COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-07-271-CV
PAIGE LOUIS BENNER A/K/A APPELLANT PAIGE LOUIS MOLISH
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
MEMORANDUM OPINION 1
Introduction
Appellant Paige Louis Benner a/k/a Paige Louis Molish appeals the trial
court’s order denying his request for an expunction. In two issues, appellant
argues that the trial court erred by not holding a hearing on his motion for
expunction and by not granting him an expunction. We affirm.
1 … See T EX. R. A PP. P. 47.4. Background Facts
On September 13, 2003, appellant was arrested for kidnaping. A grand
jury subsequently indicted him for burglary with the intent to commit kidnaping
and burglary with the intent to commit aggravated assault. After a trial on the
charges in the indictment, a jury convicted appellant of aggravated assault with
a deadly weapon. The jury assessed appellant’s punishment at fifty years’
confinement, and the judge sentenced him accordingly.
In June 2007, appellant filed a petition to expunge the records for his
kidnaping arrest and for the part of the indictment charging him with burglary
with the intent to commit kidnaping. On July 16, 2007, the trial court denied
appellant’s petition for the expunction of records. Nothing in the record
indicates that the trial court conducted a hearing on appellant’s motion.
Appellant timely filed this appeal.
Standard of Review
We review a trial court’s ruling on a petition for expunction under an
abuse of discretion standard. Ex Parte Wilson, 224 S.W.3d 860, 863 (Tex.
App.— Texarkana 2007, no pet.); Heine v. Tex. Dep’t of Pub. Safety, 92
S.W.3d 642, 646 (Tex. App.—Austin 2002, pet. denied). A trial court abuses
its discretion if it acts without reference to guiding rules and principles or if its
2 actions were arbitrary and unreasonable. Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S. 1159
(1986).
Applicable Law
The right to an expunction is neither a constitutional nor common law
right but, rather, is a statutory privilege. McCarroll v. Tex. Dep’t of Pub.
Safety, 86 S.W.3d 376, 378 (Tex. App.— Fort Worth 2002, no pet.);
Quertermous v. State, 52 S.W.3d 862, 864 (Tex. App.—Fort Worth 2001, no
pet.). Article 55.01 of the Texas Code of Criminal Procedure provides
wrongfully arrested persons the opportunity to expunge their arrest records.
T EX. C ODE C RIM. P ROC. A NN. art. 55.01 (Vernon 2006); McCarroll, 86 S.W.3d
at 378. While article 55.01 is included in the code of criminal procedure, an
expunction proceeding is civil rather than criminal in nature, and, consequently,
the burden of proving compliance with the statute is on the petitioner rather
than the State. McCarroll, 86 S.W.3d at 378. The petitioner is entitled to
expunction only when all of the statutory conditions have been met. Id.;
Quertermous, 52 S.W.3d at 864.
Article 55.01(a) provides that a petitioner is entitled to expunction when
(1) the person is tried for the offense for which the person was arrested and is:
3 (A) acquitted by the trial court, except as provided in Subsection (c) of this section; or
(B) convicted and subsequently pardoned; or
(2) each of the following conditions exist:
(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and;
(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;
(B) 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; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
T EX. C ODE C RIM. P ROC. A NN. art. 55.01(a)(1), (2).
Denial of Appellant’s Request for Expunction
In his second issue, appellant argues that the trial court erred by denying
his motion for expunction. The State, however, argues that expunction is
4 prohibited under article 55.01(c), which provides that the trial court may not
expunge an arrest or charged offense, even if it resulted in an acquittal, if the
offense arose out of one criminal episode, and the defendant was convicted of
or remains subject to prosecution for at least one other offense occurring during
the same criminal episode. 2 T EX. C ODE C RIM. P ROC. A NN. art. 55.01(c); Addicks
v. State, No. 03-06-00114-CV, 2007 WL 844872, at *2 (Tex. App.—Austin
Mar. 21, 2007, no pet.) (mem. op., not designated for publication).
Here, appellant was arrested for, but not charged with, kidnaping. In his
subsequent trial for burglary with the intent to commit kidnaping, which was
one count in the indictment, the jury found appellant not guilty of that offense
and instead convicted him for the offense of aggravated assault with a deadly
weapon. Because the kidnaping arrest, the subsequent charge of burglary with
intent to commit kidnaping, and the conviction for the offense of aggravated
assault with a deadly weapon arose from the same facts and thus the same
criminal episode, article 55.01(c) bars an expunction under these
circumstances. See T EX. C ODE C RIM. P ROC. A NN. art. 55.01(c); Addicks, 2007
2 … “Criminal episode” is defined as the commission of two or more offenses “committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or the offenses are the repeated commission of the same or similar offenses.” T EX. P ENAL C ODE A NN. § 3.01(1), (2) (Vernon 2003).
