*1 implicate case solemn The issues that deserve oral principles
constitutional Supreme further Court
argument decides oth-
scrutiny. Because Court
erwise, respectfully I dissent. YAZDCHI, Appellant
Ali of Texas. STATE PD-0007-13,
Nos. PD-0008-13. Appeals of Texas.
Court Criminal 9, 2014.
April
Rehearing Denied June 10(5) (6) (West, Sess.); through Reg. Westlaw Nov. 2012 1-3 and 5-7 of 2014 2d Fla. Stat. — Election); (West, 932.703(6)(a) through § Westlaw Safety General Cal. Health & Code Ann. (West, Sess.); 11488.5(d)(1) through Reg. § Ch. 3 2013 1st 60- Westlaw Kan. Stat. Ann. 4106(a) (West, Sess.); Reg. Reg. through Westlaw of 2014 16- Colo.Rev.Stat. Ann. Sess.). 13-505(10)(a-b) (West, Legis. through Special Westlaw Ch.
Eric Kugler, Assistant District Attor- Houston, McMinn, ney, Lisa C. State’s Austin, TX, Attorney, for the state. *3 OPINION ALCALA, J., opinion delivered the Court, KELLER, P.J., in which MEYERS, KEASLER, HERVEY, and COCHRAN, JJ„ joined. case,
In this we address whether a de- eligible felony community fendant for supervision from a when his prior community supervision, which he received straight probation under a was by terminated a discharge per- order that him plea guilty, mitted to withdraw his indictment, dismissed the and set aside the verdict, becomes resurrected the con- present viction in the case.1 See Tex.Code 20(a). Suggesting CRIM.Proo. art. question affirmatively, that we answer this Yazdchi, Ali appellant, argues peti- his discretionary tion for review that the court appeals erred holding trial properly pretrial court refused his sworn motion for on the supervision ground ineligible that he was for communi- ty jury. from a supervision See Yazdchi v. 01-10-01090-CR, Nos. 01-10- 01091-CR, 9316, Tex.App. LEXIS (Tex.App.-Hous- at *6 WL 2012) (mem. op., ton Nov. [1st Dist.] designated publication). Based on our plain meaning examination of the of the 42.12, language Article 20(a), we with the agree appeals’s court holding appellant ineligible was Gotro, Schneider, Stanley G. Casie P.C., Houston, McKinney, & due to a felo- Schneider TX, for appellant. ny conviction. See Tex.Code Crim. Proo. 1, 1993, community appellant's community super- September We also refer to 1. Prior to su- probation. straight distinguish pervision referred vision as to as 29, 1993, R.S., May Leg., from one in which a defendant re- Act of 73d ch. situation community supervision through § Gen. We use ceives a de- 1993 Tex. Laws 3716. interchangeably opinion. adjudication. the terms in this ferred 20(a).2 terminated agree We also completed failed to he had two- after appeals the court of court complaint that the trial years probationary peri- preserve and-a-half impeach 20(a). the State by permitting or- erred id. In his od. See prior community of his him with evidence der, judge permitted appellant the trial therefore, do not reach we supervision, guilty, dismissed the withdraw his affirm complaint. the merits of him, and set aside the against indictment of appeals. of the court judgment judgment of conviction. See id. or- stated, der, part, in relevant *4 Background I. ordered, adjudged, And it is and de- Community Supervision and A. Prior hereby creed: That defendant be and is Early Termination Order of of permitted to withdraw his/her 2000, appellant pleaded In November and the in- guilty or Nolo Contendere aggregate theft and elected guilty to dictment or information which the punishment without judge have the assess the charged by defendant is and same See Tex. agreed an recommendation. Pe- of hereby Judgment dismissed and the (e)(7). 31.03(a), judge § The nal Code hereby according conviction is set aside ten punishment at appellant’s assessed to law. years’ imprisonment suspended but his B. The Present Case straight proba- him on placed sentence and years community appellant About five after had sat- years’ supervi- tion with ten isfactorily probation, art. he was completed sion. See Tex.Code Crim. Proc. (b)(1). 3(a), 2003, February third-degree the indicted for two felonies that trial, 20(a) community expiration supervision, and the 2. At the time of Section stated, community period supervision, the of the of entered, judge, by duly amend order shall anyAt time after the defendant has satisfac- modify original imposed, if or the sentence original torily completed one-third of the necessary, community to conform to the community supervision period years or two supervision period and shall the community supervision, of whichever is discharges judge If the the de- defendant. less, period supervision the of section, judge may the fendant under this judge. may be reduced or terminated the permit the defen- set aside the verdict or original completion On of one-half of the plea, the defendant’s and dant to withdraw period years or two accusation, complaint, shall dismiss the in- community supervision, whichever is of more, against the defen- formation or indictment judge review the shall the defendant’s dant, released from who shall thereafter be record and consider whether to reduce or resulting penalties and from all disabilities period community supervi- terminate of the crime which the defendant the offense or sion, delinquent the defendant is unless or to which the defen- has been convicted restitution, fines, costs, paying required or pleaded guilty, except dant has that: ability pay fees that the defendant has the proof plea of of the conviction or completed the defendant has not court- or judge the should shall be made known to counseling or Before ordered treatment. review, again convicted of the defendant conducting the shall noti- offense; ... criminal fy attorney representing the state and 42.12, 20(a) (West Crim. Proc. the defendant. If the determines that Tex.Code trial, 2008). appellant's Arti- Since the text of satisfactorily ful- defendant has failed 20(a), a minor cle has received community supervi- fill the conditions sion, regarding parties amendment notice to the defendant in shall advise judicial modification. See Act writing requirements termination or of the for satisfactori- R.S., Leg., ly fulfilling Upon May 82nd ch. those conditions. the sat- 2,§ isfactory 2011 Tex. Gen. Laws 2415. fulfillment of conditions off-the-record, falsely holding pretrial colloquy one- an in 2006: he committed day, theft of lawyer aggregate previous during parties and self out as $100,000. $20,000 whether appellant eligi- had discussed was over Tex. 31.03(a), (e)(5); 31.09; §§ jury. ble for from a Penal Code 38.122(a). although actually Appellant, prior discharge introduced the Appellant as a law- attorney, introduced himself an purposes hearing order for and sum- that he people strip at a club yer to record, in marized its contents. The rele- who worked complainant, frequented. states, part, vant club, appellant help approached