Case Information
*0 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 11/20/2015 11:16:43 AM DORIAN E. RAMIREZ Clerk *1 ACCEPTED 13-15-00367-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 11/20/2015 11:16:43 AM Dorian E. Ramirez CLERK Cause No. 13-15-00367-CR IN THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT AT CORPUS CHRISTI-EDINBURG, TEXAS ----------------------------------------------------------------------------------------------------
THE STATE OF TEXAS, APPELLANT v.
FELICIANO VILLARREAL PEREZ, APPELLEE ----------------------------------------------------------------------------------------------------
APPEAL OF JUDGMENT IN CAUSE NO. CR-0093-91-B FROM THE 93RD JUDICIAL DISTRICT COURT OF HIDALGO COUNTY, TEXAS THE HONORABLE JUDGE RODOLFO “RUBY” DELGADO, PRESIDING ----------------------------------------------------------------------------------------------------
BRIEF OF THE STATE OF TEXAS/APPELLANT ----------------------------------------------------------------------------------------------------
RICARDO RODRIGUEZ, JR. Criminal District Attorney Hidalgo County, Texas MICHAEL W. MORRIS, ASSISTANT Criminal District Attorney Hidalgo County, Texas HIDALGO COUNTY COURTHOUSE Edinburg, TX 78539 Telephone #: (956) 318-2300, ext. 8134 Facsimile #: (956) 380-0407 Michael.Morris@da.co.hidalgo.tx.us State Bar No. 24076880 ATTORNEYS FOR APPELLEE ORAL ARGUMENT WAIVED
IDENTIFICATION OF PARTIES AND COUNSEL APPELLANT certifies that the following is a complete list of the parties, attorneys, and all other interested persons regarding this matter:
APPELLANT in this case is the STATE OF TEXAS.
APPELLANT was represented in the trial court and now this appeal by RICARDO RODRIGUEZ JR., Criminal District Attorney in and for Hidalgo
County, Texas, 100 N. Closner, 3 rd floor, Edinburg TX 78539, by his Assistant
Criminal District Attorney LUIS A. GONZALEZ.
APPELLEE is Ramon Escalante Jimenez, represented in the trial court and now this appeal by and through his attorney, Juan Alvarez, 112 S. 12 th Ave,
Edinburg, TX 78539.
ii *3 NOTES AS TO THE FORM OF CITATION A.) Citation to the Clerk’s Record will be to page number, e.g . CR 47 refers to
Page 47 of the Clerk’s Record.
B.) Citation to testimony in the Reporter’s Record will be to volume and page
numbers, e.g. ‘3 RR 56’ refers to page 56 of volume 3 of the Reporter’s Record.
iii *4 NOTE AS TO ORAL ARGUMENT The State of Texas respectfully submits that oral argument in the instant case would not serve to enlighten the Court further or illuminate the issues in that,
because the facts and legal arguments are adequately presented in the briefs and
record, the decisional process of the Court would not be significantly aided by oral
argument. The State of Texas, therefore, respectfully submits that oral argument in
this case is not necessary, and therefore waives oral argument.
Nonetheless, the State of Texas reserves the right to present oral argument should the Court grant oral argument.
iv
TABLE OF CONTENTS
Title Page .................................................................................................................... i
Identification of Parties and Counsel ........................................................................ ii
Note as to the Form of Citation ................................................................................ iii
Note as to Oral Argument ......................................................................................... iv
Table of Contents ....................................................................................................... v
Index of Authorities .................................................................................................. vi
Statement of the Case .............................................................................................. vii
Issues Presented ..................................................................................................... viii
Statement of Facts ..................................................................................................... ix
Summary of Argument ............................................................................................. xi
Argument and Authorities .......................................................................................... 1
Issue One: Because it lacked jurisdiction, the trial co9urt’s order granting Appellee’s motion for judicial clemency was void ................................................................................. 1 Conclusion ................................................................................................................. 7
Prayer ......................................................................................................................... 7
Certificate of Compliance .......................................................................................... 8
Certificate of Service ................................................................................................. 8
v *6 INDEX OF AUTHORITIES Texas Court of Criminal Appeals Cases
Cuellar v. State , 70 S.W.3d 815, 818 (Tex. Crim. App. 2002) ............................. 2, 3
Ex parte Armstrong , 8 S.W.2d 674, 675-76 (Tex. Crim. App. 1928) ....................... 1
Garcia v. Dial , 596 S.W.2d 524, 527 (Tex. Crim. App. 1980) ............................. 1, 2
Marin v. State , 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) ................................. 2
Nix v. State , 65 S.W.3d 664, 668 (Tex. Crim. App. 2001) ........................................ 1
State v. Johnson , 821 S.W.2d 609, 612 (Tex. Crim. App. 1991) .............................. 1
State v. Juvrud , 187 S.W.3d 492, 494 (Tex. Crim. App. 2006) ........................ 3 fn 4
State v. Patrick , 86 S.W.3d 592 (Tex. Crim. App. 2002) .......................................... 5
Yazdchi v. State , 428 S.W.3d 831, 839 (Tex. Crim. App. 2014) ....................... 3 fn 4
Texas Courts of Appeals Cases
State v. Fielder , 376 S.W.3d 784 (Tex. App.—Waco 2011, no pet.) .................... 4, 6
State v. Shelton , 396 S.W.3d 614 (Tex. App.—Amarillo 2012, no pet.) .......... 4, 5, 6
Statutes and Constitutional Provisions
T EX . C ODE . C RIM . P ROC . A NN . art. 42.12, § 20(a) (Vernon 2015) ....................... 2, 3
vi *7 STATEMENT OF THE CASE Appellee was charged by indictment in cause number CR-1276-01-I for one count of possession of cocaine in the amount of less than one gram. (CR 9).
