                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                              NO. 09-18-00018-CV
                              NO. 09-18-00019-CV
                              NO. 09-18-00020-CV
                              NO. 09-18-00021-CV
                              NO. 09-18-00022-CV
                          ____________________

                   NIKOLAS ZANE GOODSON, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee


              On Appeal from the County Court at Law No. 4
                        Montgomery County, Texas
    Trial Cause Nos. 17-30377, 17-30378, 17-30379, 17-30380, & 17-30381


                         MEMORANDUM OPINION

      Appellant Nikolas Zane Goodson appeals from orders denying his petitions

for an order of nondisclosure in five causes under the pre-2015 version of section

411.081 of the Government Code. See Act of May 25, 2013, 83rd Leg., R.S., ch.

1146, § 1, 2013 Tex. Gen. Laws 2792, 2792-93 (amended 2015) (current version at

Tex. Gov’t Code § 411.0725). We affirm.
                                        1
                               Procedural Background

      On November 3, 2014, after Goodson entered guilty pleas, the County Court

at Law No. 4 in Montgomery County (the trial court) entered Orders of Deferred

Adjudication for Goodson in cause number 14-299576 on one count of evading

arrest, and in cause numbers 14-299577 and 14-299575 on two counts of burglary

of a vehicle. In each case, the trial court deferred adjudication, ordered community

supervision for a period of fifteen months, and a fine of $500 in each case. The trial

court entered an order in each matter. The trial court dismissed the charge of criminal

trespass in cause number 14-299414, and dismissed the charge of failure to identify

or giving false information in cause number 14-299578. The documents in the

appellate record include the orders of dismissal and a “Motion to Dismiss” signed

by the Assistant District Attorney for Montgomery County. The dismissal orders are

signed by the trial court. Both Motions to Dismiss include the following statement

“The Defendant was convicted in another case. 14-299575[.]” The Orders state:

              The foregoing motion having been presented to me on this the
      3[rd] day of Nov[.], A.D. 2014 and the same having been considered,
      it is, therefore, ORDERED, ADJUDGED, and DECREED that said
      above entitled and numbered cause be and the same is hereby
      dismissed.




                                          2
      On February 5, 2016, three orders of Dismissal Upon Completion of Deferred

Adjudication Community Supervision were entered in cause numbers 14-299576,

14-299577, and 14-299575. Each of the orders stated, in relevant part:

            Defendant is informed that he IS eligible to petition the Court for
      an order of non-disclosure.
            If eligible for an order on non-disclosure, the earliest date the
      Defendant will be eligible to file the petition is immediately[.]

      On November 16, 2017, Goodson filed five Petitions for [An] Order of

Nondisclosure for the offenses in cause numbers 14-299576, 14-299577, 14-299575,

14-299414, and 14-299578 (the “Nondisclosure Petitions”). In his Nondisclosure

Petitions, Goodson alleged that all conditions of section 411.081 of the Texas

Government Code had been met and that issuance of an order of nondisclosure

would be in the best interest of justice. Regarding the offenses charged in cause

numbers 14-299414 and 14-299578, Goodson argued that the orders dismissing the

charges “referenc[e] Cause No. 14-299575 as a case in which Petitioner was

‘convicted’[]” and that the dismissals give a “false impression” that Goodson was

convicted in 14-299575. Goodson argued that

             If an order of Nondisclosure in 14-299575 is issued, but this
      dismissal is not also non-disclosed, a false impression would be created
      for anyone that read the dismissal in this case, that Petitioner was
      actually convicted in 14-299575, thus defeating the purpose of a
      nondisclosure being granted in 14-299575 only, but not including this
      dismissal, which implies a conviction occurred in that case.

                                         3
The State filed an answer to the Nondisclosure Petitions opposing the request and

arguing that “entry of an order of nondisclosure is not in the best interest of justice,

because: [] the petitioner was placed on probation for 3 offenses, and as part of the

plea agreement 2 additional cases were dismissed.”

