John Douglas Mitchell Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 23, 2022
• Docket: 09-20-00230-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-20-00230-CV ________________

JOHN DOUGLAS MITCHELL JR., Appellant

V.

THE STATE OF TEXAS, Appellee ________________________________________________________________________

On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. X-2154 ________________________________________________________________________

MEMORANDUM OPINION

John Douglas Mitchell, Jr., a pro se inmate, appeals the trial court’s summary

judgment in favor of the State of Texas, which denied and dismissed his Petition for

Expunction.1 In five issues, Mitchell complains the trial court erred in granting the

1 The trial court also granted the Intervenor’s Motion to Dismiss pursuant to Texas Civil Practice and Remedies Code Chapter 14, determined Mitchell’s Petition for Expunction was frivolous, and taxed all costs against Mitchell. 1 State’s Amended Traditional Motion for Summary Judgment and failed to address

his Motion for Sanctions. We affirm the trial court’s judgment.

Background

In July of 1987, Mitchell was arrested for the misdemeanor offense of driving

while intoxicated. Mitchell pled guilty to the DWI offense in Trial Cause Number

132438 (“DWI-1”). The trial court found Mitchell guilty and imposed a fine of $200

and a sentence of six months of incarceration. In its judgment, the trial court

suspended imposition of the sentence and placed Mitchell on court ordered probation

for six months. In November of 1988, the trial court discharged Mitchell from his

probation, noting that he paid the costs and fines, otherwise complied with the terms

of his probation, and that the probation period had expired. Subsequently, Mitchell

was charged, pled guilty, and convicted of an additional DWI in Cause Number

168557 (“DWI-2”), which noted his prior DWI-1 conviction.

Mitchell filed a Petition for Expunction alleging he was entitled to have his

records from the DWI-1 case expunged because: (1) his probation was discharged

by court order; and (2) subsequently, his “probation was stricken as per decree[.]”

The State filed a Motion for Summary Judgment and thereafter filed an Amended

Traditional Motion for Summary Judgment.

2 Standard of Review

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

discretion. State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018). Under the abuse of

discretion standard, we afford no deference to the trial court’s legal determinations

since a court has no discretion in deciding what the law is or applying the law to the

facts. See id. Therefore, we review a trial court’s legal conclusions de novo. See id.

The trial court granted the State’s motion for summary judgment, which we review

de novo. See Shell Oil Co. v. Writt, 464 S.W.3d 650, 654 (Tex. 2015) (citation

omitted).

Analysis

Issues One through Four: Expunction and Summary Judgment

In his first two issues, Mitchell challenges the trial court’s summary judgment

in favor of the State, which denied and dismissed his Petition for Expunction.

Mitchell contends the discharge of his community supervision in DWI-1 was a

matter of judicial clemency, which meant he did not have a final conviction, and

therefore the trial court erred in dismissing his Petition for Expunction. The State

counters that since Mitchell failed to challenge the community supervision summary

judgment ground, he has waived that issue, and the trial court’s summary judgment

must be affirmed.

3 Under limited statutorily enumerated circumstances, a person who has been

placed under arrest for commission of a felony or misdemeanor is entitled to have

records and files relating to the arrest expunged. See Tex. Code Crim. Proc. Ann.

art. 55.01. The person seeking expunction must establish, among other things, he has

been released and the charge, if any, (1) has not resulted in a final conviction, (2) is

no longer pending, and (3) there was no court-ordered community supervision. See

id. 55.01(a)(2). All statutory provisions are mandatory and exclusive, and the

petitioner is entitled to expunction only if all statutory conditions are met. Ex parte

E.R.W., 281 S.W.3d 572, 573 (Tex. App.—El Paso 2008, pet. denied). An

expunction proceeding is civil in nature, and the petitioner has the burden of proving

compliance with the applicable statute. Tex. Dep’t of Public Safety v. Ibarra, 444

S.W.3d 735, 739 (Tex. App.—Corpus Christi 2014, pet. denied). A trial court has

no equitable power to allow expunction not allowed by statute. Tex. Dep’t of Public

Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no

pet.).

The State was entitled to summary judgment if it established there was no

issue of material fact and appellant was not entitled to expunction as a matter of law.

