State v. N.R.J.

453 S.W.3d 76

The STATE of Texas, Appellant.

v.N.R.J., Appellee.

No. 02–13–00082–CV.

Court of Appeals of Texas, Fort Worth.

Nov. 26, 2014.

Paul Johnson, Crim. Dist. Atty., Catherine Luft, Asst. Crim. Dist. Atty., Denton, for Appellant.

Matthew J. Kita, Dallas, for Appellee.

PANEL: DAUPHINOT, WALKER, and McCOY, JJ.

OPINION

SUE WALKER, Justice.

I. Introduction

Appellant the State of Texas perfected this appeal after the trial court granted Appellee N.R.J.'s petition for an expunction. See Tex.Code.Crim. Proc. Ann. art. 55.02, § 3(a) (West Supp.2014). We will address two issues in this appeal. First, we will determine whether this court's opinion in S.J. v. State —holding that, to be entitled to an expunction, all charges arising from an arrest must satisfy the expunction statute's requirements—applies to bar expunction in this case of a single charge from a multi-charge arrest. See 438 S.W.3d 838, 845 (Tex.App.-Fort Worth 2014, no pet.). Second, we will address whether an admission of guilt to an offense and a request that the trial court consider that admission as a plea in bar in determining punishment for another offense precludes expunction of the admitted, unadjudicated offense. See Tex. Penal Code Ann. § 12.45 (West 2011) ; Tex.Code.Crim. Proc. Ann. art. 55.01(a)(2) (West Supp.2014). Because both issues must be answered in the affirmative, we hold that an expunction is not available in this case, and we reverse the trial court's order of expunction and render judgment denying N.R.J.'s petition for expunction.

II. Background

N.R.J. was arrested on December 6, 2007, for the misdemeanor offenses of driving while intoxicated (DWI) and possession of two ounces or less of marijuana. See Tex. Penal Code Ann. § 49.04 (West Supp.2013); Tex. Health & Safety Code Ann. § 481.121(b)(1) (West 2010). N.R.J. pleaded nolo contendere to DWI, and in the course of his plea, he admitted guilt to the possession offense pursuant to penal code section 12.45 and requested that the trial court take that offense into account in assessing punishment for the DWI offense. See Tex. Penal Code Ann. § 12.45. The trial court found N.R.J. guilty of DWI, considered the possession offense in assessing punishment for DWI, and placed him on community supervision for fifteen months. The trial court ordered that prosecution of N.R.J. for the possession offense be barred with prejudice.

N.R.J. subsequently filed a petition for expunction of all criminal records and files relating to his arrest for the possession-of-marijuana offense. After a hearing, the trial court granted the petition and ordered that the records and files relating to the possession offense be expunged. The State perfected this appeal.

In three issues, the State argues that the trial court abused its discretion by ordering an expunction for the possession-of-marijuana offense arising out of N.R.J.'s arrest because he was also arrested for and finally convicted of DWI, because he admitted his guilt to the possession-of-marijuana offense in the plea in bar, and because the possession offense remained pending.¹

III. Standard of Review and Statutory Construction Rules

We review a trial court's decision granting or denying a petition for expunction for an abuse of discretion. See Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex.App.-Austin 2002, pet. denied). However, “[t]o the extent a ruling on expunction turns on a question of law, we review the ruling de novo because ‘[a] trial court has no “discretion” in determining what the law is or applying the law to the facts.’ ” Tex. Dep't of Pub. Safety v. Dicken, 415 S.W.3d 476, 478 (Tex.App.-San Antonio 2013, no pet.). A trial court abuses its discretion if it orders an expunction of records despite a petitioner's failure to satisfy all of the statutory requirements. In re O.R.T., 414 S.W.3d 330, 332 (Tex.App.-El Paso 2013, no pet.) ; Travis Cnty. Dist. Attorney v. M.M., 354 S.W.3d 920, 923, 929 (Tex.App.-Austin 2011, no pet.) (en banc) (op. on reh'g).

