Court of Appeals of Texas, Second District, Fort Worth
On
Appeal from County Criminal Court No. 1 Tarrant County, Texas
Trial Court No. 1271293
Before
Kerr and Birdwell, JJ; and Michael Massengale (Former
Justice, Sitting by Assignment)
MEMORANDUM OPINION
Michael Massengale Visiting Justice
This is
an appeal from the denial of a petition for nondisclosure of
criminal history information pursuant to recently enacted
provisions of Government Code chapter 411, subchapter E-1.
Appellant R.S. was charged with driving while intoxicated
with a blood alcohol content over 0.15, a Class A
misdemeanor. He pleaded guilty to a Class B misdemeanor and
was convicted. Appellant subsequently filed a petition for
nondisclosure of criminal history information related to the
offense. After a hearing, the trial court determined that
appellant was ineligible for the nondisclosure procedure and
that nondisclosure would not be in the best interest of
justice. The petition was denied, and appellant filed a
notice of appeal.
We
conclude that we have appellate jurisdiction because
appellant has asserted in good faith that the subjective
value of the requested order exceeds the minimum $250 amount
in controversy necessary in the absence of specific statutory
authorization to appeal. However, appellant has failed to
demonstrate reversible error in the trial court. While
appellant's contention that the trial court erred by
finding him ineligible to petition for a nondisclosure order
finds support in this court's recent interpretation of
the statute in State v. S.M.,[1] that argument
addresses only one part of appellant's burden to justify
a reversal. Because the trial court specifically found, after
a hearing, that an order of nondisclosure would not be in the
best interest of justice under the facts of appellant's
offense, and because appellant failed to preserve a record or
present any argument challenging that finding, we are
compelled to affirm the order of the trial court.
Background
After
being charged with Class A misdemeanor driving while
intoxicated in 2011, appellant pleaded guilty to a
lesser-included Class B misdemeanor DWI offense. The
plea-bargain agreement recited that appellant's
"breath/bloodresults" were ".16." The
trial court entered a probation order in 2013 that found
appellant "guilty of the offense as charged in the
information, a class B misdemeanor," imposed a $750 fine
and a 90-day jail sentence, and placed appellant on community
supervision for 18 months.
In
2017, appellant petitioned the trial court to issue an order
prohibiting criminal-justice agencies from disclosing to the
public "criminal history record information"
relating to the 2011 DWI offense. The State responded in
opposition, arguing that appellant was ineligible for the
nondisclosure procedure. The State noted that appellant's
conviction "was based on a plea to facts showing the
Driving While Intoxicated conviction involved a single car
accident and a Blood Test showing a blood-alcohol
concentration of 0.16, over the statutory limit [as] defined
in current Texas Penal Code Section 49.04(d)." The State
thus argued that appellant did not satisfy the statutory
conditions for nondisclosure because he was not
"convicted of driving under the influence with a
blood-alcohol concentration less than 0.15," and an
order of nondisclosure "would be contrary to legislative
intent and not in the best interest of justice." In
addition to the probation order, the State offered into
evidence proof of appellant's blood-alcohol test result
of 0.16.
Applying
Government Code section 411.0731, the trial court denied the
petition for nondisclosure. The five-page order recited that
a hearing on the merits had been held and that the court
carefully considered and reviewed the pleadings, evidence,
and arguments from counsel. In extensive fact findings and
legal conclusions, the trial court found that appellant had
been charged with a Class A misdemeanor offense for driving
while intoxicated and that the blood-test analysis showed his
blood-alcohol content to be 0.16 at the time of the analysis.
The court further found that appellant "entered a plea
of guilty to Driving While Intoxicated, an offense under
Texas Penal Code 49.04 with an accident and a BAC of
0.16" and that he "was found guilty by the trial
court for the listed offense, as described in the plea
documents."
The
trial court's order outlined the parties' competing
arguments and explained its legal conclusions, observing that
appellant was convicted "for a Driving While Intoxicated
offense under 49.04, Texas Penal Code involving an accident
and a BAC of 0.16." It reasoned that appellant's
punishment "included probation and an interlock under
Art. 42A, Texas Criminal Procedure," and therefore was
"'punishable' under provision of
49.04(d), Texas Penal Code." The trial court further
reasoned that "[t]here is no requirement under the
prohibition of Section 411.0731, Texas Government Code that
the person actually be 'punished' under
49.04(d)." The trial court concluded that the statute
"only authorizes the filing of a petition for
nondisclosure for Driving While Intoxicated offenses probated
under Art. 42A with less than a blood-alcohol content of
0.15, along with other mandatory statutory conditions,"
that appellant "failed to meet his burden by proving all
the statutory conditions for an order of nondisclosure, as
required [by] section[s] 411.0731 and 411.074 of the Texas
Government Code," and that "[a]n order of
nondisclosure would not be in the best interest of justice
under the facts of this offense." The trial court's
order further observed: "The statutory conditions are
mandatory and jurisdictional on the court. The court that
placed a person on community supervision has jurisdiction to
entertain a person's petition for nondisclosure only if
there is statutory authority to file the petition."
There
is no reporter's record of the hearing in the trial
court. Appellant filed a notice of appeal from the order
denying the petition for nondisclosure.
Analysis
Appellant's
argument on appeal is focused entirely on the trial
court's interpretation of statutory language found in
Government Code sections 411.0731 and 411.0736,[2] challenging the
determination that he was ineligible to seek the
nondisclosure remedy provided by those statutes. At the time
this case was briefed, argued, and submitted, there were no
reported appellate opinions interpreting or applying these
statutes, which were enacted in 2017.[3] Since then, this court has
issued the first appellate opinion applying section 411.0736,
which affirmed a trial court's order granting a petition
for nondisclosure over the State's objections that a
petitioner charged with Class A misdemeanor DWI based on
evidence of a blood alcohol content of 0.17, but who was
convicted of Class B misdemeanor DWI pursuant to a plea
bargain, had committed an offense "punishable"
under Penal Code section 49.04(d) and therefore was
ineligible for the nondisclosure procedure.[4]
I.
Appellate jurisdiction
As part
of the review of the record, this court considered whether it
has jurisdiction over this appeal from the trial court's
order denying the petition for nondisclosure.[5] Although
Government Code chapter 411, subchapter E-1 does not
expressly authorize an appeal from a trial court's ruling
on a petition for order of nondisclosure of criminal history
record information,[6] based on the general grant of appellate
jurisdiction over civil appeals,[7] this court has exercised
appellate jurisdiction over challenges to trial courts'
rulings on petitions for nondisclosure.[8] Appellant was
asked to address whether this appeal implicates the requisite
amount in controversy to invoke our appellate
jurisdiction.[9]
In
response, appellant referenced the "public criminal
record" that was the subject of the petition for
nondisclosure, asserting that it "will, by its nature,
have long-term implications that will exceed the amount in
controversy." Appellant noted that the hearing in the
trial court was not held on the record, and "as such
there is no record regarding the issue of damages."
Nevertheless, appellant contends that "[t]his
non-disclosure regards whether or not there will be a public
criminal record of the appellant for the conviction of
Driving While Intoxicated, which carries with it an obvious
societal stigma." Appellant argues that this is
"apparent in the legislature's decision to enact
this statute to give citizens in Texas an opportunity to
remove this from public records," and "the record
of ...