Opinion
NO. 03-19-00391-CV
07-23-2020
L. W. C., Appellant v. Texas Department of Public Safety, Appellee
FROM THE 169TH DISTRICT COURT OF BELL COUNTY
NO. 300,052-C, THE HONORABLE GORDON G. ADAMS, JUDGE PRESIDING MEMORANDUM OPINION
L.W.C. appeals from the denial of his petition for expunction of an arrest record. See Tex. Code Crim. Proc. art. 55.01(a)(1)(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 . . . the person is tried for the offense for which the person was arrested and is . . . acquitted by the trial court . . . ."). Finding no error or abuse of discretion in the proceedings below, we will affirm.
BACKGROUND
On October 1, 1999, the Killeen Police Department arrested L.W.C. for aggravated sexual assault of a child pursuant to section 22.021 of the Texas Penal Code. Bell County prosecutors deferred to the United States Army for prosecution of the alleged crime, which was independently charged as a violation of articles 125, 129, and 134 of the Uniform Code of Military Justice (U.C.M.J.). See U.C.M.J. arts. 125 (sodomy), 129 (unlawful entry), 134 (committing indecent act). Following court-martial proceedings, L.W.C. was acquitted of the three military offenses. A Bell County district court then dismissed the charges filed under the Texas Penal Code.
All citations are to the version of the U.C.M.J. in effect at the time. See 10 U.S.C. §§ 925, 929, 934 (West 1994) (setting forth, respectively, articles 125, 129, and 134).
On April 20, 2018, L.W.C. filed a petition for expunction of the records related to his 1999 arrest. The trial court denied the petition in June of 2019. L.W.C. perfected this appeal.
DISCUSSION
We review a trial court's ruling on a petition for expunction for an abuse of discretion. Heine v. Texas Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.—Austin 2002, pet. denied). A court abuses its discretion if it acts unreasonably or arbitrarily or acts without regard to governing legal principles. Travis Cty. Dist. Att'y v. M.M., 354 S.W.3d 920, 922 (Tex. App.—Austin 2011, no pet.). In determining whether there was an abuse, we look only to the evidence before the trial court when the trial court rendered its decision. In re N.V.R., 580 S.W.3d 220, 226 (Tex. App.—Tyler 2019, pet. denied).
L.W.C. raises what he describes as eight points of error. To facilitate this discussion, we will consolidate his arguments into two broad issues on appeal. See Gene Hamon Ford, Inc. v. David McDavid Nissan, Inc., 997 S.W.2d 298, 304 n.9 (Tex. App.—Austin 1999, pet. denied) (consolidating points of error for discussion); Gunnarson v. State, No. 03-18-00738-CV, 2020 WL 913050, at *4 (Tex. App.—Austin Feb. 26, 2020, no pet.) ("To facilitate this discussion, we will consolidate and summarize these arguments into three broad issues on appeal."). First, L.W.C. contends the district court erred or abused its discretion by failing to issue findings of fact and conclusions of law. Second, L.W.C. argues that the district court abused its discretion by denying him an expunction.
L.W.C., appearing pro se, has filed a brief that includes only a cursory overview of his arguments and related authority. We will address his arguments to the extent we can discern them. See Tex. R. App. P. 38.1(h); United Copper Indus., Inc. v. Grissom, 17 S.W.3d 797, 805 n.6 (Tex. App.—Austin 2000, pet. dism'd) (holding pro se litigants to same standards as litigants represented by counsel).
Findings and Conclusions
L.W.C. first argues that the district court erred or abused its discretion by failing to issue findings of fact and conclusions of law. When, as here, a case is tried in a district court without a jury, any party may request that the court state in writing its findings of fact and conclusions of law. See Tex. R. Civ. P. 296. A request for findings and conclusions must be filed within twenty days of the date the judgment is signed. See id. Once a litigant files a timely request, the trial court must issue its findings of fact and conclusions of law within twenty days. See id. R. 297. If the trial court fails to timely file its findings and conclusions after a party files a timely request, the requesting party may, within thirty days after filing the original request, file with the clerk and serve on all other parties a notice of past-due findings and conclusions. See id.
In this case, L.W.C. filed his request for findings and conclusions on November 15, 2018, several months before the district court signed the expunction order. A premature request like L.W.C.'s is deemed as timely filed the day the judgment is signed, which in this case was June 5, 2019. See id. R. 306c. L.W.C.'s notice of past-due findings and conclusions was therefore due within thirty days of June 5, 2019, but L.W.C. did not file the notice.
