Opinion
14-20-00426-CV
03-29-2022
THE STATE OF TEXAS, Appellant v. D.D.M., Appellee
On Appeal from the 209th District Court Harris County, Texas Trial Court Cause No. 1663415
Panel consists of Justices Jewell, Spain, and Wilson.
MAJORITY OPINION
KEVIN JEWELL JUSTICE
The State of Texas appeals an order expunging certain records relating to an alleged 2018 drug offense for which D.D.M. was arrested but acquitted. Generally, a person is entitled to have arrest records expunged if the person is acquitted of the offense for which the person was arrested. Tex. Code Crim. Proc. Art. 55.01(a)(1)(A). An exception exists if the offense for which the person was acquitted arose out of a criminal episode, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode. Id. art. 55.01(c). The State asserts that the exception applies here because the 2018 offense for which D.D.M. was acquitted is the same as, or similar to, two prior offenses of which D.D.M. was convicted, and the 2018 offense arose out of a criminal episode.
Because we agree that D.D.M. does not meet the statutory criteria entitling him to expunction of the 2018 arrest, we reverse the trial court's order and render judgment denying his petition for expunction.
Background
In 2001, D.D.M. was arrested for the state jail felony offense of delivery of cocaine, less than one gram (the "2001 Arrest"). The date of the offense was March 22, 2001. In cause number 872413 in the 208th District Court of Harris County, D.D.M. pleaded guilty to this offense and was convicted. The court sentenced him to nine months in the Texas Department of Criminal Justice, State Jail Division ("TDCJ-SJD").
In 2016, D.D.M. was arrested for the state jail felony offense of delivery of cocaine, less than one gram (the "2016 Arrest"). This offense occurred in October 2016. In cause number 1526049 in the 263rd District Court of Harris County, D.D.M. pleaded guilty to this offense and was convicted. The court sentenced him to 180 days in TDCJ-SJD.
In December 2018, D.D.M. was arrested and charged with the state jail felony offense at issue in the present matter, namely manufacture or delivery of a controlled substance, penalty group 1, less than one gram (the "2018 Arrest"). The charge arising from the 2018 Arrest was docketed in cause number 1614822 in the 209th District Court of Harris County. The parties agree a jury acquitted D.D.M. He then filed a petition to expunge the records relating to the 2018 Arrest in the 209th District Court. The trial court granted the request based on the acquittal and signed an order expunging D.D.M.'s 2018 Arrest records.
In his trial court request for expunction, D.D.M. identified the 2018 offense as "MAN/DEL CS PG 1 <1GRAM." According to the State, this abbreviation represents the offense of manufacture or delivery of a controlled substance, penalty group 1, less than one gram. Because D.D.M. did not file a brief and has not contested the State's assertion, we accept this fact as true. See Tex. R. App. P. 38.1(g) ("In a civil case, the court will accept as true the facts stated [in appellant's brief] unless another party contradicts them.").
I do not question that the State is a proper party.
The State filed a motion for new trial, arguing that D.D.M. is not entitled to expunction of the 2018 Arrest records because he had two previous convictions for the same offenses stemming from the 2001 Arrest and the 2016 Arrest. The State argued that the 2001 and 2016 convictions comprised a criminal episode and that the 2018 Arrest arose out of that criminal episode. The State attached to the motion for new trial certified copies of the judgments of conviction relating to the 2001 Arrest and the 2016 Arrest. The State requested the court to grant a new trial and to deny the petition for expunction. Without a hearing, the trial court denied the State's motion for new trial, stating that "there is no evidence that the defendant's prior case[s] were out of the same transaction nor of a common scheme or plan." The State timely noticed its appeal.
