Affirmed and Majority and Dissenting Opinions filed August 13, 2020.




                                      In The

                       Fourteenth Court of Appeals

                              NO. 14-18-00823-CV


                                 R.G., Appellant
                                        V.

     HARRIS COUNTY DISTRICT ATTORNEY’S OFFICE, Appellee


                    On Appeal from the 55th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2018-41949

                     MAJORITY OPINION

      Appellant R.G. appeals the denial of his petition for expunction. Because the
record supports the trial court’s decision that R.G. failed to meet applicable
expunction requirements, we conclude that the court did not abuse its discretion.
Accordingly, we affirm the trial court’s judgment.
                                    Background

      Our record reveals the following limited but undisputed facts. Based on a
probable cause affidavit, R.G. was arrested and charged with two counts of injury to
a child in 1992. According to the affidavit, R.G.’s three-week-old infant daughter
suffered a broken right femur, broken ribs, and a skull fracture. The affidavit further
states that R.G. confessed to the affiant that his conduct on or about October 1, 1992,
resulted in his daughter’s broken leg and that his conduct on or about October 4,
1992, resulted in his daughter’s broken ribs.

      A single indictment under one cause number (No. 647073) alleged the felony
offenses that R.G.:

      on or about OCTOBER 1, 1992 recklessly caused serious physical
      deficiency and impairment to [the Complainant], a child younger than
      fifteen years of age, by holding the Complainant by the legs against the
      rail of a play pen.

                                       Count II

      . . . on or about OCTOBER 4, 1992, did then and there unlawfully
      intentionally and knowingly cause serious physical deficiency and
      impairment to [the Complainant], a child younger than fifteen years of
      age, by striking the Complainant with his hand.

      Based on a plea agreement, the State dismissed the first count, but R.G.
pleaded guilty and served community supervision as to the second count. In
February 2004, the district court signed an order discharging R.G. from community
supervision based on his satisfactory completion of the conditions.

      In June 2018, R.G. filed a petition for expunction in civil district court. R.G.
sought to expunge the criminal records and files pertaining to the offense alleged in
count one of the indictment—the count the State dismissed. R.G. asserted that he
was entitled to expunction because “the indictment or information was presented,

                                          2
but the same was subsequently dismissed or quashed on June 16, 1993.” The Harris
County District Attorney’s Office answered with a general denial.

      The trial court conducted an oral hearing on R.G.’s petition. R.G. did not
offer or present any evidence at the hearing. The district attorney’s office requested
the court to take judicial notice of the probable cause affidavit, the indictment, the
State’s motion to dismiss count one, and the order discharging R.G. from community
supervision as to count two. All of these records relate to cause number 647073, and
the trial court admitted them without objection. During the hearing, the district
attorney’s office argued that both counts of injury to a child arose out of the “same
transaction,” which, under the applicable provisions of the expunction statute, meant
that R.G. was not entitled to expunction of the dismissed count.

      After the hearing, the trial court denied R.G.’s petition. R.G. timely appealed.

                                      Analysis

      R.G. raises one issue: whether the two counts of injury to a child arose from
the same transaction and whether he is entitled to expunction as to the count the State
dismissed.

A.    Governing Law and Standard of Review

      Expunction is a statutory remedy governed by article 55.01 of the Texas Code
of Criminal Procedure. See Ex parte Scott, 476 S.W.3d 93, 94-95 (Tex. App.—
Houston [14th Dist.] 2015, no pet.). The purpose of the statute is to permit the
expunction of records of wrongful arrests. Harris Cty. Dist. Attorney’s Office v.
J.T.S., 807 S.W.2d 572, 574 (Tex. 1991); see also In re State Bar, 440 S.W.3d 621,
624 (Tex. 2014). Even though the statute is contained in a criminal code, an
expunction proceeding is civil in nature. See In re Expunction, 465 S.W.3d 283, 286
(Tex. App.—Houston [1st Dist.] 2015, no pet.); 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
                                          3
petitioner accordingly bears the burden of proving that all statutory requirements
have been met. J.H.J., 274 S.W.3d at 806; see Harris Cty. Dist. Attorney’s Office v.
Hopson, 880 S.W.2d 1, 3 (Tex. App.—Houston [14th Dist.] 1994, no writ). Also,
because an expunction is a statutory privilege rather than a constitutional or common
law right, the statutory requirements are mandatory and exclusive. See Expunction,
465 S.W.3d at 286; J.H.J., 274 S.W.3d at 806. The trial court has no power to extend
equitable relief beyond the clear meaning of the expunction statute. See Ex parte
Reed, 343 S.W.3d 306, 308 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

