In re D.W.H.

458 S.W.3d 99

In the Matter of the Expunction of D.W.H.

No. 08–12–00031–CV.

Court of Appeals of Texas, El Paso.

Oct. 22, 2014.

Bryan L. Walter, Bryan L. Walter, P.C., Grapevine, TX, for Appellant.

Charles M. Mallin, Chief of the Criminal Appellate Section, Tarrant County District Attorney, Fort Worth, TX, for Appellee.

Before McCLURE, C.J., RODRIGUEZ, J., and PARKS, Judge (Sitting by Assignment).

OPINION

ANN CRAWFORD McCLURE, Chief Justice.

D.W.H. appeals from a judgment denying his petition for expunction. For the reasons that follow, we affirm.

FACTUAL SUMMARY

D.W.H. and the Tarrant County Criminal District Attorney's Office submitted an agreed statement of facts to the trial court pursuant to Rule 263 of the Texas Rules of Civil Procedure. See Tex.R.Civ.P. 263. The agreed statement of facts is eighty-two pages in length and consists of a two-page statement of agreed facts and the following ten exhibits:

• Exhibit A—warrant of arrest and search warrants

• Exhibit B—affidavit from Saginaw Officer Cupples—Arrest and Booking Report

• Exhibit C—Officer Robert Frost's supplement and Sgt. Jim Ragles' supplement

• Exhibit D—Officer Corey Burnett's supplement/crime scene photo log

• Exhibit E—photos of weapons in safe

• Exhibit F—scene entry log and additional officers' supplements

• Exhibit G—complaint and no bill

• Exhibit H—judgment

• Exhibit I—order of surrender

• Exhibit J—pre-sentence report.

The parties agreed that this case began during the early morning hours of June 11, 2008 as a search for a missing female student, B.M. B.M.'s parents reported to the Saginaw Police Department at approximately 2:17 a.m. that their daughter was missing and her vehicle was parked in front of the residence of D.W.H., a high school teacher. The parents reported they had been suspicious of the nature of the relationship because B.M. communicated with D.W.H. frequently at school, after school, and by phone and text messages. B.M.'s mother also told the police that she had seen her daughter inside D.W.H.'s residence through a rear window. B.M.'s parents went to the residence prior to calling the police and knocked on the door. D.W.H. answered the door while holding a rifle. Police officers went to the residence and spoke with D.W.H. but he denied that B.M. was there. He permitted the police to look for B.M. in some rooms in the house but he would not permit the police to search the bedrooms. The officers left the residence and parked down the street to maintain surveillance on the home. At approximately 6:00 a.m., B.M. exited the residence and the police officers immediately made contact with her. She initially denied having been in D.W.H.'s house. B.M. admitted during an interview later that same day she had been at the house the previous evening. She also admitted that she and D.W.H. had kissed and he had touched her breast. D.W.H., who was clothed, had an erection and rubbed against her in a simulation of sexual intercourse.

Based on their investigation conducted on June 11, 2008, the Saginaw Police Department obtained an arrest warrant for D.W.H. for the felony offense of improper relationship between educator and student.¹ The Saginaw P.D. also obtained a search warrant for D.W.H.'s residence located in Saginaw. The police obtained additional search warrants for D.W.H.'s cell phone, laptop, and memory cards. The parties agreed that the same facts are stated in both the arrest and search warrants. The Saginaw P.D. executed the arrest and search warrants at 11:15 p.m. on June 11, 2008. While executing the search warrants at D.W.H.'s residence, the officers located two gun safes. D.W.H. permitted a search of one gun safe but not the other. On June 12, 2008, Saginaw P.D. contacted the manufacturer of the locked gun safe and obtained the pre-set combination to the safe. The officers opened the safe and found unregistered firearms, including a AR15/M16–type weapon with a shortened barrel of only twelve to fourteen inches. The Saginaw P.D. notified ATF and ATF agents were dispatched to the scene. ATF reviewed the photographs taken at D.W.H.'s home and determined that D.W.H. also possessed viable destructive device component parts and 40 mm anti-personnel projectiles which cannot be legally possessed by civilians. Based on this information, ATF obtained a search warrant for D.W.H.'s home to search for prohibited items. ATF executed the warrant on June 19, 2008 and seized additional items including 40 mm practice grenades, 40 mm anti-personnel rounds, 40 mm illumination rounds, military smoke grenades, and containers of smokeless and black powder.

The agreed statement of facts reflects that two criminal charges against D.W.H. arose out of these facts: (1) a state criminal case for the offense of improper relationship between educator and student with an offense date of June 11, 2008 (cause number 1140274 in the Criminal District Court No. 1 of Tarrant County); and (2) a federal criminal case for possession of an unregistered firearm with an offense date of June 12, 2008 (cause number 4:09–CR–022–Y in the United States District Court, Northern District of Texas, Fort Worth Division). A Tarrant County grand jury later no-billed D.W.H. on the improper relationship between educator and student charge. D.W.H. entered a plea of guilty to the federal charge and he was placed on probation.

