R.G. v. Harris Cnty. Dist. Attorney's Office

611 S.W.3d 462 (Mem)

R.G., Appellant

v.HARRIS COUNTY DISTRICT ATTORNEY'S OFFICE, Appellee

NO. 14-18-00823-CV

Court of Appeals of Texas, Houston (14th Dist.).

November 3, 2020

Rehearing En Banc Denied November 3, 2020

Alexander Houthuijzen, Houston, TX, for Appellant.

Meagan Scott, Houston, TX, for Appellee.

Before the court en banc.

Motion for rehearing en banc denied.

DISSENTING OPINION ON DENIAL OF EN BANC RECONSIDERATION

Meagan Hassan, Justice

The panel majority concluded Appellant was not entitled to an expunction because his alleged assaults on two different occasions were related to one another based upon "circumstance-based factors". I believe (1) the panel majority both misapplied existing law by impermissibly enlarging statutory language and improperly held the allegations at issue resulted from the same transaction and (2) en banc consideration is "necessary to secure or maintain uniformity of the court's decisions." See Tex. R. App. P. 41.2(c). Therefore, I dissent from the denial of en banc reconsideration.

I. Relevant Facts

Appellant was arrested and charged with two counts of injury to a child based on acts that occurred "on or before October 1, 1992" and "on or before October 4, 1992". A single indictment was returned under one cause number that contained two counts, one for events that occurred at each of the foregoing times. The State dismissed the first count and Appellant pled guilty to the second count. Appellant filed for an expunction of records pertaining to the first count, the trial court denied his petition, and a divided panel of this court affirmed. The majority held that the two separate counts arose from the same transaction because they were based on the same conduct, were against the same victim, and were at most three days apart. See R.G. v. Harris Cty. Dist. Attorney's Office , No. 14-18-00823-CV, 611 S.W.3d 69, 70–71 (Tex. App.—Houston [14th Dist.] Aug. 13, 2020, no pet. h.). The dissent opined that the two counts were not part of the same transaction because they involved different conduct on different days that resulted in different injuries. Id. at 77–78. Appellant timely sought reconsideration en banc.

II. Enlargement

I disagree with the majority's strained use of the "related" test to justify denying Appellant's request for relief because it impermissibly adds words to the relevant statute. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A) (referring to transactions as opposed to related events). "When applying the ordinary meaning, courts ‘may not by implication enlarge the meaning of any word in the statute beyond its ordinary meaning, and implications from any statutory passage or word are forbidden when the legislative intent may be gathered from a reasonable interpretation of the statute as it is written. ’ " Monsanto Co. v. Cornerstones Mun. Util. Dist. , 865 S.W.2d 937, 939 (Tex. 1993) (quoting Sexton v. Mount Olivet Cemetery Ass'n , 720 S.W.2d 129, 138 (Tex. App.—Austin 1986, writ ref'd n.r.e.) (emphasis in original)); see also Jaster v. Comet II Constr., Inc. , 438 S.W.3d 556, 562 (Tex. 2014) ("We must enforce the statute ‘as written’ and ‘refrain from rewriting text that lawmakers chose.’ ") (quoting Entergy Gulf States, Inc. v. Summers , 282 S.W.3d 433, 443 (Tex. 2009) ); Commonwealth of Mass. v. United N. & S. Dev. Co. , 140 Tex. 417, 168 S.W.2d 226, 229 (1942) (adding provisos to a statute "would extend the statute by implication, and no language in the statute authorizes a resort to implication to arrive at some other intent"); and 67 Tex. Jur. 3d Statutes § 78 (2003) ("The court must construe a statute according to what it says, not according to what the court thinks that it should have said, even if the court thinks some other approach might accord with good policy."). While I recognize other intermediate appellate courts have utilized the term "related" in their expunctions analysis, the Texas Supreme Court has yet to adopt this judicially-created standard and I believe it is error for this court to do so.