5 WL 844872, at *2. Because appellant did not meet his burden to show that
he is entitled to an expunction under article 55.01, the trial court did not abuse
its discretion in refusing his request for an expunction. See T EX. C ODE C RIM.
P ROC. A NN. art. 55.01(c). We overrule appellant’s second issue.
Failure to Hold a Hearing on Appellant’s Motion for Expunction
In his first issue, appellant argues that the trial court erred in failing to
hold a hearing on his petition for expunction. The trial court is required to set
a hearing on a petition for expunction. T EX. C ODE C RIM. P ROC. A NN . art.
55.02(2)(c) (Vernon Supp. 2007); McCarroll, 86 S.W.3d at 378. However,
such a hearing does not necessarily have to be an oral hearing. Wilson, 224
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-07-271-CV
PAIGE LOUIS BENNER A/K/A APPELLANT PAIGE LOUIS MOLISH
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
MEMORANDUM OPINION 1
Introduction
Appellant Paige Louis Benner a/k/a Paige Louis Molish appeals the trial
court’s order denying his request for an expunction. In two issues, appellant
argues that the trial court erred by not holding a hearing on his motion for
expunction and by not granting him an expunction. We affirm.
1 … See T EX. R. A PP. P. 47.4. Background Facts
On September 13, 2003, appellant was arrested for kidnaping. A grand
jury subsequently indicted him for burglary with the intent to commit kidnaping
and burglary with the intent to commit aggravated assault. After a trial on the
charges in the indictment, a jury convicted appellant of aggravated assault with
a deadly weapon. The jury assessed appellant’s punishment at fifty years’
confinement, and the judge sentenced him accordingly.
In June 2007, appellant filed a petition to expunge the records for his
kidnaping arrest and for the part of the indictment charging him with burglary
with the intent to commit kidnaping. On July 16, 2007, the trial court denied
appellant’s petition for the expunction of records. Nothing in the record
indicates that the trial court conducted a hearing on appellant’s motion.
Appellant timely filed this appeal.
Standard of Review
We review a trial court’s ruling on a petition for expunction under an
abuse of discretion standard. Ex Parte Wilson, 224 S.W.3d 860, 863 (Tex.
App.— Texarkana 2007, no pet.); Heine v. Tex. Dep’t of Pub. Safety, 92
S.W.3d 642, 646 (Tex. App.—Austin 2002, pet. denied). A trial court abuses
its discretion if it acts without reference to guiding rules and principles or if its
2 actions were arbitrary and unreasonable. Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S. 1159
(1986).
Applicable Law
The right to an expunction is neither a constitutional nor common law
right but, rather, is a statutory privilege. McCarroll v. Tex. Dep’t of Pub.
Safety, 86 S.W.3d 376, 378 (Tex. App.— Fort Worth 2002, no pet.);
Quertermous v. State, 52 S.W.3d 862, 864 (Tex. App.—Fort Worth 2001, no
pet.). Article 55.01 of the Texas Code of Criminal Procedure provides
wrongfully arrested persons the opportunity to expunge their arrest records.
T EX. C ODE C RIM. P ROC. A NN. art. 55.01 (Vernon 2006); McCarroll, 86 S.W.3d
at 378. While article 55.01 is included in the code of criminal procedure, an
expunction proceeding is civil rather than criminal in nature, and, consequently,
the burden of proving compliance with the statute is on the petitioner rather
than the State. McCarroll, 86 S.W.3d at 378. The petitioner is entitled to
expunction only when all of the statutory conditions have been met. Id.;
Quertermous, 52 S.W.3d at 864.
Article 55.01(a) provides that a petitioner is entitled to expunction when
(1) the person is tried for the offense for which the person was arrested and is:
3 (A) acquitted by the trial court, except as provided in Subsection (c) of this section; or
(B) convicted and subsequently pardoned; or
(2) each of the following conditions exist:
(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and;
(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;
(B) 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; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
T EX. C ODE C RIM. P ROC. A NN. art. 55.01(a)(1), (2).
