REVERSE and REMAND; Opinion Filed May 4, 2020




                                      In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                               No. 05-19-00594-CR
                               No. 05-19-00595-CR

                 RODRIGO VENTURA BADILLO, Appellant
                                V.
                    THE STATE OF TEXAS, Appellee

              On Appeal from the 401st Judicial District Court
                           Collin County, Texas
           Trial Court Cause Nos. 401-80870-2016, 401-82197-2016

                        MEMORANDUM OPINION
                  Before Justices Schenck, Osborne, and Reichek
                           Opinion by Justice Schenck
      Rodrigo Ventura Badillo appeals his convictions for sexual assault of a child,

indecency with a child by sexual contact, and assault on a family member impeding

breathing or circulation. In a single issue, appellant urges the trial court lacked

jurisdiction to enter adjudications of guilt and proceed to sentencing based on

amended petitions to adjudicate filed after the expiration of appellant’s deferred

adjudication. We reverse the trial court’s judgments and remand the cases to the

trial court for further proceedings consistent with this opinion. Because all issues

are settled in the law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
                                   BACKGROUND

      Appellant was charged by indictment with five counts of Sexual Assault of a

Child and four counts of Indecency with a Child by Sexual Contact in cause number

401-80870-2016, and with Assault on a Family Member Impeding Breathing or

Circulation in cause number 401-82197-2016. On November 14, 2016, appellant

pleaded guilty to the charges in both cases and, pursuant to a plea agreement, was

placed on deferred adjudication for a period of two years.         In anticipation of

appellant’s subsequent deportation, the trial court advised appellant that he would

still probably be expected to comply with the terms of his community supervision,

and provided appellant paperwork to assist him in remotely reporting and making

required payments. The trial court also admonished appellant not to illegally re-

enter the United States. Appellant was subsequently deported and failed to comply

with his community supervision conditions.

      As a consequence, on February 17, 2018, in both the 401-80870-2016 and the

401-82197-2016 cases, the State filed petitions to adjudicate on all counts, and the

trial court issued a capias for appellant on the same day. In the petitions, the State

alleged that appellant failed to make certain payments and failed to report in

violation of the terms of his community supervision. The State also alleged that on

November 18, 2016, appellant committed the offense of Alien Present without

Admission or Parole. On September 20, 2018, the State filed its first amended

petitions to adjudicate in the sexual assault and indecency case, and the clerk of the
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court issued a precept to serve on the same day. In the amended petitions, the State

alleged additional violations of the community supervision conditions, including

additional months of failure to report, failure to participate in certain programs,

failure to submit to a substance abuse evaluation, and failure to pay additional

monies. On October 11, 2018, appellant committed the offense of illegal re-entry

into the United States. On November 13, 2018, appellant’s two year term of

community supervision expired. On November 20, 2018, the State filed its second

amended petitions to adjudicate in the sexual assault and indecency case. On the

next day, the State filed its first amended petition to adjudicate in the assault case.

The amended petitions alleged appellant’s illegal re-entry violated the terms of his

community supervision. Thereafter, the trial court issued capias in both cases.

        On April 17, 2019, the trial court conducted a hearing on the petitions to

adjudicate guilt. Appellant pleaded “not true” to the allegations in the State’s

amended petitions to adjudicate in both cases. Appellant’s probation officer testified

to each of the violations alleged in the petitions. The State also established appellant

had been convicted by a federal court of illegal re-entry. At the conclusion of the

hearing, the trial court found the first allegation of the State’s petitions (that appellant

committed the offense of Illegal Re-Entry) true,1 entered an adjudication of guilt in

both cases, and sentenced appellant to 12 years confinement in each count in cause


    1
      Contrary to the trial court’s oral pronouncement at the hearing, the judgments adjudicating guilt state
that all of the violations alleged in the State’s amended petitions were found to be true.
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number 401-80870-2016, with all counts running concurrently, and to 5 years

confinement in cause number 401-82197-2016. These appeals followed.

                                      DISCUSSION

      Under article 42A.751 of the code of criminal procedure, the trial court’s

jurisdiction to conduct proceedings on a petition to adjudicate guilt is contingent on

the filing of the petition and the issuance of a capias before the expiration of the

supervisory period. TEX. CODE CRIM. PROC. ANN. art. 42A.751(l). If the petition is

timely filed and the capias is timely issued, the trial court retains jurisdiction over

the defendant and may conduct proceedings on the petition even after the

supervisory period expires. Nickolas v. State, 530 S.W.2d 537, 541 (Tex. Crim.

App. 1975). In such cases, the court’s right to adjudicate is limited to those

violations alleged in the petition filed before the supervisory period expired. Id.

      In appellant’s cases, the State filed petitions to adjudicate guilt before the

expiration of the two-year supervisory term. But the State and the trial court did not

proceed on those petitions. Instead, they proceeded on amended petitions filed

approximately one week after the supervisory term expired. Because the trial court

did not have authority to adjudicate appellant’s guilt based on an amended petition

filed after the expiration of his supervisory term, the judgments are void. Ex parte

Moss, 446 S.W.3d 786, 789 (Tex. Crim. App. 2014).

      Nevertheless, the trial court still retains jurisdiction over the other, timely filed

petitions to adjudicate and may conduct proceedings on those petitions on remand.
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See Guillot v. State, 543 S.W.2d 650, 653 (Tex. Crim. App. 1976) (holding trial court

could not revoke based on allegations contained in untimely revocation motion but

could proceed on other allegations alleged in previously and timely filed revocation

motion).

                                    CONCLUSION

      Accordingly, we reverse the trial court’s judgments and remand the cases to

the trial court for further proceedings consistent with this opinion.




                                            /David J. Schenck/
                                            DAVID J. SCHENCK
                                            JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 47
190594F.U05




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                            Court of Appeals
                     Fifth District of Texas at Dallas
                                  JUDGMENT

RODRIGO VENTURA BADILLO,                      On Appeal from the 401st Judicial
Appellant                                     District Court, Collin County, Texas
                                              Trial Court Cause No. 401-80870-
No. 05-19-00594-CR           V.               2016.
                                              Opinion delivered by Justice
THE STATE OF TEXAS, Appellee                  Schenck. Justices Osborne and
                                              Reichek participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is
REVERSED and the cause REMANDED for further proceedings consistent with
this opinion.


Judgment entered this 4th day of May, 2020.




                                        –6–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                  JUDGMENT

RODRIGO VENTURA BADILLO,                      On Appeal from the 401st Judicial
Appellant                                     District Court, Collin County, Texas
                                              Trial Court Cause No. 401-82197-
No. 05-19-00595-CR           V.               2016.
                                              Opinion delivered by Justice
THE STATE OF TEXAS, Appellee                  Schenck. Justices Osborne and
                                              Reichek participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is
REVERSED and the cause REMANDED for further proceedings consistent with
this opinion.


Judgment entered this 4th day of May, 2020.




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