address the issue V.H.B. has raised.
Expunction Statute
The right to an expunction is a statutory privilege. In Matter of Expunction of A.M. , 511 S.W.3d 591, 594 (Tex.App.--El Paso 2015, no pet.), citing In the Matter of the Expunction of A.G., 388 S.W.3d 759, 761 (Tex.App.--El Paso 2012, no pet.). When a party holding criminal records opposes a petition for expunction, the petitioner must meet his burden of proof by submitting evidence on each element of his claim. In Matter of Expunction of A.M. , 511 S.W.3d at 594. All provisions in a statutory cause of action are mandatory and exclusive and all conditions must be met before a person is entitled to expunction. In re A.G., 388 S.W.3d at 761. A statutory expunction proceeding is civil rather than criminal in nature, and the petitioner bears the burden of proving compliance with the statute. Id. As a general rule, the trial court has no discretion to deny the petition if the petitioner meets his burden under the statute. See id. V.H.B. specifically sought expunction under Article 55.01(a)(2)(A)(ii). See TEX.CODE CRIM.PROC.ANN. art. 55.01(a)(2)(A)(ii) (West 2018). Article 55.01(a)(2)(A)(ii)(c) provides in part that a person who has been placed under a custodial or non-custodial arrest for commission of a felony is entitled to have all records and files relating to the arrest expunged if the indictment was dismissed and the trial court finds 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. TEX.CODE CRIM.PROC.ANN. art. 55.01(a)(2)(A)(ii)(c).
To be entitled to expunction under the pleadings and facts of this case, V.H.B was required to establish that: (1) he had been released and the charge, if any, had not resulted in a final conviction and was no longer pending; (2) there was no court-ordered community supervision under Article 42.12 for the offense; (3) an indictment or information charging him with the commission of any felony offense arising out the same transaction for which he was arrested, if presented, was dismissed or quashed; and (4) the trial court found that the indictment or information was dismissed or quashed because of mistake, false information, or some other reason indicating absence of probable cause at the time of the dismissal to believe he committed the offense. [Emphasis added]. See TEX.CODE CRIM.PROC.ANN. art. 55.01(a)(2)(A)(ii). In his sole issue, V.H.B. challenges the trial court’s findings related to the fourth element and its denial of the petition for expunction.
An indictment is presented when nine members of the grand jury concur in a "true bill" and deliver the indictment to the judge or clerk. See Tex.Code Crim.Proc.Ann. arts. 20.19, 20.20, 20.21, and 20.22 (West 2015) ; see also In Matter of Expunction of A.M. , 511 S.W.3d at 594 n.1.
Standard of Review
We construe V.H.G.’s argument as challenging the legal sufficiency of the evidence supporting the order denying the expunction. When a party attacks the legal sufficiency of an adverse finding on an issue on which it bears the burden of proof, it must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chemical Co. v. Francis , 46 S.W.3d 237, 241 (Tex. 2001) ; Sterner v. Marathon Oil Company , 767 S.W.2d 686, 690 (Tex. 1989) ; Matter of Expunction of K.G. , 504 S.W.3d 911, 913-14 (Tex.App.--El Paso 2016, no pet.). To overcome an adverse fact finding as a matter of law, a party must surmount two hurdles. Sterner , 767 S.W.2d at 690 ; Matter of Expunction of K.G. , 504 S.W.3d at 914. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Sterner , 767 S.W.2d at 690 ; Matter of Expunction of K.G. , 504 S.W.3d at 914. Second, in the absence of evidence to support the finding, then, the entire record must be examined to see if the contrary proposition is established as a matter of law. Sterner , 767 S.W.2d at 690 ; Matter of Expunction of K.G. , 504 S.W.3d at 914. Only if the contrary position is conclusively established will the issue be sustained. Matter of Expunction of K.G. , 504 S.W.3d at 914.
Analysis
The issue we address is whether V.H.B. presented legally sufficient evidence to prove that the indictment was dismissed because presentment of the indictment had been made because of mistake, false information, or some other reason indicating absence of probable cause at the time of the dismissal to believe V.H.B. could be found guilty of the offense. See TEX.CODE CRIM.PROC.ANN. art. 55.01(a)(2)(A)(ii). To prove this statutory element, V.H.B. relied on his own testimony as well as the State’s express reason for seeking dismissal of the indictment as set forth in its motion to dismiss the indictment.
To be entitled to an expunction under Article 55.01(a)(2)(A)(ii), the petitioner is required to prove that the indictment was dismissed because a mistake, false information, or other similar reason caused the presentment of the indictment. See TEX.CODE CRIM.PROC.ANN. art. 55.01(a)(2)(A)(ii). 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., Jr. v. Texas Dep't of Pub. Safety , 03-10-00196-CV, 2011 WL 182889, at *3 (Tex.App.--Austin Jan. 20, 2011, no pet.). The statute requires both that mistake, false information, or similar reason cause the presentment and that the fact of wrongful or mistaken presentment cause the dismissal. State v. Sink , 685 S.W.2d 403, 405 (Tex.App.--Dallas 1985, no writ) ; see also In Matter of Expunction of A.M. , 511 S.W.3d at 596 ; Kendall v. State, 997 S.W.2d 630, 632 (Tex.App.--Dallas 1998, pet. denied) (finding that presentment had been made because of false information or mistake requires proof that grand jury based its decision to indict on erroneous facts.). Restated, it must be shown that but for the reason for dismissal, the indictment would not have been presented. Sink , 685 S.W.2d at 405.
