Opinion Released October 19, 2017

McClendon v. State, No. 13-16-00230-CR (Memorandum Opinion by Justice Longoria; Panel Members: Justices Contreras and Benavides)

In this appeal from a conviction after an acquittal on a related charge, the Thirteenth Court of Appeals emphasized the appellant’s burden to present a complete record.

Andrew McClendon kidnapped the victim at knifepoint and forced her to drive him to a marina in Corpus Christi, where he had sexual contact with her in the backseat of the car. McClendon then forced the victim to drop him off at a Stripes convenience store. McClendon was indicted for four counts of aggravated sexual assault, but a jury acquitted him of all four charges. The State then indicted McClendon for aggravated kidnapping and aggravated assault.

At the beginning of his trial, McClendon filed a motion to limine to limit the evidence admitted regarding the alleged sexual assault. The trial court allowed the State to present evidence of the sexual contact to provide context for the crime, but stated that the State could not retry the sexual assault charge. The State then called a sexual assault nurse examiner to testify about her examination of the victim, and indicated that it intended to read other testimony from the prior sexual assault trial into the record. McClendon objected, claiming the evidence violated the expunction order regarding his sexual assault charge. The trial court overruled McClendon’s objection.

McClendon was convicted of both charges, and the trial court sentenced McClendon to thirty years for each offense, to run concurrently.

McClendon appealed, arguing (1) that his convictions violated the constitutional protection from double jeopardy; and (2) that the court erred by admitting evidence from the initial trial.

Held: McClendon did not introduce the record of his prior trial into evidence before the trial court, nor did he offer a copy of his expunction order. Thus, the record was insufficient to review McClendon’s issues premised on the omitted documents. The trial court’s judgment was affirmed.

Double Jeopardy

McClendon began by arguing that that his conviction violated the double jeopardy clause by (1) imposing multiple punishments for the same offense, and (2) subjecting McClendon to a second prosecution for the same offense after an acquittal. The Thirteenth Court disregarded the first argument in a footnote, stating that a multiple punishments violation could not occur in this case because there was no punishment for the sexual assault charges.

The court thus focused on the alleged successive-prosecution violation. To succeed on a successive-prosecution claim, McClendon was required to show that the two offenses were the same in law and fact.

McClendon did not object on double jeopardy grounds at the trial court level. However, the issue may be raised for the first time on appeal if the double jeopardy violation is apparent from the face of the record, and applying the usual rules of procedural default serves no legitimate state interest. McClendon’s prior case was not part of the appellate record, and thus the Thirteenth Court could not examine the relevant elements of his prior indictment. Although McClendon moved to supplement the appellate record with the reporter’s record from the first trial, the appellate court held that it could not consider the supplemental record. Supplementation is intended for instances where evidence or filings are already part of the trial court record but were not forwarded to the appellate court for some reason. McClendon did not ask the trial court to take judicial notice of his initial trial or otherwise bring it to the court’s attention, so he cannot present it to the court of appeals as a supplemental record. Without more information about the elements and nature of the allegations in the original trial, the court of appeals could not review the double jeopardy issue and no violation was apparent on the face of the record.

Admissibility of Expunged Evidence

McClendon next argued that the trial court reversibly erred by admitting evidence in violation of the order expunging his sexual assault charges. The court of appeals noted that the expunction order was not in the record, and McClendon did not ask the trial court to take judicial notice of the document. Although McClendon attached a copy to his appellate brief, the court of appeals refused to consider the document since it was not in the record. Without the expunction order, the Thirteenth Court of Appeals could not determine whether any evidence was admitted in violation of the order. The appellate record was thus insufficient to allow review, and the issue was overruled.

Having overruled both McClendon’s issues, the trial court’s judgment was affirmed.

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