We note that neither party explains who Mr. Gonzalez might be.....hmmmmmm

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NUMBER 13-06-035-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG



TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,


v.


ROEL OLIVARES, Appellee.



On appeal from the 404th District Court

of Cameron County, Texas.



MEMORANDUM OPINION


Before Justices Rodriguez, Garza, and Benavides

Memorandum Opinion by Justice Rodriguez


Appellant, the Texas Department of Public Safety (DPS), appeals from the trial court's order expunging the arrest of appellee, Roel Olivares, from all public records. By two issues, DPS contends (1) that the trial court issued the expunction order in error because Olivares presented no evidence to support the expunction, and (2) that the court abused its discretion in resetting the expunction hearing without notice. We reverse and render.

I. Background

Olivares was arrested for driving while intoxicated, see Tex. Penal Code Ann. � 49.04 (Vernon 2003), and pled guilty to the charge. The trial court sentenced Olivares to twelve months' incarceration and ordered him to pay a $100 fine. The trial court suspended Olivares's sentence and placed him on probation for a period of twelve months.

Olivares later filed a petition to expunge his arrest from public records. The trial court set a hearing on Olivares's expunction petition for September 1, 2005. Pursuant to article 55.02 of the Texas Code of Criminal Procedure, the trial court sent notice of the petition and the September 1st hearing date to all parties believed to possess records of Olivares's arrest. See Tex. Code Crim. Proc. Ann. art. 55.02 (Vernon 2006). Both DPS and the Cameron County District Attorney filed an answer and special exceptions to the petition.

On September 1st, the date of the originally scheduled hearing on the expunction petition, the court signed an order setting a hearing for September 29th. The trial court's docket entry for September 1st reflects that (1) the September 29th hearing was related to the district attorney's special exceptions, and (2) the hearing on the expunction petition was reset for October 20th per the agreement of the parties.

The following reflects the complete transcription of the September 29th hearing:

The Court: Mr. de la Fuente, on your expunction, I'm just going to sign the order.


Defense Counsel: Very Well.


The Court: On 2005-07-3649, Olivares.


Defense Counsel: Yes, Your Honor.


The Court: All right.

Defense Counsel: Thank you, Judge. Let me make sure there is an order there, if not I'll get one to the Court.


The Court: They withdrew the special exception to this case and Mr. Gonzalez came in and I told him - - he told me that there would be an agreement and that they would withdraw their special exception and so I informed him that it was not necessary for him to appear.


Defense Counsel: Very well.


The Court: There is no opposition.


Defense Counsel: We ask the court to sign the order then, Judge.


The Court: I think you are going to have to get me one.


Defense Counsel: I will. (1)


The trial court signed an order of expunction on October 3rd and an amended order of expunction on October 13th. DPS moved for a new trial, arguing that no evidence was presented by Olivares and that Olivares was not entitled to the expunction as a matter of law. The trial court denied the motion, and this appeal ensued.

II. No Evidence

By its first issue, DPS contends that the trial court erred in granting Olivares's petition for expunction because Olivares presented no evidence to satisfy the statutory requirements for expunction. We agree.

A. Standard of Review

A trial court's order in an expunction proceeding is reviewed under an abuse of discretion standard. Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.-Austin 2002, pet. denied). The trial court must strictly comply with the statutory procedures for expunction, and it commits reversible error when it fails to do so. Ex parte Stiles, 958 S.W.2d 414, 418 (Tex. App.-Waco 1997, pet. denied).

In conducting a legal sufficiency review, we "view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). We will sustain a no evidence challenge when the record shows that (1) there is a complete absence of a vital fact, (2) the court is barred from considering the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. Id. at 810 (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)); Tex. Dep't of Pub. Safety v. Williams, 76 S.W.3d 647, 649 (Tex. App.-Corpus Christi 2002, no pet.)