Expunction Statute
Although the expunction statute appears in Code of Criminal Procedure chapter 55, an expunction proceeding is a civil remedy. Ex parte E.H., 602 S.W.3d 486, 489 (Tex. 2002); R.G. v. Harris Cty. Dist. Attorney's Office, 611 S.W.3d 69, 71 (Tex. App.-Houston [14th Dist.] 2020, pet. denied). "Because the remedy is a privilege defined by the Legislature, and not a constitutional or common-law right, the statutory requirements are mandatory and exclusive and cannot be equitably expanded by the courts." Ex parte R.P.G.P., 623 S.W.3d 313, 316 (Tex. 2021); see also R.G., 611 S.W.3d at 71. The petitioner bears the burden of proving all statutory requirements. See State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018); R.G., 611 S.W.3d at 71; In re M.T.R., 606 S.W.3d 288, 291 (Tex. App.-Houston [1st Dist.] 2020, no pet.).
In relevant part, the expunction statute 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, except as provided by Subsection (c).Tex. Code Crim. Proc. art. 55.01(a)(1)(A). Subsection (c) provides:
A court may not order 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.Id. art. 55.01(c). "Criminal Episode," as defined by Penal Code section 3.01, means:
the 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 § 3.01.
Standard of Review
We review a trial court's ruling on a petition for expunction for an abuse of discretion. R.P.G.P., 623 S.W.3d at 317; T.S.N., 547 S.W.3d at 620; R.G., 611 S.W.3d at 72. A trial court has no discretion, however, in determining what the law is or applying the law to the facts, and thus we review a trial court's legal conclusions under a de novo standard. T.S.N., 547 S.W.3d at 620; R.G., 611 S.W.3d at 72. Likewise, construction of a statute is a question of law that we review de novo. R.G., 611 S.W.3d at 72 (citing T.S.N., 547 S.W.3d at 620); see also R.P.G.P., 623 S.W.3d at 317. We analyze statutes "as a cohesive, contextual whole" with the goal of effectuating the legislature's intent and employing the presumption that the legislature intended a just and reasonable result. R.P.G.P., 623 S.W.3d at 317; T.S.N., 547 S.W.3d at 620; R.G., 611 S.W.3d at 72.
Analysis
In a single issue, the State contends that D.D.M. is not entitled to expunction of the 2018 Arrest records because the offense of which he was acquitted arose out of the same criminal episode as the earlier offenses of which he was convicted. The State argues that the offenses underlying D.D.M.'s 2001 Arrest, 2016 Arrest, and 2018 Arrest all constitute part of the same criminal episode under Penal Code subsection 3.01(2) because they "are the repeated commission of the same or similar offenses." Thus, the State continues, pursuant to article 55.01(c)'s exception, the trial court could not expunge D.D.M.'s records relating to the 2018 Arrest.
The State of Texas is an appropriate appellant, and we have jurisdiction. See T.S.N., 547 S.W.3d at 618-19. D.D.M. named the State as the respondent; the State was the prosecuting authority for the offense of which D.D.M. was acquitted that is the subject of his expunction petition; the State is statutorily required to receive notice of the expunction request under the applicable provision, Tex. Code Crim. Proc. art. 55.02, § 1; the trial court found that the State received notice; and the State timely filed a notice of appeal.
Appellee named the following agencies in his petition to be notified and the agencies were listed in the expunction order: Harris County Sheriff's Department; Department of Public Safety; Harris County Pretrial Services; and Office of Court Administration.
The order of expunction states that the expunction request is granted, but it does not reference article 55.01(c). In the order denying the State's motion for new trial, the trial court stated, "there is no evidence that the defendant's prior case[s] were out of the same transaction nor of a common scheme or plan." We interpret the court's statement as referring to Penal Code section 3.01(1). See Tex. Penal Code § 3.01(1). But section 3.01 additionally provides that a criminal episode means the commission of two or more offenses when "the offenses are the repeated commission of the same or similar offenses." Id. § 3.01(2); accord Duncan v. State, No. 18-12-00328-CR, 2013 WL 5716179, at *2 (Tex. App.-El Paso Oct. 18, 2013, no pet.) (not designated for publication) ("To be characterized as a single criminal episode, multiple offenses occurring on different dates, in different places, and against several complainants must either: (1) be the same or similar; (2) share a common scheme or plan; or (3) have been repeated in a similar fashion.").
