                                    NO. 07-05-0046-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL E

                                    JANUARY 10, 2007

                          ______________________________


                        EX PARTE RUBEN NARANJO BALDIVIA

                        _________________________________

              FROM THE 64TH DISTRICT COURT OF CASTRO COUNTY;

            NO. B7603-0008; HON. ROBERT W. KINKAID, JR., PRESIDING

                          _______________________________

Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1

                                MEMORANDUM OPINION

       Appellant Ruben Naranjo Baldivia, an inmate in the Institutional Division of the

Texas Department of Criminal Justice, proceeding pro se and in forma pauperis, brings this

appeal from an order of the trial court denying his petition for expunction of the record of

his arrest and trial for murder of which he was acquitted by a jury. In presenting his appeal,

appellant presents three points of error for our review. In those points, he queries whether:

1) the trial court abused its discretion and violated appellant’s federal and constitutional

right to due process of law in the manner in which it conducted the hearing at which it



       1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2004).
denied appellant’s petition; 2) the trial court abused its discretion in entering its order

denying appellant’s petition seeking expunction without notifying law enforcement agencies

of appellant’s petition; and 3) the trial court reversibly erred in entering its order sua sponte

finding that appellant was convicted of another offense that occurred during the same

criminal episode. Disagreeing that reversal is mandated, we affirm the trial court’s

judgment.

       In the proceeding before the trial court, as we noted, appellant sought expunction

of the records of a murder charge filed against him on June 21, 1985, in Cause No. 1640

in Castro County. After a jury trial, on April 14, 1986, appellant was acquitted of the

charge. Because of the somewhat convoluted history of this matter, we must recite it in

some detail.

        On January 28, 2005, appellant’s petition was denied by the trial court without a

hearing because “the facts necessary to determine the issue are available in the judicially

noticed files.” The trial court went on to find that based upon an opinion of this court

affirming appellant’s conviction of burglary of a habitation in a related case, the facts giving

rise to the murder charge arose out of the same criminal episode that resulted in the

burglary conviction, and appellant was, therefore, not entitled to expunction of the murder

charge.

       A person who has been arrested for the commission of either a felony or

misdemeanor is entitled to have all records and files expunged if he meets certain

conditions imposed by statute. Tex. Code Crim. Proc. Ann. art. 55.01 (Vernon Supp.

2006). A statutory expunction proceeding is civil rather than criminal in nature, and the

burden of proving compliance with the statutory conditions rests solely with the petitioner.

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The nature of the expunction statute is remedial and it should be construed liberally. Ex

parte E.E.H., 869 S.W.2d 496, 497 (Tex. App.–Houston [1st Dist.] 1993, writ denied). Even

so, article 55.01 requires strict compliance with the conditions imposed by the statute, and

courts have no equitable power to expunge criminal records. Pitts v. State, 113 S.W.3d

393, 395 (Tex. App.–Houston [1st Dist.] 2003, no pet.). There is no automatic or statutory

right to the appointment of counsel in an expunction proceeding and the decision whether

or not to appoint an attorney is within the discretion of the trial court. Id. at 397. The

judgment of the trial court must be affirmed if it can be upheld on any reasonable theory

supported by the evidence. Harris County Dist. Attorney’s Office v. Burns, 825 S.W.2d

198, 200 (Tex. App.–Houston [14th Dist.] 1992, writ denied). Furthermore, a court may rule

upon an applicant’s right to expunction without holding a hearing if all of the facts

necessary to determine the issue are before the court. Ex parte Current, 877 S.W.2d 833,

839 (Tex. App.–Waco 1994, no writ). Finally, it is established that a court can judicially

notice its own records. Culver v. Pickens, 142 Tex. 87, 176 S.W.2d 167, 171 (1943).

       In relevant part, article 55.01 provides that a person who has been placed under

arrest for a felony is entitled to have all records and files relating to the arrest expunged if

the person is tried for the offense for which he was arrested and is acquitted by the trial

court with the exception that such an expungement may not be ordered 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(a)(1)(A) & (c) (Vernon Supp. 2006).



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       The Penal Code defines a criminal episode as “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. Pen. Code Ann. §3.01

(Vernon 2003).

       The nature of this proceeding requires us to make somewhat detailed references

to our January 12, 1989 opinion in Cause No. 07-87-0283-CR referred to by the trial court

in its order denying expunction. Examination of that opinion reveals that the murder charge

of which appellant was acquitted and the burglary charge upon which he was convicted

arose out of a sequence of events that occurred in Castro County on June 6, 1985. Robert

Ballard and his wife Frances were awakened during the night by their dog barking. Mrs.

Ballard saw the reflection of lights on a car turning into their residence’s circular drive. A

few moments later she again heard her dog barking, got out of bed, and saw two men

coming around the corner of a residence located on the property speaking together in the

Spanish language. They unsuccessfully tried to quiet the dog.

       She notified her husband, but he did not get out of bed because he thought they

would leave when they found no one was at home in the residence. Later, however, Mrs.

Ballard noticed some dim lights on in the house and again awakened her husband. After

telling her to lock the door behind him, Mr. Ballard took a gun and went outside. She heard

him ask the men if they had a key to the other residence and other conversation she could

not understand. She then heard a vehicle start, she heard a shot from her husband’s gun,

                                              4
and she heard him say “I told you to leave and I meant it.” Mrs. Ballard additionally heard

him tell the dog to charge. She then heard two more shots followed by the sound of the

vehicle leaving the scene. She went outside and found her husband lying unconscious by

the side of the other residence and he died without regaining consciousness. Later

investigation revealed that the other residence had been broken into, several items moved,

and appellant’s fingerprints were found on a kerosene lamp located inside that residence.

       Appellant was initially charged with capital murder, murder, and burglary of a

habitation. However, prior to trial, the capital murder and burglary charges were dismissed,

and the State proceeded to trial on the murder charge. That trial resulted in the acquittal

giving rise to this expunction proceeding. Later, appellant was indicted for burglary and,

after a claim of double jeopardy as to the burglary was denied, the case proceeded to trial

and appellant was convicted of burglary, which was affirmed by this court primarily because

of the fingerprint evidence found inside the other residence which necessarily must have

been made at the time of an illegal entry.

       Our review of this background satisfies us that the trial court was entitled to take

judicial notice of the factual history of this proceeding and that it was justified in the

conclusion that the offense for which appellant was acquitted arose out of the same

criminal episode that resulted in appellant’s conviction of burglary. That being so, the trial

court did not abuse its discretion in refusing to expunge the records pertaining to the

murder charge. See Tex. Code Crim. Proc. Ann. art. 55.01(c) (Vernon Supp. 2006).


                                                  John T. Boyd
                                                  Senior Justice



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