                                                       FILED
                                                       15-0345
                                                       5/11/2015 6:16:08 PM
                                                       tex-5239748
                                                       SUPREME COURT OF TEXAS
                                                       BLAKE A. HAWTHORNE, CLERK

                              15-0345
                          NO. ________________
                                  IN THE
                      SUPREME COURT OF TEXAS
                             AUSTIN, TEXAS


                                    J.S.
                                 Petitioner
                                     v.
                         THE STATE OF TEXAS,
                                Respondent

                          Eighth Court of Appeals
                          NO. 08-13-00275-CV
                    Appeal in Cause No. 2013DCV2701



                         PETITION FOR REVIEW
                        Oral Argument not requested.



SUBMITTED:

FOR PETITIONER:
MATTHEW "MATEO" DEKOATZ
P.O. BOX 1886
El Paso, Texas 79950
T.B.L. No. 05722300
Phone: 915-626-8833; fax: 915-541-8892
E-mail: mateodekoatz@yahoo.com




                                     1
IDENTITY OF INTERESTED PARTIES, COUNSEL AND TRIAL JUDGES
FOR RESPONDANT, THE STATE OF TEXAS

Hon. Jo Anne Bernal, El Paso County Attorney
500 E. San Antonio, Room 503
El Paso, Texas 79901
Phone: 915-546-2050; Fax: 915-546-2133
jbernal@epcounty.com

APPELLATE COUNSEL FOR THE STATE:
Amy Monsivais, Esq.
Assistant County Attorney for the El Paso County.
500 E. San Antonio, Room 503
El Paso, Texas 79901
Phone: 915-546-2050; Fax: 915-546-2133
amonsivais@epcounty.com


TRIAL COUNSEL FOR THE STATE OF TEXAS:
Amy Monsivais, Esq.
(Information directly above.)


IDENTITY OF TRIAL JUDGES:
Hon. Sergio Enriquez
448th Judicial District Court
500 East San Antonio, Room 404
El Paso, Texas 79901
Phone: 915-543-3893; Fax: 915-834-8263
senriquez@epcounty.com




                                        2
TABLE OF CONTENTS                                                                        PAGE NO.

IDENTITY OF INTERESTED PARTIES AND COUNSEL...................................2

TABLE OF AUTHORITIES.....................................................................................4

STATEMENT REGARDING ORAL ARGUMENT.................................................5

PRELIMINARY STATEMENT OF THE CASE......................................................5

PROCEDURAL HISTORY.......................................................................................6

STATEMENT OF JURISDICTION…………………….............…………………6

I. GROUNDS/QUESTIONS PRESENTED FOR REVIEW...................................7

    SOLE ISSUE: WHETHER THE COURT OF APPEALS ERRED IN
    UPHOLDING THE JUDGMENT DENYING EXPUNCTION WHEN THE
    STATE FAILED TO PROVE ITS AFFIRMATIVE DEFENSE OF
    WAIVER OF PETITIONER’S STATUTORY RIGHT TO EXPUNCTION?

II. STATEMENT OF THE FACTS........................................................................7

III. SUMMARY OF ARGUMENT..........................................................................8

IV. INTRODUCTION..............................................................................................9

V. THE COURT'S DECISION..........................................................9 [Appendix 1]

VI. ARGUMENT AND AUTHORITY………………….................…...……10-14

VII. CONCLUSION...............................................................................................14

PRAYER FOR RELIEF..........................................................................................14

ACKNOWLEDGMENT OF SERVICE..................................................................15

CERTIFICATE OF COMPLIANCE………………………………...................…15

APPENDIX ………………………………………………………......................16

                                                       3
TABLE OF AUTHORITIES


STATE CASES                                                                      PAGE NO.

Davis v. State, 817 S.W. 2d 345, 346 (Crim. App. 1991)........................................14

Hayden v. State, 66 S.W.3d 269, 273 (Tex. Crim. App. 2001)................................12

Hicks v. State, 525 S.W.2d 177 (Tex. Crim. App. 1975).........................................13

Hughen v. State, 297 S.W.3d 330, 337 (Crim. App. 2009)......................................14

Light v. State, 15 S.W.3d 104, 105 (Crim. App. 2000)............................................14

Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim. App. 1996)...................................12

Resanovich v. State, 906 S.W.2d 40, 42 (Tex. Crim. App. 1995)............................13

Yarborough v. State, 947 S.W.2d 892 (Tex. Crim. App. 1997)...............................13


CONSTITUTIONAL, STATUTES, AND RULES

Texas Code of Criminal Procedure, Section 55.01……....……......................……..9

Texas Rules of Appellate Procedure, Rule 41.1(a)…….....………................…….14

Texas Rules of Appellate Procedure, Rule 47.1………...………….......................14

Texas Rules of Appellate Procedure, Rule 53.1………….....…….....................…..6

Texas Rules of Appellate Procedure, Rule 56.1…………..........................………..7




                                                4
                                         J.S.,
                                      Petitioner


                                          v.


