Texas Department of Public Safety v. Jeremy Collmorgen

Reversed and Rendered and Memorandum Opinion filed March 22, 2007 Reversed and Rendered and Memorandum Opinion filed March 22, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-06-00478-CV ____________ TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant V. JEREMY COLLMORGEN, Appellee On Appeal from the 9th District Court Waller County, Texas Trial Court Cause No. 05-06-17870 M E M O R A N D U M   O P I N I O N Appellee Jeremy Collmorgen was arrested and indicted on one count of aggravated sexual assault of a child and two counts of indecency with a child. The indictments were subsequently dismissed and Collmorgen filed a petition for expunction of his criminal record. The trial court entered an order of expunction. We reverse and render judgment denying the petition. Factual and Procedural Background In September 2001, the Montgomery County Sheriff=s Department arrested Collmorgen and charged him with one count of aggravated sexual assault of a child and two counts of indecency with a child. In August 2003, the District Attorney dismissed the indictments against Collmorgen, citing the complaining witness=s request for dismissal. Two years later, Collmorgen petitioned to expunge the indictments from his criminal record. Appellant, Texas Department of Public Safety (hereafter ADPS@), denied all the allegations made in Collmorgen=s petition. The trial court held a hearing on the petition. Collmorgen testified that all charges had been dismissed against him at the request of the complaining witness and that he had not been convicted of a felony in the five years preceding the date of the arrest. DPS argued that Collmorgen had not presented any reason for the dismissal other than the lack of a prosecuting witness. Six months after the hearing, the trial court entered an Order of Expunction. In response to DPS=s request, the trial court entered findings of fact and conclusions of law. This appeal followed. Issues on Appeal On appeal, DPS raises two issues: (1) Collmorgen failed to produce any evidence that the indictment was based on mistake, false information, or other similar reason; and (2) the trial court abused its discretion in setting a hearing on a petition for expunction without notice to all respondents listed in the petition. Analysis of DPS=s Issues I. Collmorgen Failed to Produce Any Evidence That the Indictment Was Based on Mistake, False Information, or Other Similar Reasons A. The Expunction Statute An expunction proceeding is civil rather than criminal, and the petitioner has the burden of proving compliance with all statutory requirements. Harris County Dist. Attorney v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.CHouston [14th Dist.] 1997, no pet.). In addition, the court Ahas no equitable power to extend the clear meaning of the statute.@ Id.; Harris County Dist. Attorney=s Office v. M.G.G., 866 S.W.2d 796, 798 (Tex. App.CHouston [14th Dist.] 1993, no writ). Article 55.01(a)(2) of the Texas Code of Criminal Procedure provides that the following conditions must be met before a petitioner who was arrested and indicted for a felony or misdemeanor has the right to have their record expunged: (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. art. 55.01(a)(2)(A)B(C) (emphasis added). In this appeal, the only condition in question is whether the indictment was dismissed due to mistake, false information or other similar reason. See id. art. 55.01(a)(2)(A)(ii). This Court has found this condition is met under a variety of circumstances, including cases where (1) the indictment was based solely on the victim=s identification of the petitioner as her assailant and following the presentment the victim is unable make the identification, (2) the indictment was based on illegal hearings during which the petitioner was wrongfully denied the assistance of counsel, or (3) the petitioner was not given the opportunity to present to the grand jury exculpatory evidence and the trial court later quashed the indictment based on this evidence. Harris County Dist. Attorney=s Office v. Hopson, 880 S.W.2d 1, 4B5 (Tex. App.CHouston [14th Dist.] 1994, no writ); Harris County Dist. Attorney=s Office v. Burns, 825 S.W.2d 198, 201B02 (Tex. App.CHouston [14th Dist.] 1992, writ denied); Harris County Dist. Attorney=s Office v. R.R.R., 928 S.W.2d 260, 264 (Tex. App.CHouston [14th Dist.] 1996, no writ). Both the clear language of the statute and cases interpreting the statute dictate that the petitioner must assert evidence showing that the indictment was based on a mistake or false information. If the prosecutor dismisses simply because he believes he has insufficient evidence to convict, that is not mistake or false information. See Thomas v. State, 578 S.W.2d 691, 699 (Tex. Crim. App. 1979); M.G.G., 866 S.W.2d at 799. B. Standard of Review We review a trial court=s ruling on a petition for expunction for abuse of discretion. Heine v. Texas Dept. of Public Safety, 92 S.W.3d 642, 646 (Tex. App.CAustin 2002, pet. denied). A trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to any guiding rules and principles. