In re T.D.N.

620 S.W.3d 433

In the MATTER OF the Expunction of T.D.N.

No. 08-19-00164-CV

Court of Appeals of Texas, El Paso.

September 21, 2020

Rehearing Denied March 12, 2021

OPINION

JEFF ALLEY, Chief Justice

The Texas Department of Public Safety ("the Department") brings this restricted appeal, challenging the trial court's order granting T.D.N.'s petition for an expunction of criminal records, arguing that T.D.N. did not plead or prove a valid statutory ground for granting the expunction. In particular, the Department contends that T.D.N. was not entitled to an expunction of an arrest record that lead to acquittal because he was previously convicted of an offense arising out of the same "criminal episode." We agree with the Department, and we therefore reverse the trial court's order.¹

I. PROCEDURAL AND FACTUAL BACKGROUND

A. T.D.N.'s Petition for an Expunction

A grand jury indicted T.D.N. in August 2015, on one count of sexual assault, alleging that on or about May 17, 2015, T.D.N. sexually assaulted a victim who was unconscious at the time. In December 2015, the grand jury re-indicted T.D.N. in the same cause number on one count of burglary of a habitation, alleging that T.D.N. entered a habitation with the intent to commit, and "did commit, a felony, namely, Sexual Assault." In July 2015, T.D.N. was arrested on that charge, but was later tried and acquitted.

T.D.N. then filed a petition to expunge the records of his arrest based on the acquittal. Without waiting for a response from the Department, the trial court signed an order granting the expunction.

B. The Department's Motion for New Trial

Upon learning of the order, the Department moved for a new trial. In its motion, the Department argued that T.D.N. was not entitled to an expunction because in 2002 he was convicted of one count of aggravated sexual assault of a child. The Department argued that as defined by the legislature in the expunction statute, the 2015 offense for which T.D.N. was acquitted was part of the same "criminal episode" as the 2002 aggravated sexual assault offense, which in turn rendered T.D.N. ineligible to receive an expunction.

Following a hearing, the trial court denied the Department's motion, thereby upholding the order of expunction. This appeal followed.

II. DISCUSSION

In two issues, the Department contends that the trial court erred by granting the expunction, renewing its argument that the 2015 offense was part of the same criminal episode as the 2002 offense for which he was convicted. Although our analysis differs in some respects from the approach that the Department takes, we agree that the trial court lacked the authority to grant the expunction.

A. Standard of Review

Generally, we review a trial court's ruling on a petition for expunction for an abuse of discretion. See State v. T.S.N. , 547 S.W.3d 617, 620 (Tex. 2018) ; see also Matter of Expunction of R.P. , 574 S.W.3d 641, 643 (Tex.App.--El Paso 2019, no pet.). But under the abuse of discretion standard, appellate courts afford no deference to the trial court's legal determinations because a court has no discretion in deciding what the law is or in applying it to the facts. Thus, if an expunction ruling turns on a question of law, we review the trial court's ruling de novo. See T.S.N. , 547 S.W.3d at 620.

B. Applicable Law

A petitioner's right to expunction is purely a matter of statutory privilege. See Matter of O.T.A. , 564 S.W.3d 456, 459 (Tex.App.--El Paso 2018, no pet.) ; see also Matter of A.H. , 580 S.W.3d 841, 846 (Tex.App.--El Paso 2019, no pet.). Article 55.01 of the Texas Code of Criminal Procedure governs expunctions. See T.S.N. , 547 S.W.3d at 620, citing TEX.CODE CRIM.PROC.ANN. art. 55.01. All the conditions in the statute are mandatory and must be met before a person is entitled to expunction. See Matter of O.T.A. , 564 S.W.3d at 459. When a party holding criminal records opposes a petition for expunction, the petitioner carries the burden to present evidence establishing that the case meets all the conditions in the expunction statute. See Matter of A.H. , 580 S.W.3d at 847 ; see also In re D.W.H. , 458 S.W.3d 99, 104 (Tex.App.--El Paso 2014, no pet.). Thus, a trial court abuses its discretion if it orders an expunction of records when a petitioner fails to satisfy all the statutory requirements. O.T.A. , 564 S.W.3d at 459 ; see generally Matter of Expunction of R.P. , 574 S.W.3d at 643 (recognizing that a trial court abuses its discretion in granting an expunction if it acts arbitrarily or unreasonably without reference to guiding rules and principles of law).

