IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 0733-01

 

RUDY VALENTINO CUELLAR, Appellant


v.



THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTH COURT OF APPEALS

VAL VERDE COUNTY


Holcomb, J., delivered the opinion of the Court, in which Meyers, Price, Johnson, and Cochran, JJ., joined. Hervey, J., did not participate in the decision of the Court. Keller, P.J., filed a concurring opinion, in which Womack and Johnson, JJ., joined. Cochran, J., filed a concurring opinion, in which Meyers, J., joined. Keasler, J., filed a dissenting opinion.



OPINION





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-foward, 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 absence of such an exception, the clear language of Article 42.12, 20, governs.

In sum, a person who successfully completes all of the terms and conditions of community supervision must be discharged from community supervision. This is not a discretionary matter. However, whether to dismiss the indictment and set aside the conviction is wholly within the discretion of the trial court. But, a person whose conviction is set aside pursuant to an Article 42.12, 20, order is not a convicted felon.

Penal Code 46.04(a) requires a felony conviction as an element of the offense. Here, appellant's prior felony conviction was set aside pursuant to an Article 42.12, 20, order. Accordingly, there was no predicate felony conviction to support a conviction under 46.04(a). Therefore, the Court of Appeals did not err in reversing the judgment of the trial court.

We affirm the judgment of the Court of Appeals.



DELIVERED FEBRUARY 13, 2002

PUBLISH

1. Texas Penal Code 46.04(a) provides:



(a) A person who has been convicted of a felony commits an offense if he possesses a firearm:

(1) after conviction and before the fifth anniversary of the person's release from

confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or



(2) after the period described by Subdivision (1), at any location other than the

premises at which the person lives.

2. The former version of 46.04, amended in 1993, provided that "[a] person who has been convicted of a felony involving an act of violence or threatened violence to a person or property commits an offense if he possesses a firearm away from the premises where he lives." (Emphasis added.) In his motion to quash, appellant argued that the indictment failed to allege that his 1976 conviction involved an act of violence. The Court of Appeals affirmed the trial court's decision to grant his motion. See State v. Cuellar, No. 07-97-0288-CR (Tex.App.-Amarillo, July 13, 1998) (not designated for publication). This Court, however, reversed the Court of Appeals and remanded the case to the trial court. State v. Cuellar, No.1327-98 (Tex.Crim.App.-Nov. 25, 1998) (not designated for publication).

3. Clearly, the State of Texas has an interest in protecting its citizens from convicted felons. The State in its brief, however, fails to recognize that persons whose convictions are set aside pursuant to Article 42.12, 20, do not implicate these concerns for public safety. The underlying purpose of community supervision is to provide criminal defendants with a chance to "mend their ways." If a defendant, like appellant, accepts the challenge and successfully completes the terms and conditions of community supervision, he should not be stigmatized for the rest of his life. Such persons have demonstrated that they are ready to rejoin the community as law-abiding citizens. See discussion infra. Accordingly, we have recognized that, once the conviction is set aside, persons previously convicted of felonies can serve on juries and vote in elections. See Walker v. State, 645 S.W.2d 294, 295 (Tex.Crim.App. 1983); Hoffman v. State, 922 S.W.2d 663, 669 (Tex.App. - Waco 1996, pet. ref'd); Op. Tex. Att'y Gen. No. JC-0396 (2001). If the State of Texas allows appellant to sit on a jury in, for example, a capital murder case, it would be difficult to understand why the State would not allow him to own or possess a hunting rifle like other Texas citizens who vote and sit on juries.

4. The dissent's interpretation of this sentence is incorrect. Dismissing the charging instrument is not always mandatory. Subsection 20 provides that "the judge may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information, or indictment ...." Thus, if the judge exercises his discretion and chooses to set aside the verdict or permits the defendant to withdraw his plea, then and only then must the judge dismiss the charging instrument.

5. "This section does not apply to a defendant convicted of an offense under Sections 49.04- 49.08, Penal Code, a defendant convicted of an offense for which on conviction registration as a sex offender is required under Chapter 62, as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997, or a defendant convicted of an offense punishable as a state jail felony." Id. at subsection (b).

6. The dissent would "find that the effect of 20 on 46.04 is ambiguous." This is precisely where the dissent runs astray. Boykin provides that "[w]here the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute." Id. at 785. (Some punctuation omitted.) We further explained "[i]f the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider ... extratextual factors ." Id . (Emphasis added.) Here, the language of Article 42.12, 20 is clear and unambiguous. Thus, there is no need to consider extratextual factors. In considering such factors, the dissent ignores the plain meaning rule and disregards the teachings of Boykin.

Moreover, even if we suppose, as the dissent does, that the "effect of 20 on 46.04 is ambiguous," we would then agree with the concurrence that the rule of lenity would apply. The rule, as supplied by the U.S. Supreme Court, embodies "a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment." Bell v. United States, 349 U.S. 81, 83 (1955). The rule of lenity is, in essence, another extratextual factor for a court to consider if, and only if, a statute is ambiguous.

7. The trial judge must enter an order releasing the defendant from the legal disabilities. In the absence of such an order, the disabilities are not removed. Wolfe, 917 S.W.2d at 277.

8. See e.g. Tune v. Texas Dep't of Pub. Safety, 23 S.W.3d 358 (Tex. 2000). There, the district court issued an Article 42.12, 20, order setting aside Tune's conviction, dismissing his indictment, and discharging him from probation. Tune's subsequent application for a license to carry a concealed handgun was denied because of his prior "conviction." On appeal Tune argued, similar to the appellant in this case, that since his conviction was set aside he was no longer "convicted" for purposes of the Handgun Act. The Texas Supreme Court held that since the Handgun Act specifically defines "conviction" to include a person whose conviction was dismissed under Article 42.12, 20, a person is "convicted" for purposes of the Handgun Act whether or not his sentence is subsequently probated and he is discharged from community supervision. The Court noted that "[i]f the Handgun Act didn't include a specific definition of the term 'convicted', then the inability to obtain a concealed-handgun license might be one of the penalties and disabilities removed when the district court dismissed Tune's indictment." Id. at 364. Section 46.04 of the Texas Penal Code does not include a definition of the term "conviction."