                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-271-CV


PAIGE LOUIS BENNER A/K/A                                         APPELLANT
PAIGE LOUIS MOLISH

                                             V.

THE STATE OF TEXAS                                                    STATE

                                         ------------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                         ------------

                         MEMORANDUM OPINION 1

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                                    Introduction

     Appellant Paige Louis Benner a/k/a Paige Louis Molish appeals the trial

court’s order denying his request for an expunction. In two issues, appellant

argues that the trial court erred by not holding a hearing on his motion for

expunction and by not granting him an expunction. We affirm.




     1
         … See T EX. R. A PP. P. 47.4.
                                Background Facts

      On September 13, 2003, appellant was arrested for kidnaping. A grand

jury subsequently indicted him for burglary with the intent to commit kidnaping

and burglary with the intent to commit aggravated assault. After a trial on the

charges in the indictment, a jury convicted appellant of aggravated assault with

a deadly weapon. The jury assessed appellant’s punishment at fifty years’

confinement, and the judge sentenced him accordingly.

      In June 2007, appellant filed a petition to expunge the records for his

kidnaping arrest and for the part of the indictment charging him with burglary

with the intent to commit kidnaping. On July 16, 2007, the trial court denied

appellant’s petition for the expunction of records.         Nothing in the record

indicates that the trial court conducted a hearing on appellant’s motion.

Appellant timely filed this appeal.

                               Standard of Review

      We review a trial court’s ruling on a petition for expunction under an

abuse of discretion standard. Ex Parte Wilson, 224 S.W.3d 860, 863 (Tex.

App.— Texarkana 2007, no pet.); Heine v. Tex. Dep’t of Pub. Safety, 92

S.W.3d 642, 646 (Tex. App.—Austin 2002, pet. denied). A trial court abuses

its discretion if it acts without reference to guiding rules and principles or if its

                                         2
actions were arbitrary and unreasonable. Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S. 1159

(1986).

                                   Applicable Law

         The right to an expunction is neither a constitutional nor common law

right but, rather, is a statutory privilege.    McCarroll v. Tex. Dep’t of Pub.

Safety, 86 S.W.3d 376, 378 (Tex. App.— Fort Worth 2002, no pet.);

Quertermous v. State, 52 S.W.3d 862, 864 (Tex. App.—Fort Worth 2001, no

pet.).     Article 55.01 of the Texas Code of Criminal Procedure provides

wrongfully arrested persons the opportunity to expunge their arrest records.

T EX. C ODE C RIM. P ROC. A NN. art. 55.01 (Vernon 2006); McCarroll, 86 S.W.3d

at 378. While article 55.01 is included in the code of criminal procedure, an

expunction proceeding is civil rather than criminal in nature, and, consequently,

the burden of proving compliance with the statute is on the petitioner rather

than the State. McCarroll, 86 S.W.3d at 378. The petitioner is entitled to

expunction only when all of the statutory conditions have been met.            Id.;

Quertermous, 52 S.W.3d at 864.

         Article 55.01(a) provides that a petitioner is entitled to expunction when

         (1) the person is tried for the offense for which the person was
         arrested and is:


                                          3
      (A) acquitted by the trial court, except as provided in Subsection
      (c) of this section; or

      (B) convicted and subsequently pardoned; or

      (2) each of the following conditions exist:

      (A) an indictment or information charging the person with
      commission of a felony has not been presented against the person
      for an offense arising out of the transaction for which the person
      was arrested or, if an indictment or information charging the person
      with commission of a felony was presented, the indictment or
      information has been dismissed or quashed, and;

      (i) the limitations period expired before the date on which a petition
      for expunction was filed under Article 55.02; or

      (ii) the court finds that the indictment or information was dismissed
      or quashed because the presentment had been made because of
      mistake, false information, or other similar reason indicating
      absence of probable cause at the time of the dismissal to believe
      the person committed the offense or because it was void;

      (B) 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 Article 42.12;
      and

      (C) the person has not been convicted of a felony in the five years
      preceding the date of the arrest.

T EX. C ODE C RIM. P ROC. A NN. art. 55.01(a)(1), (2).

