Ex Parte N.M. v. . ( 2024 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-24-00032-CV
EX PARTE N.M.
From the 198th Judicial District Court, Bandera County, Texas
Trial Court No. CVCM-XX-XXXXXXX
Honorable M. Patrick Maguire, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Irene Rios, Justice
Beth Watkins, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: October 16, 2024
AFFIRMED
Appellant N.M. challenges an order denying his petition to expunge records under Texas
Code of Criminal Procedure article 55.01. We affirm the trial court’s order.
BACKGROUND
On March 27, 2003, N.M. pleaded guilty to aggravated sexual assault in Cause Number
3354-02 in the 216th Judicial District Court of Bandera County. The trial court signed a
judgment deferring adjudication, placed N.M. on probation for ten years, and ordered him to
comply with several conditions of probation.
On December 21, 2022, the trial court signed an order in Cause Number 3354-02 finding
that N.M. “satisfactorily fulfilled the conditions of [his] deferred adjudication community
supervision (probation), that the Court has not proceeded to an adjudication of guilt, and that the
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term of [N.M.’s] probation has expired.” The court therefore dismissed the proceedings in Cause
Number 3354-02 and “discharge[d] [N.M.] from probation.”
N.M. subsequently filed a petition to expunge the records related to Cause Number 3354-
02. Because he was incarcerated out-of-state 1 and lacked access to Texas legal authority, he also
filed a motion requesting appointed counsel. The Texas Department of Public Safety filed an
answer arguing N.M. was not entitled to expunction because the 2003 deferred adjudication
order included court-ordered community supervision. N.M. filed a motion to strike DPS’s
answer and a separate motion asking the trial court to order DPS to send him copies of the
authority cited in the answer.
On October 11, 2023, N.M. appeared by telephone for a hearing on his expunction
petition. At the conclusion of the hearing, the trial court orally denied the petition. N.M. filed a
request for findings of fact and conclusions of law and a motion to vacate, modify, correct, or
reform the judgment. The trial court subsequently signed findings of fact and conclusions of law
and written orders denying N.M.’s expunction petition and his motion to vacate, modify, correct,
or reform the judgment. This appeal followed.
ANALYSIS
In seven issues we construe as three, N.M. challenges the trial court’s order denying his
expunction petition. He argues: (1) the order of deferred adjudication in Cause Number 3354-02
was not a “final conviction” that would preclude expunction; 2 (2) the trial court violated his due
1
N.M.’s incarceration is not related to Cause Number 3354-02.
2
As part of this issue, N.M. argues the deferred adjudication order was not a “reportable conviction” as defined by
Texas Code of Criminal Procedure article 62.001(5), which applies to Texas’s sex offender registration program.
See TEX. CODE CRIM. PROC. ANN. art. 62.001(5). He also contends that both article 62.001(5) and section 12.42(g)
of the Texas Penal Code, which defines “previously convicted” for purposes of punishment enhancement, are
unconstitutionally vague. See TEX. PENAL CODE ANN. § 12.42(g). N.M. did not assert any challenges to article
62.001(5) or section 12.42(g) in his expunction petition. See Tex. Dep’t of Protective & Regul. Servs. v. Sherry, 46
S.W.3d 857, 861 (Tex. 2001) (declining to consider constitutional claims not asserted in trial court pleadings).
Furthermore, he contends in his reply brief that he is not challenging the sex offender registration requirements in
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process rights by denying his motion for appointment of counsel and by moving forward with the
expunction proceeding when he lacked access to Texas legal authority; and (3) the trial court
should have stricken DPS’s answer because it was not a proper respondent in this matter.
Standard of Review and Applicable Law
“Expunction is a civil remedy governed by Article 55.01 of the Texas Code of Criminal
Procedure.” Ex parte R.P.G.P., 623 S.W.3d 313, 316 (Tex. 2021). Article 55.01 provides, “[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”
certain conditions are met. TEX. CODE CRIM. PROC. ANN. art. 55.01(a). The conditions relevant
here include a showing that the person seeking expunction “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 Chapter 42A 3 for the offense, unless the offense is a Class
C misdemeanor[.]” TEX. CODE CRIM. PROC. art. 55.01(a)(2). For the purpose of applying article
55.01(a)(2), “[c]ourt-ordered community supervision includes deferred-adjudication community
supervision.” Ex parte A.G., No. 13-20-00326-CV, 2021 WL 3669332, at *3 (Tex. App.—
Corpus Christi–Edinburg Aug. 19, 2021, no pet.) (mem. op.); Tex. Dep’t of Pub. Safety v. Nail,
305 S.W.3d 673, 681 (Tex. App.—Austin 2010, no pet.) (op. on reh’g) (noting deferred
adjudication constitutes court-ordered community supervision “when the order imposes one or
more of the ‘conditions’ under [former] article 42.12, section 11”).
this proceeding. See Miller v. Kennedy & Minshew, Pro. Corp., 142 S.W.3d 325, 335–36 (Tex. App.—Fort Worth
2003, pet. denied) (declining to consider issue abandoned in reply brief). For these reasons, we will not consider any
issues regarding article 62.001(5) or section 12.42(g).
3
Effective January 1, 2017, Chapter 42A of the Texas Code of Criminal Procedure re-codified what was formerly
known as article 42.12. See Shortt v. State, 539 S.W.3d 321, 322 n.1, 2 (Tex. Crim. App. 2018). The Texas Court of
Criminal Appeals has recognized that “the Legislature expressly declared that no substantive change in the law was
intended.” Moore v. State, 520 S.W.3d 906, 908 n.3 (Tex. Crim. App. 2017). Article 42.12 was still in effect when
the trial court signed the 2003 deferred adjudication order.