On January 29, 2002, Appellee pled guilty to Count One. (CR 10-12). On January 28, 2006, Appellee was discharged from community supervision by operation of law. [1]
On July 28, 2015, the trial court granted Appellee’s motion for judicial clemency. (CR 29).
On August 6, 2015, the State of Texas timely filed its Notice of Appeal and is now before this Court by way of a single point of error. (CR 30-33).
*8 ISSUE PRESENTED
Issue One:
Because it lacked jurisdiction, the trial court’s order granting Appellee’s motion
for judicial clemency is void.
viii *9 STATEMENT OF FACTS Appellee was charged by indictment in cause number CR-1276-01-I for one count of delivery of marijuana in the amount of more than 50 pounds but less than
200 pounds. (CR 3).
On October 9, 2003, Appellee pled guilty to a lesser included offense of possession of marijuana (Class A Misdemeanor). (CR 18-23). The trial court
imposed upon Appellee a sentence of confinement in the Hidalgo County Adult
Detention Center (County Jail) for a term of 364 days with a fine of $2,000.00.
(CR 14). However, the trial court suspended the sentence and placed Appellee on
community supervision for a term of one (1) year with a fine of $2000.00. (CR
18). On November 2, 2006, the trial court entered an order was discharging
Appellee from community supervision. (CR 22-23).
On June 30, 2015, Appellee filed a motion for judicial clemency, requesting that the indictment in his case be dismissed and his conviction set aside based on
Cuellar v. State [2] . (CR 25-29). A short hearing was held by the trial court on
Appellee’s motion for judicial clemency on July 9, 2015.
*10 After the hearing [3] on the motion for judicial clemency, the trial court granted said motion on July 14, 2015. (CR 29). On August 3, 2015, the State of Texas
timely filed its Notice of Appeal and is now before this Court by way of a single
point of error. (CR 32-34).
*11 SUMMARY OF ARGUMENT Because the trial court did not have jurisdiction to make any rulings effecting Appellee’s case, nor did any case or statute revive jurisdiction, the
granting of Appellee’s motion for judicial clemency is a void order.
xi *12 ARGUMENT AND AUTHORITIES Issue One:
Because it lacked jurisdiction, the trial court’s order granting Appellee’s motion for judicial clemency is void.
Argument:
A. Preservation
The State is challenging the jurisdiction of the trial court to enter the order.
Jurisdiction is systemic and can be raised for the first time on appeal. State v.
Dunbar , 297 S.W.3d 777, 780 (Tex. Crim. App. 2009).
B. Rules and Principles
A trial court “may take a particular action only if that action is authorized by constitutional provision, statute, or common law, or if the power to take the action
arises from some inherent or implied power.” See State v. Johnson , 821 S.W.2d
609, 612 (Tex. Crim. App. 1991). The Texas Court of Criminal Appeals (‘CCA’)
has held that a lack of personal or subject-matter jurisdiction deprives a court of
any authority to render a judgment. See Garcia v. Dial , 596 S.W.2d 524, 527
(Tex. Crim. App. 1980) (quoting Ex parte Armstrong , 8 S.W.2d 674, 675-76 (Tex.
