1 John T. Boyd, Chi ef Justice (R et.), Se venth Co urt of Appeals, si tting by

assignment. Tex. Gov’ t Code Ann. §75.002( a)(1) (Vernon Supp. 2004). NO. 07-05-0046-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E JANUARY

10, 2007

______________________________ EX PARTE RU BEN NARANJ O BALDIVIA

_________________________________ FROM THE 64 TH DISTRIC T COURT O F CASTRO COUNTY; NO. B7603-0008; HON. ROBERT W . KINKAID, JR., PRESIDING

_______________________________ Before QUINN, C.J., CAMPBELL, J., an d BOYD, S.J. 1 MEMORAND UM OPINION Appellant

Ruben Naranjo Baldivia, an inmate in the Institutional Div is ion of the Texas Departm ent ofCriminal J ustice, proceed ing pro se and in forma pauperis, brings this appeal from an order of the tri al court deny ing his petitio n for expuncti on of the record of his arrest and trial for murder of which he w as acquitted by a jur

y. In presenting his appeal, appellant

presents thr

ee points of error

for our rev iew. In t hose points, he q ueries whether: 1) the trial court abused its discretion and violated appellant’s federal an d constitutiona l right t o due process of law in the manner in which it conducted th e hearing at which it2

denied appellant’s p etition; 2) t he trial cour t abused its di scretion in entering i ts order denying appellant’s peti tion seeking expunction without noti fying law enforcement a gencie s of appellant’s petition; and 3 ) the trial court reversibly erred in entering its order sua sponte finding that appellant w as con vict ed of anot her offen se that occur red during t he same crimi nal epi sode. Disagreeing that reversal is mandated, we aff irm the trial court’s judgment. In the proceeding before the trial court, as w e noted, appellant sought expunction of the r ecor ds of a murder charge filed against him on Jun e 21, 1985, in Cause No. 1640 in Castro Count

y. After a j ury tri al, on April 14, 198 6, appellant was acquitted of the charge. Bec auseof t he some what convoluted history of this matter, we must recite it in some detail. On January

28, 2005, appellant ’s petition was denied by the tri al court wi thout a hearing because “the facts necessary

to determine theissue are av ailable in t he judicially noticed files .” The trial court went on to find that based upon an opinion ofthis court affirming appellant’s conviction of burglary of a habitation in a related case, the factsgivi ng rise to the murder c harge arose out of the same crimi nal episode that resu lted in the burglary conviction, and appellant was, therefore, not enti tled to expuncti on of the murder charge. Aperson whohas been arres ted for the commission of either a felony or misdeme anor

is ent itled to have all records and files expunged if he meets certain
co ndition s imposed by s tatute. Tex. C ode Crim. Pr oc. Ann. art. 55 .01 (Vernon Supp. 2006)

. A statu tory ex punction proceedi ng is ci vil rat her than cri minal in natur e, and the burden of proving compliance w ith the statutor y conditi ons rests sole ly w ith the petitioner.3

The nature of the expunction statute is remedial and it should b e construed li berally. Ex parte E.E.H., 869 S.W.2d 496, 497 (Tex. App.–Ho uston [1 st Dist.] 1993, writ denied). Even so, article 55. 01 requires strict compliance w ith the conditi ons imposed by the statute, and courts have no equ itable power to expung e criminal r ecords. Pitts v. Stat

e , 113 S.W.3d 393, 395 (Tex. App. –Houston [1 st Dist.] 2003, no pet.). There is no automatic or statutory right to the appointment of co unsel in an expunc tion proceeding and the decision whether
or not to appoint an a ttorney i s withi n the discret ion of the trial court. Id. at 397. The judgment