at that Further, based on— counsel]: [Defense proceeds insurance after a collecting and the court has indicated her in- car accident caused severe serious viewpoint that the Court’s behalf, wrote sev- juries. On her was, fact, that there com- demand letters to the insurance eral [Appellant], involved, stating drivers panies of both and— complainant represented *5 that, yes. I think court]: Just so [Trial payment for medi- seeking company’s each I can articulate it on the rec- cal, towing expenses. By auto and repair, is, question ord .... I think the end of he had collected over could defendant swear to a $50,000 companies from the insurance motion that he has never before his bank ac- deposited personal he into felony of a been convicted this any never tendered Appellant count. state, state or other or the money complainant. he collected to the federal court in order be to able both offenses at Appellant was tried for to ask for before the in November 2010. Prior to single a trial jury. my position And was that trial, motions and parties pretrial filed felony, been convicted of a trial about had discussions with the court regardless of the in the legal consequences stemming early proba- termination of that early appellant’s prior termination of So, tion. I don’t think he is eligi- Appellant filed a community supervision. go jury ble to before the to ask seeking hearing motion in limine a to de- probation. for termine, prior whether the convic- part, “fi- tions listed in the State’s notice were And, you. Thank as counsel]: [Defense Appellant nal convictions.” also filed a that opinion a result of this community supervision motion for pretrial Court, I—I Honorable did file community su- acknowledging his earlier a Motion for Probation and theft that had been pervision however, previous- I had also— aside, changed later that election set but ly a motion or an ... filed judge, to be sentenced trial-court punishment go election of to to after apparently judge determined jury, and a as result this ineligible would for com- opinion by this Honorable munity jury. from the Court, I filed an elec- amended 2(b); Tex.Code Crim. Proc. arts. to the punishment go tion of to 4(e). opinion upon Court based So, trial, ruling. and this for that Before commencement of reason, get I needed to this on hearing presence court held a outside the jury documenting for the the record.... any ruling rection of a conviction for an offense that requested never Appellant successfully a discharged court on the matter of has been from the trial (2) community supervision, prior completed his whether testimony if impeach impeachment his claim appellant’s could be used whether trial, At testify appel- appeal. at trial. preserved he were to See Tex.Code State, therefore, 20(a)(1). The testify. Appel- lant did Crim. Proc. impeach- seek to admit no occasion to pretrial had lant asserted that the trial court’s testimony against appellant, and the ment him ruling erroneously right denied his appel- ruled on whether trial court never community supervi- have the consider permitted would be lant’s him because he had sentencing sion in evidence. See Tex.R. impeachment the disabilities stem- discharged been 609(a). jury subsequently con- ming supervi- from his earlier Evid. In ac- appellant of both offenses. victed Appellant argued sion. under this election for the cordance opinion per- in Cuellar v. Court’s sentence, the trial impose trial court to in- son whose conviction is set aside and charge him on each court sentenced 20(a)’s is dismissed under Section dictment ” prison ten-year concurrent terms. plain language “is not convicted felon upon until the conviction “resurrect[s]” original supplemen- filed Appellant subsequent conviction. 70 new trial for each of tal motions for (Tex.Crim.App.2002). suggested He asserted, original convictions. His motion the resurrection of the earlier part, in relevant that the trial court “has *6 yet supervision had occurred when jury misdirected the about the law” and community supervision filed his motion for likely “has committed material error to because, pretrial stage, at that he had not rights.” injure the defendant’s Attached case, yet anything been convicted of motion, original appellant to provided and, therefore, the motion was true at the counsel, in an affidavit from his trial filing. See moment of stated, part, in relevant that counsel she Tex.Code Crim. 4(e). Furthermore, ap- Proc. strategy jury punishment revised her from 4(e) pellant argued that under Section punishment to court based on the trial 42.12, eligibility Article for another com- ruling appellant ineligible court’s that was munity supervision would be determined jury. from the solely by jury, entity an not included in Trial counsel also stated in her affidavit 20(a)(l)’s requirement Section that a set- that, ruling because of the trial court’s aside conviction “shall be made known” to community the prior supervision, trial 20(a). id. judge. See testify counsel could not allow to appellant guilt in the of trial. phase Appellant also appeals disagreed ap- The court of supplemental filed a motion for new trial Yazdchi, pellant’s arguments. See 2012 separately challenged that the conviction 5381211, appellant’s at *7. On commu- WL grounds. on other The trial court denied claim, nity-supervision the court held that both without a hearing. motions correctly refused to allow the trial court Appeals’s Opinion The C. Court appellant to submit his sworn motion to (1) that, The appeal, parties jury. On Id. at *8. court noted disputed State, Smiley whether the trial court erred determin- in its decision in v. it ing appellant ineligible that was for com- “reasoned because set-aside con- munity ‘resurrected’ at the time supervision viction had been 20(a)(1), which the defendant could not provides punishment, for resur-
837 ly previously appellant ineligible been determined that he had not argue (citing Smiley plain *6 v. because Id. at convicted.” 20(a)(1) 690, language of Section in Article State, (Tex.App.- 42.12 to operated resurrect his earlier-dis- pet.)). no Dist.] Houston [1st charged supervision. We Smiley had court observed appellate agree. Applying principles statutory v. holding on this Cuellar relied Court’s to provision, construction we find that State, noted that a in which this Court plain meaning supports its the conclusion 20’s discharged conviction under Section “resurrected” clemency provision would be “re- judicial purpose probation ineligi- for the limited subsequent conviction. upon surrect[ed]” bility. 820). Cuellar, 70 S.W.3d at (citing Id. at *6
