The State of Texas, Appellant, v. Jorge Antonio Quintero, Appellee. (2016)

MEMORANDUM OPINION

Appellant, the State of Texas, appeals from a clemency order in favor of appellee, Jorge Antonio Quintero.  By one issue, the State contends that the trial court had no authority to grant judicial clemency to Quintero under Article 42.12 section 5 of the Texas Code of Criminal Procedure.  See Tex.Code Crim. Proc. Ann. art. 42.12, § 5 (West, Westlaw through 2015 R.S.).  We affirm.¹

I. Background

The trial court placed Quintero on deferred adjudication community supervision on September 16, 1999.  On October 6, 2009, after successfully completing his community supervision, the trial court formally discharged Quintero from deferred adjudication community supervision.  On March 16, 2015, Quintero filed a motion for judicial clemency, requesting, among other things, nondisclosure of criminal history information.  The trial court granted Quintero's motion on April 7, 2015.  The State's appeal followed.

II. Applicable Law

In cases where the defendant has been convicted of an offense and placed on community supervision (“straight community supervision”), the trial court may grant a defendant's motion for judicial clemency.  See id. art. 42.12, § 20(a) (West, Westlaw through 2015 R.S.).  In cases of straight community supervision, the defendant has been convicted and a discharge from community supervision does not automatically remove all penalties and disabilities resulting from the conviction.  Id.;  Yazdchi v. State, 428 S.W.3d 831, 838 (Tex.Crim.App.2014) (explaining that a person discharged from straight community supervision has been convicted of a felony, even though he never went to prison).  If a trial court grants the motion for judicial clemency, it must:  (1) set aside the verdict or permit the defendant to withdraw his plea of guilty that resulted in a conviction;  (2) dismiss the accusation, complaint, and information or indictment;  and (3) release the defendant from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty.  See Tex.Code Crim. Proc. Ann. art. 42.12, § 20(a).  However, a defendant placed on deferred adjudication community supervision has no conviction to be set aside and his plea of guilty need not be withdrawn because the trial court does not adjudicate the defendant guilty.  See id. § 5. Upon discharge from community supervision, the defendant has no conviction and the case against him is dismissed.  See id.  Moreover, in cases involving deferred adjudication, “a dismissal and discharge under [section 5] may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense.”  Id.

Although section 5 does not mention or allow for judicial clemency, it provides that a defendant, successfully discharged from deferred adjudication community supervision, can file a motion for nondisclosure of criminal history information.  See Tex.Code Crim. Proc. Ann. art. 42.12, § 5(c–1)(2)(A).  An order of nondisclosure means that a person “is not required in any application for employment, information, or licensing to state that the person has been the subject of any criminal proceeding related to the information that is the subject of the order.”  Tex. Gov't Code Ann. § 411.0755 (West, Westlaw through 2015 R.S.).

III. Discussion

The State argues that although section 20 of article 42.12 gives a trial court the authority to grant judicial clemency to a defendant placed on community supervision after being convicted of the offense, section 5 has no such provision.  See Tex.Code Crim. Proc. Ann. art. 42.12, §§ 5, 20.  Thus, according to the State, the trial court had no authority to grant judicial clemency to Quintero.  It appears that the State is arguing that because technically the trial court had no authority to grant a motion for judicial clemency to a person discharged from deferred adjudication community supervision, we must reverse the judgment.  However, as further explained below, the State has not shown that the trial court gave Quintero anything that he was not entitled to receive.

We agree with the State that it appears that section 20's “judicial clemency” provision does not apply to persons placed on deferred adjudication community supervision pursuant to section 5.² See Yazdchi, 428 S.W.3d at 838 (stating that the court of criminal appeals had previously addressed whether the statutory language “may set aside the verdict or permit the defendant to withdraw the defendant's plea” and “of which the defendant has been convicted or to which the defendant has pleaded guilty” included in section 20 applied to community supervision under a straight probation, deferred adjudication, or both and had determined that this language applied to straight probation only).  However, this is so because a person placed on deferred adjudication community supervision has no need for judicial clemency when that person is successfully discharged as further explained below.