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The petitioner bears the burden to show he satisfies article 55.01’s requirements. See,
e.g., Ex parte S.B.H., No. 12-19-00378-CV, 2020 WL 7392773, at *2 (Tex. App.—Tyler Dec.
16, 2020, no pet.) (mem. op.); Ex parte Burton, No. 04-17-00440-CV, 2018 WL 6624902, at *3
(Tex. App.—San Antonio Dec. 19, 2018, no pet.) (mem. op.). “Because the remedy [of
expunction] is a privilege defined by the Legislature, and not a constitutional or common-law
right, the statutory requirements are mandatory and exclusive and cannot be equitably expanded
by the courts.” Ex parte R.P.G.P., 623 S.W.3d at 316; Ex parte J.C.F., 645 S.W.3d 783, 787
(Tex. App.—San Antonio 2022, no pet.).
We generally review a trial court’s ruling on an expunction petition for abuse of
discretion. Ex parte J.C.F., 645 S.W.3d at 787. However, if the ruling turns on a pure question of
law, such as an issue of statutory construction, we review it de novo because the trial court has
no discretion in determining what the law is or applying it to the facts. Ex parte Burton, 2018
WL 6624902, at *2; Ex parte J.C.F., 645 S.W.3d at 789 (holding trial court erred by granting
expunction where petitioner failed to satisfy article 55.01(a)(2)).
To prevail on appeal, N.M. must establish both that the trial court erred and that he was
harmed by the purported errors. TEX. R. APP. P. 44.1(a); McCarroll v. Tex. Dep’t of Pub. Safety,
86 S.W.3d 376, 378 (Tex. App.—Fort Worth 2002, no pet.) (holding trial court’s error in
expunction proceeding “was harmless because of the improbability of appellant’s success on the
merits”). An appellant establishes harm by showing that the trial court’s errors probably resulted
in an improper judgment or probably prevented the appellant from properly presenting his case
to this court. TEX. R. APP. P. 44.1(a).
Application
N.M. attached the deferred adjudication order from Cause Number 3354-02 to his
expunction petition. That order showed N.M. pleaded guilty to aggravated sexual assault, which
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is a felony. See TEX. PENAL CODE ANN. § 22.021(a), (e). Accordingly, under the plain language
of article 55.01(a)(2), N.M. was not entitled to an expunction unless he demonstrated that Cause
Number 3354-02 did not result in a final conviction, the charge in that matter was no longer
pending, and “there was no court-ordered community supervision” in that matter. TEX. CODE
CRIM. PROC. art. 55.01(a)(2); Ex parte S.B.H., 2020 WL 7392773, at *2. These are three separate
elements, and N.M. bore the burden to satisfy all of them. See, e.g., T.C.R. v. Bell Cnty. Dist.
Att’y’s Off., 305 S.W.3d 661, 663 (Tex. App.—Austin 2009, no pet.). On this record, the trial
court correctly determined he did not satisfy the final element.
The deferred adjudication order imposed multiple requirements on N.M., including
confinement in the Bandera County Jail for six months; drug testing, electronic monitoring, and
sex offender counseling; and a requirement that N.M. “[c]ommit no offense against the laws of
this State, of any other State or of the United States.” The order cautioned N.M. that his
probation was conditioned on compliance with those terms and that failure to comply could lead
to his arrest and an adjudication of guilt. See Nail, 305 S.W.3d at 682–83. These conditions—
several of which involved “active, literal supervision by the State”—constituted court-ordered
community supervision. See id. at 680–84; see also Act of June 17, 1997, 75th Leg., R.S., ch.
700, § 11 (former article 42.12 § 11, describing “conditions of community supervision”; repealed
2017, currently codified at TEX. CODE CRIM. PROC. ANN. art. 42A.051, 42A.104(a)). As a result,
the trial court had no discretion but to deny N.M.’s expunction petition. TEX. CODE CRIM. PROC.
art. 55.01(a)(2); Ex parte J.C.F., 645 S.W.3d at 789 (“The face of the record shows [appellant]
received court-ordered community supervision, and the expunction provision expressly excludes
him from the privilege of expunction.”); Ex parte A.G., 2021 WL 3669332, at *2 (trial court
must “strictly comply with the statutory procedures for expunction”). We therefore conclude that
the trial court did not err in denying N.M.’s expunction petition.
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N.M. also complains about trial court rulings separate from—but related to—the trial
court’s decision to deny his expunction petition. But, as described above, we are not authorized
to reverse the trial court’s judgment unless the trial court committed error that probably resulted
in an improper judgment or probably prevented the appellant from properly presenting his case
to this court. TEX. R. APP. P. 44.1(a). Here, because N.M. was not entitled to an expunction under
the plain language of article 55.01(a)(2), the purported related errors he asserts on appeal could
not have resulted in a judgment that improperly denied his expunction petition or prevented him
from presenting his issues to this court. Id. Those errors, if any, were therefore harmless. See id.;
Ex parte A.G., 2021 WL 3669332, at *5 (overruling due process complaint because appellant
was not entitled to expunction as a matter of law); Mitchell v. State, No. 09-20-00060-CV, 2020
WL 6494209, at *4 (Tex. App.—Beaumont Nov. 5, 2020, pet. denied) (mem. op.) (concluding
asserted error was harmless because “[appellant] failed to satisfy the expunction statute and his
expunction claim is meritless”).
We overrule N.M.’s issues in their entirety.
CONCLUSION
We affirm the trial court’s order.
Beth Watkins, Justice
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