T.D.N. sought expunction under Article 55.01(a)(1)(A) of the Code, which sets forth these requirements for obtaining an expunction of an offense based on an acquittal:

(a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:

(1) the person is tried for the offense for which the person was arrested and is:

(A) acquitted by the trial court, except as provided by Subsection (c).

TEX.CODE CRIM.PROC.ANN. art. 55.01(a)(1)(A). In opposing T.D.N.'s petition, the Department, relied on an exception which precludes a petitioner from receiving an expunction when the acquitted offense arose out of a "criminal episode," and he was convicted of another offense occurring during that episode. Id. art. 55.01(c). The exception in Article 55.01(c) adopts the definition of "criminal episode" from Section 3.01 of the Texas Penal Code :

[T]he 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 ANN. § 3.01.

C. Analysis

1. A factual nexus between the two offenses is not required

As discussed above, the Department contends that the trial court lacked the authority to expunge T.D.N.'s 2015 arrest record because it was part of the same "criminal episode" as the 2002 aggravated sexual assault of a child offense. T.D.N., however contends that the two offenses could not have arisen from the same criminal episode, as there was no "factual nexus" between them or any showing that they were part of a "common scheme." In particular, T.D.N. points out that the two offenses were committed some thirteen years apart and involved different victims, and that nothing in the record suggests the existence of any factual connection between them.

But Section 3.01 of the Penal Code provides two separate methods for determining whether multiple offenses arose from the same "criminal episode." TEX.PENAL CODE ANN. § 3.01(1), (2) ; see also Duncan v. State , No. 08-12-00328-CR, 2013 WL 5716179, at *2 (Tex.App.--El Paso Oct. 18, 2013, no pet.) (not designated for publication) (recognizing the differing methods of establishing that multiple offenses arose from the same criminal episode under Section 3.01 of the Penal Code ). T.D.N.'s arguments address the first method set forth in subsection (1). TEX.PENAL CODE ANN. § 3.01(1) (common plan or scheme). But the Department does not seek to use this subsection. Instead, it relies on subsection (2), which allows a court to determine that multiple offenses arose from the same criminal episode if they constituted the "repeated commission of the same or similar offenses." TEX.PENAL CODE ANN. § 3.01(2). And under this subsection, there is no requirement that the two offenses have a factual nexus or relationship to each other. To the contrary, the legislature has imposed no requirement in Section 3.01(2) that the two "repeated" offenses must involve the same victim, be close in temporal or geographic proximity, or were committed in the same or similar fashion. See Matter of Expunction of J.B. , 564 S.W.3d 436, 441 (Tex.App.--El Paso 2016, no pet.) ; In re M.T.R. , No. 01-18-00938-CV, 606 S.W.3d 288, 292-94 (Tex.App.--Houston [1st Dist.] Feb. 27, 2020, no pet.) ; Ex parte R.A.L. , No. 04-19-00479-CV, 2020 WL 557542, at *2 (Tex.App.--San Antonio Feb. 5, 2020, pet. denied) (mem. op., not designated for publication) ; Ex parte J.A.B. , 592 S.W.3d 165, 169 (Tex.App.--San Antonio 2019, no pet.). We must presume that the legislature's failure to include any such requirements in subsection (2) was deliberate, and that the legislature expressed its intent that no such requirements should be imposed. See In re M.T.R. , 606 S.W.3d at 292-93 ("We presume that the Legislature chose this statutory language with care and that its decision to omit language imposing a time frame or other limitations on the definition of a criminal episode was purposeful."); see also Matter of Expunction of J.B. , 564 S.W.3d at 441 (recognizing that if the legislature had wanted courts to "consider a time differential" in its application of Section 3.01 it easily could have done so).

For that reason, we reject T.D.N.'s argument that the 2015 and 2002 offenses did not arise from the same criminal episode just because they involved different victims and occurred several years apart. Instead, we turn our attention to whether the two offenses can be said to constitute the "repeated commission of the same or similar offense" under Section 3.01(2) of the Code.²

2. Determining when two offenses are the "same or similar"

No doubt, a defendant commits two offenses that are the "same or similar" when he has violated the same Penal Code provision in both instances. See, e.g., Ex parte R.A.L. , 2020 WL 557542, at *2 (petitioner was not entitled to an expunction where he was acquitted in 2017 of the offense of driving while intoxicated where he was previously convicted in 2013 for the same offense). But since the Code speaks of offenses that are both the "s...