In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-05-00020-CR
______________________________
BUNNY RAY MARTIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th Judicial District Court
Harris County, Texas
Trial Court No. 998116
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross
MEMORANDUM OPINION
Bunny Ray Martin appeals from his aggravated assault conviction on his plea of guilty under a plea agreement. The trial court set punishment at ten years' imprisonment, in accordance with the terms of the plea agreement. The trial court filed a certification of Martin's right of appeal in accordance with Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure, stating that this "is a plea-bargain case, and the defendant has NO right of appeal." See Tex. R. App. P. 25.2(a)(2).
We have jurisdiction to determine whether we have jurisdiction. Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). Martin entered into a plea agreement that the trial court did not exceed at sentencing. Under Rule 25.2(a)(2), Martin was entitled to appeal only "those matters that were raised by written motion filed and ruled on before trial" or "after getting the trial court's permission to appeal." Neither of those conditions appear, and the trial court certified that Martin has no right of appeal. See Comb v. State, 101 S.W.3d 724, 725 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
We are also without jurisdiction to consider the voluntariness of Martin's plea. In Cooper v. State, 45 S.W.3d 77 (Tex. Crim. App. 2001), the Texas Court of Criminal Appeals held that Tex. R. App. P. 25.2(a)(2)(B) restricted a defendant from appealing the voluntariness of his or her plea without the trial court's permission. Id. at 79. The record does not show that Martin has the trial court's permission to appeal the voluntariness of his plea. Consequently, we are without jurisdiction to consider that issue.
We dismiss the appeal for want of jurisdiction.
Donald R. Ross
Justice
Date Submitted: March 2, 2005
Date Decided: March 3, 2005
Do Not Publish
another reason.
(2) Means Has Failed to Prove Either (a) that Limitations Expired on the Event Originally Charged or (b) that the Indictment Was Dismissed Because it Had Been Based on "Mistake, False Information, or . . . Similar Reason Indicating the Absence of Probable Cause at the Time of the Dismissal"
It is also challenged that Means did not comply with Article 55.01(a)(2)(A). That subparagraph has two alternative elements that can be proven by an expungement claimant, alternatives that are set out in parts (i) and (ii) under subparagraph (A). We conclude that Means has proven neither alternative.
(a) No Proof that Limitations Expired
One alternative proof element is that limitations had expired on the charged offense. Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A)(i). The statute of limitations for the offense of indecency with a child expires ten years after the victim's eighteenth birthday. Tex. Code Crim. Proc. Ann. art 12.01(5)(A) (Vernon Supp. 2008). Nothing in the record before us fixes the age of the alleged victim at the time of the indicted offense. The indictment alleges that Means committed the offense of indecency with a child on or about May 18, 1989, and that the victim was at the time a child of seventeen years or less. It provides, however, no further detail on the extent to which the child was less than seventeen years old. And that lack of detail in the record is fatal to any claim that this element was proven. If, for example, the victim had been five years old in May 1989, the limitations period would not run until sometime in 2012. Based on the record before us, Means did not prove that the limitations period had run on the indicted offense.
(b) No Proof that Indictment's Dismissal Was Due to Mistake, False Information, or Other Lack of Probable Cause
The other alternative element required proof that the indictment was originally presented to the grand jury "because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe [Means] committed the offense . . . . " See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A)(ii). Means claims that this element was proven with the State's stated reason to dismiss the indictment approximately four months later, that is, that the "[v]ictim cannot remember the indecency part of the Indictment." We disagree.
We find no authority to support Means' contention that the State's reason for dismissal, that the victim could not remember, amounts to the prosecution having been dismissed because of mistake, false information, or other indications of lack of probable cause at the time of dismissal. The cases cited by Means do not advance his argument.
Means cites Harris County District Attorney's Office v. M.G.G., but the case specifically states that a finding of insufficient evidence does not, alone, support an expunction. Harris County Dist. Attorney's Office v. M.G.G., 866 S.W.2d 796, 798-99 (Tex. App.--Houston [14th Dist.] 1993, no writ). In M.G.G., the State moved to dismiss the indictment before a hearing on the defendant's motion to suppress; the State acknowledged a lack of probable cause to support M.G.G.'s arrest. Id. at 797. The M.G.G. court found that, even if there was not admissible evidence to support a conviction, such lack of admissible evidence had no bearing on whether there was probable cause to indict, and the record contained "no evidence supporting the trial court's finding that the indictment was dismissed 'because of mistake, false information, or other similar reason indicating absence of probable cause at the time of dismissal to believe the person committed the offense.'" Id. at 799 (citations omitted).
