                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                      No. 07-17-00202-CV


                                       EX PARTE J.D.F.


                             On Appeal from the 364th District Court
                                     Lubbock County, Texas
            Trial Court No. 2016-523-660, Honorable William R. Eichman II, Presiding

                                         May 1, 2019

                              MEMORANDUM OPINION
                      Before CAMPBELL and PIRTLE and PARKER, JJ.


       J.D.F., a prison inmate appearing pro se, filed a petition for expunction of records

pursuant to Chapter 55 of the Texas Code of Criminal Procedure.1                  The Texas

Department of Public Safety filed a general denial answer, and the State also appeared

in opposition to the petition.2 The hearing on J.D.F.’s petition was accomplished through


       1   See TEX. CODE CRIM. PROC. ANN. arts. 55.01-.06 (West 2018).
       2 Based on the reporter’s record it appears the State filed a general denial with the
court at the beginning of the hearing. TEX. R. CIV. P. 74. While the clerk’s record does
not contain the State’s answer, the State’s appearance at the expunction hearing
amounts to a general denial of the allegations in J.D.F.’s petition. Ex parte K.R.K., 446
S.W.3d 540, 544 (Tex. App.—San Antonio 2014, no pet.).
two brief trial-court settings. J.D.F., due to his incarceration, appeared by telephone while

the State’s attorney appeared in person. Presentation at the two settings was only by the

arguments of the parties setting out their respective positions for the court. No evidence

was admitted. At J.D.F.’s request, without objection, the court took judicial notice of the

following facts:


       An indictment, charging J.D.F., was presented on July 12, 2011, and was
       file marked the following day, July 13, 2011.
       Count I of the indictment alleged J.D.F. committed the offense of sexual
       performance of a child[3] on or about April 22, 2010.
       Count II of the indictment alleged compelling prostitution[4] on or about April
       22, 2010.
       Count III of the indictment alleged aggravated promotion of prostitution [5] on
       or about July 1, 2010.
       On December 13, 2012, J.D.F. was convicted of the offense of aggravated
       promotion of prostitution in cause number 2011-431,572.
       Two counts in the indictment, apparently sexual performance of a child and
       compelling prostitution, were dismissed on December 13, 2012.


Five days after the hearing concluded the trial court signed a written order stating, “the

requested relief is DENIED.”




       3   See TEX. PENAL CODE ANN. § 43.25 (West Supp. 2018).
       4   See TEX. PENAL CODE ANN. § 43.05 (West Supp. 2018).
       5   See TEX. PENAL CODE ANN. § 43.04 (West Supp. 2018).


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                                           Analysis


First Issue: Expunction Under Article 55.01(a)(2)(A)(ii)(c)


       J.D.F. argues by his first issue that he “was deprived his right to expunction when

the court neglected to follow the source of right pursuant to [article] 55.01(a)(2)(A)(ii).” 6

Specifically, J.D.F. argues the charges of child sexual performance and compelling

prostitution were dismissed on December 13, 2012, because their presentment was made

due to mistake and false information indicating a lack of probable cause. See TEX. CODE

CRIM. PROC. ANN. art. 55.01(a)(2)(A)(ii)(c).       The State argues J.D.F. presented no

testimony or other proof to substantiate this allegation.


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

commission of an offense to have the records and files relating to the arrest expunged

provided he meets the statutory requirements of Texas Code of Criminal Procedure article

55.01. Ex parte S.D., 457 S.W.3d 168, 171 (Tex. App.—Amarillo 2015, no pet.). “Article

55.01 is neither entirely arrest-based nor offense based.” State v. T.S.N., 547 S.W.3d

617, 623 (Tex. 2018) (interpreting the expunction scheme under article 55.01 subsection

(a)(1)). Expunction is a privilege granted by statute, not a constitutional or common-law

right. Tex. Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.—Houston [14th

Dist.] 2008, no pet.). Because an expunction proceeding is civil rather than criminal in

nature, the petitioner bears the burden of proving all statutory requirements have been

satisfied. Id. The trial court has no equitable power to extend the protections of the

expunction statute beyond its stated provisions. Id. A petitioner will not be granted



       6   J.D.F. bases his argument on article 55.01(a)(2)(A)(ii)(c).

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expunction until all statutory requirements are met. T.S.N., 547 S.W.3d at 620. To meet

the burden of proving compliance with all statutory requirements for expunction of criminal

records, a petitioner must provide more than allegations in a verified pleading. Ex parte

K.R.K., 446 S.W.3d 540, 544 (Tex. App.—San Antonio 2014, no pet.) (noting that

“allegations in a petition seeking expunction are not evidence”). He must put on evidence

sufficient to prove the facts alleged in his petition. Tex. Dep’t of Pub. Safety v. Mendoza,

952 S.W.2d 560, 562 (Tex. App.—San Antonio 1997, no writ); see Tex. Dep’t of Pub.

Safety v. Borhani, No. 03-08-00142-CV, 2008 Tex. App. LEXIS 7509, at *8-9 (Tex. App.—

Austin Oct. 3, 2008, no pet.) (mem. op.) (finding petitioner who did not present any

evidence to prove satisfaction of the statutory expunction requirements failed to establish

entitlement to expunction).


