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holding exception applied to offense for which defendant was acquitted because defendant was previously convicted of one same or similar offense
Summary of this case from Ex parte K.T.Opinion
No. 08-19-00164-CV
09-21-2020
In the MATTER OF the Expunction of T.D.N.
OPINION
The Texas Department of Public Safety ("the Department") brings this restricted appeal, challenging the trial court's order granting T.D.N.'s petition for an expunction of criminal records, arguing that T.D.N. did not plead or prove a valid statutory ground for granting the expunction. In particular, the Department contends that T.D.N. was not entitled to an expunction of an arrest record that lead to acquittal because he was previously convicted of an offense arising out of the same "criminal episode." We agree with the Department, and we therefore reverse the trial court's order.
This case was transferred from our sister court in Eastland, Texas, and we decide it in accordance with the precedent of that court to the extent required by Tex.R.App.P. 41.3.
I. PROCEDURAL AND FACTUAL BACKGROUND
A. T.D.N.'s Petition for an Expunction
A grand jury indicted T.D.N. in August 2015, on one count of sexual assault, alleging that on or about May 17, 2015, T.D.N. sexually assaulted a victim who was unconscious at the time. In December 2015, the grand jury re-indicted T.D.N. in the same cause number on one count of burglary of a habitation, alleging that T.D.N. entered a habitation with the intent to commit, and "did commit, a felony, namely, Sexual Assault." In July 2015, T.D.N. was arrested on that charge, but was later tried and acquitted.
T.D.N. then filed a petition to expunge the records of his arrest based on the acquittal. Without waiting for a response from the Department, the trial court signed an order granting the expunction.
B. The Department's Motion for New Trial
Upon learning of the order, the Department moved for a new trial. In its motion, the Department argued that T.D.N. was not entitled to an expunction because in 2002 he was convicted of one count of aggravated sexual assault of a child. The Department argued that as defined by the legislature in the expunction statute, the 2015 offense for which T.D.N. was acquitted was part of the same "criminal episode" as the 2002 aggravated sexual assault offense, which in turn rendered T.D.N. ineligible to receive an expunction.
Following a hearing, the trial court denied the Department's motion, thereby upholding the order of expunction. This appeal followed.
II. DISCUSSION
In two issues, the Department contends that the trial court erred by granting the expunction, renewing its argument that the 2015 offense was part of the same criminal episode as the 2002 offense for which he was convicted. Although our analysis differs in some respects from the approach that the Department takes, we agree that the trial court lacked the authority to grant the expunction.
A. Standard of Review
Generally, we review a trial court's ruling on a petition for expunction for an abuse of discretion. See State v. T.S.N. , 547 S.W.3d 617, 620 (Tex. 2018) ; see also Matter of Expunction of R.P. , 574 S.W.3d 641, 643 (Tex.App.--El Paso 2019, no pet.). But under the abuse of discretion standard, appellate courts afford no deference to the trial court's legal determinations because a court has no discretion in deciding what the law is or in applying it to the facts. Thus, if an expunction ruling turns on a question of law, we review the trial court's ruling de novo. See T.S.N. , 547 S.W.3d at 620.
B. Applicable Law
A petitioner's right to expunction is purely a matter of statutory privilege. See Matter of O.T.A. , 564 S.W.3d 456, 459 (Tex.App.--El Paso 2018, no pet.) ; see also Matter of A.H. , 580 S.W.3d 841, 846 (Tex.App.--El Paso 2019, no pet.). Article 55.01 of the Texas Code of Criminal Procedure governs expunctions. See T.S.N. , 547 S.W.3d at 620, citing TEX.CODE CRIM.PROC.ANN. art. 55.01. All the conditions in the statute are mandatory and must be met before a person is entitled to expunction. See Matter of O.T.A. , 564 S.W.3d at 459. When a party holding criminal records opposes a petition for expunction, the petitioner carries the burden to present evidence establishing that the case meets all the conditions in the expunction statute. See Matter of A.H. , 580 S.W.3d at 847 ; see also In re D.W.H. , 458 S.W.3d 99, 104 (Tex.App.--El Paso 2014, no pet.). Thus, a trial court abuses its discretion if it orders an expunction of records when a petitioner fails to satisfy all the statutory requirements. O.T.A. , 564 S.W.3d at 459 ; see generally Matter of Expunction of R.P. , 574 S.W.3d at 643 (recognizing that a trial court abuses its discretion in granting an expunction if it acts arbitrarily or unreasonably without reference to guiding rules and principles of law).
