source: Caselaw Access Project

author: ONION, Presiding Judge. TEAGUE, Judge, CLINTON, Judge,

license: Public Domain

text:
    Robert Lee DUGARD v. The STATE of Texas, Appellee.
    No. 611-83.
    Court of Criminal Appeals of Texas, En banc.
    April 17, 1985.

      Terrence Gaiser, Houston, for appellant.
    John B. Holmes, Jr., D.A. & Calvin Hart-mann, Joe Magliolo, Larry Schreve & Karen Zellars, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S MOTION FOR REHEARING ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted of aggravated rape and his punishment was assessed by the jury at 45 years’ imprisonment.

On appeal appellant advanced three grounds of error. He contended the trial court erred in failing to afford him a hearing on his motion for new trial where it was shown by a juror’s affidavit that the jurors discussed the parole law, that the court erred in overruling his motion when it was shown by affidavit that the parole law was discussed and one juror was influenced and voted for a harsher punishment denying him a fair and impartial trial. The Houston Court of Appeals (1st Dist.), after reviewing the circumstances, decided that it was unlikely the affidavit, without more, would have resulted in the granting of a new trial citing Munroe v. State, 637 S.W.2d 475 (Tex.Cr.App.1982), but speculated that on a hearing, evidence could be offered warranting a new trial on the grounds of jury misconduct. Upon the authority of Article 44.24(b), V.A.C.C.P., that the appellate court “may enter any other appropriate order as the law and nature of the case may require” the Court of Appeals abated the appeal and remanded the cause to the trial court for a belated hearing on the motion for a new trial.

On original submission we refused the State’s Petition for Discretionary Review. We granted State’s Motion for Rehearing in light of the arguments advanced there and the overruling of Munroe in Sneed v. State, 670 S.W.2d 262 (Tex.Cr.App.1984).

All three grounds of error relate to the motion for new trial process. The sequence of events thus becomes important. On January 22, 1982, appellant was sentenced. On February 22, 1982, two motions for new trial were filed. One was filed by appellant’s trial counsel. It was signed and sworn to by the appellant. It alleged, inter alia, but simply “That the Jury was guilty of misconduct in that a juror conversed with a witness in regards to this case.” No affidavit was attached to said motion. Attorney Walter Boyd, appellant’s new counsel, also filed a motion for new trial on the same date. It was not signed and sworn to by the appellant. The motion alleged, inter alia, simply “5. There was jury misconduct.” There was no affidavit attached.

On April 5, 1982, seventy-three days after sentencing, attorney Boyd filed “Defendant’s Motion for a Hearing on His Motion for New Trial.” Attached to this motion was the affidavit of a juror for the purpose of establishing jury misconduct. The affidavit stated in pertinent part:

“During the guilt phase of the [trial] one fo (sic) the jurors mentioned during jury deliberation that criminals do not serve more than ⅛ or of their sentences or words to the effect. Then during the punishment phase, there were two women who were holding out for a punishment less than 45 years. One of these ladies stated that she would agree to a 45 year sentence because the defendant would be out in 10 or 15 years; or words to this effect. One of the jurors then said that we were not supposed to discuss this but then this lady nevertheless changed her mind and voted for 45 years. This lady who changed their mind was influenced for a shorter punishment because the defendant was a young man and had no prior criminal record.”

On the same day (April 5, 1982), the court afforded the appellant a hearing on his motion requesting a hearing on his new trial motion. It does not appear the State was represented at the hearing. The record reflects:

“THE COURT: Several things come to the court’s mind, Mr. Boyd. Number one, I think more than five days has elapsed from the verdict in this case, or from the time the sentence was imposed, number one. Number two, motion for new trial should be filed within 30 days of the date of sentence. I don’t think this was filed timely, thirdly, if your motion had been filed timely, you’ve not brought it to the court’s attention within ten days after you filed the motion. I don’t think I have jurisdiction to hear your Motion for New Trial. Having said that, even if the court had jurisdiction to hear your Motion for New Trial, I find that it is wholly without merit in that your affidavit of your juror doesn’t state any misconduct, if any, that influenced his decision. Just merely an allegation that some other person changed their mind allegedly because of misconduct, in this affidavit, it doesn’t say where he keeps his crystal ball or how long he’s been able to read minds. The court is not going to entertain your Motion for New Trial, but if it had, it would deny it because there’s no substance to the Motion.”

After colloquy between the court and attorney Boyd, the court stated:

“There’s nothing properly before this court to deny. I have just given you a hearing because you want to get on the record and expound and I’ve given you that opportunity.”

There was no request that the affidavit be considered as attached to the motion for new trial, nor was it introduced into evidence. Nevertheless, the court was familiar with the same as indicated by the record.

On April 7, 1982, seventy-five days after sentencing, the motion for new trial was overruled by operation of law.

In 25 Tex.Jur.3rd, Criminal Law, § 3455, p. 312, it is stated:

“... The right to move for a new trial in a criminal case is purely statutory; it is not part of the common law engraft-ed on the Texas system of jurisprudence. The Remedy must be pursued in the manner prescribed by statute.” (Emphasis supplied.) See also Banks v. State, 79 Tex.Cr.R. 508, 186 S.W. 840 (1916).

Chapter 40 of the 1965 Code of Criminal Procedure deals with “New Trials.” “A ‘new trial’ is the rehearing of a criminal action, after verdict, .before the judge or another jury.” Article 40.01, V.A. C.C.P. A motion for new trial can be granted only on the motion of the defendant, not of the State. Article 40.02, Y.A.C. C.P. Castro v. State, 42 S.W.2d 779 (Tex. Cr.App.1931). And no authority exists for the court to grant a new trial on its own motion. Zaragosa v. State, 588 S.W.2d 322 (Tex.Cr.App.1979); Stevenson v. State, 600 S.W.2d 307 (Tex.Cr.App.1980); Ex parte Ybarra, 629 S.W.2d 943 (Tex.Cr.App.1982). See also Ramirez v. State, 587 S.W.2d 144 (Tex. Cr. App. 1979).

A defendant in a criminal case must establish the truth of the allegations contained in his motion for new trial. King v. State, 502 S.W.2d 795 (Tex.Cr.App.1973).

The statutory time to apply or move for a new trial and to amend such motion is set forth in Article 40.05, V.A.C.C.P., as amended in 1981, which provides:

“(a) A motion for new trial, if filed, shall be filed prior to or within 30 days after the date the sentence is imposed or suspended in open court.
“(b) One or more amended motions for new trial may be filed without leave of court before any preceding motion for new trial filed by the movant is overruled and within 30 days after the date the sentence is imposed or suspended in open court.
“(c) In the event an original or amended motion for new trial is not determined by written order signed within 75 days after the date the sentence is imposed or suspended in open court, it shall be considered overruled by operation of law on expiration of that period.
“(d) It shall be the duty of the proponent of an original or amended motion for new trial to present the same to the court within 10 days after the same is filed. However, at the discretion of the judge, an original motion or amended motion for new trial may be presented or hearing thereon completed after such 10-day period. Such delayed hearing shall not operate to extend the 75-day time limit within the original or amended motion must be determined.
“(e) Within the time limits prescribed in this article, a motion for new trial may be filed after the expiration of the term at which the date the sentence was imposed or suspended in open court, either during a new term of court or during vacation, and a motion for new trial may be determined in vacation or at a new term of court, and need not be determined during the term at which filed.” (Amended by Acts 1981, 67th Leg., p. 803, ch. 291, § 107, eff. Sept. 1, 1981.)