Crim. App. 1928) (stating that "[u]nless the power or authority of a court to
perform a contemplated act can be found in the Constitution or laws enacted
thereunder, it is without jurisdiction and its acts without validity.")). When a court
acts without jurisdiction, such as by entering a judgment without the necessary
authority to do so, the purported action taken by the court is void. See Nix v. State ,
65 S.W.3d 664, 668 (Tex. Crim. App. 2001) (identifying a lack of personal or
subject-matter jurisdiction as reasons a judgment would be void). Thus, for
example, when a defendant is convicted at trial, but his trial counsel was
ineffective, the court had jurisdiction to hold the trial and sentence the defendant,
although defendant might later obtain relief in the form of a new trial for a
constitutional violation. In contrast, if a defendant confesses and is convicted at
trial because he is guilty of the crime committed, but the court lacked subject-
matter or personal jurisdiction over the defendant, the judgment of conviction is
void. See Marin v. State , 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) (citing
Garcia, 596 S.W.2d at 527).
Section 20(a) of article 42.12 of the Code of Criminal Procedure reads: If the judge discharges the defendant under this section, the judge may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty, except that [exceptions not made applicable by the present record].
T EX . C ODE . C RIM . P ROC . A NN . art. 42.12, § 20(a) (Vernon 2015). The CCA has
said that section 20(a) contains "two entirely different types of 'discharge' from
felony community supervision." Cuellar v. State , 70 S.W.3d 815, 818 (Tex. Crim.
App. 2002). According to the "usual method of discharge," involving the majority
of felony community supervision sentences, a person who successfully completes
community supervision "has paid his debt to society and, in effect, 'graduates' from
community supervision." Id . Accordingly, the "trial judge shall discharge the
defendant from community supervision." Id .
The CCA has also stated that § 20(a) also provides a "second, less common type of discharge." It is not a right but a matter of "judicial clemency" within the
sole discretion of the trial court. Id . at 819. If the trial court "believes that a person
on community supervision is completely rehabilitated and is ready to re-take his
place as a law-abiding member of society, the trial judge may 'set aside the verdict
or permit the defendant to withdraw his plea, and shall dismiss the accusation,
complaint, information or indictment against the defendant, who shall thereafter be
released from all penalties and disabilities resulting from the offense or crime of
which he has been convicted or to which he has pleaded guilty.'" Id . (citing T EX .
C ODE C RIM . P ROC . art. 42.12, § 20(a)). If a trial court "chooses to exercise this
judicial clemency provision, the conviction is wiped away, the indictment
dismissed, and the person is free to walk away from the courtroom 'released from
all penalties and disabilities' resulting from the conviction." Id . at 818-19.
Despite ruling on the issue as to how judicial clemency can apply [4] , the CCA has not yet addressed the question as to when judicial clemency can be granted.
Two lower courts of appeals have directly spoken on this question. In Fielder ,
appellee Fielder was discharged from community supervision by an order signed in
November 2007. State v. Fielder , 376 S.W.3d 784 (Tex. App. –Waco 2011, no
pet.). Fielder filed a request for judicial clemency in March 2011. She argued no
statutory time limit for seeking judicial clemency exists and asked the trial court
consider her conduct over the roughly four-year interval following her discharge.
The next month, the trial court withdrew Fielder's 2007 discharge and dismissed
the indictment. Finding itself “unable to determine the source of any form of
jurisdiction on the part of the trial court with regard to Fielder’s successfully
served and discharged community supervision” at the time of its 2011 grant of
judicial clemency, the Waco Court of Appeals concluded that the trial court lacked
jurisdiction to render its 2011 judgment. Id . at 785-87.
In Shelton , the State appealed an April 2011 order that granted a motion for judicial clemency by appellee Shelton and dismissed his 1985 conviction. State v.
Shelton , 396 S.W.3d 614 (Tex. App.—Amarillo 2012, no pet.). On appeal, the
*16 State argued that the trial court lacked jurisdiction to render the challenged order.
The Amarillo Court of Appeals agreed, rejecting Shelton’s argument that the
phrase “at any time,” which begins the first sentence of § 20(a), means judicial
clemency may be granted at any time after the completion of community
supervision. Id . at 619.
As we read § 20(a), whether in its current form or its predecessor forms we have referred to, the beginning phrase “at any time” rather clearly applies to the actions the court is authorized to take by the first sentence of the section. Our reading is supported by the later inclusion of language clearly stating that the required discharge occurs on “expiration of the period of community supervision.” Discharge occurs at that time, not “at any time.”