Additionally, the court held that adherence Applicable Examining A. Law for Smiley under stare deci- was warranted Legislative the Text of the Statute for because, given legislative sis that no Intent 20(a)’s to Section changes had been made Statutory construction is a provision in the decade since law, question of and we review the lower decided, may reasonably “we Smiley was interpretation court’s of a statute de novo. approved legislature infer that (Tex. State, Harris 359 S.W.3d Id. at *7. re- interpretation.” our With statute, Crim.App.2011). construing a claim, spect appellant’s impeachment we must “seek to effectuate the collective the court held that had failed to legislators intent or who that claim because he never ar- preserve (citations legislation.” enacted the Id. State gued to the trial court omitted). statutes, In interpreting pre we him permitted impeach should not be Legislature sume that the intended for the community-supervision with his earlier entire scheme to be effective. conviction, and he never obtained rul- Mahaffey v. *2. ing on that matter. Id. at (Tex.Crim.App.2012). look first to the *7 “ peti- on granted review text, statute’s literal and ‘we read words discretionary clarify tion for review to phrases and in context and construe them [wjhether correctly Appeals the Court of according grammar to the rules of and ” interpreted Proc. Art. Tex.Code Crim. Harris, (quot 359 629 usage.’ S.W.3d at [appellant] 42.12 20 to allow to be State, 680, v. 253 685 ing Lopez S.W.3d “ with ... his impeached prior completed (Tex.Crim.App.2008)). ‘pre We must him from probation prohibit filing and every in a statute has sume word sworn motion for and allow a been used for a and that each eligibility proba- to consider his for word, clause, phrase, and sentence should ” tion when prior plea was with- [his] given reasonably possible.’ effect if Id. drawn, dismissed, the indictment and 516, v. (quoting Hardy, State 963 S.W.2d penalties relieved of all and [himself] (Tex.Crim.App.1997)). 520 Words disabilities. phrases are construed under the rules of grammar usage they and common unless Statutory Analysis Eligibility II. particular technical or acquired have Community Subsequent Ruthart, meaning. parte Ex 980 S.W.2d Supervision 469, stat (Tex.Crim.App.1998). 472 When review, discretionary utory language unambiguous, In its brief on is clear and plain meaning unless give State contends that the trial court correct- we effect its 838 entered, duly modify amend or to absurd conse- shall lead
to do so would imposed, necessary, have if original could not sentence legislature that the quences v. 818 Boykin to conform to the possibly intended. (Tex.Crim.App.1991); see the defen- period S.W.2d and shall (Tex. Valdez, 401 S.W.3d parte Ex dant. to ex- We do not resort Crim.App.201B). 20(a). Tex.Code Crim. Proc. language unless the is factors tra-textual This has observed that a defendant Court meaning plain. it is not ambiguous, whose is terminated under this State, 391 Bryant felony, been convicted of a section has Ambiguity exists (Tex.Crim.App.2012). although may it not be a final conviction statutory language may be un-
when use an enhancement offense to ele- reasonably per- well-informed derstood in a future punishment range vate the senses; con- in two or more different sons Cuellar, proceeding. criminal it unambiguous is when versely, a statute Cuellar, stated, at 818. this Court reasonable understand- permits only one society “That person paid his debt ing. Id. and, effect, ‘graduates’ from Language B. The However, person has supervision. Plainly Requires Resurrection felony, though been convicted of a even Purpose of for the Limited Conviction and, prison pur- never went to for some Ineligibility Probation poses, it is not a ‘final’ conviction.” Id. advocating differing interpre- Although
tations, parties agree that resolution both in the second situation described solely plain depends of this case statutory language applies when a trial statute; in the neither contends language “judi- to exercise judge uses his discretion statutory language to this that the is Court clemency” terminating early cial a de- our re- ambiguous. independent Based on completed satisfactorily fendant who has statutory language, agree view of the we community supervi- the conditions of his parties plain with the at straight probation. sion on his See id. unnecessary that it to turn to extra- statutory language 819. Because the analysis. textual factors in our governs this second situation uses phrases “may per- set aside the verdict or Plainly 1. The Describes Statute mit the defendant to withdraw the defen- Three Situations plea” which the defendant dant’s and “of *8 The of Texas Code Criminal has been convicted or to which the defen- 42.12, 20(a), Article de- Procedure Section pleaded guilty,” previ- this dant has Court scribes three situations. The first situa- ously statutory whether this addressed a applies tion when trial court has a man- language applied to datory duty to a defendant who adju- straight probation, under a deferred successfully completed has the conditions dication, determined or both. This Court community supervision upon expira- the only. applied straight probation that it to supervision. tion of term Juvrud, 492, 493, State v. 187 S.W.3d See 20(a), states, in relevant part, see also Barela (Tex.Crim.App.2006); 495 (Tex.Crim. State, 145, 148
Upon
satisfactory
the
fulfillment of the
McNew v.
608
community supervision, App.2005) (citing
conditions of
166,172 (Tex.Crim.App.1978)(orig-
expiration
period
and the
of com- S.W.2d
Proo. art.
munity supervision,
judge, by
op.));
the
order
inal
Tex.Code Crim.
crystal
There is no
2(2),
clemency provi-
are
clear.
doubt as to
judicial
§§
4. The
therefore,
meaning.”
(citing Boykin,
Id.
sion,
to offenses for
their
applies
785).
has been convicted
at
a defendant
S.W.2d
which
straight probation.
a
through
by
The third situation described
provides
exception
Section 20
a limited
portion
the
of the statute
Under
the second situation when a defendant is
permit
the second situation
that describes
again convicted of another offense. That
clemency,
pro
the statute
ting judicial
states,
portion
“[Efccept
of the statute
vides,
(1) proof
that:
of the conviction or
judge may set aside the verdict or
[T]he
shall be made known
the
withdraw the
the defendant to
permit
the
again
should
defendant
convicted of
the
plea,
defendant’s
and shall dismiss
any criminal
offense[.]”
accusation,
information or in-
Tex.Code
Crim.
complaint,
20(a)(1).
Cuellar,
art.
defendant, who
Proc.
against
dictment
the
explained
meaning
this Court
the
of that
be released from all
shall
thereafter
that “if
language, noting
the dis
resulting
and disabilities
penalties
charged person
subsequently
convicted
the defen-
the offense or crime of which
offense,
previously
of another criminal
to which the
dant has been convicted or
felony
dismissed ‘former’
conviction will
pleaded guilty[.]
defendant has
resurrect
itself and be made known to the
20(a).
