Texas Department of Public Safety v. S. L. W.--Appeal from 70th District Court of Ector County

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Becker v. State COURT OF APPEALS




No. 08-02-00353-CV)


Appeal from)


70th District Court)


of Ector County, Texas)


(TC# A-113,238)

The Texas Department of Public Safety (DPS) appeals from a post-answer default judgment expunging S.L.W.'s criminal record. We reverse and render.


S.L.W. was arrested in 1972 and charged with possession of marihuana, a felony. She entered a plea of guilty and received a three-year probated sentence. On November 12, 1973, after S.L.W. had served one-third of her sentence, the trial court granted S.L.W.'s motion for early termination. The court permitted S.L.W. to withdraw her guilty plea and dismissed the indictment against her. The court released S.L.W. from the terms, penalties, and disabilities of her conviction.

Almost thirty years later, on April 18, 2002, S.L.W. filed a petition (1) to expunge her criminal records relating to the 1972 arrest and conviction. The trial court set the motion for hearing on May 20, 2002. DPS filed special exceptions, affirmative defenses, and an original answer on May 3, 2002. However, it did not appear at the May 20 hearing. S.L.W. introduced evidence in support of her expungement motion, and at the conclusion of the hearing, the trial court granted the expungement based on DPS's default.

DPS timely filed a motion for new trial on June 21, 2002. (2) It argued that the petition showed on its face that S.L.W. was not eligible for expunction as her pleadings alleged that she had been placed on probation. DPS made the same argument at the hearing held on July 18, 2002. The trial court did not immediately rule on the motion and it was later overruled by operation of law.

Prior to the hearing on the motion for new trial, DPS had filed a timely request for findings of fact and conclusions of law and a notice of past due findings. The trial court did not file the requested findings. DPS timely filed its notice of appeal.


In Issue Two, DPS challenges the legal sufficiency of the evidence supporting the order of expunction. DPS alleges that there is no evidence demonstrating that S.L.W. had not been convicted of a felony during the five years preceding the date of the arrest. S.L.W. initially responds that DPS failed to preserve its sufficiency complaint. Apparently conceding that she offered no testimony on the subject, she also argues that the affidavit attached to her petition is adequate to prove the element.

Preservation of Error

S.L.W. first argues that DPS was required to preserve its legal sufficiency complaint by raising the issue in the trial court. When appealing from a non-jury trial, an appellant is not required to preserve allegations of legal or factual insufficiency. Tex.R.App.P. 33.1(d); Tex.R.Civ.P. 324(a), (b). (3)

See also Renteria v. Trevino, 79 S.W.3d 240, 241 (Tex.App.--Houston [14th Dist.] 2002, no pet.); O'Farrill Avila v. Gonzalez, 974 S.W.2d 237, 248 (Tex.App.--San Antonio 1998, pet. denied). Contrary to S.L.W.'s position, a legal sufficiency claim may be raised for the first time on appeal. Renteria, 79 S.W.3d at 241-42; O'Farrill, 974 S.W.2d at 248. Even though DPS did not raise this legal sufficiency argument in its motion for new trial, we may review sufficiency of the evidence supporting the challenged element.

Standard of Review

In a bench trial, factual and legal sufficiency challenges to the trial court's findings of fact are reviewable under the same standards that are applied in reviewing evidence supporting a jury's answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Elias v. Mr. Yamaha, Inc., 33 S.W.3d 54, 62 (Tex.App.--El Paso 2000, no pet.). In considering a legal sufficiency or "no evidence" point, we consider only the evidence which tends to support the fact findings and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); El Paso County Hosp. Dist. v. Gilbert, 64 S.W.3d 200, 203 (Tex.App.--El Paso 2001, pet. denied). If more than a scintilla of evidence exists to support the questioned finding, the "no evidence" point fails. Garza, 395 S.W.2d at 823; Gilbert, 64 S.W.3d at 203.

Expunction of Criminal Records

DPS contends that S.L.W. failed to prove by legally sufficient evidence that she had not been convicted of a felony in the five years preceding the date of her original arrest. The parties do not agree which version of Article 55.01 applies in this case.

S.L.W.'s 1972 conviction pre-dated the expunction statute by five years. The Legislature first enacted Chapter 55 of the Code of Criminal Procedure in 1977. Acts 1977, R.S., 65th Leg., ch. 747, 1, 1977 Tex.Gen.Laws 1880. The original version of Article 55.01 provided:

A person who has been arrested is entitled to have all records and files relating to the arrest expunged if:


(1) an indictment or information has not been presented against him for an offense arising out of the transaction for which he was arrested;


(2) he has been released and the charge, if any, has been dismissed; and


(3) he has not been convicted of a felony in the five years preceding the date of the arrest.