The other two cases cited by Means come somewhat closer to supporting the position he advances, yet both are distinguishable. The trial court in Metzger v. Houston Police Department found the three-year-old child victim incompetent to testify, and the State then moved to dismiss the case. Metzger v. Houston Police Dep't, 846 S.W.2d 383 (Tex. App.--Houston [14th Dist.] 1992, writ denied). In Metzger, the prosecutor testified at length that, while she did not believe a conviction could be had without the child's testimony, she still believed there was probable cause to believe Metzger had committed the offense. The prosecutor detailed the evidence presented to the grand jury and explicitly stated her motion to dismiss was not based on any belief that the indictment was presented due to mistake, false information, or any other circumstances which would call into question probable cause to believe the defendant had committed the offense. Metzger presented witnesses who claimed that several of the State's witnesses either lied or presented forged documents to the grand jury, or falsified reports. Id. at 384. Metzger presented neither evidence that the State had reason to believe any evidence it presented to the grand jury was false, nor any proof that the State moved to dismiss the indictment because it thought the case had been presented based on false information indicating a lack of probable cause at the time of the dismissal to believe Metzger had committed the crime. Id. The appellate court affirmed the trial court's denial of the expunction, finding there was no evidence that the State's motion to dismiss was based on anything other than the trial court's ruling that the child victim was not competent to testify at trial. Id. at 385.
Harris County District Attorney's Office v. Hobson comes slightly closer to Means' position. See Harris County Dist. Attorney's Office v. Hobson, 880 S.W.2d 1 (Tex. App.--Houston [14th Dist.] 1994, no writ). In Hobson, the mentally retarded victim of an alleged sexual assault could not identify Hobson as her assailant. There was no medical evidence supporting the indictment, and apparently the State presented no witnesses to the grand jury. The prosecutor testified "that she did not dismiss the indictment because she believed false information was presented to the grand jury or that the grand jury was mistaken in finding probable cause. She also stated that at the time of dismissal she believed there was probable cause that appellee committed the offense." Id. at 2. There was no record that anything other than the State's file was presented to the grand jury. When the victim subsequently was unable to identify the defendant, and there was no evidence she had ever been able to identify him, Hobson effectively met his burden of proof: (3) "if the grand jury was told that the complaining witness could identify appellee, and it proved later that in actuality she could not, the presentment was made based on mistake or false information." Id. at 4.
Here, the record contains no information on whether there was other evidence which supported the initial indictment or whether the victim previously made a statement or remembered the circumstances supporting the initial allegation. There is nothing in the record to indicate Means carried his burden of proving his right to an expunction. Because the instant record is not adequately developed to the extent of the above-cited cases, we do not believe that the single statement, "Victim cannot remember the indecency part of the Indictment," establishes either that there was no probable cause at the time of the indictment's dismissal or that the indictment was presented based on mistake or false information. See Tex. Dep't of Pub. Safety v. Collmorgen, No. 14-06-00478-CV, 2007 Tex. App. LEXIS 2174, at *4-5 (Tex. App.--Houston [14th Dist.] Mar. 22, 2007, no pet.) (mem. op.) ("Both the clear language of the statute and cases interpreting the statute dictate that the petitioner must assert evidence showing that the indictment was based on a mistake or false information. If the prosecutor dismisses simply because he believes he has insufficient evidence to convict, that is not mistake or false information.").
For two independent reasons, we hold that the trial court did not abuse its discretion in denying Means' petition for expungement.
We affirm.
Josh R. Morriss, III
Chief Justice
Date Submitted: May 19, 2009
Date Decided: June 3, 2009
1. The indictment at issue was returned in July 1989. It alleged Means committed the offense of indecency with a child on or around May 18, 1989, with a child who was at the time younger than seventeen years of age. The record before us has no more specific indication of the alleged victim's age.
2. There is no suggestion that subparagraph (B) is in question in Means' effort to have his record expunged.
3. The parties stipulated that subparagraphs (B) and (C) had been satisfied by Hobson.