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 2014-04

William Walter Jobe v. State ( 2014 )


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  •                                        In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-13-00364-CV
________________
WILLIAM WALTER JOBE, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 411th District Court
San Jacinto County, Texas
Trial Cause No. CV 13681
__________________________________________________________________
MEMORANDUM OPINION
Appellant William Walter Jobe challenges the trial court’s order denying his
pro se request for expunction of a 1988 arrest for driving while intoxicated. We
affirm the trial court’s order denying Jobe’s request for expunction.
In his petition for expunction, Jobe asserted that on February 27, 1991, the
trial court acquitted him of a 1988 charge of driving while intoxicated. Jobe’s
appellate brief seems to indicate that he pleaded guilty to the DWI charge, and the
trial court accepted his plea and placed him on probation for one year. According
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to Jobe, on February 27, 1991, the judge issued an order administratively
discharging him. Jobe asserts that the 1991 administrative discharge order operated
as an acquittal. Jobe did not attach any exhibits to his petition for expunction.1
The Texas Code of Criminal Procedure provides that a person who has been
arrested for a felony or misdemeanor is entitled to have all records and files
relating to the arrest expunged if the person is tried for the offense and is either
acquitted by the trial court or convicted and subsequently pardoned or otherwise
granted relief on the basis of actual innocence. Tex. Code Crim. Proc. Ann. art.
55.01(a)(1) (West Supp. 2013). A statutory expunction is a civil proceeding, and
the petitioner bears the burden of proving that he has complied with the statutory
requirements. Collin Cnty. Criminal Dist. Attorney’s Office v. Dobson,
    167 S.W.3d 625
    , 626 (Tex. App.—Dallas 2005, no pet.); Houston Police Dep’t v. Berkowitz,
    95 S.W.3d 457
    , 460 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). We review
the trial court’s ruling on a petition for expunction under an abuse of discretion
1
The State attached several documents pertaining to the 1988 charge to its
appellate brief. However, because these documents do not appear in the appellate
record, we may not consider them. See Tex. R. App. P. 34.1; Nguyen v. Intertex,
Inc.,
    93 S.W.3d 288
    , 293 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (“The
attachment of documents as exhibits or appendices to briefs is not formal inclusion
in the record on appeal and, therefore, the documents cannot be considered.”); Till
v. Thomas,
    10 S.W.3d 730
    , 733 (Tex. App.—Houston [1st Dist.] 1999, no pet.)
(“We cannot consider documents attached to an appellate brief that do not appear
in the record.”).
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standard. Tex. Dep’t of Pub. Safety v. J.H.J.,
    274 S.W.3d 803
    , 806 (Tex. App.—
Houston [14th Dist.] 2008, no pet.); Heine v. Tex. Dep’t of Pub. Safety,
    92 S.W.3d 642
    , 646 (Tex. App.—Austin 2002, pet. denied). A trial court abuses its discretion
if it acts in an arbitrary or unreasonable manner without reference to any guiding
rules or principles. Cire v. Cummings,
    134 S.W.3d 835
    , 838-39 (Tex. 2004).
A trial court may rule upon an applicant’s right to expunction without
holding a hearing if all of the facts necessary to determine the issue are before the
court. Ex parte Current,
    877 S.W.2d 833
    , 839 (Tex. App.—Waco 1994, no writ).
Allegations in a petition seeking expunction are not evidence. Ex parte Guajardo,
    70 S.W.3d 202
    , 206 (Tex. App.—San Antonio 2001, no pet.). Jobe failed to
provide any evidence to the trial court concerning his argument that the 1991
administrative discharge order operated as an acquittal, and Jobe’s discussion in
his brief to this Court indicates that he pleaded guilty to the 1988 DWI offense and
received probation. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2) (West Supp.
2013) (An applicant is entitled to expunction if he has been released and the charge
did not result in a final conviction and no community supervision was ordered.).
The trial court did not abuse its discretion by denying Jobe’s petition for
expunction without conducting a hearing. We overrule Jobe’s issues and affirm the
trial court’s order denying Jobe’s petition for expunction.
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AFFIRMED.
________________________________
STEVE McKEITHEN
Chief Justice
Submitted on April 14, 2014
Opinion Delivered April 24, 2014
Before McKeithen, C.J., Kreger and Johnson, JJ.
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