Cuellar v. State

• Citation: 70 S.W.3d 815
• Decision Date: 13 February 2002
• Docket Number: No. 0733-01.,0733-01.
• Parties: Rudy Valentino CUELLAR, Appellant, v. The STATE of Texas.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

70 S.W.3d 815

Rudy Valentino CUELLAR, Appellant, v. The STATE of Texas.

No. 0733-01.

Court of Criminal Appeals of Texas.

February 13, 2002.

Richard E. Langlois, San Antonio, for Appellant.

Jeffrey L. Van Horn, Asst. State's Atty., Matthew Paul, State's Atty., Austin, for State.

OPINION

HOLCOMB, J., delivered the opinion of the Court, in which MEYERS, PRICE, JOHNSON, and COCHRAN, JJ., joined.

Texas Penal Code § 46.04(a) makes it an offense for a convicted felon to possess a firearm.¹ The Fourth Court of Appeals held that a felony conviction set aside pursuant to Article 42.12, § 20, of the Texas Code of Criminal Procedure is not a felony conviction for purposes of Penal Code § 46.04(a). Cuellar v. State, 40 S.W.3d 724, 728 (Tex.App.-San Antonio 2001). The issue in this case is whether the Fourth Court erred. We hold that it did not.

Relevant Facts

On July 26, 1976, appellant, Rudy Valentino Cuellar, pled guilty to the felony offense of possession of heroin. See Tex. Health & Safety Code § 481.115(d). The trial court sentenced appellant to five years imprisonment, suspended the imposition of the sentence, and then placed appellant on community supervision for five years. On September 1, 1981, the trial court, after finding that appellant satisfactorily fulfilled the conditions of community supervision, entered the following order:

It is the order of the court that the judgement of conviction entered in said cause be and is hereby set aside and the indictment against said defendant be and the same is hereby dismissed. (Emphasis added.)

On November 6, 1996, appellant, en route to his hunting lease, was a passenger in a vehicle pulled over for a routine traffic violation. The officer asked the driver and appellant whether they possessed any weapons. Appellant informed the officer that he had a hunting rifle behind the seat. The officer then obtained appellant's license processed the license to check for prior criminal history and outstanding warrants, and learned of the 1976 conviction. Appellant was subsequently arrested and indicted for the offense of unlawful possession of a firearm by a felon.

On February 23, 1999, appellant, after an unsuccessful motion to quash,² pled not guilty. The trial court found appellant guilty, sentenced him to two years imprisonment, suspended the imposition of the sentence, and placed him on community supervision for two years.

On appeal, appellant argued that the evidence presented at his trial was legally insufficient to support his conviction. Specifically, appellant argued that § 46.04(a) requires a felony conviction as an element of the offense and, since his 1976 conviction was set aside pursuant to Article 42.12, § 20, there was no underlying felony conviction to support a conviction under § 46.04(a). The Fourth Court of Appeals agreed with appellant and reversed the judgment of the trial court. The Court of Appeals reasoned that "[t]he law is straight-forward, and the Article 42.12 § 20 order should have been sufficient to shield [appellant] from any criminal charges stemming from the nullified 1976 conviction." Cuellar, 40 S.W.3d at 728. We granted the State's petition for discretionary review to determine whether the Court of Appeals erred. See Tex.R.App. Proc. 66.3(b).

In its brief to this Court, the State argues that an individual placed on felony community supervision has a felony conviction for purposes of § 46.04(a), even if the trial court later issues an order dismissing the indictment and releasing the defendant from all penalties and disabilities resulting from the offense. The State reasons that: (1) every person placed on community supervision pursuant to Article 42.12, § 20, is considered to be convicted and such a conviction cannot be set aside; (2) not every penalty or disability is removed by an Article 42.12, § 20, order; and (3) "strong public policy" and concerns for public safety mandate that a person with a felony conviction should not be allowed to possess a firearm.³

Analysis

Article 42.12, § 20(a), provides that:

At any time, after the defendant has satisfactorily completed one-third of the original community supervision period or two years of community supervision, whichever is less, the period of community supervision may be reduced or terminated by the judge. Upon the satisfactory fulfillment of the conditions of community supervision, and the expiration of the period of community supervision, the judge, by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the community supervision period and shall discharge the defendant. 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:

(1) proof of the conviction or plea of guilty shall be made known to the judge should the defendant again be convicted of any criminal offense; and

(2) if the defendant is an applicant for a license or is a licensee under Chapter 42, Human Resources Code, the Texas Department of Human Services may consider the fact that the defendant previously has received community supervision under this article in issuing, renewing, denying, or revoking a license under that chapter.

The State argues that the language of Article 42.12, § 20, does not authorize a judge to set aside a defendant's conviction. The State fails, however, to clearly distinguish that there are two entirely different types of "discharge" from felony community supervision under Article 42.12, § 20.

First, there is the usual method of discharge. When a person placed on community supervision has completed his entire term of community supervision and has satisfactorily fulfilled all of the conditions of community supervision, the trial judge shall discharge the defendant from community supervision. In addition, although he need not do so, the judge may discharge the person early if the "defendant has satisfactorily completed one-third of the original community supervision period or two years of community supervision, whichever is less...." Tex.Code Crim. Proc. art. 42.12, § 20(a). But a person who has fulfilled all of the conditions of community supervision must be discharged. That person has paid his debt to society and, in effect, "graduates" from community supervision. However, that person has been convicted of a felony, even though he never went to prison and, for some purposes, it is not a "final" felony conviction. See Ex parte Murchison, 560 S.W.2d 654 (Tex.Crim.App.1978) ("a conviction is not final for enhancement purposes where the imposition of sentence has been suspended and probation granted"); Ex parte Langley, 833 S.W.2d 141 (Tex. Crim.App.1992) (same). The vast majority of felony probation sentences are completed in this manner.

There is, however, a second, less common type of discharge under Article 42.12, § 20. This second type of discharge is not a right but rather is a matter of "judicial clemency" within the trial court's sole discretion. See Wolfe v. State, 917 S.W.2d 270 (Tex.Crim.App.1996) ("[Section] 20 provides a mechanism to release a convicted person of all legal disabilities upon successful completion of probation."); Hoffman v. State, 922 S.W.2d 663, 668 (Tex.App.-Waco 1996, pet. ref'd) ("Among the district court's several powers is the authority to dismiss an indictment or information against a convicted felon once he has successfully completed the terms of his probation."). That is, 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, 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."⁴ Tex.Code Crim. Proc. 42.12, § 20(a);⁵ State v. Jimenez, 987 S.W.2d 886, 888 n. 2 (Tex.Crim.App.1999) ("Under Texas law, successful completion of probation allows the judge to dismiss some charges without a final conviction."). These words are crystal clear. There is no doubt as to their meaning. See Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991).⁶ If a judge 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. Art. 42.12, § 20(a).

Once the trial court judge signs the Article 42.12, § 20, order,⁷ the felony conviction disappears, except as specifically noted in subsections (1) and (2). Under subsection (1), if the discharged person is subsequently convicted of another criminal offense, the previously dismissed "former" felony conviction will resurrect itself and be made known to the trial judge. Id. Under subsection (2), if the discharged person is applying for a license to run a child care facility or currently has such a license, the Texas Department of Human Services, in issuing, renewing, denying, or revoking such a license, may consider the fact that the person had previously received community supervision. Id. Both of these exceptions make good sense. They are, however, the only listed exceptions. The Legislature could add other exceptions if it so chooses. For example, it could add a provision stating that a person whose conviction is dismissed under Article 42.12, § 20, is still considered a felon for purposes of carrying an otherwise legal firearm.⁸ However, in the...