B. Applicable Law

"The expunction statute was created to allow persons wrongfully charged to expunge their arrest records." Williams, 76 S.W.3d at 650 (citing Tex. Dep't of Pub. Safety v. Butler, 941 S.W.2d 318, 321 (Tex. App.-Corpus Christi 1997, no writ); State v. Knight, 813 S.W.2d 210, 212 (Tex. App.-Houston [14th Dist.] 1991, no writ)). Expunction is only available when all statutory conditions have been met. Id.; see Tex. Code Crim. Proc. Ann. art. 55.01-.02 (Vernon 2006). The petitioner has the burden of proving that all statutory requirements have been satisfied in order to be entitled to expunction. Williams, 76 S.W.3d at 650 (citing Butler, 941 S.W.2d at 321; Ex parte Scott, 818 S.W.2d 226, 227 (Tex. App.-Corpus Christi 1991, no writ)).

A petitioner, such as Olivares, who has neither been acquitted of the offense in the petition, nor convicted and subsequently pardoned, must show that each of the following conditions are met to be entitled to expunction:

(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 the 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).

C. Analysis

By its first issue, DPS contends that the trial court erred in granting Olivares's petition for expunction because Olivares presented no evidence to satisfy the statutory requirements for expunction. In response, Olivares argues that DPS is precluded from raising its no-evidence issue on appeal because (1) DPS was "bound by any representation by a party adverse to said proceeding," and, therefore, induced any purported error, and (2) DPS was required to raise its no-evidence challenge below and failed to do so. Therefore, before we reach the merits of DPS's first issue, we will first address Olivares's challenges to DPS's ability to raise its no-evidence issue on appeal.

To support his first argument, that DPS was "bound by any representation by a party adverse to said proceedings," and, therefore, induced any purported error, Olivares relies on Tex. Dep't of Pub. Safety v. Cryan, No. 14-04-00507-CV, 2005 Tex. App. LEXIS 6419 (Tex. App.-Houston [14th Dist.] Aug. 11, 2005, no pet.) (mem. op.). However, we find Cryan distinguishable from the instant case and conclude that Olivares's reliance on Cryan is without merit.

In Cryan, the district attorney appeared at the expunction hearing and argued as follows:

We did talk to the D.P.S. who filed an extensive answer [in this case]. I think he has talked to [Cryan's attorney] and talked to me. . . . The other two arrests [that did not result in deferred adjudication], we have no problem with expunging those records, but we would oppose any kind of expunction as far as the deferred adjudication is concerned at this point in time because I think, legally, it can not [sic] be done.


Based on this argument by the district attorney, the Fourteenth Court of Appeals found that the district attorney "expressly represented to the trial court that neither he, nor DPS, opposed expunction of records related to these arrests." See id. at *6 (emphasis added). In addition, the Fourteenth Court of Appeals concluded that (1) the district attorney's express representation that there was "no problem" with expunging certain records "clearly invited" error by the trial court, and (2) the district attorney, and the parties he represented at the hearing, could not inconsistently contend on appeal that the trial court erred by expunging the petitioner's records. See id. at *6-*7. The Fourteenth Court of Appeals further concluded that because DPS did not appear at the expunction hearing, the district attorney represented DPS's interests at the hearing. Id. at *7. As a result, the Fourteenth Court of Appeals held that "the district attorney's representation that neither he, nor DPS, opposed expunction of records . . . is binding on DPS and precludes DPS from challenging on appeal the legal sufficiency of the evidence to support expunction of records . . . ." Id. at *8.

Here, however, neither the district attorney nor DPS was present at the September 29th hearing. Although the trial court stated that "they withdrew the special exception to this case and Mr. Gonzalez came in and I told him - - he told me that there would be an agreement and that they would withdraw their special exception," it is unclear from the record who Mr. Gonzalez was. (2) In addition, it is unclear from the record what the context of any such would-be agreement was-whether it related to special exceptions, to the expunction, or to any other matter. Furthermore, other than the trial court's statement that "there would be an agreement," the record does not show an express representation of any such agreement by Mr. Gonzalez, himself; nor does the record show that Mr. Gonzalez expressly represented that DPS was part of any such agreement. Therefore, based on the record before us, we cannot conclude that (1) Mr. Gonzalez represented DPS's interest at the hearing, (2) DPS was bound by any would-be agreement, or (3) DPS invited any purported error by the trial court regarding the expunction of Olivares's arrest record. Thus, we cannot conclude that DPS is precluded from raising its no-evidence issue on this basis.

