Affirmed and Memorandum Opinion filed August 21, 2018.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00695-CV

                    EX PARTE CEDRIC DELNO BROWN

                    On Appeal from the 127th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2015-33187

                          MEMORANDUM OPINION

      The question in this appeal is whether the trial court abused its discretion when
it denied a petition for expunction. Because the record supports the trial court’s
decision that the requirements for expunction have not been met, we conclude that
the trial court did not abuse its discretion. We therefore affirm the trial court’s
judgment.

                                 BACKGROUND

      Appellant filed a pro se petition for expunction, seeking to expunge the
records of an arrest for capital murder. Appellant attached some of those records to
his petition, and they included a felony complaint with a probable cause affidavit,
an arrest warrant, and an offense report. These records revealed that appellant and
another individual were suspected in the robbery and killing of a convenience store
clerk. Appellant claimed that these records should be expunged because the arrest
never resulted in an indictment, trial, or conviction for capital murder.

       The district attorney filed an answer that generally denied appellant’s claims.
According to appellant, the district attorney submitted a letter in addition to this
answer, and the letter represented that appellant had been “charged with capital
murder . . . and that punishment was assessed at 75 years TDC.”

       The letter from the district attorney is not in our record, which means that we
cannot confirm its contents.1 In any event, appellant filed a response for the express
purpose of disproving the letter. The response included a judgment of conviction
showing that appellant had not been convicted of capital murder, as he correctly
claimed. However, the judgment showed that appellant was convicted of aggravated
robbery, and that the punishment was indeed seventy-five years’ imprisonment.
Moreover, the judgment revealed that the aggravated robbery occurred on the same
date as the capital murder, according to the arrest records attached to appellant’s
petition. The cause number that appears on that judgment is also the same cause
number that appears on those arrest records.

       The trial court set appellant’s case for a hearing, but no transcript was made,2
and the record is unclear as to whether any evidence was taken at that hearing or



       1
          As a matter of law, the representation that appellant alleges the letter contained could not
be true because, at the time of the offense, a capital felony was punishable either by life with the
possibility of parole or by death—not by a determinate period of years. See Act approved June 19,
1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3602 (amended 2005) (current
version at Tex. Penal Code § 12.31).
       2
         Appellant asserted in his docketing statement on appeal that he would not be requesting
a reporter’s record “for there are no reporter’s records in this case.”

                                                  2
whether the case was simply decided by submission.3 What is clear, however, is the
basis for the trial court’s decision. The recitals in the final judgment state that the
trial court considered the pleadings and the evidence and then determined that the
substantive requirements for expunction had not been met.

                                          ANALYSIS

       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.). Even though this statute is contained in a
criminal code, an expunction proceeding is actually civil in nature. See 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 petitioner accordingly bears the burden of proving that all
statutory requirements have been met. See Harris Cnty. Dist. Att’ys 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 Harris Cnty.
Dist. Att’y v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.—Houston [14th Dist.] 1997,
no pet.). 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.).

       In pertinent part, the statute provides the following terms regarding a person’s
entitlement to expunction:


       3
          “A trial court may rule on an expunction petition without conducting an oral hearing and
without considering live testimony if the court has at its disposal all the information it needs to
resolve the issues raised by the petition. Such information may be found, for example, in the
pleadings, affidavits, or other evidence in the record.” Sepeda v. State, No. 14-15-00790-CV, 2016
WL 6561473, at *4 (Tex. App.—Houston [14th Dist.] Nov. 2, 2016, no pet.) (mem. op.) (internal
citations omitted).

                                                3
      (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, unless the offense is a Class C misdemeanor,
             provided that:
                    (A) . . . 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 . . . .
Tex. Code Crim. Proc. art. 55.01.

      The trial court decided that these substantive requirements were not met, and
under our standard of review, we must uphold that decision unless the trial court
clearly abused its discretion. See Ex parte Cephus, 410 S.W.3d 416, 418 (Tex.
App.—Houston [14th Dist.] 2013, no pet.). In deciding whether the trial court
abused its discretion, we consider whether the trial court’s ruling is supported by the
evidence. See Tex. Dep’t of Pub. Safety v. G.B.E., 459 S.W.3d 622, 624 (Tex. App.—
Austin 2014, pet. denied).

      When viewed in the light most favorable to the trial court’s decision, the
evidence supports an implied finding that appellant is disqualified for an expunction
because his conviction for aggravated robbery arose out of the same transaction as
his arrest for capital murder. See Tex. Code Crim. Proc. art. 55.01(a)(2)(A)
(providing that a person is not entitled to an expunction if he was indicted “with the
commission of any felony offense arising out of the same transaction for which the


                                          4
person was arrested” and the indictment was neither dismissed nor quashed).4
Appellant’s arrest records show that the capital murder was based on an underlying
felony of aggravated robbery. His judgment of conviction shows that the aggravated
robbery was committed on the same date as the capital murder. His judgment of
conviction also shows that the aggravated robbery was assigned the same cause
number as the capital murder.

       Based on all of these parallels, the trial court could have reasonably concluded
that appellant was arrested for capital murder but indicted with the lesser offense of
aggravated robbery.5 Because the evidence also establishes that appellant was
convicted of that offense, the trial court could have reasonably concluded that the
indictment for aggravated robbery was neither dismissed nor quashed. Therefore,
the trial court could have reasonably decided that appellant did not carry his burden
of showing that he was entitled to an expunction. Cf. Travis Cnty. Dist. Att’y v. M.M.,
354 S.W.3d 920, 927–28 (Tex. App.—Austin 2011, no pet.) (en banc) (the petitioner
was not entitled to expunge her arrest records for DWI where the evidence was
undisputed that she was indicted for a felony assault on a public servant that arose
during the same criminal transaction and the indictment was not dismissed or
quashed).


       4
         Because this case involves related offenses under subsection (a)(2)(A), our analysis is not
affected by the Texas Supreme Court’s decision in T.S.N. or by our own court’s decision in N.B.J.
See State v. T.S.N., 547 S.W.3d 617, 621 (Tex. 2018) (“Here, a single arrest occurred for multiple
unrelated offenses.”); id. at 623 (applying subsection (a)(1) rather than subsection (a)(2)(A)); Ex
parte N.B.J., — S.W.3d —, 2018 WL 2701270, at *4 n.6 (Tex. App.—Houston [14th Dist.] June
5, 2018, no pet.) (“Here, it is undisputed that N.B.J.’s two charges arose out of unrelated criminal
conduct.”); id. at *6 (applying T.S.N. to subsection (a)(2)(B) rather than subsection (a)(2)(A)).
       5
          The district attorney attached several documents to her appellate brief in an effort to
further establish the connection between the aggravated robbery and the capital murder. However,
we do not consider the appended documents in our analysis because they do not appear in the
official appellate record. See Pablo Rion y Asociados, S.A. de C.V. v. Dauajare, 495 S.W.3d 494,
499 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

                                                 5
                                 CONCLUSION

      The trial court’s judgment is affirmed.




                                      /s/       Tracy Christopher
                                                Justice


Panel consists of Justices Boyce, Christopher, and Busby.




                                            6