T.D.N. sought expunction under Article 55.01(a)(1)(A) of the Code, which sets forth these requirements for obtaining an expunction of an offense based on an acquittal:
(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:
(1) the person is tried for the offense for which the person was arrested and is:
(A) acquitted by the trial court, except as provided by Subsection (c).
TEX.CODE CRIM.PROC.ANN. art. 55.01(a)(1)(A). In opposing T.D.N.'s petition, the Department, relied on an exception which precludes a petitioner from receiving an expunction when the acquitted offense arose out of a "criminal episode," and he was convicted of another offense occurring during that episode. Id. art. 55.01(c). The exception in Article 55.01(c) adopts the definition of "criminal episode" from Section 3.01 of the Texas Penal Code :
[T]he 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.
TEX.PENAL CODE ANN. § 3.01.
C. Analysis
1. A factual nexus between the two offenses is not required
As discussed above, the Department contends that the trial court lacked the authority to expunge T.D.N.'s 2015 arrest record because it was part of the same "criminal episode" as the 2002 aggravated sexual assault of a child offense. T.D.N., however contends that the two offenses could not have arisen from the same criminal episode, as there was no "factual nexus" between them or any showing that they were part of a "common scheme." In particular, T.D.N. points out that the two offenses were committed some thirteen years apart and involved different victims, and that nothing in the record suggests the existence of any factual connection between them. But Section 3.01 of the Penal Code provides two separate methods for determining whether multiple offenses arose from the same "criminal episode." TEX.PENAL CODE ANN. § 3.01(1), (2) ; see also Duncan v. State , No. 08-12-00328-CR, 2013 WL 5716179, at *2 (Tex.App.--El Paso Oct. 18, 2013, no pet.) (not designated for publication) (recognizing the differing methods of establishing that multiple offenses arose from the same criminal episode under Section 3.01 of the Penal Code ). T.D.N.'s arguments address the first method set forth in subsection (1). TEX.PENAL CODE ANN. § 3.01(1) (common plan or scheme). But the Department does not seek to use this subsection. Instead, it relies on subsection (2), which allows a court to determine that multiple offenses arose from the same criminal episode if they constituted the "repeated commission of the same or similar offenses." TEX.PENAL CODE ANN. § 3.01(2). And under this subsection, there is no requirement that the two offenses have a factual nexus or relationship to each other. To the contrary, the legislature has imposed no requirement in Section 3.01(2) that the two "repeated" offenses must involve the same victim, be close in temporal or geographic proximity, or were committed in the same or similar fashion. See Matter of Expunction of J.B. , 564 S.W.3d 436, 441 (Tex.App.--El Paso 2016, no pet.) ; In re M.T.R. , No. 01-18-00938-CV, 606 S.W.3d 288, 292-94 (Tex.App.--Houston [1st Dist.] Feb. 27, 2020, no pet.) ; Ex parte R.A.L. , No. 04-19-00479-CV, 2020 WL 557542, at *2 (Tex.App.--San Antonio Feb. 5, 2020, pet. denied) (mem. op., not designated for publication) ; Ex parte J.A.B. , 592 S.W.3d 165, 169 (Tex.App.--San Antonio 2019, no pet.). We must presume that the legislature's failure to include any such requirements in subsection (2) was deliberate, and that the legislature expressed its intent that no such requirements should be imposed. See In re M.T.R. , 606 S.W.3d at 292-93 ("We presume that the Legislature chose this statutory language with care and that its decision to omit language imposing a time frame or other limitations on the definition of a criminal episode was purposeful."); see also Matter of Expunction of J.B. , 564 S.W.3d at 441 (recognizing that if the legislature had wanted courts to "consider a time differential" in its application of Section 3.01 it easily could have done so).