With respect to his second argument, Olivares asserts that DPS is precluded from raising its no-evidence challenge on appeal because DPS failed to raise its no-evidence challenge in the trial court. However, we conclude that Olivares's argument is without merit. First, DPS raised its no-evidence challenge in its motion for new trial, which the trial court denied. Moreover, it is well settled that when appealing from a non-jury trial, a legal sufficiency challenge may be raised for the first time on appeal. See Tex. R. App. P. 33.1(d) (providing that in a non-jury case, a legal sufficiency challenge may be raised for the first time on appeal in the complaining party's brief); Tex. R. Civ. P. 324(a), (b). Therefore, we conclude that DPS's no-evidence challenge is properly before this Court. Accordingly, we will now address the merits of DPS's no-evidence issue.

DPS contends that the trial court erred in granting Olivares's petition for expunction because Olivares presented no evidence to support the expunction. Specifically, DPS asserts that Olivares was required to prove that he satisfied the requirements of article 55.01(a)(2) of the Texas Code of Criminal Procedure in order to be entitled to expunction. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2). We agree.

It is well settled that the petitioner has the burden of proving that all statutory requirements have been satisfied in order to be entitled to expunction. Williams, 76 S.W.3d at 650. Because Olivares had neither been acquitted of the offense identified in the petition, nor convicted and subsequently pardoned for said offense, Olivares was required to prove that he satisfied the conditions set out in article 55.01(a)(2) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2). However, the record does not reflect that Olivares presented any evidence to prove satisfaction of these requirements. (3) Therefore, there is a complete absence of the vital facts necessary for Olivares to establish his entitlement to expunction. See City of Keller, 168 S.W.3d at 810; see also Williams, 76 S.W.3d at 649. Thus, we conclude that there is no evidence to support Olivares's expunction and that the trial court erred in ordering Olivares's records expunged. We sustain DPS's first issue.

Having sustained DPS's first issue, we need not address DPS's second issue regarding proper notice of the hearing. See Tex. R. App. P. 47.1.

III. Conclusion

Accordingly, we reverse the trial court's order and render judgment denying the expunction. Pursuant to DPS's prayer for relief, we order any documents surrendered to the trial court or to Olivares returned to the submitting agencies. See Ex parte Elliott, 815 S.W.2d 251, 252 (Tex. 1991) (per curiam) (providing that reversal of the order of expunction applies to all respondents, even if they did not participate in the appeal).

NELDA V. RODRIGUEZ

Justice


Memorandum Opinion delivered and

filed this 26th day of July, 2007.

1. 1
We note that the trial court's docket sheet entry for September 29th shows that the October 20th expunction hearing was canceled.

2. 2
We note that neither party explains who Mr. Gonzalez might be.

3. Moreover, we note that in order to have shown his entitlement to expunction, appellee would have had to prove, among other things, that his DWI charge did not result in a final conviction and that the trial court did not order community supervision for the offense. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(C). However, appellee does not dispute that the trial court convicted him of DWI and ordered him to complete twelve months of probation. Thus, even if appellee had presented some evidence as to the other statutory requirements for expunction, he would not have been able to prove his satisfaction of article 55.01(a)(2)(C). See id.

Yeah for Carlos Valdez.........it takesprecious time to do things right

Local
Kleberg official faces inquiry
Prosecutor may have intervened on behalf of aunt facing felony

By Dan Kelley (Contact)
Originally published 12:00 a.m., July 13, 2007
Updated 04:18 a.m., July 13, 2007
Isassi suggested politics might be behind the investigation.
Isassi suggested politics might be behind the investigation.



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Alfred Isassi describes himself as a career prosecutor. Since graduating from law school in 1999, he has handled felony cases for the District Attorney's Office, and now is the elected Kleberg County attorney, where he oversees misdemeanor prosecutions.

Isassi may find himself on the other side of the courtroom. A judge has appointed a special prosecutor to investigate a nearly two-year-old allegation that Isassi intervened improperly on behalf of an aunt, Anna Gonzalez, arrested on felony perjury charges after being accused of failing to disclose an earlier theft conviction when being chosen to serve on a grand jury.