Denial of Appellant’s Request for Expunction
In his second issue, appellant argues that the trial court erred by denying
his motion for expunction. The State, however, argues that expunction is
4 prohibited under article 55.01(c), which provides that the trial court may not
expunge an arrest or charged offense, even if it resulted in an acquittal, if the
offense arose out of one criminal episode, and the defendant was convicted of
or remains subject to prosecution for at least one other offense occurring during
the same criminal episode. 2 T EX. C ODE C RIM. P ROC. A NN. art. 55.01(c); Addicks
v. State, No. 03-06-00114-CV, 2007 WL 844872, at *2 (Tex. App.—Austin
Mar. 21, 2007, no pet.) (mem. op., not designated for publication).
Here, appellant was arrested for, but not charged with, kidnaping. In his
subsequent trial for burglary with the intent to commit kidnaping, which was
one count in the indictment, the jury found appellant not guilty of that offense
and instead convicted him for the offense of aggravated assault with a deadly
weapon. Because the kidnaping arrest, the subsequent charge of burglary with
intent to commit kidnaping, and the conviction for the offense of aggravated
assault with a deadly weapon arose from the same facts and thus the same
criminal episode, article 55.01(c) bars an expunction under these
circumstances. See T EX. C ODE C RIM. P ROC. A NN. art. 55.01(c); Addicks, 2007
2 … “Criminal episode” is defined as the commission of two or more offenses “committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or the offenses are the repeated commission of the same or similar offenses.” T EX. P ENAL C ODE A NN. § 3.01(1), (2) (Vernon 2003).
5 WL 844872, at *2. Because appellant did not meet his burden to show that
he is entitled to an expunction under article 55.01, the trial court did not abuse
its discretion in refusing his request for an expunction. See T EX. C ODE C RIM.
P ROC. A NN. art. 55.01(c). We overrule appellant’s second issue.
Failure to Hold a Hearing on Appellant’s Motion for Expunction
In his first issue, appellant argues that the trial court erred in failing to
hold a hearing on his petition for expunction. The trial court is required to set
a hearing on a petition for expunction. T EX. C ODE C RIM. P ROC. A NN . art.
55.02(2)(c) (Vernon Supp. 2007); McCarroll, 86 S.W.3d at 378. However,
such a hearing does not necessarily have to be an oral hearing. Wilson, 224
S.W.3d at 863; Ex Parte Current, 877 S.W.2d 833, 839 (Tex. App.—Waco
1994, no writ); Addicks, 2007 WL 844872, at *1; cf. Gulf Coast Inv. Corp. v.
Nasa 1 Bus. Ctr., 754 S.W.2d 152, 153 (Tex. 1988) (stating that unless
required by the express language or context of particular rule of civil procedure,
the term “hearing” does not necessarily contemplate either a personal
appearance before the court or an oral presentation to the court). If all of the
facts necessary to determine the issues in an expunction hearing are available
to the trial court—for example, in the pleadings, affidavits, or judicially
noticeable record—an oral hearing is not mandatory. See McCarroll, 86 S.W.3d
at 378; Current, 877 S.W.2d at 839–40; Addicks, 2007 WL 844872, at *1.
6 In his petition for expunction, appellant alleges that he was arrested for
kidnaping, charged with burglary of a habitation with the intent to commit
kidnaping, but convicted only of aggravated assault with a deadly weapon.
Thus, appellant claims he was acquitted of burglary with the intent to commit
kidnaping and, therefore, entitled to have the arrest and indictment regarding
the kidnaping-related offense expunged. However, appellant sought an
expunction based on these facts alone; he did not allege any facts that needed
to be developed by an evidentiary hearing. Because article 55.01(c) bars
expunction of the kidnaping arrest and burglary with intent to commit kidnaping
charge on the facts as alleged by appellant in his own petition, the trial court
had before it all it needed to evaluate whether appellant’s petition presented
any grounds for expunction.3 Appellant does not present any reason why an
oral, evidentiary hearing was necessary. Accordingly, the trial court, under
these circumstances, was not required to hold an oral, evidentiary hearing. See
Current, 877 S.W.2d at 839–40; Addicks, 2007 WL 844872, at *2. We
overrule appellant’s first issue.
3 … Appellant’s petition did not raise any ground, such as a pardon, that would require the development of facts beyond those already in front of the trial court.
7 Conclusion
Having overruled appellant’s two issues, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON JUSTICE
PANEL B: LIVINGSTON, HOLMAN, and GARDNER, JJ.
DELIVERED: May 1, 2008