                             THE STATE OF TEXAS,

                                      Respondent

                             PETITION FOR REVIEW



To the Honorable Texas Supreme Court:


Comes now the Petitioner, J.S. by and through his undersigned counsel, in
the above-styled and numbered cause, and respectfully urges the Court to
grant review in this case, pursuant to the Rules of Court.


STATEMENT REGARDING ORAL ARGUMENT:
Petitioner does seek oral argument.

PRELIMINARY STATEMENT OF THE CASE

Petitioner sought to expunge his misdemeanor case based upon his successful

completion of pretrial diversion, dismissal of the case, and the fact that limitations

had expired.    Rr1-3-6.   The State argued that Petitioner waived his right to

expunction by participating in the pretrial diversion program. Rr1-9. The trial

court denied the expunction. Rr1-9.

                                          5
PROCEDURAL HISTORY:

The Court's Decision:      On March 4, 2015, and in a published opinion, the

Honorable Eighth Court of Appeals affirmed the judgment of the trial court which

denied relief to Petitioner under his petition for expunction of records relating to

his misdemeanor case. Petitioner timely filed his motion for rehearing, which was

denied by the Court on April 15, 2015. Accordingly, Petitioner timely files the

instant petition for review.



STATEMENT OF JURISDICTION:

The Honorable Supreme Court of Texas has jurisdiction to hear the instant petition

pursuant to Rule 53.1, et seq. of the Texas Rules of Appellate Procedure.




                                         6
I. GROUNDS/QUESTIONS PRESENTED FOR REVIEW:


      SOLE ISSUE: WHETHER THE COURT OF APPEALS ERRED IN
      UPHOLDING THE JUDGMENT DENYING EXPUNCTION
      WHEN THE STATE FAILED TO PROVE ITS AFFIRMATIVE
      DEFENSE OF WAIVER OF PETITIONER’S STATUTORY RIGHT
      TO EXPUNCTION?

      THE COURT OF APPEALS ERRED IN UPHOLDING THE
      JUDGMENT DENYING EXPUNCTION WHEN THE STATE
      FAILED TO PROVE ITS AFFIRMATIVE DEFENSE OF WAIVER
      OF PETITIONER’S STATUTORY RIGHT TO EXPUNCTION.


Texas Rules of Appellate Procedure, Rule 56.1:

(5) whether the court of appeals appears to have committed an error of law of such

importance to the state’s jurisprudence that it should be corrected; and

(6) whether the court of appeals has decided an important question of state law that

should be, but has not been, resolved by the Supreme Court?

Petitioner notes that the Hon. Court of Appeals deemed the instant case sufficiently
important to Texas jurisprudence by publishing the opinion concerning the issue in
the case at bar.

II. STATEMENT OF THE FACTS:

Petitioner sought to expunge his misdemeanor case based upon his successful

completion of pretrial diversion, dismissal of the case, and the fact that limitations

had expired.       Rr1-3-6.   The State argued that Petitioner waived his right to



                                           7
expunction by participating in the pretrial diversion program. Rr1-9. The trial

court immediately denied the expunction. Rr1-9.



Petitioner argued that there was no evidence in the record that Petitioner waived

his right to expunction. Rr1-9. The trial court did not believe that the State was

required to prove that Petitioner waived his right to expunction. Rr1-9. State’s

exhibit 1 indicates that Petitioner did not waive his right to expunction. Rr1-10.

As a point of fact, Petitioner specifically indicated that he did not waive his right to

expunction. Rr1-11-12.



Petitioner sought to take testimony of County Attorney employee, Margie Medina.

Without any explanation, the trial court granted the State’s motion to quash

subpoena. Rr1-14. Petitioner preserved a bill of exception and indicated that

Petitioner did not waive his right to expunction and that the County Attorney did

not oppose Petitioner’s action in not waiving his right to expunction. Rr1-14-15.

Petitioner reiterated that, in writing, he did not waive his right to expunction. Rr1-

16-17.



III. SUMMARY OF THE ARGUMENT:

Petitioner argues that the Court of Appeals erred by upholding the trial court’s


                                           8
judgment denying expunction. In El Paso County, defendants who participate in

the pretrial diversion program routinely waive their right to expunction when they

agree to participate in the pretrial diversion program. In the instant case, Petitioner

specifically wrote, in the pretrial diversion documents, that he did not waive his

right to expunction.    The State did not prove waiver of Petitioner’s right to

expunction, and the State did not offer proof to contradict Petitioner’s proof that he

did not waive his right to expunction.



