holding that because Cuellar’s underlying felony conviction was set aside pursuant to the judicial-clemency provision, he was “not a convicted felon” and thus “there was no predicate felony conviction to support a conviction under § 46.04(a)”
How later courts described this case
- holding that because Cuellar’s underlying felony conviction was set aside pursuant to the judicial-clemency provision, he was “not a convicted felon” and thus “there was no predicate felony conviction to support a conviction under § 46.04(a)”
- holding that the early termination of post-conviction community supervision made under the clemency mechanism provided in article 42.12, section 20(a) effectively "wipe(s] away" a conviction for purposes of a law requiring a conviction as an element of an offense
- noting that it is constitutionally permissible to consider the rule of lenity only when absolutely necessary to resolve statutory ambiguity
- recognizing that since “the very essence of a pardon is forgiveness ... a pardon implies guilt; it does not obliterate the fact of the commission of the crime and the conviction”
Written by the judges who cited it.
Distinguished
Distinguished by Ex Parte Jimenez, 2012 Tex. Crim. App. LEXIS 242 (2012)
Similarly, the State argues that Cuellar is distinguishable because, in that case, the defendant’s predicate felony was set aside before he was charged with unlawful possession of a firearm.
Distinguished by Jimenez, Ex Parte Antonio Davila (2012)
Similarly, the State argues that Cuellar is distinguishable because, in that case, the
The opinion
*821 KELLER, P.J.,
filed a concurring opinion which WOMACK and JOHNSON, JJ., joined.
The Court says that the order discharging appellant from community supervision removed appellant’s status as a convicted felon, and hence, removed the prohibition against possessing a firearm. The dissent says that appellant’s status as a convicted felon remained intact, and thus, his possession of a firearm was a crime. Both sides of the issue advance reasonable justifications for their positions, based upon the language of the statutes and extratextual factors. And that is part of the problem.
A law proscribing a criminal offense must be clear enough to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited. 1 In this case, the law failed to do so. The order discharging appellant from probation purported to set aside the conviction and dismiss the indictment. The community supervision statute provides that, if the indictment is dismissed, the defendant is “released from all penalties and disabilities resulting from the offense” except for certain enumerated situations not present here. 2 Appellant should not be required to guess that statutory language releasing him from “all” disabilities does not really mean all disabilities. Nor should appellant be required to resort to legislative history to determine whether his conduct is criminal. Even if the dissent’s interpretation of the relevant statutes is correct, appellant should still obtain relief because these statutes are unconstitutionally vague as applied to appellant’s conduct.
I concur in the Court’s judgment.
. Grayned v. Rockford, 408 U.S. 104 , 108, 92 S.Ct. 2294 , 33 L.Ed.2d 222 (1972).
. Tex.Code Crim. Proc., Art. 42.12 § 20(a)(emphasis added).