Ex parte Stiles

• Decision Date: 06 August 1997
• Docket Number: No. 10-96-258-CV,10-96-258-CV
• Citation: 950 S.W.2d 444
• Parties: Ex parte Timothy Lee STILES, Appellant.
• Court: Texas Court of Appeals

Page 444

950 S.W.2d 444

Ex parte Timothy Lee STILES, Appellant.

No. 10-96-258-CV.

Court of Appeals of Texas Waco.

Aug. 6, 1997.

Joe F. Grubbs, County and District Attorney, Jill A. Durbin, Asst. County and District Attorney, Waxahachie, for appellant.

Mitchell Madden, Michelle, P. Nicaud, Dallas, for appellee.

Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

CUMMINGS, Justice.

The Ellis County District Attorney ¹ appeals the trial court's order granting an expunction of the arrest record of the appellee, Timothy Lee Stiles. In three points of error, appellant claims the trial court erred in: (1) granting Stiles' motion to reopen the record, (2) ordering the expunction because its findings of fact are legally and factually insufficient, and (3) granting the expunction because its first conclusion of law is incorrect as a matter of law.

I. Factual and Procedural Background

Timothy Lee Stiles was indicted by an Ellis County grand jury on February 21, 1990 for sexual assault and indecency with a child. See TEX. PEN.CODE ANN. § 22.011 (Vernon 1994 & Supp.1997), § 21.11 (Vernon 1994). Subsequently the district attorney learned new information regarding the complainant's past sexual conduct. This information had not been presented to the grand jury, nor had information about the complainant's psychiatric history been presented because the district attorney believed it was irrelevant. The new information provided Stiles with a defense which the district attorney believed would lead to Stiles' acquittal on the charges filed. Therefore, the district attorney went back to the grand jury twice seeking an indictment on different charges stemming from the same incident. Both grand juries returned a "no-bill," refusing to indict Stiles. The district attorney, on June 19, 1990, filed a motion to dismiss the original indictment claiming that there was insufficient evidence to proceed.

Stiles filed a petition for expunction of his arrest record in March 1996. See TEX.CRIM. PROC.CODE ANN. art. 55.01 (Vernon Supp.1997). As directed by the Code of Criminal Procedure, the trial court ordered the clerk to send notice of the expunction hearing to the state and federal agencies listed in Stiles' petition. See TEX.CRIM. PROC.CODE ANN. art. 55.02 (Vernon Supp.1997). After receiving notice of the petition, the Ellis County District Attorney filed an answer requesting that Stiles' petition for expunction be denied.

At the expunction hearing on April 24, Stiles presented evidence in support of his petition for expunction, and an assistant district attorney appeared at the hearing to oppose Stiles' petition. On April 26, 1996, the trial judge informed the parties by letter that the petition for expunction would be denied because Stiles presented no evidence he had not been convicted of a felony in the five years preceding the date of his arrest. See TEX.CRIM. PROC.CODE ANN. art. 55.01(a)(2)(C) (Vernon Supp.1997). Stiles then petitioned the trial court to reopen the record, or in the alternative to grant a new trial. The trial judge granted Stiles' petition to reopen the record at a hearing on July 9. During this second hearing, Stiles testified that he had never been convicted of a felony. The trial judge then granted the expunction of Stiles' arrest record. The last hearing in the trial court occurred on August 6 when the parties discussed the terms of the order of expunction, which was signed by the trial judge on that date. At the request of the Ellis County District Attorney, the trial court also made findings of fact and conclusions of law.

II. Points of Error

In its first point of error, the Ellis County District Attorney contends that the trial judge abused his discretion when he granted Stiles' motion to reopen the record and receive additional testimony. Under the Rules of Civil Procedure, in a non-jury case a trial judge is permitted to receive additional evidence at any time "[w]hen it clearly appears to be necessary to the due administration of justice." TEX.R. CIV. P. 270. The test for determining whether the trial judge abused his discretion in reopening the evidence is if the judge acted without reference to guiding rules or principles such that the action was arbitrary and unreasonable. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.1996); Apresa v. Montfort Ins. Co., 932 S.W.2d 246, 249 (Tex.App.--El Paso 1996, no writ); Wilemon v. Wilemon, 930 S.W.2d 290, 294 (Tex.App.--Waco 1996, no writ). A judge's discretion to reopen the evidence should be exercised liberally to allow both parties to fully present their case. Apresa, 932 S.W.2d at 249; McCarthy v. George, 623 S.W.2d 772, 776 (Tex.App.--Fort Worth 1981, writ ref'd n.r.e.).