         The trial court held a hearing on the Nondisclosure Petitions wherein

Goodson’s       attorney argued      that   Goodson     “finished   all   the[]   deferred

adjudications[]” and

               . . . on the two dismissals, the dismissals referred to one of the
         deferred adjudications and actually states that he was convicted in that
         case, which he was never convicted in that case. He was placed on
         deferred. He completed his deferred, and it was dismissed. So those
         would be connected papers that if allowed to continue to exist would
         imply that he got convicted in one of these cases that we’re actually
         asking -- in other words, it wouldn’t be a full nondisclosure if that cause
         number is still hanging out there as though he had been convicted in
         both of those dismissals.

The State argued that “the spirit of [the statute] is if you have multiple offenses then

this doesn’t apply to you[]” and that “in the interest of justice, having multiple

deferred and dismissals would kind of [] go against the spirit of the nondisclosure

laws.”

         The trial court signed orders denying the Nondisclosure Petitions. Goodson

filed requests for finding of facts and conclusions of law in all five causes. The trial

court entered Findings of Fact and Conclusions of Law in all matters and the trial

                                             4
court found that as four of the cases—evading arrest, failure to identify by giving

false or fictitious information, and two offenses for burglary of a vehicle—arose out

of the same criminal episode, and the trial court found that the offense of criminal

trespass arose out of a separate criminal episode. The court also concluded:

            The petitioner is not granted an order of nondisclosure in cause
      numbers 17-30377, 17-30378, and 17-30379 pursuant to Texas
      Government Code section 411.0725 because this court has found that
      granting such an order is not in the interest of justice[.]

Goodson timely appealed.

                                       Issue

      In a single issue, Goodson argues that the trial court erred in denying his

Nondisclosure Petitions for an order of nondisclosure because the State cited no

authority for its argument that the offenses were “multiple” and because the

judgments dismissing cause numbers 14-299414 and 14-299578 erroneously state

that he was “convicted” in cause number 14-299575. Appellant also argues that the

State presented no evidence that denying the petitions would be in the interest of

justice. Appellant further argues that the State’s errors cannot otherwise be

corrected.

                                Standard of Review

      We review a trial court’s denial of a petition for nondisclosure under an abuse

of discretion standard. See White v. State, No. 01-15-00294-CV, 2015 Tex. App.
                                         5
LEXIS 12316, at *7 (Tex. App.—Houston [1st Dist.] Dec. 3, 2015, no pet.) (mem.

op.) (citing Jackson v. State, No. 14-13-00747-CV, 2014 Tex. App. LEXIS 12307,

at **3-4 (Tex. App.—Houston [14th Dist.] Nov. 13, 2014, no pet.) (mem. op.));

Wills v. State, No. 09-14-00373-CV, 2015 Tex. App. LEXIS 11100, at *7 (Tex.

App.—Beaumont Oct. 29, 2015, no pet.) (mem. op.). A trial court abuses its

discretion only if it has acted in an unreasonable or arbitrary manner, or has acted

without reference to any guiding rules and principles. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). An appellant bears the burden

of producing a record that shows the trial court abused its discretion. Simon v. York

Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987). We view the evidence in

the light most favorable to the trial court’s decision, and we indulge every legal

presumption in favor of the judgment. Ginn v. NCI Bldg. Sys., Inc., 472 S.W.3d 802,

837 (Tex. App.—Houston [1st Dist.] Aug. 13, 2015, no pet.) (citing Holley v. Holley,

864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ denied)). No abuse

of discretion is shown if some evidence of substantive and probative character exists

to support the trial court’s decision. Id.

      When findings of fact are filed and are unchallenged, they are entitled to the

same weight as a jury’s verdict. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 696

(Tex. 1986). They are binding on an appellate court unless the contrary is established

                                             6
as a matter of law, or there is no evidence to support the finding. Id. (citing Swanson

v. Swanson, 228 S.W.2d 156, 158 (1950)). We review de novo the conclusions of

law drawn by the trial court from the facts to determine their correctness. See BMC

Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).

                                      Analysis

      The record shows that the offenses at issue occurred in 2014. The statute in

effect at that time provided that

             . . . if a person [] placed on deferred adjudication community
      supervision under Section 5, Article 42.12, Code of Criminal
      Procedure, subsequently receives a discharge and dismissal under
      Section 5(c), Article 42.12, and satisfies the requirements of Subsection
      (e), the person may petition the court that placed the defendant on
      deferred adjudication for an order of nondisclosure under this
      subsection. . . . After notice to the state, an opportunity for a hearing,
      and a determination that the person is entitled to file the petition and
      issuance of the order is in the best interest of justice, the court shall
      issue a[] [nondisclosure] order . . . .

