in the Matter of Dempster A. Ross

Opinion

REVERSE and RENDER and Opinion Filed June 30, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01545-CV

IN THE MATTER OF DEMPSTER A. ROSS

On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-02315-2019

MEMORANDUM OPINION Before Chief Justice Burns, Justice Goldstein, and Justice Garcia Opinion by Justice Garcia Appellant Dempster Ross, pro se, appeals the denial of his petition to expunge

arrest records related to an indictment the State dismissed. Appellant raises three

issues that we collectively construe as complaining about the denial of his

expunction petition. For the reasons that follow, we conclude the trial court abused

its discretion by denying the petition, reverse the trial court’s order, and render

judgment granting appellant’s petition for expunction.

I. BACKGROUND

Appellant was arrested for burglary on February 17, 2013, and the case was

indicted on April 2, 2013. On August 15, 2014, a jury convicted appellant of arson

and he was sentenced to fifteen years in prison. During the punishment phase of the arson trial, the State adduced evidence relating to the investigation of and appellant’s

arrest for burglary.

On April 30, 2019, appellant filed a verified petition for expunction of records

relating to his burglary arrest and attached a copy of the State’s motion to dismiss

the burglary case and the order granting that motion. The motion to dismiss the case

stated:

The defendant was convicted [in the arson case] . . . Evidence in [the burglary case] was presented during sentencing and taken into consideration by the court prior to sentencing.

Due to the costs of prosecuting the case, coupled with the fact that any sentence imposed in this case would not in all probability increase the time he is presently serving [,] prosecution . . . of this case cannot be justified.

The order granting the motion was signed on August 8, 2014.

The State filed an answer opposing the expunction and argued that appellant

is not entitled to expunction because he was “effectively convicted” of the burglary

offense. According to the State, appellant was convicted of burglary because

evidence of that offense was adduced during the punishment phase of his arson trial.

The State further argued that because the burglary evidence was used in the arson

case, it is entitled to retain the records pursuant to article 55.02 §4(a-2). See TEX.

CODE CRIM. PROC. ANN. art. 55.02 §4(a-2). Finally, the State argued that appellant

is not entitled to relief “to the extent” he seeks to expunge information received by

the police prior to his arrest.

–2– The trial court conducted a hearing on appellant’s petition. The State’s

evidence, admitted over appellant’s objection, included a three-page offense report

offered to show how and when the burglary case was developed and one volume of

the reporter’s record from the punishment phase of the arson trial. When the hearing

concluded, the court denied appellant’s petition. That denial is the subject of this

appeal.

II. DISCUSSION

We review a trial court’s ruling on a petition for expunction for abuse of

discretion. State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018). However, to the extent

a ruling on expunction turns on a question of law, we review any legal conclusions

de novo. See Ex parte R.P.G.P., No. 19-1051, — S.W.3d —, 2021 WL 1933952, at

*3 (Tex. May 14, 2021); see also Collin Cty. Dist. Attorney’s Office v. Fourrier, 453

S.W.3d 536, 539 (Tex. App.— Dallas 2014, no pet.).

Expunction is a statutorily created remedy that allows a person who has been

arrested for the commission of an offense to have the records and files relating to the

arrest expunged if the person meets the statutory requirements of article 55.01 of the

code of criminal procedure. Fourrier, 453 S.W.3d at 539; see TEX. CODE CRIM.

PROC. ANN. art. 55.01. The purpose of the expunction statute is to “protect

wrongfully–accused people by eradicating their arrest records.” In re State Bar of

Texas, 440 S.W.3d 621, 622 (Tex. 2014). Because the cause of action is created by

statute, all provisions are mandatory and require strict compliance for the action to

–3– be sustained. Fourrier, 453 S.W.3d at 539; see also T.S.N., 547 S.W.3d at 620 (“A

person is not entitled to expunction until all of the statutory conditions are met.”).

The trial court has no equitable power to extend the statutory protections beyond the

statute’s stated provisions. Fourrier, 453 S.W.3d at 539. Although the expunction

statute appears in the code of criminal procedure, an expunction proceeding is civil

in nature and the petitioner carries the burden of proving compliance with the

statutory requirements. Id.; see also Texas Dep’t of Pub. Serv. v. Velazquez, No. 05-

16-01326-CV, 2017 WL 4003427, at *1 (Tex. App.—Dallas Sept. 12, 2017, no pet.)

(mem. op.).

