In re J.D.R.

649 S.W.3d 449

IN RE the Expunction of J.D.R.

NO. 01-20-00161-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued February 24, 2022

Kim Ogg, District Attorney, Harris County, Texas, Uriel Tuck, Assistant District Attorney, Harris County, Texas, 500 Jefferson, Houston, Texas 77002, for Appellant.

Jed Silverman, 1221 Studewood St., Ste. 200, Houston, Texas 77008, for Appellee.

Panel consists of Justices Goodman, Rivas-Molloy, and Farris.

Rivas-Molloy, Justice

The State of Texas appeals the trial court's order granting appellee J.D.R.’s ("Appellee") petition for expunction of all records of his 2014 arrest for sexual assault of a child. Because Appellee does not meet the statutory criteria entitling him to expunction of his 2014 arrest for sexual assault of a child, we reverse the trial court's order and render judgment denying Appellee's petition for expunction.

Background

Appellee was arrested on December 8, 2014 and charged with the offense of sexual assault of a child. The indictment alleges that Appellee "on or about JULY 1, 2005, did then and there unlawfully, intentionally and knowingly cause the penetration of the FEMALE SEXUAL ORGAN of E.M., hereinafter called the Complainant, a person younger than seventeen years of age and not his spouse by placing HIS FINGER in the FEMALE SEXUAL ORGAN of the Complainant." Appellee plead not guilty, and his case proceeded to a jury trial.

K.T., a former senior pastor at a Houston-area church, testified he met Appellee when Appellee was 16 or 17 years old and that he performed Appellee's wedding in 2004. K.T. testified Appellee was a music minister for several years and involved with the church's youth ministry. Appellee lived in a parsonage on the church's property for approximately two years around 2004 and 2005. Appellee was 24 years old in 2005.

The complaining witness, E.M., testified she had been very active in the youth group at Appellee's church and had known Appellee since she was seven or eight years old. According to E.M., Appellee made a series of sexual advances towards her, which she testified occurred when he would drive her home from his house after she babysat for his kids or from soccer practice. She testified the assaults began in 2004, when E.M. was a freshman in high school, and ended in 2006, after she got her driver's license and her parents gave her permission to drive. The State argued E.M. was between the ages of 14 and 16 years old when the alleged assaults occurred. Among other things, E.M. testified Appellee put his finger in her vagina on one occasion, touched her breasts on multiple occasions, and made her touch his penis with her hand.

P.B., another congregant from Appellee's church, also testified at trial. She testified Appellee touched her inappropriately when she attended a church festival in the fall of 2006. P.B. was 15 years old at the time and had just obtained a hardship driver's license. She testified she wanted to show off to other people at the church that she could drive by herself and announced she was going to leave the festival to go get food. Appellee invited himself along and told her he needed to get his wallet from inside the parsonage, where he was living at the time. P.B. testified she accompanied Appellee to the parsonage, and once inside, Appellee asked P.B. if he could kiss her. P.B. testified she froze and Appellee proceeded to kiss her on the lips. He lifted her shirt, moved her bra over, and kissed her breasts. Appellee then pushed her back and apologized before they left for Taco Bell together.

At trial, Appellee's counsel argued the State failed to prove beyond a reasonable doubt that E.M. was younger than 17 years old when the digital penetration occurred because E.M. had given inconsistent statements regarding the timing of the alleged assault, and she was not credible. Appellee's counsel also suggested P.B.’s testimony was not credible because P.B. admitted on the stand that she did not want to testify, and she was doing so only because the State had subpoenaed her, and she did not want to go to jail.

On November 13, 2019, the jury acquitted Appellee of the offense of sexual assault of a child between 14 and 17 years of age.¹ Following his acquittal, the trial court admonished Appellee of his right to request an expunction of the records and files relating to his arrest. Appellee filed a request for expunction on November 13, 2019. Article 55.02 of the Texas Code of Criminal Procedure sets forth the procedural requirements for the expunction of criminal records. TEX. CODE CRIM. PROC. art. 55.02. Section 2(c) of Article 55.02 specifically provides:

The court shall set a hearing on the matter no sooner than thirty days from the filing of the petition and shall give to each official or agency or other governmental entity named in the petition reasonable notice of the hearing by: (1) certified mail, return receipt requested; or (2) secure electronic mail, electronic transmission, or facsimile transmission.

