in Re the Expunction of J.D.R.

• Court: Court of Appeals of Texas
• Decided: February 24, 2022
• Docket: 01-20-00161-CV
• Status: Published

Opinion

Opinion issued February 24, 2022

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00161-CV ——————————— 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

2 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.

3 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

4 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.

5 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.

6 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

7 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,

8 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.

9 Gordon Goodman Justice

Panel consists of Justices Goodman, Rivas-Molloy, and Farris.

Justice Goodman, dissenting.