      The expunction statute provides, in pertinent part, and with emphasis on the
determinative language:

      (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 . . .
            (2) the person has been released and the charge, if any, has not
         resulted in a final conviction and is no longer pending and there was
         no court-ordered community supervision under Chapter 42A for the
         offense, . . . provided that:
                (A) regardless of whether any statute of limitations exists for
             the offense and whether any limitations period for the offense has
             expired, an indictment . . . charging the person with the
             commission of any felony offense arising out of the same
             transaction for which the person was arrested:
                       (i) has not been presented against the person at any time
                   following the arrest . . . or
                      (ii) if presented at any time following the arrest, was
                   dismissed or quashed, and the court finds that the
                   indictment was dismissed or quashed because: [the person
                   completed a veterans treatment court program, a mental
                   health court program, or a pretrial intervention program;]
                   the presentment had been made because of mistake, false
                   information, or other similar reasons indicating the
                   absence of probable cause at the time of the dismissal to
                   believe the person committed the offense; or [] the
                                          4
                    indictment was void; or
                (B) prosecution of the person for the offense for which the
             person was arrested is no longer possible because the limitations
             period has expired.

See Tex. Code Crim. Proc. art. 55.01(a)(2)(A), (B) (emphasis added). To meet his
burden, R.G. was required to show that he was entitled to expunction under the
general conditions of subsection (a)(2), and also was required to prove that the terms
of either subsection (a)(2)(A) or (a)(2)(B) were satisfied. See Collin Cty. Dist.
Attorney’s Office v. Fourrier, 453 S.W.3d 536, 540 (Tex. App.—Dallas 2014, no
pet.). R.G. attempted to meet the terms of subsection (a)(2)(A). Accordingly, he
was required to show that an indictment charging him with any felony offense
arising out of the same transaction for which he was arrested either was not presented
any time following the arrest, or if presented was dismissed for any reason stated in
subsection (a)(2)(A)(ii).

      The trial court decided that R.G. failed to meet his burden, and under our
standard of review, we must uphold that decision unless the trial court clearly abused
its discretion. State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018); see Ex parte
Cephus, 410 S.W.3d 416, 418 (Tex. App.—Houston [14th Dist.] 2013, no pet.). A
trial court has no discretion, however, in determining what the law is or applying the
law to the facts. See T.S.N., 547 S.W.3d at 620. We therefore review a trial court’s
legal conclusions under a de novo standard. Id. Likewise, construction of a statute
is a question of law, which we review de novo. See id.

      The Code Construction Act controls when interpreting the Texas Code of
Criminal Procedure. Tex. Gov’t Code §§ 311.001-.006. 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.
T.S.N., 547 S.W.3d at 620; J.T.S., 807 S.W.2d at 574. Further, our analysis is limited

                                          5
to application of the plain meaning of the statutory language unless a different
meaning is apparent from the context or the plain meaning leads to absurd or
nonsensical results. T.S.N., 547 S.W.3d at 621; see also Willacy Cty. Appraisal Dist.
v. Sebastian Cotton & Grain, Ltd., 555 S.W.3d 29, 38 (Tex. 2018).