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). A trial court=s findings of fact are reviewable for sufficiency of the evidence by the same standards applied in reviewing a jury=s answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). For an appellant to attack the legal sufficiency of an adverse finding on an issue on which he did not have the burden of proof, he must demonstrate on appeal that no evidence supports the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983) (noting that the Ano evidence@ point of error is appropriate when the party without the burden of proof complains of a jury finding). In reviewing no-evidence points of error, the reviewing court must consider all of the record evidence Ain a light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in such party=s favor.@ Harbin v. Seale, 461 S.W.2d 591, 592 (Tex. 1970). If the reviewing court finds more than a scintilla of evidence supporting the finding, the no-evidence challenge fails. See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996). AMore than a scintilla of evidence exists when the evidence supporting the finding, as a whole, >rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.=@ Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005) (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). This rule provides that it is the legal equivalent of no evidence Aif reasonable minds cannot differ from the conclusion that the evidence offered to support the existence of vital facts lacks probative force.@ Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). We review the trial court=s conclusions of law de novo as legal questions. See State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996). In performing a de novo review, we exercise our own judgment and redetermine each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). Conclusions of law will be upheld on appeal if the judgment can be sustained on any legal theory the evidence supports. Waggoner v. Morrow, 932 S.W.2d 627, 631 (Tex. App.CHouston [14th Dist.] 1996, no writ). C. The Evidence Introduced at the Hearing DPS argues that Collmorgen failed to meet his burden of asserting any evidence that the charge was dismissed due to a mistake, false information, or other similar reason indicating lack of probable cause. Having reviewed the record, we agree. The record on appeal presents only three pieces of evidence for review: Collomorgen=s testimony during the expunction hearing, the statement for non-prosecution by the father of the complaining witnesses, and the district attorney=s motion to dismiss.[1] Collmorgen=s testimony was limited to the following: Q. State your full name , sir. A. Jeremy Collmorgen. Q. Are you the same person who was indicted in the Criminal Cause Nos. 10,755, 756, 757 of this court? A. Yes, sir. Q. And you have filed an application for expungement of the records; is that correct? A. Yes, sir, I have. Q. This matter against you has been dismissed; is that correct? A. Yes, it has. Q. I want to show you a copy of the motion to dismiss that has been signed by this Court. Do you recognize that? A. Yes, sir, I do. Q. And does that dismissal say the complaining witness requested the dismissal? A. Yes. Q. Has that or have all three of those indictments against you been actually dismissed? A. Yes. Q. Have you been released from custody on all of those charges? A. Yes. Q. Are there any other charges arising from these circumstances? A. No, sir. Q. And at this time, have there been any final convictions or final results of these indictments? A. No. Q. Has there been any court-ordered probation? A. No, sir. Q. Were you released after this was filed on any sort of conditional bond? A. No. Q. In other words, you=re completely released from all of these charges; is that correct? A. Yes. Q. Have you been convicted of any felony in the past five years? A. None at all. Q. You=re asking that the Court sign this order of expungement so all of these agencies would receive a copy of this order? A. Yes, I am. Collmorgen thereby provided evidence relating to two of the three requirements for an expunction. Tex. Code Crim. Proc. art. 55.01(a)(2)(B)B(C). However, Collmorgen=s testimony offered no indication he had met the third condition, that his indictment was based on a mistake or false information. See id. art. 55.01(a)(2)(A)(ii). In the statement for non-prosecution by the father of the complaining witnesses, he provides the following reason for submitting the statement: My family and I have come to an agreement that if this could be dropped Jeremy would be moved out of town. That way if it did happen he would be out of the way of my kids. Also I [sic] tired of arguing with my family all the time about who is right and who is wrong. I want to stop the fighting. If this does continue to go to court I will lose the property I am living on becuase my folks would have to sell the property in order to pay the lawyer. I do not want my children to have to be on the stand and Sherry Robinson said they would have to testify. Nowhere in the statement does he suggest that the alleged victims made false or misleading statements that led to the presentment of the indictments. Finally, the district attorney=s motion to dismiss simply has a box checked on a pre-printed form noting that the complaining witness has requested dismissal. In short, here we have facts on the record showing that the indictment was dismissed only because of the complaining witnesses= desire not to testify. In fact, during the hearing the trial court recognized that A[t]here=s a big difference between an indictment being based upon false or misleading evidence, failure to have probable cause for a stop, and a reluctant witness who has filed an affidavit of nonprosecution.