In the instant case the appellant contends he was entitled to a new trial because of jury misconduct. It is well established that a motion for new trial alleging jury misconduct must be supported by the affidavit of a juror or some other person who was in a position to know the facts, or must state some reason or excuse for failing to produce the affidavits. Procella v. State, 395 S.W.2d 637 (Tex.Cr.App. 1965); Mason v. State, 459 S.W.2d 855 (Tex.Cr.App.1970); Howard v. State, 484 S.W.2d 903 (Tex.Cr.App.1972); Story v. State, 502 S.W.2d 764 (Tex.Cr.App.1973); Ward v. State, 505 S.W.2d 832 (Tex.Cr. App.1974); Bearden v. State, 648 S.W.2d 688, 690 (Tex.Cr.App.1983), and cases there cited.

An issue of jury misconduct cannot be raised by a motion for new trial without a specific affidavit stating facts, not mere suspicions. Vyvial v. State, 10 S.W.2d 83 (Tex.Cr.App.1928).

Thus a new trial motion alleging jury misconduct in order to be sufficient as a pleading must be supported by a proper affidavit. Procella v. State, supra; Mason v. State, supra.

Failure to grant a new trial because of alleged misconduct is not error where no affidavit of juror is attached to the motion. Barrera v. State, 371 S.W.2d 881 (Tex.Cr. App.1963); Procella v. State, supra. And certainly if the motion for new trial is not verified and no affidavits are filed to support it, the trial court is justified in overruling the motion. Bearden v. State, supra. See also Bernal v. State, 647 S.W.2d 699 (Tex.App. — San Antonio 1982). In fact, such motion has been characterized as “fatally defective.” Carruthers v. State, 143 Tex.Cr.R. 45, 156 S.W.2d 989 (1941).

Further, a juror’s affidavit attached to a motion for new trial on grounds of alleged jury misconduct does not prove itself, Kindell v. State, 407 S.W.2d 784 (Tex. Cr.App.1966), cert. den. 385 U.S. 933, 87 S.Ct. 293,17 L.Ed.2d 213, and is only a part of the pleading, and absent any evidence offered in support of the motion, the motion is properly overruled. Davis v. State, 419 S.W.2d 648 (Tex.Cr.App.1967).

The policy of the general rule requiring the affidavit of a juror or other person who was in a position to know the facts to be attached to a new trial motion alleging jury misconduct is to discourage “fishing expeditions” in an effort to impeach a jury verdict. Stephenson v. State, 494 S.W.2d 900 (Tex.Cr.App.1973). See also Williams v. State, 219 S.W.2d 688 (Tex.Cr.App.1949). A defendant is not entitled to a “fishing expedition” into supposed jury misconduct. Forgey v. State, 350 S.W.2d 32 (Tex.Cr.App.1961); Mason v. State, supra.

“[T]o hold otherwise would authorize in every case the making of general indefinite motions for new trials upon information and belief without specific averment of fact or supporting affidavit, and in such form as that same would not support prosecutions for perjury, which would compel trial courts to order process for any and all parties that might be desired and to enable the parties thus convicted to go upon limitless fishing expeditions.” Vyvial, 10 S.W.2d at 84-85.

Appellant was sentenced on January 22, 1982. Under Article 40.05(a), as amended 1981, a motion for new trial must be filed within 30 days after the imposition of sentence. Both motions for new trials were filed on February 22,1982. While the motions appear to have been untimely filed by one day since February 21st was the 30th day, the 21st was a Sunday, and the time was extended to Monday (February 22nd). Tex.Cr.App.R. 7. The motions were timely filed. Neither motion, however, constituted proper pleadings. No affidavit was attached to either. See Norman v. State, 588 S.W.2d 340 (Tex.Cr.App. 1979), cert. den. 446 U.S. 909, 100 S.Ct. 1836, 64 L.Ed.2d 261. Attorney Boyd’s motion was not even verified. If the motion or motions for new trial had been presented to the court within ten (10) days as required by Article 40.05(d), V.A.C.C.P., as amended 1981, there would have been no error in overruling the same. Carruthers v. State, supra; Barrera v. State, supra; Bearden v. State, supra.

Seventy-three days after sentencing (April 5, 1982), and after the ten (10) day time frame for presentment of a motion for new trial, attorney Boyd filed for the appellant a motion for a hearing on the motion for new trial, presumably the one previously filed by attorney Boyd. Attached to this latter motion (requesting a hearing) for the first time was a juror’s affidavit. If counsel intended this affidavit as an amendment of his motion for new trial, he was too late. Article 40.05(b), supra.

25 Tex.Jr.3rd, Criminal Law, § 3535, p. 3535, citing Article 40.05(b), supra, states:

“One or more amended motions for new trial may be filed without leave of court before any preceding motion for new trial filed by the movant is overruled and within thirty days after the date the sentence is imposed or suspended in open court.” (Emphasis supplied.) See also Dally and Broekway — Criminal Appellate Review Changes, 13 St. Mary’s Law Journal 211, 221 (1981).

It is clear from reading § (b) of Article 40.05 and its immediate predecessor that the Legislature meant that a motion for new trial may be filed and amended any number of times without leave of court so long as it was done within thirty days after sentence is imposed or suspended in open court. See Atkinson v. State, 299 S.W.2d 951 (Tex.Cr.App.1957), discussing amendment of motion for new trial with leave of court under Article 755, Y.A.C.C.P., 1925, a forerunner of Article 40.05, V.A.C.C.P., 1965. See also 25 Tex.Jur.3rd, Criminal Law, § 3535, p. 452, 453.

The statutory method set forth in Article 40.05, as amended 1981, does not provide for any amendment of the motion for new trial after the said 30 days, even with leave of court. This represents an intentional change of the former statute and requiring the filing and all amending of a motion for new trial within the said 30 days and not thereafter.

On April 5, 1982, the same date the motion requesting a hearing on the new trial motion was filed, the court conducted a “hearing” on the latest motion filed by attorney Boyd.

The trial court was incorrect in its belief that the motion for new trial was not timely filed, but apparently correct in stating the new trial motion had not been presented to the court within ten days as required by Article 40.05(d), V.A.C.C.P.

Thus the court had before it on the 73rd day after sentencing an unverified motion alleging simply without more there was jury misconduct, unaccompanied by any affidavit, filed on the 30th day after sentencing after which there could not be a valid amendment. The same did not constitute proper pleadings and they were “fatally defective.” See Carruthers v. State, supra. Further, the motion had not been presented within ten days as required by said Article 40.05(d). For either reason the trial court was correct in concluding there was nothing properly before the court to rule upon.