IV. INTRODUCTION:

In his sole issue, Petitioner argues that the Honorable Eighth Court of Appeals

erred by affirming the judgment denying expunction relief when the State failed to

establish, even by a scintilla of evidence, that Petitioner waived his right to

expunction by merely participating in the El Paso County pretrial diversion

program. Petitioner offered evidence that he did not waive his right to expunction.

Other than the State’s mere assertion that Petitioner waived his right to expunction,

the State established no proof that Petitioner waived his right to expunction.



V. THE COURT'S DECISION:

A copy of the lower court’s opinion is attached as Appendix 1. A copy of the

pertinent statute, Section 55.01 of the Texas Code of Criminal Procedure is


                                           9
attached as Appendix 2. A copy of the trial court’s judgment denying expunction

is attached as Appendix 3. A copy of the trial court’s letter denying Petitioner’s

motion for rehearing is attached as Appendix 4.




VI. ARGUMENT AND AUTHORITY:

      SOLE ISSUE: WHETHER THE COURT OF APPEALS ERRED IN
      UPHOLDING THE JUDGMENT DENYING EXPUNCTION
      WHEN THE STATE FAILED TO PROVE ITS AFFIRMATIVE
      DEFENSE OF WAIVER OF PETITIONER’S STATUTORY RIGHT
      TO EXPUNCTION?

      THE COURT OF APPEALS ERRED IN UPHOLDING THE
      JUDGMENT DENYING EXPUNCTION WHEN THE STATE
      FAILED TO PROVE ITS AFFIRMATIVE DEFENSE OF WAIVER
      OF PETITIONER’S STATUTORY RIGHT TO EXPUNCTION.




The Hon. Court of Appeals holds:

      It is undisputed that the State raised the affirmative defense of
      waiver in its answer. The only question is whether the evidence is
      legally sufficient to prove the defense. J.S. introduced into evidence
      the misdemeanor information showing he was charged with assault
      in cause number 20110C02776 (Petitioner’s Exhibit 1) and the
      motion to dismiss filed by the State (Petitioner’s Exhibit 2). The
      motion specifically recites that the State was moving to dismiss the
      case because J.S. had successfully completed the PTD Program. The
      judge of the County Criminal Court at Law No. 4 signed the order
      dismissing the case on May 29, 2013. The State introduced without

                                        10
      objection the PTD Agreement. The Agreement bears what appears to
      be J.S.’s signature immediately beneath the sentence waiving the
      rights to a speedy trial and expunction. The signature is similar,
      albeit not identical, to the signature at the bottom of the Agreement.
      J.S.’s attorney argued at the hearing that J.S. did not sign the
      document indicating he waived his rights and he instead wrote the
      words “not waived.” We have examined the writing and cannot say
      with any degree of certainty that it states “not waived.” The writing
      appears similar to J.S.’s signature at the bottom of the page. The trial
      court, as the trier of fact, determined this issue of fact and resolved it
      against J.S. Having viewed the evidence in the light most favorable
      to the judgment, we conclude that the evidence is legally sufficient
      to support the trial court’s implied finding that J.S. signed the PTD
      Agreement, including the waiver portion of the Agreement, and
      thereby waived his right to seek an expunction of the criminal
      records related to the assault case.
      Opinion, p14-15.



Petitioner notes that the State has offered no proof that Petitioner waived his right

to expunction. Record-Entire. The Court indicates that it cannot discern whether

Petitioner wrote “not waived” on the pretrial diversion application instrument. To

the contrary, there is no proof that Petitioner waived his right to expunction.

Petitioner did not waive his right to expunction, but the Court fails to address this

issue, and merely says it can’t tell. The State offered no proof in support of its

affirmative defense of waiver. Petitioner offered his proof by way of a bill, since

the trial court did not allow him to offer proof to the trial court. Petitioner’s offer

of proof was not contradicted by the State. The record and Petitioner’s appellate

brief indicate:


                                          11
      Petitioner sought to expunge his misdemeanor case based upon his
      successful completion of pretrial diversion, dismissal of the case, and the
      fact that limitations had expired. Rr1-3-6. The State argued that Petitioner
      waived his right to expunction by participating in the pretrial diversion
      program. Rr1-9. The trial court immediately denied the expunction. Rr1-9.
      Petitioner argued that there was no evidence in the record that Petitioner
      waived his right to expunction. Rr1-9. The trial court did not believe that
      the State was required to prove that Petitioner waived his right to
      expunction. Rr1-9. State’s exhibit 1 indicates that Petitioner did not waive
      his right to expunction. Rr1-10. As a point of fact, Petitioner specifically
      indicated that he did not waive his right to expunction. Rr1-11-12.
      Petitioner sought to take testimony of County Attorney employee, Margie
      Medina. Without any explanation, the trial court granted the State’s motion
      to quash subpoena. Rr1-14. Petitioner preserved a bill of exception and
      indicated that Petitioner did not waive his right to expunction and that the
      County Attorney did not oppose Petitioner’s action in not waiving his right
      to expunction. Rr1-14-15. Petitioner reiterated that, in writing, he did not
      waive his right to expunction. Rr1-16-17.


Because the State did not controvert Petitioner’s proof that he did not waive his

right to expunction, the State failed to establish that Petitioner did waive his right

to expunction. The Court of Appeals has failed to address this point, and Petitioner

believes that the Court was required to address this point. Texas law provides that

appellate courts accept as true factual assertions made by counsel which are not

disputed by opposing counsel." Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim.

App. 1996). In Hayden v. State, 66 S.W.3d 269, 273 (Tex. Crim. App. 2001), the

Court of Criminal Appeals said that, because a defendant had neither disputed the

state's claim before the trial court that witness statements described all of the

extraneous offenses nor attempted to have the witness statements placed in the


                                          12
record, "We assume, therefore, that the witness statements are as the State

represented them to be." In Resanovich v. State, 906 S.W.2d 40, 42 (Tex. Crim.

App. 1995), in which the defendant failed to dispute the state's submission

regarding a prior murder sentence, we said, "Because there were no objections

made to the State's undisputed observations, we hold that those observations

constitute valid proof in support of the State's submission." There are a long line

of cases holding that assertions of counsel should be taken as true." Texas courts

have applied this principle allowing appellate courts to accept as fact assertions

from both prosecutors and defense attorneys. Yarborough v. State, 947 S.W.2d 892

(Tex. Crim. App. 1997); Hicks v. State, 525 S.W.2d 177 (Tex. Crim. App. 1975).

This issue is an important one to Texas jurisprudence, and would be a worthwhile

issue to be addressed by the Hon. Supreme Court of Texas.




Petitioner’s counsel’s (bill of exception) statement that Petitioner specifically did

not waive his right to expunction, coupled with the writing that the Court says it

has difficulty in accepting, must be accepted as both true and sufficient to preserve

and support this issue for appellate review. Counsel for the State did not deny

Petitioner’s assertion. Petitioner’s statement, when made in open court without

being contradicted or disputed by either opposing counsel or the trial court,

provides evidence of the fact of occurrence that is being asserted. The trial court

                                         13
did not dispute it because the trial court chose not to hear it.




The Court of Appeals has not addressed this issue. Petitioner contends that the

Court of Appeals is, by law, required to address this issue, for the courts of appeals

are required to review every argument raised by a party that is necessary to the

disposition of that appeal.    Hughen v. State, 297 S.W.3d 330, 337 (Crim. App.

2009); Light v. State, 15 S.W.3d 104, 105 (Crim. App. 2000); TRAP, Rule 47.1,

41.1(a); Davis v. State, 817 S.W. 2d 345, 346 (Crim. App. 1991). Because the

Hon. Court of Appeals refused to address this issue, Petitioner respectfully looks to

the Hon. Supreme Court of Texas to determine this issue.




VII. CONCLUSION:

For the above reasons, Petitioner respectfully moves that his petition for review be

granted.



PRAYER FOR RELIEF

For all the above reasons, Petitioner respectfully prays that the Honorable Supreme

Court of Texas grant his petition for review. Petitioner thanks the Court.




                                           14
Respectfully submitted,

  /S/ M. DeKoatz
____________________________
MATTHEW "MATEO" DEKOATZ
PO BOX 1886
El Paso, Texas 79950
T.B.L. No. 05722300
Phone: 915-626-8833; Fax: 915-541-8892
E-mail: mateodekoatz@yahoo.com



CERTIFICATE OF COMPLIANCE: This Writ of Review contains 2,035 words

printed in a proportionally spaced typeface, Times New Roman, 14.



ACKNOWLEDGMENT OF SERVICE
Undersigned counsel hereby acknowledges that on this 29th day of April, 2015, a
copy of the above Petition for Review was sent via the Court’s electronic filing
system to the Hon. Jo Anne Bernal, County Attorney for El Paso County, Texas.