For that reason, we reject T.D.N.'s argument that the 2015 and 2002 offenses did not arise from the same criminal episode just because they involved different victims and occurred several years apart. Instead, we turn our attention to whether the two offenses can be said to constitute the "repeated commission of the same or similar offense" under Section 3.01(2) of the Code.
The trial court expressed this rationale at the hearing below. And to the extent that the trial court based its decision on the lack of a factual nexus between the two offenses, we agree with the Department that its decision was in error. But as set forth above, this does not stop our inquiry, as we will uphold the trial court's decision if it was correct on any ground. See O.T.A. , 564 S.W.3d at 459.
2. Determining when two offenses are the "same or similar"
No doubt, a defendant commits two offenses that are the "same or similar" when he has violated the same Penal Code provision in both instances. See, e.g., Ex parte R.A.L. , 2020 WL 557542, at *2 (petitioner was not entitled to an expunction where he was acquitted in 2017 of the offense of driving while intoxicated where he was previously convicted in 2013 for the same offense). But since the Code speaks of offenses that are both the "same" and "similar," we turn to what the legislature meant by "similar" Code provisions.
The legislature did not define the term "similar" in Section 3.01(2) of the Penal Code. See Green v. State , 242 S.W.3d 215, 219-20 (Tex.App.--Beaumont 2007, no pet.). We determine the meaning of an undefined statutory term from its "common usage," which is often found in standard dictionary definitions. Id., citing TEX.GOV'T CODE ANN. § 311.011 ("Words and phrases shall be read in context and construed according to the rules of grammar and common usage."); see also Clinton v. State , 354 S.W.3d 795, 800 (Tex. Crim. App. 2011) ("When determining the fair, objective meaning of an undefined statutory term, we may consult standard dictionaries."). Webster's defines "similar" to mean: "1: having characteristics in common: very much alike: comparable ... 2: alike in substance or essentials: corresponding ...." Similar , Webster's Third New International Dictionary (2002).
One way to determine whether two offenses are "alike in substance or essentials," is to compare the elements of the two offenses to see if they share a common "gravamen," or in other words, whether the "gist" or "essence" of the two offenses is the same. See generally Price v. State , 457 S.W.3d 437, 441-42 (Tex. Crim. App. 2015) ; see also Duncan , 2013 WL 5716179, at *2 (finding aggravated assault with a deadly weapon and continuous violence against a family member were the "same or similar offense" for purposes of Section 3.01 based on the common gravamen of assaultive conduct).
The court in Price explained:
The gravamen of the offense is: the "gist; essence; [or the] substance" of the offense (Ballentine's Law Dictionary 534 (3rd ed. 1969)); "[t]he substantial point or essence of a claim, grievance, or complaint" (Black's Law Dictionary 817 (9th ed. 2009)); "the part of an accusation that weighs most heavily against the accused; the substantial part of a charge or accusation." (Webster's Encyclopedic Unabridged Dictionary of the English Language 617 (1989)).
Id. at 441.
Other courts have taken a similar approach in determining whether two offenses are sufficiently similar to constitute the "repeated commission of the same or similar offenses" under Section 3.01. See, e.g., Green , 242 S.W.3d at 220 (offenses of possession of cocaine and possession of codeine were similar for purposes of Section 3.02(2) of the Code, as they both arose under the Texas Controlled Substance Act, despite being subject to different penalties under the Act); Vallez v. State , 21 S.W.3d 778, 783 (Tex.App.--San Antonio 2000, pet. ref'd) (concluding that three drug offenses committed on different occasions, two for delivery of a controlled substance and one for possession of a controlled substance, constituted the "repeated commission of the same or similar offenses"); In re M.T.R. , 606 S.W.3d at 292-94 (concluding that elements of the offense of Driving While Intoxicated and the offense of Boating While Intoxicated were "similar" for purposes of Section 3.01(2) of the Penal Code ).
3. The nature of the acquitted offense
In the trial court, as well as on appeal, the Department repeatedly refers to the 2015 offense as a "sexual assault," thus allowing the Department to voice the refrain that "sex assault is sex assault." Although we ultimately agree with the Department, the argument is not so simple.