The Court of Appeals seized upon the trial court’s remark “I don’t think I have jurisdiction to hear your Motion for New Trial,” and noted that while the motion must be presented to the court within ten days, it could be presented thereafter until the seventy-fifth day after sentencing within the discretion of the court. Since the presentation was on the seventy-third day, the Court of Appeals concluded the trial court was erroneous in its belief that it lacked jurisdiction. We do not read the trial court’s remark as to being limited or restricted to the application of Article 40.-05(d), as to the ten day requirement, but as having reference to the entire new trial motion process then before the court. A trial court need not wait for the expiration of the 75-day period before denying a hear-' ing on a motion for new trial that has not been timely presented as required by Article 40.05(d). We are unable to conclude, as did the Court of Appeals, that the trial court was unaware of its discretion to consider the motion for new trial after the ten day period and prior to the 75-day limitation.

Even if it could be argued, contrary to the clear intent of Article 40.05, supra, that with leave of court the motion for new trial could be amended after the 30 days provided in § (a), we note that leave of court was not requested or obtained in the instant case. While the Court of Appeals did not deal with the validity of any attempted amendment, the State argues that if the juror’s affidavit can be said to have properly been before the trial court, the affidavit was insufficient citing Slanker v. State, 505 S.W.2d 274 (Tex.Cr.App.1974). The State points out the affidavit did not name the juror who was influenced, was vague as to the exact comment on the parole law, even noted there was an admonishment not to discuss the subject, and was indefinite as to the comment’s influence on punishment.

The Court of Appeals acknowledged that, without more, the affidavit was not sufficient to have resulted in the granting of a new trial in light of Munroe v. State, 637 S.W.2d 475 (Tex.Cr.App.1982). The court, in its opinion, added “However, had the appellant been afforded a hearing on his motion, we can only speculate as to whether juror testimony and additional affidavits, if offered, would warrant the granting of a new trial on the grounds of jury misconduct. We therefore hold the affidavit was sufficient to entitle appellant to a hearing on a motion for new trial.” (Emphasis supplied.)

We agree that the affidavit alone, and if properly before the court, would not meet the test of Munroe, and further observe that Munroe has now been overruled by Sneed v. State, 670 S.W.2d 262 (Tex.Cr.App.1984), which readopted the five-prong test gleaned from the pre-Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App. 1975) cases. Clearly if the affidavit, without more, was insufficient under Munroe it alone would be insufficient under Sneed.

The affidavit here was vague, indefinite and did not reflect probable cause for conducting a hearing on the motion for new trial, if the motion and affidavit had been properly before the court. The action of the Court of Appeals in abating the appeal for a belated hearing on the motion for new trial was to authorize a fishing expedition which the requirement of proper pleadings is designed to prevent. Vyvial v. State, 10 S.W.2d 83, 84, 85 (Tex.Cr.App.1928); Forgey v. State, 350 S.W.2d 32 (Tex.Cr.App. 1961); Mason v. State, 459 S.W.2d 855 (Tex.Cr.App.1970).

For all the reasons stated the judgment of the Court of Appeals is reversed and the cause is remanded to that court for consideration of appellant’s three grounds of error in light of this opinion.

TEAGUE, Judge,

concurring.

I write because the majority does not address the serious jurisdictional question that Judge Clinton raises in the dissenting opinion that he has filed in this cause, namely, whether this Court has jurisdiction over this cause.

The First Court of Appeals in its cause of Dugard v. State (No. 01-82-0100-GR, May 5, 1983), stated the following in its opinion: “Pursuant to [Art. 44.24(b), V.A.C.C.P.], the appeal is abated and we remand the cause to the trial court with instructions to grant a hearing on appellant’s motion for new trial without prejudice to appellant’s right of further appeal.” Because of the wording, does this cause the decision of the court of appeals only to be an interlocutory order, or does it constitute a final decision by the court of appeals?

Implicit within the Rules of this Court and Art. 44.45, Y.A.C.C.P., which govern this Court’s jurisdiction over petitions for discretionary review, is the fact that it is only in the instance that a decision of a court of appeals has become final can this Court’s jurisdiction then be invoked to review a petition for discretionary review.

I am now convinced that because of what the court of appeals expressly ordered to be done in its opinion, namely, “the appeal is abated and we remand the cause to the trial court with instructions to grant a hearing on appellant’s motion for new trial without prejudice to appellant’s right of further appeal,” that its decision is now final and subject to review by this Court. Thus, this Court has jurisdiction over the decision of the court of appeals.

Had the opinion of the First Court of Appeals read like the opinion of the San Antonio Court of Appeals did in Gonzales v. State, 635 S.W.2d 180 (Tex.Cr.App.1982), after remand, see 643 S.W.2d 751 (Tex.App. —San Antonio 1982), I would agree with Judge Clinton that this Court does not have jurisdiction over this cause. However, the critical difference between Gonzales v. State, supra, and Dugard v. State, supra, lies in how the respective opinions read.

In Gonzales v. State, supra, the San Antonio Court of Appeals expressly stated the following in its opinion: “This cause is abated and remanded to the trial court for the purpose of conducting an evidentiary hearing within 90 days from the date of this opinion, to determine whether appellant’s claims of jury misconduct are meritorious. A record of that proceeding shall be prepared in the manner prescribed by Tex. Code Crim.Pro.Ann. art. 40.09 (Vernon Supp.1982) and transmitted to this Court for further disposition. IT IS SO ORDERED.” Thus, by the clear and express wording of what the court of appeals stated, when it ordered the cause remanded to the trial court, it is obvious that it retained jurisdiction over the cause, thus preventing its decision from becoming final.

In our cause, however, but because of the manner in which the court of appeals stated was to be done with the cause, the court of appeals did not retain jurisdiction over the case, but, instead, divested itself of jurisdiction over the case. Thus, for our

purposes, the decision of the court of appeals is a final decision and subject to review by this Court.

The majority opinion holds that because of this Court’s decision of Sneed v. State, 670 S.W.2d 262 (Tex.Cr.App.1984), appellant is entitled to no relief. To that extent, the majority correctly decides this cause. However, I again strongly urge the majority to reconsider and reevaluate this Court’s decision of Sneed v. State, supra, and, after doing so, summarily and expressly overrule that decision because it flies in the face of what the Legislature lawfully mandated when it enacted Subsections 7 and 8 of Art. 40.03, V.A.C.C.P.

The majority, however, declines to take the proper step and again refuses to expressly overrule Sneed v. State, supra. Therefore, but because of stare decisis, I am compelled to agree with the majority opinion that it reaches the right result in disposing of appellant’s contention that because of jury misconduct he is entitled to a new trial.

I reluctantly concur.

CLINTON, Judge,

dissenting.

Winding up argument in his brief the Harris County District Attorney alludes to a classic tale written for and read to and by children — and more often than not retained long thereafter in the mind of the reader; viz:

“Such a Carollian [sic] interpretation ... would leave the trial bench and bar on the wrong side of the looking-glass. Life would indeed become ‘curiouser and curiouser.’ ”

Today the majority takes this Court through the looking glass.