  /s/ M. DeKoatz
______________________________________
M. DEKOATZ, Attorney at Law




                                       15
                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS


                                                   §
IN THE MATTER                                                        No. 08-13-00275-CV
                                                   §
OF THE EXPUNCTION                                                       Appeal from the
                                                   §
OF J.S.                                                               448th District Court
                                                   §
                                                                   of El Paso County, Texas
                                                   §
                                                                     (TC# 2013DCV2701)
                                                   §

                                           OPINION

          J.S. appeals from an order denying his petition for expunction. Finding the evidence

legally sufficient to support the trial court’s implied finding that J.S. waived the right to seek an

expunction, we affirm.

                                     FACTUAL SUMMARY

          In 2011, J.S. was arrested for and charged with the offense of assault causing bodily

injury. The State of Texas and J.S. entered into an agreement whereby the State would dismiss

the charge if J.S. successfully completed the Pre-Trial Diversion Program (PTD). In exchange

for its promise to dismiss, the State required J.S. to waive his rights to a speedy trial and to seek

an expunction and both J.S. and the State signed the PTD Agreement.                J.S. successfully

completed PTD and the State dismissed the case in accordance with the Agreement.

          J.S. filed a petition for expunction pursuant to Article 55.01(a)(2)(B) of the Texas Code
of Criminal Procedure alleging that the statute of limitations for the assault offense had expired,

he had been released, the charge had not resulted in a final conviction and was no longer

pending, and there was no court-ordered community supervision.                                   See TEX.CODE

CRIM.PROC.ANN. art. 55.01(a)(2)(B)(West Supp. 2014). The State, represented by the El Paso

County Attorney, filed a general denial and raised as an affirmative defense J.S.’s written waiver

of the right to seek an expunction.1

         At the hearing on the expunction petition, J.S. introduced copies of the misdemeanor

information charging him with assault in cause number 20110C02776 (Petitioner’s Exhibit 1)

and the motion to dismiss filed by the State in the same case (Petitioner’s Exhibit 2). Appellees

introduced a copy of the PTD Agreement filed in cause number 20110C02776 (State’s Exhibit

1). The PTD Agreement, which is titled, “WAIVER OF SPEEDY TRIAL AND WAIVER OF

RIGHT OF EXPUNCTION AND VOLUNTARY AGREEMENT TO PARTICIPATE IN THE

PRE-TRIAL DIVERSION PROGRAM,” states the following in the first section of the

document:

                I understand that I have an absolute right to a speedy trial as provided by
         the Texas Code of Criminal Procedure (T.C.C.P.) Article 1.0 [sic]; Article I,
         Section 10 of the Texas Constitution; and the 6th Amendment of the United States
         Constitution.

                I further understand that I have the right in accordance with Article 55.01,
         T.C.C.P., to have any criminal record expunged if I successfully complete the
         Pre-Trial Diversion (PTD) Program in accordance with Article 55.01, T.C.C.P.

1
  The El Paso County Attorney filed the answer on behalf of the El Paso County Sheriff’s Office, El Paso County
Attorney’s Office, El Paso County Clerk’s Office, District Attorney’s Office, District Clerk’s Office, Records
Management and Archives, West Texas Community Supervision and Corrections Department (Probation), El Paso
County Court Administration and the Jail Magistrate. On appeal, the El Paso County Attorney has filed a reply brief
on behalf of “The State of Texas.” The opinion will likewise refer to the Appellees generally as “the State of Texas”
or simply “the State.”
                                                        -2-
              I hereby agree to voluntarily waive my rights to a speedy trial and
       expunction as set out by Articles 1.05 and 55.01 T.C.C.P., in accordance with
       Article 1.14 T.C.C.P., as a condition of my participation in the PTD
       Program. [Emphasis added].

Immediately beneath these statements is a line for the defendant’s signature. On that line is what

appears to be a signature in cursive handwriting.        The Agreement then sets forth several

conditions of the PTD Program. It is undisputed that J.S. signed the bottom of the Agreement

indicating that the waiver and agreement had been read or explained to him and he agreed to the

conditions of the PTD Program.

       J.S.’s attorney argued that J.S. did not waive his right to an expunction because he did not

sign the portion of the Agreement waiving his right to seek an expunction. He maintained

instead that J.S. had written the words “not waived.” Counsel asked the trial court to take

judicial notice that J.S. had signed the words “not waived.” The State responded to this request

by arguing that the writing on the signature line does not clearly state “not waived.” The trial

judge did not take judicial notice as requested, stating that the “exhibit speaks for itself” and he

would “take this into consideration.” At the conclusion of the hearing, the trial court denied the

petition for expunction.

