Ex Parte Kevin Michael Boettner

Affirmed and Memorandum Opinion filed December 6, 2005 Affirmed and Memorandum Opinion filed December 6, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-05-00118-CV ____________ EX PARTE KEVIN MICHAEL BOETTNER On Appeal from the 10th District Court Galveston County, Texas Trial Court Cause No. 04CV0660 M E M O R A N D U M   O P I N I O N Appellant Kevin Michael Boettner appeals from the trial court=s order denying his petition for the expunction of records. Finding no reversible error, we affirm. Procedural Background On June 23, 2004, Boettner filed a petition in which he sought Ato expunge [six] false extraneous offense accusations.@ He alleged all the offenses occurred between 1988 and 1991, involved a minor, B.B.C., and consisted of (1) providing alcohol to B.B.C., (2) providing cocaine and marijuana to B.B.C., (3), Avaginal sex@ with B.B.C., (4) Aanal sex@ with B.B.C., (5) Abreast sex@ with B.B.C., and (6) Aoral sex@ with B.B.C. He stated he was Anever questioned, charged, arrested, indicted, tried, or found guilty of the alleged illegal conduct,@ but contended the offenses were listed in the State=s notice of intent to introduce extraneous offenses at his 1999 trial for a 1996 sexual assault of fifteen year-old F.T.M., of which he was found guilty.[1] He named ten respondents, including the AGalveston County Criminal District Attorney=s Office,@ as agencies, officials, or other public entities having records concerning the charges. The certificate of service shows service only on the Clerk of Court for Galveston County. A status conference on the motion was set for September 23, 2004. On July 9, 2004, Boettner filed a Amotion requesting the court to determine case disposition through instruments submitted via U.S. mail, in lieu of petitioner=s bench warrant.@ He stated, AAny needed testimony can be readily submitted to the court, via U.S. mail, and supported by an inmate declaration under penalty of perjury . . . thus eliminating the need for petitioners [sic] in camera personal presence.@ The certificate of service shows service on the Galveston County Criminal District Attorney. The trial court=s docket sheet shows the following entries for July 21, 2004: AOrder Granting Expunction is signed@; AEntry of 7-21-04 made in error.@ On August 20, 2004, Boettner filed a motion for summary judgment and a proposed order granting the expunctions. As a ground, he asserted that as of August 17, 2004, fifty-five days after he filed his petition for expunction, none of the ten named respondents had answered. The certificate of service shows service on the Galveston County Acting District Clerk and the Galveston County Criminal District Attorney. On September 22, 2004, the Galveston County Criminal District Attorney filed his original answer to Boettner=s petition for expunction and asserted a general denial. The trial court=s docket sheet shows no entry for September 23, 2004, the date originally set for a status conference. On September 27, 2004, the criminal district attorney filed his first amended answer, repeating the general denial and also contending Boettner did not meet the requirements for expunction because he alleged he had never been arrested for any of the six offenses. On September 30, 2004, the trial court denied Boettner=s petition by written order. The trial court found the petition failed to meet the requirements of Texas Code of Criminal Procedure Article 55.01(a) because Boettner failed to allege he was arrested for the extraneous offenses he was seeking to expunge.[2] On November 12, 2004, Boettner first received notice of the trial court=s order denying his petition.[3] On December 6, 2004, Boettner filed a notice of appeal, a motion for new trial, and a request for findings of fact and conclusions of law. On December 28, 2004, he filed a notice of past due findings of fact and conclusions of law. On January 19, 2004, the trial court denied his motion for new trial and filed its findings of fact and conclusions of law. The trial court concluded the petition was fatally defective because Boettner did not allege he was ever arrested for the extraneous offenses he sought to expunge. Introduction Boettner=s appellate issues fall into four groups, based on the parts of the process he attacks: (1) the July 21, 2004 docket entries (issue one), (2) the September 30, 2004 order denying Boettner=s petition (principally issue eight), (3) his lack of immediate notice of the September 30, 2004 order (principally issue seven), and (4) procedural events leading up to and following the trial court=s entry of the September 30, 2004 order (multiple issues).