42.12, §
Proc. art.
Tex.Code
Crim.
Cuellar,
judge.”
trial
firearm 46.04(a). holding in § Cuellar Code Although may a defendant have received with this Court’s decision was consistent judicial clemency under the second situa- implicat- which also a case Walker tion, the third situation nullifies deter- situation and not the only the second ed “except.” mination its use of word See 645 S.W.2d 295 third situation. Heritage College Dictio- See American (en banc) (holding (Tex.Crim.App.1983) ed.2000) nary (3d defined, as (“except” judicial- Walker received that because or preposition, “with the exclusion of’ discharge, he had no con- clemency than”; “un- conjunction, “otherwise as improperly determined to viction and English Dictionary less”); see also Oxford prospective juror). “unqualified” as (1st ed.1971) (“ex- Compact Edition question of law in and But the Cuellar that,” cept,” part “except used as is “a not, here, whether the third Walker was as predicative expressing clause a fact that when a defendant is situation that occurs exception forms an to the statement again effectively convicted of an offense made”). plain language, Under the judicial clemency that had oc- undoes applies “except” second situation when the in the second situation for the limit- curred third occurs. situation probation ineligibility. purpose ed id.; Cuellar, 70 at 817. Because S.W.3d Analysis b. of the Phrase directly analyzed has never this Court “Again Be Convicted” section, meaning precise statutory of this The third situation occurs when a defen- question implica- we will address the of the ... “again any dant is convicted of crimi- tions of the resurrection of the conviction art. nal offense.” Tex.Code Crim. Proc. com- discharged straight-probation 20(a)(1). above, ju- As noted munity supervision a matter of first clemency dicial awarded in the second situ- impression. applied ation to an offense for which a defendant had been convicted under a Analysis Language of Plain in the By straight probation. using the word Third Situation in the situation “convicted” second proceed “again to examine Section 20’s stat- term be convicted” the third situation, utory language describing clearly applies the third situa- the statute to a (1) tion, states, “[Ejxcept that: defendant who is convicted of an offense proof plea guilty of the or un- placed straight probation, entirely shall be made known to the der a then re- should again any through judicial clemency, the defendant be convicted of leased from it criminal and then has his conviction reinstat- offense[.]” Tex.Code Crim. Proc. 20(a)(1). art. ed for the Examining stat- limited utory language supervision ineligibility in the third situation re- when he is convict- Id.; Cuellar, quires meaning that we consider the ed of another offense. Otherwise, “except” phrase at 820. phrases word and the “should the again “again meaning- be convicted of crimi- be convicted” would be “proof nal offense” and of the conviction or less. See Tex.Code Crim. Proc. 20(a)(1). judicial clemency If the were shall be made known to the judge.” wipe away Id. to forever the defendant’s con- We consider each these stat- *10 conviction, utory subsequent in turn viction even after a phrases below. statutory merely scheme rather than the discrete then the appellant suggests, as issue)). provision at We cannot conclude merely have used the word language would Legislature irrationally that acted or “again than be convict- “convicted” rather ambiguously by choosing to draft a statu- ed,” that the defendant has signifies tory through applicable scheme several See id. been convicted twice.
sections contained within an article rather through single than a section. Analysis Meaning of “Made c. Judge”
Known to Texas, may a defendant obtain straight-probation community supervision phrase “proof of the conviction or judge jury. from either a or a See Tex. should be made known to the 37.07, 2(b); 42.12, § Code CRIM.Proc. arts. discretely judge” plain is also when viewed George 3(a), 4(a), 4(e); §§ 43A E. Dix & the context of the and when viewed within Schmolesky, John M. Texas Practice Ser- supervision statutory community entire ies: Criminal Practice and Procedure scheme. See id. (3d ed.2013). § 47:5 restrict our anal- 20(a)(l)’s discrete statu ysis language to whether the statute’s is tory language expressly requires that the plain under in which circumstances a de- to the judge, conviction be made known jury.3 fendant is to be sentenced If particularly but it does not more describe a defendant sentencing by jury, seeks it or who should make known to the here, as provision requires that that when this should occur. The “should be prior conviction be made known to the however, language, plain known” made necessarily would have to come into it that definitively requires the trial play point at the at which he files his court be informed of the defendant’s earli jury-recommended motion to seek commu- straight-probation er conviction. The lack nity supervision. See Tex.Code Crim. Proc. the who the when specificity as to 4(e). For a defendant to be ambiguous does make this permitted have jury placing a consider because another section of Article 42.12 him community supervision, on he must requirements, describes and we must these pretrial first file a motion with the court statutory consider the entire scheme in stating that he has never before been con- resolving of a properly questions felony. statute’s victed of a arts. See id. 4(e). 2(b); 42.12, 42.12, 4(e), § § § intent. legislative Mahaffey, Article provides, (citing Murray S.W.3d at 913 874, 879, (Tex.Crim.App.2009) eligible community A defendant
(holding statutory construction of a if supervision only under this section plain language statute’s involves review of the trial begins before the defendant provisions other within a holistic files a written motion sworn sentencing by judge, If a defendant seeks a does not describe who should inform the provision requiring in- court be prior aof defendant's conviction dis- formed of his conviction would come charged community supervision or when play into as the trial court decided whether to §§ that should occur. See id. art. again grant him after be, 15(a)(1). 3g; may §id. It there- see also subsequent convicted offense. See fore, sentencing by judge, 37.07, 2(b); 42.12, arts. Tex Code Crim. Proc. ambiguous. statute is We need not reach that 3(a) grant (allowing judge question appellant sought here because sen- conviction”). supervision "after That section tencing by and we restrict our statu- pertains judge’s to a assessment of tory analysis to that situation. straight-probation *11 842 a rea- previ- unpersuaded appellant presents defendant has not that the