The State originally arrested and indicted T.D.N. for a 2015 sexual assault, but he was not tried for that offense. Rather, the State re-indicted him on a burglary offense for which he was tried and ultimately acquitted. The offenses of sexual assault and burglary are not identical; however, depending on how a burglary offense is charged, the two offenses may still share a common element or gravamen. The State may charge a defendant with burglary in one of two ways, either by alleging that the defendant entered a habitation or building with the intent to commit an underlying felony, such as a sexual assault, or by alleging that the defendant entered the habitation or building and committed, or attempted to commit the underlying felony. See TEX.PENAL CODE ANN. § 30.02(a) (a person commits the offense of burglary, if, without the effective consent of the owner, the person "enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault" or "enters a building or habitation and commits or attempts to commit a felony, theft, or an assault."); see also Beasley v. State , 426 S.W.3d 140, 146 (Tex.App.--Houston [1st Dist.] 2012, no pet.) (noting the distinction between a charge of burglary of a habitation with the intent to commit a felony and a charge that the defendant committed burglary of a habitation and, after entry, attempted to commit or committed a felony).
This distinction is important for double jeopardy purposes. If the State charges a defendant with entering a habitation or building solely with the intent to commit an underlying felony, the burglary is complete upon entry; and in that case, if the defendant also commits the underlying felony after entering the habitation, the two offenses are considered separate and distinct, and a defendant may be convicted and punished separately for both offenses without violating the prohibition against double jeopardy. See, e.g., Langs v. State , 183 S.W.3d 680, 686 (Tex. Crim. App. 2006). In other words, the harm in this form of burglary is the entry itself, and such entry is the "gravamen" of the offense. See Beasley , 426 S.W.3d at 146 (when charged in this way, a person is guilty "the moment that he crosses the threshold of a habitation without consent and with the intent to commit the underlying felony [and it] matters not whether he actually does commit that felony or even if he attempts to commit it.").
However, when as here, the State charges the defendant with committing a burglary under the second alternative--that he entered a habitation or building and did in fact commit or attempt to commit the underlying felony--the commission of the underlying offense itself is an element of the burglary offense. In other words, the accused may not commit the burglary without also committing or attempting to commit the underlying offense. See Langs , 183 S.W.3d at 686 ; see also Gallegos v. State , 340 S.W.3d 797, 802 (Tex.App.--San Antonio 2011, no pet.) (where defendant was charged under Section 30.02(a)(3) of the Penal Code with burglary, which included the allegation that he committed the underlying felony of aggravated kidnapping after entry, the elements of aggravated kidnapping were "subsumed within the elements of burglary," and therefore the defendant could not be punished for both the burglary and the aggravated kidnapping).
That means, however, that there are two important gravamina to the 2015 burglary offense: both a "property" component, encompassing his alleged nonconsensual entry into the habitation, and an "assaultive" component, encompassing his alleged commission of the sexual assault inside the habitation. See generally Price v. State , 457 S.W.3d at 441-42 (recognizing the concept that an offense may have "multiple gravamina."). We therefore conclude that the Department is correct in contending that T.D.N. was in effect acquitted of the offense of sexual assault. So we turn to the last step in our analysis, which is to compare the sexual assault component of the 2015 acquitted offense to his 2002 conviction for aggravated sexual assault of a child to determine whether they are the "repeated commission of the same or similar offenses."
4. Comparing sexual assault to aggravated sexual assault of a child
The Penal Code provides that a person commits the offense of sexual assault, if the person "intentionally or knowingly: (A) causes the penetration of the anus or sexual organ of another person by any means, without that person's consent; (B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or (C) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor[.]" See TEX.PENAL CODE ANN. § 22.011(a)(1)(A)-(C). Similarly, a person commits the offense of aggravated sexual assault of a child by intentionally or knowingly engaging in virtually the same conduct, but adds an extra element requiring the victim to be a child under the age of 14 years, and dispenses with the requirement that the conduct be without the victim's consent. TEX.PENAL CODE ANN. § 22.021(a)(1)(2)(B), (c) ; see also State v. R.R.S. , 597 S.W.3d 835, 842 (Tex. 2020) (recognizing that under the sexual assault statute if the victim is an adult, lack of consent is an element of the offense, but under aggravated sexual assault statute, consent is not an element of the offense when the victim is younger than 14 years old). The two offenses prohibit the same type of conduct, and have in essence the same gravamen--the commission of a sexual assault. See generally Young v. State , 341 S.W.3d 417, 423 (Tex. Crim. App. 2011) (recognizing that sex offenses are generally considered "nature of conduct" offenses, with the gravamen of the offense being the sexual act itself); see also Fisk v. State , 574 S.W.3d 917, 923 (Tex. Crim. App. 2019) (determining that out-of-state offense of sodomy of a child under 16 years old was substantially similar to the Texas offense of sexual assault of a child under 17 years); Ex parte White , 211 S.W.3d 316, 317-318 (Tex. Crim. App. 2007) (holding that an out-of-state offense called "unlawful sexual contact" was substantially similar to the Texas offense of "indecency with a child," even though the two offenses had different intent elements, where they both prohibited the same type of conduct).
