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

----------

DISSENTING OPINION

----------

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 

 

1See Tex. Penal Code Ann. § 49.04 (West Supp. 2014); Tex. Health & 

Safety Code Ann. § 481.121(b)(1) (West 2010).

2See 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 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.”5Is 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 

 

3See id.

4Majority 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 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).

8See, 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). 
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 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

 

9See Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care, 

Inc., 145 S.W.3d 170, 177 (Tex. 2004).

10See 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)).