Id . The Amarillo Court of Appeals also rejected Shelton’s argument that the
CCA’s opinion in Cuellar somehow held that there were virtually no timing
restrictions as to when judicial clemency could be granted:
Appellee's second argument is based on the statement in Cuellar that judicial clemency is appropriate "when a trial judge believes that a person on community supervision is completely rehabilitated and is ready to re-take his place as a law-abiding member of society. . . ." 70 S.W.3d at 819. Appellee reasons that judicial clemency thus may only be granted a defendant who has both paid his debt and shown that he has truly reformed. The court in Cuellar was addressing the requirements for judicial clemency and its effects, not its timing. Id . We are unable to wring from the court's discussion of judicial clemency in Cuellar a holding, or even a suggestion, that a court, after having granted a "usual" discharge, may sixteen years later determine that the probationer only now is completely rehabilitated, and exercise a grant of judicial clemency.
Id . In discussing the existence of any time limit on the authority of a trial court to
grant judicial clemency if it had already granted a regular discharge, the Amarillo
Court of Appeals cited and discussed State v. Patrick , in which the CCA
determined a trial court acted without jurisdiction when it ordered DNA testing
based neither on Chapter 64 nor a pending habeas corpus application. Id . at 617
(citing State v. Patrick , 86 S.W.3d 592 (Tex. Crim. App. 2002)). The Amarillo
Court of Appeals noted that the CCA addressed the concept of "continuing
jurisdiction," stating that the Legislature "knows how to provide continuing
jurisdiction if doing so is its intent." Id . After interpreting § 20(a) and declaring
that the Legislature intended the judicial clemency decision to be made at the same
time as the “usual” discharge, the Amarillo Court of Appeals stated “If the
Legislature intended that trial courts have continuing jurisdiction over cases in
which community supervision has been completed satisfactorily and the required
discharge issued, for the purpose of considering further requests for judicial
clemency, as the court in Patrick said, the Legislature knows how to provide it.”
Id . at 618.
C. Analysis
In the instant case, Appellee was discharged from community supervision on November 2, 2004. CR 23-24. The trial court granted Appellee’s motion for
judicial clemency on July 14, 2015, almost 11 years after Appellee’s discharge
from community supervision. CR 30. Fielder and Shelton demonstrate that there
is nothing in the statute or case law that resurrects or creates continuing jurisdiction
for a trial court to render an order granting judicial clemency to Appellee almost 11
year after his discharge from community supervision. The State invites this Court
to follow the sound reasoning dispensed by the Waco and Amarillo Courts of
Appeals in Fielder and Shelton . Should this Court follow Fielder and Shelton , it
will logically conclude that because the trial court did not have jurisdiction to
render the order granting Appellee’s motion for judicial clemency, said order is
void.
CONCLUSION The State of Texas, Appellant, respectfully submits, that, for the reasons set forth herein, the trial court’s order granting Appellee’s motion for judicial
clemency is void.
PRAYER Wherefore, premises considered, the State of Texas prays the Court reverse the order of the trial court granting Appellee’s motion for judicial clemency.
Respectfully submitted, RICARDO RODRIGUEZ, JR. Criminal District Attorney Hidalgo County, Texas *19 /s/ Michael W. Morris MICHAEL W. MORRIS, ASSISTANT Criminal District Attorney Hidalgo County, Texas HIDALGO COUNTY COURTHOUSE Edinburg, TX 78539 Telephone #: (956) 318-2300, ext. 8134 Facsimile #: (956) 380-0407 Michael.Morris@da.co.hidalgo.tx.us State Bar No. 24076880 ATTORNEYS FOR APPELLANT *20 /s/ Michael W. Morris CERTIFICATE OF COMPLIANCE I hereby certify that this document has 2889 words.
Michael W. Morris CERTIFICATE OF SERVICE I hereby certify that I have sent a true and correct copy of the foregoing Brief of Appellant to counsel for Appellee, Rubio Salinas, via electronic service to /s/ Michael W. Morris his email, rubiosalinas@sbcglobal.com, on this the 20 th day of November, 2015.
Michael W. Morris
[1] Explained more fully below in the Statement of Facts. vii
[2] 70 S.W.3d 815, 818 (Tex. Crim. App. 2002). ix
[3] From the docketing sheet the hearing was held on July 14, 2015. CR 6. As the State challenges the grant of Judicial Clemency on jurisdictional ground, the transcripts of the hearing are not necessary to address the State’s issue. x
[4] The CCA has held that "while the title of Section 20 may be misleading, a close reading of the article demonstrates that Section 20 and its procedures for terminating community supervision do not apply to a defendant place on deferred-adjudication community supervision ." See State v. Juvrud , 187 S.W.3d 492, 494 (Tex. Crim. App. 2006). The CCA further held that “The judicial clemency provision…applies to offenses for which a defendant has been convicted through a straight probation.” See Yazdchi v. State , 428 S.W.3d 831, 839 (Tex. Crim. App. 2014).