J.S. v. State, 15-0345

Background

In 2011 petitioner J.S. was charged with misdemeanor assault and entered an El Paso County Pre‑Trial Diversion (PTD) agreement that led to dismissal after successful completion.
The PTD agreement contained a titled waiver section: "Waiver of Speedy Trial and Waiver of Right of Expunction," with a signature line beneath that paragraph and another signature at the document bottom.
J.S. filed a petition to expunge his criminal records under Tex. Code Crim. Proc. art. 55.01(a)(2)(B) after dismissal and expiration of limitations.
The State pleaded an affirmative defense that J.S. waived his statutory right to expunction by signing the PTD agreement.
At the expunction hearing the State introduced the PTD agreement; J.S.’s counsel argued the writing under the waiver paragraph read "not waived," and the trial court denied relief.
The Eighth Court of Appeals reviewed legal sufficiency, concluded the handwriting under the waiver was not clearly "not waived," impliedly found J.S. signed the waiver, and affirmed the denial of expunction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State proved waiver of J.S.’s statutory expunction right	J.S. contends he expressly did not waive expunction (wrote "not waived"), the State offered no evidence to contradict that, and the trial court improperly denied his expunction	The State contends the PTD agreement contains a valid written waiver (signature under waiver paragraph) and thus J.S. waived the right to expunction	Court of Appeals: The evidence is legally sufficient to support an implied finding that J.S. signed the waiver; affirmed denial of expunction
Whether the appellate court erred by not treating counsel’s uncontested in‑court statement (bill of exception) as evidence	J.S. argues uncontested courtroom assertions that he did not waive must be accepted as true and were not rebutted	State did not dispute the handwriting issue beyond asserting it was unclear	Court: resolved fact question against J.S.; handwriting appears similar to signature and appellate review views evidence in light most favorable to judgment
Whether requiring waiver as condition of PTD violates public policy	J.S. argues for first time on appeal that county policy forcing waiver is against public policy	State defends PTD waiver as permissible and waivable by defendant	Court: public‑policy argument waived for failure to raise at trial; not considered
Standard of review for expunction contested by waiver defense	J.S. framed as abuse of discretion; argues findings insufficient	State relied on legal sufficiency of evidence to prove affirmative defense	Court: applied legal sufficiency standard for implied factual findings and upheld waiver finding

Key Cases Cited

Davis v. State, 817 S.W.2d 345 (Tex. Crim. App.) (appellate duty to address arguments necessary to disposition)
Hayden v. State, 66 S.W.3d 269 (Tex. Crim. App.) (accept counsel’s undisputed representations as true when unsupported in record)
Pitts v. State, 916 S.W.2d 507 (Tex. Crim. App.) (acceptance of undisputed assertions by appellate courts)
Resanovich v. State, 906 S.W.2d 40 (Tex. Crim. App.) (undisputed facts in record may constitute valid proof)
Yarborough v. State, 947 S.W.2d 892 (Tex. Crim. App.) (courts may accept counsel’s factual assertions when unchallenged)
Hicks v. State, 525 S.W.2d 177 (Tex. Crim. App.) (treatment of counsel assertions in appellate review)
Hughen v. State, 297 S.W.3d 330 (Tex. Crim. App.) (requirement to review every argument necessary to disposition)
Light v. State, 15 S.W.3d 104 (Tex. Crim. App.) (standards for appellate review of unaddressed issues)