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D. J. H. v. Hays County District Attorney

Court of Appeals of Texas, Third District, Austin

May 1, 2018

D. J. H., Appellant
v.
Hays County District Attorney and Texas Department of Public Safety, Appellees

          FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT NO. 16-1798, HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Pemberton and Goodwin

          MEMORANDUM OPINION

          BOB PEMBERTON, JUSTICE

         D.J.H. appeals from an order of the district court denying his petition to expunge records related to his 2012 arrest and subsequent indictment for the felony charge of burglary of a habitation.[1] Finding no reversible error, we will affirm the order.

         D.J.H. sought expunction of the burglary charge based on Article 55.01(a)(2) (A)(ii)(b) of the Code of Criminal Procedure, which entitles "[a] person who has been placed under . . . arrest for commission of either a felony or misdemeanor" to have "all records and filed relating to the arrest expunged if, " as relevant here:

(1) "the person has been released";
(2) "the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered supervision under Chapter 42A for the offense";
(3) if a charging instrument was presented at any time following the arrest, it was "dismissed or quashed"; and
(4) "the court finds that the indictment or information was dismissed or quashed because . . . the person completed a pretrial intervention program authorized under Section 76.011, Government Code."[2]

         "Expunction . . . is not a constitutional or common-law right, but purely a statutory privilege, "[3] and D.J.H. thus bore "the burden of demonstrating that each of the[se] required conditions has been met."[4] Further, because the allegations in D.J.H.'s verified petition were joined through general denial by both the prosecutor (the Office of the Hays County Criminal District Attorney (the State)) and the Texas Department of Public Safety, with the former also appearing in opposition at the hearing on the petition, [5] D.J.H. was required to present evidence, not "just allegations in [a] verified pleading, " in order "to carry [his] burden of proof."[6]

         On appeal, we review the district court's order denying expunction under an overarching abuse-of-discretion standard.[7] With respect to the district court's determination of whether D.J.H. had met his evidentiary burden as to statutory requirements, this standard effectively reduces to whether D.J.H. has presented evidence establishing those requirements conclusively.[8]"Evidence is conclusive only if reasonable people could not differ in their conclusions."[9] We view the evidence in the light favorable to the district court's order, crediting favorable evidence if a reasonable fact-finder could, and disregarding contrary evidence unless a reasonable fact-finder could not.[10]

         The sole evidence D.J.H. presented at the expunction hearing consisted of what both sides acknowledge to be two court records from the criminal proceedings that had followed D.J.H.'s indictment for burglary of a habitation. The first document is a "Motion to Dismiss" signed by a representative of the State and filed on November 14, 2013. It states the following reason or ground for dismissing the burglary charge:

defendant has entered into a Deferred Prosecution Agreement for Burglary of a Habitation, Lesser included Criminal Trespass for 2 (Two) Years. Agreement on file. Dismissal conditioned on completion of agreement.

         At the bottom of the same document is a preprinted "Order" that was signed by a presiding district judge on the same day. It reflects merely that the "foregoing motion" had been ...


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