*1 HURWITZ, Appellant, Robert Allen ux., Petitioners, Robert J. ARBS et v. Texas, Appellee. The STATE of E. ROY THOMAS CONSTRUCTION 742-84. No. Thomas, Roy COMPANY and E. Individually, Respondents. Texas, Appeals Court Criminal En Banc.
No. C-4470. April 1985.
Supreme Texas.
Dec. 1985. Brown,
Bishop, Payne, An- Lamsens & Brassey Allbritton, Kelly
drew C. and M. Worth, petitioners.
Fort for
Steves, Jones, Leonard & Michael L.
Sampson, Worth, Fort respondents.
PER CURIAM. disposing ego question the alter held that there no support finding jury
evidence Also, ego.
alter of appeals court support was insufficient evidence to finding. egо
because that court rendered the alter
part of the conclude the actu- holding
al “no Therefore, appli-
evidence.” we refuse the Garza
cation for want of error. reversible Alviar, (Tex.1965).
Appellant pled guilty to Count II of the was, indictment. Count II under H.B. degree second felony was appropriately penalty admonished of the range by judge. the trial The effect of our Crisp, supra, decision in was that Count II reality degree Thus, in felony. was a third Marcos, Tx., Pape, James M. San for the trial told the appellant. maximum sentence he could receive was Walsh, Atty., Edward J. Dist. & Ken twenty years actually when it was ten Anderson, Atty., Georgetown, Asst. Dist. years. Huttash, Austin, Atty., Robert State’s conviction, affirming appellant’s In the State. State, court of relied on Taylor v. (Tеx.Cr.App.1980). Appel- Smith, heavily lant now relies on Ex which OPINION ON APPELLANT’S PETITION Taylor approval. cites At first FOR DISCRETIONARY REVIEW glance, this case seems to be identical to Smith, In Smith. this Court held that: MILLER, Judge. improp- “It was established was Appellant was convicted of the offense of penalty, er admonishment as to and ... possession pursuant of marihuana to V.A. plea bargain, plea bargain there was a 4.051(b)(4), Art. punish- C.S. 4476-15 § wrong range upon based was assessed court at two Appellant alleged ment. under oath he Depart- confinement in the Texas plea would not entered the bar- have ment of Corrections. gain he known the maximum had if penalty what he granted We review in this case to exam- one-half of was told. appeals handling appel- ine the court of lant’s contention that his plea [*] [*] [*] [*] [*] [*] voluntary. Specifically, appellant not con- applicant was not “We conclude that tended that since his indictment was fоr a consequences plea, aware his in crime contained an unconstitutional stat- that he was harmed the court’s ad- ute, judge’s admonishment as to monishment, further, under all the improper, circumstances, was not rendering guilty plea involuntary. his knowingly voluntarily entered.” added.) (Emphasis count was indicted a two charging indictment him Count with Smith, supra, appellant Like contends possessing fifty pounds mari- more than pursuant guilty, that his to a 4.051(d)(1), prohibited by huana V.A.C.S. § bargain agreement, was coerced because 4476-15, possess- Art. and in Count II with erroneously admonished as to pounds and less than more than five as- maximum availablе fifty pounds prohibited of marihuana pointed out correctly sessed. As 4.051(b)(4), Art. 4476-15. V.A.C.S. however, § appeals, there are some circumstances in the case at bar which parte Crisp, 661 S.W.2d aff'd. Smith, supra. distinguish it from rehearing, on 1983), held that House Bill Court Appellant pre-trial filed a motion Tex.Gen.Laws, added Ch. sole- quаsh the indictment which was based Act, Appeals opinion 4.051 to the was unconstitutional. Third ly upon the § We also held that the Controlled Sub hearing this mo- Bill 730 had
stances Act stood as House granted this Court had enacted. tion occurred never been after petition sound, the State’s for discretionary apрrove review it. The Crisp. The record reflects extensive the court of is affirmed. Court, discussion between the and defense concerning counsel the unset- CLINTON, Judge, concurring. tled state of the law until this Court ren- “primary analysis focus of the [of dered its decision in Crisp. As the court of compli is on substantial below] *3 appeals pointed decision, out in its it was 26.13, ance” Article with V.A.C.C.P. Hur apparent everyone to State, (Tex. witz v. 673 S.W.2d 351 charged third-degree felony with either a App. analysis That flows or, —Austin alternatively, aggravated possession premise part from its of his ad (Count I), second-degree felony and a rаnge punishment giv monishment as to of (Count II), depending on this Court’s hold- by judge en of the trial court is “erro
ing Crisp.
neous,” id.,
view, however,
my
at 350. In
Appellant very clearly had this knowl-
premise.
what is erroneous is that
edge
plea bargain
when he entered into his
A
days
guilty
few
before the
agreement
plea
with the
hear-
рlea
State. The
bar-
ing
gain agreement
the trial court had
a
pertinent part:
reads
overruled motion
quash
to
the indictment founded on the
agrees
plead
“The defendant
to
guilty to
holding
in Crisp v.
alleged
the offense
in Count II of the
1982), affirmed,
indictment. The
State elects to waive
Crisp,
aff’d on
proceed
Count of the indictment and
re-
hearing,
(Tex.Cr.App.1983).