judge by in this of a of this statute ously interpretation been convicted sonable state, jury that, and the enters point other at the that he filed his asserting or that the informa- finding a in the verdict community supervision, for he was motion motion is true. defendant’s and, therefore, tion the yet felon not a convicted be untrue could file the motion that would 4(e). provision plain- This Id. art. jury at that the would be called point the regard with to question the ly answers upon to assess his sentence. information about the provide who should of sentenc- in the case prior the conviction Furthermore, appellant’s sugges the jury by clearly identifying ing by the the judge plays tion that a no role when who should file person defendant as the jury entity deciding the whether a de is id. Fur- the sworn motion. See written community supervision receives fendant thermore, sentencing by for provision community-supervi misunderstands the jury question answers the plainly the by Legislature. forth sion scheme set information must be regard to when the reject a judge A is authorized to motion the motion provided by specifying community supervision filed an ine for begins. filed before the trial See must be State, Cherry defendant. See v. 502 ligible id. 9, 12 see (Tex.Crim.App.1973); it is true that a appellant argues, As State, Thompson v. 604 S.W.2d also for defendant must file this sworn motion trial (Tex.Crim.App.1980) (reversing jury-recommended to file court’s refusal defendant’s again any- convicted of before he has been It is the application ineligibility). due to motion, however, filed under thing; the judge who determines whether defen essentially presumption what is that the legally eligible dant is to be considered for defendant will be found and that the community supervision by jury. upon will then called to sentence jury State, v. Palasota requirement him. The that this motion be (where (Tex.Crim.App.1970) proof no after then, pretrial, practical pur- filed serves a filing of sworn motion showed that defen pose permitting judge parties “the court eligible probation, dant was jury feelings voir dire the about their re- not, did, should as it have submitted if garding punishment, is irrelevant probation”); issue of sentencing a Walker will be defendant. claims, 43A Contrary (Tex.Crim.App.1969); it would be S.W.2d George irrational to conclude that a defendant M. Schmolesky, E. Dix & John does not have to make his Series: Practice Texas Practice Criminal theory (3d ed.2013) known to the under the (opin 47:16 Procedure yet he had not been convicted of the of- ing requirements while of sworn mo trial when fense for which he is on “proof’ independent, tion and are “[i]f necessarily would have been convicted of the defendant has evidence is clear jury that offense the time assesses felony, been convicted of a then previously 2(b); 37.07, § punishment. See id. arts. law determines as a matter of 4(e). point filing The whole eligible for com that the defendant is motion whether a pretrial determine and refuses to submit munity supervision eligible community super- defendant is jury”). to the the issue jury assumption vision from a that he Appellant contends sentencing will be him after We, therefore, motion for eligible pretrial him are was to file a finding guilty. Id.
843
felony
‘wipe
conviction and “did not
community supervision
jury-recommended
because,
probation eligibility”
clean’ as far as
of Section
slate
jury). Similarly,
ar-
20(a),
discharge
order consti-
from the
his set-aside
discharge
that a set-aside
order is
gument
of the accused”
“an exoneration
tuted
pardon
to an executive
is una-
equivalent
“never found
being
equivalent
eligibil-
for
interpretation
vailing
purposes
determining
this
place.”
first
But
ity
community supervision
the lan-
for
without an
to take into consideration
fails
scheme,
determination that a
statutory
express
person
of the entire
has
guage
20(a),
been exonerated of
offense. See Wat-
provides
that under Section
(Tex.
State,
339,
discharge is
kins v.
572 S.W.2d
343
judicial-clemency
an earlier
pur- Crim.App.1978) (holding as a matter of law
as a conviction for the limited
treated
ineligible
that defendant was
for
probation ineligibility upon
subse-
pose
presidential pardon
offense. See
because
did not elimi-
conviction of another
quent
20(a)(1).
conviction);
prior felony
his
Smiley,
nate
Tex.Code
Proc.
Crim.
Furthermore,
decided,
(holding
129
at 695
ineli-
this Court has
S.W.3d
contexts,
gible
community supervision
a conviction set aside
for
from the
other
that
judicial-clemency
an
discharge
equate
jury
discharge
in a
order does not
based on
20);
State,
Samaniego
as if the defendant had never
under Section
v.
exoneration
State,
762,
1983,
Taylor
(Tex.App.-Austin
found
v.
647 S.W.2d
764
guilty.
been
566,
(Tex.Crim.App.1981)
571
pet.) (holding
discharge
612 S.W.2d
no
set-aside
order
20(a)’s
(holding
probationer
statutory predeces-
that
re-
under Section
(panel op.)
rights by discharge
preclude
underlying
to his civil
or-
sor did not
use of
stored
setting
probation eligibility
der from another state
aside that
conviction to bar
after
conviction).4
subsequent
verdict and conviction counted as a final
argues
munity
Appellant
supervision
jury
also
that "courts have held
from a
because the
plain language
purport
that the
of Article
20
order did not
to exonerate him from
fact,”
339,
meaning
finding
guilt.
no
but none of the cases
572 S.W.2d
Furthermore,
argument.
supports
(Tex.Crim.App.1978).
In Bak-
341-42
that
cites
State,
State,
appellant
Taylor
er v.
this Court held that a
could
cites to
v.
which held
"pardons,
express finding
find in its verdict that the defendant has never
absent an
on
subsequent proof
of a
when the
their face of
before been convicted
Watkins’
innocence,
'wipe
record showed that Baker’s two convictions
did not
the slate clean' as far
566,
aggravated robbery
appeal
probation eligibility.”
were
at
612
for
on
and, therefore,
(Tex.Crim.App.1981) (panel op.).
time of the trial
were not final
570-71
McDowell,
782,
(Tex.Crim.
Watkins,
Taylor,
convictions. 520 S.W.2d
Similar
and
Here,
App.1975).
suggestion
discharge
there is no
has not shown that the
appellant’s prior
express finding
order here included an
finality
appeal.