B.     Application

       R.G. argued in the trial court and argues here that the two counts of injury to
a child listed in the indictment did not arise out of the “same transaction” and, thus,
an indictment charging him with the commission of any felony arising out of the
same transaction for which he was arrested had not been presented against him. See
Tex. Code Crim. Proc. art. 55.01(a)(2)(A)(i). The district attorney’s office contends,
on the other hand, that an indictment was presented charging R.G. with the
commission of a felony offense alleged in count two, which arose out of the same
transaction for which he was arrested. Id. art. 55.01(a)(2)(A)(ii). The district
attorney’s office suggests that subsection (a)(2)(A)(ii) is not satisfied because count
two was not dismissed, but rather R.G. pleaded guilty to count two and received
community supervision as part of a plea agreement resulting in the dismissal of count
one. According to the district attorney’s office, article 55.01 embraces an “arrest
based” approach, which means that a person is not entitled to have any records of
their arrest expunged when any charge stemming from the arrest results in a final
conviction. Because R.G. pleaded guilty to count two and served a community
supervision sentence, the district attorney’s office says the entirety of his arrest
records is not eligible for expunction.

       Article 55.01 does not define the phrase “same transaction.” We have not
located and the parties have not cited a Texas Supreme Court or Court of Criminal
Appeals decision defining the word “transaction” for purposes of the expunction
statute.   The current law dictionary definition of “transaction” includes,

                                          6
“[s]omething performed or carried out” or “[a]ny activity involving two or more
persons.” TRANSACTION, Black’s Law Dictionary (11th ed. 2019).                              In most
expunction cases involving multiple charges arising from a single arrest, it is
undisputed or clearly shown that the charges are part of the same transaction and
thus little discussion is committed to the question.1 In one of these cases, the court
turned to the meaning of “transaction” as construed under Penal Code section 3.01
applicable to criminal episodes, which can include offenses committed pursuant to
the same transaction or multiple transactions. Expunction of M.T., 495 S.W.3d at
622 (citing Tex. Penal Code § 3.01). There, the court analyzed article 55.01(a)(1)
and its exception in article 55.01(c) regarding acquittals.2 The court considered
whether a murder offense, on which the petitioner was acquitted, was “committed
pursuant to the same transaction” as offenses for aggravated assault with a deadly
weapon, on which he was found guilty. Id. at 622. Referring to Penal Code section
3.01, the court stated, “offenses are committed pursuant to the same transaction . . .
when the offenses arise out of a single event or act or closely related events or acts.”
Id. at 622-23 (citing cases). The court held that the offenses arose from the same
transaction, noting that the petitioner’s charges resulted from one incident where he

       1
         See, e.g., Ex parte N.T.L., No. 13-19-00019-CV, 2019 WL 4019716, at *1 (Tex. App.—
Corpus Christi Aug. 27, 2019, no pet.) (mem. op.) (two counts of assault in parking lot); Ex parte
Brown, No. 14-17-00695-CV, 2018 WL 3977174, at *1 (Tex. App.—Houston [14th Dist.] Aug.
21, 2018, no pet.) (mem. op.) (capital murder and aggravated robbery occurred same day and arose
from same transaction); In Matter of Expunction of M.T., 495 S.W.3d 617, 622 (Tex. App.—El
Paso 2016, no pet.) (murder and aggravated assault occurred in single incident when defendant
struck victims with car); see also Ex parte Davila, No. 13-15-00202-CV, 2016 WL 872997 (Tex.
App.—Corpus Christi Feb. 18, 2016, no pet.) (mem. op.); Ex parte Vega, 510 S.W.3d 544 (Tex.
App.—Corpus Christi 2016, no pet.); Ex parte M.R.L., No. 10-11-00275-CV, 2012 WL 763139
(Tex. App.—Waco Mar. 7, 2012, pet. denied) (mem. op.); Travis Cty. Dist. Attorney v. M.M., 354
S.W.3d 920 (Tex. App.—Austin 2011, no pet.) (en banc).
       2
            Article 55.01(c) provides in pertinent part that: “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
. . . 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 . . . at least one other offense occurring
during the criminal episode.” Tex. Code Crim. Proc. art. 55.01(c).
                                                  7
struck four individuals with a motor vehicle. Id. at 620, 623. The appellant was not
entitled to expunction under article 55.01(a)(1). Id.