The dismissal of an indictment due to insufficient evidence to obtain a conviction cannot be the basis of an expunction because it is not evidence that 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 that the defendant committed the offense. See In re C.V., 214 S.W.3d 43, 45 (Tex.App.--El Paso 2006, no pet.) ; Barker v. State, 84 S.W.3d 409, 413 (Tex.App.--Fort Worth 2002, no pet.). When examining the reason for the dismissal, the expunction court may look beyond the reasons given by the prosecutor. See Harris County District Attorney’s Office v. Hopson, 880 S.W.2d 1, 4 (Tex.App.--Houston [14th Dist.] 1994, no pet.).
V.H.B. contends the trial court abused its discretion when it denied his petition for expunction because he was not 17 years of age or older "during all of the times alleged in the indictment." He asserts that the State dismissed the indictment because the prosecutor realized that the presentment to the grand jury had been made on the basis of a mistake or false information about V.H.B.’s age, and he could not be guilty of the offense alleged in the indictment. V.H.B. argues that the grand jury would not have indicted him had it known his true age, since it would have lacked probable cause to believe that he was at or above the age of 17 during the alleged period as required by Section 21.02 of the Penal Code. TEX.PEN.CODE ANN. § 21.02. We disagree.
It is undisputed that the State’s motion to dismiss is founded on the detective’s mistake regarding V.H.B.’s birthdate. Unlike some, that mistake does not call into question whether V.H.B. was the person who committed the offense. See In re C.V., 214 S.W.3d at 45. Nonetheless, the grand jurors did not have the benefit of V.H.B.’s actual age when they made their decision to indict him. We are mindful, however, of no less than two matters. We first observe that V.H.B. was age 17 and older during almost two years portion of the approximately three-year period alleged in the indictment and as represented to the grand jury. Second, we acknowledge that while the State must provide the defendant with notice of the time period in which the continuous sexual abuse is alleged to have occurred, it is not necessary for the State to allege the exact dates on which the predicate acts of sexual abuse occurred, as those dates are not essential to the State’s case and are considered to be evidentiary facts only. See Holton v. State , 487 S.W.3d 600, 609-10 (Tex.App.--El Paso 2015, no pet.). That the prosecutor dismisses a case simply because she believes she has insufficient evidence to convict is not mistake or false information. See Texas Dept. of Pub. Safety v. Collmorgen , 14-06-00478-CV, 2007 WL 853812, at *2 (Tex.App.--Houston [14th Dist.] Mar. 22, 2007, no pet.) (mem. op., not designated for publication), citing Thomas v. State, 578 S.W.2d 691, 699 (Tex. Crim. App. 1979). Consequently, in this case, the significance of the detective’s mistake of age does not call into question the existence of probable cause for the grand jury to indict but instead relates to the State’s ability to meet its evidentiary burden of proving, at a minimum, that V.H.B. was 17 years or older at the time he committed two or more of the alleged predicate acts during a period of 30 or more days in duration. TEX.PEN.CODE ANN. § 21.02.
Insufficient evidence to convict does not equate to a lack of probable cause to indict. See Texas Dept. of Pub. Safety v. Williams , 76 S.W.3d 647, 651 (Tex.App.--Corpus Christi 2002, no pet.), citing Ex parte Thomas, 956 S.W.2d 782, 786 (Tex.App.--Waco 1997, no writ). Insufficient evidence to convict beyond a reasonable doubt neither invalidates an indictment nor calls for its dismissal. See Harris County Dist. Attorney’s Office v. M.G.G., 866 S.W.2d 796, 799 (Tex.App.--Houston [14th Dist.] 1993, no writ), citing Givens v. State, 438 S.W.2d 810, 810 (Tex. Crim. App. 1969). That the State chose to dismiss the indictment in this case does not change the outcome.
Nothing in the record indicates the trial court found the indictment or information was dismissed or quashed because of mistake, false information, or some other reason indicating absence of probable cause at the time of dismissal to believe V.H.B. was the person who committed the offense. See TEX.CODE CRIM.PROC.ANN. art. 55.01(a)(2)(A)(ii) ; In re I.V. , 415 S.W.3d 926, 930 (Tex.App.--El Paso 2013, no pet.). The record shows that V.H.B. was 17 years of age or older during the period alleged in the indictment, and this evidence supports the trial court’s ruling. For the foregoing reasons, the trial court had sufficient evidence by which it could have determined that the grand jury did not base its decision to indict on a mistake indicating an absence of probable cause at the time of dismissal that V.H.B. was the person who committed the offense. V.H.B.’s sole issue on appeal is overruled.
CONCLUSION
The trial court’s judgment is affirmed.