See Tex. R. Civ. P. 166a(c). The State moved for traditional summary judgment

arguing that Mitchell was not entitled to expunction because he could not meet the

4 statutory requirements, specifically because Mitchell’s DWI-1 arrest resulted in a

final conviction, and he was placed on court ordered community supervision. 2

Because the trial court did not specify on which basis it granted summary

judgment, we will affirm if any ground is meritorious. See Provident Life & Acc.

Ins. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). When a trial court’s order granting

summary judgment does not specify the grounds on which it based the order, the

appellant must negate each ground upon which the judgment could have been based.

Rosetta Res. Operating, LP v. Martin, No. 20-0898, 2022 WL 1434662, at *10 (Tex.

May 6, 2022). The State’s summary judgment evidence included, among other

things, a certified copy of the Jefferson County Clerk’s file in DWI-1. This evidence

showed the State charged Mitchell with DWI, the trial court signed a judgment

noting Mitchell’s guilty plea and finding him guilty, and the trial court sentenced

him to six months of incarceration plus a $200 fine. The trial court’s judgment

suspended the sentence and included a “Probation Order” outlining the terms

Mitchell had to comply with. The evidence also showed that once Mitchell

completed the terms of his probation, the trial court discharged it.

The State’s summary judgment evidence in this case conclusively established

Mitchell pled guilty to the DWI-1 charge and received court-ordered community

2 “‘Community supervision’ and ‘probation’ are synonymous and generally used interchangeably.” Hongpathoum v. State, 578 S.W.3d 213, 214 n.1 (Tex. App.—Fort Worth 2019, no pet.). 5 supervision. On appeal, Mitchell does not challenge that he received community

supervision. Rather, he argues that once he completed his community supervision

and the trial court discharged him from probation, that meant he did not have a final

conviction. The trial court did not err in granting the State’s motion for summary

judgment and denying and dismissing Mitchell’s Petition for Expunction, since he

failed to negate each ground on which summary judgment could have been based.

See Rosetta Res. Operating, LP, 2022 WL 1434662, at *10.

In his third issue, Mitchell argues that the State breached a contract with him

in the form of its plea agreement for the underlying DWI conviction and alleges that,

if he completed probation, the charge would be removed from his record. Mitchell

argues the “Order Discharging Probation” in his DWI-1 case proves this. The record

before us does not support this. The “Order Discharging Probation” does not

substantiate a claim that the State agreed to an expunction if he completed his

probation as part of a plea agreement, instead it merely shows that he had completed

the terms of his probation, and the trial court discharged it.

Mitchell asserts in his brief that “[t]here is no indication of a plea agreement

between the Appellant and the courts because the actual pleas were done on the

records by the attorneys.” In his summary judgment response and on appeal,

Mitchell contends the trial judge in the DWI-1 case made specific statements

assuring him the matter would be expunged. Mitchell’s allegations made in a

6 summary judgment response are not evidence and may not be used as facts to oppose

the State’s summary judgment motion. See Regency Field Servs., LLC v. Swift

Energy Operating, Inc., 622 S.W.3d 807, 818–19 (Tex. 2021) (explaining a party

cannot use its own pleaded allegations as evidence of facts to oppose a summary

judgment motion). Mitchell failed to provide a reporter’s record or transcript of the

DWI-1 proceedings or any other evidence showing these purported agreements were

made on the record.

The State conclusively established that Mitchell pled guilty and received

community supervision, thereby establishing as a matter of law he was not entitled

to an expunction. Accordingly, the burden shifted to Mitchell to provide more than

a scintilla of evidence to show a genuine issue of material fact existed that would

defeat the State’s motion for summary judgment. See Centeq Realty, Inc. v. Siegler,

899 S.W.2d 195, 197 (Tex. 1995) (“Once the defendant produces sufficient evidence

to establish the right to summary judgment, the plaintiff must present evidence

sufficient to raise a fact issue.”). Even if we agreed that a plea agreement could be

specifically enforced as a contract to override the statutory expunction requirements,

which we do not decide, Mitchell failed to provide summary judgment evidence

showing that the State agreed to an expunction as one of the terms of his plea

7 agreement in the DWI-1 case.3 Although difficult to decipher from his briefing, to

the extent Mitchell attempts to attack the underlying facts of his arrest or judgment,

his allegations would amount to an improper collateral attack. See Ex parte Cephus,

410 S.W.3d 416, 419 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (“A collateral

attack on a final judgment may not be brought in an expunction proceeding.”).