The Ellis County District Attorney argues that Stiles' motion should not have been granted because Stiles was not diligent in seeking to present evidence that he had not been convicted of a felony in the five years before his arrest. The diligence of a party in presenting its evidence is one factor the trial judge may consider in deciding whether to exercise his discretion and reopen the evidence. See In re Marriage of Murphy, 561 S.W.2d 592, 593 (Tex.Civ.App.--Amarillo 1978, no writ); Smart v. Missouri-Kansas-Texas R.R. Co., 560 S.W.2d 216, 217-18 (Tex.Civ.App.--Tyler 1977, writ ref'd n.r.e.). But, in addition to looking at a party's diligence, other factors that the trial judge may properly consider in deciding whether to reopen the evidence are: (1) whether the evidence to be introduced is decisive, (2) whether reopening the record will cause undue delay, and (3) whether granting the motion to reopen the evidence "will cause an injustice." In re A.F., 895 S.W.2d 481, 484 (Tex.App.--Austin 1995, no writ); see Word of Faith World Outreach Ctr. Church v. Oechsner, 669 S.W.2d 364, 367 (Tex.App.--Dallas 1984, no writ).

In the instant case the trial judge did not abuse his discretion in granting Stiles' motion to reopen the evidence. The evidence Stiles introduced after the record was reopened was decisive on the issue of expunction, did not cause undue delay to present, and allowing the reopening caused no injustice. See id. While it is true that Stiles could have been called to testify as a witness during the April 24th expunction hearing, it did not cause undue delay in the proceedings to have another short hearing establishing that Stiles had not been convicted of a felony during the previous five years. Also, the evidence that Stiles had not been convicted of a felony was decisive on the issue of expunction because the trial judge's letter to the parties indicates that this lack of evidence was the reason for his denying Stiles' request for an expunction. Moreover, no injustice was caused by reopening the evidence and allowing Stiles to testify about his criminal record. Appellant's first point is overruled.

In its second point of error, the Ellis County District Attorney challenges two of the trial court's findings of fact for legal sufficiency and four of the findings for factual sufficiency. A trial judge's findings of fact may be reviewed for legal and factual sufficiency using the same standards which are employed to review a jury's answers to questions in the charge. Westech Eng'g Inc. v. Clearwater Constructors Inc., 835 S.W.2d 190, 195 (Tex.App.--Austin 1992, no writ).

Appellate courts review a legal sufficiency challenge by considering only the evidence and inferences supporting the trial judge's findings, while disregarding contrary evidence. Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); Niswanger v. State, 875 S.W.2d 796, 798 (Tex.App.--Waco 1994, no writ). A finding of fact will be upheld on appeal as legally sufficient if there is more than a scintilla of evidence supporting the finding. Id.

In reviewing a factual sufficiency point, this court looks at all the evidence in the record to determine if the trial court's finding was so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Niswanger, 875 S.W.2d at 799. In Ortiz the Texas Supreme Court cautioned appellate courts not to substitute their judgment for that of the fact-finder by disregarding evidence supporting the trial court's findings and choosing "to believe witnesses that the fact-finder below found unpersuasive." Ortiz, 917 S.W.2d at 772.

The Trial Court's Third Finding of Fact

The Ellis County District Attorney claims that the third finding of fact made by the trial court is not supported by legally and factually sufficient evidence. This finding of fact is:

Following Petitioner's arrest, the County Attorney discovered evidence previously unknown to the County Attorney or the indicting Grand Jury regarding the alleged victim's promiscuity. The County Attorney further determined that evidence regarding the alleged victim's psychiatric condition which was not presented to the indicting Grand Jury because of irrelevancy had become relevant to the case.

In order to determine whether this finding is supported by the evidence, we must review the relevant testimony of Mary Lou Shipley, who had been the district attorney for Ellis County when Stiles was indicted. Shipley testified that after the original grand jury returned an indictment charging Stiles with sexual assault and indecency with a child, she learned additional information about the complainant's previous sexual conduct. Shipley stated that this information provided a defense for Stiles which would result in his acquittal, and it had not been presented to the first grand jury. Furthermore, Shipley testified that she was aware that the complainant had been receiving psychiatric care or was institutionalized, but she could not recall exactly when this information came to her knowledge, except she believed it was before the case was presented to the grand jury. Shipley also did not recall whether the...