*1 jurisdiction to con- we are without appeal, appeal.
sider
Disposition perfect held K.S. did not
Having the appeal for appeal,
her we dismiss jurisdiction.
want of Texas, Appellant
The STATE of SHELTON, Appellee. David
John
No. 07-12-00122-CR. Texas,
Court
Amarillo, D.
Panel 27, 2012.
Nov.
Rehearing Jan. Overruled Discretionary Review Refused Shadle, Kollin Dis- Assistant Criminal 15, 2013. TX, Lubbock, Attorney, Appel- trict for
lant. Silahian, K. Higbee, Cary
Matthew K. Associates, Ana, CA, Higbee & Santa Appellee. C.J., QUINN,
Before and CAMPBELL PIRTLE, JJ. OPINION CAMPBELL, JAMES T. Justice. appeals The State order that David Shelton motion John It ar- and dismissed his conviction.1 case). appeal in criminal 1. Tex.Code Proc. certain orders Crim. Ann. 44.01(a)(1),(2) (West (State may Supp.2012) *2 gues the trial court jurisdiction munity lacked supervision was fulfilled and he render challenged order some sixteen complied with all conditions of the order of years after it discharged appellee from community supervision. Also May community supervision.2 Agreeing the tri- the court signed an order discharging ap- jurisdiction, al court lacked we will reverse pellee from community supervision.4 The the order of the trial court and render an record reflects no post-discharge motions order dismissing appellee’s motion. for new trial or reconsideration. 28, 2011, On April appellee filed a “mo- Background tion to set aside conviction and dismiss consistent, 10, 1985, July On with his charges,” supported by an affidavit plea guilty, the trial court found appel- which appellee described his educational guilty lee of burglary of a habitation and during achievements and after his commu- sentenced him a years term of five in. nity supervision, work, and his stable fami- prison, which was probated years.3 for five ly and church life since his discharge. The 9, 1989, On October the State filed a mo- State responded that the trial court lacked tion to revoke supervision al- the requested relief. leging appellee delinquent was in payment A hearing was conducted and on March required costs and fees. The State’s 2012, the trial signed grant- subsequent motion to dismiss its motion to ing appellee’s motion.5 appeal This fol-
revoke granted and appellee’s term of lowed. community supervision was extended five years. Analysis 21, 1996,
On May pro se appellee filed a motion requesting discharge from issue, commu- Through single the State nity supervision. grounds As for the re- contends the trial court lost relief, quested argued he the term of com- affect appellee the relief requested by his "Community supervision” 2. statutory is the ON THE DATE SET OUT BELOW CAME formerly term for "proba- what was called BE discharge ON TO HEARD the motion to State, tion.” Ballard v. supervision; Offender's (Tex.Crim.App.2004); n. 1 having see Tex.Code Crim. pleading Court considered the 2(2) (West thereon, Proc. Ann. Supp. the evidence the Court finds that 2012) (defining community supervision). granted: motion should be ORDERED, When was convicted in he IT IS THEREFORE AD- "probation.” practicable, received Where we JUDGED AND original DECREED that the will "community supervision.” use the term modified, term of supervision is necessary, if to conform to the term com- Offender, part pleted provided: In the 1985 order and the Offender is hereby discharged community super- appearing And proof it from the vision. findings of the Court that the Defendant has felony before been convicted aof in this part, provided: 5.In the 2012 order State or another it is ordered and The Court ORDERS that adjudged the Defendants imposition the Court that the (sic) regarding petition [ap- Motion Judgment of Sentence of the of conviction pellee] is Granted. The Court ORDERS suspended this cause be and the Defen- dant, accompanying petition setting [appellee] hereby placed on Proba- (5) aside the captioned conviction in the above tion for a Period of five Years under the matter is and further ORDERS that terms and conditions of the Adult Probation (sic) [appellee] entirety conviction in its and Parole Law of the State of Texas. captioned hereby in the above matter ... discharge 4. The 1996 order stated: dismissed. amended re- The section has been thirty days later than fol-