The parties filed briefs on the issues presented by the case and requested that the trial court render judgment on the agreed statement of facts in accordance with Rule 263. The court denied the petition for expunction.

Standard of Review

Generally, an appellate court reviews a trial court's ruling on a petition for expunction under the abuse of discretion standard.See In the Matter of the Expunction of A.G., 388 S.W.3d 759, 761 (Tex.App.-El Paso 2012, no pet.). The abuse of discretion standard of review does not apply because the parties asked the trial court to render judgment based on an agreed statement of facts pursuant to Rule 263.

Rule 263 provides:

Parties may submit matters in controversy to the court upon an agreed statement of facts filed with the clerk, upon which judgment shall be rendered as in other cases; and such agreed statement signed and certified by the court to be correct and the judgment rendered thereon shall constitute the record of the cause.

Tex.R.Civ.P. 263. A case tried on agreed facts is considered to have “the nature of a special verdict” and is a request by the litigants for judgment in accordance with the applicable law. Patton v. Porterfield, 411 S.W.3d 147, 153 (Tex.App.-Dallas 2013, pet. denied), citing Hutcherson v. Sovereign Camp, W.O.W., 112 Tex. 551, 251 S.W. 491 (1923) ; Unauthorized Practice of Law Committee v. Jansen, 816 S.W.2d 813, 814 (Tex.App.-Houston [14th Dist.] 1991, writ denied). An appellate court conclusively presumes that the parties have brought before the court all facts necessary for the presentation and adjudication of the case. Patton, 411 S.W.3d at 154, citing Cummins & Walker Oil Co. v. Smith, 814 S.W.2d 884, 886 (Tex.App.-San Antonio 1991, no writ).

The agreed facts are binding on the parties, the trial court, and the appellate court. Patton, 411 S.W.3d at 153–54 ; see Karam v. Brown, 407 S.W.3d 464, 475 (Tex.App.-El Paso 2013, no pet.) ; Markel Insurance Company v. Muzyka, 293 S.W.3d 380, 384 (Tex.App.-Fort Worth 2009, no pet.). This is in contrast with the deferential review of the facts employed under the abuse of discretion standard. The question on appeal is limited to the correctness of the trial court's application of the law to the agreed facts. Patton, 411 S.W.3d at 154. Because this is a legal question, we review de novo whether the trial court properly applied the law to the agreed facts. Id.

FINDINGS OF FACT

D.W.H. asserts in his second issue that the trial court erred by failing to file written findings of fact and conclusions of law pursuant to Rules 296 and 297 of the Texas Rules of Civil Procedure. See Tex.R.Civ.P. 296, 297. Due to its potential impact on and relationship to the standard of review, this issue must be address before Issue One.

D.W.H. filed a request for findings and the trial court asked the parties to submit proposed findings. In its response to D.W.H.'s request for findings, the District Attorney's Office took the position that findings of fact are inappropriate because the parties asked the court to decide the case upon an agreed statement of facts. The District Attorney's response included several proposed conclusions of law. The trial court adopted the District Attorney's proposed findings and conclusions. Generally, when a case is submitted to the trial court on agreed facts pursuant to Rule 263, as in this case, a trial court is not required to make written findings of fact. See Port Arthur Independent School District v. Port Arthur Teachers Association, 990 S.W.2d 955, 957 (Tex.App.-Beaumont 1999, pet. denied) ; Harris County Appraisal District v. Transamerica Container Leasing, Inc., 920 S.W.2d 678, 680 (Tex.App.-Houston [1st Dist.] 1995, writ denied). Thus, the trial court did not err by refusing to make written findings of fact. Issue Two is overruled.

THE TWO OFFENSES AROSE OUT OF THE SAME TRANSACTION

In Issue One, D.W.H. contends that the trial court erred by denying his petition for expunction. The District Attorney's Office responds that D.W.H. is not entitled to expunge the records of his arrest under Articles 55.01(a)(2) and 55.01(c) because the facts of the arrest he seeks to expunge are “bound up” with a federal offense to which he pled guilty. With respect to Article 55.01(a)(2), the District Attorney's Office specifically argues that expunction is not available under the statute because Appellant pled guilty to an offense that arose from the same transaction as the no-billed offense.

Expunction is neither a constitutional nor common-law right; rather, it is a statutory privilege. In re A.G., 417 S.W.3d 652, 654 (Tex.App.-El Paso 2013, no pet.) ; Travis County District...