• In its motion for rehearing the State urged nothing was presented for review so that in effect the court of appeals was without authority to or erroneously did abate this appeal and remand the cause for a hearing on appellant’s motion for new trial. While I do not purport to speak for judges who voted to grant the motion, presumptively they had in mind to determine that which the State was contending— whether it was proper for the court of appeals to do what it did. My present concern is whether in the posture of the instant cause this Court is authorized to do what the majority would have it do.

In Measeles v. State, 661 S.W.2d 732 (Tex.Cr.App.1983), unanimously (and somewhat summarily) we refused a petition for discretionary review because:

“Ordinarily, this Court will not entertain a petition for discretionary review from an interlocutory order of the Court of Appeals since it does not finally dispose of the case in that court.”

The court of appeals had ordered the appeal abated until complete statement of facts was prepared, approved and filed with the court. By petition for discretionary review the State challenged authority of the court of appeals to order an abatement for that purpose. Because the court of appeals had not finally disposed of the case, the Court declined to take up the challenge.

In retrospect we should have examined the matter more thoroughly, for at issue is the jurisdiction, power and authority of this Court vis a vis the fourteen courts of appeals when one of the latter is exercising its own appellate jurisdiction. Now that the opportunity again presents itself, I propose to make that examination.

This Court has “final appellate jurisdiction coextensive with the limits of the state ... with such exceptions and under such regulations as may be provided in this Constitution or as prescribed by law.” Appeals in capital cases in which the death penalty has been assessed are directly to this Court, but “appeal of all other cases shall be to the Courts of Appeals as prescribed by law.” Article V, § 5, Constitution of the State of Texas. The courts of appeals have “appellate jurisdiction coextensive with the limits of their respective districts ... under such restrictions and regulations as may be prescribed by law. Article Y, § 6, id. Articles 4.01, 4.03 and 4.04, § 2 are to the same effect; see also Article 44.24 and 44.25, V.A.C.C.P. In criminal cases such is the appellate jurisdiction of this Court and of the courts of appeals.

“In addition, the Court of Criminal Appeals may, on its own motion, review a decision of a Court of Appeals in a criminal case as provided by law.” Ibid. And, again subject to regulations prescribed by law, this Court has power generally to issue writs of habeas corpus and, in criminal law matters, other designated extraordinary writs, as well as protective and fact ascertaining powers. Ibid. Germane law is primarily provided in Articles 4.04, 44.01, 44.24, 44.25, 44.36, 44.38 and 44.45, V.A.C. C.P.

Together the constitutional and statutory provisions design, create and establish a system that assigns to and reposes in the courts of appeals jurisdiction, power and authority over “appeal[s] of all other criminal cases” than capital murder in which the death penalty is assessed. Article V, 5 and Article 4.03, both supra. Ancillary to exercising its jurisdiction, power and authority, the court of appeals “may enter any other appropriate order, as the law and nature of the case may require,” Article 44.24, supra. That is exactly what the Houston (1st) Court of Appeals did in this cause, and at the outset the majority opinion of the Court recognizes the authority of the court below to do so and, as I understand the opinion, never even questions that authority.

Simply put, neither appellate nor discretionary review jurisdiction, power and authority constitutionally and statutorily granted to and bestowed on this Court sustain our overturning an abatement order entered by a court of appeals in the discharge of its duties and responsibilities to decide the criminal case then before it on appeal. Strictly speaking this Court has no appellate governance over a court of appeals — a party is not entitled to “appeal” a final decision of that court to this one. All the constitutional and statutory provisions authorizing discretionary “review” are in terms of our reviewing a “decision” of a court of appeals. Nothing in either so much as implies we may presume to set aside that kind of interlocutory order, which the court below was fully authorized to make.

A statute mandates that courts of appeals, “in each case decided by them, shall deliver a written opinion, setting forth the reason for such decision” — unless in its discretion the court decides the case by a certificate of affirmance. Article 44.24(c), supra. That mandate means that a “case” must be decided before “the reason for such decision” set forth in a written opinion is ripe for review. This Court may “review” a decision of the court of appeals on its own motion, or a losing party “in a case” may petition this Court “for review of the decision of a court of appeals in that case,” Article 44.45(a) and (b). Similarly, “in each case decided by it,” this Court is required to deliver a written opinion giving “the reasons for such decision.”

By entering an order merely abating an appeal a court of appeals does not “decide a case” nor does it deliver “a written opinion.” Its decision in the case and the reason for that decision awaits outcome of whatever proceeding is to be had in the trial court, reflected in a supplemental record filed in the court of appeals. With that supplemental record before it the court of appeals may then decide the case with a written opinion giving the reason for its decision, after which the losing party is entitled to seek review by this Court.

When that orderly course has been followed, this Court will look squarely at a petition for discretionary review. Today, alas, it goes through a looking glass and makes things “curiouser and curiouser.” Lewis Carroll would be proud.

A looking glass is a mirror. Viewing from this side, I respectfully dissent.

      . As observed by the Court of Appeals there is some inconsistency in the grounds of error. The Court of Appeals stated, "As will be discussed, the trial court did not expressly overrule appellant’s motion for a new trial, ... neither did it expressly deny a hearing in appellant’s motion for a new trial."

      . Usually if the trial court’s action is correct, although a wrong or insufficient reason is given, no reversal will follow, and this is especially true regarding admission of evidence. Sewell v. State, 629 S.W.2d 42 (Tex.Cr.App.1982); Miles v. State, 488 S.W.2d 790 (Tex.Cr.App.1972); Spann v. State, 448 S.W.2d 128 (Tex.Cr.App.1969).

      . The test stated in Munroe for determining whether the trial court reversibly erred in refusing to grant the defendant a new trial is:
      “The defendant must show (1) that any discussion of the parole laws took place during the jury’s deliberations (thereby showing jury misconduct), and (2) that the discussion denied him a fair and impartial trial.”
      The majority in Munroe stated the defendant could meet his burden on his motion for new trial by showing that even a single juror voted
      for a harsher punishment as a result of misconduct, being any discussion of the parole laws.

      . Now to show a jury’s discussion of the parole law constitutes reversible error it must be shown there was (1) a misstatement of the law (2) asserted as a fact (3) by one professing to know the law (4) which is relied upon by other jurors (5) who for that reason changed their vote to a harsher punishment.

      . More specifically the motion for rehearing contends that the court of appeals "should have held that there was nothing for review" rather than abating the appeal "with instructions to grant a hearing on appellant’s motion for new trial.” Thus, just as it appears to be, the State construes the ruling of the court of appeals as an order of abatement.

      . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

      . Thus to the extent it contends otherwise the State loses on the merits of the ground a majority of this Court determined to review — erroneously, for in my judgment our reviewing, much less entertaining a petition for review, the kind of interlocutory order entered here by the court of appeals is not justified by law.