                       WAIVER OF RIGHT TO SEEK EXPUNCTION

       In his sole issue, J.S. argues that the trial court abused its discretion by denying the

petition for expunction because he presented evidence establishing he had a right to an

expunction under Article 55.01(a)(2)(B) and Appellees failed to prove he had waived that right.

Alternatively, J.S. contends that the District Attorney’s policy of requiring him to waive his right


                                               -3-
to an expunction in exchange for participation in the PTD Program is against public policy.

                                       Standard of Review

       J.S. phrases his issue in terms of the abuse of discretion standard which is often applied to

an appeal from an expunction order. In this case, however, the arguments clearly implicate the

legal sufficiency of the evidence supporting the trial court’s implied findings that J.S. failed to

establish the statutory requirements under Article 55.01(a) or the State establish its affirmative

defense of waiver.     These implied findings must be analyzed under the traditional legal

sufficiency standard rather than the abuse of discretion standard. See In re S.D., 349 S.W.3d 76,

79-80 (Tex.App.--El Paso 2010, no pet.).

       We may sustain a legal sufficiency challenge only if the record discloses one of the

following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by

rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact;

(c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence

establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802,

810 (Tex. 2005). In determining whether a finding is supported by legally sufficient evidence,

we view the evidence in the light most favorable to the finding, crediting favorable evidence if a

reasonable fact finder could, and disregarding contrary evidence unless a reasonable fact finder

could not. Id. at 807. Further, we indulge every reasonable inference that would support the

finding. Id. at 822.

                                         Applicable Law

       The right to an expunction is a statutory privilege. In the Matter of the Expunction of


                                               -4-
A.G., 388 S.W.3d 759, 761 (Tex.App.--El Paso 2012, no pet.). When a party holding criminal

records opposes a petition for expunction, the petitioner must meet his burden of proof by

submitting evidence on each element of his claim. Id. All provisions in a statutory cause of

action are mandatory and exclusive and all conditions must be met before a person is entitled to

expunction. Id. A statutory expunction proceeding is civil rather than criminal in nature, and the

petitioner bears the burden of proving compliance with the statute. Id. As a general rule, the

trial court has no discretion to deny the petition if the petitioner meets his burden under the

statute. See In re A.G., 388 S.W.3d at 761. In this case, however, the State raised the affirmative

defense of waiver. See TEX.R.CIV.P. 94. Consequently, the State had the burden to both plead

and prove that J.S. had waived his right to seek an expunction. In the Matter of the Expunction

of J.E., 396 S.W.3d 231, 232 (Tex.App.--El Paso 2013, no pet.); In the Matter of the Expunction

of A.G., 388 S.W.3d at 762 n.1. If the State sustained its burden of both pleading and proving

that J.S. waived his right to seek an expunction of the records related to the assault case, the trial

court properly denied the petition for expunction and it is unnecessary for us to address whether

J.S. presented legally sufficient evidence to establish the statutory requirements for an

expunction under Article 55.01(a)(2).

                              Waiver of the Right to Seek Expunction

       It is well established that a criminal defendant can waive any rights secured him by law.

TEX.CODE CRIM.PROC.ANN. art. 1.14(a)(West 2005). This includes the statutory right to an

expunction. See In the Matter of the Expunction of Jones, 311 S.W.3d 502, 505-06 (Tex.App.--

El Paso 2009, no pet.); In the Matter of the Expunction of Arnold, 34 S.W.3d 583, 586-87


                                                -5-
(Tex.App.--El Paso 2000, no pet.).

        It is undisputed that the State raised the affirmative defense of waiver in its answer. The

only question is whether the evidence is legally sufficient to prove the defense. J.S. introduced

into evidence the misdemeanor information showing he was charged with assault in cause

number 20110C02776 (Petitioner’s Exhibit 1) and the motion to dismiss filed by the State

(Petitioner’s Exhibit 2). The motion specifically recites that the State was moving to dismiss the

case because J.S. had successfully completed the PTD Program. The judge of the County

Criminal Court at Law No. 4 signed the order dismissing the case on May 29, 2013. The State

introduced without objection the PTD Agreement. The Agreement bears what appears to be

J.S.’s signature immediately beneath the sentence waiving the rights to a speedy trial and

expunction. The signature is similar, albeit not identical, to the signature at the bottom of the

Agreement. J.S.’s attorney argued at the hearing that J.S. did not sign the document indicating

he waived his rights and he instead wrote the words “not waived.” We have examined the

writing and cannot say with any degree of certainty that it states “not waived.” The writing

appears similar to J.S.’s signature at the bottom of the page. The trial court, as the trier of fact,

determined this issue of fact and resolved it against J.S. Having viewed the evidence in the light

most favorable to the judgment, we conclude that the evidence is legally sufficient to support the

trial court’s implied finding that J.S. signed the PTD Agreement, including the waiver portion of

the Agreement, and thereby waived his right to seek an expunction of the criminal records

related to the assault case.

