Hurwitz v. State

700 S.W.2d 919, 1985 Tex. Crim. App. LEXIS 1042

• Court: Court of Criminal Appeals of Texas
• Decided: April 10, 1985
• Docket: 742-84
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted of the offense of possession of marihuana pursuant to V.A. C.S. Art. 4476-15 § 4.051(b)(4), and punishment was assessed by the court at two years confinement in the Texas Department of Corrections.

We granted review in this case to examine the court of appeals handling of appellant’s contention that his plea of guilty was not voluntary. Specifically, appellant contended that since his indictment was for a crime contained in an unconstitutional statute, the trial judge’s admonishment as to the range of punishment was improper, rendering his guilty plea involuntary.

The appellant was indicted in a two count indictment charging him in Count I with possessing more than fifty pounds of marihuana prohibited by § 4.051(d)(1), V.A.C.S. Art. 4476-15, and in Count II with possessing more than five pounds and less than fifty pounds of marihuana prohibited by § 4.051(b)(4), V.A.C.S. Art. 4476-15.

In Ex parte Crisp, 661 S.W.2d 944, aff'd. on rehearing, 661 S.W.2d 956 (Tex.Cr.App.1983), this Court held that House Bill 730, 1981 Tex.Gen.Laws, Ch. 268, which added § 4.051 to the Act, was unconstitutional. We also held that the Controlled Substances Act stood as if House Bill 730 had never been enacted.

Appellant pled guilty to Count II of the indictment. Count II was, under H.B. 730, a second degree felony and appellant was appropriately admonished of the penalty range by the trial judge. The effect of our decision in Crisp, supra, was that Count II was in reality a third degree felony. Thus, the trial judge told the appellant that the maximum sentence he could receive was twenty years when it was actually ten years.

In affirming appellant’s conviction, the court of appeals relied on Taylor v. State, 610 S.W.2d 471 (Tex.Cr.App.1980). Appellant now relies heavily on Ex parte Smith, 678 S.W.2d 78 (Tex.Cr.App.1984), which cites Taylor with approval. At first glance, this case seems to be identical to Smith. In Smith, this Court held that:

“It was established there was an improper admonishment as to penalty, and ... there was a plea bargain, a plea bargain based upon the wrong range of punishment. Appellant alleged under oath he would not have entered the plea bargain if he had known the maximum penalty was only one-half of what he was told.

* * * * * *

“We conclude that applicant was not aware of the consequences of his plea, that he was harmed by the court’s admonishment, and further, under all the circumstances, the guilty plea was not knowingly and voluntarily entered.” (Emphasis added.)

Like Smith, supra, appellant contends that his plea of guilty, pursuant to a plea bargain agreement, was coerced because he was erroneously admonished as to the maximum punishment available to be assessed. As correctly pointed out by the court of appeals, however, there are some circumstances in the case at bar which distinguish it from Smith, supra.

Appellant filed a pre-trial motion to quash the indictment which was based solely upon the Third Court of Appeals opinion in Crisp v. State, 643 S.W.2d 487 (Tex.App. —Austin 1982). The hearing on this motion occurred after this Court had granted the State’s petition for discretionary review in Crisp. The record reflects extensive discussion between the Court, the State, and defense counsel concerning the unsettled state of the law until this Court rendered its decision in Crisp. As the court of appeals pointed out in its decision, it was apparent to everyone that appellant was charged with either a third-degree felony or, alternatively, aggravated possession (Count I), and a second-degree felony (Count II), depending on this Court’s holding in Crisp.

Appellant very clearly had this knowledge when he entered into his plea bargain agreement with the State. The plea bargain agreement reads in pertinent part:

“The defendant agrees to plead guilty to the offense alleged in Count II of the indictment. The State elects to waive Count I of the indictment and proceed on Count II in return for said plea. The State recommends confinement in the Texas Department of Corrections for two (2) years.”

Essentially what the State did was waive the aggravated portion of the indictment and recommend a punishment which would be the minimum whether the offense were a second or third-degree felony, in return for appellant’s plea of guilty.

Given this set of facts, we must agree with the holding in the court of appeals that:

“While we may conclude that appellant’s decision as to his plea to be entered may have been rendered more burdensome by the unsettled state of the law, we cannot conclude that he was misled or harmed by the court’s admonishment, which the record reflects he knew might or might not be correct. It is equally clear, as to his knowledge of the consequences of his plea, that he was aware that he had bargained for the minimum punishment available, regardless of the uncertainty as to whether the offense was a second- or third-degree felony.” (Emphasis original.) 673 S.W.2d 347 at 351.

The reasoning the court of appeals followed in affirming appellant’s conviction is sound, and we approve it. The judgment of the court of appeals is affirmed.