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IN RE: the Expunction of J.A.L.
In this appeal, we are asked to interpret Texas's expunction statute and determine the scope of conduct encompassed within a criminal episode.1 Appellant, the Texas Department of Public Safety (the Department), appeals the trial court's order expunging criminal records of Appellee J.A.L., which pertains to an arrest under cause number 20170D04178, in the County Criminal Court at Law Number One of El Paso County, Texas, for assault causing bodily injury to a family member, alleged to have occurred on July 30, 2017. The Department argues J.A.L. has previous convictions for the same crime, which should have prohibited the trial court from expunging his record. J.A.L. argues this interpretation of the statute is too broad and erases the statute's explicit duration requirement because the crime for which he was acquitted did not “occur during” the incidents related to his previous convictions as provided by the statutory exception to entitlement to expunction. Because the Department failed to file a verified motion for new trial and thereafter obtain a hearing on that motion, and because the record does not contain evidence of J.A.L.'s prior convictions, we affirm the trial court's order.
On July 30, 2017, J.A.L. was arrested for and charged with assault of a family member, or member of his household, with previous convictions. A jury found J.A.L. not guilty of this crime, and the trial court entered a judgment of acquittal. On February 19, 2019, J.A.L. filed a motion for order of expunction. The trial court judge held a brief hearing 2 after finding that the State had been duly notified and, on March 4, 2019, granted J.A.L.'s motion for order of expunction.
One week later, the Department filed a timely but unverified motion for new trial, arguing only that J.A.L. was not entitled to expunction because he failed to satisfy his burden of proof that he met all the statutory requirements in article 55.01 of the Texas Code of Criminal Procedure. The Department attached uncertified copies of four indictments and convictions against J.A.L. for assaulting either a family or household member in 2004, 2007, and twice in 2009. In seeking a new trial, the Department argued those convictions rendered J.A.L. ineligible for an expunction. Nothing in the record indicates the Department sought a hearing on its motion. The trial court did not rule on the motion, and it was therefore denied by operation of law on May 18, 2019. See Tex. R. Civ. P. 329b(c). The Department appeals and asks us to reverse and render judgment in its favor.
In a single issue, the parties dispute the proper interpretation of article 55 of the Texas Code of Criminal Procedure and Texas Penal Code section 3.01. The Department argues the trial court was statutorily prohibited from expunging the charge for which J.A.L. was acquitted because of his prior convictions for the same or similar crime. It contends that J.A.L.'s conduct falls into the statute's definition of a criminal episode and renders the trial court's order erroneous. J.A.L. responds that the trial court did not err because the incident related to J.A.L.'s acquitted charge did not occur during the incidents related to his prior convictions. To hold otherwise, he argues, misconstrues the scope of Texas's expunction statute.
Before addressing the parties' arguments, we first determine on our own motion whether error has been preserved. See Tex. R. App. P. 33.1
Preservation of Error
The purpose of presenting error to an appellate court is to demonstrate the trial court made a reversible error during the underlying proceedings; however, the complaining party must preserve the error. See generally Tex. R. App. P. 33.1 (preservation of appellate complaints). “As a general rule, a party is required to present a complaint to the trial court before being allowed to raise the issue on appeal.” Duarte v. Mayamax Rehabilitation Servs., L.L.P., 527 S.W.3d 249, 257 (Tex. App.—El Paso 2016, pet. denied). If the complaining party fails to bring the error to the trial court's attention, either through a timely objection or motion, appellate courts typically consider it waived. See id. This requirement gives the trial court the opportunity to rule on the issue. Osterberg v. Peca, 12 S.W.3d 31, 40 (Tex. 2000). If the complaint was not presented to the trial court during trial or in some other post-judgment motion, or if the complaint is one on which evidence must be presented, the complaining party must file a motion for new trial to preserve error. Tex. R. Civ. P. 324(a) and (b) (listing complaints that require motion for new trial to preserve error); see Tex. R. App. P. 33.1(a) (party preserves complaint for appellate review by presenting it to the trial court and obtaining a ruling). Thus, the party must file a motion for new trial to complain about newly discovered evidence and any other matter on which evidence must be heard or about which the party has not already objected. Tex. R. Civ. P. 324(b)(1). Merely filing a document that raises a complaint, however, does not preserve error; the party must bring the complaint to the trial court's attention during court proceedings and request a ruling. See In re Purported Lien or Claim Against Collin Cty. Clerk Taylor, 219 S.W.3d 620, 623 (Tex. App.—Dallas 2007, pet. denied).
