Affirm and Opinion Filed May 30, 2014




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-12-01173-CV

                           CHRISTOPHER BOTHWELL, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                            On Appeal from the 86th District Court
                                  Kaufman County, Texas
                               Trial Court Cause No. 85388-86

                                            OPINION
                         Before Justices FitzGerald, Fillmore, and Evans
                                 Opinion by Justice FitzGerald
       Appellant filed a petition for expunction of records pertaining to his indictment for

indecency with a child by sexual conduct, and the trial court denied the petition. In a single issue

on appeal, appellant asserts the trial court erred in denying his petition because the evidence is

sufficient to establish he is entitled to expunction. We affirm.

                                         BACKGROUND
       In 2008, appellant was arrested and subsequently indicted for indecency with a child by

sexual contact. The complainant is appellant’s daughter, Kirstie Bothwell. When prosecutor

Brandi Fernandez first met with Bothwell, Bothwell wanted to go forward with the prosecution.

She provided a written statement in which she described appellant kissing her inappropriately

and lying on top of her. She also said that “he would come into my room . . . and start kissing me
and touching me on my vagina and breast area. This happened several time[s] over a period of

time.” The statement also described another instance of inappropriate sexual contact.

          But Bothwell changed her mind about prosecuting the case, and sent Fernandez an

affidavit of non-prosecution. Over the course of several years, Bothwell recanted and then

reasserted her story several times, Fernandez believed Bothwell was emotionally unstable. As a

result, based on her understanding that there is no statute of limitations on the charged offense,

and out of concern for Bothwell’s mental health, the case was dismissed.

          Bothwell testified at the hearing on the petition for expunction. Her initial handwritten

statement was admitted into evidence, and Bothwell confirmed that she wrote it. Bothwell stated

that she was married and mature now, and wanted to tell the truth. She claimed that her mother

had coerced her into making the initial complaint about her father, and explained how her mother

had rehearsed her testimony with her. According to Bothwell, she made the false accusations

against her father because her mother had promised her that she would start being a “real

mother.” On cross-examination, Bothwell admitted that she could not recall how many times she

had recanted and then reasserted her story after her initial outcry.

          Fernandez also testified. She explained that when she received the affidavit of non-

prosecution from Bothwell and spoke with her on the phone, Bothwell told her that she was

caught in between her mother’s drama and her father’s drama. Fernandez stated her

understanding that the motivation for the affidavit of non-prosecution being signed was money

or gifts from appellant. At that time, Fernandez told Bothwell she would dismiss the case without

prejudice and then refile when Bothwell felt ready to move forward. But Fernandez cautioned

Bothwell that a jury might not believe her because of the affidavit of non-prosecution she had

signed.




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       Fernandez stated that she believed Bothwell was being truthful when she made her initial

outcry. She did not dismiss the case because of a lack of probable cause, but because she was

concerned about Bothwell’s emotional state. She further testified that she does not believe the

original indictment was presented by the grand jury due to fraud or mistake.

       At the conclusion of the hearing, the trial court denied appellant’s petition. The trial court

made findings of fact and conclusion of law. These findings included a finding that although the

victim would not be a credible witness, this fails to prove that the case was dismissed because the

indictment was based on fraud, mistake, or other circumstances that would indicate a lack of

probable cause. Consequently, the trial court concluded that appellant failed to satisfy his burden

to prove his entitlement to expunction.

                                           ANALYSIS
       In a single issue, appellant argues the trial court erred in denying his petition for

expunction. Specifically, he asserts the evidence was sufficient to establish that the indictment

was dismissed because of mistake, false information, or similar reason indicating an absence of

probable cause.

       The remedy of expunction allows a person who has been arrested for the commission of

an offense to have all information about the arrest removed from the State’s records. See Tex.

Dep’t of Pub. Safety v. Nail, 305 S.W.3d 673, 674 (Tex. App.—Austin 2010, no pet.). Article

55.01 of the Texas Code of Criminal Procedure governs a petitioner’s right to an expunction,

which is purely a matter of statutory privilege. Id.; see also TEX. CODE CRIM. PROC. ANN. art.

55.01 (West Supp. 2013). A statutory expunction is a civil proceeding, and the petitioner bears

the burden of proving that he has complied with the statutory requirements. Collin Cnty.

Criminal Dist. Attorney’s Office v. Dobson, 167 S.W.3d 625, 626 (Tex. App.—Dallas 2005, no

pet.); Houston Police Dep’t v. Berkowitz, 95 S.W.3d 457, 460 (Tex. App.—Houston [1st Dist.]

2002, pet. denied).
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       We review the trial court’s ruling on a petition for expunction under an abuse of

discretion standard. Tex. Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.—

Houston [14th Dist.] 2008, no pet.); Heine v. Tex. Dep’t of Pub. Safety, 92 S.W.3d 642, 646

(Tex. App.—Austin 2002, pet. denied). A trial court abuses its discretion if it acts in an arbitrary

or unreasonable manner without reference to any guiding rules or principles. Cire v. Cummings,

134 S.W.3d 835, 838–39 (Tex. 2004).

       Section 55.01 of the code of criminal procedure provides in pertinent part that a person

arrested for commission of a felony is entitled to have the records and files of the arrest

expunged if the indictment or information has been dismissed or quashed, and

       the court finds that the indictment was dismissed or quashed . . . because the
       presentment had been made because of mistake, false information, or other
       similar reason indicating absence of probable cause at the time of the dismissal to
       believe the person committed the offense, or because the indictment or
       information was void.

TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2)(A)(ii) (West Supp. 2012). Appellant contends

these elements were met.

       But the trial court did not find Bothwell to be a credible witness. The judge found that

“although [Bothwell] testified that she has repeatedly recanted her accusations, she also agreed

that she wrote the statement . . . in which she accused the petitioner of the offenses in question.”

The court also found that Bothwell could not recall how many times she had recanted and re-

asserted the allegations against appellant. Conversely, the trial judge found that Fernandez is

credible and her testimony “worthy of belief,” and Fernandez did not dismiss the indictment

because there was insufficient probable cause to believe an offense had been committed. As the

trier of fact in this proceeding, it was the trial court’s responsibility to weigh the evidence and

choose between competing testimony. See Garret v. State, 619 S.W.2d 172, 174 (Tex. Crim.




                                                –4–
App. 1981). We defer to these determinations of credibility. See Guzman v. State, 955 S.W.2d

85, 89 (Tex. Crim. App. 1997).

       On this record, we cannot conclude the trial court’s decision was an abuse of discretion.

The trial court’s order is affirmed.




       Do Not Publish
       TEX. R. APP. P. 47                          /Kerry P. FitzGerald/
       121173F.U05                                 KERRY P. FITZGERALD
                                                   JUSTICE




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

CHRISTOPHER BOTHWELL, Appellant                    On Appeal from the 86th District Court,
                                                   Kaufman County, Texas
No. 05-12-01173-CV        V.                       Trial Court Cause No. 85388-86.
                                                   Opinion delivered by Justice FitzGerald.
THE STATE OF TEXAS, Appellee                       Justices Fillmore and Evans participating.

       In accordance with this Court’s opinion of this date, the order of the trial court is
AFFIRMED.
       It is ORDERED that appellee THE STATE OF TEXAS recover its costs of this appeal
from appellant BOTHWELL, CHRISTOPHER.


Judgment entered May 30, 2014




                                                   /Kerry P. FitzGerald/
                                                   KERRY P. FITZGERALD
                                                   JUSTICE




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