                                           Public Policy


                                                -6-
       Citing Montgomery v. Browder, 930 S.W.2d 772 (Tex.App.--Amarillo 1996, writ

denied), J.S. argues for the first time on appeal that the District Attorney’s policy of requiring a

defendant to waive his right to expunction in exchange for participation in the PTD Program is

against public policy.    We understand J.S. to argue that the waiver portion of the PTD

Agreement is void and unenforceable against him. J.S. did not present this argument in the trial

court as a basis for avoiding enforcement of the waiver provision. Consequently, it is waived.

See TEX.R.APP.P. 33.1. Having found the evidence legally sufficient to establish that J.S. waived

his right to seek an expunction, we overrule the sole issue presented on appeal and affirm the

judgment of the trial court.




March 4, 2015                                 ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.




                                               -7-
                        CODE OF CRIMINAL PROCEDURE

                 TITLE 1. CODE OF CRIMINAL PROCEDURE

           CHAPTER 55. EXPUNCTION OF CRIMINAL RECORDS

     Art. 55.01. RIGHT TO EXPUNCTION.   (a) A person who has
been placed under a custodial or noncustodial arrest for
commission of either a felony or misdemeanor is entitled to have
all records and files relating to the arrest expunged if:
           (1)  the person is tried for the offense for which the
person was arrested and
                (A)  acquitted by the trial court, except as
provided by Subsection (c) i or
                  (B)    convicted and subsequently:
                         (i)    pardoned for a reason other than that
described by Subparagraph (ii); or
                         (ii)   pardoned or otherwise granted relief
on the basis of actual innocence with respect to that offense,
if the applicable pardon or court order clearly indicates on its
face that the pardon or order was granted or rendered on the
basis of the person's actual innocence; or
           (2)   the person has been released and the charge, if
any, has not resulted in a final conviction and is no longer
pending and there was no court ordered community supervision
under Article 42.12 for the offense, unless the offense is a
Class C misdemeanor, provided that:
                  (A)    regardless of whether any statute of
limitations exists for the offense and whether any limitations
period for the offense has expired, an indictment or information
charging the person with the commission of a misdemeanor offense
based on the person's arrest or charging the person with the
commission of any felony offense arising out of the same
transaction for which the person was arrested:


                                                             APPENDIX 2
                     (i)  has not been presented against the
person at any time following the arrest, and:
                          (a)  at least 180 days have elapsed
from the date of arrest if the arrest for which the expunction
was sought was for an offense punishable as a Class C
misdemeanor and if there was no felony charge arising out of the
same transaction for which the person was arrested;
                          (b)  at least one year has elapsed from
the date of arrest if the arrest for which the expunction was
sought was for an offense punishable as a Class B or A
misdemeanor and if there was no felony charge arising out of the
same transaction for which the person was arrested;
                              (c)   at least three years have elapsed
from the date of arrest if the arrest for which the expunction
was sought was for an offense punishable as a felony or if there
was a felony charge arising out of the same transaction for
which the person was arrested; or
                              (d)   the attorney representing the
state certifies that the applicable arrest records and files are
not needed for use in any criminal investigation or prosecution,
including an investigation or prosecution of another personi or
                       (ii)   if presented at any time following the
arrest, was dismissed or quashed, and       the court finds that the
indictment or information was dismissed or quashed because the
person completed a pretrial intervention program authorized
under Section 76.011, Government Code, 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; or
                 (B)   prosecution of the person for the offense
for which the person was arrested is no longer possible because
the limitations period has expired.
      (a-1)   Notwithstanding any other provision of this article,
a person may not expunge records and files relating to an arrest
that occurs pursuant to a warrant issued under Section 21 ,
Article 42.12.
      (a-2)     Notwithstanding any other provision of this article,
a person who intentionally or knowingly absconds from the
jurisdiction after being released under Chapter 17 following an
arrest is not eligible under Subsection (a) (2) (A) (i) (a),   (b), or
(c) or Subsection (a) (2) (B) for an expunction of the records and
files relating to that arrest.
      (b)     Except as provided by Subsection (c), a district court
may expunge all records and files relating to the arrest of a
person who has been arrested for commission of a felony or
misdemeanor under the procedure established under Article 55.02
if:
              (1)   the person is:
                    (A)   tried for the offense for which the person
was arrested;
                    (B)   convicted of the offense; and
                    (C)   acquitted by the court of criminal appeals
or, if the period for granting a petition for discretionary
review has expired, by a court of appeals; or
              (2)   an office of the attorney representing the state
authorized by law to prosecute the offense for which the person
was arrested recommends the expunction to the appropriate
district court before the person is tried for the offense,
regardless of whether an indictment or information has been
presented against the person in relation to the offense.
      (c)     A court may not order the expunction of records and
files relating to an arrest for an offense for which a person is
subsequently acquitted, whether by the trial court, a court of
appeals, or the court of criminal appeals, if the offense for
which the person was acquitted arose out of a criminal episode,
as defined by Section 3.01, Penal Code, and the person was
convicted of or remains subject to prosecution for at least one
other offense occurring during the criminal episode.
      (d) A person is entitled to have any information that
identifies the person, including the person's name, address,
date of birth, driver's license number, and social security
number, contained in records and files relating to        arrest of
another person expunged if:
      (1) the information identifying the person asserting the
entitlement to expunction was falsely given by the person
arrested as the arrested person's identifying information
without the consent of the person asserting the entitlement;
and
      (2) the only reason for the information identifying the
person asserting the entitlement being contained in the arrest
records and files of the person arrested is that the information
was    sely given by the person arrested as the arrested
person's identifying information.