2011 motion order. discharge codified6 in the since Since lowing agree. provisions *3 have been con- community supervision placed was com- on At the time 42.12 in 20 of article of the tained section 1985, in the substance munity supervision Procedure. The lan- Code of Criminal his statutory provision of on which the requested re- guage appellee’s central to depends contained present argument lief, however, essentially remained Code of Criminal Procedure former unchanged. the time of his 1996 dis- At 42.12, § provided: 7. It charge, sentence section pertinent the time, after the defendant has any At 20(a) read: satisfactorily completed one-third period or two original probationary discharges If the the defendant judge whichever is the less- probation, section, judge may the set er, probation may be re- period the the permit aside or defen- the verdict court. or terminated the duced plea, his dant withdraw shall satisfactory fulfillment of the Upon the accusation, complaint, dismiss infor- expira- probation, conditions against mation defen- or indictment period probation, tion dant, thereafter be who shall released entered, duly shall amend or by order from all and disabilities result- penalties if modify original imposed, sentence or crime of ing from the offense which necessary, probation to conform the he has convicted or to which he has been defen- and shall pleaded guilty, except [exceptions been In case the defendant has dant. present rec- applicable made guilty or entered a plea convicted ord].7 of nolo contendere to an of- plea or a [exceptions applica- than fense other changed has not since been language here], discharged and the court ble Crim. Proc. substantively. See Tex.Code hereunder, such court the defendant 20(a) (West 42.12, Supp.2012). § Ann. art. permit the verdict
may set aside
The Court of Criminal
has said
plea,
to withdraw
his
entirely
contains “two
section
accusation, complaint,
shall dismiss
‘discharge’
felony
different types of
indictment
such
against
information or
community supervision.” Cuellar
defendant, who shall
be re-
thereafter
815,
(Tex.Crim.App.2002).
penalties
from all
and disabilities
leased
method
According to the “usual
of dis-
resulting from the offense or crime of
charge,” involving
majority
felony
been
to which
which he has
convicted or
sentences, a
community supervision
person
guilty,
proof
pleaded
except
he has
successfully completes community
who
su-
plea
guilty
his said conviction or
and,
society
his debt to
paid
“has
known to the court should
shall be made
effect,
‘graduates’
su-
any
again
the defendant
be convicted of
Accordingly,
the “trial
pervision.”
criminal offense.
Id.
1989,
29, 1993,
R.S.,
29,
R.S.,
Leg.,
May
Leg.,
May
ch.
7. Act of
73rd
ch.
See Act of
71st
4.17,
23,
900,
20,
4.01,
Laws
sec.
Tex. Gen.
Tex.
Gen. Laws
sec.
23);
(recodifying
sec. 7
Act
as sec.
29, 1993,
R.S.,
Leg.,
73rd
ch.
1993 Tex.
Laws
sec.
Gen.
(recodifying
23 as
sec.
sec.
shall
discharge the defendant from
Fielder
request
filed a
Id.
supervision.”
clemency. She argued no statutory time
limit for seeking judicial clemency exists
“second,
provides
But
statute also
and asked the trial court consider her con-
discharge.”
common
It
type
less
is not
over
roughly four-year
duct
interval
right
“judicial
but a matter of
clemency”
following her discharge.
month,
The next
within the sole discretion of the trial court.
the trial court withdrew Fielder’s 2007 dis-
at 819. If the
Id.
trial court “believes that
charge and
dismissed
indictment.
is com-
Finding itself “unable to determine the
pletely
ready
rehabilitated and is
to re-
*4
of any
source
form of
on the
place
law-abiding
take his
as a
member of
part
trial court with regard to
society,
may
the
Field-
judge
trial
‘set aside the
successfully
er’s
served and
permit
discharged
or
the
verdict
with-
community supervision” at the time
plea,
draw his
and shall dismiss the
of its
accu-
sation,
2011
of judicial clemency,
the Waco
complaint, information
indict-
defendant,
court concluded the trial court
against
ju-
the
who
lacked
ment
shall
risdiction to
2011 judgment.
be
all
render its
penalties
thereafter
released from
Id.
