Ex Parte David Lloyd Thomas--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-96-247-CV

EX PARTE DAVID LLOYD THOMAS,

Appellant

From the 52nd District Court

Coryell County, Texas

Trial Court # 28,565

CONCURRING AND DISSENTING OPINION

Thomas argues that the evidence is factually insufficient to support the court s conclusion that he failed to prove by a preponderance of evidence that the State dismissed his indictment because it was based on false information indicating a lack of probable cause. The majority agrees, concluding that the court s decision is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust.

The majority also addresses the appropriate construction to be given the expunction statute. My disagreement is not with the discussion of how the statute should be construed but with the court s conclusion that the evidence is factually insufficient to support the denial of Thomas petition for expunction.

CONSTRUCTION OF ARTICLE 55.01

The construction problems that can be encountered with the expunction statute are considerable. Justice Vance recently detailed some of the difficulties in applying this statute without enlarging on its plain wording or application. Ex Parte Andrews, No. 10-97-097-CV, slip op. at 3, 1997 WL 686083, at *4 (Tex. App. Waco Nov. 5, 1997, n.w.h.). Considering the variety of nuances that our sister courts have given the expunction statute, perhaps the time has come for our legislature to revisit this tortured statute. Thus, I concur in the majority s treatment of the second point in this cause. However, I respectfully dissent to the majority s resolution of Thomas factual sufficiency challenge for the reasons set forth below.

SUFFICIENCY OF THE EVIDENCE

As the State correctly argues, because Thomas does not contest the court s findings of fact, he cannot challenge the court s legal conclusions on the basis of factual insufficiency. See Browder v. Eicher, 841 S.W.2d 500, 502 (Tex. App. Houston [14th Dist.] 1992, writ denied); First Nat l Bank v. Kinabrew, 589 S.W.2d 137, 146 (Tex. App. Tyler 1979, writ ref d n.r.e.).

Moreover, assuming for the sake of argument that Thomas could challenge the factual sufficiency of the evidence, I cannot say that the court s conclusion is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985).

Whether Thomas daughter falsely accused him of sexual assault is vigorously contested. Thomas denies the charges. One of Thomas sons said he did not believe his sister was telling the truth about the allegations. All of Thomas children said they saw no indications that Thomas had sexually assaulted his daughter.

Gately testified that she requested a dismissal of the case because an outcry witness could not be located to comply with article 38.07. She explained that she felt V.T. s allegations were sufficiently corroborated to present to the jury because her review of the case left her with the impression that V.T. s mother would be an outcry witness and because her reports indicated that McKenna had overheard a telephone conversation during which V.T s mother asked V.T. whether Thomas had touched her again. //

McKenna testified that she believed the veracity of V.T. s allegations and knew that V.T. had experienced nightmares and other symptoms. Woods is an experienced caseworker who frequently must assess the credibility of victims when investigating their allegations. She also found V.T. s complaints to be credible.

From this testimony, the court could have inferred that nightmares and hysterics which V.T. experienced were consistent with the symptoms a person who had been sexually abused would experience. The court also could have inferred that V.T. ran away because she fears Thomas as a result of the alleged sexual abuse.

The evidence presented the court with a disputed fact issue it had to determine. As the finder of fact, the court was the sole judge of the credibility of the witnesses and the weight to be accorded their testimony. Harris County Dist. Attorney v. Small, 920 S.W.2d 740, 743 (Tex. App. Houston [1st Dist.] 1996, no writ) (citing Hudson v. Winn, 859 S.W.2d 504, 508 (Tex. App. Houston [1st Dist.] 1993, writ denied)). The court was in the best position to observe the demeanor of the witnesses and to make this determination. Even though we may disagree with the court s resolution of these issues, we may not substitute our judgment for the court s.

For these reasons, I would overrule Thomas first point and affirm the judgment. Because the majority does not do so, I dissent.

REX D. DAVIS

Chief Justice

Concurring and dissenting opinion

delivered and filed November 19, 1997

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