       We review a trial court’s ruling on a petition for expunction for abuse of discretion.

T.S.N., 547 S.W.3d at 620 (citing Heine v. Tex. Dep’t of Pub. Safety, 92 S.W.3d 642, 646

(Tex. App.—Austin 2002, pet. denied)). A trial court must grant a petition for expunction

if the petitioner satisfies each statutory requirement, but it abuses its discretion if it orders

expunction of records despite the petitioner’s failure to satisfy all statutory requirements.

In re O.R.T., 414 S.W.3d 330, 332 (Tex. App.—El Paso 2013, no pet.).


       The portion of article 55.01 on which J.D.F. relies required proof that his

indictments on charges of child sexual performance and compelling prostitution,

dismissed pursuant to his plea bargain in December 2012, were dismissed because their

“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 . . . .” TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2)(A)(ii)(c).

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       The facts the court judicially noticed are entirely insufficient to prove J.D.F.’s

assertion the charges were dismissed for reasons indicating a lack of probable cause to

believe he committed the offenses. No testimony or documentary evidence was received

at the expunction hearing. Even if the statements contained in J.D.F.’s affidavit, which

we later discuss, had been before the court as evidence, they constitute no evidence the

charges were dismissed for reasons indicating any lack of probable cause to believe

J.D.F. committed the offenses.        Without evidence to prove J.D.F.’s entitlement to

expunction under article 55.01(a)(2), the trial court did not abuse its discretion by denying

J.D.F.’s petition. J.D.F.’s first issue is overruled.


Second Issue: Offensive Collateral Estoppel


       By his second issue J.D.F. argues the judgment of conviction for cause number

2011-431,572 shows he was in jail on July 2, 2010, giving proof of the fact he then was

incarcerated for a July 1, 2010 arrest. Thus, he concludes, the State is collaterally

estopped to relitigate his arrest date.


       Collateral estoppel may apply when an issue decided in the first action was actually

litigated, was essential to the prior judgment, and is identical to an issue in a pending

action. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 579 (Tex. 2001). The proponent of

collateral estoppel shoulders the burden of presenting sufficient evidence to establish the

doctrine’s application. Traweek v. Larking, 708 S.W.2d 942, 945 (Tex. App.—Tyler 1986,

writ ref’d n.r.e.); City of Houston v. Houston Chronicle Publishing Co., 673 S.W.2d 316,

321 (Tex. App.—Houston [1st Dist.] 1984, no writ). The party asserting collateral estoppel

must introduce into evidence the judgment and pleadings from the prior suit or collateral



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estoppel will not apply. Traweek, 708 S.W.2d at 945; City of Houston, 673 S.W.2d at

321.


       Whether J.D.F. could properly use collateral estoppel in the present case we do

not say because he did not raise the doctrine in the trial court and offered no supporting

evidence. The dates of his arrests were not relitigated, and the dates of arrest have no

bearing on his entitlement to expunction under the provision his first issue addresses, art.

55.01(a)(2)(A)(ii)(c). No abuse of discretion has been shown. J.D.F.’s second issue is

overruled.


Third Issue: Failure to Issue Findings of Fact and Conclusions of Law


       J.D.F. next argues the trial court erred by failing to issue findings of fact and

conclusions of law despite his timely request and timely notice of past-due findings.


       On proper request, findings of fact and conclusions of law shall be filed in cases

“tried in the district or county court without a jury.” TEX. R. CIV. P. 296; AD Villarai, LLC v.

Chan Il Pak, 519 S.W.3d 132, 135 (Tex. 2017) (per curiam); Pitts v. State, 113 S.W.3d

393, 397 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (expunction hearing). Findings

and conclusions are appropriate if the trial court conducts an evidentiary hearing and must

resolve questions of fact based on conflicting evidence.           Int’l Union, United Auto.,

Aerospace Agric. Implement Workers of Am.-UAW v. Gen. Motors Corp., 104 S.W.3d

126, 129 (Tex. App.—Fort Worth 2003, no pet.). But for matters on which the trial court

rules without determining questions of fact, findings of fact are not appropriate. Id.; cf.

Pitts, 113 S.W.3d at 400 (finding failure of trial court to prepare findings and conclusions




                                               6
was not harmful error when, among other things, appellant presented no evidence

supporting his ground of expunction).