[4] All of Boettner=s issues relate to the expunction proceeding, which is a civil, rather than a criminal, proceeding. See Harris County Dist. Attorney v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.CHouston [14th Dist.] 1997, no pet.). Accordingly, we may reverse on the ground the trial court made an error of law only if the error of which Boettner complains probably caused the rendition of an improper judgment or probably prevented Boettner from properly presenting the case on appeal. Tex. R. App. P. 44.1(a). As discussed in Part I below, an order granting of Boettner=s petition on July 21, 2004, would have been an incorrect order. As discussed in Part II below, denial of Boettner=s petition was proper based on the assertion Boettner made in his petition that he had never been arrested for the offenses at issue. As discussed in Part III below, the trial court=s late notification to Boettner did not prevent him from properly presenting his case on appeal. Given the disposition of Boettner=s issues related to these matters, we address his remaining procedural issues only briefly because, even if Boettner established error, the types of error he alleges do not warrant reversal. Discussion I. The Docket Entries In issue one, Boettner contends the trial court erred or abused its discretion when, on the docket sheet, it noted as Aerror,@ its July 21, 2004 order granting expunction. The trial court=s docket sheet shows the following entries for July 21, 2004: AOrder Granting Expunction is signed@; AEntry of 7-21-04 made in error.@ The order granting expunction is not part of the appellate record, and there is no indication it was ever part of the clerk=s record in the trial court. Former Texas Code of Criminal Procedure Article 55.02 section 2(c) provided that the court Ashall set a hearing on the [expunction petition] no sooner than thirty days from the filing of the petition and shall give reasonable notice of the hearing to each official or agency or other entity named in the petition by certified mail, return receipt requested.@ Act of May 30, 1999, 76th Leg., R.S., ch. 1236, ' 2, 1999 Tex. Gen. Laws 4279, 4280 (amended 2005) (current version at Tex. Code Crim. Proc. Ann. art. 55.02 ' 2(c) (Vernon Supp. 2005)). Appellant=s petition was filed June 23, 2004. Absent waiver, an order granting expunction rendered before the thirty-day waiting period violates the statute. See Rodriguez v. T.M.B., 812 S.W.2d 449, 449B451 (Tex. App.CSan Antonio 1991, no writ). Accordingly, the trial court correctly noted entry of the order was in error. We overrule Boettner=s issue one. II. Denial of the Petition for Expunction In issue eight, Boettner contends the trial court erred or abused its discretion in entertaining and granting the criminal district attorney=s Auntimely, erroneous, and prejudicially filed,@ first amended original answer. In his first amended original answer, the criminal district attorney argued the court should deny the petition because Texas Code of Criminal Procedure Article 55.01 requires that the person moving for expunction must have been placed under arrest for commission of the felony or misdemeanor for which he is seeking expunction of the records, and Boettner admitted he was never arrested for the six extraneous offenses. The trial court denied the petition for that reason. Article 55.01(a)(2), on which Boettner relies, provides: (a) 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 . . . (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) (Vernon Supp. 2005) (emphasis added), Thus, an arrest is the threshold requirement under the expunction statute on which Boettner relies. Lacafta, 965 S.W.2d at 570. A person is entitled to expunction only when all statutory conditions have been met, and the court has no equitable power to extend the clear meaning of the statute. Id. at 569. Given Boettner=s representation, repeated at least three times in his pleadings and motions, that he was not arrested for any of the six offenses at issue, the trial court correctly denied his petition for expunction. Boettner, however, relies on the following language in subsection (a)(2)(A) to argue the 1998 arrest brings him under the statutory requirements: Aan 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.@ Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A). Boettner appears to reason the six offenses for which he seeks expungement arose out of the 1996 sexual assault of F.T.M. (the Atransaction@ for which he states he was arrested in 1998) because they were introduced as extraneous offenses in his trial for the 1996 sexual assault. Boettner provides no authority for this novel interpretation of Article 55.01, and we have found none.