785-87.
disabilities
from the
at
resulting
and
offense
or crime of which
been
he has
convicted or
In support
conclusion,
of its
the Waco
”
(cit-
pleaded guilty.’
to which he has
Id.
Patrick,
court cited State v.
history
present
from 1985
continuing jurisdiction
6(a),
are sections
20(a)
language stating
contained
when
8(a)
7(a),
article
and 10 of
42.12 of the
“second,
the court
grant the
less com-
Code Criminal Procedure.
Id.
type
mon
of discharge”
having grant-
after
regular
ed a
discharge.
Like the Waco
we find the
Patrick,
86
The
discussion
S.W.3d at
Appeals
Waco Court of
recently
question.
provides guidance
addressed the
In State v.
for our
Field-
resolution of
er,
Cuellar,
the appellee
appeal.
Fielder was
this
As the court held in
discharged
first,
from community supervision by an
or “usual” method of discharge
signed
required
November
376
language
S.W.3d 784 is
under the
of section
20(a).
(Tex.App.-Waco
pet.).
no
In March
person who has
all
“[A]
fulfilled
30, 2008,
analy-
Waco
(Tex.App.-Beaumont April
court also cited
for its
(mem.
sis relied on the
Court of
Beaumont
pet.)
op.,
designated
publica-
State,
opinion in Moore v.
No.
tion).
09-06-00532-
CR,
Tex.App.
2008 WL
Lexis
hardly
can
doubted that the
It
the conditions
governing
placement
persons
law
vide argument would have us ex Appellee’s 20(a) sentence, Fielder, urges § to follow tract a Appellee single us not concerning judicial clemency, classify and arguing request the court misconceived a describing a it as a judicial clemency procedure. for as attack on civil We do manner. judgment law or sentence. Rath- read statutes in that See criminal (Tex. Fowler, contends, er, procedure Jones S.W.2d 1998) curiam) judicial clemency § a civil court reads (per (explaining is interprets a apart entirety the under- statute its and it so “separate action given every part); and is like such that effect is to Tex. lying criminal matter” 311.021(2)-(3) (West § Ann. expunction10 civil actions and non- Gov’t Code other as 2005) (“In statute, enacting merit in con- it is pre We find no a disclosure.11 that the is tention. sumed entire statute intended conviction, Or, language beginning appellee's prior 12.At the time of com- to with ... "In case the defendant has been convicted probation, munity supervision, called then discharged the and the court meant "the release of a convicted defendant hereunder, may set aside the ver- such court imposed by a court under conditions ...” dict. specified period during court for a which the imposition suspended.” of sentence is See Proc. Ann. arts. 55.01- 10. Tex.Code Crim. Ann. art. former Tex.Code Crim. Proc. Supp.2012). 2006 & 55.06 (West 1979). 2(b) § 411.081(d) (West 11. Tex. Gov't Code Ann. effective; just may and reasonable al” sixteen [and] to be later de- intended”). result is the probationer termine that only now is rehabilitated, completely and exercise a presents argu- two additional judicial clemency. ments, any “at arguing phrase first time,” begins the which first sentence The Court Criminal Appeals sug 20(a), clemency means gested that trial court plenary power any at time after the completion modify rescind its order if a motion community supervision. accept We cannot for a new or a motion in arrest of 20(a), argument. As we read wheth- judgment filed within thirty days predecessor er in current form or its its State, sentencing. Collins v. 240 S.W.3d to, beginning have referred forms we 925, 927 n. 2 (Tex.Crim.App.2007) (citing any clearly applies time” phrase “at rather State, Swearingen v. 189 S.W.3d the court actions is authorized (Tex.Crim.App.2006); Aguil State v. take first sentence of section. era, (Tex.Crim. 697-98 reading supported by Our later in- Davis, App.2005)). See also State v. language clearly clusion of that the stating (“A S.W.3d 537 (Tex.Crim.App.2011) required discharge occurs on “expiration trial court plenary power modify retains community supervision.” if a sentence motion for new trial is time, at “at Discharge any occurs days filed within 30 sentencing”). time.” Clinton v. See need not consider the effect of such *6 (court 795, (Tex.Crim.App.2011) con- 800 within thirty days motion filed issu of its plain a statute according strues to its ance of a because mo no such meaning). tion in this was filed case. In the absence motion, however,
