Ex Parte T.M.S. ( 2022 )

Opinion filed July 21, 2022
In The
Eleventh Court of Appeals
__________
No. 11-20-00175-CV
__________
EX PARTE T.M.S.
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 21615-B
OPINION
This is a restricted appeal from the trial court’s order to expunge T.M.S.’s
criminal record after an acquittal. In a single issue, the Texas Department of Public
Safety (DPS) asserts that the trial court erred by expunging T.M.S.’s criminal record
arising from a 2018 arrest for burglary of a vehicle because the offense for which he
was acquitted arose from the same criminal episode as two prior offenses for which
he was convicted. We reverse the order expunging T.M.S.’s criminal record and
render judgment in favor of DPS and all other respondents to the expunction
proceeding.
Background
On November 8, 2018, T.M.S. was indicted for burglary of a vehicle with two
prior convictions, a state jail felony. See TEX. PENAL CODE ANN. § 30.04(d)(2)(A)
(West 2019). The State alleged in the indictment that T.M.S. had two prior
convictions for burglary of a vehicle. The first alleged conviction occurred in 1987,
and the second alleged conviction occurred in 2002. As noted in Reed v. State, “[t]he
two-prior-conviction provision in section 30.04(d)(2)(A) is jurisdictional because
the prior convictions are necessary to establish a felony to give the district court
jurisdiction.” No. 14-18-00748-CR, 2020 WL 2070732, at *2 (Tex. App.—Houston
[14th Dist.] Apr. 30, 2020, pet. ref’d) (mem. op., not designated for publication)
(citing Oliva v. State, 548 S.W.3d 518, 528 (Tex. Crim. App. 2018)).
The criminal case proceeded to a jury trial in January 2020. As set out below,
the evidence during the guilt/innocence phase included evidence of the two prior
convictions alleged by the State. After hearing all the evidence, the jury acquitted
T.M.S. of the charged offense.
Following his acquittal, on February 18, 2020, T.M.S. filed a petition to
expunge all records related to his 2018 arrest—citing Article 55.01(a)(2)(A) of the
Texas Code of Criminal Procedure. He included DPS as a respondent to the
expunction proceeding. On February 21, 2020, the trial court granted T.M.S.’s
petition and ordered that his 2018 record be expunged. On August 7, 2020, DPS
filed its notice of restricted appeal.
Analysis
In a single issue, DPS asserts that T.M.S. was not entitled to an expunction
because of his prior convictions for burglary of a vehicle. Because this is a restricted
appeal, DPS must prove the following:
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(1) [it] filed notice of the restricted appeal within six months after the
judgment was signed;
(2) [it] was a party to the underlying lawsuit;
(3) [it] did not participate in the hearing that resulted in the judgment
complained of, and did not timely file any post-judgment motions or
requests for findings of fact and conclusions of law; and
(4) error is apparent on the face of the record.
Ex parte E.H., 602 S.W.3d 486, 495 (Tex. 2020) (citing Pike-Grant v. Grant, 447
S.W.3d 884, 886 (Tex. 2014)); see also TEX. R. APP. P. 30. To obtain relief under a
restricted appeal, a party must meet each of the above requirements—the first three
of which are jurisdictional. E.H., 602 S.W.3d at 497. Our review of a restricted
appeal is limited to the face of the record; we are prohibited from considering
extrinsic evidence. Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848–49 (Tex.
2004). The “face of the record” consists of all the evidence before the trial court
when it entered its judgment. Id. In reviewing the face of the record, we may not
draw any inferences or make any presumptions. Id. at 849. Here, the record on
appeal consists of a clerk’s record, which contains filings from both the criminal
proceeding and the expunction, and a reporter’s record from the criminal trial.
The trial court signed its order for expunction on February 21, 2020. DPS
filed its notice of restricted appeal on August 7, 2020, thereby satisfying the first
requirement. DPS was a party to the suit. See Tex. Dep’t of Pub. Safety v. Katopodis,
886 S.W.2d 455, 458 (Tex. App.—Houston [1st Dist.] 1994, no writ) (noting that
each law enforcement agency is entitled to represent itself); see also TEX. CODE
CRIM. PROC. ANN. art. 55.02, § (3)(a) (West Supp. 2021) (“The person who is the
subject of the expunction order or an agency protesting the expunction may appeal
the court’s decision in the same manner as in other civil cases.”). However, DPS
did not file a response to T.M.S.’s petition for expunction and it appears that
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DPS’s first notice of the proceeding was a notice from the trial court clerk that an
order of expunction had been entered. Therefore, DPS was a nonparticipating party
to this suit, thereby satisfying the second and third requirements.
This appeal primarily concerns whether there is error on the face of the record.
DPS asserts that the trial court’s implicit 1 interpretation and application of “criminal
episode” as used in Article 55.01(c) of the Texas Code of Criminal Procedure “is in
conflict with its text, structure, and purpose, as well as prior holdings of other Texas
courts.” Thus, for us to determine if there is error on the face of the record, we must
interpret the intended meaning of the term “criminal episode.”