Isassi hasn't been formally notified of an investigation.

District Attorney Carlos Valdez said the investigation stems from allegations that his former employee interfered with the Kleberg County's Pretrial Services Division. After Gonzalez was arrested, Valdez said, she was released from jail but had to comply with some terms of a pretrial release program.

Isassi is accused of calling the office and asking that his aunt not be made to comply with those terms because the district attorney was not going to prosecute. Valdez added that a witness told investigators Isassi said he had talked to the DA about the case. He had not, Valdez said.

"He never talked to any of us," Valdez said. He has recused his office from the case because he and two top aides could be made to testify.

Isassi said he was not able to recall any conversation with that department regarding the matter.

Valdez, as district attorney for the 105th Judicial District, prosecutes felony cases in Nueces, Kleberg and Kenedy counties. That will change in September when Gov. Rick Perry can appoint a district attorney for Kleberg and Kenedy counties, the result of new legislation passed this year.

Isassi is seeking that appointment.

District Judge Manuel Bañales appointed Retha Cable, an assistant district attorney in San Patricio and Aransas counties, to investigate and prosecute the matter if a grand jury hands up an indictment.

She declined to comment on the case, and said she would present some evidence to a grand jury on July 19.

Noel Peña, director of the Kleberg County Supervision and Direction Department, said his office has provided statements to investigators but declined to elaborate. He said he was surprised to hear that the investigation is still ongoing.

"I'm totally surprised that something developed," Peña said.

The 2005 arrest also caused problems for Gonzalez. At the time of her arrest, she had served on a grand jury for four months. Authorities discovered she had a theft conviction, making her ineligible for grand jury service. She was charged with perjury because she hadn't disclosed the conviction. Prosecutors had to re-present about 100 cases to the grand jury, Valdez said. She now is undergoing a pretrial diversion program that could lead to dismissal of charges.

Attempts to reach Gonzalez on Thursday were unsuccessful.

It is unclear why the case has taken so long to investigate. Valdez believes Kingsville police referred the matter to a federal agency.

Peña said he was unaware of any federal investigation.

Kingsville Police Chief Ricardo Torres declined comment.

Isassi suggested politics might lay behind the investigation.

"You're talking about something that happened over two years ago," Isassi said.

Isassi had just returned from visiting a prominent Republican -- he won't say who -- in hopes that the person would intercede with Perry to secure appointment to the district attorney's office.

Kleberg County Commissioner Romeo Lomas concurs that politics could play a role in the timing of the investigation.

"I think some might be political," Lomas said, "because he's given notice to everyone in the county that he is going to run for that DA."

Contact Dan Kelley at 886-4316 or kelleyd@caller.com

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Posted by sgran77482 on July 13, 2007 at 8:46 a.m. (Suggest removal)

Valdez trying someone for perjury???That is laughable!!!

Posted by colorderosa on July 13, 2007 at 10:05 a.m. (Suggest removal)

Politics, politics, politics, the dirty, lowdown and sometimes just plain hateful, even if true or false, it will bring anyone down and the people behind this, will be the winners and will surface when they run for this position. It's just too bad it had to happen in Kleberg County, AGAIN, and as usual the press and media will milk it for all they can.

Posted by newsman on July 13, 2007 at 10:21 a.m. (Suggest removal)

It is a shame but 95% of all politicians give the rest a bad name.

Posted by dannoynted1 on July 13, 2007 at 10:55 p.m. (Suggest removal)

Hello ~technically Ms. Anna is ineligible for pre trial diversion because she has been convicted of a "crime"!

Watt did she steal? or watt "theft"?

Did she steal an egg roll?

Did she steal "Mary Cano's milk money?

or maybe she indicted people because her nephew said so.

Posted by dannoynted1 on July 13, 2007 at 11:08 p.m. (Suggest removal)

i hope Alfred hires John Kearney that way they both can be "the prosecution" darlings they worked so hard in law school for.

How does it feel?

Perry progressive Vanos