      On the other hand, when courts have held or presumed that offenses do not
arise from the same transaction, the facts have shown that the offenses were entirely
unrelated because they occurred months or years apart and involved completely
different conduct. See T.S.N., 547 S.W.3d at 618 (offenses of misdemeanor theft by
check and aggravated assault with deadly weapon unrelated and occurred years
apart); Ex parte N.B.J., 552 S.W.3d 376, 378-79 (Tex. App.—Houston [14th Dist.]
2018, no pet.) (separate offenses occurring months apart did not arise from same
transaction).

      One case from the Eighth Court of Appeals presents a closer call. See In re
D.W.H., 458 S.W.3d 99, 105-07 (Tex. App.—El Paso 2014, no pet.). There, police
were alerted that D.W.H. may have been involved in a relationship with a student.
Police executed an arrest and search warrant for D.W.H. While searching D.W.H.’s
home, officers found a gun safe, a search of which revealed unregistered firearms.
Id. at 102. The next day, police notified ATF, which conducted a further search
pursuant to a warrant and found many items civilians may not legally possess. Id.
These events led to a state charge for improper relationship between an educator and
student and a federal charge for possession of unregistered firearms. Id. A state
grand jury “no-billed” the improper relationship charge, but D.W.H. pleaded guilty
to the federal charge and was placed on probation. Id. D.W.H. sought expunction
of the state charge, which the trial court denied. On appeal, the issue was whether
the charge and conviction for possessing illegal firearms arose out of “same
transaction” as his arrest for improper relationship between an educator and student.
Id. at 104. The court held, over dissent, that the offenses arose from the same
transaction because the federal weapons charge arose out of the arrest for the state

                                          8
charge. Id. at 107.3 Thus, the trial court did not abuse its discretion in ruling that
the D.W.H. was not entitled to expunction under article 55.01(a)(2)(A). Id. at 107-
08.

       Though Texas’s high courts have not specifically addressed the meaning of
“transaction” in article 55.01, the Court of Criminal Appeals has considered the term
in other contexts, without settling on any controlling definition. E.g., Marks v. State,
560 S.W.3d 169 (Tex. Crim. App. 2018) (holding indictments did not allege the
“same conduct, same act, or same transaction” for Hernandez tolling purposes)
(citing Hernandez v. State, 127 S.W.3d 768 (Tex. Crim. App. 2004))4; Rios v. State,
846 S.W.2d 310, 314 (Tex. Crim. App. 1992) (construing Penal Code section 3.01
in multiple murder case); Kalish v. State, 662 S.W.2d 595, 600 (Tex. Crim. App.
1983). At least one judge has observed that a singular definition of “transaction”
remains “elusive.” Marks, 560 S.W.3d at 176 (Yeary, J., dissenting). In Rios, the
court considered the terms “criminal transaction” and “transaction” under Texas
Penal Code section 3.01 in contrasting the difference between a “process” of
carrying out multiple murders as distinguished from a “scheme or course of conduct”
during which multiple murders are committed:

       what apparently separates a “process . . . of carrying on or carrying out”

