Ex parte Carpio

684 S.W.2d 708 | Tex. Crim. App. | 1985

OPINION

PER CURIAM.

This is a post conviction application for a writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.

Applicant was indicted for delivery of marihuana “fifty pounds or less but more than five pounds.” He was convicted upon his plea of guilty before the court, on March 21, 1983, and the court sentenced him to fifteen years’ confinement.

Applicant was charged and punished under the provisions contained in House Bill 730,¹ which was declared infirm in Ex Parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983). He contends that his conviction is therefore invalid.

At the time applicant pled guilty, the offense for which he was indicted was a first degree felony punishable under H.B. 730, by confinement for life or for a term not more than 99 years nor less than 5 years, and a fine not to exceed $20,000.² In Ex Parte Crisp, supra, we held that although H.B. 730 was defective, the original act stands as though H.B. 730 had never been enacted. Under the original act the offense with which applicant was charged was a third degree felony, punishable by confinement for a term of not more than 10 years or less than 2 years, and a fine not to exceed $5,000. Art. 4476-15, Sec. 4.01(b)(3) and 4.05(d), (e), V.A.C.S. Applicant was sentenced to fifteen years’ confinement.

Accordingly, applicant is entitled to have his punishment reassessed under the provisions of the original act. We remand this cause to the trial court for reassessment of punishment within the range set forth in the original act.

1 . Acts of the 67th Leg., Reg.Sess, 1981, ch. 268, pg. 696-708, effective September 1, 1981.

2 . Art. 4476-15, Sec. 4.05, V.A.C.S.

From the record before us, it appears that applicant was erroneously admonished that the punishment range was not more than 20 years nor less than 2 years, and a fine not to exceed $10,000. However, absent a plea bargain, (of which there is no evidence) we fail to see how applicant was harmed by the admonishment.