According to our dissenting colleague, the judgments of conviction based on D.D.M.'s 2001 and 2016 Arrests were not before the trial court, and thus are not before this court, because they were merely attached to the State's motion for new trial and were neither offered nor admitted into evidence. We disagree. Generally speaking, in the civil context, a trial court has the discretion to consider evidence appended to a motion for new trial if the court affirmatively indicates in the record that it accepted or considered the evidence. See, e.g., Castro v. Walker County, No. 07-20-00224-CV, 2020 WL 8916061, at *2 (Tex. App.-Amarillo Mar. 18, 2020, pet. denied) (mem. op.); PNP Petroleum I, LP v. Taylor, 438 S.W.3d 723, 729 (Tex. App.-San Antonio 2014, pet. denied); Circle X Land & Cattle Co. v. Mumford Indep. Sch. Dist., 325 S.W.3d 859, 863 (Tex. App.-Houston [14th Dist.] 2010, pet. denied); Auten v. DJ Clark, Inc., 209 S.W.3d 695, 702 (Tex. App.-Houston [14th Dist.] 2006, no pet.); Stephens v. Dolcefino, 126 S.W.3d 120, 133 (Tex. App.- Houston [1st Dist.] 2003, pet. denied). Here, the trial court's order denying the motion for new trial clearly refers to the two judgments, which the State placed before the court with its motion for new trial. D.D.M. did not object to the evidence. The court ruled that the motion for new trial should be denied because the "defendant's prior case[s]" were not "out of the same transaction nor of a common plan or scheme." This statement sets forth the clear basis for the court's substantive ruling that the order granting expunction should not be disturbed. The trial court could not have arrived at its articulated conclusion had it not considered the certified copies of the judgments attached to the State's motion for new trial. We conclude this is an affirmative indication that the trial court considered D.D.M.'s prior judgments of conviction based on his 2001 and 2016 Arrests. Accordingly, we consider them as well.
Under subsection 3.01(2), there is no requirement that the commission of two or more offenses comprising a criminal episode have a factual nexus or relationship to each other. Nor has the legislature mandated in subsection 3.01(2) that "repeated" commission of the same or similar offenses involve the same victim, be close in temporal or geographic proximity, or be committed in the same or similar fashion. See Matter of T.D.N., 620 S.W.3d 433, 439 (Tex. App.-El Paso 2020, pet. denied); M.T.R., 606 S.W.3d at 292; 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.); Ex parte J.A.B., 592 S.W.3d 165, 169 (Tex. App.-San Antonio 2019, no pet.); Matter of J.B., 564 S.W.3d 436, 441 (Tex. App.-El Paso 2016, no pet.); see also Waddell v. State, 456 S.W.3d 366, 369 (Tex. App.-Corpus Christi 2015, no pet.) (explaining that section 3.01 "does not require that all the offenses arising out of the same criminal episode occur within any particular time frame"); Casey v. State, 349 S.W.3d 825, 831 (Tex. App.-El Paso 2011, pet. ref'd) (same); Guidry v. State, 909 S.W.2d 584, 585 (Tex. App.-Corpus Christi 1995, pet. ref'd) ("Section 3.01(2) does not impose a time differential between the commission of the same or similar offenses. Had the Legislature wanted us to consider a time differential in the application of this section of the Code, it could have easily done so."). Subsection 3.01(2) requires only that the offenses are the repeated commission of the same or similar offenses. See T.D.N., 620 S.W.3d at 439; M.T.R., 606 S.W.3d at 293; J.A.B., 592 S.W.3d at 169.
Analyzing the expunction statute as a "cohesive, contextual whole with the goal of effectuating the Legislature's intent, " and in fact based on its plain text, article 55.01(c) prohibits courts from expunging records, including records of an acquitted person, if the offense for which the person was acquitted arose out of a criminal episode, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode. See Tex. Code Crim. Proc. art. 55.01(c); Tex. Penal Code § 3.01(2); M.T.R., 606 S.W.3d at 293.
T.S.N., 547 S.W.3d at 620 (internal quotation omitted).
See Tex. Code Crim. Proc. Ann. art. 55.02 (procedure for expunction), §§ 1 (trial court may order expunction "[a]t the request of the acquitted person and after notice to the state"), 2(c) ("The court shall set a hearing on the matter no sooner than thirty days from the filing of the petition and shall give to each official or agency or other governmental entity named in the petition reasonable notice of the hearing[.]").
