In re the Expunction of D.W.H.

458 S.W.3d 99, 2014 Tex. App. LEXIS 11625

• Court: Court of Appeals of Texas
• Decided: October 22, 2014
• Docket: No. 08-12-00031-CV
• Status: Published

Opinions

OPINION

ANN CRAWFORD McCLURE, Chief Justice.

D.W.H. appeals from a judgment denying his petition for expunction. For the ■ reasons that follow, we affirm.

FACTUAL SUMMARY

D.W.H. and the Tarrant County Criminal District Attorney’s Office submitted an agreed statement of facts to the trial court pursuant to Rule 263 of the Texas Rules of Civil Procedure. See Tex.R.Civ.P. 263. The agreed statement of facts is eighty-two pages in length and consists of a two-page statement of agreed facts and the following ten exhibits:

• Exhibit A — warrant. of arrest and search warrants

• Exhibit B — affidavit from Saginaw Officer Cupples — Arrest and Booking Report

• Exhibit C — Officer Robert Frost’s supplement and Sgt. Jim Ragles’ supplement

• Exhibit D — Officer Corey Burnett’s supplement/crime scene photo log

• Exhibit E — photos of weapons in safe

• Exhibit F — scene entry log and addi- • tional officers’ supplements

• Exhibit G — complaint and no bill

• Exhibit H — judgment

• Exhibit Í — order of surrender

• Exhibit J — pre-sentence report.

The parties agreed that this case began during the early morning hours of June 11, 2008 as a search for a missing female student, B.M. B.M.’s parents reported to the Saginaw Police Department at approximately 2:17 a.m. that their daughter was missing and her vehicle was parked in front of the residence of D.W.H., a high school teacher. The parents reported they had been suspicious of the nature of the relationship because B.M. communicated with D.W.H. frequently at'school, after school, and by phone and text messages. B.M.’s mother also told the police that she had seen her daughter inside D.W.H.’s residence through & rear window. B.M.’s parents went to the residence prior to calling the police and knocked on the door. D.W.H. answered the door while holding a rifle. Police officers went to the residence and spoke with D.W.H. but he denied that B.M. was there. He permitted the police to look for B.M. in some rooms in the house but he would not permit the police to search the bedrooms. The officers left the residence and parked down the street to maintain surveillance on the home. At approximately 6:00 a.m., B.M. exited the residence and the police officers immediately made contact with her. She initially denied having been in D.W.H.’s house. B.M. admitted during an interview later that same day she had been at the house the previous evening. She also admitted that she and D.W.H. had kissed and he had touched her breast. D.W.H., who was clothed, had an erection and rubbed against her in a simulation of sexual intercourse.

Based on their investigation conducted on June 11, 2008, the Saginaw Police Department obtained an arrest warrant for D.W.H. for the felony offense of improper relationship between educator and student.¹ The Saginaw P.D. also obtained a search warrant for D.W.H.’s residence located in Saginaw. The police obtained additional search warrants for D.W.H.’s cell phone, laptop, and memory cards. The parties agreed that the same facts are stated in both the arrest and search warrants. The Saginaw P.D. executed the arrest and search warrants at 11:15 p.m. on June 11, 2008. While executing the search warrants at D.W.H.’s residence, the officers located two gun safes. D.W.H. permitted a search of one gun safe but not the other. On June 12, 2008, Saginaw P.D. contacted the manufacturer of the locked gun safe and obtained the pre-set combination to the safe. The officers opened the safe and found unregistered firearms, including a AR15/M16-type weapon with a shortened barrel of only twelve to fourteen inches. The Saginaw P.D. notified ATF and ATF agents were dispatched to the scene. ATF reviewed the photographs taken at D.W.H.’s home and determined that D.W.H. also possessed viable destructive device component parts and 40 mm anti-personnel projectiles which cannot be legally possessed by civilians. Based on this information, ATF obtained a search warrant for D.W.H.’s home to search for prohibited items. ATF executed the warrant on June 19, 2008 and seized additional items including 40 mm practice grenades, 40 mm anti-personnel rounds, 40 mm illumination rounds, military smoke grenades, and containers of smokeless and black powder.