In his fourth issue, Mitchell complains the trial court improperly ruled on his

petition without a hearing. A trial court may rule on an expunction petition absent a

formal hearing and without considering live testimony, “if it has at its disposal all

the information it needs to resolve the issues raised by the petition.” Ex parte

Skinner, 2013 WL 3947174, at *1 (Tex. App.—Dallas July 29, 2013, pet. denied)

(mem. op.) (citing Ex parte Wilson, 224 S.W.3d 860, 863 (Tex. App.—Texarkana

2007, no pet.)). Here, the trial court had the necessary information at its disposal to

rule on the expunction petition, including the pleadings, summary judgment motion

and evidence, and Mitchell’s response and evidence. See id. Additionally, an oral

hearing is not required on a summary judgment motion since no oral testimony can

be taken. Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex.

3 Other courts have explained, “Nor does the fact that the parties to the criminal proceeding may have intended or ‘hoped’ that the ‘deferred judgment’ would avoid the prohibition against expunction where ‘community supervision’ has been imposed . . . control whether it did.” Tex. Dep’t of Public Safety v. Nail, 305 S.W.3d 673, 684–85 (Tex. App.—Austin 2010, no pet.). “The legislature has provided no such exception to the ‘community supervision’ expunction limitation, and the judiciary has no power to create one.” Id. 8 1998). The State provided its Notice of Submission more than twenty-one days in

advance when it filed its Amended Traditional Motion for Summary Judgment. See

id. (noting a notice of hearing or submission is required); see also Tex. R. Civ. P.

166a(c). Mitchell’s contention that the trial court had equitable power to extend the

expunction statute is incorrect. See J.H.J., 274 S.W.3d at 806 (noting court “has no

equitable power to extend the protections of the expunction statute beyond its stated

provisions”).

We overrule issues one through four.

Issue Five: Sanctions and Hearing

In his fifth issue Mitchell asserts the trial court abused its discretion in failing

to hold a hearing on his request for sanctions pursuant to Texas Rules of Civil

Procedure 13. Mitchell’s complaint seems to be that when the State filed its first

Motion for Summary Judgment, it failed to include a specific exhibit. This argument

lacks merit. Rule 13 provides that “[i]f a pleading, motion or other paper is signed

in violation of this rule, the court, upon motion or upon its own initiative, after notice

and hearing, shall impose an appropriate sanction available[.]” Tex. R. Civ. P. 13.

Under this rule, the trial court is not required to hold an evidentiary hearing before

denying sanctions. Breault v. Psarovarkas, No. 01-01-00122-CV, 2003 WL 876651,

at *6 (Tex. App.—Houston [1st Dist.] Feb. 28, 2003, pet. denied) (mem. op.); see

also Skinner v. Levine, No. 04-03-00354-CV, 2005 WL 541341, at *3 (Tex. App.—

9 San Antonio Mar. 9, 2005, no pet.) (mem. op.). We also note that when the State

filed its Amended Traditional Motion for Summary Judgment, it attached the exhibit

Mitchell complained it omitted.

Although Mitchell additionally complains the trial court failed to conduct a

hearing on whether the State violated Texas Rule of Civil Procedure 12, he does not

articulate why he was entitled to a hearing under this rule or provide any authority

supporting this argument. Therefore, we find the issue inadequately briefed. See Tex.

R. App. P. 38.1(i) (providing requirements for appellant’s brief); Kuykendall v.

State, 335 S.W.3d 429, 436 (Tex. App.—Beaumont 2011, pet. ref’d) (inadequate

briefing waives error on appeal).

We overrule issue five.

Conclusion

Having overruled all of Mitchell’s issues, we affirm the trial court’s judgment.

AFFIRMED.

________________________________ W. SCOTT GOLEMON Chief Justice

Submitted on August 10, 2021 Opinion Delivered June 23, 2022

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