Appellee’s argument second is on of such a based we find authority extending juris the statement Cuellar that clem- the trial court’s ency appropriate judge appellee judicial clemency is “when a trial diction to grant days beyond thirty entry May believes that a su- from of the 21, completely general discharge rehabilitated and is order. his ready place law-abiding to re-take as a therefore the order trial reverse society....” judgment dismissing ap- member at 819. court and render of judicial clemency pellee’s reasons that motion. only be thus a defendant who J., his paid
has both debt and shown that he PIRTLE, dissenting. truly reformed. The court in Cuellar PIRTLE, Justice, A. PATRICK addressing requirements was dissenting. effects, clemency timing. and its not its wring Id. We are unable to from the with the Disagreeing majority’s conclu- judicial clemency of court’s discussion sion that the court lacked holding, or I suggestion, grant requested by Cuellar a even a the relief Appellee, case, after having granted respectfully that a “usu- dissent.1 In this majority opinion accurately 1. Because See Tex.Code Proc. Ann. Crim. 20(a) procedural the factual sets forth back- See Act of also Supp. case, 1989, R.S., 785, 4.17, ground statutory May Leg., of this as well as the 71st ch. 20(a) (reco- history what is now section article sec. Tex. Gen. Laws 23); difying 42.12 the Texas Code Proce- 7 as of Criminal sec. sec. Act of dure, R.S., 900, 4.01, Leg., repeated will those matters not be here. 73rd ch. sec. Cuellar, at 819. 70 S.W.3d society....” that, under certain acknowledges State rather, 20(a) it right; clemency is not conditions, of article Judicial section statutory en- within and is Proce- which lies is a matter Criminal the Texas Code 42.12 of of a trial discretion court with to the sound a trial trusted dure vests Accordingly, and dismiss guilty Id. at 818-19. judge. aside a verdict set con- indictment, it does not a trial court dispute because is no there particular type its discretion court abused the trial “jurisdiction” tend is, Set Motion to there a tem- Appellee’s granting question relief. The Charges authority can and Dismiss as to when poral Aside Conviction limit provisions, the determi- to those exercised? pursuant Is there a down to this: comes native issue Clemency can trial court to when the as
limitation Judicial Time Limits on majority The authority? exercise majority opinion, in the As stated not, is, I there is say says there requested Appellee’s central to language weighed Appeals has Court Criminal unchanged essentially has remained relief least not question specific in on this —at perti- originally enacted. since it yet. 20(a) currently in section provision nent reads: Clemency Judicial satisfactory fulfillment Upon the of Criminal The Texas Court community supervision, conditions concedes, that held, and the State entered, ... shall duly judge, entirely dif- “two authorizes section If the discharge the defendant. felony ‘discharge’ types ferent this sec- the defendant under discharges community supervision.” Cuellar tion, the verdict judge may set aside (Tex.Crim.App.2002). accusation, ... and shall dismiss First, there is the standard information, indictment complaint, *7 mandato- which is community supervision, defendant, who shall thereaf- against community su- placed if on ry person and penalties from all ter be released term of the entire completed has or from the offense resulting disabilities satisfactorily fulfilled supervision and defendant has been crime of which the and second- imposed; all of the conditions or to which the defendant convicted the less common ly, there is [exceptions that: guilty, except pleaded “judicial clemen- commonly referred to as by present rec- applicable made not trial court to set cy,” which allows the ord]. and dismiss the guilt aside the verdict of 42.12, See Proc. Ann. art. Tex.Code Crim. information, in- accusation, or complaint, Supp. 2012). 