In re Expunction

IN RE EXPUNCTION

NO. 01-14-00168-CV

Court of Appeals For The First District of Texas

February 5, 2015

On Appeal from the 212th District Court Galveston County, Texas

Trial Court Case No. 13-CV-1100

OPINION

The State of Texas appeals from an order of expunction of criminal records granted to Philip Dean Cassidy. We reverse and render judgment denying expunction.

Background

On October 6, 2011, Cassidy was arrested and charged with indecency with a child by sexual contact, criminal attempt, a felony of the third degree, in a Texas district court. See TEX. PENAL CODE ANN. §§ 21.11(a)(1) (defining crime of indecency with a child by sexual contact), 21.11(d) (defining same as second-degree felony), 15.01(a) (defining criminal attempt), 15.01(d) (criminal attempt is offense "one category lower" than attempted offense) (West 2012). On November 20, 2012, Cassidy pleaded nolo contendere to a misdemeanor charge of assault causing bodily injury in exchange for dismissal of the felony charge. See id. §§ 22.01(a)(1) (defining offense of assault causing bodily injury), 22.01(b) (defining same as Class A misdemeanor) (West 2012).

In August 2013, Cassidy filed a petition for expunction in the trial court, asking that all records and files related to his arrest for the felony charge be expunged, pursuant to Article 55.01(a)(2) of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2) (West Supp. 2013). The district attorney of Galveston County, on behalf of the State of Texas, and the Texas Department of Public Safety filed answers denying Cassidy's right to relief.

After a hearing at which only Cassidy testified, the trial court granted Cassidy's petition and ordered the records related to the October 6, 2011 arrestexpunged. The State filed a motion for new trial, which was overruled by operation of law. The State now appeals.

The State raises two arguments on appeal. First, it argues that an expunction applies to an entire arrest, not to individual charges resulting from an arrest, and both Cassidy's felony and misdemeanor charges resulted from the same arrest. Second, the State argues that Cassidy bore and failed to meet the burden to prove his entitlement to expunction of the felony offense.

Standard of Review

This Court reviews a trial court's grant or denial of 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 renders a decision that is arbitrary, unreasonable, or without reference to guiding rules and principles. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996); J.H.J., 274 S.W.3d at 806. When, as here, the trial court makes no findings of fact separate from the order granting the expunction, we draw every reasonable inference that is supported by the record in favor of the trial court's judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); J.H.J., 274 S.W.3d at 806. A trial court's legal conclusions, however, we review de novo. State v. Heal, 917 S.W.2d 6, 9 (Tex.1996); J.H.J., 274 S.W.3d at 806. A trial court has no discretion in determining what the law is or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). We will uphold a trial court's legal conclusions if its judgment is sustainable on any legal theory supported by the evidence. J.H.J., 274 S.W.3d at 806.

Expunction is a statutory privilege, not a constitutional or common-law right. Id.; McCarroll v. Tex. Dep't of Pub. Safety, 86 S.W.3d 376, 378 (Tex. App.—Fort Worth 2002, no pet.). Further, although the expunction statute is located in the Texas Code of Criminal Procedure, an expunction proceeding is civil rather than criminal in nature. J.H.J., 274 S.W.3d at 806; Harris Cnty. Dist. Att'y v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.—Houston [14th Dist.] 1997, no pet.). "The petitioner therefore carries the burden of proving that all statutory requirements have been satisfied." J.H.J., 274 S.W.3d at 806; Harris Cnty. Dist. Att'y v. Hopson, 880 S.W.2d 1, 3 (Tex. App.—Houston [14th Dist.] 1994, no writ). The petitioner is entitled to expunction only after satisfying all statutory conditions. J.H.J., 274 S.W.3d at 806; Lacafta, 965 S.W.2d at 569. The trial court must strictly comply with the statutory requirements, and neither this Court nor the trial court has any equitable power to extend the protections of the expunction statute beyond its stated provisions. See J.H.J., 274 S.W.3d at 806; Lacafta, 965 S.W.2d at 569.

Expunction of criminal records is governed by Article 55.01 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 55.01(a) (West 2012). A person may seek expunction for one of three reasons, each subject to certain restrictions. First, he may argue that he has been arrested and placed on trial, but either was acquitted or was convicted and subsequently pardoned. Id. art. 55.01(a)(1). Second, he may argue that he "has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision under Article 42.12 for the offense," subject to additional requirements. Id. art. 55.01(a)(2). Third, he may seek expunction if he was tried for and convicted of the offense for which he was arrested, but was acquitted on appeal. Id. art. 55.01(b). Because Cassidy was not placed on trial, Articles 55.01(a)(1) and 55.01(b) are irrelevant to this appeal, and only Article 55.01(a)(2) is relevant.

A petitioner for expunction under Article 55.01(a)(2) must satisfy additional requirements, depending on factors such as the category of crime charged and whether additional charges were brought based on the same transaction for which the person was arrested. Id. art. 55.01(a)(2). Specifically, the statute requires, in relevant part, that:

(A) regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense basedon the person's arrest or charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested:

(i) has not been presented against the person at any time following the arrest, . . . .; or

(ii) if presented at any time following the arrest, was dismissed or quashed, and the court finds that the indictment or information was dismissed or quashed because the person completed a pretrial intervention program authorized under Section 76.011, Government Code, or 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 it was void; or

(B) prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired.

Id.

A plea of nolo contendere has the same legal effect as a plea of guilty, except that the former "may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based." TEX. CODE CRIM. PROC. ANN. art. 27.02(5) (West 2012); see also Ellerbe v. State, 80 S.W.3d 721, 723 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd).

Nature of Expunction

In its first issue, the State argues that expunction is available solely at the level of an arrest and not at the level of individual offenses charged on the basis ofa given arrest. In other words, Cassidy is entitled to expunction of criminal records only if he can satisfy the requirements of the expunction statute with respect to all criminal charges arising from the arrest. The State then argues that Cassidy has failed to establish that he was entitled to expunction because he pleaded nolo contendere to a misdemeanor charge arising from the same arrest that led to the felony charge.

Cassidy raises three arguments in response. First, he contends that he was arrested not once but twice, once for each charge. Second, he argues that the misdemeanor charge of assault causing bodily injury is not a lesser-included offense of indecency with a child. Finally, he argues that this Court's binding precedent requires us to hold that expunction is available on a per-offense basis rather than a per-arrest basis. We will address Cassidy's third argument first.

A. Stare decisis

We have previously considered whether expunction applies to an entire arrest or may apply to individual charges. In Ex parte E.E.H., 869 S.W.2d 496 (Tex. App.—Houston [1st Dist.] 1993, writ denied), we considered a case in which E.E.H. had been arrested and charged with one felony drug charge, misdemeanor driving while intoxicated, and misdemeanor possession of marijuana. Id. at 497. The grand jury returned a no bill on the felony offense, the State moved to dismiss the DWI charge, and E.E.H. received a conditional discharge on the possession ofmarijuana charge. Id. The latter was dismissed after E.E.H. completed the terms of her probation, and E.E.H. later petitioned for expunction of the felony charge and the DWI charge. Id. We held that Article 55.01 in its then-effective form "permits expunction of less than all charges arising from a single arrest." Id. at 498.

We based our holding in Ex parte E.E.H. on several factors. First, E.E.H. was never formally charged with the felony by indictment or information. Id. Second, we emphasized that the State had moved for dismissal of the DWI charge, which "render[ed] its record amenable to expunction." Id. Third, we noted that E.E.H. had not been convicted of a felony in the five years preceding her arrest, a condition of the...