Ex Parte Jerry H. Broseh ( 2014 )

Opinion filed September 4, 2014
In The
Eleventh Court of Appeals
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No. 11-13-00158-CV
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EX PARTE JERRY H. BROSEH
On Appeal from the 161st District Court
Ector County, Texas
Court Cause No. B-134,853
MEMORANDUM OPINION
Jerry H. Broseh appeals the trial court’s denial of his petition for expunction
of the record of his burglary conviction. See TEX. CODE CRIM. PROC. ANN. art.
55.01 (West Supp. 2013). We affirm.
I. Background
In November 1964, Appellant was indicted for the offense of burglary with
intent to commit theft. Appellant pleaded “guilty” to the charged offense.
Appellant was eventually convicted of the offense and sentenced to confinement
for five years. In January 2013, Appellant filed a petition to expunge his burglary
conviction. After hearing evidence on the matter via teleconference, the trial court
denied Appellant’s petition. This appeal followed.
II. Issues Presented
Through two issues on appeal, Appellant argues (1) that the trial court erred
when it denied his petition for expunction and (2) that he suffered harm and a delay
of justice when the State misled the trial court at the hearing on his petition.
III. Standard of Review
The right to expunction is statutory; courts have no equitable power to
expunge records. Tex. Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex.
App.—Houston [14th Dist.] 2008, no pet.). We review a trial court’s ruling on a
petition for expunction for an abuse of discretion. Rodriguez v. State, 224 S.W.3d
783, 784 (Tex. App.—Eastland 2007, no pet.); Ex parte Reed, 343 S.W.3d 306,
308 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
IV. Analysis
Appellant contends in his first issue that the trial court erred when it denied
his petition to expunge his burglary conviction because the indictment by which
the State charged him with that offense was “fundamentally defective on its face.”
Appellant claims that the allegations in the indictment were not sufficient to
adequately describe the stolen property because those allegations contained only
the general phrase “corporeal personal property.”
The Texas Code of Criminal Procedure provides a statutory right to the
expunction of criminal records under certain circumstances. See CRIM. PROC.
art. 55.01. An expunction proceeding is civil rather than criminal in nature, and
the petitioner bears the burden of proving that all statutory requirements have been
satisfied. In re A.G., 388 S.W.3d 759, 761 (Tex. App.—El Paso 2012, no pet.);
Ex parte Green, 373 S.W.3d 111, 113 (Tex. App.—San Antonio 2012, no pet.).
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Even if we were to agree with Appellant’s argument that the indictment in
this case was defective, which we do not, Appellant has failed to prove that the
indictment was dismissed or quashed prior to his conviction. See CRIM. PROC.
art. 55.01(a)(2)(A)(ii) (stating conditions of expunction include “the person has
been released and the charge, if any, has not resulted in a final conviction” and that
“the indictment . . . was dismissed or quashed”); Ex parte Cephus, 410 S.W.3d
416, 420 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (“Even if a void
indictment is shown, the expunction statute still requires that the indictment must
have been dismissed or quashed prior to conviction.”). Appellant, therefore, failed
to meet the requirements of Article 55.01, and the trial court was required to deny
his petition. See J.H.J., 274 S.W.3d at 806. Appellant’s first issue is overruled.
In his second issue, Appellant complains that he suffered harm and a delay
of justice when the State misled the trial court at the hearing on his petition for
expunction. The State’s behavior at the hearing is not relevant to our
determination as to whether the trial court erred when it denied the petition. Thus,
we conclude that the trial court did not abuse its discretion when it denied
Appellant’s petition for expunction. Appellant’s second issue is overruled.
V. This Court’s Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
September 4, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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