Based on the record before us, the 2018 offense for which D.D.M. was acquitted arose out of a criminal episode, as that term is defined in subsection 3.01(2). The "same or similar" offenses are involved when they are based on a violation of the same Penal Code provision. See, e.g., R.A.L., 2020 WL 557542, at *2 (petitioner was not entitled to expunction of 2017 DWI offense records when he was previously convicted in 2013 for the same offense). D.D.M. was twice convicted of the state jail felony offense of delivery of less than one gram of cocaine in 2001 and 2016. See Tex. Health & Safety Code § 481.112(a), (b) (manufacture, delivery, or possession of substance in penalty group 1 is state jail felony if amount of controlled substance is less than one gram); id. § 481.102(3)(D) (cocaine is included in penalty group 1). The 2001 and 2016 offenses of which D.D.M. was convicted themselves comprise a criminal episode because, being based on violations of the same Penal Code provision, they are the "same [as] or similar" to each other. Tex. Penal Code § 3.01(2); cf. Green v. State, 242 S.W.3d 215, 219-20 (Tex. App.-Beaumont 2007, no pet.) (holding that possession of controlled substances offenses, even though substances possessed were found in two different penalty groups, arose out of same criminal episode under Penal Code subsection 3.01(2)). Additionally, the 2018 offense for which D.D.M. was acquitted is likewise based on a Penal Code provision that is the same as or similar to the provision underlying the 2001 and 2016 convictions: the state jail felony offense of manufacture or delivery of a substance in penalty group 1. See Tex. Health & Safety Code § 481.112(a), (b). Thus, the 2018 Arrest was based on an offense that is the "same [as] or similar" to the 2001 and 2016 convictions. We conclude therefore that D.D.M.'s 2018 offense for which he was acquitted arose out of the same criminal episode as the 2001 and 2016 offenses for which he was convicted. See Tex. Penal Code § 3.01(2); T.D.N., 620 S.W.3d at 439; M.T.R., 606 S.W.3d at 293; J.A.B., 592 S.W.3d at 169.
Thus, the present facts are distinguishable from those in Ex parte K.T., 612 S.W.3d 111 (Tex. App.-Fort Worth 2020, pet. granted), and Ex parte Ferris, 613 S.W.3d 276 (Tex. App.- Dallas 2020, pet. granted).
There is no reporter's record from the trial, and the court reporter notified this court that no record exists.
Accordingly, we conclude that article 55.01(c)'s exception is established as a matter of law. D.D.M.'s 2001 and 2016 convictions comprise a criminal episode as defined by Penal Code subsection 3.01(2). The offense forming the basis of D.D.M.'s 2018 Arrest arose out of a criminal episode and was the same offense as those for which D.D.M. was twice convicted. Tex. Code Crim. Proc. art. 55.01(c). Article 55.01(c) prohibits the expunction of D.D.M.'s 2018 Arrest records, and the trial court erred in ruling otherwise. We sustain the State's sole issue on appeal.
A remaining issue is the proper disposition. The dissenting justice asserts that we must remand this case and that we cannot render a judgment denying expunction relief because rendering judgment on the merits grants more relief than is available on a motion for new trial. We are aware of at least three decisions in which appellate courts have, under circumstances identical or comparable to those here, rendered judgments denying expunction relief when the record showed as a matter of law that the statutory requisites were not met. R.A.L., 2020 WL 557542, at *3; T.D.N., 620 S.W.3d at 443-44; Ex parte Seymore, No. 12-16-00072-CV, 2017 WL 1193591, at *2 (Tex. App.-Tyler Mar. 31, 2017, no pet.) (mem. op.). The courts in these cases did not discuss the rationale for rendition as opposed to remand. In another case from the First Court of Appeals, the court, also without discussion, remanded the case for new trial after holding that the petitioner was not entitled to expunction relief and the trial court erred in failing to grant the Department's motion for new trial. Tex. Dep't of Pub. Safety v. J.A.M., No. 01-16-00814-CV, 2017 WL 1629444, at *3 (Tex. App.-Houston [1st Dist.] May 2, 2017, no pet.) (mem. op.). The Supreme Court of Texas denied review in R.A.L.; the other cases were not appealed.
