NUMBER 13-17-00611-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

THE STATE OF TEXAS, Appellant,

v.

GRAHAM D. GARFIELD-BENTSEN, Appellee.

On appeal from the 275th District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Contreras, Longoria, and Hinojosa

Memorandum Opinion by Justice Contreras

Appellant, the State of Texas, appeals from a judgment granting judicial clemency 

to appellee Graham D. Garfield-Bentsen. See TEX. CODE CRIM. PROC. ANN. art. 

42A.701(f) (West, Westlaw through 2017 1st C.S.). By one issue, the State contends that 

the trial court’s order is void because the court lacked jurisdiction. We reverse and render.
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I. BACKGROUND

Appellee was charged by indictment on two counts of attempted murder (a seconddegree felony), see TEX. PENAL CODE ANN. §§ 15.01, 19.02 (West, Westlaw through 2017 

1st C.S.), and two counts of murder (a first-degree felony). See id. § 19.02. On April 12, 

2010, appellee pleaded guilty to the lesser included offense of manslaughter (a seconddegree felony). See id. § 19.04 (West, Westlaw through 2017 1st C.S.). The trial court 

then imposed upon appellee a sentence of confinement in the Institutional Division of the 

Texas Department of Criminal Justice for a term of ten years with a fine of $5,000. 

However, the trial court suspended the prison sentence and placed appellee on 

community supervision for a term of ten years.

On May 18, 2017, the trial court entered an order discharging appellee from 

community supervision. On June 19, 2017, appellee filed a “Motion to Set Aside 

Conviction and Di[s]miss Charges,” requesting that the indictment in his case be 

dismissed and his conviction set aside under the judicial clemency provision of Texas 

Code of Criminal Procedure article 42.12, section 20.1 See TEX. CODE CRIM. PROC. ANN.

art. 42A.701(f); Cuellar v. State, 70 S.W.3d 815, 818 (Tex. Crim. App. 2002). On October 

25, 2017, the trial court granted appellee’s motion for judicial clemency. This appeal 

ensued.

II. DISCUSSION

In its sole issue, the State contends that the trial court’s order granting appellee’s 

 

1 Article 42.12 was repealed effective January 1, 2017 and replaced with article 42A as part of a 

non-substantive revision of the community supervision laws. See Act of May 26, 2015, 84th Leg., R.S., ch. 

770 (H.B. 2299), §§ 1.01, 3.01, 4.01, 2015 TEX. GEN. LAWS 2320, 2358–59, 2394 (effective Sept. 1, 2017). 

The current version is substantially the same as the version in effect at the time of the events giving rise to 

this case. Therefore, we will refer to the current statute for ease of reference.
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motion for judicial clemency is void because the court lacked jurisdiction.

A. Applicable Law and Standard of Review

A trial court’s jurisdiction refers to that court’s power to hear and make legally 

binding decisions on the parties involved. See State v. Dunbar, 297 S.W.3d 777, 780 

(Tex. Crim. App. 2009). Jurisdiction is “an absolute systemic requirement” and can be 

raised for the first time on appeal. Id. In criminal cases, a trial court’s jurisdiction consists 

of the power of the court over the subject matter of the case, conveyed by statute or 

constitutional provision, coupled with personal jurisdiction over the accused, which is 

invoked in felony prosecutions by the filing of an indictment or information if indictment is 

waived. Id. A lack of personal or subject-matter jurisdiction deprives a court of any 

authority to render a judgment. Ex parte Moss, 446 S.W.3d 786, 788 (Tex. Crim. App. 

2014). Any action taken by a trial court without jurisdiction is void. Id.

