Bothwell, Christopher v. State ( 2014 )


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  • 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.
    –2–
    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).
    –3–
    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
    –5–
    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
    –6–