Appellant sought expunction of his burglary arrest records pursuant to article

55.01(a)(2)(B), which 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 Chapter 42A for the offense, unless the offense is a Class C misdemeanor, provided that:

(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)(B).

–4– There is no dispute that the burglary case was dismissed and the limitations

period has expired.1 Nonetheless, the State argued that appellant is not entitled to

expunction because he was “effectively convicted” for burglary. In support of this

proposition, the State’s answer opposing expunction cited Texas Dept. of Pub. Safety

v. Wallace, 63 S.W.3d 805, 807 (Tex. App.—Austin 2001, no pet.), but failed to

explain its purported application to this case. In Wallace, the court concluded that

the petitioner was not entitled to expunction because he completed deferred

adjudication community supervision and the statute expressly precludes expunction

for such a case. Id. The community supervision provision of the statute is not at issue

here.

Article 55.01 does not permit expunction of records resulting in a final

conviction. See S.J. v. State, 438 S.W.3d 838, 841 (Tex. App.—Fort Worth 2014, no

pet.); TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2). Thus, the focus of our analysis

is whether admission of the burglary evidence in the punishment phase of the arson

case constitutes a final conviction for burglary under the expunction statute.

The evidence that was adduced consisted of testimony from the State’s

witnesses concerning the police investigation and the analysis of DNA evidence that

did not exclude appellant as the perpetrator of the offense. The State provided no

1 In addition, the record does not reflect how long appellant was incarcerated after his burglary arrest, but appellant’s verified petition stated that he had been “released,” and the State did not dispute it. Appellant was incarcerated for the arson conviction at the time of the expunction hearing. –5– authority, nor are we aware of any, holding that the use of such evidence in

circumstances such as these equates to conviction for the unadjudicated offense.

Article 37.07, §3(a), governs the admissibility of evidence during the

punishment stage of a non-capital criminal trial. Erazo v. State, 144 S.W.3d 487, 491

(Tex. Crim. App. 2004); TEX. CODE CRIM. PROC. ANN. art. 37.07, §3(a). The statute

provides that “evidence may be offered by the state and the defendant as to any

matter the court deems relevant to sentencing, including . . . evidence of an

extraneous crime or bad act.” Id. Unlike the guilt-innocence phase, however, the

question at punishment is not whether the defendant has committed a crime, but

instead what sentence should be assessed. Whereas the guilt-innocence stage

requires the jury to find the defendant guilty beyond a reasonable doubt of each

element of the offense, the punishment phase requires the jury only to find that the

prior bad act is attributable to the defendant beyond a reasonable doubt. Smith v.

State, 577 S.W.3d 548, 551 (Tex. Crim App. 2019). These are not equivalent.

Therefore, we reject the proposition that the mere introduction of the burglary

evidence in the punishment phase of the arson case compels a conclusion that there

was a final conviction for purposes of the expunction statute.

Likewise, the record does not demonstrate that the arson case was a plea in

bar offense under section 12.45 of the penal code. See TEX. PENAL CODE ANN. §

12.45. Section 12.45 of the penal code provides that, during a sentencing hearing

and with the State’s consent, a defendant may admit his guilt of an unadjudicated

–6– offense and request that the court take the offense into account in determining the

sentencing for the offense for which he stands adjudged guilty. TEX. PENAL CODE

ANN. §12.45(a). If the trial court takes an admitted offense into account under section

12.45, prosecution for that offense is barred. Id. §12.45(c).

Recognizing the discord between admitting guilt to an offense and asserting

entitlement to an expunction for that offense, this court, like many of our sister

courts, has interpreted the statutory requirement that “the charge has not resulted in

a final conviction” as prohibiting expunction of a plea in bar offense. See Fourrier,

453 S.W.3d at 542 (unadjudicated theft offense resulted in final conviction for

purposes of expunction statute because guilt for offense was admitted and

considered in determining punishment for evading arrest offense); see also State v.

N.R.J., 453 S.W.3d 76, 82 (Tex. App.—Fort Worth 2014, pet. denied) (when

pursuant to section 12.45 of penal code, defendant admits guilt of an offense by

pleading guilty or nolo contendere to a second offense and requests that the trial

court account for that admission in sentencing for the second offense, the admitted,

unadjudicated offense is not expungable; “that is, the unadjudicated offense has

resulted in a final conviction for purposes of the expunction statute because guilt for

the offense was admitted and considered in determining punishment, albeit for

another offense”); Ringo v. State, Nos. 09–14–00251–CV, 09–14–00252–CV, 2014

WL 5409060, at *2 (Tex. App.—Beaumont Oct. 23, 2014, no pet.) (mem. op.)