L.W.C. instead filed a purported notice of past-due findings and conclusions on March 26, 2019, more than two months before his request for findings and conclusion was deemed filed. It is not clear whether L.W.C. asks us to hold the prematurely filed notice of past-due findings and conclusions as timely filed. To the extent he makes such a request, we decline to do so. As our sister court explained, "A premature reminder . . . does not serve the purpose for the notice." Gorski v. Welch, 993 S.W.2d 298, 302 (Tex. App.—San Antonio 1999, pet. denied); accord Joseph v. Joseph, No. 01-11-01096-CV, 2012 WL 1564318, at *2 (Tex. App.—Houston [1st Dist.] May 3, 2012, no pet.) (mem. op.). Therefore, because L.W.C. failed to timely file a notice of overdue findings and conclusions, and because the record does not indicate that L.W.C. otherwise brought the issue to the attention of the district court, L.W.C. has waived his right to complain of the court's failure to file those findings and conclusions. See Joseph, 2012 WL 1564318, at *2. We overrule L.W.C.'s first issue.
Expunction
L.W.C. next argues that the district court abused its discretion in denying him the requested expunction because that court should have "incorporated the adversarial General Court Martial's acquittal as its own" for the purposes of Article 55.01(a)(1)(A) of the Code of Criminal Procedure. L.W.C.'s argument raises a question of statutory interpretation, which we review de novo. See Mont Belvieu Caverns, LLC v. Texas Comm'n on Envtl. Quality, 382 S.W.3d 472, 486 (Tex. App.—Austin 2012, no pet.). In construing a statute, we strive to give effect to the Legislature's intent in enacting the statute. See id. The statutory text is the foremost indicator of that intent, and we will not adopt a construction inconsistent with the text. See id. We must strictly construe the expunction statute. See Ex parte Petitto, ___ S.W.3d ___, ___, No. 04-18-00539-CV, 2019 WL 3432100, at *6 (Tex. App.—San Antonio July 31, 2019, pet. filed).
Article 55.01(a)(1)(A) provides, "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 . . . the person is tried for the offense for which the person was arrested and is . . . acquitted by the trial court . . . ." In this case, L.W.C. seeks to expunge records related to an offense defined in section 22.021 of the Texas Penal Code—i.e., aggravated sexual assault. It is undisputed that L.W.C. was neither "tried" nor "acquitted" of that offense by the trial court. See Ex Parte Current, 877 S.W.2d 833, 836 (Tex. App.—Waco 1994, no writ) (holding, under "the plain language of this statute," that petitioner must show acquittal "by the trial court" and not by some other tribunal (emphasis in original)); accord Harris Cty. Dist. Att'y's Office v. Jimenez, 886 S.W.2d 521, 522 (Tex. App.—Houston [1st Dist.] 1994, writ. denied) (adopting Current's holding). Accordingly, under the plain language of the statute, L.W.C. is not entitled to expunction under Article 55.01(a)(1)(A).
We note that, on this record, L.W.C. is also ineligible for an expunction because limitations have not run on the offense with which he was charged. See Tex. Code Crim. Proc. art. 55.01(a)(2)(B).
L.W.C. disagrees, arguing that he was "tried" for the offense during the court-martial proceeding and noting that the "trial" ended in acquittal. Yet L.W.C. identifies no authority holding that a defendant is "tried for [an] offense" charged under state law when he was in fact tried for violations of the U.C.M.J. Nor does L.W.C. identify any authority holding that a defendant is acquitted of charges filed under state law once he is acquitted through court-martial of charges filed under the U.C.M.J. To the contrary, under the dual-sovereignty doctrine, "[w]hen a defendant in a single act violates the 'peace and dignity' of two sovereigns by breaking the laws of each, he has committed two distinct 'offen[s]es.'" Heath v. Alabama, 474 U.S. 82, 99 (1985) (quoting United States v. Lanza, 260 U.S. 377, 382 (1922)). Thus, the military offenses for which L.W.C. was tried and acquitted are distinct from the state offense the Bell County prosecutors chose not to pursue. See id. (holding that successive prosecutions would not violate double jeopardy); T.H. v. Texas Dep't of Pub. Safety, No. 03-15-00304-CV, 2016 WL 5874869, at *4 (Tex. App.—Austin Oct. 6, 2016, no pet.) (mem. op.) ("[A] petitioner must prove that each charge arising from the arrest satisfies the requirements of article 55.01."). Accordingly, because L.W.C. has not shown that he meets the statutory criteria for expunction, the district court did not abuse its discretion in denying his petition for expunction. We overrule his second issue.
CONCLUSION
Having overruled L.W.C.'s issues on appeal, we affirm the district court's order denying expunction.
/s/_________
Edward Smith, Justice Before Chief Justice Rose, Justices Triana and Smith Affirmed Filed: July 23, 2020