The agreed statement of facts réflects that two criminal charges against D.W.H. arose out of these facts: (1) a state criminal case for the offense of improper relationship between educator and student with an offense date of June 11, 2008 (cause number 1140274 in the Criminal District Court No. 1 of Tarrant County); and (2) a federal criminal case for possession of an unregistered firearm with an offense date of June 12, 2008 (cause number 4:09-CR-022-Y in the United States District Court, Northern District of Texas, Fort Worth Division). A Tarrant County grand jury later no-billed D.W.H. on the improper relationship between educator and student charge. D.W.H. entered a plea of guilty to the federal charge and he was placed on probation.

The parties filed briefs on the issues presented by the case and requested that the trial court render judgment on the agreed statement of facts in accordance with Rule 263. The court denied the petition for expunction.

Standard of Review

Generally, an appellate court reviews a trial court’s ruling on a petition for expunction under the abuse of discretion standard. See In the Matter of the Expunction of A.G., 388 S.W.3d 759, 761 (Tex.App.-El Paso 2012, no pet.). The abuse of discretion standard of review does not apply because the parties asked the trial court to render judgment based on an agreed statement of facts pursuant to Rule 263.

Rule 263 provides:

Parties may submit matters in controversy to the court upon an agreed statement of facts filed with the clerk, upon which judgment shall be rendered as in other cases; and such agreed statement signed and certified by the court to be correct and the judgment rendered thereon shall constitute the record of the cause.

Tex.R.Civ.P. 263. A case tried on agreed facts is considered to have “the nature of a special verdict” and is a request by the litigants for judgment in accordance with the applicable law. Patton v. Porterfield, 411 S.W.3d 147, 153 (Tex.App.-Dallas 2013, pet. denied), citing Hutcherson v. Sovereign Camp, W.O.W., 112 Tex. 551, 251 S.W. 491 (1923); Unauthorized Practice of Law Committee v. Jansen, 816 S.W.2d 813, 814 (Tex.App.-Houston [14th Dist.] 1991, writ denied). An appellate court conclusively presumes that the parties have brought before the court all facts necessary for the presentation and adjudication of the case. Patton, 411 S.W.3d at 154, citing Cummins & Walker Oil Co. v. Smith, 814 S.W.2d 884, 886 (Tex.App.-San Antonio 1991, no writ).

The agreed facts are binding on the parties, the trial court, and the appellate court. Patton, 411 S.W.3d at 153-54; see Karam v. Brown, 407 S.W.3d 464, 475 (Tex.App.-El Paso 2013, no pet.); Markel Insurance Company v. Muzyka, 293 S.W.3d 380, 384 (Tex.App.-Fort Worth 2009, no pet.). This is in contrast with the deferential review of the facts employed under the abuse of discretion standard. The question on appeal is limited to the correctness of the trial court’s application of the law to the agreed facts. Patton, 411 S.W.3d at 154. Because this is a legal question, we review de novo whether the trial court properly applied the law to the agreed facts. Id.

FINDINGS OF FACT

D.W.H. asserts in his second issue that the trial court erred by failing to file written findings of fact and conclusions of law pursuant to Rules 296 and 297 of the Texas Rules of Civil Procedure. See Tex. R.Civ.P. 296, 297. Due to its potential impact on and relationship to the standard of review, this issue must be address before Issue One.

D.W.H. filed a request for findings and the trial court asked the parties to submit proposed findings. In its response to D.W.H.’s request for findings, the District Attorney’s Office took the position that findings of fact are inappropriate because the parties asked the court to decide the case upon an agreed statement of facts. The District Attorney’s response included several proposed conclusions of law. The trial court adopted the District Attorney’s proposed findings and conclusions. Generally, when a case is submitted to the trial court on agreed facts pursuant to Rule 263, as in this case, a trial court is not required to make written findings of fact. See Port Arthur Independent School District v. Port Arthur Teachers Association, 990 S.W.2d 955, 957 (Tex.App.-Beaumont 1999, pet. denied); Harris County Appraisal District v. Transamerica Container Leasing, Inc., 920 S.W.2d 678, 680 (Tex.App.-Houston [1st Dist.] 1995, writ denied). Thus, the trial court did not err by refusing to make written findings of fact. Issue Two is overruled.

