Opinion
No. 05-08-00598-CV
Opinion Filed June 25, 2009.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. X07-1281-P.
Before Justices MOSELEY, O'NEILL, and MURPHY.
MEMORANDUM OPINION
This case involves a petition for the expunction of records relating to the 1989 arrest and subsequent conviction of appellant Van Lee Brewer. In three issues, he argues (1) the evidence is factually insufficient to support the trial court's denial of expunction under article 55.01 of the code of criminal procedure; (2) the evidence is factually insufficient to support the trial court's denial of expunction of DNA records under section 411.151 of the government code; and (3) the trial court abused its discretion by denying his motions to compel discovery and appoint an expert witness. We affirm.
Background
On April 29, 1989, appellant was arrested for the sexual assault of Joycelyn Retledge. The grand jury indicted appellant in May 1989 after hearing the victim's testimony. Both the grand jury transcript and the indictment incorrectly spelled the victim's last name as "Rutledge" rather than "Retledge." To correct the error, the State dismissed the original indictment and reindicted appellant with the correct spelling of the victim's last name. Appellant was subsequently convicted for sexual assault and sentenced to fifty years' imprisonment.
In 2001, appellant successfully petitioned the trial court for forensic DNA testing of certain biological evidence seized in connection with the 1989 arrest and conviction. Laboratory reports generated as a result of the petition also had various spellings of the victim's last name including "Rutledge," "Retledge," and "Ritledge." Despite these typographical errors, the results of the DNA tests confirmed appellant's guilt.
In November 2007, appellant filed a petition for expunction of DNA records relating to his 1989 arrest and a supplemental petition for expunction of the criminal records from the original indicment. In his petition, appellant asserted he was entitled to expunction of the first indictment because it was based on false information, specifically, perjured testimony by the victim regarding her true identity. The State, however, argued during the hearing that the reason for the reindictment was to correct the typographical error in the spelling of the victim's last name. It also introduced into evidence its "reindictment request," which indicated the reason for the new indictment was to "change typographical errors in present indictment." The State recognized the misspelling of the victim's last name in numerous places throughout the record; however, it denied appellant's accusations that the real reason for the reindictment was because the victim lied about her identity to the grand jury.
During the course of the proceedings, appellant requested discovery consisting of any hearing transcripts in the State's possession because he claimed the documents would support his perjury argument. The State originally claimed it had no documents in its possession, and the court denied the discovery request. The State later found the grand jury testimony and turned it over to the court and appellant. The court then reopened the expunction hearing to review the evidence. After reviewing the testimony, the court was convinced that Joycelyn "Rutledge" and Joycelyn "Retledge" were in fact the same person. Thus, the court denied appellant's motions for expunction. This appeal followed.
It was undisputed that at one time, a transcript of the victim's grand jury testimony existed because it had been a part of a 1996 federal proceeding involving the same offense.
Standard of Review and Expunction Law
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. 2004, no pet.); see also Tex. Dep't of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex.App. 2008, no pet.). We review a trial court's factual findings for sufficiency of the evidence using the same standards that are applied in reviewing a jury's answer. J.H.J., 274 S.W.3d at 806. Where, as here, the trial court makes no separate findings of fact, we will draw every reasonable inference supported by the record in favor of the trial court's judgment. Id. Thus, we will review all the evidence in the record and determine whether the trial court's determinations are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. State Farm Lloyds v. Hamilton, 265 S.W.3d 725, 729 (Tex.App. 2008, pet. dism'd).
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. Tex. Code Crim. Proc. Ann. art. 55.01(a) (Vernon 2006). A statutory expunction proceeding is civil rather than criminal in nature, and the burden of proving compliance with the statutory conditions rests with the petitioner. Collin County Criminal Dist. Attorney's Office v. Dobson, 167 S.W.3d 625, 627 (Tex.App. 2005, no pet). Article 55.01 requires strict compliance with conditions imposed by the statute; therefore, courts have no equitable power to expunge criminal records. Id.
Article 55.01, in pertinent part, requires that, to be entitled to expunction of records and files relating to an arrest, a person must show the following:
(a) A person who has been placed under custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the offense expunged if:
. . .
(2) each of the following conditions exist:
. . .
