Summary
holding defendant was not entitled to expunction under subsection where he was acquitted of the greater aggravated assault offense but convicted of the lesser-included offense of simple assault; subsection (c) barred the expunction for the acquittal because the offenses were part of the same criminal episode
Summary of this case from Ex parte PetittoOpinion
NUMBER 13-16-00535-CV
05-31-2018
EX PARTE F.T.K.
On appeal from the 87th District Court of Freestone County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Hinojosa
Memorandum Opinion by Justice Contreras
Appellant, the Texas Department of Public Safety (the Department), appeals an order expunging all files and records relating to the arrest of appellee, Floyd Thomas Killough. See generally TEX. CODE CRIM. PROC. ANN. arts. 55.01-55.06 (West, Westlaw through 2017 1st C.S.). We reverse and render judgment denying Killough's petition for expunction.
The docketing statement has this cause styled "Ex parte F.T.K."; however, the notice of appeal and trial court's judgment use Killough's full name. Furthermore, Killough has not asked us to use his initials, and we are reversing the trial court's order for expunction. Therefore, we will use his real name throughout this memorandum opinion. See Houston Police Dep't v. Berkowitz, 95 S.W.3d 457, 458 n.1 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (denying request to use initials in expunction appeal).
I. BACKGROUND
This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2017 1st C.S.).
Killough was arrested on January 4, 2015, for aggravated assault with a deadly weapon and subsequently brought to trial. See TEX. PENAL CODE ANN. § 22.02 (West, Westlaw through 2017 1st C.S.). On January 21, 2016, a jury acquitted Killough of the aggravated assault charge but convicted him of the lesser included offense of assault causing bodily injury against a family member. See TEX. CODE CRIM. PROC. ANN. arts. 37.08, 37.09 (West, Westlaw through 2017 1st C.S.); TEX. PENAL CODE ANN. §§ 22.01, 22.02 (West, Westlaw through 2017 1st C.S.). On February 4, 2016, Killough filed a petition with the trial court to expunge the records of the aggravated assault charge and listed the Department as one of the responding agencies in his petition. See TEX. CODE CRIM. PROC. ANN. art. 55.01. The record is silent as to whether the Department received notice of the hearing on the petition or a copy of the petition, and the Department maintains on appeal that it received neither.
Killough was charged for these offenses by indictment under trial court cause numbers 15-030-CR and 15-031-CR. Cause number 15-030-CR was for the aggravated assault charge which resulted in an acquittal. Cause number 15-031-CR was for the charge of assault causing bodily injury family violence which resulted in a conviction. Killough filed his motion for expunction under the same trial court cause number as the criminal proceeding for the aggravated assault charge. As a result, on appeal we consider the entire record under this cause number, including the court reporter's transcript from trial.
Killough does not dispute this.
The trial court granted Killough the expunction on March 11, 2016, finding that he was "entitled to expunction as provided by Article 55.01(a)(1)(A) [of] the Texas Code of Criminal Procedure . . . ." The Department did not participate in any hearing, file any post-judgment motions, or request any findings of fact or conclusions of law. On March 16, 2016, the Department received notice of the signed order of expunction. The Department then filed its notice of restricted appeal on September 9, 2016.
There is nothing in the record indicating that the trial court held a hearing on Killough's petition for expunction. If there was such a hearing, no reporter's record is included in the appellate record. Thus, we are unable to conclusively verify that the Department did not participate in the hearing. However, the Department contends in its appellate brief that it did not receive notice of Killough's petition or of the hearing, and that it did not participate in the hearing. We take this as true since it is undisputed by Killough. See Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam) ("For over half a century, we have required courts to liberally construe the non-participation requirement for restricted appeals in favor of the right to appeal."). Furthermore, the trial court's docket entries do not note whether the Department or any other agency was provided with notice of Killough's petition for expunction, whether a hearing was held, or whether the Department was present at the hearing; rather, the entry immediately after the one noting the jury's acquittal simply states "s/o expunction." The following entry on September 22, 2016 notes the Department's restricted appeal.