Several considerations compel us to conclude that rendition is the appropriate disposition on this record. The first is the nature of the expunction statute itself, which permits expunction relief to be granted only when the statutory prerequisites are met. When those conditions are not met, no other relief is available to the petitioner; the petition must be denied. The State argued in its motion for new trial that the statutory conditions were not met for the reasons we have discussed, and the State requested the trial court to both (1) grant a new trial and (2) deny the expunction petition. The language of the trial court's order denying the State's motion for new trial shows that the court ruled on the merits and stated a legal reason why it refused to vacate the order granting the expunction. We have concluded that the statutory conditions for expunction relief are not met as a matter of law, and thus the trial court erred. Under Texas Rule of Appellate Procedure 43.3, when reversing a trial court's judgment, we must render the judgment that the trial court should have rendered except when "a remand is necessary for further proceedings" or "the interests of justice require a remand for another trial." Tex.R.App.P. 43.3. A remand for further proceedings is not necessary because the evidence the trial court considered shows conclusively that D.D.M. is not entitled to expunction relief. There exists no need for a further evidentiary hearing. And because the evidence is conclusive, a remand is not appropriate in the interest of justice. Our disposition is consistent with the judgments in at least three other comparable cases. R.A.L., 2020 WL 557542, at *3; T.D.N., 620 S.W.3d at 443-44; Ex parte Seymore, 2017 WL 1193591, at *2.
A person is not entitled to expunction until all of the statutory conditions are met. T.S.N., 547 S.W.3d at 620; Tex. Dep't of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.-Houston [14th Dist.] 2008, no pet.).
The State asked for a new trial: "For the foregoing reasons, the District Attorney respectfully requests the Court to grant a new trial in the instant cause."
The State did not seek a new trial based on procedural grounds, such as a lack of notice.
Without a hearing, the trial court cannot serve in its role as the gatekeeper over contested evidentiary disputes.
Conclusion
We reverse the trial court's expunction order and render judgment denying D.D.M.'s petition for expunction of the records related to his 2018 Arrest.
DISSENTING OPINION
Charles A. Spain Justice
Lawyers my age remember when a trial judge could grant a new trial on no grounds or coffee grounds. Those days are gone, or so I thought. Today the court resurrects the power to grant a new trial when there was nothing wrong with the trial. Because this is no longer the law, I dissent.
The issue in this case is whether a trial court, in response to a motion for new trial on which no hearing was held, may consider (1) documents that were neither offered nor admitted at trial and (2) arguments not made at trial, then render a new judgment based on those documents and arguments. The trial court thought the answer was, "No," and denied that motion for new trial.
This court, however, renders judgment based on that motion for new trial, notwithstanding:
• lack of error-fundamental or reversible-in the trial court's final order;
• Texas Rule of Civil Procedure 320's restriction of the proper relief on a motion for new trial to just that, a new trial;
• lack of an evidentiary hearing at which the trial court could have served as gatekeeper and admitted evidence on the motion for new trial; and
• supreme court precedent.
Appellate courts properly review what happened in the court below, not what the appellate court thinks should have happened. This court's judgment is erroneous.
The trial was a civil-expunction proceeding in which no evidence was offered at trial by the State of any previous convictions. In fact, neither the State nor any other opposing party appeared at trial. Appellee D.D.M. was the petitioner, and the expunction order named as party respondents the State of Texas1 and the Harris County District Clerk.2
The final expunction order states, "the State of Texas has been notified of the petitioner's request." The court's docket sheet notes that appellee did not appear at trial but otherwise does not note any other appearance or nonappearance.3 With no party or agency offering any argument or evidence opposing the petition, the trial court signed a final order granting the appellee's petition for expunction based on his acquittal.4 There is simply no error in the trial court's judgment.