@ Moreover, the court stated Athe prosecution isn=t able to tell me they dismissed this because they felt this person was incompetent or this wasn=t truthful, all they=re doing is saying they don=t want to testify and we can=t make our case.@ D. A Witness=s Desire Not to Testify Does Not Equal Mistake or False Information These facts do not constitute mistake or false information. Case law makes this quite clear. This case presents a similar set of facts as those set forth in State v. Sink. 685 S.W.2d 403 (Tex. App.CDallas 1985, no writ). In Sink, the prosecutor dismissed the indictment when the trial judge ruled that the three-year-old complainant was incompetent to testify at trial. Id. at 404. Following the dismissal, Sink petitioned to expunge his record, offering only the State=s motion to dismiss as evidence. Id. The Dallas Court of Appeals found that the competency of the witness to testify before the grand jury is only relevant to the sufficiency of the evidence before that body and Adoes not prove that the grand jury acted on erroneous information.@ Id. at 406; see also Metzger v. Houston Police Dep=t, 846 S.W.2d 383, 385 (Tex. App.CHouston [14th Dist.] 1992, writ denied) (citing Sink and affirming the denial of the expunction petition because the petitioner proffered no evidence that Athe true reason for the prosecutor=s motion to dismiss was anything other than the trial court=s ruling on the competency of the child witness to testify@). The Court concluded by stating Athat a showing of insufficient evidence to convict beyond a reasonable doubt will not support expunction.@ Sink, 685 S.W.2d at 406. Similarly, in other sexual assault cases involving an unwilling or missing witness, courts have ruled this circumstance alone is not sufficient evidence to support an expunction. In Barker v. State, the prosecutor could not locate the complainant to testify in a second trial following a mistrial. 84 S.W.3d 409, 412 (Tex. App.CFort Worth 2002, no pet). The Fort Worth Court of Appeals held that both the inability to locate a complainant and the complainant=s lack of cooperation go to the Ainsufficiency 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.@ Id. at 413; see also Texas Dep=t of Pub. Safety v. Mendoza, 952 S.W.2d 560, 563 (Tex. App.CSan Antonio 1997, no writ) (holding that the prosecutor=s inability to locate a sexual assault witness and victim is only relevant to the sufficiency of the evidence and does not indicate a lack of probable cause). Having reviewed both the evidence presented and the relevant case law, we now turn to the trial court=s findings of fact. E. The Findings of Fact Are Not Supported by the Evidence The trial court=s findings of fact concerning the existence of mistake and false information are not supported by any evidence found in the record. The trial court=s findings of fact include that [t]he indictments presented against the petitioner have each been dismissed because the information provided to the Criminal District Attorney was found to be false and misleading, and therefore, the indictments were dismissed at the request of the complaining witnesses= parents. Further, the trial court=s conclusions of law include that [t]he indictments were 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 petitioner committed the offense. Collmorgen stresses that in order to ignore the findings we Amust find that they are so against the great weight and preponderance of the evidence as to be manifestly wrong.@ We have reviewed the record and found no evidence of mistake or false information. Moreover, Collmorgen has not cited us to any. It is clear from the discussion between the parties during the expunction hearing that there is history in this case that was not admitted into evidence. However, the trial court=s ruling must be based on the record at the hearing. Therefore, we find that the findings of fact are unsupported by the evidence and we sustain DPS=s first issue on appeal.[2] Conclusion We reverse the trial court=s judgment and render judgment denying Collmorgen=s petition for expunction. We also order any documents turned over to the trial court or petitioner be returned to the submitting agencies. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed March 22, 2007. Panel consists of Chief Justice Hedges and Justices Fowler and Edelman. [1] There are discussions during the hearing pertaining to inconsistencies in the victims= statements during several interviews they underwent and how these inconsistencies were the subject of an earlier appeal. While the trial judge may have factored some of the subject of these discussions into his decision, they were not introduced into evidence and we cannot consider them. Vanscot Concrete Co. v. Bailey, 862 S.W.2d 781, 783 (Tex. App.CFort Worth 1993), aff=d, 894 S.W.2d 757 (Tex. 1995) (holding that A[o]ur duty, as an appellate court, is to consider only the testimony adduced and the evidence tendered and/or admitted at the time of trial@). [2] Because we have reversed the trial court=s order of expunction, DPS=s second issue is moot and we do not reach it.