                                                                                                            ACCEPTED
                                                                                                       13-15-00368-CR
                                                                                       THIRTEENTH COURT OF APPEALS
                                                                                              CORPUS CHRISTI, TEXAS
                                                                                                 10/9/2015 11:17:00 AM
                                                                                                      Dorian E. Ramirez
                                                                                                                 CLERK

                                Cause No. 13-15-00368-CR

                          IN THE COURT OF APPEALS       FILED IN
                                                 13th COURT OF APPEALS
                        FOR THE THIRTEENTH DISTRICT
                                              CORPUS CHRISTI/EDINBURG, TEXAS
                     AT CORPUS CHRISTI-EDINBURG,10/9/2015
                                                  TEXAS11:17:00 AM
                                                                      DORIAN E. RAMIREZ
                                                                           Clerk
----------------------------------------------------------------------------------------------------
                        THE STATE OF TEXAS, APPELLANT
                                                 v.
                   RAMON ESCALANTE JIMENEZ, APPELLEE
----------------------------------------------------------------------------------------------------
               APPEAL OF JUDGMENT IN CAUSE NO. CR-1276-01-I
                  FROM THE 398TH JUDICIAL DISTRICT COURT
                             OF HIDALGO COUNTY, TEXAS
       THE HONORABLE JUDGE AIDA SALINAS FLORES, PRESIDING
----------------------------------------------------------------------------------------------------

                 BRIEF OF THE STATE OF TEXAS/APPELLANT

----------------------------------------------------------------------------------------------------
                                                  RICARDO RODRIGUEZ, JR.
                                                  Criminal District Attorney
                                                  Hidalgo County, Texas

                                                  LUIS A. GONZALEZ, ASSISTANT
                                                  Criminal District Attorney
                                                  Hidalgo County, Texas

                                                  HIDALGO COUNTY COURTHOUSE
                                                  Edinburg, TX 78539
                                                  Telephone #: (956) 318-2300, ext. 8133
                                                  Facsimile #: (956) 380-0407
                                                  luis.gonzalez@da.co.hidalgo.tx.us
                                                  State Bar No. 24083088

                                                  ATTORNEYS FOR APPELLEE

ORAL ARGUMENT WAIVED



                                                 1
              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, 3rd 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. 12th Ave,

Edinburg, TX 78539.




                                          ii
                 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
                      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
                               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

TEX. CODE. CRIM. PROC. ANN. art. 42.12, § 20(a) (Vernon 2015) ....................... 2, 3




                                                vi
                               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).




1
    Explained more fully below in the Statement of Facts.
2
    On October 22, 2003, the State filed a motion to revoke community supervision. (CR 13). On
    March 3, 2006, the trial court signed an order dismissing the State’s motion to revoke
    community supervision based on the State’s own motion. (CR 18). There is no formal order
    from the trial court discharging Appellee from community supervision, thus, he was discharged
    from community supervision by operation of law.
3
    70 S.W.3d 815, 818 (Tex. Crim. App. 2002). vii
4
    The CCA has held that "while the title of Section 20 may be misleading, a close reading of the
                             ISSUE PRESENTED

Issue One:

Because it lacked jurisdiction, the trial court’s order granting Appellee’s motion
for judicial clemency is void.




                                       viii
                                 STATEMENT OF FACTS

         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). The

trial court imposed upon Appellee a sentence of confinement in the State Jail

Division of the Texas Department of Criminal Justice for a term of two (2) years

with a fine of $550. (CR 10). However, the trial court suspended the sentence and

placed Appellee on community supervision for a term of four (4) years with a fine

of $550.        (CR 10).      On January 28, 2006, Appellee was discharged from

community supervision by operation of law.2

         On May 29, 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 3. (CR 19-21). On June 4, 2015, the State of Texas filed its

response to Appellee’s motion for judicial clemency, requesting the trial court to

deny relief based on the argument that the trial court lacked jurisdiction. (CR 22-

24).



2
    On October 22, 2003, the State filed a motion to revoke community supervision. (CR 13). On
    March 3, 2006, the trial court signed an order dismissing the State’s motion to revoke
    community supervision based on the State’s own motion. (CR 18). There is no formal order
    from the trial court discharging Appellee from community supervision, thus, he was discharged
    from community supervision by operation of law.
3
    70 S.W.3d 815, 818 (Tex. Crim. App. 2002).
                                                 ix
      A short hearing was held by the trial court on Appellee’s motion for judicial

clemency on July 9, 2015. The prosecutor simply re-urged the argument that the

trial court lacked jurisdiction to grant Appellee judicial clemency. (1 RR 5). In

addition to informing the trial court of Appellee’s immigration proceedings,

Appellee’s attorney, Juan Alvarez, countered the prosecutor’s argument based on

Cuellar. The trial court did not rule on the motion, but took the matter under

advisement. (1 RR 10).

      After the hearing on the motion for judicial clemency, the trial court granted

said motion on July 28, 2015. (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).




                                         x
                         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
                      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. 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



                                          1
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].

TEX. CODE. CRIM. PROC. ANN. 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




                                          2
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 TEX.

CODE CRIM. PROC. 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 apply4, the CCA

has not yet addressed the question as to when judicial clemency can be granted.


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).
                                               3
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

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.

                                         4
      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

                                          5
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.

   B. Analysis

      In the instant case, Appellee was discharged from community supervision on

January 29, 2006. The trial court granted Appellee’s motion for judicial clemency

on July 28, 2015, over nine years after Appellee’s discharge from community

supervision. 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 some nine years after his discharge

from community supervision. (CR 10, 25). 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

                                          6
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


                                          /s/ Luis A. Gonzalez

                                          LUIS A. GONZALEZ, ASSISTANT
                                          Criminal District Attorney
                                          Hidalgo County, Texas

                                          HIDALGO COUNTY COURTHOUSE
                                          Edinburg TX 78539
                                          Telephone #: (956) 318-2300 ext. 750
                                          Facsimile #: (956) 380-0407
                                          luis.gonzalez@da.co.hidalgo.tx.us
                                          State Bar No. 24083088

                                          ATTORNEYS FOR APPELLANT
                                          7
                     CERTIFICATE OF COMPLIANCE

I hereby certify that this document has 2965 words.



                                         /s/ Luis A. Gonzalez
                                         Luis A. Gonzalez


                         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, Juan Alvarez, via electronic service to

his email, juanlaw1@gmail.com, on this the 9th day of October, 2015.




                                         /s/ Luis A. Gonzalez
                                         Luis A. Gonzalez




                                        8