When a defendant’s sentence is suspended, and he is placed on community 

supervision pursuant to the code of criminal procedure, the community supervision may 

be discharged in one of two ways. See Cuellar, 70 S.W.3d at 818–19. The first is the 

usual method of discharge, in which either: (1) a defendant has completed the entire 

term of community supervision and has satisfactorily fulfilled all of the conditions of 

community supervision, whereupon the trial court shall discharge the defendant from 

community supervision; or (2) although not mandatory on the part of the trial court, it may 

discharge a defendant early if the defendant has satisfactorily completed one-third of the 

original community supervision period or two years of community supervision, whichever 

is less. Id.; see TEX. CODE CRIM. PROC. ANN. art. 42A.701(f). Under the usual method, 

the defendant still has a conviction on his record, despite never having spent a day in jail, 

and even though such conviction may not be “final” for other purposes. See Cuellar, 70 
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S.W.3d at 818. The second type of discharge is known as “judicial clemency.” Judicial 

clemency is within the trial court’s sole discretion; if, after a 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,” it 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. at 819; see TEX. CODE CRIM. PROC. ANN. art. 42A.701(f). If a trial court exercises 

judicial clemency, “the conviction is wiped away, the [charging instrument] is dismissed, 

and the person is free to walk away from the courtroom released from all penalties and 

disabilities resulting from the conviction.” Cuellar, 70 S.W.3d at 819 (internal quotations 

omitted). With limited exceptions, see TEX. CODE CRIM. PROC. ANN. art. 42A.701(f)(1),(2), 

the conviction disappears. Cuellar, 70 S.W.3d at 819. 

To be valid, an order of judicial clemency must be rendered upon or after either 

mandatory or permissive discharge occurs, but before the trial court loses plenary 

jurisdiction. State v. Perez, 494 S.W.3d 901, 905 (Tex. App.—Corpus Christi 2016, no 

pet.) (observing that the Legislature did not grant trial courts continuing jurisdiction to 

order judicial clemency at any time after discharging a defendant from community 

supervision). The trial court’s plenary jurisdiction to modify its sentence expires thirty 

days after sentencing unless a defendant files a motion for new trial or motion in arrest of 

judgment within that thirty-day period. See TEX. R. APP. P. 21.4, 22.3; State v. Aguilera, 

165 S.W.3d 695, 697–98 (Tex. Crim. App. 2005); see also Dunbar, 297 S.W.3d at 780.

B. Analysis

In the instant case, appellee was discharged from community supervision on May 
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18, 2017, and he did not file a motion for new trial or motion in arrest of judgment. Thirty 

days after May 18, 2017 was Saturday, June 17, 2017; therefore, the trial court’s plenary 

power extended until Monday, June 19, 2017. See TEX. GOV’T CODE ANN. § 311.014(b) 

(West, Westlaw through 2017 1st C.S.) (“If the last day of any period is a Saturday, 

Sunday, or legal holiday, the period is extended to include the next day that is not a 

Saturday, Sunday, or legal holiday.”). Although appellee filed his motion while the trial 

court still had plenary jurisdiction, the motion was not granted until October 25, 2017, 

nearly five months after the trial court lost plenary jurisdiction. And although the filing of 

motion for new trial or motion in arrest of judgment may extend the trial court’s plenary 

jurisdiction, see TEX. R. APP. P. 21.4, 22.3; Aguilera, 165 S.W.3d at 697–98, we are aware 

of no authority establishing that a motion for judicial clemency has the same effect. See 

State v. Shelton, 396 S.W.3d 614 (Tex. App.—Amarillo 2012, pet. ref’d) (finding “no 

authority extending the trial court’s jurisdiction to grant appellee judicial clemency beyond 

thirty days from entry of the” discharge order). Accordingly, we conclude that the trial 

court’s order granting judicial clemency was rendered beyond its plenary jurisdiction and 

is therefore void. See Moss, 446 S.W.3d at 788. We sustain the State’s sole issue.

III. CONCLUSION

The trial court’s judgment is reversed and we render judgment dismissing 

appellee’s motion for judicial clemency.

DORI CONTRERAS 

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

28th day of June, 2018.