When construing statutes, we use a de novo standard of review, and our primary objective is to ascertain and give effect to the legislature's intent. Tex. Gov't Code Ann. § 312.005 (West 2013) ; F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex.2007). To discern that intent, we begin with the statute's words. Tex. Gov't Code Ann. §§ 312.002 –.003 (West 2013); State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). If a statute is unambiguous, we adopt the interpretation supported by its plain language unless such an interpretation would lead to absurd results that the legislature could not possibly have intended. Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex.2004). We consider statutes as a whole rather than their isolated provisions. Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004). We presume that the legislature chooses a statute's language with care, deciding to include or omit words for a purpose. In re M.N., 262 S.W.3d 799, 802 (Tex.2008).

IV. Article 55.01 of the Code of Criminal Procedure

The remedy of expunction allows a person who has been arrested for the commission of an offense to have all information about the arrest removed from the State's records if he meets the statutory requirements of article 55.01 of the code of criminal procedure. See Tex.Code Crim. Proc. Ann. art. 55.01 ; Tex. Dep't of Pub. Safety v. Nail, 305 S.W.3d 673, 674 (Tex.App.-Austin 2010, no pet.) (op. on reh'g). A petitioner's right to an expunction is purely a matter of statutory privilege, and the petitioner bears the burden of demonstrating that each of the required statutory conditions have been met. Nail, 305 S.W.3d at 674 ; Tex. Dep't of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex.App.-Houston [14th Dist.] 2008, no pet.); see Tex.Code Crim. Proc. Ann. art. 55.01.

Article 55.01 was most recently amended in 2011, and the amended article applies here. See Tex Code Crim. Proc. Ann. art. 55.01 ; Act of May 25, 2011, 82nd Leg., R.S., ch. 894, § 3, 2011 Tex. Sess. Law Serv. 2275, 2276 (West). Article 55.01 provides in relevant part:

(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:

....

(2) the person 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, unless the offense is a Class C misdemeanor, provided 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 based on 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, and:

....

[a certain amount of time has elapsed]; 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.

Tex.Code Crim. Proc. Ann. art. 55.01(a)(2).

The statute entitles a petitioner to have “all records and files relating to the arrest expunged if” certain conditions are met. Id. (emphasis added). Here, N.R.J. is not seeking, nor is he entitled to, an expunction of all records and files relating to his December 6, 2007 arrest because he was also arrested for DWI on that date and was finally convicted of that offense. See id. He instead seeks expunction of all records and files relating to the possession charge arising from that arrest.

V. Expunction Statute is Arrest–Based

The State argues in its first issue that the expunction statute does not provide for expunction of an individual charge (like N.R.J.'s possession charge) that arises out of a multi-charge arrest (like N.R.J.'s arrest) unless all charges satisfy article 55.01's requirements. The State noted in its brief that this was an issue of first impression in this court, but after this case was submitted, we issued our opinion in S.J., holding that “for a petitioner to be entitled to expunction under article 55.01, all charges arising from the arrest must meet that article's requirements.” 438 S.W.3d at 845.

In S.J., the petitioner was arrested for a single offense—aggravated assault—but pleaded nolo contendere to terroristic threat in exchange for dismissal of the aggravated assault charge. Id. at 839. Although the case did not involve a multi-charge arrest like we have in this case, we find our holding in S.J. equally applicable here.² Our sister courts have also reached the same conclusion as we did in S.J. in multi-charge arrest situations. See In re D.W.H., No. 08–12–00031–CV, ––– S.W.3d ––––, ––––, 2014 WL 5798204, at *3 (Tex.App.-El Paso Oct. 22, 2014, no pet. h.) (holding that expunction unavailable for individual charge arising out of arrest for improper relationship between an educator and student when petitioner convicted of possessing illegal firearms arising out of the same transaction); Dicken, 415 S.W.3d at 480 (holding that article 55.01 did not allow expunction of records concerning possession of controlled substance offense when petitioner was also arrested for, and pleaded guilty to, DWI); M.M., 354 S.W.3d at 924 (concluding that former article 55.01 did not provide for expunction of individual records relating to DWI and assault charges when petitioner was also arrested for, and pleaded nolo contendere to, resisting arrest). N.R.J. was arrested and charged with both DWI and possession of marijuana, and because his DWI charge does not satisfy article 55.01's requirements, he is not entitled to an expunction for the possession offense. See S.J., 438 S.W.3d at 845.

The dissent treats...