Gonzales v. StateGonzales v. State
A jury сonvicted appellant of delivery of more than four ounces and less than five pounds of marihuana, art. 4476-15, § 4.05(a), Tex.Rev.Civ.Stat.Ann. (Yernon Supp.1982), and assessed his punishment at three years confinement in the penitentiary. Art. 4476-15, § 4.05(b)(4), Tex.Rev.Civ. Stat.Ann. (Vеrnon Supp.1982);
We will initially resolve appellant’s first ground, by which he attacks the constitutionality of the statute under which he was convicted. Appеllant was charged with delivering more than four ounces and less than five pounds of marijuana to an undercover law enforcement officer. The delivery occurred on November 10, 1981 and appellant was convicted on August 24, 1982. Appellant was tried under article 4476-15, § 4.05, Tex.Rev.Civ.Stat.Ann. as amended by House Bill 730, passed by the 1981 Texas Legislature.
Prior to the 1981 amendment, appellant’s activities, while still illegal, would have been punishable under § 4.05 as a third-degree felony. Art. 4476-15, § 4.05, Tеx. Rev.Civ.Stat.Ann. (Vernon 1976). Under the 1981 amendment, the penalty was elevated to a second-degree felony, art. 4476-15, § 4.05(b)(4), (Vernоn Supp.1982), and the jury was instructed on the punishment range for a second-degree felony. The three-year sentenсe imposed by the jury was within the range of punishment permissible under either the pre-1981 statute or the 1981 amendment.
The cоnstitutionality of House Bill 730 was resolved by the Court of Criminal Appeals in
Ex parte Crisp,
The more difficult question, at this time, is whether appellant is entitled to a new trial. In striking down House Bill 730, the Court of Criminal Appeals observed that article 4476-15 “stands as though H.B. 730 had never been еnacted.”
Crisp,
By contrast, the Austin Court of Appeals has held that a new trial is required in such circumstances, at least if the punishment
*620
exceeds the minimum available under the correct statute.
Sanchez v. State,
We believe
Sanchez
represents the correct resolutiоn of the problem. A defendant is entitled to a correct instruction on the range of punishment and we are not willing tо assume he is not harmed if the jury is told it can assess more than the law permits and it assesses more than the minimum availablе under the correct range. The range of punishment is society’s statement of the seriousness of the crime and nеcessarily influences the jury in its punishment decision. We hold, therefore, that a defendant is entitled to a new trial when thе jury is erroneously instructed that the maximum punishment is greater than the law allows and it assesses more than the minimum punishment avаilable under a correct instruction.
Accord, Steele v. State,
By his second ground of error, appellant contends he was entitled to a limiting instruction, at the punishment phase of the trial, on extraneous offenses placed in evidence during the guilt or innocence phase of the trial. We notе that appellant first injected the extraneous offenses into evidence by his cross-examination of a State’s witness. Under a similar record, the Court of Criminal Appeals held, in
Carpenter v. State,
By his third ground, appellant questions the admissibility of the marihuana he sold to the undercover officer. Appellant contends the chain of custody was broken, and the evidеnce tampered with, because the marihuana weighed two ounces less at the chemist’s laboratory than it wеighed when appellant sold it to the officer. Apparently appellant purported to sell the officer sixteen ounces and the quantity delivered to the chemist weighed fourteen ounces. Although the fate of the missing two ounces leads to interesting speculation, we cannot conclude that its absence breaks the chain of custody and precludes the admission of the remaining fourteen ounces. The problem is, at best, one of weight, not admissibility.
Darrow v. State,
By his fourth ground, appellant contends he should have been аllowed to attack the credibility of the undercover officer by asking him about weight discrepancies in other mаrihuana purchases he had made. Within the context of the record before us, the trial court did not err in refusing to permit appellant to pursue the matter. It is remote from any significant issue in the case and would only distract the jury frоm the material issues before it.
Taylor v. State,
By his fifth ground, appellant complains about a portion of the State’s final argumеnt to the jury. We will not resolve the ground because, if sustained, it would not give appellant any greater relief than hе has already received and the argument in question probably will not be repeated on retrial.
The judgment of conviction is reversed and the case is remanded to the trial court.