in Re the Expunction of J.D.R. ( 2022 )

Opinion issued February 24, 2022
In The
Court of Appeals
For The
First District of Texas
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NO. 01-20-00161-CV
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IN RE THE EXPUNCTION OF J.D.R.
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Case No. 1653268
DISSENTING OPINION
J.D.R. is entitled to an expunction of his arrest records. He was accused of an
offense but acquitted by a jury, and so he is entitled to an expunction unless he
“remains subject to prosecution for at least one other offense occurring during the
[same] criminal episode.” See TEX. CODE CRIM. PROC. art. 55.01(c).
When J.D.R. was acquitted, he filed a request for expunction, which the trial
court granted. Only after the trial court granted the expunction did the State object,
claiming that J.D.R. fell within the exception to expunction; the State argued he
remains subject to prosecution for another offense occurring during the same
criminal episode because there was evidence presented during his trial that he
committed another, similar offense. But the State has not made even a minimal
showing that J.D.R. remains subject to prosecution for this other offense. The State
should not be able to bar an acquitted person from receiving an expunction without
any evidence that the person has pending charges against him or is even being
investigated for additional charges.
Not only does the State argue that it can bar J.D.R.’s expunction without any
proof that he remains subject to prosecution, but the State also argues that J.D.R. is
by law required to prove that he is not subject to prosecution for any similar
offense—a fact exclusively within the prosecutor’s domain, at least until the
prosecutor brings formal charges. No appellate court has reversed an expunction on
the ground that an acquitted person remains subject to prosecution without evidence
of pending charges against him or testimony from a prosecutor stating he is still
being investigated for further charges.
I do not believe our court should be the first to hold that a petitioner for
expunction is not entitled to receive that expunction based only on testimony given
during a separate criminal proceeding. Without some evidence presented in the civil
expunction proceeding that the petitioner is subject to prosecution for another similar
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offense, he cannot prove that he is not subject to prosecution; to hold otherwise
places an impossible burden of proof on the petitioner.
DISCUSSION
A. Expunction Statute
The Code of Criminal Procedure allows a person who has been acquitted of
an offense to expunge the records relating to the arrest. TEX. CODE CRIM. PROC. art.
55.01. The statute is designed to protect wrongfully accused people from inquiries
about their arrests. In re State Bar of Tex., 440 S.W.3d 621, 624 (Tex. 2014); see
also Ex parte S.C., 305 S.W.3d 258, 263 (Tex. App.—Houston [14th Dist.] 2009, no
pet.) (stating “statute was enacted to prevent the record of a wrongful arrest from
negatively impacting a person for the remainder of his life”). Article 55.01 provides
that a person is entitled to have all records and files relating to an arrest expunged if
the person is tried for the offense and acquitted, unless the offense “arose out of a
criminal episode” and the person “was convicted or remains subject to prosecution
for at least one other offense occurring during the criminal episode.” TEX. CODE
CRIM. PROC. art. 55.01(a), (c). “Criminal episode” is defined as the “commission of
two or more offenses” when the offenses are (1) “committed pursuant to the same
transaction”; or (2) the “repeated commission of the same or similar offenses.” TEX.
PENAL CODE § 3.01. Generally, the person seeking expunction bears the burden of
establishing that all of the statutory requirements are met. See Tex. Dep’t of Pub.
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Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no
pet.).
B. Standard of Review
A trial court’s ruling on a petition for expunction is reviewed for abuse of
discretion. State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018). Under the abuse of
discretion standard, appellate courts afford no deference to the trial court’s legal
determinations because the trial court has no discretion in deciding what the law is
or in applying it to the facts. Id. Thus, a trial court’s legal conclusions are reviewed
de novo. Id. When the trial court’s ruling on the expunction request hinges on a
question of law, such as the meaning of the exception in Article 55.01(c), it is subject
to de novo review. See id.; see also Cadena Comercial USA Corp. v. Tex. Alcoholic
Beverage Comm’n, 518 S.W.3d 318, 325 (Tex. 2017) (stating that statutory
interpretation is a question of law).
C. Analysis
The State argues that J.D.R. is not entitled to expunction because he remains
subject to prosecution for an offense that is the same as or similar to the offense for
which he was acquitted. J.D.R. was tried for and acquitted of sexual assault of a
child. See TEX. PENAL CODE § 22.011. There was also testimony presented at his
criminal trial that J.D.R. engaged in sexual contact with a child. See TEX. PENAL
CODE § 21.11. Because these two offenses are similar, the State argues they are part
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of the same criminal episode, and so J.D.R. is not entitled to expunction because he
remains subject to prosecution for another offense occurring during the same
criminal episode and thus falls under the Article 55.01(c)exception to expunction.
I agree with the majority that the offense for which J.D.R. was acquitted and
the offense described by the trial testimony are part of the same criminal episode,
although for a different reason. The majority relies on In re M.T.R., which held that
a criminal episode for purposes of the expunction statute is any repeated commission
of the same or similar offenses. 606 S.W.3d 288, 293–94 (Tex. App.—Houston [1st
Dist.] 2020, no pet.). I do not agree with that interpretation of “criminal episode.”
Instead, I agree with the meaning the Dallas Court of Appeals proposed in Ex parte
Ferris in an opinion authored by Justice Pedersen, which held that a criminal
episode, when properly considered in context, is the repeated commission of the
same or similar offenses that could be joined for prosecution and sentencing under
Chapter 3, Penal Code. 613 S.W.3d 276, 284 (Tex. App.—Dallas 2020, pet. granted)
(en banc). The two offenses alleged against J.D.R., sexual assault of a child and
sexual contact with a child, could have been joined for prosecution in a single
criminal action, and so they are part of the same criminal episode.
