Texas Dept. of Public Safety v. Moran, 04-96-00857-CV

• Decision Date: 16 July 1997
• Docket Number: No. 04-96-00857-CV,04-96-00857-CV
• Parties: The TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Daniel Anthony MORAN, Appellee.
• Court: Texas Court of Appeals

Page 523

949 S.W.2d 523

The TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Daniel Anthony MORAN, Appellee.

No. 04-96-00857-CV.

Court of Appeals of Texas San Antonio.

July 16, 1997.

Charles R. Maddox, J. Frank Davis, Texas Dept. of Public Safety, Legal Services, Asst. Gen. Counsel, Austin, for appellant.

Gary F. Churak, San Antonio, for appellee.

Before HARDBERGER, C.J., and STONE and GREEN, JJ.

OPINION

GREEN, Justice.

This is an appeal from a court order granting an expunction of a misdemeanor arrest record. Daniel Anthony Moran was arrested in September 1991, and an information was presented for misdemeanor assault. Moran pled guilty to the offense and received six months deferred adjudication. According to the parties, the case was dismissed because Moran successfully fulfilled the terms of his deferred adjudication. On March 13, 1996, Moran filed a verified petition to expunge his arrest record. The Bexar County District Attorney was the only agency that appeared at the hearing and filed an answer. After hearing evidence and argument of counsel, the court issued an order expunging Moran's arrest record. Upon receiving notice of the expunction order, DPS requested findings of fact and conclusions of law and filed a motion for new trial on legal and factual sufficiency grounds, which the court denied.

On appeal, DPS brings forward five points of error challenging the factual and legal sufficiency of the court's finding that Moran was entitled to an expunction. In its first point of error, DPS asserts that Moran did not prove in what county the arrest occurred; in its second and third points of error, DPS contends that there was legally and factually insufficient evidence to find that Moran's misdemeanor charge was disposed of in a statutorily permissible manner. DPS' third point of error challenges the court's first conclusion of law, which found Moran was entitled to an expunction, as not being supported by the court's second finding of fact, which stated that Moran was placed on deferred adjudication. In its fifth point of error, DPS claims that Moran did not carry his burden in proving the misdemeanor charge was disposed of in a manner prescribed by the statute.

DPS contends that it is entitled to bring this appeal without proving that the elements of an equitable motion for new trial have been satisfied because Moran waived his right to a default judgment. We agree. Moran waived his right to obtain a default judgment after proceeding to try the case on the merits without first requesting a default judgment, despite the court's notation on the judgment entered after the trial that DPS defaulted. See Artripe v. Hughes, 857 S.W.2d 82, 87 (Tex.App.--Corpus Christi 1993, writ denied); Estate of Grimes v. Dorchester Gas Producing Co., 707 S.W.2d 196, 204 (Tex.App.--Amarillo 1986, writ ref'd n.r.e.); Goetz v. Goetz, 534 S.W.2d 716, 719-20 (Tex.Civ.App.--Dallas 1976, no writ). Moreover, we hold that when one agency appears at an expunction hearing, the court cannot enter a default judgment against any of the other agencies. In an expunction hearing, regardless of which agency appears or files an answer, the court must resolve a question common to all agencies--whether the petitioner has satisfied the statutory requirements. The default of one agency does not affect the inseparable, ultimate issue of whether the petitioner is entitled to an expunction. Permitting a default judgment against one agency when another has appeared might result in inconsistent judgments since the court could, on one hand, enter a default judgment granting the expunction and then, on the other hand, deny the expunction when the answering agency proves the petitioner is not entitled to an expunction. Because of the possibility of irreconcilable judgments, the court, in an expunction proceeding, cannot enter a default judgment when at least one agency has appeared. Cf. Estate of Grimes, 707 S.W.2d at 204 (finding default judgment impermissible when contest of some defendants made resolution of common issue necessary; permitting otherwise would have led to irreconcilable judgments). As a result, we do not treat the current judgment as a default judgment.