[5] We overrule Boettner=s issue eight as it relates to the merits of the trial court=s denial of his motion. We address his remaining issue eight complaints in Part IV below. III. Untimely Notification of the Denial of the Petition In issue seven, Boettner complains, among other matters, that the trial court did not timely notify him of the September 30, 2004 denial of his petition for expunction, thereby obstructing this court=s jurisdiction and review. On February 10, 2005, this court abated the appeal and remanded the case to the trial court for a hearing and an entry of an order finding the date when Boettner first received notice or acquired actual notice the order was signed. See Tex. R. Civ. P. 306a(5); Tex. R. App. P. 4.2(c). The trial court found Boettner received notice on November 12, 2004. November 12, 2004, therefore determined Athe beginning of the periods prescribed by these rules for the court=s plenary power to grant a new trial . . . and for filing in the trial court the various documents that these rules authorize a party to file within such periods including, but not limited to, motions for new trial . . . and requests for findings of fact and conclusions of law.@ Tex. R. Civ. P. 306a(1); see id., sec. (4). This court has considered Boettner=s notice of appeal as timely filed, and has reviewed his issues on the merits. Accordingly, the untimely notification of the denial of Boettner=s petition did not preclude this court=s review of Boettner=s issues on the merits. We overrule Boettner=s issue seven as it relates to his contention error obstructed this court=s jurisdiction and review. IV. Remaining Allegations of Procedural Error In issues two and three, Boettner complains the criminal district attorney=s original answer was untimely and the trial court erred by Aentertaining@ it. As part of issue eight, he complains of the untimeliness of the criminal district attorney=s first amended answer. In issues six and seven, he sets forth a litany of complaints, arguing the trial court obstructed his due process rights and access to appellate court jurisdiction and review. In issue five, he complains the trial court did not inform him of its action on September 23, 2004.[6] One theme running through these overlapping and sometimes multifarious issues is a complaint that Boettner did not have an opportunity to respond to the criminal district attorney=s arguments or to be heard before September 30, 2004, the date the trial court denied his petition. A trial court may rule on a petitioner=s eligibility for expunction under subsection (a) of article 55.01 without holding a hearing when all of the facts necessary to determine the issue under subsection (a) are available to the court. See Ex parte Current, 877 S.W.2d 833, 839B40 (Tex. App.CWaco 1994, no writ).[7] As discussed in Part II, above, Boettner cannot succeed on the merits of his petition because he acknowledged in his pleadings that he has not been arrested for the offenses at issue. When a petitioner=s success on the merits is improbable, a trial court=s error in failing to conduct a hearing is harmless. See McCarroll v. Tex. Dep=t of Pub. Safety, 86 S.W.3d 376, 378 (Tex. App.CFort Worth 2002, no pet.). Here, because Boettner could not have succeeded on the merits of his expunction request, no harm resulted from the lack of a hearing. We overrule issues two, three, five, six, seven, and eight as they relate to Boettner=s alleged lack of notice of, or the trial court=s failure to hold, a hearing on his petition. As part of issue two, Boettner appears to contend he was entitled to expungement because the criminal district attorney did not timely answer the petition. In support he relies on Texas Rule of Civil Procedure 99, which provides, in part, that a civil citation is to give the following notice to a defendant: A>If you or your attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty days after you were served this citation and petition, a default judgment may be taken against you.=@ Tex. R. Civ. P. 99(c). If Boettner is arguing he was entitled to a default judgment on the basis of the criminal district attorney=s untimely answer, his argument fails because there is nothing in the record to show service of citation on the criminal district attorney. See Tex. R. Civ. P. 239 (providing default judgment may be taken if citation with the officer=s return thereon shall have been on file with clerk for requisite length of time). We overrule issue two as it relates to Boettner= contention he was entitled to a default judgment on his petition. Finally, in issue nine, Boettner contends the trial court acted outside its plenary power when, on January 19, 2005, it denied Boettner=s motion for new trial and entered its findings of fact and conclusions of law. Given November 12, 2004, as the date on which the period for post-judgment motions commenced, Boettner=s motion for new trial was timely filed on December 6, 2004. See Tex. R. Civ. P. 329b (motion for new trial to be filed prior to or thirty days after judgment signed). The trial court had plenary power Auntil thirty days after all such timely‑filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first.