(criminal actions against petitioner were barred from further prosecution under

–7– section 12.45 of the penal code, and, for that reason, petitioner was not entitled to

expunction of criminal actions dismissed under section 12.45). As one court has

observed, this interpretation “is consistent with those cases holding that a

defendant’s admission of guilt to an unadjudicated offense becomes a part of the

judgment and the defendant’s criminal record.” In re O.R.T., 414 S.W.3d 330, 335

(Tex. App.—El Paso 2013, no pet.).

But nothing in the instant case establishes that this was a plea in bar offense

or that appellant otherwise admitted that he was guilty of burglary. Indeed, we have

before us only a solitary volume of the multi-volume reporter’s record in the

punishment phase of the arson trial. That volume includes testimony from the State’s

witnesses and appellant’s testimony concerning counsel’s advice about testifying at

trial. There is no mention of appellant’s plea in the arson case, nor is there an

admission of guilt in the burglary case. Accordingly, there is nothing to establish a

final burglary conviction for purposes of the expunction statute.

In the court below, the State also argued that it was entitled to retain

appellant’s burglary arrest records pursuant to article 55.02 § 4(a-2), which provides:

(a-2) In the case of a person who is the subject of an expunction order on the basis of an acquittal, the court may provide in the expunction order that the law enforcement agency and the prosecuting attorney retain records and files if:

(1) the records and files are necessary to conduct a subsequent investigation and prosecution of a person other than the person who is the subject of the expunction order; or

–8– (2) the state establishes that the records and files are necessary for use in:

(A) another criminal case, including a prosecution, motion to adjudicate or revoke community supervision, parole revocation hearing, mandatory supervision revocation hearing, punishment hearing, or bond hearing; or

(B) a civil case, including a civil suit or suit for possession of or access to a child.

TEX. CODE CRIM. PROC. ANN. art. 55.02 § 4(a), (a-2) (Emphasis added). As reflected

in the unambiguous language of the statute, the statutory exception applies to cases

resulting in acquittal. See id. There was no acquittal here. Instead, the burglary case

was dismissed because the State deemed it neither economical nor advantageous to

pursue. The only other statutory exception allowing the State’s retention of files that

might otherwise be expunged pertains to cases in which a person is still subject to

conviction because the statute of limitations has not run, and that exception is also

not applicable here. See id. § 4(a).

Finally, the State’s answer opposing expunction asserted that “to the extent

[Ross] seeks expunction of information received by the police prior to his arrest he

is not entitled to relief.” In support, the State relied on Ex parte S.C., 305 S.W.3d

258, 263 (Tex. App. —Houston [14th Dist.] 2009, no pet.), a case in which the court

considered whether an expunction order was overly broad because it required

expunction of more than the records and files related to the petitioner’s arrest. Id. at

260. The court concluded that the order was overly broad because the statute does

–9– not “encompass investigative files and records that existed prior to, and independent

of, the arrest.” Id. at 263.

But we need not consider the permissible breadth of a hypothetical order; the

trial court denied the petition and did not issue an order. Moreover, we do not read

appellant’s petition to request expunction of files independent of the arrest or to

otherwise include anything more than what the statute requires—expunction of the

records and files relating to the burglary arrest. See TEX. CODE CRIM. PROC. ANN.

art. 55.01(a)(2)(B).

Because appellant proved that he is entitled to expunction of the records and

files related to his arrest, the trial court abused its discretion by denying the petition.

We sustain appellant’s complaint about the denial of his expunction petition, reverse

the trial court’s order, and render judgment granting appellant’s petition for

expunction.2

/Dennise Garcia/ DENNISE GARCIA JUSTICE

191545F.P05

2 We need not consider any remaining issues. TEX. R. APP. P. 47.1.

–10– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE MATTER OF DEMPSTER On Appeal from the 416th Judicial A. ROSS, District Court, Collin County, Texas Trial Court Cause No. 416-02315- No. 05-19-01545-CV 2019. Opinion delivered by Justice Garcia. Chief Justice Burns and Justice Goldstein participating.

In accordance with this Court’s opinion of this date, the trial court’s order is REVERSED and judgment is RENDERED that: Ross's petition for expunction is GRANTED.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered June 30, 2021.

–11–