                  Denial of Appellant’s Request for Expunction

      In his second issue, appellant argues that the trial court erred by denying

his motion for expunction.      The State, however, argues that expunction is


                                          4
prohibited under article 55.01(c), which provides that the trial court may not

expunge an arrest or charged offense, even if it resulted in an acquittal, if the

offense arose out of one criminal episode, and the defendant was convicted of

or remains subject to prosecution for at least one other offense occurring during

the same criminal episode. 2 T EX. C ODE C RIM. P ROC. A NN. art. 55.01(c); Addicks

v. State, No. 03-06-00114-CV, 2007 WL 844872, at *2 (Tex. App.—Austin

Mar. 21, 2007, no pet.) (mem. op., not designated for publication).

      Here, appellant was arrested for, but not charged with, kidnaping. In his

subsequent trial for burglary with the intent to commit kidnaping, which was

one count in the indictment, the jury found appellant not guilty of that offense

and instead convicted him for the offense of aggravated assault with a deadly

weapon. Because the kidnaping arrest, the subsequent charge of burglary with

intent to commit kidnaping, and the conviction for the offense of aggravated

assault with a deadly weapon arose from the same facts and thus the same

criminal   episode,   article   55.01(c)       bars   an   expunction   under   these

circumstances. See T EX. C ODE C RIM. P ROC. A NN. art. 55.01(c); Addicks, 2007




      2
         … “Criminal episode” is defined as the commission of two or more
offenses “committed pursuant to the same transaction or pursuant to two or
more transactions that are connected or constitute a common scheme or plan;
or the offenses are the repeated commission of the same or similar offenses.”
T EX. P ENAL C ODE A NN. § 3.01(1), (2) (Vernon 2003).

                                           5
WL 844872, at *2. Because appellant did not meet his burden to show that

he is entitled to an expunction under article 55.01, the trial court did not abuse

its discretion in refusing his request for an expunction. See T EX. C ODE C RIM.

P ROC. A NN. art. 55.01(c). We overrule appellant’s second issue.

       Failure to Hold a Hearing on Appellant’s Motion for Expunction

      In his first issue, appellant argues that the trial court erred in failing to

hold a hearing on his petition for expunction. The trial court is required to set

a hearing on a petition for expunction.       T EX. C ODE C RIM. P ROC. A NN . art.

55.02(2)(c) (Vernon Supp. 2007); McCarroll, 86 S.W.3d at 378. However,

such a hearing does not necessarily have to be an oral hearing. Wilson, 224

S.W.3d at 863; Ex Parte Current, 877 S.W.2d 833, 839 (Tex. App.—Waco

1994, no writ); Addicks, 2007 WL 844872, at *1; cf. Gulf Coast Inv. Corp. v.

Nasa 1 Bus. Ctr., 754 S.W.2d 152, 153 (Tex. 1988) (stating that unless

required by the express language or context of particular rule of civil procedure,

the term “hearing” does not necessarily contemplate either a personal

appearance before the court or an oral presentation to the court). If all of the

facts necessary to determine the issues in an expunction hearing are available

to the trial court—for example, in the pleadings, affidavits, or judicially

noticeable record—an oral hearing is not mandatory. See McCarroll, 86 S.W.3d

at 378; Current, 877 S.W.2d at 839–40; Addicks, 2007 WL 844872, at *1.

                                        6
      In his petition for expunction, appellant alleges that he was arrested for

kidnaping, charged with burglary of a habitation with the intent to commit

kidnaping, but convicted only of aggravated assault with a deadly weapon.

Thus, appellant claims he was acquitted of burglary with the intent to commit

kidnaping and, therefore, entitled to have the arrest and indictment regarding

the kidnaping-related offense expunged.        However, appellant sought an

expunction based on these facts alone; he did not allege any facts that needed

to be developed by an evidentiary hearing.      Because article 55.01(c) bars

expunction of the kidnaping arrest and burglary with intent to commit kidnaping

charge on the facts as alleged by appellant in his own petition, the trial court

had before it all it needed to evaluate whether appellant’s petition presented

any grounds for expunction.3 Appellant does not present any reason why an

oral, evidentiary hearing was necessary. Accordingly, the trial court, under

these circumstances, was not required to hold an oral, evidentiary hearing. See

Current, 877 S.W.2d at 839–40; Addicks, 2007 WL 844872, at *2.               We

overrule appellant’s first issue.




      3
       … Appellant’s petition did not raise any ground, such as a pardon, that
would require the development of facts beyond those already in front of the trial
court.

                                       7
                               Conclusion

     Having overruled appellant’s two issues, we affirm the trial court’s

judgment.


                                            TERRIE LIVINGSTON
                                            JUSTICE

PANEL B:    LIVINGSTON, HOLMAN, and GARDNER, JJ.

DELIVERED: May 1, 2008




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