Still, the State contends that J.D.R. “remains subject to prosecution” for the
offense of sexual contact with a child, and thus he is ineligible for expunction,
because of testimony given during his criminal trial. See TEX. CODE CRIM. PROC.
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art. 55.01(c). While there was testimony that he committed the offense, the State has
presented no evidence that J.D.R. remains subject to prosecution for it. The State has
not charged J.D.R. with the offense, nor has the State provided evidence that the
State is still investigating J.D.R. for that offense. The State argues it is not required
to prove that there are any pending charges against the petitioner for the petitioner
to remain subject to prosecution, citing In re I.V., 415 S.W.3d 926 (Tex. App.—El
Paso 2013, no pet.), and State v. Echeverry, 267 S.W.3d 423 (Tex. App.—Corpus
Christi–Edinburg 2008, pet. denied).
Both cases on which the State relies are distinguishable from the present case,
however. In In re I.V., the district attorney testified at the expunction hearing that,
based on the victim’s testimony, she believed there were additional, related charges
that could be brought against the petitioner in the future, and so the expunction
record affirmatively reflected that the petitioner was still subject to prosecution for
similar offenses. 415 S.W.3d at 931. In Echeverry, the district attorney testified at
the expunction hearing that his office was investigating specific offenses that the
petitioner committed on the same day as the offense for which the petitioner was
acquitted. 267 S.W.3d at 426. In both cases, there was affirmative testimony from
the prosecutor that the petitioner was still being investigated for possible charges.
In other cases involving a denial of expunction based on the “remains subject
to prosecution” exception, there were already pending charges against the petitioner.
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E.g., In re J.B., 564 S.W.3d 436 (Tex. App.—El Paso 2016, no pet.) (holding
acquitted petitioner not entitled to expunction where he admitted in his petition that
he was still subject to a pending, related charge).
The State has not cited, nor have I identified, any authority to support the
claim that a petitioner “remains subject to prosecution” for an offense without any
formal charge or even evidence at the expunction hearing that a district attorney
might bring a formal charge. In this case, there was testimony at trial that J.D.R.
committed the offense of sexual contact with a child, and I do not intend to dismiss
or belittle this testimony. But we have no reason to believe that the testimony was
not used for the purpose it was offered; we must presume the jury in that trial
considered that testimony and gave it the appropriate weight in deciding J.D.R.’s
guilt or innocence.
The State did not present that testimony from the criminal trial to the trial
court before J.D.R.’s petition for expunction was granted, nor did it present any
evidence that charges had been or could be brought against J.D.R. The State argued,
for the first time in its motion for new trial after the petition for expunction was
granted, that the trial court should not have granted the petition for expunction solely
because of the testimony presented during the separate criminal trial. The State
would require a trial court, which may not even be the same court that presided over
the underlying criminal proceeding, to scour not only the criminal trial record for
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any evidence of a potentially related offense before granting a petition for
expunction, but also virtually any record created during the petitioner’s lifetime for
such a potentially related offense, because, as we held—incorrectly, I believe—in In
re M.T.R., a “criminal episode” includes any two similar offenses that occur at any
time during the petitioner’s life. See 606 S.W.3d at 293–94 (holding petitioner not
entitled to expunction of DWI offense for which he was acquitted because of his
DWI conviction that occurred three years earlier).
The Texas Supreme Court has agreed with the general rule that a person is not
entitled to expunction until all of the statutory conditions are met, see T.S.N., 547
S.W.3d at 620, but the Court has not had an opportunity to answer the question
before us: whether a petitioner for expunction should bear the burden of proving he
is not subject to prosecution for an offense before the State has provided some
evidence that he is subject to prosecution for the offense. A petitioner cannot negate
charges that do not exist. To require the petitioner to prove he is not subject to
pending charges, without first requiring the State to make at least a minimal showing
of possible or pending charges, is an absurd reading of the statute. See id. at 621
(statutory analysis of the expunction statute is limited to plain meaning of statutory
language “unless . . . the plain meaning leads to absurd or nonsensical results”). I
would hold, consistent with the outcomes in In re I.V. and Echeverry, that before a
petitioner for expunction must prove he is not subject to prosecution for an offense,
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the State present evidence that the petitioner has been charged for the offense or at
least present evidence that the petitioner is being investigated for a potential charge.
See In re I.V., 415 S.W.3d at 931–32; Echeverry, 267 S.W.3d at 426–27. This
reading effectuates the intent of the statute without placing an impossible burden of
proof on the petitioner.
The majority holds that J.D.R. is not entitled to expunction because he
“remains subject to prosecution” for sexual contact with a child and he did not
provide evidence to the contrary. Considering that, at the time the trial court granted
J.D.R.’s expunction petition, the State had not put forward any evidence in the civil
proceeding that J.D.R. was subject to prosecution, it is impossible to conceive how
J.D.R. could have countered that claim and why his expunction should have been
denied on that basis.
CONCLUSION
To burden a person who has been acquitted of an offense with the significant,
real-life consequences of possible loss of employment or housing that arise even
from an unsuccessful prosecution is unjust, and doing so is even more unjust when
the supposed “criminal episode” barring the expunction is based on a possible future
prosecution for which there is no formal charge or even sworn testimony from a
prosecutor claiming the charge may be brought. For this reason, I dissent.
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Gordon Goodman
Justice
Panel consists of Justices Goodman, Rivas-Molloy, and Farris.
Justice Goodman, dissenting.
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