Ex parte Thomas

34 S.W.3d 645, 2000 Tex. App. LEXIS 7952, 2000 WL 1742685
CourtCourt of Appeals of Texas
DecidedNovember 22, 2000
DocketNo. 10-99-109-CV
StatusPublished
Cited by5 cases

This text of 34 S.W.3d 645 (Ex parte Thomas) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex parte Thomas, 34 S.W.3d 645, 2000 Tex. App. LEXIS 7952, 2000 WL 1742685 (Tex. Ct. App. 2000).

Opinion

[647]*647OPINION

VANCE, Justice.

For the third time, David Thomas appeals from the trial court’s denial of his petition for an expunction. See Ex parte Thomas, 956 S.W.2d 782 (Tex.App.—Waco 1997, no pet.) (Thomas IT); Thomas v. State, 916 S.W.2d 540 (Tex.App.—Waco 1995, no writ) (Thomas I). We reversed the order denying his petition in Thomas I because the trial court excluded evidence offered by Thomas to show that the indictment against him was based on false information or mistake. We reversed the order in Thomas II because we found the evidence “factually insufficient” to sustain the trial court’s denial of the petition. Thomas again challenges the factual sufficiency of the evidence to support the order denying his petition and argues that this result could not have been intended by the Legislature. This time, we affirm the order.

Background

In 1992, V.T., Thomas’ daughter, ran away from home. Shortly after running away, she filed criminal charges against Thomas, alleging that he had sexually abused her. The grand jury indicted Thomas for the offense in early 1993, but the charges were dismissed on the State’s motion less than six months later. After the indictment was dismissed, Thomas sought to have the record of the charges expunged, alleging that the indictment was dismissed due to a lack of probable cause to believe that he had committed the offense. See Tex.Code Crim.PROc.Ann. art. 55.01(a)(2) (Vernon Supp.Pamph.2000).1

The evidence

At the hearing, Thomas denied that he sexually assaulted V.T. He described the difficulties and disagreements that he and his wife had with V.T. concerning their rules and restrictions on V.T.’s behavior during the time that she lived with them. His wife testified that V.T. told her Thomas had been “touching her inappropriately.” At first she was unsure who to believe, but ultimately concluded that V.T. was not telling the truth. Three of Thomas’ four other children testified. They generally supported Thomas in that each said V.T. would he about events and had never indicated to any of them that their father was abusing her.

V.T. testified for the State. She said that Thomas had assaulted her on numerous occasions in 1990. At some point “shortly after the event that had happened,” she told her mother about the assaults, and they confronted Thomas together. According to V.T., Thomas admitted the assaults to his wife and promised that it would not happen again. The former district attorney testified that she had asked the court to dismiss the indictment against Thomas because she was unable to “corroborate” V.T.’s testimony, as required under the law at the time.2 When she [648]*648sought the indictment she had expected Thomas’ wife would testify to V.T.’s outcry concerning the offense, which would have relieved her of the burden of corroborating V.T.’s testimony, but later learned that she was unwilling to do so. The Department of Protective and Regulatory Services caseworker who handled V.T.’s complaints against Thomas testified V.T. indicated she had told Thomas’ wife about the assaults and, in a conversation with Thomas’ wife, “[Thomas’ wife] alluded to the fact that she had had a conversation with [V.T.] along the lines of [V.T.] being uncomfortable with [Thomas].” Finally, the woman whom V.T. had gone to live with after she ran away from home testified that she listened in on a phone conversation between V.T. and Thomas’ wife shortly after V.T. had run away from home, during which she heard a statement by Thomas’ wife which indicated that she was aware of the allegations V.T. had made against Thomas. This woman also testified that she believed V.T.’s accusations.

Sufficiency of the evidence

In his first point, Thomas claims that the evidence is factually insufficient to support the trial court’s order denying his petition for an expunction. Because Thomas had the burden of proof on the petition, we must sustain the order unless, considering all the evidence, the denial is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. Thomas II, 956 S.W.2d at 786 (citing Ames v. Ames, 776 S.W.2d 154, 158 (Tex.1989), Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989), and Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex.1988)). Thomas sought to show that the indictment was presented and dismissed because of mistake or a false allegation. We described how he could carry that burden in Thomas I:

Thomas can meet his burden of proving that the indictment presented against him lacked probable cause by showing that his daughter had made false accusations. It follows that he can show that the indictment was dismissed for the same reason. Assuming Thomas can prove the indictment was presented due to false information, the dismissal must ultimately stem from the false information, considering no other evidence was presented. Obviously, the prosecution cannot find an outcry witness to a crime that did not exist. The dismissal would go to a substantive defect, rather than a procedural one.

Thomas I, 916 S.W.2d at 546. Thus, the key to Thomas’ claim is whether he showed that V.T. was untruthful when she told the district attorney that he had assaulted her.

After reviewing the record, we cannot find the court’s failure to find Thomas established that V.T. was untruthful is against the great weight and preponderance of the evidence. Whether V.T. falsely accused him of sexual assault was vigorously contested. Thomas denied the charge, supported by his wife’s and children’s testimony. V.T. repeated her accu[649]*649sations against her father during the hearing.3 Her charges were generally-supported by the former district attorney, her DPRS caseworker, and the woman with whom she went to live after she ran away. Considering all of this evidence, we cannot say that the trial court erred when it chose to believe the evidence presented by the State, especially V.T.’s in-court accusations against her father, over the evidence presented by Thomas. See Harris County Dist. Attorney v. Small, 920 S.W.2d 740, 743 (Tex.App.—Houston [1st Dist.] 1996, no writ) (Stating that in a bench trial on an expunction petition, the trial judge is the exclusive judge of the credibility of the witnesses and may accept or reject, in whole or in part, the testimony of any witness). Thus, we overrule Thomas’ first point.

“Liberal” construction

In his second point, Thomas argues that we should reverse the trial court’s judgment because it failed to give the statute “the most liberal construction possible.” According to Thomas, this entails construing the statute in such a way as to avoid the “absurd” result of denying him the right to an expunction.

His argument is three-step. He first concedes that we may not enlarge upon the plain meaning of the statute.

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Cite This Page — Counsel Stack

Bluebook (online)
34 S.W.3d 645, 2000 Tex. App. LEXIS 7952, 2000 WL 1742685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-thomas-texapp-2000.