III. Continuous and Uninterrupted

The majority's panel defines the phrase "criminal transaction" as "a continuous and uninterrupted chain of conduct occurring over a very short period of time ... in a rapid sequence of unbroken events." R.G. , 611 S.W.3d at 75 (quoting Rios v. State , 846 S.W.2d 310, 314 (Tex. Crim. App. 1992) (en banc) (quoting Vuong v. State , 830 S.W.2d 929, 941 (Tex. Crim. App. 1992) (en banc))); see also id. ("an uninterrupted and continuous sequence of events or assaultive acts") (quoting Rubino v. Lynaugh , 770 S.W.2d 802, 804 (Tex. Crim. App. 1989) ). The majority then analyzed the facts to ascertain "circumstance-based factors, particularly the degree of similarity or temporal proximity among the acts or events forming the basis of each charged offense and relevant factual connections between them." Id. at 75 (citations omitted). This analysis, however, ignores the Texas Court of Criminal Appeals' analysis concerning whether "appellant engaged in a continuous and uninterrupted process, over a short period of time, of carrying on or carrying out" the alleged crimes. See Rios , 846 S.W.2d at 314.

Instead, the majority erroneously held "that a maximum of three days" is sufficient to constitute a continuous and uninterrupted chain of events when the alleged criminal acts were of the same character and against the same victim. R.G. , 611 S.W.3d at 74–77 (holding that two similar assaults on the same victim in a "relatively short timeframe" is sufficient to preclude entitlement to expunction). Beyond the lack of specificity concerning the dates of Appellant's alleged conduct, the record does not reveal that Appellant committed (or even that the State attempted to prove Appellant committed) his assaults in a continuous or uninterrupted manner. Instead, the State alleged that two events occurred "on or before October 1, 1992" and "on or before October 4, 1992". Therefore, there is neither evidence nor allegation tending to establish Appellant's assaults were continuous or uninterrupted.

IV. The Need to Maintain Uniformity of this Court's Decisions

In Ex parte N.B.J. , this court cited with approval three cases from other appellate courts where a petitioner was not entitled to an expunction because "the dismissed and pled-to charges arose from the same criminal transaction." 552 S.W.3d 376, 381 n.6 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (citing Travis Cty. Dist. Attorney v. M.M. , 354 S.W.3d 920 (Tex. App.—Austin 2011, no pet.) (en banc); Ex parte Davila , No. 13-15-00202-CV, 2016 WL 872997 (Tex. App.—Corpus Christi Feb. 18, 2016, no pet.) (mem. op.) ; and Ex parte M.R.L. , No. 10-11-00275-CV, 2012 WL 763139 (Tex. App.—Waco Mar. 7, 2012, pet. denied) (mem. op.) ). In M.M. , the petitioner (1) "was arrested for driving while intoxicated ..., resisting arrest, and assault to a public servant", (2) "pled no contest to the resisting-arrest charge", and (3) "admitted guilt as to the charge of assault of a public servant." 354 S.W.3d at 921. In Ex parte Davila , the petitioner "grabbed a woman by her neck, put his hand in her shorts, ... touched her breasts and buttocks with the intent to commit sexual assault ... [and] allegedly locked a door in the store, restricting the woman's movements." 2016 WL 872997, at *1. In Ex parte M.R.L. , the petitioner was charged with driving while intoxicated and "racing in a motor vehicle with an open container of alcohol in the vehicle[.]" 2012 WL 763139, at *1.

There can be little doubt that the events in each of the foregoing cases arose from the same transaction without resorting to the panel's "related" test. This court's reliance on said cases as exemplars of a singular criminal transaction are binding on this court and the panel's decision represents a material departure therefrom. Therefore, this court should reconsider the instant appeal en banc to secure and maintain uniformity of this court's decisions with respect to expunctions and criminal transactions. See Tex. R. App. P. 41.2(c).

V. Presence in the Same Indictment

Even if I were to accept that we should utilize the "related" test despite its absence from both the statute and supreme court jurisprudence, I still disagree with the nature of the panel majority's analysis because the...