Saul Gonzales Gomez A/K/A Saul Pena A/K/A Saul Montante v. Beaumont Police Department ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-06-461 CV ____________________

SAUL GONZALES GOMEZ, a/k/a SAUL PENA a/k/a SAUL MONTANTE, Appellant

V.

BEAUMONT POLICE DEPARTMENT, Appellee

---

On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. X-579

---

MEMORANDUM OPINION

Saul Gonzales Gomez, a/k/a Saul Pena a/k/a Saul Montante, appeals the trial court's order denying his petition for expunction. Gomez brings one appellate issue in which he contends the trial court erred in denying his petition without hearing testimony. We agree the court should have considered evidence at the hearing, and because it did not, we reverse and remand. ⁽¹⁾

Saul's petition requested expunction of all records and files arising from his arrest on August 24, 2001, in Jefferson County, Texas. On October 24, 2001, the trial court dismissed cause number 83793 (indecency with a child) and indicated its reason for the dismissal as in the "Interest of Justice." Saul asserted in his petition that article 55 of the Texas Code of Criminal Procedure required the court to grant his expunction request. In his sworn petition, Saul asserted the following reasons to expunge his record:

(1) No indictment or information has been presented against [him] for an offense arising out of the transaction leading to the arrest.

(7) That the statute of limitation . . . for indecency with a child is five (5) years, which is June 19, 2005 in this instance.

(8) There is no evidence known to be available to the State to determine probability of further prosecution arising out of the transaction, which led to arrest. There is no reasonable cause to believe that the State may proceed against [Saul] for the offense.

The Beaumont Police Department ("BPD") objected to Saul's petition and contended that it failed to satisfy the statutory requirements for expunction. Specifically, BPD claimed that the statute of limitations period had not expired and that Saul did not claim the dismissal occurred because of a mistake, false information, or other similar reason indicating absence of probable cause. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A)(i), (ii) (Vernon 2006).

The trial court set a hearing on the matter. At the hearing, Saul asserted that the State of Texas dismissed its case against him because he was the wrong man arrested. According to Saul, the victim and the victim's mother were prepared to testify that he was not the alleged offender. The trial court concluded that Saul's petition failed to allege the statutory grounds for expunction and refused to hear any testimony. Additionally, the trial court ruled that it could not consider expunging a record when the order of dismissal indicated that the case was "dismissed in the 'interest of justice.'" The trial court denied Saul's expunction request.

Subsequently, Saul filed a motion for new trial. In his motion, Saul reiterated that he was not the alleged perpetrator of the offense and attached affidavits from the victim and the victim's mother supporting his claim. The motion for new trial was overruled by operation of law.

In his appeal, Saul contends that the trial court erred in refusing to allow him to prove he was entitled to have his record expunged. First, we note that the right to expunction is statutory. Tex. Dep't of Pub. Safety v. Wallace, 63 S.W.3d 805, 806 (Tex. App.-Austin 2001, no pet.) (citing State v. Knight, 813 S.W.2d 210, 212 (Tex. App.-Houston [14th Dist.] 1991, no writ)). Pursuant to article 55.01 of the Texas Code of Criminal Procedure, "[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 the person meets certain statutory requirements. Tex. Code Crim. Proc. Ann. art. 55.01(a) (Vernon 2006). As an expunction proceeding is civil rather than criminal, the petitioner bears the burden of proving compliance with the statute. Tex. Dep't of Pub. Safety v. Katopodis, 886 S.W.2d 455, 457 (Tex. App.-Houston [1st Dist.] 1994, no writ). When a statute creates a cause of action, "all provisions are mandatory and exclusive, and a person is entitled to expunction only when all of the conditions have been met." Wallace, 63 S.W.3d at 806 (citing Harris County Dist. Atty's Office v. Burns, 825 S.W.2d 198, 202 (Tex. App.-Houston [14th Dist.] 1992, writ denied)). To prove a right to an expunction, the petitioner must show the following:

(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:

(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or

(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;

(B) 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 Article 42.12 for any offense other than a Class C misdemeanor; and

(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.

Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A)-(C).

The applicable statute of limitations on the underlying charge has not yet expired. ⁽²⁾ Therefore, under the statute, Saul must show he was charged with the offense because of "mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal," or prove that the indictment or presentment was void. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A)(ii).

We review the granting or denying of an expunction petition under an abuse of discretion standard. See Bargas v. State, 164 S.W.3d 763, 770 (Tex. App.-Corpus Christi 2005, no pet.); Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.-Austin 2002, pet. denied); Ex parte Guajardo, 70 S.W.3d 202, 204 (Tex. App.-San Antonio 2001, no pet.). BPD contends that the trial court did not err when it denied Saul's expunction request or refused to hear testimony from Saul's witnesses. BPD argues that the court cannot look beyond the dismissal order's language, in the "interest of justice," and further argues that Saul's pleadings do not state a statutory ground for expunction.

While Saul's petition does not precisely track the statutory language, it does state among its reasons for expunction that "[t]here is no evidence known to be available" and that there is "no reasonable cause" for which Saul could be prosecuted under the indicted offense. Because no one filed special exceptions, we liberally construe Saul's expunction petition and hold that it is sufficient to include a claim that there was an absence of probable cause to support the State's indictment. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000) (Courts should liberally construe the pleadings in favor of the pleader absent special exceptions.); see also Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A)(ii).

A trial court must not rely solely on the prosecutor's explanation in deciding a petition for expunction. See Thomas v. State, 916 S.W.2d 540, 545 (Tex. App.-Waco 1995, pet. denied). "To hold otherwise would in effect allow the [prosecutor] alone to adjudicate expunction and force upon the petitioner an impossible burden." Id. While the prosecutor's explanation for the dismissal is relevant, "the expunction court may look beyond the reasons stated in the motion to dismiss and consider all admissible evidence to determine the true reason for dismissal." Harris County Dist. Atty's Office v. Hopson, 880 S.W.2d 1, 4 (Tex. App.-Houston [14th Dist.] 1994, no writ) (citing Metzger v. Houston Police Dept., 846 S.W.2d 383, 385 (Tex. App.-Houston [14th Dist.] 1992, writ denied)); see also Guajardo, 70 S.W.3d at 206.

By refusing to hear Saul's evidence, the trial court abused its discretion. Saul has demonstrated harm because his proffered evidence tends to support his claim that the State did not have probable cause to indict him. Accordingly, we sustain Saul's issue on appeal, and reverse and remand this case to allow the trial court to conduct a proper hearing.

REVERSED AND REMANDED.

____________________________

HOLLIS HORTON

Justice

Submitted on March 22, 2007

Opinion Delivered May 10, 2007

Before McKeithen, C.J., Kreger and Horton, JJ.

1. Although Gomez filed a notice of appeal listing the State of Texas as a party, only the Beaumont Police Department filed a brief in response. At the trial level, the Texas Department of Public Safety filed a general denial, and the Jefferson County District Attorney's Office, on behalf of Jefferson County, Texas, filed a response to the petition for expunction. Jefferson County expressly stated that it did not oppose the petition. Neither the Texas Department of Public Safety nor Jefferson County, Texas are parties to this appeal.

2. The applicable statute of limitations for indecency with a child by sexual contact is ten years from the eighteenth birthday of the victim of the offense. See Tex. Code Crim. Proc. Ann. art. 12.01(5)(A) (Vernon Supp. 2006) (We cite to the current version of the statute as it has not changed since the alleged commission of the offense.). When Saul filed his petition, the victim had not yet turned eighteen.