20(a) (West dictment. See Tex.Code Crim. Ann. Proc. Supp. 2012). together, sentences 20(a) Reading these two com- This less the trial divined that majority has to be has been determined discharge mon affect the relief jurisdiction to is court lost mechanism which legislatively a enacted thirty “no later than requested believes “when a trial appropriate 21, discharge May days following supervision is that a on say: to majority goes on The ready order.” rehabilitated and completely sentences, together, taken think the law-abiding member “[w]e as a place re-take his 20, R.S., 900, Leg., ch. sec. (recodifying 73rd 1993 Tex. Gen. Laws 3739. Gen. Laws 1993 Tex Act of sec. 23 as sec. See also judi- later, intended the years indicate November Four at clemency cial to be made the March sought decision Fielder and obtained discharge.” judicial same time as the ‘usual’ With an clemency. order The Waco respect, simply all due I do not read such a court reversed that order and rendered juxtaposition limitation these judgment into Fielder’s motion for two clemency sentences. be jurisdic dismissed for lack of tion. reaching conclusion, In all, is no statutory First of there limita- court held that it was “unable to determine tion a trial “by as to when court must any jurisdiction” source form of duly order entered” “usual” dis- part the trial which court allowed charge In supervision. such relief. I Respectfully, do see a itself, very the statute such words of disagree source of and I with time,” an order entered “at any Court’s Waco Accordingly, conclusion. including original both before the for date rely I upon would as binding Fielder community supervision, termination of as precedent. See Delamora “early the case of envi- termination” (Tex.App.-Austin 20(a), months, sioned section even d) pet. ref (holding appellate that an years, satisfactory after the completion not bound follow a decision a court terms and com- defendant’s conditions of equal jurisdiction). fact, Cuellar, munity supervision. In V, upon by judi- decision relied the majority, Article Section 8 of the Texas Consti- cial clemency until more tution the jurisdiction defines of the dis- than after two months the defendant had trict provision courts this State. That completed the term of his su- plainly upon confers the district courts Cuellar, pervision. “exclusive, appellate, 70 S.W.8d at Be- original jurisdic- any actions, cause such an can be proceedings, entered “at tion of all and reme- time,” dies,” logically except it would follow expressly that a as pro- otherwise order, law, clemency even one question entered con- vided and there is no temporaneous with “usual” or- such extends to civil both cases, der could come after the period criminal as well matters as related elapsed. law, To limit the to both civil and criminal including the court’s consider authority application authority grant judicial clemency. judicial clemency to that time having provided Constitution no time lim- *8 immediately mandatory to a authority grant concurrent its on a trial court’s to days judicial clemency, of a defendant within thirty we must determine if completion successful the Legislature authority. has limited that supervision read a is to limitation into the Legislature with the con- vested statute that is not simply there. Further- authority stitutional to enact statutes and more, the creation such a limitation is every presumption indulged should be public policy inconsistent with the purpose legislative favor of a enactment. The of judicial clemency altogether. government justified branch is not
The majority support posi- finds limiting authority Legislature tion in the Waco recent Court of to enact a statute Appeals except where Consti- Fielder, decision in State v. 784 tution expressly imposed upon limits Here, (Tex.App.-Waco pet.). the Legislature In it. created a mecha- ease, discharged Fielder by judicial from commu- nism which the branch could nity by an order signed judgment use its reasoned determine if to to continue be bur- should “penalties and disabilities” by
dened conviction, limited
a criminal specifically authorized
circumstances Those limitations do
the Legislature. when a trial
include a restriction as authority. If the exercise to limit that au-
Legislature had wanted frame, it knows
thority specific to a time it, branch
how to should do function cre- legislative usurp none Giv-
ating limitation where exists. grant-
en fact that authority grant with
ed trial courts imposing tem-
judicial clemency, without Set limitation, Appellee’s Motion to
poral Charges and Dismiss
Aside Conviction
was sufficient invoke Constitutional irrespective the trial was filed. when it I find the trial court
Accordingly, would re-
had I
lief affirm the deci- requested would
sion of trial court. ORTEGA, Appellant,
Richard G.
CACH, LLC, Appellee.
No. 14-11-00768-CV. Texas,
Court *9 (14th Dist.).
Houston
Jan.