Id. Despite this requirement, the trial court granted Appellee's request for expunction the same day it was filed.²

The State filed a motion for new trial on December 11, 2019, arguing Appellee is not entitled to an expunction because he "remains subject to prosecution" for a charge of indecency with a child by contact stemming from P.B.’s testimony during trial. The State argued the offenses of indecency with a child and sexual assault of a child are similar offenses and thus Appellee does not meet the statutory requirements for expunction under Texas Code of Criminal Procedure Article 55.01. Appellee did not file a response to the State's motion for new trial. The trial court denied the State's motion for new trial on December 12, 2019, and the State appealed.

On September 21, 2020, the State filed its appellate brief. Appellee did not file an appellate brief or otherwise respond to the State's arguments on appeal.

The Expunction Statute

The statutory requirements for expunction are set forth in Article 55.01 of the Texas Code of Criminal Procedure. Article 55.01 allows a person who has been arrested for commission of either a felony or misdemeanor to have all records and files relating to the arrest expunged if the person is tried for the offense for which he was arrested and acquitted, "except as provided by Subsection (c)." TEX. CODE CRIM. PROC. art. 55.01(a)(1)(A). Subsection (c) of Article 55.01 states:

A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted ... if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.

TEX. CODE CRIM. PROC. art. 55.01(c). Section 3.01 of the Texas Penal Code defines "criminal episode" as the "commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances":

(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or

(2) the offenses are the repeated commission of the same or similar offenses.

TEX. PENAL CODE § 3.01.

Standard of Review and Applicable Law

"Expunction is not a right; it is a statutory privilege." In re State Bar of Tex. , 440 S.W.3d 621, 624 (Tex. 2014) ; In re Expunction of M.T. , 495 S.W.3d 617, 620 (Tex. App.—El Paso 2016, no pet.) (holding "right to expunction is neither a constitutional nor a common-law right, but rather a statutory privilege"); see also In re Expunction of M.T.R. , 606 S.W.3d 288, 291 (Tex. App.—Houston [1st Dist.] 2020, no pet.). Thus, a petitioner is not entitled to an expunction unless he satisfies the statutory requirements for expunction. See In re M.T. , 495 S.W.3d at 620 ; see also In re Expunction of J.B. , 564 S.W.3d 436, 441 (Tex. App.—El Paso 2016, no pet.) (holding trial court did not abuse its discretion in denying petition for expunction because petitioner "failed to negate that Article 55.01(c) does not apply in this instance").

Although the expunction statute appears within the Code of Criminal Procedure, an expunction proceeding is civil in nature. See State v. T.S.N. , 547 S.W.3d 617, 619 (Tex. 2018) ; In re Expunction of M.T.R. , 606 S.W.3d at 291. As such, the petitioner bears the burden of proving that all statutory requirements have been met. See T.S.N. , 547 S.W.3d at 620 ; In re Expunction of M.T.R. , 606 S.W.3d at 291.

Courts have no equitable power to extend the right to expunction beyond that allowed by statute. Ex parte E.H. , 602 S.W.3d 486, 489 (Tex. 2020) (stating courts must enforce statutory requirements and "cannot add equitable or practical exceptions ... that the legislature did not see fit to enact") (quoting In re Geomet Recycling LLC , 578 S.W.3d 82, 87 (Tex. 2019) ); Tex. Dep't of Pub. Safety v. Williams , 76 S.W.3d 647, 650 (Tex. App.—Corpus Christi 2002, no pet.).

We review a trial court's ruling on a petition for expunction for abuse of discretion, but the interpretation and application of a statute is a question of law we review de novo. T.S.N. , 547 S.W.3d at 620. "The trial court must strictly comply with the statutory procedures for expunction, and it commits reversible error when it fails to comply." State v. Echeverry , 267 S.W.3d 423, 427 (Tex. App.—Corpus Christi 2008, pet denied). When as here, an appellee does not file an appellate brief or otherwise contradict the factual statements in appellant's brief, this Court will accept any factual statement made in the appellant's brief as true. See TEX. R. APP. 38.1(g) ("In a civil case, the court will accept as true the facts stated [in appellant's brief] unless another party contradicts them.").

Analysis

On appeal, as in its motion for new...