“In a civil case, the overruling by operation of law of a motion for new trial ․ preserves for appellate review a complaint properly made in the motion, unless taking evidence was necessary to properly present the complaint in the trial court.” Tex. R. App. P. 33.1(b) (emphasis added). “A motion need not be verified unless it depends on [facts not in the record], in which case the motion must be supported by affidavit or other satisfactory evidence.” Tex. R. App. P. 10.2(a). Without such support, a party fails to preserve its complaint for appellate review. See Tex. R. App. P. 33.1(b).
Here, the Department failed to notify the trial court of any error when it declined to request a hearing on its motion for new trial and declined to verify the evidence affixed to that motion. Therefore, it cannot challenge the trial court's rulings for the first time on appeal. See Tex. R. App. P. 33.1; Tex. R. Civ. P. 324(b)(1); Time Warner Cable Tex. LLC v. CPS Energy, 593 S.W.3d 291, 296 n.28 (Tex. 2019); Garza v. Harrison, 574 S.W.3d 389, 405 (Tex. 2019); In re C.O.S., 988 S.W.2d 760, 765-66 (Tex. 1999); see, e.g., In re T.J.L., 97 S.W.3d 257, 267-68 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (holding that record did not include request to hear evidence on motion, so party did not preserve complaint for appeal).
New evidence was required to support the Department's motion for new trial. Relevant portion of the expunction statute provides:
(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:
(1) the person is tried for the offense for which the person was arrested and is:
(A) acquitted by the trial court, except as provided by Subsection (c)․
Tex. Code Crim. Proc. Ann. art 55.01(a). Subsection (c) provides:
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.
Id. art. 55.01(c). Under the Texas Penal Code, a “criminal episode” is defined as:
[T]he 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 Ann. § 3.01.
In its unverified motion for new trial and in its appellate brief, the Department alleged facts not in the record—namely, whether J.A.L. had prior convictions that constitute the same or similar offense for which J.A.L. sought an expunction. Without deciding the merits of the Department's argument, we hold that the existence of those prior convictions was necessary information for the trial court to determine whether J.A.L. was entitled to an expunction or whether “the offense for which [J.A.L.] was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code,” and whether J.A.L. “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(c).
Because new evidence was necessary to support the Department's argument that J.A.L. failed to qualify under the statutory requirements of the expunction statute, the Department had an obligation to notify the trial court of its purported error in granting J.A.L.'s motion for expunction by filing a verified motion for new trial and seeking a ruling of that motion. See Tex. R. Civ. P. 324(b)(1); Zuniga v. Zuniga, 13 S.W.3d 798, 803 n.4 (Tex. App.—San Antonio 1999, no pet.), disapproved on other grounds, In re Z.L.T., 124 S.W.3d 163,166 (Tex. 2003). Moreover, when a motion for new trial requires a hearing, as here, the movant must ask the court for a setting and not allow its motion to be overruled by operation of law. See Felt v. Comerica Bank, 401 S.W.3d 802, 808 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (“Finally, the record does not indicate that Felt (or any other defendant) ever attempted to set the motion for new trial for hearing or submission. When a motion for new trial requires the judge to exercise his discretion, the judge must have an opportunity to exercise that discretion․”); Bell v. Showa Denko K.K., 899 S.W.2d 749, 757 (Tex. App.—Amarillo 1995, writ denied) (“[A]dmissible evidence must be introduced at a hearing on the motion for new trial establishing such essential facts․”).
Because the Department failed to file a verified motion for new trial and failed to seek a hearing on that motion, we hold it waived error, if any, and failed to preserve its argument for appeal.
We overrule the Department's single issue on appeal.
We affirm the trial court's order granting J.A.L.'s expunction.
1. See Tex. Code Crim. Proc. Ann. art 55.01(a) and (c); see also Tex. Penal Code Ann. § 3.01.
2. The hearing only entailed the trial judge calling the case and stating, “This was the State of Texas versus [J.A.L.]. [J.A.L.] was acquitted and now the defense is submitting an expunction of criminal records on that one trial. And I'm here in open court with all parties present. I believe that he's entitled to that expunction so I'm going to go ahead and sign it. Thank you. I think that will conclude the proceedings in this case. Thank you.”
GINA M. PALAFOX, Justice
Response sent, thank you
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Docket No: No. 08-19-00138-CV
Decided: October 28, 2020
Court: Court of Appeals of Texas, El Paso.
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