@ Tex. R. Civ. P. 329b(e). The motion would not have been overruled by operation of law until January 26, 2005. See Tex. R. Civ. P. 329b(c) (stating motion for new trial is overruled by operation of law if court does not determine such order by written motion within seventy-five days after judgment signed). The trial court acted within its plenary power when it denied Boettner=s motion for new trial and entered its findings of fact and conclusions of law. We overrule issue nine. Conclusion Although we do not endorse the manner in which the trial court proceeded to consider Boettner=s petition for expunction, we have found no reversible error in the proceedings about which Boettner complains, and therefore we overrule Boettner=s nine issues. Accordingly, we affirm the judgment of the trial court. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed December 6, 2005. Panel consists of Chief Justice Hedges and Justices Anderson and Frost. [1] The First Court of Appeals affirmed the judgment of conviction in Boettner v. State, No. 01‑00‑00250‑CR, 2000 WL 1831542 (Tex. App.CHouston [1st Dist.] Dec. 14, 2000, pet. ref=d) (not designated for publication). [2] See Tex. Code Crim. Proc. Ann. art. 55.01(a) (Vernon Supp. 2005). [3] After reviewing the clerk=s record and Boettner=s motion to have the trial court establish the date he received notice of the trial court=s order, this court abated the appeal and remanded the case to the trial court for a hearing and an entry of an order finding the date when Boettner first received notice or acquired actual notice the order was signed. The trial court found Boettner received notice on November 12, 2004. [4] Boettner raises the following issues: (1) whether the trial court erred or abused its discretion by noting as Aerror,@ its July 21, 2004 order granting expunction; (2) whether the criminal district attorney=s original answer was untimely filed, (3) whether the trial court erred or abused its discretion in entertaining the criminal district attorney=s original answer, (4) whether the trial court had illegal and biased ex parte communications with the criminal district attorney, (5) whether various entities Aabuse[d] discretion@ by not recording, filing, or serving an order reciting action taken at the Apre trial hearing,@ (6) whether various entities erred or abused their discretion Aby intentionally denying and/or obstructing [his] due process rights,@ (7) whether various entities erred or abused their discretion Aby intentionally denying and/or obstructing the appellate courts [sic] jurisdiction and review,@ (8) whether the trial court erred or abused its discretion in entertaining and granting the criminal district attorney=s Auntimely, erroneous, and prejudicially filed,@ first amended original answer, and (9) whether the trial court erred or abused its discretion Aby untimely entertaining, denying and/or answering, [his] motions for new trial and request for findings of fact and conclusions of law.@ On their face, and as developed, most of these issues are multifarious. We are not required to address multifarious issues. Willis v. Donnelly, 118 S.W.3d 10, 33 n.15 (Tex. App.CHouston [14th Dist.] 2003, pet. granted). [5] He may also be reasoning the extraneous offense arose out of the 1996 sexual assault because the victim of the extraneous offenses was the mother of the victim of the 1996 sexual assault and allegedly instigated the 1996 case because of she disliked Boettner. See Boettner, 2000 WL 1831542, at *2 (not designated for publication). Boettner also fails to provide authority for this interpretation of article 55.01. [6] The record is devoid of any indication the trial court held a hearing or took any action on September 23, 2004. The record is also devoid of any indication the trial court engaged in impermissible ex parte communication as Boettner argues in issue four. Accordingly, we overrule issue four. [7] There is no indication the trial court held a hearing before entering its order. This case is therefore distinguishable from cases in which courts have held a petitioner=s due process rights were violated when the trial court held a hearing on an expungement motion in the petitioner=s absence. See Heine v. Tex. Dep=t of Pub. Safety, 92 S.W.3d 642, 650 (Tex. App.CAustin 2002, pet. denied) (involving hearing at which department and state offered legal arguments, but called no witnesses); Ex parte Guajardo, 70 S.W.3d 202, 206 (Tex. App.CSan Antonio 2001, no pet.) (involving evidentiary hearing). We also note Boettner filed a motion requesting the court to dispose of the case through instruments submitted via mail, an apparent waiver of a hearing. Finally, in his motion for new trial and his argument before this court, Boettner has had the opportunity to present his legal response to the criminal district attorney=s argument.