The State filed a motion for new trial and attached what appear to be certified copies of previous convictions.5 Had the State appeared at trial and offered those documents into evidence, the trial court would have a different case before it and the ability to grant the relief the State requested.6 Had the State offered (1) an explanation for not appearing at trial or (2) a claim of newly discovered evidence in its motion for new trial, once again the trial court would have a different case before it and might have the ability to grant the relief the State requested. But none of that happened.
Instead, the trial court considered the motion for new trial on written submission. Nothing in the trial court's order denying the motion for new trial suggests the trial court sua sponte admitted the attachments into evidence or otherwise considered them. The trial court's order denying the motion for new trial states, "there is no evidence that the defendant's prior case[s] were out of the same transaction nor of a common scheme or plan." As no evidence was offered or admitted, the trial court's statement is correct.
Similarly, this court cites Texas Rule of Appellate Procedure 38.1(g) to establish a "fact"- that "MAN/DEL CS PG 1 <1GRAM" in the document attached to the motion for new trial describes an offense related to the controlled substance cocaine. This court's argument ignores the troublesome reality that the attached document was never admitted in evidence at any stage of the proceedings. I also am extraordinarily skeptical that Rule 38.1(g) can be used to establish a fact that the record establishes was not found at trial. The "fact" this court describes is an interpretation of a document not in evidence, not a fact in the traditional sense. This court reads the same quote but interprets it to mean the trial court admitted the attached documents in evidence. Even if this were a plausible reading, and I do not think it is, I am not aware of any authority that allows an appellate court to construe language in a judgment or post-judgment order in a way that creates reversible error when the alternate construction would support the judgment and any post-judgment order. There is no rebuttable presumption that the trial court committed reversible error; instead, it is an appellant's burden to preserve reversible error in the trial court and to present and argue that alleged error to the appellate court in its brief. See Tex. R. App. P. 33.1 (preservation of error), 38.1(f) (issues presented), (i) (argument), 44.1 (reversible error in civil cases).
Only the State filed a notice of appeal. The State offered no explanation for its failure to appear at trial. Neither does the State make an argument on appeal that documents attached to a motion for new trial constitute evidence; indeed, such a theory conflicts with well-settled precedent. While there is law on the civil side that a new trial may be granted due to "newly discovered" evidence, there is nothing in the record indicating the State was not aware of, or could not have offered, the evidence of the alleged previous convictions at trial.
But see Tex. Code Crim. Proc. Ann. art. 55.02, § 3(a) ("The person who is the subject of the expunction order or an agency protesting the expunction may appeal the court's decision in the same manner as in other civil cases.") (emphasis added). No agency protested the expunction at the expunction hearing. This court does not explain whether (1) the State is an "agency" for the purpose of appeal and (2) whether the statutory right of appeal in Code of Criminal Procedure article 55.02, section 3 applies to "an agency protesting the expunction" when the "protest" occurred post-trial, i.e., after the expunction hearing. This raises the possibility of a want of subject-matter jurisdiction, which is unwaivable fundamental error this court does not address.
This is not a criminal case, and accordingly rules and statutes governing new trials in criminal cases do not apply. See, e.g., Tex.R.App.P. 21; Tex. Code Crim. Proc. Ann. art. 40.001.
While the supreme court has held that affidavits attached to a motion for new trial in a civil case "do not have to be offered into evidence in order to be considered by the trial court," the records at issue here are not affidavits. See Director, State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). PostEvans, this court has declined to consider records that were not admitted into evidence at trial or at a hearing on a motion for new trial. See, e.g., Duruji v. Duruji, No. 14-05-01185-CV, 2007 WL 582282, at *5 (Tex. App.-Houston [14th Dist.] Feb. 27, 2007, no pet.) (mem. op.) (holding that foreign divorce decree attached to pleading but not admitted into evidence at trial or hearing on motion for new trial "was not before the trial court for consideration" and collecting cases for proposition that documents attached to pleadings are not evidence). Specific to the motion for new trial, this court explained that, because appellant did not introduce any exhibits into evidence at the hearing on his motion for new trial, "[a]s a result, the documents he relies on in this appeal were not submitted as evidence for the trial court to consider in connection with the motion for new trial." Id. at *6. For the same reason, this court refused to consider the records. See id.