       Here because the parties presented no evidence, the trial court as trier of fact had

no disputed issues of material fact to resolve. Findings and conclusions were therefore

not appropriate and the trial court did not abuse its discretion by implicitly refusing J.D.F’s

request. J.D.F.’s third issue is overruled. See Limbaugh v. Limbaugh, 71 S.W.3d 1, 5-6

(Tex. App.—Waco 2002, no pet.) (explaining a court is not required to issue findings of

fact on undisputed issues but must make findings of fact and conclusions of law on every

material issue the pleadings and evidence raise; a court does not issue findings and

conclusions on evidentiary issues but only on ultimate or controlling issues).


Fourth Issue: Judicial Notice and Admissibility of Affidavit


       By his fourth issue, J.D.F. argues the trial court abused its discretion by refusing

to judicially notice the dates of his arrests for some of the charged offenses, and by failing

to admit his affidavit into evidence.


       If requested by a party and supplied with the necessary information, a court must

take judicial notice of a fact that is not subject to reasonable dispute because it can be

accurately and readily determined from sources whose accuracy cannot reasonably be

questioned. TEX. R. EVID. 201(b),(c).


       At the hearing, J.D.F. pursued an argument that his plea of guilty and conviction

on count three of the indictment, alleging aggravated promotion of prostitution in July

2010, should not disqualify expunction of his arrest for the dismissed April 2010 charges

because he previously had been arrested for the July offense. While the court expressed

                                              7
a willingness on its own to examine an unidentified file and determine if it contained

sufficient information for judicial notice, we are not shown by the record what documents

the file contained. Because at least one of the arrest dates was disputed and J.D.F. did

not supply the court with the necessary information for judicial notice, it did not err by

implicitly denying J.D.F.’s request.


       Moreover, as we noted in our discussion of his third issue, the date of his arrest

has no bearing on his entitlement to expunction under art. 55.01(a)(2)(A)(ii)(c) as J.D.F.

argues because there is no evidence of dismissal of the April 2010 charges for reasons

indicating a lack of probable cause to believe he committed the offenses. Even had the

court taken judicial notice of the arrest dates as J.D.F. wanted, the notice would not have

established his entitlement to expunction.


       During the hearing J.D.F. requested the court to admit into evidence an affidavit

he filed. The court stated it had not yet received the affidavit and would decide its

admissibility after the State reviewed it and responded with its position as to the item’s

admissibility. The record reflects no further discussion of the affidavit and no ruling by

the court on its admission. We interpret J.D.F.’s brief on appeal to complain that the

affidavit was wrongfully excluded from evidence. As noted, no evidence was admitted at

the hearing.


       Preservation of a complaint for appellate review requires a party to present to the

trial court a timely request, objection, or motion that states the specific grounds for the

desired ruling, if they are not apparent from the context of the request, objection, or

motion. Richmond Condos. v. Skipworth Commercial Plumbing, Inc., 245 S.W.3d 646,



                                             8
665 (Tex. App.—Fort Worth 2008, pet. denied) (op. on reh’g) (citing TEX. R. APP. P.

33.1(a); TEX. R. EVID. 103(a)(1)). On a party’s failure to follow this procedure, nothing is

preserved for appellate review and the complaint is waived. Bushell v. Dean, 803 S.W.2d

711, 712 (Tex. 1991) (op. on reh’g). While an objecting party must obtain a ruling from

the trial court, the ruling may be either express or implied. TEX. R. APP. P. 33.1(a)(2)(A);

In re Marriage of Camp, No. 07-13-00283-CV, 2014 Tex. App. LEXIS 7830, at *8 (Tex.

App.—Amarillo Jul. 18, 2014, no pet.) (mem. op.). An implicit ruling is one that, although

unexpressed, may be reasonably inferred from something else in the record. Trevino v.

City of Pearland, 531 S.W.3d 290, 299 (Tex. App.—Houston [14th Dist.] 2017, no pet.).


       We have no express ruling on J.D.F.’s offer of his affidavit. Because the record

does not include the State’s response to J.D.F.’s offer of his affidavit or further comment

from the trial court, we cannot reasonably imply an adverse ruling by the trial court.

Accordingly, we must view J.D.F.’s complaint as waived, and nothing is preserved for our

review.


       Moreover, as we noted in our discussion of J.D.F.’s first issue, review of the

affidavit reveals no evidence of the lack-of-probable-cause element of the expunction he

pursued. The admission of the affidavit into evidence would not have changed the

outcome of our review.


       J.D.F.’s fourth issue is overruled.




                                             9
                                         Conclusion


         Having overruled each of J.D.F.’s issues on appeal, we affirm the order of the trial

court.


                                                          James T. Campbell
                                                             Justice




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