## 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 DE NTON COUNTY

---------- 

### DISSENTING OPINION

---------- I respectfull y dissent from the majority opinion

. Appell ee was arrested for d riving 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 b oth arrests occur red on the

1 See Tex. Penal Code Ann. § 49.04 (West Supp. 201 4 ); Tex. Health & Safety Code Ann. § 481.121(b)(1) (West 2010).

2 See Tex. R. Evid. 201(b)

– (c).2

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 tak en 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 of fense in jail, would the majority argue that there was but one arrest because he had already been placed under restraint? The plea in bar permit ted the trial court to consider Appellee ’ s admission of guilt in the possession case only to assess punishment i n the DWI case, not to

3 See id

. 4 Major ity Op. at 9.

5 Id. at 8.3

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 interve ntion 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 subje ct 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 pros ecution.

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 C nty. , Tex. , D.I.R.E.C.T.

— Drug I m pact Rehabilitation Enhanced Comprehensive Treatment Diversion Program , available at htt ps://www.tarrantcounty.com/direct/site/default.asp (noting that each participant is required to enter a guilty plea) (last visited Nov. 19 , 2014)

.4

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 defe rred 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 punis hment in a different case under penal code section
12.4 5 , 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 respectful ly 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. C t . at 1034 ) ; see also In re M.N. , 26 2 S.W.3d 799, 8 02 (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)).