                              COURT OF APPEALS
                              SECOND DISTRICT OF TEXAS
                                   FORT WORTH


                                    NO. 2-08-375-CR
                                    NO. 2-08-376-CR


JERRY W AYNE W ILLIAMS                                                   APPELLANT

                                               V.

THE STATE OF TEXAS                                                             STATE

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         FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                             MEMORANDUM OPINION 1

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         In each of two cases, a jury convicted Appellant Jerry W ayne W illiams of two

counts of aggravated sexual assault of a child and two counts of indecency with a

child.       The two complainants were his wife’s grandsons.      The jury assessed

Appellant’s punishment at seventy-five years’ confinement on each count of

aggravated sexual assault of a child and twenty years’ confinement on each count

of indecency with a child. The trial court sentenced him accordingly and ordered that



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              See Tex. R. App. P. 47.4.
all sentences would run concurrently. In his sole point, Appellant contends that the

trial court erred by admitting evidence in the punishment phase relating to an offense

that had been previously expunged. Because we hold that the trial court did not

abuse its discretion by admitting testimony of the former complainant recounting

Appellant’s acts committed against her, we overrule Appellant’s sole point and affirm

the trial court’s judgments.

       In 1984, “[a]ny and all records and/or files of [Appellant] concerning [his] arrest

on August 4, 1980, in Tarrant County, Texas” were ordered expunged by a criminal

district court.   Hurst Police Department was included in the list of agencies

specifically ordered to return to the court or to obliterate references in all of its

records concerning the August 4, 1980 arrest.

       In the current cases, when the State was investigating an extraneous offense

involving one of Appellant’s now adult daughters, M.J., it requested records from the

Hurst Police Department. Included in the records received by the State was a

transcript of a June 7, 1985 interview with another now adult daughter, C.E. In the

interview, then thirteen-year-old C.E. told the police that Appellant had touched her

breasts and female sexual organ on multiple occasions when she was seven and

eight years old and had also forced her to touch his genitals.

       But the trial court did not admit any records or testimony about the records of

the 1980 arrest. Instead, C.E. testified over objection that Appellant, her biological

father, had sexually abused her, that it began when she was seven years old, that


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it included his touching her genitals and vice versa, showers, and pornography. She

also spoke about the long-term emotional effects of the sexual abuse on her life and

testified that she had additionally witnessed Appellant touching M.J. inappropriately.

      A plain reading of the expunction statute demonstrates that “the statute’s

intent is not to erase all evidence of the underlying conduct.” 2 Rather, after an

expunction order is final, “the release, maintenance, dissemination, or use of the

expunged records and files for any purpose is prohibited” and “the person arrested

or any other person, when questioned under oath in a criminal proceeding about an

arrest for which the records have been expunged, may state only that the matter in

question has been expunged.” 3 The statute does not limit independent evidence

about the underlying conduct. 4

      Consequently, even if the conduct about which C.E. testified was the same

conduct for which Appellant was arrested on August 4, 1980, we hold that the trial


      2
        Tex. Educ. Agency v. T.F.G., 295 S.W .3d 398, 403 (Tex. App.—Beaumont
2009, no pet.).
      3
           Tex. Code Crim. Proc. Ann. art. 55.03 (Vernon 2006) (emphasis added).
      4
         See Bustamante v. Bexar County Sheriff’s Civil Serv. Comm’n, 27 S.W .3d
50, 53–54 (Tex. App.—San Antonio 2000, pet. denied) (holding that expunction
statute was not violated when commission relied on “officers’ testimony about their
personal observations of marijuana at Bustamante’s home and about her conduct
during their investigation” and not “on expunged records or files”); see also Doty v.
State, No. 03-03-668-CR, 2005 W L 1240697, at *5 (Tex. App.—Austin May 26,
2005) (mem. op., not designated for publication) (upholding officers’ testimony of
events that led to an arrest because their testimony was based on their memories,
not on expunged offense reports), pet. dism’d as improvidently granted, No. PD-
1159-05, 2007 W L 841112, at *1 (Tex. Crim. App. Mar. 21, 2007).

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court did not abuse its discretion by admitting C.E.’s testimony.   W e overrule

Appellant’s sole point and affirm the trial court’s judgments.




                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 10, 2010




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