THE TWO OFFENSES AROSE OUT OF THE SAME TRANSACTION

In Issue One, D.W.H. contends that the trial court erred by denying his petition for expunction. The District Attorney’s Office responds that D.W.H. is not entitled to expunge the records of his arrest under Articles 55.01(a)(2) and 55.01(c) because the facts of the arrest he seeks to expunge are “bound up” with a federal offense to which he pled guilty. With respect to Article 55.01(a)(2), the District Attorney’s Office specifically argues that expunction is not available under the statute because Appellant pled guilty to an offense that arose from the same transaction as the no-billed offense.

Expunction is neither a constitutional nor common-law right; rather, it is a statutory privilege. In re A.G., 417 S.W.3d 652, 654 (Tex.App.-El Paso 2013, no pet.); Travis County District Attorney v. M.M., 354 S.W.3d 920, 923 (Tex.App.Austin 2011, no pet.). All provisions in a statutory cause of action are mandatory and exclusive and all conditions must be met before a person is entitled to expunction. In re A.G., 417 S.W.3d at 654. The cause of action created by the expunction statute is civil rather than criminal in nature and the burden of proving compliance with the statutory requirements is on the petitioner. Id.

The first question to be decided is which version of the expunction statute applies in this case. The parties appeared to argue in the trial court that a prior version of Article 55.01 applied, but the Legislature amended Article 55.01 in 2011 and the enabling legislation provided that the amended version of the statute “applies to an expunction of arrest records and files for any criminal offense: (1) that occurred before, on, or after the effective date [September 1, 2011] of this Act.” See Acts 2011, 82nd Leg., R.S., ch. 690, § 7, 2011 Tex.Gen.Laws 1651, 1655. Based on this language, the amended statute applies to expunction petitions filed on or after the effective date regardless of when the criminal offense occurred. See In re M.C., 412 S.W.3d 48, 54 (Tex.App.-El Paso 2013, pet. filed); Ex parte Mason, No. 05-11-00046-CV, 2013 WL 1456632, at *1 n. 1 (Tex.App.-Dallas Apr. 9, 2013, pet. denied). While D.W.H.’s arrest occurred on June 11, 2008, he filed his petition for expunction after the effective date of the 2011 amendments to Article 55.01. Thus, the 2011 version of Article 55.01 applies in this case. Article 55.01(a)(2) provides, in relevant part, 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:

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(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

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(c) at least three years have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a felony or if there was a felony charge arising out of the same transaction for which the person was arrested ....

Tex.Code Crim.Proc.Ann. art. 55.01(a)(2)(A) (West Supp.2014). D.W.H.’s burden of proof included a requirement that he prove an indictment or information charging him with the commission of any felony arising out of the same transaction for which he was arrested had not been presented against him at any time following the arrest. See Tex.Code Crim.Proc.Ann. art. 55.01(a)(2)(A)(i).

.Article 55.01 does not define the phrase “arising out of the same transaction.” Statutory construction is a legal question which is reviewed de novo. HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 852 (Tex.2009); Montoya v. Nichirin-Flex, U.S.A., Inc., 417 S.W.3d 507, 512 (Tex.App.-El Paso 2013, no pet.). An appellate court’s primary objective in construing any statute is to determine the Legislature’s intent in enacting the particular provision, and to give that provision its intended effect. Tex.Gov’t Code Ann. § 312.005 (West 2013) (“In interpreting a statute, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the reme dy.”); McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003); Emeritus Corporation v. Blanco, 355 S.W.3d 270, 276 (Tex. App.-El Paso 2011, pet. denied). When construing a statute, a court must begin with its language. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). Generally, we accept the ordinary meaning of words and phrases used in a statute unless the words and phrases have acquired a technical or particular meaning whether by legislative definition or otherwise. Tex.Gov’t Code Ann. §§ 311.011, 312.002 (West 2013); Cities of Austin, Dallas, Fort Worth & Hereford v. Southwestern Bell Telephone Company, 92 S.W.3d 434, 442 (Tex.2002). We may also consider the object to be attained by the statutes, the circumstances surrounding the statute’s enactment, legislative history, former statutory and common law, and the consequences of a particular construction. Tex.Gov’t Code Ann. § 311.023 (West 2013).