       3
         The dissenting justice would have held that the offenses did not arise out of the same
transaction. 458 S.W.3d at 109-13 (Rodriguez, J., dissenting).
       4
          In Marks, the original indictments charged the defendant with acting as a guard company
by providing security services without a license. Marks, 560 S.W.3d at 170. The state amended
the indictments to allege that the defendant accepted employment as a security officer to carry a
firearm without a security officer commission. Id. The question was whether the indictments
alleged the “same conduct, same act, or same transaction” for Hernandez tolling purposes. See id.
The court held they did not, because, due to the difference in required elements and facts necessary
to prove each offense, the original indictment would not have necessarily alerted the defendant
that he could be charged with or might have to defend against the charge in the amended
indictment. Id. at 171. Additionally, the court noted that though the original and amended
indictments alleged the same date, they used “on or about” language, “so that it is not at all clear
that the same transaction . . . is being alleged.” Id.
                                                 9
       multiple murders, under § 19.03(a)(6)(A), supra, from a “scheme or
       course of conduct” during which multiple murders are committed,
       under § 19.03(a)(6)(B), supra, is the continuity of the killing. In Vuong
       v. State, 830 S.W.2d 929, at 941 (Tex. Cr. App. 1992), we construed
       “criminal transaction” to embrace facts showing “a continuous and
       uninterrupted chain of conduct occurring over a very short period of
       time . . . in a rapid sequence of unbroken events.” . . . In another
       context we have said that “transaction may be understood to be an
       uninterrupted and continuous sequence of events or assaultive acts.”
       Rubino v. Lynaugh, 770 S.W.2d 802, at 804 (Tex. Cr. App. 1989)
       (internal quotes omitted) (carving doctrine). And in construing
       “transaction” in another statutory context, we have observed that a
       “criminal transaction terminates with cessation of conduct—ordinarily
       in a relatively brief period of time.” Kalish v. State, 662 S.W.2d 595,
       at 600 (Tex. Cr. App. 1983).

Rios, 846 S.W.2d at 314. In holding the evidence in that case sufficient for a jury to
find that appellant committed multiple murders as part of the “same criminal
transaction,”5 the court noted that the two murders occurred sometime within an
eight-hour timeframe, the victims were killed in the same manner and with the same
weapon, and their bodies were left within a few feet of each other. Id.

       Informed by the above authority, and without embracing any particular,
inflexible definition, we conclude that determining whether multiple offenses arise
from the same “transaction” for article 55.01’a purposes involves consideration of
circumstance-based factors, particularly the degree of similarity or temporal
proximity among the acts or events forming the basis of each charged offense and
relevant factual connections between them. See, e.g., N.T.L., 2019 WL 4019716, at
*3 (two counts of assault in parking lot involved same conduct); Brown, 2018 WL
3977174, at *2-3 (capital murder and aggravated robbery involving similar conduct

       5
         The Court of Criminal Appeals has not squarely said the terms “same transaction” and
“same criminal transaction” mean the same thing. The First Court of Appeals has implicitly treated
them synonymously, Expunction, 465 S.W.3d at 289, whereas the Eighth Court of Appeals has
expressly held the two terms are distinct. D.W.H., 458 S.W.3d at 106.
                                               10
and occurring same day arose from same transaction); Expunction of M.T., 495
S.W.3d at 622 (two offenses arose out of “closely related events or acts”; murder
charge for which appellant was acquitted was part of “same transaction” as four
counts of aggravated assault with a deadly weapon of four other individuals for
which appellant was convicted); cf. T.S.N., 547 S.W.3d at 618 (offenses of
misdemeanor theft by check and aggravated assault with deadly weapon unrelated
and occurred years apart); N.B.J., 552 S.W.3d at 378-79 (charges “unrelated”
because conduct separated by months and involved different substantive character).
The closer two offenses are in character and in time, the more likely they are to arise
from the same transaction.

       Here, the record reflects that R.G. was arrested, and the grand jury returned a
single indictment alleging two counts of similar offenses involving injury to R.G.’s
three-week-old daughter. The offenses alleged in support of both counts were based
on nearly the same conduct, against the same victim, occurring at most three days
apart and potentially occurring the same day.6 Both alleged offenses thus involved
almost identical conduct and were of the same character. While we need not and do
not opine how much time must pass between similar offenses before they might be
deemed of different transactions, we can say, on this record, that a maximum of three
days is not too long.

       When viewed in the light most favorable to the trial court’s decision, and
considering the similar nature of the alleged conduct inflicted upon the same victim
together with the relatively short timeframe in which that conduct was alleged to
have occurred, we hold that the trial court reasonably could have concluded that both
offenses arose out of the “same transaction” for purposes of article 55.01(a)(2)(A).


