State v. N.R.J. ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00082-CV
THE STATE OF TEXAS APPELLANT
V.
N.R.J. APPELLEE
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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.
2
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)).
4