      . Indeed, this Court could not properly reach the order of abatement through any type of extraordinary writ since the court of appeals was exercising and is within its own jurisdiction, power and authority in making the judicial determination to enter its order. See The State of Texas ex rel. Wade v. Mays, Judge, — S.W.2d — (Tex.Cr.App., No. 69,329, delivered February 8, 1985).


author: THOMAS G. DAVIS, Judge.

text:
    Maria Teresa URIBE, and Alba Nubia Correa, Appellants, v. The STATE of Texas, Appellee.
    Nos. 223-84, 224-84.
    Court of Criminal Appeals of Texas, En Banc.
    April 17, 1985.

      Fred Reynolds, Mike DeGeurin, Houston, for appellants.
    John B. Holmes, Jr., Dist. Atty., and Eleanor Montague and Jack Millin, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., and Cathleen R. Riedel, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANTS’ PETITION FOR DISCRETIONARY REVIEW

THOMAS G. DAVIS, Judge.

Appellants were charged in separate indictments with the offense of possession of at least 400 grams of cocaine with intent to deliver. Appellants were tried jointly before a jury, which found appellants guilty and assessed punishment for each appellant at 25 years. The Fourteenth Court of Appeals (Houston) affirmed the convictions. Uribe v. State, (Nos. A14-83-100 and 101-CR, delivered December 22, 1983). We granted appellants’ petition for discretionary review to examine the Court of Appeals’ holding that the jury’s assessment of punishment was lawful even though the jury was instructed on a range of punishment not authorized by law.

Appellants committed these offenses on August 21, 1982. They were indicted on October 8, 1982. Trial began on November 30, 1982 and concluded on December 8. House Bill 730, purporting to amend the Controlled Substances Act, appeared to become effective on September 1, 1981. Accordingly, the trial court charged the jury on the range of punishment set by H.B. 730, as follows:

“Our statute provides that the punishment for possession with intent to deliver a controlled substance, namely cocaine, weighing at least 400 grams by aggregate weight, including any adulterants and dilutants is confinement in the Texas Department of Corrections for life or for any term of years not less than fifteen (15) years nor more than ninety-nine (99) years, and the Jury, in its discretion, may, if it chooses, assess a fine in any amount not to exceed $250,000.00 in addition to confinement in the Texas Department of Corrections.
“Therefore, you will assess the punishment of the defendant ... at confinement in the Texas Department of Corrections at life or any term of years not less than fifteen years nor more than ninety-nine years, and, if you choose to assess a fine in addition to such confinement, you will assess such fine in an amount not to exceed $250,000.00.”

See 1981 Tex.Gen.Laws, ch. 268, Sec. 2 at 698.

In Ex parte Crisp, 661 S.W.2d 944 (Tex. Cr.App.1983) this Court held the purported amendment to be unconstitutional and invalid, and further held that, as a consequence, “the Controlled Substances Act stands as though H.B. 730 had never been enacted.”

The pre-amendment law set the punishment for appellants’ offense at confinement for life or for a term of not more than 99 years or less than 5 years. 1973 Tex. Gen.Laws, Ch. 429, Sec. 4.01(b)(1), p. 1148 (setting punishment for first degree felony) and Sec. 4.03(a) & (b)(1) (making possession with intent to deliver a Penalty Group 1 drug a felony of the first degree); 1979 Tex.Gen.Laws, ch. 598, Sec. 6, p. 1288 (adding cocaine to Penalty Group 1). The Court of Appeals’ opinion states that the pre-amendment law also provided for a fine not to exceed $20,000.00. The statement is incorrect; there was no provision for a fine.

As a result of our decision in Crisp, supra, appellants’ offense was subject to the range of punishment set out in the pre-amendment law, as detailed in the preceding paragraph.

The trial court charged the jury on the 1981 amendment range of punishment, which was more severe than the pre-amendment range in three respects:

(1) the minimum term of confinement was greater by 10 years;
(2) the effect of the 15-year minimum term precluded the jury from recommending probation (see Art. 42.12, Sec. 3a, V.A.C.C.P.); and
(3) the jury was told it could assess a fine of up to $250,000.00.

Thus the issue before us is: Must appellants have a new trial because the court submitted to the jury a range of punishment more severe than that authorized by law, even though the jury assessed punishment within the lawful range?

The Courts of Appeals have divided over the issue. In Sanchez v. State, 666 S.W.2d 659 (Tex.App. — Austin 1984, no pet.) (per curiam), the Third Court of Appeals reasoned as follows:

“Thus, in this case the jury was incorrectly instructed that the term of confinement which it could impose was life imprisonment or any term not less than five years or more than ninety-nine years, when the jury was authorized by law only to impose a term of confinement not more than twenty or less than two years. The jury assessed punishment at a term of confinement (fifteen years) that it was authorized to assess under art. 4476-15 Sec. 4.01(b)(2), but might not have assessed had it been properly instructed as to the range of punishment. We agree with appellant that the error in the court’s instructions regarding the range of punishment which the jury could impose requires reversal....” (Emphasis in original).

In Gonzales v. State, 672 S.W.2d 618 (Tex.App. — Amarillo 1984, no pet.) the Seventh Court of Appeals wrote as follows:

“Prior to the 1981 amendment, appellant’s activities, while still illegal, would have been punishable under Sec. 4.05 as a third-degree felony. Art. 4476-15, Sec. 4.05, Tex.Rev.Civ.Stat.Ann. (Vernon 1976). Under the 1981 amendment, the penalty was elevated to a second-degree felony, art. 4476-15, Sec. 4.05(b)(4), (Vernon Supp.1982), and the jury was instructed on the punishment range for a second-degree felony. The three-year sentence imposed by the jury was within the range of punishment permissible under either the pre-1981 statute or the 1981 amendment.
“We believe Sanchez represents the correct resolution of the problem. A defendant is entitled to a correct instruction on the range of punishment and we are not willing to 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 available under the correct range. The range of punishment is society’s statement of the seriousness of the crime and necessarily influences the jury in its punishment decision. We hold, therefore, that a defendant is entitled to a new trial when the jury is erroneously instructed that the maximum punishment is greater than the law allows and it assesses more than the minimum punishment available under a correct instruction....”

By contrast, in Torres v. State, 667 S.W.2d 190 (Tex.App. — Corpus Christi, 1983, pet. granted) the trial court authorized the jury to assess life or a term of years not more than 99 or less than 5, and a fine not to exceed $50,000.00. Again as a result of Crisp, however, the punishment authorized by law was a term of years not more than 10 or less than 2. The jury assessed 10 years. The Thirteenth Court of Appeals held that no reversible error was shown since the penalty imposed on defendant was within the range provided for by the pre-amendment statute.

