Rodrigo Ventura Badillo v. State ( 2020 )

REVERSE and REMAND; Opinion Filed May 4, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00594-CR
No. 05-19-00595-CR
RODRIGO VENTURA BADILLO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 401-80870-2016, 401-82197-2016
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Reichek
Opinion by Justice Schenck
Rodrigo Ventura Badillo appeals his convictions for sexual assault of a child,
indecency with a child by sexual contact, and assault on a family member impeding
breathing or circulation. In a single issue, appellant urges the trial court lacked
jurisdiction to enter adjudications of guilt and proceed to sentencing based on
amended petitions to adjudicate filed after the expiration of appellant’s deferred
adjudication. We reverse the trial court’s judgments and remand the cases to the
trial court for further proceedings consistent with this opinion. Because all issues
are settled in the law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
Appellant was charged by indictment with five counts of Sexual Assault of a
Child and four counts of Indecency with a Child by Sexual Contact in cause number
401-80870-2016, and with Assault on a Family Member Impeding Breathing or
Circulation in cause number 401-82197-2016. On November 14, 2016, appellant
pleaded guilty to the charges in both cases and, pursuant to a plea agreement, was
placed on deferred adjudication for a period of two years. In anticipation of
appellant’s subsequent deportation, the trial court advised appellant that he would
still probably be expected to comply with the terms of his community supervision,
and provided appellant paperwork to assist him in remotely reporting and making
required payments. The trial court also admonished appellant not to illegally re-
enter the United States. Appellant was subsequently deported and failed to comply
with his community supervision conditions.
As a consequence, on February 17, 2018, in both the 401-80870-2016 and the
401-82197-2016 cases, the State filed petitions to adjudicate on all counts, and the
trial court issued a capias for appellant on the same day. In the petitions, the State
alleged that appellant failed to make certain payments and failed to report in
violation of the terms of his community supervision. The State also alleged that on
November 18, 2016, appellant committed the offense of Alien Present without
Admission or Parole. On September 20, 2018, the State filed its first amended
petitions to adjudicate in the sexual assault and indecency case, and the clerk of the
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court issued a precept to serve on the same day. In the amended petitions, the State
alleged additional violations of the community supervision conditions, including
additional months of failure to report, failure to participate in certain programs,
failure to submit to a substance abuse evaluation, and failure to pay additional
monies. On October 11, 2018, appellant committed the offense of illegal re-entry
into the United States. On November 13, 2018, appellant’s two year term of
community supervision expired. On November 20, 2018, the State filed its second
amended petitions to adjudicate in the sexual assault and indecency case. On the
next day, the State filed its first amended petition to adjudicate in the assault case.
The amended petitions alleged appellant’s illegal re-entry violated the terms of his
community supervision. Thereafter, the trial court issued capias in both cases.
On April 17, 2019, the trial court conducted a hearing on the petitions to
adjudicate guilt. Appellant pleaded “not true” to the allegations in the State’s
amended petitions to adjudicate in both cases. Appellant’s probation officer testified
to each of the violations alleged in the petitions. The State also established appellant
had been convicted by a federal court of illegal re-entry. At the conclusion of the
hearing, the trial court found the first allegation of the State’s petitions (that appellant
committed the offense of Illegal Re-Entry) true,1 entered an adjudication of guilt in
both cases, and sentenced appellant to 12 years confinement in each count in cause
1
Contrary to the trial court’s oral pronouncement at the hearing, the judgments adjudicating guilt state
that all of the violations alleged in the State’s amended petitions were found to be true.
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number 401-80870-2016, with all counts running concurrently, and to 5 years
confinement in cause number 401-82197-2016. These appeals followed.
DISCUSSION
Under article 42A.751 of the code of criminal procedure, the trial court’s
jurisdiction to conduct proceedings on a petition to adjudicate guilt is contingent on
the filing of the petition and the issuance of a capias before the expiration of the
supervisory period. TEX. CODE CRIM. PROC. ANN. art. 42A.751(l). If the petition is
timely filed and the capias is timely issued, the trial court retains jurisdiction over
the defendant and may conduct proceedings on the petition even after the
supervisory period expires. Nickolas v. State, 530 S.W.2d 537, 541 (Tex. Crim.
App. 1975). In such cases, the court’s right to adjudicate is limited to those
violations alleged in the petition filed before the supervisory period expired. Id.
In appellant’s cases, the State filed petitions to adjudicate guilt before the
expiration of the two-year supervisory term. But the State and the trial court did not
proceed on those petitions. Instead, they proceeded on amended petitions filed
approximately one week after the supervisory term expired. Because the trial court
did not have authority to adjudicate appellant’s guilt based on an amended petition
filed after the expiration of his supervisory term, the judgments are void. Ex parte
Moss, 446 S.W.3d 786, 789 (Tex. Crim. App. 2014).
Nevertheless, the trial court still retains jurisdiction over the other, timely filed
petitions to adjudicate and may conduct proceedings on those petitions on remand.
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See Guillot v. State, 543 S.W.2d 650, 653 (Tex. Crim. App. 1976) (holding trial court
could not revoke based on allegations contained in untimely revocation motion but
could proceed on other allegations alleged in previously and timely filed revocation
motion).
CONCLUSION
Accordingly, we reverse the trial court’s judgments and remand the cases to
the trial court for further proceedings consistent with this opinion.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 47
190594F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RODRIGO VENTURA BADILLO, On Appeal from the 401st Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 401-80870-
No. 05-19-00594-CR V. 2016.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Schenck. Justices Osborne and
Reichek participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
REVERSED and the cause REMANDED for further proceedings consistent with
this opinion.
Judgment entered this 4th day of May, 2020.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RODRIGO VENTURA BADILLO, On Appeal from the 401st Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 401-82197-
No. 05-19-00595-CR V. 2016.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Schenck. Justices Osborne and
Reichek participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
REVERSED and the cause REMANDED for further proceedings consistent with
this opinion.
Judgment entered this 4th day of May, 2020.
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