*1 withdrawn, plea could be when it is well parte Christopher L. TIPTON. settled that Article 26.13 apply appellant misdemeanor cases. If the had counsel, availed right himself of his he should have been correctly advised that the Appeals prosecutor was giving false assurance. Fi- En Banc. court, nally the trial gave several admonishments,
admirable inquire did not explicitly bargain. plea whether there was a practice commend as better
“[W]e
cedure whereby judge trial
record informs the defendant and the at-
torneys both the defense and they duty
State that have a to enumerate
to the court and record the upon the
details any agreements
been plea negotia- reached as a result of
tions. The instances which defendants attorney misled their own or the reduced, attorney should
well as the instances in which defendants
feel they have been misled or deceived. why
We reason perceive can no valid
this manner the whole of plea
bargaining should not be out of brought open light shadows and into the
day. only effect can be more even- justice,
handed a better informed exercise judicial discretion, and an increase
the extent to which defendants feel the justice
criminal system has treated them
fairly.”
Cruz v. (Tex.Cr. 530 S.W.2d
App. 1975)(footnote omitted). Accord, Gib
son 75 (Tex.Cr.App.
1975)(“the practice upon recommended en
try of a guilty plea inquiring whether the
plea is the consequence negotiations, so,
if what the terms of the negotiated plea
are”). the cause is reversed judgment
remanded.
263 Austin, Huttash, Atty., Robert The indictment in No. 12257in Cause the State. Twelfth Judicial District Court of Walker petitioner is
County ordered dismissed is ordered released from restraint in- by curred virtue of under conviction said void opinion indictment. A of this will copy OPINION be to the sent Texas Department of Correc- ODOM,Judge. tions. a writ application original This is an ordered accordingly. Relief 11.07, V.A.C.C.P. Art. corpus. of habeas currently incarcerated petitioner is The of Corrections. Department
the Texas CLINTON, Judge, concurring. illegally petitioner alleges The that he is The squarely for the rests Court indictment restrained since the under soundly law, on applicable and the he stands convicted and incarcerated is decision is I write entirely correct. to com- void. 12257in This indictment Cause No. the utterly approach ment on simplistic tak- Twelfth Judicial District Court en by dissenting opinion. remarkable alleges part, Walker County pertinent did and in- petitioner “knowingly carefully, Read Section 2.02 of the Texas tentionally possess controlled substance Controlled Substances Article listed in Penalty Group No. to wti [sic]: V.A.C.S., does not mean what the dissent (emphasis added.) Hashish exami- ...” An suggest by seems to underscoring “com- nation 2” of the “Penalty Group No. mon, usual, chemical” no such in the reveals drug as “hashish” listed. The indictment section: The intended to itself is a explain why clearly stated that controlled sub- controlled substance. stance listed in a or penalty group schedule by includes other name which par-
The law follows: applicable ticular substance may be known. by listing “tetrahydrocannabinol” the Legisla- we hold generally, “To state the for, ture meant to embrace “hashish” that under prosecution in a the Controlled least, to the dissent former is manufacture, de- Substances the chemical name by which the latter is not livery, possession of a substance “usually and The commonly sug- known.” group in a specifically named gestion specious. is which is otherwise described group, description ... such is an essential reading reflected the dissenting offense which must element of the opinion tortures language, and it cre- to state in order alleged in the indictment problems single ates more than the issue it an offense.” purports to resolve. Wilson, Ex parte 908-09. S.W.2d First, omitting language by irrelevant el- indictment, therefore, instant does lipsis produces section, kernels State, allege against is void offense viz: Taylor to collateral attack. See v. S.W.2d “The controlled substances listed or to 908-09; see also supra at Crowl be listed ... ... name they may designated.”1 emphasis 1. All is mine unless indi- otherwise cated. common,usual, chemical or
At the outset the tells us trade nomencla- statement what dealt with are substances ture. either listed or to be listed—of point The second is that tetrahydrocanna- some manner in one list or another. Then (THC) not, binol as the dissent would says that listed it, “the chemical name for that sub- *3 by” whatever name et cetera. Note imme- stance ... known as hashish.” As I under- diately that the language is not listed took explain to in Few v. substances something “include” else—the (Tex.Cr.App.1979), “psy- THC is the parlance common and ordinary legislative ingredient choactive responsible eupho- for to express used an enlargement, having the hallucinogenic riant and of properties the meaning of “and or in to.” addition Black’s plant (Cannabis L.) sativa products,” and its (Rev. 1968) Dictionary Law Fourth Ed. 905. Few, 581, at but once was synthesized THC Rather, the listed substances included it “became available as a substitute the name by” “they may be substance,” id., organic So, at 582. while In the context “to desig- used here the verb may THC, hashish contain it is not THC. apart nate” means “to set indicate or for Indeed, pointed Few, as out in at 583: office, id. at
[specific] purpose” or
Thus,
material,
Dictionary,
any
Webster’s New
“...
Collegiate
compound,
G. &
Merriam
(1979)
C.
305. Use of
Company
preparation
mixture or
which contains
the word “designated”
convey
the
hallucinogenic
amount of
substance
of being “known,”
idea
the
for
latter is
in
tetrahydrocannabinol
—other
id.,
defined as “generally recognized,”
at
marihuana—is within
contemplation
the
indicated or
633,
Penalty Group
almost the antithesis
of
2.”
And,
function.
particular
for a
apart
Put
set
another way
present
for
purposes, one
setting apart, the
or
finally, the indication
man’s
be another man’s
list “charas,” Few,
581,
another
“Chira,”
or
at
“Magoon,”
to be in one
designation—is
short,
“Majun,”
In
“Madjun”
“Manzul,”
or
group.2
Grin-
schedule and
spoon,
Marihuana Reconsidered,
substance
Harvard
identifies a controlled
2.02
§
(1971)
Press
designat- University
or even mari-
which it
to the name
huana,3 which,
is one
group—
reason that
in a schedule or
a list
ed in
not only a penal statute but
charging
also a
that name
of whether
regardless
controlled
substances
to
listed or
2. The Act is the
the Uniform
Texas version of
206,
listed in schedules in sections
Act,
Law An-
9 Uniform
notated,
212 are
Edition,
and
whatever offi-
Master
In Ex
195 ff.
cial, common, usual, chemical,
(Tex.Cr.App.1979)
or trade name
listed controlled involved it. substance mischief the Finally, demonstrated Texas, Appellee. The STATE of per- dissenting generate opinion would requirement mit necessitates the laid down charging instrument by the Court that the is noted as a con-
“explain why ‘hashish’ Appeals of trolled substance.” Panel No. comments, join With these 10, 1981. for the Court. *4 McCORMICK, Judge, dissenting.
The majority grants relief in this cause
because the indictment alleged possession of
“Hashish” rather “tetrahydrocannabi-
nol.” Such a collateral attack should not be
allowed in light of Section
2.02 of the Controlled (V.A. Substances Act
C.S. Article 4476-15). That section
vides:
“The controlled substances listed or to be
listed in the I, schedules in II, Schedules
III, IV, and V 1, 2, and Penalty Groups
and 4 are
common, usual, chemical, or trade name
they may (Emphasis
supplied) chemical is the
Tetrahydrocannabinol usually and com-
name for that substance such a Although known as hashish.
monly subject to a motion
pleading may fundamentally defective
quash, it is not habeas attack
is not to collateral Anderson
corpus. See 1981). clear ignore
To is to hold otherwise 2.02, supra.
language and intent Section dissent. respectfully