What does the “same criminal episode” mean?
Section 3.10 of Chapter 3 of the Texas penal code defines a “same criminal episode” as “the 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: …. or (2) the offenses are the repeated commission of the same or similar offenses.
https://statutes.capitol.texas.gov/Docs/PE/htm/PE.3.htm
In the subsequent case, a trial court granted the expunction of Appellee Ferris’s (“Ferris”) 2018 DWI arrest. The Texas Department of Public Safety (“Department”) challenged the expunction on account that Ferris’s 2014 DWI arrest and conviction is a furtherance of the 2018 DWI arrest as a “same criminal episode”. The Court of Appeals affirmed the trial court’s order.
In the case below I discuss the case and why the Court ruled to affirm the trial court’s decision to expunge Ferris’s 2018 DWI arrest.
Background
In September 2014, Ferris was arrested for a DWI, plead guilty, and served time on the conviction. In April 2018, he was arrested for a second DWI offense and was acquitted of the charge. Ferris filed an acquittal expunction for the 2018 DWI arrest which was granted by the court pursuant to the Texas Code of Criminal Procedure article 55.01(a)(1)(A): Expunction of Criminal Records. In 2019, the Department filed a motion for a new trial on the grounds that Ferris was not entitled to an expunction of his 2018 DWI arrest because it was part of the “same criminal episode” as his 2014 DWI arrest.
Expunction Statute
The requirements for expunction are found in Article 55.01 of the Code of Criminal Procedure: “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 . . . the person is tried for the offense for which the person was arrested and is . . . acquitted by the trial court. https://statutes.capitol.texas.gov/Docs/CR/htm/CR.55.htm
The Department’s argument:
The Department argues that Ferris is not entitled to the expunction of his 2018 DWI arrest because of his 2014 DWI conviction. The Department’s stance, that Ferris’s 2018 DWI arrest should not be expunged, is based on the relevant definition of the “same criminal episode”. Section 3.01(2) of the Texas Penal Code defines “same criminal episode” as “the commission of two or more offenses, regardless of whether the harm is directed toward of inflicted upon more than one person or item of property” if: “the offenses are the repeated commission of the same or similar offenses”.
Court of Appeals affirms the trial court’s decision.
The Court held that the Department’s misinterpreted section 3.01. Section 3.01 is part of Chapter 3. “Multiple Convictions” and defines a “same criminal episode” under the language, “the commission of two or more offenses….if the offenses are the repeated commission of the same or similar offenses”. Section 3.02 consolidates and joins prosecutions if they are reasonably similar in facts and are committed in close time proximity. Note, however, that if the criminal acts are interrupted and not continuous, it does not constitute a “same criminal episode”. That constitutes two separate criminal acts.
No ”same criminal episode” facts
Here, the Department argued that the 2014 DWI arrest and conviction was the first step in furtherance of a criminal episode that continued into the 2018 DWI arrest. The trial court overruled this argument and held that the two separate DWI arrests shared no similar acts and could not be enjoined under the meaning of Chapter 3 of the Texas Penal Code. The Court noted that the four -year difference between both DWIs and the fact that the latter did not result in a conviction was ample evidence to not consolidate both offenses. The Court found that to enjoin both DWI would not meet basic fairness. Finally, the Court reasoned that to do so would be “absurd” and impossible to prosecute because Ferris was not subject to any punishments as he had served time under his 2014 DWI conviction. The Court could not impose further sanctions for a crime he was acquitted for.