Likewise in Moya v. State, 663 S.W.2d 680 (Tex.App. — Corpus Christi, 1983) rev'd, 681 S.W.2d 41 (Tex.Cr.App.1984), the trial court authorized the jury to assess life or a term of 5 to 99 years and a fine of up to $50,000.00, whereas the pre-amendment statute authorized the same range of confinement but no fine. The jury assessed 15 years and a fine of $10,000.00. The Thirteenth Court of Appeals affirmed, finding no harm to defendant from the misdirection in the jury charge. We reversed on the ground that defendant was assessed a punishment not authorized by law (a fine). Moya v. State 681 S.W.2d 41 (Tex.Cr.App. 1984).

In the instant case, the Court of Appeals affirmed the convictions on the ground that the punishment assessed — 25 years — was within the range provided by the pre-amendment law.

In Stein v. State, 515 S.W.2d 104 (Tex. Cr.App.1974), a similar issue was presented to this Court. The Legislature sought to amend Art. 6701d, Y.A.C.S., by adding Sec. 186 to create the offense of fleeing or attempting to elude a police officer. The amendment prescribed the penalty for the offense to be imprisonment for not less than 30 days nor more than 6 months, or a fine of not less than $100.00 nor more than $500.00, or both fine and imprisonment.

Article 6701d, supra, already had a general penalty provision in Sec. 143, punishing violations of the Act by a fine of not less than $1.00 nor more than $200.00.

A jury found defendant guilty of the offense of wilfully fleeing from a police officer. On appeal, defendant challenged the constitutionality of the amendment creating the offense for its failure to comply with the caption requirement of Art. 3, Sec. 35 of the Texas Constitution. The caption read, in pertinent part, “adding Section 186 on fleeing or attempting to elude a police officer.”

This Court held that, because the caption to the amending Act failed to give notice of the penalty provision of Sec. 186, the penalty provision failed to meet the constitutional requirement and was void. The amendment did contain a severability clause. Applying the severability clause and that portion of Art. 3, Sec. 35 which provides, “such act shall be void only as to so much thereof, as shall not be so expressed” in the caption, the Court held the subsection of the amendment defining the offense to be valid and enforceable. The Court went on to note that the penalty for violation of the new Sec. 186 would be as defined in the general penalty provision, Sec. 143.

Thus in Stein, as in the instant case, defendant’s act violated a valid law in force at the time of his offense. Again as in this case, the trial court submitted to the jury the penalty range prescribed by the invalid amendment. The penalty range submitted to the jury, as in the instant case, was more severe than that authorized by the valid, pre-amendment law.

The court in Stein instructed the jury that the minimum fine was $100.00, and the jury assessed a fine in that amount. A fine in that amount was authorized by the pre-amendment law, which provided a range from $1.00 to $100.00. This Court granted a new trial, holding that “the error reciting the minimum punishment in the court’s charge is harmful especially in view of the fact that the jury assessed the minimum punishment authorized under the charge.”

In Sanchez, supra, and Gonzales, supra, the void amendment purported to increase the maximum penalty. Accordingly, the trial court instructed the jury on a maximum penalty greater than that authorized by law. Likewise in Stein, the void amendment purported to increase the maximum penalty and the trial court instructed the jury on a maximum penalty greater than that authorized by law. It may be argued, therefore, that the instant case is distinguishable on this ground. In the instant case, the void amendment and the pre-amendment law both provided for a maximum confinement of life or 99 years. In Sanchez, Gonzales, and Stein the jury is told that the law denounces the offense by prescribing a certain maximum punishment — a maximum punishment greater than the law in fact provides. The court’s misdirection thus harms the defendant because the jury is instructed to consider his offense as more serious than the law grades it. Although the jury assessed punishment within the lawful range, an appellate court will not presume that the jury would have assessed the same punishment if the jury had been correctly instructed that the law holds the offense to deserve a lesser maximum punishment.

But, it may be argued further, in the instant case the jury is correctly instructed on the maximum term of confinement. The case therefore falls outside the rationale of Sanchez, Gonzales, and Stein, and no harm is shown.

This argument ignores two factors. First, the void amendment sought to add a discretionary fine of up to $250,000.00. Thus the jury was instructed that the maximum punishment authorized was not confinement for life only, as the pre-amendment law provided, but confinement for life and a fine of a quarter of a million dollars.

Second, the law provides not only a maximum punishment, but a minimum as well. The Controlled Substances Act as it stood when appellants were tried punished their offense by confinement for life or for any term of not more than 99 years or less than 5 years. Ordinary first-degree felonies are punishable by the same range of confinement and a discretionary fine not to exceed $10,000.00. V.T.C.A. Penal Code, Sec. 12.-32. In its present form, the Controlled Substances Act punishes first-degree felonies (for which a specific punishment is not otherwise provided) by the same range of confinement and a discretionary fine of up to $20,000.00. Art. 4476-15, Sec. 4.01(b)(1), Y.A.T.S. The 1981 amendment to the Act raised the minimum punishment for appellant’s offense to 15 years confinement, and added a discretionary fine not to exceed $250,000.00. This, punishment is in force at present. Art. 4476-15, Sec. 4.03(d)(3), supra.

Thus, within the category of first-degree felony, our law has provided a stair-step of incremental punishment ranges. The law establishes the next higher step not only by adding a fine, then increasing the fine, but also, at the top, by raising the minimum term of confinement. The potential severity of the punishment increases at each step. The last step curtails the potential leniency authorized in lower steps.

In the instant case, the trial court not only instructed the jury that the law authorized a large fine, but also withheld from the jury the authority to assess a minimum term of five years and to consider recommending probation if appellants were eligible. As in Stein, “the error reciting the minimum punishment in the court’s charge is harmful ...” We do not read the expression of the holding in Stein to condition reversal upon a jury’s assessment of the minimum punishment authorized in the court’s charge.

Finally, defense counsel in Stein recognized the constitutional infirmity of the amendment, moved to quash the indictment on that ground, specially requested a charge on the correct range of punishment, and objected to the submission of the range provided by the invalid portion of the amendment. The analysis in Sanchez, supra, and Gonzales, supra, focused on the harm to the defendant, as does our analysis in the instant case. The fact that defense counsel in Stein displayed extraordinary acumen in identifying the constitutional problem before trial does not shift the focus of the analysis. The rationale is not altered by the presence or lack of an objection.

The submission to the jury of a penalty range more severe than that authorized by law deprived appellants of a fair and impartial trial, even though the jury assessed punishment within the lawful range. Art. 36.19, Y.A.C.C.P.; Stein v. State, supra.

The judgment of the Court of Appeals is reversed and the causes are remanded to the trial court.

      . Moreover, during jury argument in the instant case, the prosecutor emphasized the effect of the increased minimum punishment, stating:
      "With respect to the drug laws, consider this. Consider the effect — [Defense counsel] argued about the severity of the penalty. That’s true. But it is a three-year legislature. You ladies and gentlemen, the citizens of Texas, have decided on this law through your legislators. You decided the minimum punishment would be fifteen years. In Texas, there is no probation possible for anybody who gets more than ten years. The legislature, therefore, made a conscious decision not to allow probation in a case in which the amount carried is so great.”
      The prosecutor’s argument makes the harmful effect of the error more vivid than in Sanchez, Gonzales, and Stein, which do not discuss or rely on the State’s use during jury argument of the misdirection in the charge. Nevertheless, the harm originates in the misdirection in the charge, and our decision rests on this ground, not the compounding of the harm in jury argument.


author: ONION, Presiding Judge.

text:
    Johnny L. STOKES, Appellant, v. The STATE of Texas, Appellee.
    No. 401-84.
    Court of Criminal Appeals of Texas, En Banc.
    April 17, 1985.
    Mark D. Strachan, Ebb B. Mobley, Long-view, for appellant.