Appellant
it
In
lacked
because was on
exoneration. See id.
also cites Sa-
State,
State,
maniego
holding
McDowell v.
the Texarkana Court of
a case with the same
Appeals
ineligible
today.
held that McDowell was
that this Court reaches
647 S.W.2d
1983,
jury-recommended community supervision
(Tex.App.-Austin
pet.).
no
case,
discharge
Samaniego
because the
from her
the court held that
supervision
express
ineligible
jury-recommended community
did not include "an
find-
though
ing by
community-su-
the trial court that the defendant was
even
previous
finding
pervision
exonerated from the
termination order
stated
guilt.”
(Tex.App.-Texar-
against Samaniego
indictment
was dismissed
pet.). Additionally, appellant
penalties
kana
that he
no
was released of all
that,
resulting
cites to Watkins v.
which held
disabilities
from the crime or offense
assuming
that the set-aside
order at
of which he had been convicted.
Id. The
conviction,
pardon
rejected Samaniego’s argument
issue was
full
from his
it
court
precluded
seeking
finality and
treat-
nonetheless
him from
com-
conviction lacked
should be
specific objection
ing party
under the entire
must make
hold
governing regular
objection.
com
ruling
scheme
and obtain a
Wil-
*13
(Tex.Crim.
statutory language
346,
munity supervision,
State, 71
349
son v.
S.W.3d
appellant
in
was
plain
providing
addition,
is
party
a
must
App.2002).
communi
ineligible
jury-recommended
for
possible
complaint
make the
at the earliest
because,
though
even
he
ty supervision
ap-
opportunity,
point
and the
of error on
clemency on an earlier
judicial
received
peal
comport
objection
must
with the
made
that conviction
community supervision,
object
may
trial.
Id. Failure to
at trial
at
the limited
of
was resurrected for
v.
waive even constitutional errors. Fuller
when he was convict
ineligibility
probation
220,
State,
(Tex.Crim.App.
253
232
S.W.3d
therefore,
We,
offense.
present
ed of the
Tex.R.App.
2008)
33.1);
(citing
P.
Saldano
appeals
of the court of
judgment
affirm the
(Tex.Crim.
State,
873,
v.
70 S.W.3d
889-90
of error with
overruling appellant’s point
(equal protection claim related
App.2002)
respect to this issue.
admissibility
by
to
of evidence waived
non-
State,
objection); Broxton v.
909 S.W.2d
Appellant
III.
Failed to Preserve His
(waiver
912,
(Tex.Crim.App.1995)
918
Impeachment
Appeal
Issue on
due-process rights
federal constitutional
Appellant contends that
court
trial).
by non-objection at
occurred
that he
appeals
holding
erred
did not
that,
that,
a result of
at the
preserve
complaint
pre-
his
as
The record here shows
ruling
prior
court’s
that his
con
hearing
happened
trial
trial
to record what
dur-
subsequent
viction was resurrected
his
in
ing
colloquy
an off-record
on the motion
case,
deprived
in
was
limine,
ruling
the trial
recounted her
opportunity
testify
guilt stage
to
at the
that,
is,
“I think the
question
could
Citing
Supreme
of his trial.
to
Court
defendant swear to a motion that he has
States,
in Luce v.
469
precedent
United
never
a
in
before been convicted of
38, 42,
460,
U.S.
105 S.Ct.
For com review, ruling testify not to at the plaint appellate complain caused therefore, adjudication supports appellant's argument. "hybrid pro ed deferred See as Nothing ceeding.” Samaniego, at Id. id. WOMACK, J., the introduction of concurred. stage prevent guilt impeach- prior straight probation JOHNSON, J., dissenting filed a Because it was made for ment evidence. opinion. argument post-trial, the first time JOHNSON, J., dissenting filed a the trial court. timely presented to opinion. Hollins v. (“In con- (Tex.Crim.App.1991) order to be agree I do not be made timely, objection an must 20(a) sidered unambiguous. Article As *14 ground objection as the of becomes statutes, as soon many the covers a circumstances, should the defense knows or apparent [or] number of some of which occurred.”); others, compatible that an error has are with the some not. know Tex. R.App. 33.1(a).5 emphasis All is mine. P. We hold that the court appeals properly of determined that the Sec. REDUCTION OR TERMI- no “decision” or “rul- trial court rendered NATION OF COMMUNITY SUPERVI- therefore, and that failed to ing” appellant, SION. preserve the issue for consideration (a) anyAt time after the defendant has Fuller, 253 at 233. S.W.3d appeal. satisfactorily the completed one-third of
original community supervision period years community or two of supervision, Conclusion IY. less, whichever the of period commu- appeals prop- hold the court of nity supervision may reduced or ter- (1) erly appellant determined that was not judge. minated the community supervision from eligible for part unambig- This of the text is clear and conviction in this case the because his uous. earlier conviction for the limit- revived his On of completion original of one-half the even probation ineligibility, ed of community supervision period or two ter- though his earlier conviction had been years community which- supervision, by discharge permit- minated a order that more, judge ever is the shall review the guilty, him his ted to withdraw whether defendant’s record and consider indictment, the and set aside the dismissed period to reduce or terminate the (2) verdict, preserve and did not community supervision, unless the de- complaint impermissible his that it is delinquent paying required fendant is impeach testimony prior proba- with a restitution, fines, costs, or fees that discharged through judicial tion that was ability pay defendant has the or the clemency. judgment The court completed defendant has not court-or- appeals is affirmed. counseling dered or treatment. reducing terminating period Before or a PRICE, J., concurring opinion. conducting filed a or supervision impeachment 5. We note to be E. Dix & John M. used Schmolesky, Texas Practice evidence, final, ordi- a conviction must be and Criminal Practice Procedure Series: (3d 2013) ("[I]f narily successfully completed community 39:14 ed. the defendant may successfully impeach not be used to served a term of offense, 609(c); parte upon an and the trial defendant. See Tex.R. Evid. Ex conviction of conviction, Menchaca, (Tex.Crim. court set aside the it cannot be testimony in App.1993); impeach used to the defendant’s Ransonnette case.”). George (Tex.Crim.App.1975); 510-11 a later section, discharge super- After a review under 20(a), attorney representing part vision under this of Section notify the shall or, if the the defendant the verdict and allow judge may the state and set aside attorney, the defen- has an plea. defendant to withdraw his attorney. in- charging dant’s then dismiss the judge shall op- strument. This creates two obvious that the defen- If determines discharge and dismissal of the satisfactorily fulfill the tions: failed to dant has or and dis- community supervision, charging instrument conditions of charging plus the defendant writ- missal of the instrument judge shall advise satisfactorily setting aside of the verdict and the defen- ing requirements those conditions. creates a third fulfilling plea. dant’s But it also chronological sequence, option: read unambiguous, This is also clear part defendant, discharges the chooses to the extent to which although I do not know plea, set aside the verdict and the and then component is com- mandatory-review *15 charging must dismiss the instrument. with, likely I think it more plied and option, applies, the third “shall dismiss” requirements notice of the for satisfac- the community all from su- discharges not to probation will come from a tory completion pervision, only but to those in which the judge. from the officer than judge chose to set aside the verdict satisfactory the fulfillment of the Upon plea. judge And how can a dismiss a community supervision, of conditions leave the verdict charging instrument and period of the of com- expiration and the except intact? that: munity supervision, judge, by the order entered, modify the duly shall amend or (1) proof of the conviction or of necessary, if original imposed, sentence judge shall be made known to the community supervision to conform to the again should the be convicted defendant discharge the defen- period and shall offense; any criminal dant. (2).... murky language begins get here. purpose previous For what the offense is the same as “termination” “expiration” Is to be made known? Who shall make it not, If probation- and “reduction”? does a judge? known to the When shall it be er whose term ques- made known? The last is the easiest has been reduced have to wait until the tion to answer: when the defendant is original expired judge term has before the again any convicted of criminal offense. him? shall community supervi- that a Requiring prior If the judge discharges the defendant to made the if sion is be known to section, judge may under this the set again the defendant is convicted indicates permit the verdict or the defen- aside legislature prior that the intended that the plea, dant to withdraw the defendant’s only punish- is to be considered offense accusation, and shall dismiss the com- ment. plaint, against information or indictment defendant, suggested
the who shall thereafter be It has been the defen- known to penalties released from all and disabili- dant must make offense trial, before based on the re- resulting ties from the offense or crime quirement jury-recom- has been convict- that a motion for defendant must plead- community supervision ed or to which the mended if the ed filed before trial. But what defen- guilty,.... judge? governing regular supervision, He sentencing by the dant elects motion, ineligible jury-rec- ... was to file a so who required not is known to the ommended be- previous offense makes cause, though judicial even received if the defendant does judge? What clemency community supervi- on an earlier previous makes the probation? Who seek sion, that conviction was resurrected judge? Clearly, [at offense known to for the limited least] office knows of the community-supervision and, therefore, ineligibility when he was convicted of the it previous present offense.”1 But I do not believe entity makes the seems to be the that this conclusion derives to extent judge, previous conviction known to the literal tell if that Article but the statute does not us 20(a)(1) “made Section Code of Criminal the intended source. And does contrary, To the per- Procedure.2 at least with judge” require known to the or even respect particular to the questions at issue previous mit the offense to be made known 20(a)(1) case, manifestly in this persons, to other such as witnesses and ambiguous. Because I would resolve that jurors? statutory ambiguity way manifest in a Lastly, “again weighs convicted” toward comes to the same conclusion that concluding purpose making today reaches for essentially Court —and known to previous offense the same reasons the Court finds the relevant information providing sentencing *16 20(a)(1) meaning “plain”— Section to be punishment. in I concur the result. Further, that, upon the statute states The extent to which statutory language discharge, the defendant “shall thereafter may plain be ambiguous on its face or is penalties released from all and disabili- be a function of the question sometimes crime of resulting ties offense or A brought given statutory is bear. convicted or defendant been will provision clearly sometimes answer pleaded to which the defendant has question but remain hopelessly one insolu- ” guilty,.... If the conviction is “resur- Take, respect to another. ble for ex- rected,” does it also then become final and ample, provision at issue here: penalties “resurrect” all and disabilities? judge discharges If the the defendant if, previous What under one of the versions section, may judge under this set law, the defendant’s conviction was permit aside the verdict or the defen- it still expunged? Can be “resurrected” plea, dant to withdraw the defendant’s judge”? and “made known to the accusation, and shall com- dismiss many questions, Too too few answers. I plaint, against information or indictment dissent. respectfully defendant, who shall thereafter be penalties released from all and disabili- PRICE, J., a concurring opinion. filed resulting ties from the offense or crime which the defendant has convict- been essentially For the reasons the Court plead- ed or to which the defendant has -statutory I would construe the gives, guilty, except ed that: as a whole to affirm the court of scheme (1) I appeals’s judgment agree proof this case. of the conviction or statutory “under the entire scheme shall be made known to the Majority Opinion 20(a)(1). 1. at 2. Tex.Code Crim. Proc. art. 20(a)(1) not ad- expressly convicted Section does again be the defendant should resolve, dress, questions. offensef.]3 criminal much less these from this plain perfectly What is question the first of who respect to With that: provision is judge, inform the the statute is mad- must (cid:127) discharges who a defendant a simply mandating that deningly passive, provisions in Section under earlier discharged conviction “be made known (“may”) to set aside the permitted judge[,]” identifying to the without mech- permit or the defendant earlier verdict Perhaps passiv- it in view of this anism. and, if he should plea, to withdraw ques- answers the first ity that the Court so, he discretion to do exercise his provision tion reference to a different (“shall”) pleading;4 must dismiss 4(e).7 4(e) 42.12—Section Section Article (cid:127) re- “shall thereafter be the defendant seeking regular com- requires a defendant penalties all and disabili- leased from munity supervision from a to file on ac- ties” he would otherwise suffer fact that he attesting sworn motion to the conviction;5 discharged count of the previously has not been convicted of a (cid:127) if the defendant should “except that” felony.8 may It indeed make sense of a criminal of “again be convicted” point provision to this as a sure indicator fense, the earlier conviction “proof of’ responsible of who should be to inform the the defendant has otherwise for which prior discharged of a conviction un- known discharged been “shall made 20(a). of Section exception der the clause judge[.]”6 to the only But it makes sense to do so if at least questions plainly at least two an- But legislative purpose behind the part of 20(a)(1) are: swered statutory exception is to “resurrect” the (cid:127) prior discharged make the who shall an discharged conviction order to render the trial judge;
conviction known to
again-convicted
ineligible
*17
jury-imposed
supervision.9
(cid:127)
purpose
prior
and for what
the
dis-
Thus,
an answer to the
the Court derives
conviction shall be made
charged
20(a)(1)
not
judge.
question
known to the trial
Section
does
first
That much
indeed
3.