Count II in return
plea.
for said
State
day
judge
recommends confinement in
On the
ap-
admonished
Department
Texas
pellant
of Corrections for
range
punishment provided
two
of
(2) years.”
by statute
degree felony
for the second
charged
with which he was then
was a
Essentially what the State did was waive
term not more than twenty years nor less
aggravated portion
of the indictment
than two
and a fine not to exceed
and recommend a
which would
$10,000. That is precisely what the trial
be the minimum whether the offense were
appellant.
informed
a
third-degree felony,
second or
in return
appellant’s plea
guilty.
of
An
comporting
with
then in
simply
effect
is not “errone
facts,
agree
Given this set of
we must
ous.” That there is extant —but not final—
holding
in the
court of
opinion
appellate
holding
of an
that:
legislative
invalid the
act from
may
appellant’s
“Whilе we
conclude that
particular offense is derived would not au
plea
decision as to his
may
be entered
require
judge,
thorize or
who has earlier
have been rendered
more burdensome
statute,
against
overruled an attack
the unsettled state
we cannot
range
state a
other than
conclude that he was misled or harmed
provided
Legislature.
therein
admonishment,
the court’s
which the
See Komurke v.
235
S.W.2d
might might
record reflects
or
knew
(Tex. App.1978).
Cr.
clear,
equally
not be correct.
It is
as to
knowledge
consequences
his
of the
his
To
find an admonishment as to
plea, that he was aware that he had
punishment wanting
statutory
because the
bargained for the
minimum
underlying
prosecution
amendment
available, regardless
uncertainty
of the
is,
course,
later found unconstitutional
as to whether the offense was a second-
indulge
fiction. Rather than
sheer
third-degree felony.” (Emphasis orig-
continuing
engage
fiction,
in that kind of
inal.) 673
S.W.2d
at 351.
propriety
accept-
the Court should test
reasoning
fol-
or nolo contendere
affirming
26.13, V.A.C.C.P.,
light
lowed in
conviction
under Article
existing
statutory prescrip-
substantive
circumstances,
contends that “under the
it
tion of the
charged
offense
manifestly
unfair to threatеn him with
—then
presumptively valid,
after all—as
a twenty-year exposure, and the action of
well as the admonishment
given
that is
doing
trial court in so
had a coercive
other
accompanying
conditions
entry of the
concerning
effect
entered.”
plea.
Reiterating that contention in his brief оn
merits, appellant
adds a citation to and
Acceptance
guilty passes
quotes
parte Smith,
from Ex
muster
in those
circumstances in this
(Tex.Cr.App.1984);
it
cause. The admonishment
had not been de-
was correct and
proper
given.
when
opinion
the absence of
cided
this Court before the
evi-
showing
dence
otherwise it follows that the
the court below was delivered.
guilty plea was
freely
and voluntar-
Similarly,
majority opinion
examines
Thus,
ily.
compliance”
“substantial
is not Smith,
though
the majority
pro-
in the case.
*4
distinguish
ceeds to
Smith from the cir-
plea bargain appears
The
regular,
to be
cumstаnces of
perceived
this
nothing
sug-
there is
in this record to
need to make that distinction lends credibil-
gest
that
in the face of a mountain of
ity
weight
precedential
to its
value.
support
to
finding
guilt, ap-
evidence
a
of
Smith,
like this cause
seen by the
pellant
any
entered his
other rea-
appeals,
involved a “substantial
perfect
appeal
son than to
an
on the merits
compliance” determination. Without ex-
suppress
of his motion to
that evidence. plaining
finding
its reason for
that admon-
judgment
The
and sentence in this cause
“improper,”
merely
ishment
Smith
states:
“possession
describе the offense as
of mar-
question
“There can be no
that the admoni-
stating
ihuana” —without
a classification as
proper.”
