Benavides v. State

[900] OPINION ON REMAND JACK SMITH, Justice. This is an appeal of a conviction for possession of marijuana in a quantity of more than five pounds but less than 50 pounds. Appellant plead guilty in a trial before the court and punishment was assessed at four years confinement pursuant to a plea bargain agreement. On appeal, this court, 652 S.W.2d 464 (Tex.App.1983), affirmed the conviction, and appellant filed a petition for discretionary review. 664 S.W.2d 328 (Tex.Cr.App.1983). The petition was granted and the judgment of this court was reversed and remanded. Appellant was charged and convicted under Tex.Rev.Civ.Stat.Ann. art. 4476-15, sec. 4.051(b)(4).1 Appellant contends that his conviction was unconstitutional as the caption to H.B. 730, which amended the Controlled Substances Act, failed to meet the requirements of Tex. Const, art. Ill, sec. 35 and was therefore invalid. He further contends that the invalidity of that statute removes the conduct of possessing marijuana from criminal penalties. In Ex parte Crisp, 661 S.W.2d 944 (Tex.Crim.App.1983), H.B. 730 was held unconstitutional. However, when an amendment to an act is declared invalid, the original act remains in full force and effect. Tex. Const, art. Ill, sec. 35. The pre-amendment Controlled Substances Act provided that “a person commits an offense if he knowingly or intentionally possesses a usable quantity of marijuana.” We therefore hold that the invalidity of the statute did not remove the conduct of possessing marijuana from criminal penalties. Appellant’s ground of error is overruled. The pre-amendment act also provided that possession of over four ounces was a third-degree felony and as such, carried a penalty of from two to 10 years confinement and a fine not to exceed $5,000. Art. 4476-15, sec. 4.05(b)(1). Appellant was charged and convicted under H.B. 730 under which the penalty range of possession of more than five but less than 50 pounds of marijuana was from two to 20 years confinement and a fine not to exceed $10,-000. However, he had not alleged that he would not have entered a plea of guilty if he had known that the proper range of punishment was not less than two nor more than 10 years. Prior to accepting a plea of guilty the court must admonish the defendant of the range of punishment attached to the offense or a plea of guilty shall be invalid. Hardman v. State, 614 S.W.2d 123 (Tex.Crim.App.1981); Tex.Code Crim.P.Ann. art. 26.13(a)(1) (Vernon 1977). However, where an erroneous admonishment is given, substantial compliance will still be deemed to have occurred and the burden shifts to the defendant to show that he entered his plea without understanding the consequences of such plea and thus was harmed. Ex parte Smith, 678 S.W.2d 78 (Tex.Crim.App.1984); Ex parte McAtee, 599 S.W.2d 335 (Tex.Crim.App.1980). Appellant has not alleged nor shown harm. Therefore, in the present case, the judgment of the trial court is affirmed. COHEN, J., dissenting. Footnotes [1] Ch. 429, 1973 Tex.Gen.Laws 1132, amended by Ch. 268, sec. 7, 1981 Tex.Gen.Laws 702 (eff. Sept. 1, 1981).