II. DISCUSSION
The Department argues that the trial court improperly expunged Killough's record of arrest. Specifically, the Department argues by two issues that: (1) the trial court misinterpreted the expungement statute; and (2) the trial court failed to give the Department notice of the hearing and a copy of the petition. On the other hand, Killough contends that the trial court properly interpreted the expunction statute, and that this Court does not have jurisdiction because the Department filed its notice of restricted appeal beyond the statutory deadline. See TEX. R. APP. P. 26.1(c). We agree with the Department.
A. Restricted Appeal
To prevail on a restricted appeal, the Department must establish that: (1) it filed notice of the restricted appeal within six months after judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the complained-of judgment 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. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam); Ex parte Vega, 510 S.W.3d 544, 547 (Tex. App.—Corpus Christi 2016, no pet.); see TEX. R. APP. P. 26.1(c), 30.
Regarding the first requirement, Killough contends that the Department filed its notice of restricted appeal outside the six-month deadline because it filed it 182 days after the trial court entered the order of expunction. However, for a restricted appeal we count the number of months, not the number of days. See TEX. R. APP. P. 26.1(c) (providing that "in a restricted appeal, the notice of appeal must be filed within six months after the judgment or order is signed"); see also, e.g., Ex parte Davila, No. 13-15-00202-CV, 2016 WL 872997, at *2 (Tex. App.—Corpus Christi Feb. 18, 2016, no pet.) (mem. op.) ("Regarding the [timeliness] requirement of a restricted appeal, the record reflects that the trial court signed the order of expunction on October 22, 2014, and the Department filed its notice of restricted appeal on April 22, 2015, within the six-month deadline. So the Department established the [timeliness] requirement."). Here, the court entered the order of expunction on March 11, 2016, and the Department timely filed its notice of restricted appeal on September 9, 2016. Killough's contention that the Department filed beyond the statutory deadline is incorrect because the Department filed before September 12, 2016.
As to the second and third requirements, the record reflects that the Department was listed in Killough's petition as one of the parties to the underlying suit, and the Department did not participate in any hearing on the expunction order, file any post-judgment motion, or request findings of fact and conclusions of law. Therefore, the only remaining question is whether error is apparent on the face of the record.
B. Applicable Law and Standard of Review
It is constitutionally presumed that judicial records are open to the public. See Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978); Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 663 (Tex. 1992). The expunction statute provides a narrow exception to this principle and is intended to eradicate records of wrongful arrests. In re State Bar of Tex., 440 S.W.3d 621, 624 (Tex. 2014) (orig. proceeding). The trial court must strictly comply with the statutory requirements, and neither an appellate court nor the trial court has any equitable power to extend the protections of the expunction statute beyond its stated provisions. Tex. Dep't of Pub. Safety v. M.R.S., 468 S.W.3d 553, 555 (Tex. App.—Beaumont 2015, no pet.). Chapter 55 of the Texas Code of Criminal Procedure sets forth the requirements and procedures governing the expunction of criminal records. See TEX. CODE CRIM. PROC. ANN. arts. 55.01-55.06.
"A person . . . is entitled to have all records and files relating to [an] arrest expunged if . . . the person is tried for the offense for which the person was arrested and is . . . acquitted by the trial court, except as provided by Subsection (c) . . . ." Id. art. 55.01(a) (emphasis added). The exception to the right to an expunction under article 55.01(a)(1) states:
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 . . . by the trial court . . . if the offense for which the person was acquitted arose out of a criminal episode . . . and the person was convicted of . . . at least one other offense occurring during the criminal episode.Id. art. 55.01(c).