We therefore conclude that the Department is correct in asserting that the 2015 acquitted offense of burglary with the commission of a sexual assault, was the "same or similar" in nature to the 2002 conviction for aggravated sexual assault of a child.
5. Interpreting the criminal episode exception: acquitted and committed offenses
T.D.N., however, contends that even if we consider the 2015 and the 2002 offenses to be the "same or similar" offenses, the literal wording of Section 3.01 of the Penal Code covers only the "repeated commission" of an offense. Because the jury acquitted T.D.N. on the second charge, he has not "repeated" an offense. In other words, the "repeated commission" language requires at least two committed offenses before they form a "criminal episode" for purposes of the expunction statute. Applied here, T.D.N. urges that because a jury acquitted him of the 2015 offense, the Department cannot claim that he "committed" the 2015 offense, and that he only "committed" one offense: the 2002 offense of aggravated sexual assault of a child, which by itself is not the "repeated commission" of the offense.
When interpreting statutes, our primary objective is to give effect to the legislature's intent. See Matter of Expunction of J.B. , 564 S.W.3d at 440. The best indicator of that intent is expressed in the "plain meaning of the words used in the statute[.]" Sw. Royalties, Inc. v. Hegar , 500 S.W.3d 400, 404 (Tex. 2016). So "[w]here text is clear, text is determinative of that intent." Entergy Gulf States, Inc. v. Summers , 282 S.W.3d 433, 437 (Tex. 2009). We read a statute's words and phrases in context and construe them according to the rules of grammar and common usage. TEX.GOV'T CODE ANN. § 311.011 ; see also TGS-NOPEC Geophysical Co. v. Combs , 340 S.W.3d 432, 439 (Tex. 2011) ("Undefined terms in a statute are typically given their ordinary meaning [unless] a different or more precise definition is apparent from the term's use in the context of the statute ...."). We presume lawmakers chose statutory language "with care and that every word or phrase was used with a purpose in mind." Tex. Lottery Comm'n v. First State Bank of DeQueen , 325 S.W.3d 628, 635 (Tex. 2010). Thus, our interpretation must ensure that no words are read as useless or a nullity, and that no portions of the statute are rendered superfluous. See T.S.N. , 547 S.W.3d at 622 ; see also Matter of Expunction of J.B. , 564 S.W.3d at 440, citing Tex. Dep't of Transp. v. City of Sunset Valley , 146 S.W.3d 637, 642 (Tex. 2004).
We reject T.D.N.'s argument because otherwise, we would have to ignore express language in Article 55.01(c) that allows for a single conviction to establish the predicate for a "criminal episode." That subsection provides:
(c) 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.
TEX.CODE CRIM.PROC.ANN. art. 55.01(c) (emphasis supplied). We read statutes in context, and the very provision that adopts the definition of a "criminal episode" also allows for a single conviction, or even the possibility of a conviction, to block an expunction. We also note our sister court from San Antonio recently rejected the same argument advanced by T.D.N. here. See Ex parte R.A.L. , 2020 WL 557542, at *2 ; see also In re M.T.R. , 606 S.W.3d 288 at 292-94 (comparing single charge that petitioner was convicted on with charge alleged, but later acquitted on); Ex parte Rios , No. 04-19-00149-CV, 2019 WL 4280082, at *2 (Tex.App.--San Antonio Sept. 11, 2019, no pet.) (same); Matter of Expunction of J.B. , 564 S.W.3d at 441 (same).