Standards of Review

A trial court's findings are reviewable for legal and factual sufficiency of the evidence by the same standards that are applied in reviewing evidence supporting a jury's answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). In reviewing a legal insufficiency challenge or "no evidence" point of error, the reviewing court considers only the evidence and inferences that tend to support the challenged findings and disregards all evidence and inferences to the contrary. See id. If there is more than a scintilla of evidence to support the findings, the "no evidence" challenge cannot be sustained. Id. In reviewing a factual sufficiency point, the court of appeals must weigh all of the evidence in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). Findings may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

A trial court's conclusions of law are always reviewable. Spiller v. Spiller, 901 S.W.2d 553, 556 (Tex.App.--San Antonio 1995, writ denied). Conclusions of law will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence; they will not be reversed unless they are erroneous as a matter of law. Id.

Discussion

The Code of Criminal Procedure permits a person to expunge his arrest records upon meeting certain requirements. See TEX.CODE CRIM. PROC. ANN. arts. 55.01, 55.02 (Vernon Supp.1997). The petition filed must be verified and must include such things as the petitioner's name, sex, race, date of birth, the offense charged against the petitioner, and the county in which he was arrested. Id. at art. 55.02, § 1(b). The person petitioning for the expunction must file the ex parte petition "in a district court for the county in which he was arrested." Id. at art. 55.02, § 1(a). A person is entitled to an expunction if he has been acquitted by the trial court, convicted and subsequently pardoned, or each of the following conditions exist:

(A) an indictment or information charging him with commission of a felony has not been presented against him for an offense arising out of the transaction for which he was arrested or, if an indictment or information charging him with commission of a felony was presented, it has been dismissed 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) he 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 probation under Article 42.12, Code of Criminal Procedure, nor a conditional discharge under Section 481.109, Health and Safety Code; and (C) he has not been convicted of a felony in the five years preceding the date of the arrest.

Id. at art. 55.01(a). The petitioner has the burden of proving compliance with all of the statutory requirements. Harris v. State, 733 S.W.2d 710, 711 (Tex.App.--San Antonio 1987, no writ).

Moran contends he met his burden by filing a verified petition. Because the district attorney filed a general denial and appeared at the hearing, we disagree. "A general denial of matters pleaded ... shall be sufficient to put the same in issue...." TEX.R. CIV. P. 92. Because a general denial was filed, the allegations in Moran's petition were not evidence; instead, the allegations were put into issue and Moran was required to prove he met the statutory conditions. See id.; Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 744 (Tex.1973).

County of arrest

In its first point of error, DPS alleges the court erred in granting the expunction since there was no evidence establishing the county in which Moran was arrested. We find nothing in the record, other than the allegations contained in Moran's petition, indicating the county of arrest. Because Moran did not prove up the county of arrest as required by the statute, there is no evidence establishing that the county of arrest was Bexar County. We sustain DPS' first point of error.

Article 55.01

& Deferred Adjudication

In its second, third, fourth, and fifth points of error, DPS challenges the court's expunging Moran's arrest record on the basis that Moran did not meet the requirements listed in article 55.01(a)(2).

Article 55.01(a)(2) requires three conditions to be met for Moran to be entitled to an expunction of the arrest. See TEX.CODE CRIM. PROC. ANN. art. 55.01(a)(2). The first condition requires the petitioner to prove that, if the arrest was for a felony, the indictment has not been presented, was dismissed for statutorily permissible reasons, or was void. Id. at art. 55.01(a)(2)(A). To fulfill the second requirement, the petitioner must show that (a) he has been released, (b) the charge, if any, has not resulted in a final conviction, (c) the charge is no longer pending, (d) there was no court ordered probation under TEX.CODE CRIM. PROC. ANN. art. 42.12, and (e) there was no conditional discharge under section 481.109 of the Health and Safety Code. Id. at art. 55.01(a)(2)(B). Under the third condition, the petitioner must show that he has not been convicted of a felony in the five years preceding the date of the arrest. Id. at art. 55.01(a)(2)(C). Only the second and third conditions are at issue since no indictment or information charging Moran with a felony was presented against him; he was charged with a misdemeanor.

Regarding the second and third...