The phrase “same transaction” is used in the Penal Code’s definition of “criminal episode” which 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: (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.” See Tex.Penal Code Ann. § 3.01 (West 2011). Thus, a single “criminal episode,” as defined in Section 3.01 includes the repeated commission of the same offense, any offenses committed according to a common scheme or plan, as well as all offenses that form a part of one criminal “transaction.” Cobb v. State, 85 S.W.3d 258, 266 (Tex.Crim.App.2002).

Article 55.01(c) expressly refers to the Penal Code’s definition of “criminal- episode.” See TexCode Crim.Proc.Ann. art. 55.01(c) (West Supp.2014) (“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.”). Article 55.01(a)(2)(A) does not refer to “criminal episode.”

The Legislature used a similar phrase, “same criminal transaction,” in Section 19.03(a)(7) of the Penal Code which provides that a person commits capital murder if he murders more than one person during the same criminal transaction. TexPenal Code Ann. § 19.03(a)(7) (West Supp.2014). The Court of Criminal Appeals has defined the phrase “same criminal transaction” as used in Section 19.03(a)(7) as “a continuous and uninterrupted chain of conduct occurring over a very short period of time ... in a rapid sequence of unbroken events.” Williams v. State, 301 S.W.3d 675, 684 (Tex.Crim.App.2009), quoting Jackson v. State, 17 S.W.3d 664, 669 (Tex.Crim.App.2000). The phrases “criminal episode” and “same criminal transaction” as used in Section 19.03 are not synonymous. See Riemer v. State, Nos. 02-12-00613, 614, 615-CR, 2013 WL 6565057, at *3 (Tex.App.-Fort Worth 2013, no pet.).

The Legislature is presumptively aware of the statutory definition of “criminal episode” and the judicial definition of “same criminal transaction.” It chose to use neither of these phrases and instead included the phrase “arising out of the same transaction” in Article 55.01(a)(2)(A). Consequently, we conclude that the phrase used in the expunction statute must mean something different than either “criminal episode” or “same criminal transaction.”

We are required to construe the expunction statute as a whole based on its plain language. Several appellate courts have held that Chapter 55’s expunction scheme is arrest-based and expunction is not available for individual offenses arising from one arrest when the person is convicted of one offense arising out of the arrest. See S.J. v. State, 438 S.W.3d 838, 842-43 (Tex.App.-Fort Worth 2014, no pet.); Texas Department of Public Safety v. Dicken, 415 S.W.3d 476, 477-78 (Tex.App.-San Antonio 2013, no pet.); Travis County District Attorney v. M.M., 354 S.W.3d 920, 926-27 (Tex.App.-Austin 2011, no pet.).

In Dicken, the petitioner was arrested for and later charged with driving while intoxicated and felony possession of a controlled substance. Dicken, 415 S.W.3d at 478. Dicken pled guilty to DWI and the possession offense was dismissed as part of the plea bargain. Id. Dicken sought and obtained expunction of the records related to the possession 'offense. Id. The San Antonio Court of Appeals rejected Diek-eris argument that Article 55.01 is offense-based, and therefore, individual offenses are divisible for purposes of expunction. Dicken, 415 S.W.3d at 479. The court of appeals held that the plain language of Article 55.01(a)(2) requires a court to expunge all records and files relating to the arrest when there was no final conviction and no court-ordered community supervision, and it does not permit expunction of individual offenses stemming from the arrest. Id. at 479-80.

