                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-13-00082-CV


THE STATE OF TEXAS                                                APPELLANT

                                             V.

N.R.J.                                                             APPELLEE


                                         ------------

           FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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                            DISSENTING OPINION

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      I respectfully dissent from the majority opinion.

      Appellee was arrested for driving while intoxicated (DWI), and he was

arrested for possession of marijuana.1 That is, there were two separate arrests

pursuant to two separate warrants.2 Even though both arrests occurred on the

      1
       See Tex. Penal Code Ann. § 49.04 (West Supp. 2014); Tex. Health &
Safety Code Ann. § 481.121(b)(1) (West 2010).
      2
         See Tex. R. Evid. 201(b)–(c).
same date, two separate cases were filed, and two separate bond amounts were

set by the court. Appellee could secure his pretrial release only by posting two

separate bail bonds, BOND ID# 763645 in the possession case and BOND

ID# 763646 in the DWI case.3 The possession case was designated Case No.

CR-2008-00672-D, while the DWI case was designated Case No. CR-2008-

00674-D.

      The majority correctly states that “[a]n arrest occurs when a person has

been actually placed under restraint or taken into custody by an officer.”4

Appellee was arrested for DWI.        Subsequently, the officer discovered the

marijuana and arrested Appellee for possession of marijuana. Yet, the majority

reaches the puzzling conclusion, unsupported by any authority, that “[r]egardless

of whether multiple cases were filed or multiple bond amounts were set, there

was but one arrest on December 6, 2007.”5 Is the majority confusing trips to the

jail for booking with arrests? If a defendant had been accused of committing an

offense in jail, would the majority argue that there was but one arrest because he

had already been placed under restraint?

      The plea in bar permitted the trial court to consider Appellee’s admission of

guilt in the possession case only to assess punishment in the DWI case, not to


      3
       See id.
      4
       Majority Op. at 9.
      5
       Id. at 8.

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support the DWI conviction.         Although the majority insists that the new

expunction statute applies only to wrongful arrests,6 Article 55.01 specifically

permits expunction when “the indictment or information was dismissed or

quashed because the person completed a pretrial intervention program

authorized under Section 76.011, Government Code.”7 Admission to a pre-trial

intervention program does not require actual innocence and may require an

admission of guilt: taking responsibility for one’s actions.8

      I suggest that the real question before us is the proper scope of the

expunction. The original stop was for DWI. The circumstances of the original

DWI detention are not subject to expunction. Any signs of intoxication are not

subject to expunction.     The DWI arrest and subsequent breath test are not

subject to expunction. The only matters subject to expunction are the discovery

of the contraband marijuana and those matters directly related to the marijuana

possession arrest and prosecution.




      6
       Id. at 7 n.2.
      7
       Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A)(ii) (West Supp. 2014).
      8
        See, e.g., Tarrant Cnty., Tex., D.I.R.E.C.T.—Drug Impact Rehabilitation
Enhanced Comprehensive Treatment Diversion Program, available at
https://www.tarrantcounty.com/direct/site/default.asp (noting that each participant
is required to enter a guilty plea) (last visited Nov. 19, 2014).

                                          3
      The expunction statute is clear.9      Appellee’s possession arrest did not

result in conviction for possession, nor did it result in conviction for a lesser

included offense of the possession charge. The possession arrest also did not

result in deferred adjudication community supervision for that offense.          We

should affirm the trial court’s action. Had the legislature intended to add another

requirement for expunction, such as the requirement that the case not have been

considered in assessing punishment in a different case under penal code section

12.45, the legislature was quite capable of doing so. It did not. It is not the place

of the courts to “improve on” the language of a statute, no matter how great the

temptation.10 I therefore respectfully dissent from the majority opinion.



                                                    /s/ Lee Ann Dauphinot
                                                    LEE ANN DAUPHINOT
                                                    JUSTICE


DELIVERED: November 26, 2014




      9
        See Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care,
Inc., 145 S.W.3d 170, 177 (Tex. 2004).
      10
         See Lamie v. U.S. Trustee, 540 U.S. 526, 542, 124 S. Ct. 1023, 1034
(2004); Getts v. State, 155 S.W.3d 153, 158 (Tex. Crim. App. 2005) (quoting
Lamie, 540 U.S. at 542, 124 S. Ct. at 1034); see also In re M.N., 262 S.W.3d
799, 802 (Tex. 2008) (“We . . . presume the Legislature included each word in
the statute for a purpose and that words not included were purposefully omitted.”
(citations omitted)).

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