In the Matter of the Expunction of C. V.--Appeal from 210th District Court of El Paso County

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State: Texas

Court: Texas Northern District Court

Docket No: 08-05-00243-CV

Case Date: 08/31/2006

Preview:In the Matter of the Expunction of C. V.--Appeal from
210th District Court of El Paso County
2) Caption, civil cases /**/
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
)
) No. 08-05-00243-CV
)
IN THE MATTER OF THE EXPUNCTION ) Appeal from
)
OF C.V. ) 210th District Court
)
) of El Paso County, Texas
)
) (TC# 2005-2351)
CORRECTED OPINION
On April 7, 2005, C.V. filed a petition for expunction of records pertaining to an arrest on May 7, 2003 [sexual
assault], an arrest on September 3, 2003 [driving under the influence], and an arrest on March 30, 2004 [driving under
the influence]. The petition was subsequently amended to delete both DWI offenses so that the only arrest C.V. sought
to expunge was the sexual assault.
C.V. alleged that he had not been charged with a felony in the five years preceding the sexual assault arrest and that
the indictment was dismissed due to mistake or an absence of probable cause. The record reveals that charges for the
sexual assault were dismissed after the complaining witness signed a non-prosecution statement. A prosecutor who
worked on the case testified there were other issues that would have affected the credibility of the witness such that he
felt it was not in the best interest of justice to proceed. Although he believed that there was sufficient evidence to
proceed without the complainant, the court took the circumstances to mean that the case was dismissed because it was
not as strong without the complaining witness and even so weak that C.V. might have been acquitted.
On appeal, the County of El Paso, El Paso County Sheriff s Department, El Paso County Clerk s Office, El Paso
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District Attorney s Office, El Paso District Clerk s Office, CDP (Consolidated Data Processing), Records Management
and Archives, Director of West Texas Community Supervision and Corrections Department (Probation), Director of El
Paso County Court Administration and the Jail Magistrate contend that the trial court erred in granting the petition
because C.V. did not meet his statutory burden. See Tex.Code Crim.Proc. Ann. art. 55.01(a)(2)(A)(ii)(Vernon
Pamphlet 2005). For the reasons that follow, we agree.
The right to expunction is a statutory privilege. In re Expunction of J.A., 186 S.W.3d 592, 595 (Tex.App.--El Paso
2006, no pet.); Matter of Wilson, 932 S.W.2d 263, 265 (Tex.App.--El Paso 1996, no writ). Article 55.01 of the Code of
Criminal Procedure gives persons the opportunity to have all records of an arrest expunged provided certain statutory
requirements are met. Tex.Code Crim.Proc.Ann. art. 55.01(a); In re Expunction of J.A., 186 S.W.3d at 595; Matter of
Wilson, 932 S.W.2d at 265-66. All provisions in a statutory cause of action are mandatory and exclusive, and all
conditions must be met before a person is entitled to expunction. In re Expunction of J.A., 186 S.W.3d at 595-96;
Texas Dept. of Public Safety v. Wallace, 63 S.W.3d 805, 806 (Tex.App.--Austin 2001, no pet.). A statutory expunction
proceeding is civil rather than criminal in nature, and the petitioner bears the burden of proving compliance with the
statute. In re Expunction of J.A., 186 S.W.3d at 596; Houston Police Dept. v. Berkowitz, 95 S.W.3d 457, 460
(Tex.App.--Houston [1st Dist.] 2002, pet. denied); Matter of Wilson, 932 S.W.2d at 266.
Article 55.01, in pertinent part, provides a person charged with a felony or misdemeanor is entitled to have their record
expunged only if:
(2) each of the following conditions exist:
(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).
Insufficient evidence cannot be the basis of an expunction. Barker v. State, 84 S.W.3d 409, 413 (Tex.App.--Fort Worth
2002, no pet.). In order for expunction to lie, the evidence must show that the decision to indict was based on
erroneous facts. Id.; Matter of Wilson, 932 S.W.2d at 266. The lack of cooperation by a complainant or the
unwillingness to prosecute goes to the insufficiency of the evidence to convict, and not to whether the presentment of
the indictment was based upon mistake, false information, or other reason indicating lack of probable cause. See
Barker, 84 S.W.3d at 413; see Texas Dept. of Public Safety v. Mendoza, 952 S.W.2d 560, 563 (Tex.App.--San Antonio
1997, no writ).
While C.V. testified that there was no evidence to support the indictment, the case was actually dismissed because the
complainant chose not to prosecute. Because C.V. failed to meet all statutory requirements, we grant the Department s
sole point. We reverse the trial court s order granting Appellant s expunction.
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August 31, 2006
ANN CRAWFORD McCLURE, Justice
Before Barajas, C.J., McClure, and Chew, JJ.
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