      Rob Foster, Dist. Atty. & Richard Clement Dunn & John W. Tunnell, Asst. Dist. Attys., Longview, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

The appellant was convicted in Cause No. 13,284-A in the 188th District Court of Gregg County in a jury trial for unauthorized use of a motor vehicle. The jury assessed punishment at ten years’ imprisonment in the Department of' Corrections and a $3,000.00 fine.

On appeal, the appellant raised a number of grounds of error. The Tyler Court of Appeals affirmed the judgment of the trial court, but reformed the sentence, ordering that' it run concurrently rather than consecutively with a prior conviction. Stokes v. State (No. 12-82-0119-CR, delivered February 16, 1984). We granted the State’s Petition for Discretionary Review to determine whether the Court of Appeals erred in its holding that the cumulation order in the sentence is void because it is insufficient on its face to convey clear and unequivocal orders to the prison authorities.

The cumulation order of the trial judge reads as follows:

“It is further ADJUDGED and DECREED by this Court that the sentence pronounced herein shall begin this date. Said Sentence to be served after serving the sentence in Cause No. 11,720-A Styled The State of Texas Vs. Johnny Stokes in the 188th Judicial District Court.”

The Court of Appeals held that the first statement in the cumulation order, that “the sentence pronounced herein shall begin this date,” is in direct conflict with the second part of the order, that “[s]aid [sentence [is] to be served after serving the sentence” in the prior cause, therefore rendering the order “contradictory and ambiguous.”

We disagree and reverse the judgment of the Court of Appeals with respect only to its holding that the cumulation order is void.

The discretion to cumulate sentences is given to the trial courts of this state by statute. See Article 42.08, V.A.C.C.P. It is well settled that a cumulation order must meet certain requirements as to specificity. Ex parte Davis, 506 S.W.2d 882, 883 (Tex. Cr.App.1983). The reason for the requirement of specificity is to enable the prison authorities to know just how long to detain the prisoner under the sentence.

In Ex parte Lewis, 414 S.W.2d 682, 683 (Tex.Cr.App.1967), it was stated by this Court:

“A sentence is a final judgment and should be sufficient on its face to effect its purpose without resort to evidence in aid thereof. It should further convey to the authorities at the Texas Department of Corrections or any County jail clear and unequivocal orders of the trial court so that they may know definitely how long to detain the convict or prisoner.”

This Court has on a number of occasions discussed the recommended elements of a valid cumulation order. See Ex parte Lewis, supra; Ex parte March, 423 S.W.2d 916 (Tex.Cr.App.1968); Ex parte Davis, supra; Ward v. State, 523 S.W.2d 681, 682 (Tex.Cr.App.1975); Young v. State, 579 S.W.2d 10 (Tex.Cr.App.1979). See also Watts v. State, 645 S.W.2d 461 (Tex.Cr. App.1983). These elements include (a) the trial number of the prior conviction, (b) the correct name of the court where the prior conviction was taken; (c) the date of the prior conviction; (d) the term of years of the prior conviction and (e) the nature of the prior conviction.

It has also been the holding of the court that the inclusion of all five recommended elements in cumulation orders is not mandatory.

The cumulation order in the instant case includes two of the five recommended elements, (a) the trial court number of the prior conviction and (b) the correct name of the court where the prior conviction had taken place. In addition, both convictions were from the same court, the 188th District Court. It would appear the cumulation order would be sufficient under previous authorities of this Court. Ex parte Daffern, 162 Tex.Cr.R. 472, 286 S.W.2d 151 (1956); Ex parte Bell, 160 Tex.Cr.R. 490, 272 S.W.2d 530 (1954); Ex parte Collier, 156 Tex.C.R. 377, 243 S.W.2d 177 (1951). See also Ex parte Pruitt, 385 S.W.2d 384 (Tex.Cr.App.1965); Ex parte Isom, 168 Tex.Cr.R. 434, 331 S.W.2d 753 (1959). Since both convictions were in the same court, see also Hamm v. State, 513 S.W.2d 85 (Tex.Cr.App.1974); Ex parte Davis, supra.

As we understand it the Court of Appeals’ opinion was based not upon the lack of sufficient elements, but on what the court perceived to be an internal conflict in the wording of the cumulation order in the sentence.

Article 42.01, V.A.C.C.P., defines a judgment. Article 42.02, V.A.C.C.P., provides:

“The sentence is that part of the judgment, or order revoking a probated sentence, that orders that the punishment be carried into execution in the manner prescribed by law.” Acts 1981, 67th Leg., p. 809, ch. 291, § 112, eff. Sept. 1, 1981.

Formerly it was held that a “judgment” and a “sentence” are not the same thing. Thornton v. State, 576 S.W.2d 407 (Tex.Cr.App.1979). See former Articles 42.01 and 42.02, V.A.C.C.P. (1965). The 1981 amendment to Article 42.02, supra, had the effect of unifying the judgment and sentence. The sentence is now an integral part of the judgment. With the pronouncement of a sentence the court breathes life into the judgment. The sentence is the catalyst which enables the execution of the judgment. The sentence comes into existence on the day and at the time it is pronounced.

In the formal judgment entered in the instant cause on the same day as the sentence (May 26, 1982) the trial court provided that the appellant be punished as determined by the jury:

“by confinement in the Texas Department of Corrections for Ten (10) Years and $3,000.00 fine, to be served after serving the sentence in Cause No. 11,-720-A styled The State of Texas Vs. Johnny Stokes in the 188th Judicial District Court....”

In orally pronouncing sentence in open court the trial judge stated:

“It is, further, the order, judgment, and decree of this Court that this sentence shall begin when you have completed serving your sentence in Cause Number 11,720-A, styled The State of Texas versus Johnny Stokes, such judgment being dated November 18,1978, and having been issued out of the 188th District Court of Gregg County, Texas.”

Thereafter the formal sentence contained the complained of language “that the sentence pronounced herein shall begin this date. Said Sentence to be served after serving the sentence in Cause No. 11,720-A styled The State of Texas Vs. Johnny Stokes in the 188th District Court.”

Article 44.08, V.A.C.C.P., provides in § (b), inter alia, that notice of appeal shall be given ... within 15 days after “sentencing.” And § (c) provides in part: “For the purpose of this article, ‘sentencing’ means the date the sentence is imposed or suspended in open court....”

Thus in many cases it is clear there must be a sentence in existence for there to be a valid notice of appeal, and this is true whether there is a cumulation order or not.