“[T]here is no constitutional right to [an] expunction.” Ex parte K.T., 645
S.W.3d 198, 201–02 (Tex. 2022) (citing Ex parte R.P.G.P., 623 S.W.3d 313, 316
(Tex. 2021); In re State Bar of Tex., 440 S.W.3d 621, 624 (Tex. 2014) (orig.
proceeding)). Instead, it is governed by Article 55.01 of the Texas Code of Criminal
Procedure. Ex parte R.P.G.P., 623 S.W.3d at 316.
The meaning of a statute is a question of law reviewed de novo. Id. at 317.
This case presents a question of statutory construction. Specifically, this case turns
on the construction of the term “criminal episode” under Article 55.01(c) of the
Texas Code of Criminal Procedure and Section 3.01 of the Texas Penal Code.
“Statutes are to be analyzed ‘as a cohesive, contextual whole’ with the goal of
effectuating the Legislature’s intent and employing the presumption that the
Legislature intended a just and reasonable result.” T.S.N., 547 S.W.3d at 620.
Generally, “[u]nless the context or the statute instructs otherwise, our analysis begins
with the plain language of the statute read in context, not in isolation.” Ex parte
1
We note that T.M.S.’s petition for expunction did not specifically reference the exception listed in
Article 55.01(c) or its requirements. Additionally, we do not have a reporter’s record from the proceeding
wherein the trial court granted Appellant’s petition for expunction.
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R.P.G.P., 623 S.W.3d at 317 (citing Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d
496, 501 (Tex. 2015)).
In relevant portion, Article 55.01 of the Texas Code of Criminal Procedure
provides that:
(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);
....
(c) 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, whether by the trial court, a court of appeals, or the court of
criminal appeals, 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.
CRIM. PROC. art. 55.01(a)–(c). This rule generally provides that a person is entitled
to an expunction of an arrest record if they are later acquitted. See id. However, this
general entitlement is limited to the exceptions found in subsection (c). Id.Article 55.01(c) references Section 3.01 of the Texas Penal Code for the
definition of criminal episode. Section 3.01 defines “criminal episode” as follows:
In this chapter, “criminal episode” means 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:
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(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 (West 2021). To invoke the Article 55.01(c)
exception, and deny access to an expunction, the State must “establish that a
‘criminal episode’ has in fact been formed.” Ex parte K.T., 645 S.W.3d at 202.
Additionally, “the State must show that the acquittal at issue ‘arose out of’ that
‘criminal episode.’” Id.
“[A] ‘criminal episode’ cannot exist without at least two qualifying
‘offenses.’” Id. The question before us is whether two prior convictions, one in
1987 and one in 2002, may be considered as “the repeated commission of the same
or similar offenses” for expunction purposes because of their age. See CRIM. PROC.
art 55.01(c); see also PENAL § 3.01(2). We conclude that they can.
Our primary goal when interpreting statutes is to ensure that the legislature’s
intent is given effect. 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) (op. on reh’g).
In determining the legislature’s intent, we begin with the language of the statute.
State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). “We operate under the
presumption that the legislature chooses a statute’s language with care, deciding to
omit or include words purposefully.” In re Expunction of J.B., 564 S.W.3d 436, 440
(Tex. App.—El Paso 2016, no pet.) (citing In the Interest of M.N., 262 S.W.3d 799,
802 (Tex. 2008)).
Here, T.M.S. was arrested for and acquitted of burglary of a vehicle—which
is an offense under Section 30.04 of the Texas Penal Code. The indictment alleged,
and at trial the State showed, that T.M.S. had been convicted of burglary of a vehicle
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on two prior occasions. In this regard, the State called Dianna Arndt, a forensic
specialist with the Abilene Police Department, to provide testimony about the
fingerprint analysis she performed between T.M.S.’s known fingerprint sample and
the fingerprints on the two prior convictions for the same offense. She testified that
T.M.S.’s fingerprints matched those on the two prior convictions.
T.M.S. was first convicted of burglary of a vehicle in 1987. He was convicted
again of that same offense in 2002. In his brief, T.M.S. contends that applying
Section 3.01(2) of the Texas Penal Code to his prior convictions would lead to an
“absurd, unjust, or nonsensical result.” T.M.S. bases this contention on the fact that
his prior convictions occurred thirty-one years and sixteen years, respectively, before
his arrest for burglary of a vehicle in 2018.
We are unpersuaded by T.M.S.’s argument as to how Section 3.01(2) should
be interpreted. Section 3.01(2) does not contain any temporal limitation within its
definition of a criminal episode. See PENAL § 3.01(2). Therefore, we must presume
that the legislature intentionally decided to not include such a limitation for “the
repeated commission of the same or similar offenses.” Accordingly, regardless of
the dates of T.M.S.’s prior convictions, they may serve as a basis for forming a
criminal episode that precludes expunction.