Added by Acts 1977, 65th Leg., p. 1880, ch. 747, Sec. I, eff.
Aug. 29, 1977.



Amended by Acts 1979, 66th Leg., p. 1333, ch. 604, Sec. I, eff.
Aug. 27, 1979;   Acts 1989, 71st Leg., ch. 803, Sec. I, eff.
Sept. I, 1989;   Subsec.   (2) amended by Acts 1991, 72nd Leg., ch.
14, Sec. 284(53), eff. Sept. I, 1991.    Amended by Acts 1993,
73rd Leg., ch. 900, Sec. 7.02(a), eff. Sept. I, 1993;     Acts
1999, 76th Leg., ch. 1236, Sec. I, eff. Aug. 30, 1999;     Subsec.
(a) amended by Acts 2001, 77th Leg., ch. 1021, Sec. I, eff.
Sept. I, 2001;   Subsec.   (d) added by Acts 2001, 77th Leg., ch.
945, Sec. I, eff. June 14, 2001;    Subsec.   (a) amended by Acts
2003, 78th Leg., ch. 1236, Sec. I, eff. Sept. I, 2003.
Amended by:
      Acts 2005, 79th Leg., Ch. 1309 (H.B. 3093), Sec. I, eff.
September I, 2005.
      Acts 2009, 81st Leg., R.S., Ch. 840 (S.B. 1940), Sec. 5,
eff. June 19, 2009.
      Acts 2009, 81st Leg., R.S., Ch. 1103 (H.B. 4833), Sec.
17(b), eff. September I, 2009.
     Acts 2011, 82nd Leg., R. S. , Ch. 690 (H.B. 351) , Sec. I,
eff. September I, 2011.
     Acts 2011, 82nd Leg., R. S. , Ch. 894 (S .B. 462) / Sec. 1,
eff. September 1/ 2011.
                                 COURT OF APPEALS
                              EIGHTH DISTRICT OF TEXAS
                                   EL PASO, TEXAS

                                              §
                                                             No. 08-13-00275-CV
                                              §
 IN THE MATTER                                                   Appeal from
                                              §
 OF THE EXPUNCTION                                           448th District Court
                                              §
 OF J.S.                                                   of El Paso County, Texas
                                              §
                                                            (TC # 2013DCV2701)
                                              §

                                         ORDER

       The Appellant’s motion for rehearing, having been duly considered, is denied.

Accordingly, it is ORDERED that said motion be and it is hereby denied.

       IT IS SO ORDERED THIS 15TH DAY OF APRIL, 2015.




                                    ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.
                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS


                                                   §
IN THE MATTER                                                        No. 08-13-00275-CV
                                                   §
OF THE EXPUNCTION                                                      Appeal from the
                                                   §
OF J.S.                                                              448th District Court
                                                   §
                                                                   of El Paso County, Texas
                                                   §
                                                                    (TC# 2013DCV2701)
                                                   §

                                         JUDGMENT

          The Court has considered this cause on the record and concludes there was no error in the

judgment. We therefore affirm the judgment of the court below. We further order that Appellee

recover from Appellant and his sureties, if any, see TEX.R.APP.P. 43.5, on the judgment and all

costs, for which let execution issue. This decision shall be certified below for observance.

          IT IS SO ORDERED THIS 4TH DAY OF MARCH, 2015.




                                               ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.