(ii) the court finds that the indictment or information was dismissed or quashed 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;
. . .
Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A)(ii) (emphasis added).
Discussion
In his first issue, appellant claims he was entitled to expunction because the original indictment was dismissed because of false information by the victim during the grand jury hearing, not because of a typographical error. A finding that the presentment of the indictment was made because of false information requires proof that the grand jury based its decision on erroneous facts. Kendall v. State, 997 S.W.2d 630, 632 (Tex.App. 1998, pet. denied). Appellant must affirmatively show that false information caused the presentment of the indictment and that, in turn, caused the dismissal. Id.
The record shows the State dismissed the original May 1989 indictment and requested reindictment in order to correct a typographical error. After reviewing the evidence, the trial court determined the victim under the original indictment and reindictment were in fact the same person. In reaching this decision, the trial court seemed particularly swayed by the fact that "Rutledge" and "Retledge" had the same birthday. Likewise, the victim's name was spelled correctly on the grand jury witness list generated in connection with the victim's testimony before the grand jury. While the record shows the victim was asked to identify herself at the grand jury hearing, nothing in the record shows that she was ever asked to spell her name. Thus, the fact that her name was misspelled in other court documents does not support appellant's perjury claim.
Appellant also argues the trial court relied solely on the State's explanation in rendering its decision. We cannot agree with this assessment. While the State's explanation for dismissal of the indictment is indeed relevant, the trial court must consider the entire record in determining if the indictment and dismissal are based upon false information. Thomas v. State, 916 S.W.2d 540, 545 (Tex.App.1995, no pet.). Here, the trial court clearly reviewed the entire record before reaching its decision, as evidenced by the reopening of the expunction hearing to review the victim's grand jury testimony to determine if she had in fact committed perjury. Thus, we conclude the evidence is factually sufficient to support the trial court's denial of appellant's expunction motion because he failed to satisfy article 55.01. As such, the trial court did not abuse its discretion. Appellant's first issue is overruled.
In his second issue, he asserts he is likewise entitled to expunction of DNA records under section 411.151 of the government code. Section 411.151 states a person may petition for the expunction of DNA records under the procedures established under article 55.02 of the code of criminal procedure if the person is entitled to the expunction of records under article 55.01. Tex. Gov't Code Ann. 411.151 (Vernon Supp. 2008). Because we have previously concluded appellant is not eligible for expunction under article 55.01, he is not entitled to expunction under section 411.151. Therefore, it is unnecessary to address his factual sufficiency challenge. Appellant's second issue is overruled.
In his final issue, appellant asserts the trial court abused its discretion in denying his motion to compel discovery and motion to appoint an expert. See Carbonara v. Tex. Stadium Corp., 244 S.W.3d 651, 658 (Tex.App. 2008, no pet.) (applying abuse of discretion standard to review of motions to compel discovery). We first note that although appellant has included the denial of appointment of an expert in his issue, he has failed to provide any argument, citations to the record, or legal analysis supporting his complaint. As such, appellant has waived his argument regarding the appointment of an expert. See In re M.A.S., 233 S.W.3d 915, 924 (Tex.App. 2007, pet. denied) (failure to include substantive analysis waives issue on appeal); see also Tex. R. App. P. 38.1(h).
We likewise conclude his motion to compel discovery complaint lacks merit. Texas Rule of Appellate Procedure 44.1 provides that no judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of (1) probably caused the rendition of an improper judgment or (2) probably prevented the appellant from presenting the case to the court of appeals. Tex. R. App. P. 44.1(a); see also Crawford v. Deets, 828 S.W.2d 795, 798 (Tex.App.-Fort Worth 1992, writ denied) (concluding trial court's denial of discovery request for certain financial documents did not cause rendition of improper judgment).
Here, appellant has failed to show how he was harmed or how the error caused the rendition of an improper judgment. Assuming the trial court erred in denying his original request for the grand jury testimony, the trial court later reopened the hearing when the State found the transcript. Thus, appellant and the court had access to the information, and the trial court reviewed it before denying his request for expunction. As such, there is nothing in the record before us requiring reversal under rule 44.1(a). Appellant's third issue is overruled.
Conclusion
Having overruled appellant's issues, we affirm the trial court's order denying expunction.