In M.M., the petitioner was pulled over for traffic violations but refused to perform the field sobriety tests and resisted arrest when the officer placed her under arrest. M.M., 354 S.W.3d at 921-22. She was charged by indictment with assault of a public servant, DWI, and resisting arrest. Id. at 922. M.M. entered a no contest plea to resisting arrest. Id. As part of the plea bargain, the State abandoned the DWI charge and the felony assault of a public servant was taken into consideration pursuant to Section 12.45 of the Penal Code. Id. M.M. subsequently obtained an ex-punction of the DWI and assault of a public servant charges arising from the same arrest. M.M., 354 S.W.3d at 922. The Austin Court of Appeals held that expunction was not available for the records related to these two charges. M.M., 354 S.W.3d at 923-24. It rejected M.M.’s argument that the unit of expunction is the criminal conduct that forms the basis for a criminal charge, not the criminal conduct that forms the basis for an arrest, which could include several separate criminal charges. Id. at 924. Additionally, the court was not persuaded by M.M.’s assertion that the Legislature’s use of the term “the arrest” refers to each charge arising from the arrest, and therefore, her DWI and assault charges could be divorced from the resisting arrest charge and individually expunged. M.M., 354 S.W.3d at 924. Based on the plain language of the expunction statute, the court concluded that the statute only speaks to expunging the records relating to an arrest, not to individual records relating to a charge arising from an arrest. Id.

The Fort Worth Court of Appeals likewise held in S.J. v. State, 438 S.W.3d at 843-44, that Article 55.01 is arrest-based, and therefore, individual charges arising from an arrest are not subject to expunction. Id. This decision is significant because we are required to decide this transfer case in accordance with the precedent of the Second Court of Appeals by Tex. R.App.P. 41.3. Under S.J. and the cases on which it relies, D.W.H. is not entitled to an expunction of any individual charges arising out of his arrest for improper relationship between an educator and student..

The agreed facts establish that the federal weapons charge arises directly out of Appellant’s arrest for improper relationship between an educator and student. The Saginaw P.D. received a report from B.M.’s parents that their daughter was missing and they had found her vehicle in front of D.W.H.’s residence. They had been suspicious of the relationship between D.W.H. and their daughter due to the frequency of their contact both during and after school. When B.M.’s parents went to D.W.H.’s home to locate B.M., D.W.H. opened the door while holding a rifle. He also refused to let police officers look in the bedrooms of his home for B.M. Despite D.W.H. repeatedly denying to the parents and police that B.M. was in his home, police officers observed her exit the residence at 6:00 a.m. on the morning of June 11, 2008, and she told them that she had been in the home that evening. She also admitted that D.W.H. had kissed her and touched her breast while engaging in other inappropriate physical contact with her. Based on the facts gathered during their investigation, the police officers obtained an arrest warrant for D.W.H. and search warrants for his home, a computer, and memory cards. Those warrants were executed at 11:15 p.m. that same evening, but the officers were not able to open one of the gun safes until the following day, June 12, 2008. They found prohibited weapons inside of that gun safe. At that point, ATF became involved in the case and D.W.H. was later convicted of possessing an unregistered weapon.

Under Article 55.01(a)(2)(A), it was D.W.H.’s burden to prove that the federal weapons charge did not arise out of his arrest on June 11, 2008 for improper relationship between an educator and student. The evidence demonstrates that the unregistered firearms were discovered in D.W.H.’s home as a direct result of the officers executing search warrants related to the state charge. We find that the agreed evidence demonstrates that D.W.H.’s charge and conviction of possessing illegal firearms arises out of the same transaction as his arrest for improper relationship between educator and student. Consequently, D.W.H. failed to establish that an indictment or information charging him with the commission of any felony arising out of the same transaction for which he was arrested has not been presented against him at any time following the June 11, 2008 arrest. This showing is an essential element of a cause of action for expunction. Because D.W.H. failed to carry his burden of proof under Article 55.01(a)(2)(A) and the agreed facts show that the two offenses arise out of the same transaction, we conclude that the trial court did not abuse its discretion by denying D.W.H.’s petition. Issue One is overruled. Having overruled both issues, the judgment of the trial court is affirmed.

RODRIGUEZ, J. (Dissenting).

1 . Tex.Penal Code Ann. § 21.12(a)(l)(West Supp.2014) ("An employee of a public or private primary or secondary school commits an offense if the employee engages in sexual contact, sexual intercourse, or deviate sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works”).