Id.
defendant from them.
quite plain.
say,
4. That is to
if he exercises his discretion
perfectly plain,
The statute does not make
6.
permit
to
the verdict or
the defen-
set aside
however, any particular
"proof”
form that
judge
plea, the
must
dant to withdraw his
may
take.
the "earlier conviction”
or must
provision
pleading.
the
then dismiss
plainly
may
It
means at least this much.
also
Majority Opinion
7.
at 841-42.
judge
pleading
mandate the
to dismiss the
42.12, 4(e).
8. Tex.Code Crim. Proc
not he has exercised his discretion
whether or
permit
the verdict or
the defen-
to set aside
9.
In Cuellar v.
plea.
dant to withdraw his
This does not
that,
(Tex.Crim.App.2002), we observed
me;
preferred reading
like the
to
I
seem
20(a)(1),
discharged person
"if the
Section
ambiguity.
simply
point
mean here to
the
out
subsequently convicted of another criminal
offense,
previously
the
dismissed 'former' fel-
suggest
phrase
5.
I do not mean to
ony
will resurrect
itself and
conviction
be
necessarily
"penalties and disabilities” is
judge.”
trial
But
did
made known to the
we
ambiguity,
only
say
without its own
but
to
scope
purport
say what the
of the
to
be,
"penalties
might
and disabili-
whatever those
either as a function
"resurrection”
20(a)
be,
may
the
must "release” the
of Section
or otherwise.
ties”
(who
mandating
it “be
purpose
must
inform the
ture’s
answer
clearly
judge”
known to the
that the defen-
an answer to the made
by presupposing
judge?)
(albeit
20(a)(1)
prior
discharged)
not dant had a
convic-
does
question
second
so,
being
simply
That
it is
unclear to
be
tion.
(why must
clearly answer
informed?).
they speak plainly to the first
me how
If
question
question
who
—the
—either.
question—
second
respect
to the
With
statutory
as a whole fails to
scheme
discharged
making the
purpose
purpose
indicate that the
of mak-
plainly
judge”
to the
“known
—the
to
ing
discharged
conviction “known
interpreta-
limit its
today does not
Court
judge”
prohibit
is so that he can
in Section
“exception”
clause
tion of
seeking community super-
defendant
20(a)(1)
analysis
language
an
of the
I
jury,
vision from a
then
fail to under-
Instead,
alone.
particular provision
4(e)
operate
how Section
can
stand
language
“the
reasons that
the Court
that it is the
plainly designate
statutory
provides
scheme ...
the entire
discharged
who must make the fact of his
20(a),
judi-
an earlier
that under Section
judge.
conviction known to the
a con-
cial-clemency discharge is treated as
agree
likely pur-
I do
that at least one
viction for the limited
subsequent
pose
Legislature
conviction of
had
mind
ineligibility upon
prior discharged
I
when it mandated that a
presume
another offense.”10
known to the
judge”
entire
scheme” the Court
conviction be “made
“the
of Article
that he could make a decision with
provisions
means those other
was so
(such
4(e))
respect
that informed
to whether the defendant was eli-
42.12
as Section
jury-imposed community supervi-
ques- gible
of the first unanswered
its discussion
judge.11
But
sion.12 But this conclusion neither derives
tion of who must inform
“plain” language
from the
of Section
provisions plainly speaks
of those
none
20(a)(1) itself,
it seem to me to
question why
is to
nor does
the second
derive from the
provisions,
“plainly”
informed. None of those
words, necessarily
provisions
the ambi- other
that the Court consults.
other
resolves
20(a)(l)’s
say
even suggest
in Section
ex- The Court should not
or
guity that resides
respect
Legisla-
to the
otherwise.13
ception clause with
Legislature
Majority Opinion
contemplated
at
that its use should
842-44.
*18
42.12,
it
in Article
not be circumscribed as
(citing
11. Id. at 841-42
Crim. Proc.
Tex.Code
5(c)(1).
42.12,
2(b),
4(e)).
§
arts.
principle
13. We have said that "the cardinal
context,
Legislature
12.
In another
statutory
is to effectuate the
construction
prior
made
of a
deferred
the consideration
State,
legislative
Ivey
intent.”
v.
277 S.W.3d
discharged,
adjudication,
though it is later
(Tex.Crim.App.2009). We
52 n. 51
use
specifically
relevant
to the fact-finder’s deter-
ordinary
canons of
construction as a
penalty” in the
mination "on the issue of
determining
whether the literal lan-
tool
subsequently
event that the
con-
produces
plain
guage of a statute in fact
victed of another offense. Tex.Code
Crim.
meaning. Boykin v.
Thus,
5(c)(1).
Legisla-
Proc. 1991).
(Tex.Crim.App.
we have
But once
specifically
knows how to
limit the fact-
ture
meaning
declared the
of a statute to be
prior prosecutions
finder’s
consideration
face,
legisla-
"plain”
indicia
on its
all other
ultimately
in subse-
result
intent,
20(a)(1)
including extra-textual consider-
tive
quent prosecutions. That Section
statutory history,
rendered
ations such as
are
imposes
on the reason a
no limitations
Ivey,
Court’s FRANCIS, Appellant
Tracy Blaine Texas.
The STATE of
No. PD-0519-13. Appeals of Texas.
Court of Criminal
April *19 plainly prematurely potentially (perhaps is not forecloses such ens to cut us off from critically) legisla- truly informative considerations. When a statute is am- even source biguous, "plain” call it threat- tive intent. to nevertheless