Opinion
No. 05-08-01513-CV
Opinion Filed November 24, 2009.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-02156-2008.
Before Justices MORRIS, BRIDGES, and MURPHY.
MEMORANDUM OPINION
This is an appeal from the trial court's order expunging Roy William Harpole's record for the February 2007 arrest for sexual assault of a child. Harpole filed his petition for expunction following a jury trial that resulted in his acquittal. The State filed an answer generally denying Harpole's allegations and contending Harpole was not entitled to an expunction because he remained subject to prosecution for at least one other offense arising from the same criminal episode-sexual assault, "over a limited period of time," of the same victim. In two issues, the State claims the evidence is legally and factually insufficient because its general denial placed in dispute the allegations in Harpole's petition and required Harpole to prove, with evidence other than the statements in his verified petition, his entitlement to the expunction. We reverse the expunction order and render judgment denying Harpole's petition. The right to expunction is neither a common law nor a constitutional right; rather, it is a statutory privilege authorized under article 55.01 of the Texas Code of Criminal Procedure. See T.C.R. v. Bell County Dist. Attorney's Office, No. 03-08-00627-CV, 2009 WL 3319922, at *1 (Tex. App.-Austin 2009, no pet.). Under article 55.01, a court may not order the expunction of records relating to an arrest for an offense for which a person is subsequently acquitted if the offense arose out of a criminal episode, as defined by Texas Penal Code section 3.01, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode. Tex. Code Crim. Proc. Ann. art. 55.01(c) (Vernon Supp. 2009). Section 3.01 of the penal code defines "criminal episode" as the commission of two or more offenses committed repeatedly, pursuant to the same transaction, or pursuant to two or more transactions connected or constituting a common scheme or plan. Tex. Penal Code Ann. § 3.01 (Vernon 2003).
Although article 55.01 is included in the code of criminal procedure, an expunction proceeding is civil in nature with the petitioner bearing the burden of proof. T.C.R., 2009 WL 3319922, at *1. A trial court may rule on an expunction petition without conducting a formal hearing or considering live testimony if it has before it all the necessary information to resolve the issues raised by the petition. Ex parte Wilson, 224 S.W.3d 860, 863 (Tex. App.-Texarkana 2007, no pet.). Such information may be obtained by the petition itself, other pleadings, summary judgment proof, or judicial notice of court records. Id. When a party files a general denial, however, the petitioner is put to proof on all issues, and he cannot rest on the allegations in his pleadings. See Ex parte Jackson, 132 S.W.3d 713, 716 (Tex. App.-Dallas 2004, no pet.); Tex. Dep't Pub. Safety v. Mendoza, 952 S.W.2d 560, 562-63 (Tex. App.-San Antonio 1997, no writ). Instead, the petitioner must testify or produce other evidence to prove the facts alleged in the petition. See Jackson, 132 S.W.3d at 716; Mendoza, 952 S.W.2d at 563-64. We review a trial court's ruling on an expunction petition for an abuse of discretion. Jackson, 132 S.W.3d at 715. Under this standard, challenges to the legal and factual sufficiency of the evidence are not independent grounds of error, but are factors in determining whether the trial court abused its discretion. Burns v. Miller, Hiersche, Martens Hayward, P.C., 948 S.W.2d 317, 324 (Tex. App.-Dallas 1997, writ denied). A trial court abuses its discretion if no evidence of a substantive and probative character exists supporting its decision. Id.
Because the State filed a general denial, Harpole was required to testify or present other evidence to prove his entitlement to the expunction. Both Harpole's petition and the trial court's docket sheet reflect a hearing on the petition was set for October 2, 2008. The docket sheet indicates the petition was granted on that date, and the order recites the court "hear[d] evidence on the cause." Although the order recites evidence was heard, we are not bound by the judgment's recitals because this is a direct appeal. See Oropeza v. Valdez, 147 S.W.3d 480, 482 (Tex. App.-San Antonio 2004, no pet.) (op. on reh'g) (direct attacks in court of appeals includes ordinary appeals); Holloway v. Starnes, 840 S.W.2d 14, 18 (Tex. App.-Dallas 1992, writ denied) (in direct attack to trial court judgment no presumptions are "indulged" in support of judgment's validity). The State affirmatively states in its brief that no hearing was held, and we accept this as true unless contradicted by Harpole. See Tex. R. App. P. 38.1(g). Harpole did not file a brief in response and did not otherwise contradict the State's statement. Additionally, no reporter's record has been filed despite the State's request, and nothing in the clerk's record shows Harpole satisfied his burden of proving not only the acquittal, but also the resolution of the remaining offense in compliance with article 55.01. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(1)(A), (c). Because no hearing was held and no other evidence exists in the record showing Harpole's entitlement to an expunction of his arrest record, we agree the evidence is legally insufficient to support the court's order. See Tex. Dep't of Pub. Safety v. Woods, 68 S.W.3d 179, 181 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (evidence legally insufficient "[w]hen the record discloses a complete absence of evidence of a vital fact"). Accordingly, the trial court abused its discretion in granting the petition. See Burns, 948 S.W.2d at 324; see also State v. Echeverry, 267 S.W.3d 423, 427 (Tex. App.-Corpus Christi 2008, pet. denied) (concluding trial court abused discretion in ordering expunction where appellant failed to present evidence showing not subject to further prosecution). We resolve the State's first issue in its favor and, as a result, do not reach the State's factual sufficiency challenge. See Tex. R. App. P. 47.1.
We reverse the trial court's order of expunction and render judgment denying Harpole's petition.