Section 20's judicial clemency provision allows the trial court to set aside the verdict or plea of guilty that resulted in a conviction.  See Tex.Code Crim. Proc. Ann. 42.12, § 20;  Yazdchi, 428 S.W.3d at 839 (“The judicial clemency provision, therefore, applies to offenses for which a defendant has been convicted through a straight probation.”).  In contrast, deferred adjudication community supervision that is discharged does not result in a conviction.  See id. § 5. Thus, neither a verdict nor a plea of guilty resulting in a conviction exists in cases where a person successfully completed deferred adjudication community supervision and was discharged pursuant to section 5, while a person who successfully completes straight community supervision pursuant to section 20 nonetheless has a conviction.  See id. §§ 5, 20.  Here, because the trial court discharged Quintero successfully from deferred adjudication community supervision in 2009, there was no conviction to set aside.  And, any language in the order that Quintero's conviction be set aside was not necessary and is of no effect.  See id. § 5.

Next, section 20 allows the trial court to dismiss the accusation, complaint, and information or indictment against the defendant.  See id. § 20(a).  However, in 2009, the trial court dismissed the case against Quintero after he successfully completed deferred adjudication community supervision, and he was discharged.  See id. § 5. Therefore, any language in the order providing that the indictment be dismissed was unnecessary and is of no effect.  See id.

Lastly, section 20 requires that when a trial court grants judicial clemency, it must “release the defendant 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. § 20(a).  However, section 5 specifically states that “a dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense.”  Id. § 5. Thus, any language in the order stating that Quintero 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 was not necessary, and it did not have any effect.  See id.  This is so because Quintero was not convicted of any crime in this case.³

The State has asked that we vacate the order of judicial clemency and reinstate the order of the court deferring adjudication and placing defendant on community supervision after a plea of guilty.⁴  However, as stated above, the order of judicial clemency in this case did not grant any relief to Quintero under section 20 because section 20's provisions did not apply to him.  Moreover, the State has not explained why we must vacate this judgment on the basis that the trial court gave Quintero relief that was not necessary or of any effect.  Thus, we cannot conclude that we must vacate the order of judicial clemency because, in essence, Quintero received no relief from the trial court under section 20.  See Cuellar v. State, 70 S.W.3d 815, 819 (Tex.Crim.App.2002) (“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.”).

The State has not challenged the trial court's granting of Quintero's request for nondisclosure on any grounds, an act for which the trial court had authority to do pursuant to section 5. See Tex.Code Crim. Proc. Ann. art. 42.12, § 5(c–1)(2)(A).⁵  Therefore, given that we cannot conclude that the trial court's order of judicial clemency gave Quintero any relief pursuant to section 20 and that we conclude that the trial court had authority under section 5 to grant Quintero's request for nondisclosure, we need not vacate the order.  We overrule the State's sole issue.

IV. Conclusion

We affirm the trial court's judgment.

FOOTNOTES

1.   Quintero has not filed a brief in this matter.

2.   We note that a person on deferred adjudication community supervision has no need for judicial clemency if the person is successfully discharged.  Moreover, the State's position rests solely on its argument that section 20 does not apply to a person on deferred adjudication community supervision.  Even accepting this argument, we disagree that such a conclusion ends our analysis of the issue, and the State has not addressed why it is entitled to a reversal of this judgment on that ground alone.

3.   Moreover, the State has not explained what Quintero may have received from this language in the order that he was not already entitled to receive when he was discharged from community supervision.

4.   The State does not explain how we are able to reinstate the trial court's order deferring adjudication and placing Quintero on community supervision after he was successfully discharged in 2009.

5.   The State cites case law supporting a conclusion that a trial court loses jurisdiction to grant a motion for judicial clemency once the defendant has been discharged from community supervision.  See State v. Shelton, 396 S.W.3d 614, 615, 619 (Tex.App.—Amarillo 2012, pet. ref'd);  State v. Fielder, 376 S.W.3d 784, 786 (Tex.App.—Waco 2011, no pet.).  However, we have concluded that Quintero received no relief under section 20.  In addition, a request for nondisclosure must be made only on or after “the fifth anniversary of the discharge and dismissal, if the offense for which the person was placed on deferred adjudication was a felony.”  Tex. Gov't Code Ann. § 411.0725 (West, Westlaw through 2015 R.S.).  Here, Quintero requested the nondisclosure after the fifth anniversary of the discharge and dismissal.  See id.

Memorandum Opinion by Chief Justice Valdez