Chapter 55 has been amended several times since 1977. Some of the amendatory acts have provided that the change in law applied only to arrests for offenses committed on or after the effective date of the amendment. See e.g., Acts 1989, 71st Leg., R.S. ch. 803 5, 1989 Tex.Gen.Laws 3668; Acts 1999, 76th Leg., R.S., ch. 1236, 5, 1999 Tex.Gen.Laws 4282. More recently, however, the Legislature has applied the amendments retroactively. See Acts 2001, 77th Leg., R.S., ch. 945, 5, 2001 Tex.Gen.Laws 1898 (providing that changes in law apply to arrest records and files created before, on, or after the effective date of the amendment); Acts 2001, 77th Leg., R.S., ch. 1021, 4, 2001 Tex.Gen.Laws 2237 (providing that changes in law apply to arrest records and files created before, on, or after the effective date of the amendment). Article 55.01 has since its inception required that the petitioner prove that she has not been convicted of a felony in the five years preceding the date of the arrest. Therefore, regardless of which version of Article 55.01 applies in this case, S.L.W. was required to establish this element.

S.L.W. did not produce any evidence at trial to show that she had not been convicted of a felony in the five years preceding her 1972 arrest, but she argues that the affidavit attached to her motion to expunge proves that she had no prior felony convictions. In the affidavit, S.L.W. states: "I had not been convicted of a felony in the five years preceding the date of the arrest or within the 29 years since." But she did not offer her affidavit into evidence at trial. Because this was a post-answer default judgment, as opposed to a no-answer default judgment, our sufficiency review cannot include S.L.W.'s pleadings or her affidavit. In a post-answer default, judgment cannot be entered on the pleadings because the plaintiff must offer evidence and prove her case as she would at a contested trial on the merits. Renteria, 79 S.W.3d at 242, citing Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). Consequently, it cannot be said that the non-appearing party has admitted the facts pled and the justice of the opponent's claim. See Stoner, 578 S.W.2d at 682. A post-answer default constitutes neither an abandonment of the defendant's answer nor an implied confession of any issues joined by the defendant's answer. Renteria, 79 S.W.3d at 242.

Having failed to offer any proof that she had not been convicted of a felony in the five years preceding the date of her 1972 arrest, the evidence is legally insufficient to support the expungement order. Accordingly, Issue Two is sustained. (4) We reverse the trial court's order granting expunction and render judgment denying expunction of all records related to S.L.W.'s 1972 possession of marihuana conviction.


October 2, 2003



Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

1. The document is styled "Motion to Expunge Records" but Article 55.02 of the Code of Criminal Procedure requires the filing of a verified petition. S.L.W.'s motion otherwise satisfies Article 55.02.

2. S.L.W. does not dispute that DPS's motion for new trial is considered timely filed by virtue of the "mail box" rule. See Tex.R.Civ.P. 5.

3. Prior to the 1997 amendment to the Rules of Appellate Procedure, it was well settled that a party need not preserve legal and factual sufficiency complaints in appeals from a bench trial. Former Rule of Appellate Procedure 52(d) specifically provided that a party desiring to raise legal or factual sufficiency complaints on appeal in a non-jury case was not required to comply with Rule 52(a)'s general preservation requirement. This provision was not carried forward into new Rule 33.1. The comment to the rule stated that former Rule 52(d), regarding motions for new trial, was omitted as unnecessary and it referred the reader to Tex.R.Civ.P. 324(a) and (b). We held in Wyler Industrial Works, Inc. v. Garcia, 999 S.W.2d 494, 504 (Tex.App.--El Paso 1999, no pet.) that Rule 33.1 requires preservation of sufficiency complaints. Although Wyler involved a challenge to the legal sufficiency of the evidence to support the jury's verdict, it implied that Rule 33.1 would also require preservation of sufficiency complaints in non-jury cases due to the exclusion of former Rule 52(d) from Rule 33.1. By footnote, we urged the Supreme Court to clarify the rule in subsequent amendments. Id. at 506 n.8. In 2002, the Supreme Court amended Rule 33.1 to reinstate former Rule 52(d). See Tex.R.App.P. 33.1(d)(effective January 1, 2003). DPS filed its motion for new trial prior to the effective date of Rule 33.1(d), but its appeal was pending on the effective date of the rule. Because the amended rule is remedial in nature, we will apply the rule retroactively. See Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex. 2002); Ex parte Abell, 613 S.W.2d 255, 260 (Tex. 1981)(orig. proceeding).

4. It is unnecessary to address DPS's contention raised in Issue One regarding the trial court's failure to file findings of fact and conclusions of law.

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