Because we have determined that the two offenses did in fact arise from the same criminal episode, we conclude that the trial court erred in granting the expunction. The Department's Issue is sustained.
III. CONCLUSION
Because T.D.N. did not come forward with legally sufficient evidence to support his entitlement to an expunction under any of the applicable provisions in the expunction statute, we conclude that the trial court erred in granting his motion for an expunction. We sustain the Department's two issues and reverse the trial court's order and render judgment denying the expunction.
DISSENTING OPINION ON MOTION FOR REHEARING
YVONNE T. RODRIGUEZ, Chief Justice
Appellee, T.D.N., has filed a motion for rehearing of our opinion dated September 21, 2020, in which we sustained the two issues advanced by Appellant, the Texas Department of Public Safety (the "DPS"), and reversed the trial court's order granting an expunction for T.D.N. See Matter of T.D.N. , No. 08-19-00164-CV, 2020 WL 5627222, at *6 (Tex.App.—El Paso Sep. 21, 2020, no pet. h.). I would grant T.D.N.'s motion, withdraw our opinion and judgment dated September 21, 2020, and reinstate this appeal.
To support one ground of his motion, T.D.N. points our attention to an en banc opinion, Ex parte Ferris , issued by the Fifth Court of Appeals on October 2, 2020 – less than two weeks after our own – that squarely addressed one of the issues with which we were faced in this case. See Ex parte Ferris , 613 S.W.3d 276, 281-85 (Tex.App.—Dallas 2020, no pet. h.). As in our case, the petitioner in Ferris sought an expunction of records relating to a criminal offense for which he had been acquitted at trial, pursuant to Texas Code of Criminal Procedure article 55.01(a)(1)(A). See Ferris , 613 S.W.3d at 279 ; T.D.N. , 2020 WL 5627222, at *1. However, as also in our case, the petitioner had previously been convicted of an offense, and the DPS argued on appeal that the petitioner was not entitled to an expunction on their acquitted offense because the two criminal offenses in tandem, though separated in time by multiple years and lacking any factual nexus, constituted a "criminal episode" that precluded expunction of the more-recent acquitted offense under Texas Code of Criminal Procedure article 55.01(c). See Ferris , 613 S.W.3d at 281-82 ; T.D.N. , 2020 WL 5627222, at *2. Thus, the court in Ferris faced the crucial task of providing a proper interpretation of what constitutes an "offense" under the provision of the expunction statute that precludes expunction of an acquitted offense if it was part of a "criminal episode." Ferris , 613 S.W.3d at 281-83. Our sister court held that two disparate offenses, untethered by timing or a factual nexus, could not be part of the same criminal episode "because they could not be consolidated or joined for trial or sentencing under Penal Code §§ 3.02 - 3.03." Ferris , 613 S.W.3d at 283-84. However, this Court reached an opposite conclusion that "there is no requirement that the two offenses have a factual nexus or relationship ... the legislature has imposed no requirement in Section 3.01(2) that the two ‘repeated’ offenses must involve the same victim, be close in temporal or geographic proximity, or were committed in the same or similar fashion." See T.D.N. , 2020 WL 5627222, at *2. As a result, an apparent split in authority between this Court and our sister court was created.
The DPS has filed a response to T.D.N.'s motion for rehearing in which it contends that no rehearing is necessary because our opinion in this case was properly decided. Furthermore, the DPS points out that our sister court's en banc opinion in Ferris was narrowly decided by a 7-to-6 majority with four Justices issuing a dissenting opinion. See Ferris , 613 S.W.3d at 284-85. Nonetheless, both parties acknowledge Ferris addressed the same crucial issue as in this case. And as such, I find it beneficial to the development of Texas jurisprudence on the interpretation of a "criminal episode" under Article 55.01(c) – especially, in light of a potential split of opinion across the intermediate courts on the matter – to reconsider our prior opinion with the benefit of our sister court's recently announced and thoughtful reasoning.
Therefore, I would grant T.D.N.'s motion to reconsider and reinstate this appeal. Respectfully, I dissent from the denial of the motion for rehearing.