Our construction of the statute is consistent with the holdings of many of our
sister courts. See State v. D.D.M., No. 14-20-00426-CV, 2022 WL 906002, at *4
(Tex. App.—Houston [14th Dist.] Mar. 29, 2022, no pet.) (“Nor has the legislature
mandated in subsection 3.01(2) that ‘repeated’ commission of the same or similar
offenses . . . be close in temporal or geographic proximity . . . . Accordingly, we
conclude that article 55.01(c)’s exception is established as a matter of law.”); Ex
parte M.B.F., 642 S.W.3d 928, 931 (Tex. App.—Waco 2022, no pet.) (“Had the
Legislature wanted us to consider a time differential in the application of this section
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of the code, it could have easily done so.” (quoting Guidry v. State, 909 S.W.2d 584,
585 (Tex. App.—Corpus Christi–Edinburg 1995, pet. ref’d))); Matter of T.D.N., 620
S.W.3d 433, 439 (Tex. App.—El Paso 2020, no pet.) (“[T]he legislature has imposed
no requirement in Section 3.01(2) that the two ‘repeated’ offenses must . . . be close
in temporal . . . proximity . . . . 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 . . . occurred several years apart.”); In re M.T.R., 606 S.W.3d 288, 292 (Tex.
App.—Houston [1st Dist.] 2020, no pet.) (“As our sister court has observed in
addressing this same argument by DPS, ‘Section 3.01(2) does not impose a particular
time frame within which the same or similar offenses must be repeated.’” (quoting
Ex parte J.A.B., 592 S.W.3d 165, 169 (Tex. App.—San Antonio 2019, no pet.))).
T.M.S. contends that “DPS[’s] evidence is insufficient in demonstrating that
the finders of fact in the trial court found that [T.M.S.] in this appeal was the same
person who was convicted [in] 1987 and/or 2002.” T.M.S. essentially contends that
the jury’s acquittal in the criminal case can possibly be viewed as a failure of proof
of the two prior convictions alleged for jurisdictional purposes. We disagree with
T.M.S.’s analysis. We first note that T.M.S.’s argument requires one to speculate
on the jury’s thought processes—a task that appellate courts are not well-suited to
perform. See Springs Window Fashions Div., Inc. v. Blind Maker, Inc., 184 S.W.3d
840, 867 (Tex. App.—Austin 2006, pet. granted, judgm’t vacated w.r.m.).
Furthermore, the criminal proceeding was based on a higher standard of proof—
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Moreover, the jury declined to convict T.M.S. of the lesser included offense of
misdemeanor burglary of a vehicle—an offense that did not include the two prior
convictions for the same offense. See PENAL § 30.04(d).
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From the face of the record, there is evidence that T.M.S. was the same
individual that was convicted in 1987 and 2002 of burglary of a vehicle. Arndt, the
forensic specialist, testified that she had completed advanced fingerprint comparison
courses. The State’s ninth exhibit was a “10-print card” of T.M.S.’s fingerprints that
Arndt took on January 22, 2020. The State’s tenth exhibit was the judgment and
sentence for the 2002 burglary-of-a-vehicle conviction. It also contains an ink print
of T.M.S.’s right thumb and a signature from T.M.S. The State’s eleventh exhibit is
a “pen packet” for the 1987 burglary-of-a-vehicle conviction that includes an
affidavit, a photograph of T.M.S., the judgment of conviction, and a “10-print card.”
During T.M.S.’s trial, Arndt testified that the fingerprints included within Exhibit
Nos. Ten and Eleven matched those in Exhibit No. Nine. Thus, from the face of the
record, there is ample evidence that T.M.S. is the same person that was convicted in
1987 and 2002 for burglary of a vehicle.
Under the plain language of Section 3.01(2), there is a clear error on the face
of the record. T.M.S.’s two prior convictions for burglary of a vehicle precluded the
expunction of T.M.S.’s third arrest for burglary of vehicle irrespective of his
acquittal for that offense. Accordingly, the trial court abused its discretion by
entering its order of expunction. We sustain DPS’s sole issue on appeal.
As noted by DPS, the Texas Supreme Court’s holding in Ex parte Elliot
provides that the relief afforded by our judgment applies equally to all law
enforcement agencies named in the expunction order whether or not they
participated in this appeal. 815 S.W.2d 251, 251–52 (Tex. 1991) (per curiam)
(holding that the reversal of an expunction order applies to all law enforcement
agencies named in it even if those agencies did not appeal). Pursuant to DPS’s
prayer for relief, we order that any documents relating to T.M.S.’s 2018 arrest that
were surrendered to the trial court or T.M.S. be returned to the submitting agencies.
9
See id. at 252; Ex parte M.A.S., No. 13-19-00516-CV, 2021 WL 2694785, at *5
(Tex. App.—Corpus Christi–Edinburg July 1, 2021, no pet.) (mem. op.).
This Court’s Ruling
We reverse the trial court’s expunction order and render judgment denying
T.M.S.’s petition for expunction. Any documents that relate to T.M.S.’s 2018 arrest
and were surrendered to the trial court or T.M.S. are ordered to be returned to the
submitting agencies.
JOHN M. BAILEY
CHIEF JUSTICE
July 21, 2022
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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