Cf. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010) (for "newly discovered" evidence to be considered on motion for new trial, moving party must show, among other things, that "the evidence has come to its knowledge since the trial" and "its failure to discover the evidence sooner was not due to lack of diligence").
In its motion for new trial, the State does not argue that the trial erred in granting the petition for expunction; rather, the State makes the argument it could have made if it had appeared at trial. Accordingly, this is not an issue of waiver. See Tex. R. App. P. 33.1(a). Instead, it is a case in which the motion for new trial does not identify any error merged into the final order.
Even if the State had requested an evidentiary hearing on its motion for new trial, explained why it failed to appear at trial, and offered and gained admission of its evidence in the trial court, the greatest relief the trial court could have granted under Texas Rule of Civil Procedure 320 was a new trial. Yet this court grants more, reversing the trial court when the trial court did not err, and rendering a judgment when the State asked "the Court to grant a new trial." Simply put, this court has rendered the judgment this court thinks the trial court should have rendered, even though the trial court followed the law in denying the motion for new trial, and even though the trial court could not have granted on motion for new trial the relief this court now grants.
As explained by one of our sister courts in an expunction proceeding: "The greatest relief that an order granting a motion for new trial can afford is, simply, a new trial and not a final disposition on any underlying live pleadings in the case." In re J.J.R., 599 S.W.3d 605, 612 (Tex. App.-El Paso 2020, no pet.) (citing Tex.R.Civ.P. 320 ("New trials may be granted and judgment set aside for good cause, on motion or on the court's own motion on such terms as the court shall direct.") (emphasis added)). And the supreme court has held that a party is not entitled to relief it does not request. State v. Brown, 262 S.W.3d 365, 370 (Tex. 2008); see supra note 5.
This court also reverses without explanation as to the nonappealing Harris County District Clerk and the agencies named by appellee.
Perhaps this court believes that expunction proceedings are fundamentally different from "other civil cases" and that the Texas Rules of Civil Procedure, the Texas Rules of Appellate Procedure, and longstanding supreme court precedent do not apply. Nothing in the Code of Criminal Procedure suggests that appellate courts are empowered to fix expunction proceedings de novo by elevating the statutory requisites for expunction to the level of fundamental error that need not be preserved, such that this court must address them even if the parties do not raise it. Yet that is what this court has done. The supreme court rejected this view of subject-matter jurisdiction over a generation ago.
See supra note 8.
Tex.R.App.P. 43.2(c) (allowing reversal and rendition), 44.1(a) (setting standard for reversible error). Rule 43.2(c) applies only when rendition is the proper remedy. The supreme court made this point crystal clear in Stevens v. National Education Centers., Inc., 11 S.W.3d 185 (Tex. 2000). That case involved charge error for which the proper remedy was remand. Id. at 186. The supreme court declined to reach the merits of the petition for review because appellant "specifically requested that this Court not remand for a new trial and prayed only for rendition," which was not "appropriate relief" under the circumstances. Id. The lesson is obvious-an appellate court may not render judgment when that is not the appropriate remedy.
See Tex. Code Crim. Proc. Ann. art. 55.01(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."). Does this court think the trial court has an affirmative duty to independently search for such evidence? See Tex. Code Jud. Conduct, Canon 3(B)(8).
See generally Kazi v. Dubai Petroleum Co., 12 S.W.3d 71 (Tex. 2000).
But unless the reason for this exceptional deviation from current motion-for-new-trial practice is limited to expunction cases, civil trial practitioners have good reason to question what seemed to be settled precedent. For civil cases generally or even just expunction cases, I do not believe Texas is returning to the days when no grounds or coffee grounds will support granting a new trial.
See In re Toyota Motor Sales, USA, Inc., 407 S.W.3d 746, 757 (Tex. 2013).
Unless this appeal should be dismissed for want of subject-matter jurisdiction, this appeal is simple. There is no error-either reversible or fundamental-in the trial court's final order or the order on the motion for new trial. The final order should be affirmed. Accordingly, I dissent.
See supra note 8.