       6
         According to the records submitted to the trial court, the indictment’s first count occurred
“on or before October 1, 1992,” and the second count occurred “on or before October 4, 1992.”
                                                 11
See, e.g., Brown, 2018 WL 3977174, at *3; Expunction of M.T., 495 S.W.3d at 622-
23; see also Matter of Expunction of R.P., 574 S.W.3d 641, 645-46 (Tex. App.—El
Paso 2019, no pet.) (appellant’s failure to establish that felony offense did not arise
out of same transaction as misdemeanor offenses he sought expunged disqualified
him from expunction of misdemeanor offenses).

      Because an indictment was presented against R.G. for a felony offense arising
out of the same transaction for which he was arrested, to be entitled to expunction
of the records pertaining to the dismissed offense R.G. had to show that count two
was dismissed or quashed because of any one of the circumstances listed in article
55.01(a)(2)(A)(ii). R.G. made no showing in this regard in the trial court or in this
court. As a matter of law, our record shows that the offense alleged in count two
was not dismissed. R.G.’s counsel acknowledged during the hearing that count one
of the indictment was dismissed “as part of” the community supervision sentence
R.G. received for count two. As well, the dismissal order for count one indicates it
was dismissed because R.G. was “convicted in another case or count.” Based on the
minimal information in our record, the trial court reasonably could have found that
R.G. pleaded guilty to count two and was placed on community supervision for that
count at least in part in exchange for dismissal of count one.

      Several courts have concluded that a party is not entitled to expunction under
subsection 55.01(a)(2) of a dismissed charge when, as here, that charge was
dismissed as part of a plea agreement as to another charge arising from the same
arrest. See, e.g., Tex. Dep’t of Pub. Safety v. F.A.V., No. 05-18-00996-CV, 2019 WL
6974758, at *2-3 (Tex. App.—Dallas Dec. 20, 2019, pet. filed) (mem. op.); Tex.
Dep’t of Pub. Safety v. Schuetze, No. 13-17-00661-CV, 2019 WL 150650, at *5
(Tex. App.—Corpus Christi Jan. 10, 2019, pet. denied) (mem. op.); Matter of J.G.,
588 S.W.3d 290, 291, 294 (Tex. App.—El Paso 2019, no pet.); Ex parte C.E.A.,
No. 12-17-00311-CV, 2018 WL 1940377, at *2 (Tex. App.—Tyler Apr. 25, 2018,
                                          12
no pet.) (“[A] person is not entitled to have any arrest records expunged under Article
55.01(a)(2) when a charge is dismissed, but that dismissal results in community
supervision for any charge arising from the same arrest.”); Tex. Dep’t of Pub. Safety
v. G.B.E., 459 S.W.3d 622, 628-29 (Tex. App.—Austin 2014, pet. denied) (en banc);
S.J. v. State, 438 S.W.3d 838, 846 (Tex. App.—Fort Worth 2014, no pet.) (appellant
not entitled to expunction because he was placed on community supervision for a
charge arising from the same arrest); Ex parte M.G., No. 10-13-00021-CV, 2013
WL 3972225, at *2 (Tex. App.—Waco Aug. 1, 2013, no pet.); Rodriguez v. State,
224 S.W.3d 783, 784-85 (Tex. App.—Eastland 2007, no pet.); Tex. Dep’t of Pub.
Safety v. Aytonk, 5 S.W.3d 787, 788 (Tex. App.—San Antonio 1999, no pet.).

         For these reasons, we hold that the evidence supports an implied finding that
R.G. is disqualified for an expunction because (1) the two offenses charged in the
indictment arose from the same transaction forming the basis of his arrest, and (2) he
failed to meet the requirements for expunction under article 55.01(a)(2)(A)(ii). See
Tex. Code Crim. Proc. art. 55.01(a)(2)(A). Because R.G. failed to meet his burden
to show that he met the conditions for expunction, the trial court did not abuse its
discretion in denying his petition for expunction. We overrule R.G.’s sole appellate
issue.

         The judgment of the trial court is affirmed.



                                         /s/     Kevin Jewell
                                                 Justice

Panel consists of Justices Christopher, Jewell, and Spain (Spain, J., dissenting).




                                            13