tion was not
But for the fact that H.B. 730 was subse- range as to for a second quently found unconstitutional there would degree felony actually given by the trial question prosecution be no about what the Presumably, was “erroneous.” agreed and accused to do and did and what similar but unstated rationale led to the ultimately trial court did. Under each ground Retroactively, same appellant acknowledges that conclusion Smith. then, range correctly an admonishment assessed is within the at incorrect, felony degree. (Actually depending of the third it is the time becomes minimum.) Nevertheless, may the absolute on other circumstances undo the en- Indeed, sought ipso 1. has not review on a would not render otherwise free facto However, theory given voluntary plea "involuntary.” that when admonishment ground per punish erroneous se. His for review is: other factors—such as assessment of higher range petitioner pursuant ment within a than authorized "The trial of to his indict might require the revived under an reversal of the ment unconstitutionаl statute ren law— Compare conviction. guilty plea involuntary.” dered his And as I Hernandez S.W.2d 734 ground understand his of error one in the court appeals, substantially it is stated the same. (There is a misstatement of historical fact in State, supra, at 350. So far no one page Hurwitz Crisp At 735 it is stud that "in Hernandez. headon, ground sеems to have addressed the we refused to set aside the convictions ...” opting corpus proceeding instead to look at a contention made basis for the habeas first, Addressing ground underlying prospective under it. I find it the statute unconstitutional; prosecution is untenable for much the same reаsons I would trial had not held; judgment appeals: yet no to set affirm the of the court of been were convictions 948.) Crisp, that the statute unconstitutional aside. See at was later found tire Judge Clinton, however, awards opines trial —Smith a new trial while ...” appellant is the issue of compliance,” deniеd one. “substantial see 26.13, V.A.C.C.P., Art. is not in the case. plea hearing in Smith had stated, soon For reasons am unable 16, 1983; on September an appeal was not agree Judge with Clinton issue opinion taken. The Crisp this Court compliance” of “substantial is not in this rehearing was not delivered until Decem- agree Judge cause. I do with developed ber Under rationale implicit suggestion Clinton’s that Ex ante, I am now convinced that in this Smith, 678 S.W.2d 78 aspect wrong. narrow is Smith Since expressly should be overruled. judge correctly range just trial stated the actually I believe that what is provided by applicable statute trying accomрlish in this cause to have effect, in my view apply this Court invoke and to this cause respect to the Smith provisions Section Art. Texas “improper.” was not Constitution, provides: “No bill I join For those reasons attainder, law, post ex facto retroactive Court. law, any impairing obligation contracts, shall be made.” JJ., McCORMICK, join. W.C. DAVIS In Millican v. 145 Tex.Cr.R. TEAGUE, Judge, concurring. (1943), Court wrote: I agree majority with the result post matters, “An ex facto in criminal *5 correct, the court of appeals that reached is by is defined Justice in Wheeler the case of appellant that is not entitled to 363, relief. Rob- page as Holt v. Tex. follows: Hurwitz, appellant, Allen ert had asserted prohibition post laws, as to ex facto appeal that his guilty, made Constitution Art. Section has been pursuant plea bargain agreement, to a was only held to extend law which to a makes erroneously coerced he becausе was ad- done passage act before its and which by judge done, criminal; monished as to the maxi- innocent was when possible punishment mum aggravates Be- available. which a crime and makes it committed; I reasoning greater cause find that “The than the when or which in affirming punishment appellant’s changes followed and inflicts a unsound,” reasoning punishment conviction is as greater is the than the law annexed cause, committed; in majority follows this I can crime to the when or which majority legal concur in the result rules evidence and alters the re- less, in reaches this cause. testimony ceives or diffеrent than the required law at time of commission majority’s reasoning What causes the offense, in order convict the of- faulty attempt- lies in the fact it (Citations Omitted.)” (190). fender. appel- issue resolve the of whether instance, however, properly appellant lant was trial admonished In this applying punished some form retro- under convicted what was spectivity However, be the presumptively what now know to valid law. law to parte Crisp, what was law at the time in Ex aff’d on rehearing, in guilty entered his this instance, 1983), but cause. this this Court affirmed decision of Judge correctly points Appeals, Clinton out the Austin Court of see concurring opinion that he has filed this 1982), “The declared because of Art. [that Constitution, Ill, received in this correct Section of the Texas cause] of evi- Act under proper given. when In the absence the Controlled Substances which was found was unconstitu showing dence otherwise it follows thаt voluntarily freely tional. Court also held that the Con This majority right trolled Act stood as the new reaches the result. Substances concur. law had never been enacted.
Thus, appellant is not the victim of a law changed for a crime
which committed, the crime had been which
after law, post he the
would be an ex facto nor is greater of a inflicted a
victim
punishment, an ex which also would be contrary,
post facto law. To but parte Crisp, what this Ex ALLEN, Virgil Appellant, Dean supra, appellant’s conviction stands as though he had been convicted under the considerably decreased former Texas, Appellee. STATE provided by the that was 271-84. No. convicted. law under which was Texas, Appeals of Court of Criminal bar, at virtue of the case En banc. supra, pаrte Crisp, in Ex
Court’s decision Dec. considerably has decreased offense been the new law. See from it was under what Scott, compare parte Ex instance, appel-
(Tex.Cr.App.1971). In this punishment that lant received minimum law, and provided the former under had the former law
there is no claim that аppellant pled guilty in effect when a different
he would have received This decision
ment. Court’s *6 the trial court’s admo-
Crisp, supra, caused to the maxi-
nition to be incorrect punishment that could have possible
mum State, 610 Taylor assessed. (Opin- Rehearing), a
ion on State’s Motion in admon- this Court held that
majority of defendant, states
ishing a punishment, possible minimum correct possi- incorrectly the maximum states
but pun- but the defendant’s punishment,
ble within the correct is assessed
ishment notwithstanding the punishment, compli-
error, has been substantial 26.13, of Art. V.A. provisions
ance with Thus, in this the admonish-
C.C.P. from the trial appellant received compliance with in substantial
judge was formerly in effect. that was did not trial court’s admonition
error plea to become invol-
cause the subject any type ex nor is he
untary,
post facto law.