Texas Department of Public Safety v. Kenneth Frederick Cryan, Jr.

Affirmed in part, Reversed and Rendered in part, and Memorandum Opinion filed August 11, 2005

Affirmed in part, Reversed and Rendered in part, and Memorandum Opinion filed August 11, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00507-CV

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TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant

V.

KENNETH FREDERICK CRYAN, JR., Appellee

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On Appeal from the 155th District Court

Austin County, Texas

Trial Court Cause No. 2003V‑0114

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M E M O R A N D U M   O P I N I O N

The Texas Department of Public Safety appeals the trial court=s order granting Kenneth Frederick Cryan=s petition for expunction of criminal records related to three separate arrests.  We affirm in part, and reverse and render in part.

I.  Background

In 1997, Cryan was arrested three separate times.  Cryan was first arrested for misdemeanor assault.  No information or indictment was presented against him for the misdemeanor assault offense, and the statute of limitations for prosecution of this offense later expired.

Cryan was later arrested for criminal mischief.  He was charged by information for the offense, but the charge was dismissed, and the statute of limitations for prosecution of this offense later expired.

Subsequently, Cryan was arrested for the felony offenses of theft and arson.  He was charged by indictment with both offenses, but the State elected to pursue only the theft charge.  Cryan was placed on deferred adjudication probation for the theft offense and satisfactorily completed probation.

In 2003, Cryan filed a petition pursuant to Article 55.01 of the Texas Code of Criminal Procedure to expunge criminal records related to all three arrests, and all the appropriate agencies were notified.  The Texas Department of Public Safety (ADPS@) filed an answer, but did not appear at the hearing. The only party to appear at the hearing to contest expunction was the Austin County District Attorney.  Upon completion of the hearing, the trial court ordered that all records related to the arrests be expunged, and DPS filed this appeal from the trial court=s order.

II.  Standard of Review

Article 55.01 of the Texas Code of Criminal Procedure provides for the expunction of records and files related to an arrest.  Tex. Code Crim. Proc. Ann. art. 55.01 (Vernon Supp. 2004B05).  The right to expunction of arrest records is a statutory privilege limited by the legislature.  Harris County Dist. Attorney v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.CHouston [14th Dist.] 1997, no pet.).  Although Article 55.01 is found in the Texas Code of Criminal Procedure, an expunction proceeding is civil rather than criminal in nature; therefore the petitioner bears the burden of proving compliance with the statute.  Id. All provisions of the statute are mandatory, and the court has no equitable power to extend the clear meaning of the statute.  Id.

Article 55.01 provides that 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.  One such condition is that 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)(C).

In its first issue, DPS contends the trial court erred by ordering expunction of records related to all three of Cryan=s arrests because the evidence was legally insufficient to prove he had not been convicted of a felony in the five years preceding the arrests. 

In a trial to the court where no findings of fact or conclusions of law are requested or filed, the trial court=s judgment implies all findings of fact necessary to support it.  Pharo v. Chambers County, Tex., 922 S.W.2d 945, 948 (Tex. 1996).  When the party without the burden of proof challenges the legal sufficiency of evidence to support an unfavorable implied finding of fact, we apply a Ano evidence@ standard of review.  State v. Herron, 53 S.W.3d 843, 845 (Tex. App.CFort Worth 2001, no pet.).  In determining whether there is Ano evidence@ to support a factual finding, we consider only the evidence and inferences that, when viewed in their most favorable light, tend to support the trial courts findings, and we disregard all evidence and inferences to the contrary. Cont=l Coffee Prods. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996).  If more than a scintilla of evidence exists to support the questioned finding, the Ano evidence@ point fails.  Id.  When the record discloses a complete absence of evidence of a vital fact, however, we must sustain the Ano evidence@ point.  Texas Dep=t of Public Safety v. Katopodis, 886 S.W.2d 455, 457 (Tex. App.CHouston [1st Dist.] 1994, no writ).

III.  Discussion

A.        Expunction of Records Related to Arrests for Misdemeanor Assault and Criminal Mischief

Cryan contends that the Austin County District Attorney conceded at the expunction hearing that Cryan was entitled to expunction of records related to the arrests for misdemeanor assault and criminal mischief, which did not result in deferred adjudication probation.  At the expunction hearing, the district attorney argued as follows: A[W]e did talk to the D.P.S. who filed an extensive answer [in this case].  I think he has talked to [Cryan=s attorney] and talked to me. . . .  The other two arrests [that did not result in deferred adjudication], we have no problem with expunging those records, but we would oppose any kind of expunction as far as the deferred adjudication is concerned at this point in time because I think, legally, it can not be done.@  

We do not agree with Cryan=s assertion that the district attorney conceded Cryan was entitled to expunction of records related to the arrests for misdemeanor assault and criminal mischief.  However, we do find that the district attorney expressly represented to the trial court that neither he, nor DPS, opposed expunction of records related to these arrests. 

Courts routinely rely on attorneys= statements during oral argument and rely on these statements when deciding cases.  See, e.g., City of Sherman v. Henry, 928 S.W.2d 464, 466 (Tex. 1996) (relying on representation that parties made during oral argument before the Court). Accordingly, an attorney cannot invite or induce the trial court to commit error and then permit his client to complain about the error on appeal.  See Kelly v. Demoss Owners Ass=n, 71 S.W.3d 419, 424 (Tex. App.CAmarillo 2002, no pet.) (stating that A[i]nvited error is an equitable doctrine which prohibits a party from acting in a way that misleads the trial court into committing error@).   