The Texas Supreme Court recently clarified how article 55.01(a)(1) is applied when a charge results in an acquittal and there are other charges from the same arrest which result in conviction. See State v. T.S.N., ___ S.W.3d ___, ___, No. 17-0323, 2018 WL 2169785 at *3-6 (Tex. May 11, 2018). In T.S.N., the defendant was arrested for two unrelated charges and subsequently pleaded guilty to one charge and was acquitted of the other one. Id. at *1. The Texas Supreme Court affirmed the expunction of the records and files relating to the charge for which the defendant was acquitted because the two charges arose out of separate criminal episodes. Id. at * 6. In doing so, it clarified that:
where an arrest is made pursuant to . . . charges for multiple related offenses as part of a criminal episode, [article 55.01(a)(1)] clearly does not entitle the person to expunction of any files and records relating to the episode if the person either is convicted of one of the offenses or charges for one of the offenses remain pending.Id. at *3; see also TEX. PENAL CODE ANN. § 3.01 (West, Westlaw through 2017 1st C.S.) (defining criminal episode). In other words, the acquittal of a charge does not entitle a defendant to expunction of the arrest records when a charge arising out of the same criminal episode and arrest resulted in a conviction. See T.S.N., ___ S.W.3d at ___, 2018 WL 2169785 at *3.
Although expunction proceedings are typically reviewed under an abuse of discretion standard, when the trial court's ruling turns on a question of law, it is reviewed de novo. See Ex parte Vega, 510 S.W.3d at 548; Tex. Dep't of Pub. Safety v. Ibarra, 444 S.W.3d 735, 738 (Tex. App.—Corpus Christi 2014, pet. denied). When addressing a restricted appeal our review is limited to the face of the record. Bahar v. Lyon Fin. Servs., Inc., 330 S.W.3d 379, 384 (Tex. App.—Austin 2010, pet. denied). For these purposes, the "face of the record" consists of all the papers that were before the trial court at the time it rendered judgment. Id. The requirement that error be apparent on the face of the record means that "error that is merely inferred [from the record] will not suffice." Ginn v. Forrester, 282 S.W.3d 430, 431 (Tex. 2009) (per curiam). With this limitation, our scope of review is otherwise the same as in an ordinary appeal. Tex. Dep't of Pub. Safety v. Foster, 398 S.W.3d 887, 890 (Tex. App.—Dallas 2013, no pet.). Under this standard, we conduct an independent analysis of the record, giving no deference to the trial court's conclusions. See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998).
C. Analysis
By its first issue, the Department argues that the trial court misinterpreted the expungement statute. We agree. Here, it is undisputed and the record clearly reflects that Killough was convicted of an offense which arose out of the same criminal arrest as the one for which he was acquitted. See TEX. PENAL CODE ANN. § 3.01; see also TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(1); T.S.N., ___ S.W.3d at ___, 2018 WL 2169785 at *3-4.
Killough contends that he is eligible for expunction because he was acquitted by the jury, as opposed to the trial judge; however, this argument is without merit. Article 55.01(a)(1) does not allow a court to expunge the records of an arrest for a charge which resulted in an acquittal when a charge from the same arrest and criminal episode resulted in a conviction. See T.S.N., ___ S.W.3d at ___, 2018 WL 2169785 at *3-4; see also TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(1); TEX. PENAL CODE ANN. § 3.01. Thus, regardless of whether Killough was acquitted by the jury or the trial judge, the statute does not provide for the expunction of his arrest record because he was convicted of the lesser included offense of assault causing bodily injury against a family member—i.e., Killough was convicted of a charge which arose out of the same criminal episode and arrest as the acquitted charge for aggravated assault with a deadly weapon. See T.S.N., ___ S.W.3d at ___, 2018 WL 2169785 at *4.
We sustain the Department's first issue.
Because we sustain the Department's first issue, we need not reach its second issue arguing that the trial court erred by not providing notice to the Department of the hearing on Killough's petition for expunction. See TEX. R. APP. P. 47.1.
III. CONCLUSION
We reverse the trial court's order and render judgment denying Killough's petition for expunction. Pursuant to the Department's prayer for relief, we order any documents surrendered to the trial court returned to the submitting agencies. See Ex parte Elliot, 815 S.W.2d 251, 252 (Tex. 1991) (per curiam); Tex. Dep't of Pub. Safety v. Fredricks, 235 S.W.3d 275, 282 (Tex. App.—Corpus Christi 2007, no pet.).
DORI CONTRERAS
Justice Delivered and filed the 31st day of May, 2018.