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Cause No. 13-15-00367-CR

IN THE COURT OF APPEALS 

FOR THE THIRTEENTH DISTRICT 

AT CORPUS CHRISTI-EDINBURG, TEXAS 

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THE STATE OF TEXAS, APPELLANT 

v.

FELICIANO VILLARREAL PEREZ, APPELLEE 

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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 

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BRIEF OF THE STATE OF TEXAS/APPELLANT

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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 

ACCEPTED

13-15-00367-CR

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

11/20/2015 11:16:43 AM

Dorian E. Ramirez

CLERK

 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 11/20/2015 11:16:43 AM DORIAN E. RAMIREZ Clerk
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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.
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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.
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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.
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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
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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
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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).

 

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Explained more fully below in the Statement of Facts.
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ISSUE PRESENTED

Issue One:

Because it lacked jurisdiction, the trial court’s order granting Appellee’s motion 

for judicial clemency is void.
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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. 

 

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70 S.W.3d 815, 818 (Tex. Crim. App. 2002).
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After the hearing3on 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).

 

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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.
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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. 
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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 
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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 subjectmatter 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.
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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 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.
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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. 

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 

 

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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).
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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.
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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 
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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
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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

 /s/ Michael W. Morris
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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 

his email, rubiosalinas@sbcglobal.com, on this the 20th day of November, 2015.

Michael W. Morris

 /s/ Michael W. Morris /s/ Michael W. Morris