Act of May 25, 2013, 83rd Leg., R.S., ch. 1146, § 1(d), 2013 Tex. Gen. Laws 2792,

2792-93 (amended 2015). Here, the trial court’s findings of fact do not show that

Goodson was placed on deferred adjudication community supervision for the

offenses charged in cause numbers 14-299414 and 14-299578, and the record shows

that each was dismissed. The Legislature determined the class of persons eligible for

an order of nondisclosure, and we are bound to construe the statute as it is written.

See Wills, 2015 Tex. App. LEXIS 11100, at *5 (citing Tex. Lottery Comm’n v. First
                                      7
State Bank of DeQueen, 325 S.W.3d 628, 636-37 (Tex. 2010)). Under the statute in

effect at the time, the record does not support a conclusion that Goodson was eligible

to petition for an order of nondisclosure for the offenses charged in cause numbers

14-299414 and 14-299578 because nothing indicates that he was placed on deferred

adjudication community supervision in those cases. See Act of May 25, 2013, 83rd

Leg., R.S., ch. 1146, § 1(d), 2013 Tex. Gen. Laws 2792, 2792-93 (amended 2015).

      At the hearing, the State’s attorney argued that “in the interest of justice,

having multiple deferred and dismissals would kind of [] go against the spirit of the

nondisclosure laws.” The trial court found that the criminal charges in cause

numbers 14-229576, 14-299577, and 14-299575 arose out of the same criminal

episode and that Goodson pleaded guilty to such offenses. The trial court also

concluded that granting nondisclosure orders was not in the interest of justice. We

defer to the trial court’s findings of fact. See McGalliard, 722 S.W.2d at 696. On

this record, Appellant has not shown that the trial court acted arbitrarily or

unreasonably in its ruling. See Downer, 701 S.W.2d at 241-42; see also White, 2015

Tex. App. LEXIS 12316, at **13-14 (no error in denying petition for nondisclosure

as appellant had not shown it was outside the trial court’s discretion to determine

that a nondisclosure order was not in the interest of justice).



                                           8
      Appellant cites no legal authority in support of his argument that

nondisclosure was required because no other remedy was available to correct “the

State’s errors” in cause numbers 14-299414 and 14-299578 wherein it implied that

he was previously convicted in cause number 14-299575. Appellant failed to

adequately brief this argument. See Tex. R. App. P. 38.1(i); Fredonia State Bank v.

Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994). 1




      1
        The appellate record gives no indication whether Goodson filed a motion to
enter judgment nunc pro tunc or a motion to reform the judgment with the trial court
that heard the criminal cases in cause numbers 14-299414 and 14-299578 (the two
cases that Goodson alleges erroneously state that he was “convicted” in cause
number 14-299575). If such was a clerical error, he may have been able to seek a
nunc pro tunc order from the convicting court. See State v. Bates, 889 S.W.2d 306,
309 (Tex. Crim. App. 1994) (explaining that a trial court may modify, correct or set
aside judgments and orders through motions for new trial, motions to arrest
judgment and motions for judgment nunc pro tunc) (citing Tex. R. App. P. 30, 33,
& 36); Alvarez v. State, 605 S.W.2d 615, 617 (Tex. Crim. App. 1980) (explaining
that a trial court may enter a nunc pro tunc order to correct a clerical error in a
judgment). Assuming without deciding that the record supported a corrected or
reformed judgment of the criminal judgments for cause numbers 14-299414 and 14-
299578, Goodson should have addressed that request in a different forum and
directly to the criminal trial court. We may not reform his criminal judgments
because they are not before us in this proceeding (nor were they before the trial court
in the Nondisclosure Petitions). See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.
Crim. App. 1993).
                                           9
      We overrule Appellant’s issue, and we affirm the orders of the trial court.

      AFFIRMED.



                                                   _________________________
                                                      LEANNE JOHNSON
                                                            Justice


Submitted on September 7, 2018
Opinion Delivered October 18, 2018

Before McKeithen, C.J., Horton and Johnson, JJ.




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