Because the district attorney expressly represented to the trial court that he had Ano problem@ with expunging records related to the arrests for misdemeanor assault and criminal mischief, any error by the trial court in expunging such records was clearly invited by the district attorney.  Thus, the district attorney, and the parties he represented at the hearing, cannot inconsistently contend on appeal that the trial court erred by expunging these records. Accordingly, the question becomes whether the district attorney represented DPS at the expunction hearing so as to preclude DPS from challenging on appeal the expunction of these records.   

Each law enforcement agency that may have records the petitioner wants expunged is entitled to be represented by counsel at the expunction hearing, rather than being forced to rely on the district attorney to represent its interest as it would be in a criminal proceeding.  See Tex. Code Crim. Proc. Ann. art. 55.02(2)(c) (stating Asuch entity may be represented by the attorney responsible for providing such agency with legal representation in other matters@); Katopodis, 886 S.W.2d at 458.  Therefore, the state agencies which appear at the hearing are not bound by the district attorney=s actions or agreements concerning expunction. Katopodis, 886 S.W.2d at 458.  However, when a state agency does not appear at the expunction hearing, the district attorney does in fact represent the interests of such agency.  Texas Dept. of Public Safety v. Butler, 941 S.W.2d 318, 320 (Tex. App.CCorpus Christi 1997, no writ); cf. Texas Dept. of Public Safety v. Deck, 954 S.W.2d 108, 111 (Tex. App.CSan Antonio 1997, no writ) (concluding district attorney did not represent DPS where DPS did not receive notice of the hearing, did not file an answer, and nothing in record demonstrated district attorney was acting on behalf of DPS).

In this case, DPS did not appear at the expunction hearing.  Therefore, we conclude the district attorney represented DPS=s interest at the expunction hearing.^[1]  Thus, the district attorney=s representation that neither he, nor DPS, opposed expunction of records related to the arrests for misdemeanor assault and criminal mischief is binding on DPS and precludes DPS from challenging on appeal the legal sufficiency of the evidence to support expunction of records related to these arrests.

B.        Expunction of Records Related to the Arrest for Theft and Arson

DPS did oppose expunction of records related to Cyran=s arrest for theft and arson.  Accordingly, we must determine whether the evidence is legally sufficient to prove that Cryan had not been convicted of a felony in the five years preceding his arrest for theft and arson.

In his petition, Cryan alleged that he was entitled to expunction of his arrest records pursuant to Article 55.01(a)(2).  However, pleadings are not competent evidence and a party may not rely on pleadings to meet its burden of proof.  Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995).  When the defendant files a general denial in the trial court, that pleading puts a plaintiff to his or her proof on all issues. Estrada v. Dillon, 44 S.W.3d 558, 562 (Tex. 2001).  In this case, DPS filed a general denial in response to Cryan=s petition for expunction, and therefore, Cryan was required to provide proof of each requirement under Article 55.01 to be entitled to expunction of his arrest records.  See Texas Department of Public Safety v. Moran, 949 S.W.2d 523, 526 (Tex. App.CSan Antonio 1997, no writ) (explaining that once the State has filed a general denial, all facts in a petition for expunction are not evidence and are placed at issue).

Cryan relies on his testimony at the expunction hearing as evidence that he had not been convicted of a felony in the five years preceding his arrests. Specifically, Cryan responded affirmatively to the question, A[A]re the facts relating to the three arrests that you are asking to be expunged true and correct, as set out in the petition?@  Cryan points to the allegation in his petition that he was entitled to expunction under Article 55.01(a)(2).  He argues that because Article 55.01(a)(2) requires that the petitioner not have been convicted of a felony in the five years preceding the arrest, his testimony constitutes some evidence of the necessary fact.  However, Cryan=s allegation in his petition that he was entitled to expunction under Article 55.01(a)(2) is not a fact, but rather a legal conclusion.  Cryan=s petition did not contain a factual assertion that he had not been convicted of a felony in the five years preceding his arrests.  Accordingly, Cryan=s testimony did not prove by legally sufficient evidence that he had not been convicted of a felony in the five years preceding his arrest for theft and arson.^[2]

VI.  Conclusion

We affirm the portion of the trial court=s judgment granting expunction of records related to the arrests for misdemeanor assault and criminal mischief.  However, because we find the evidence is legally insufficient to show that Cryan had not been convicted of a felony in the five years preceding his arrest for theft and arson, we reverse the portion of the trial court=s judgment granting expunction of records related to the arrest for theft and arson and render judgment denying expunction of records related to that arrest.  

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed August 11, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman.

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^[1]  DPS states in its brief that it was represented at the hearing by the Austin County Criminal District Attorney.

^[2]  Our disposition of this issue makes it unnecessary for us to address DPS=s second issue, in which DPS contends that the trial court erred by expunging records related to Cryan=s arrest for theft and arson because he was placed on deferred adjudication probation for the theft offense.  See Tex. R. App. P. 47.1.