of the trial court must be af firmed if it can be upheld on any reasonab le theory supported by the ev idence. Harris County Dis t. Attorney’ s Office v. Burns , 825 S.W.2d 198, 200 (Tex. App. –Houston [14 th Dist.] 1992, writ deni ed). Furthermore, a court may rule upon an applicant’ s right to expu nction w ithout holding a hearing i f all of the facts necessary to determine the issue are before the court. Ex parte Cur rent , 877 S.W.2d 833, 839 ( Tex . A p p . – Wa co 19 94, no writ). Finally, it is established that a court can judicially notice its ow n records. Culver v. Pickens , 142 Tex. 87, 176 S.W .2d 167, 171 (1943). In relevant part, artic le 55.01 prov ides that a perso n who has been placed under arrestfor a felony is entitled to have all records and f iles relating to the arrest expunged if the person is tried fo r the of fense for which h e was arrest ed and is acqu itt ed by the tr ial court with theexception that such an expungemen t may not be ordered if “the offense for which t he p erson wasacquitted ar ose out of a crimi nal episode, as defined by Secti on 3.01, Penal Code, and t he person was conv icted of or remains su bject to pros ecution for atleas t one othe r off ense occu rring d urin g the c rimin al ep isod e.” T ex. Code C rim. Proc. Ann. art. 55.01( a)(1)(A) & (c) (Vernon Supp. 2006).4

The Penal Code define s a criminal episode as “the commission of two or more offenses, regardless of whether the harm is di rected toward or inflic ted upon more than
one person or i tem of property, under the follow ing cir cumstances: ( 1) the offen se s are committed pursuant to the same transacti on or pursuant to two or mor e transactions

that
are connected or constitute a common s cheme or plan; or (2) th e offenses are the repeated commission of the sam e or similar offenses .” Tex. Pen. Code Ann. §3.01 (Vernon 2003). The nature of thi s pr oceeding req uires us to make somewhat detai led references to our January12, 1989 opinion i n Cause No. 07- 87-0283-CR r eferred to by

the trial court in its order denying expunction. Examinatio n of that opinion r eveals that the murder

charge of which appel lant was a cquitted and t he burglar y charg e upon which he was conv icted
arose out of a sequence of events that occurred in C astro County on June 6, 1985. Robert Ball ard and h is w ife Frances were awakened during the ni ght by their dog barking. Mrs. Ballard saw the r

eflection of lig hts on a car turning into their

residence’s

circular drive. A fewmo ments later she again heard her dog barkin g, got out of bed, and saw tw o men coming around the corn er of a residence located on the pr operty speak ing together in the Spanis h langua ge. They u nsucce ssfull y tried to qui et the d og. She notified her husba nd, but he did not g et out of bed because he t hought the y would leave w hen they found no one w as at h ome in the residence. Later, however, Mrs. Ballard noticed some dim lights on in the house and again aw akened her husband. After telling her to lock the door b ehind h im, Mr. Ballard took a gun and went outside. She heard him ask the men if they

had a key to the other residence and ot her conversation she could notunderstand. She then heard a v ehicle star

t, she heard ashot from her husban d’s gun,5

and she h eard him s ay “I to ld you to le ave 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 l ying unconscious by the side of the other residence and he died witho ut regaini ng conscious nes s. Later investig ation revealed that the other residence had been broken i nto, severa l items move d, and appellant’s fin gerprints were found on a kerosene lamp located i nside that res idence. Appellant

was ini tial ly charge d wi th c apital mu rder , mur der, and b urg lar

y of a habitation. However, prior to trial, the capital mur der and burgl ary char

ges wer e dismissed, and the State proceed ed to trial o n the murder charg e. That trial resulted in the acqui ttal giving rise to this ex punction proceedi ng. Later, a ppellant was indicted for bur glary and, after a claim of double j eopardy as to the burglar y was denied, the case p roceeded to tri al and appellant

was conv icted of burgl ary, w hich was affirmed by this court primarily because of the fingerpri ntevidence found inside the other residence which nece ssari ly mus t have bee n ma de at the t ime o f an illega l ent ry. Our review of this backg round satisfiesus that the tr ial cou rt was en ti tled to take judicial notice of the factual history of this proceedin g and t hat it was jus tified in the conclusion that t he offensefor w hich a ppell ant was acq uitted aroseout of th e same criminal episode that r

esulted in appel lant’s conv iction of burg lary. That being so, the tria l court did not abuse i ts discreti on in refusing to ex punge the recor ds pertaining to the murder charg e. See Tex. Code Crim. Proc. Ann. art. 55.01(c) (Vernon Supp. 2006).
John T. Bo yd Senior Justice