As we read the cumulation order the trial court did not set two different dates for the sentence to commence. The phrase “the sentence pronounced herein shall begin this date” was used to mean simply that the sentence came into existence that day, and was a valid sentence as of that date. It was immediately followed by a qualification as to when the sentence was to be served. The order should be read as a whole and the phraseology therein construed together. This is a common sense interpretation of the cumulation order, and we do not agree that it was insufficient on its face to convey clear and unequivocal orders to the prison authorities. And this is particularly true when read in light of the quoted provisions of the judgment of which the sentence is an integral part, and both of which are available to the prison authorities.

The cumulation order passes muster. It is not contradictory and ambiguous.

The appellant in his reply briefly notes the written sentence does not contain the jail time credit given him at the time sentence was orally pronounced in open court. He is correct. The trial court gave appellant credit on his sentence from March 9, 1982 until May 26, 1982.

This Court can reform a sentence upon appeal when it has the necessary information before it. Knight v. State, 581 S.W.2d 692 (Tex.Cr.App.1979); Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774 (1951). The sentence is reformed to give the appellant credit for his jail time from March 9 until May 26, 1982.

The judgment of the Court of Appeals ordering the cumulation order set aside is reversed and the cumulation order is reinstated and the sentence is reformed to give jail time credit. In all other respects the said judgment is affirmed.

CLINTON, J., concurs.


author: WHITE, Judge. CLINTON, Judge,

text:
    Alvaro Contreras FUENTES, Appellant, v. The STATE of Texas, Appellee.
    No. 468-84.
    Court of Criminal Appeals of Texas, En Banc.
    April 17, 1985.

      Humberto R. Trejo, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty. and James C. Brough and Wilford Anderson, Asst. Dist. Attys., Houston, Robert Hut-tash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

This is an appeal from a conviction of possession with intent to deliver cocaine under Article 4476-15, sec. 4.03(d)(3), V.A. C.S. The trial court assessed punishment at seven years’ imprisonment.

On appeal the appellant contends that the trial court erred in failing to sustain his motion to dismiss, because the statute upon which the prosecution was based is unconstitutional, failing to sustain his motion to suppress and erred in accepting his plea of nolo contendere conditioned upon his right to appeal matters raised by motion prior to the time of trial.

The 14th Court of Appeals affirmed the conviction in a panel opinion written by Justice Junell. The court below overruled appellant’s first ground of error, though they conceded that the act was unconstitutional, because the appellant received a punishment within the range provided by the prior act. The court below overruled appellant’s second and third grounds of error because the appellant judicially confessed at the time of his plea, thereby waiving any right he may have had to appeal. Fuentes v. State, 681 S.W.2d 91 (Tex.App.1984).

We granted appellant’s petition for discretionary review to determine whether the appellant knowingly, intelligently and voluntarily entered his plea of nolo conten-dere, and whether the appellant waived his right to appeal by judicially confessing during the plea proceedings.

The state indicted the appellant for possession of more than 400 grams of cocaine, with the intent to deliver, under the 1981 amendments to the Controlled Substances Act. Appellant filed a motion to suppress the cocaine on November 24, 1982.

On February 4, 1983, the trial court heard the suppression motion. Two witnesses appeared: the appellant and the Customs Inspector who searched and arrested the appellant. The trial court overruled the motion to suppress.

On March 9, 1983, the appellant pled nolo contendere to the charge contained in the indictment, which at this time was possession of, with intent to deliver, more than twenty-eight (28) grams but less than two hundred (200) grams of cocaine. The trial court found him guilty. Prior to accepting the appellant’s plea, and during the admonishments, the trial court told the appellant:

“If I follow this plea bargaining agreement you lose your right to appeal this case unless I give you permission to do so or unless an issue has been raised by motion prior to the time of trial.”

This expresses the trial court’s understanding that, as part of the plea bargaining agreement, the appellant would be permitted to appeal the ruling on his suppression motion.

On April 18, 1983, the trial court sentenced the appellant to seven years’ imprisonment. At the sentencing hearing, the trial judge explained to the appellant that “it is my understanding is that you want you give notice of appeal to the portion of this case that you can.” The appellant responded by giving the trial court notice of appeal. The trial court then appointed counsel to represent the appellant on his appeal.

In the appellant’s first ground of review, he alleges that the lower court erred in holding that his plea of guilty was “knowingly, intelligent and voluntary.” Appellant argues that the trial court improperly admonished him on the range of punishment which he was subject to. The basis for this argument is that the appellant was originally charged with possession of more than 400 grams of cocaine with intent to deliver under House Bill 730 (which amended Article 4476-15, Y.A.T.S.), and was held to be unconstitutional in Ex parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983). Appellant claims that the state’s election to proceed against him for possession of more than 28 grams, but less than 200 grams, was part of a plea bargaining agreement. The appellant would have us believe that, if not for the threat of a minimum 15 years’ confinement, he would not have pled guilty for the 7 years’ confinement which he received.

Nothing in the record supports the appellant’s allegation that the state’s election was part of a plea bargain,- or that the election misled him in any way. In spite of appellant’s allegations in his brief, the record clearly reflects that appellant was charged with, and pled guilty to, an offense which carried a punishment range of 5 years to 99 years or life, and a fine of up to $10,000. That was the punishment range for possession of over 28 grams, and less than 200 grams, of cocaine with intent to deliver under House Bill 730. Appellant faced the same punishment range if he had been charged with possession of any amount of cocaine with the intent to deliver under the pre-1981 Act. The trial court properly admonished the appellant on the

range of punishment for a first degree felony offense. The record shows that appellant knew he would receive a 7 year sentence and no fine.

Where the record indicates that a defendant has received an admonishment as to punishment, although it may be an erroneous one, that is a prima facie showing that the guilty plea was knowing and voluntary. Ex part McAttee, 599 S.W.2d 335 (Tex.Cr.App.1980); Ex parte Smith, 678 S.W.2d 78 (Tex.Cr.App.1984). The burden then shifts to the defendant to show that he entered his plea without understanding the consequences of such plea and, therefore, was harmed by the erroneous admonishment. McAtee, supra, and Smith, supra.

In the instant case appellant has not satisfied his burden of proving that he was harmed by the trial court’s admonishment. Under either House Bill 730, or the pre-1981 Controlled Substances Act, the appellant’s 7 year sentence would be at the low end of the punishment range for the offense he pled guilty to. Under both laws he faced a first degree felony charge. We find the appellant knowingly, intelligently and voluntarily pled guilty. The appellant’s first ground of error is overruled.

In the appellant’s second ground of review, he claims that the lower court erred in holding that his judicial confession waived his right to appeal the trial court’s ruling on his motion to suppress. We agree with the appellant. The court below held that appellant’s judicial confession waived his right to appeal his pre-trial suppression motion. Recently, this Court handed down our ruling in the case of Morgan v. State, 688 S.W.2d 504 (Tex. Cr.App.1985). In that case we held that, “just as the plea itself no longer waives the right to complain of pre-trial rulings on appeal, so the confession or admission will not bar an appellate court from reaching the merits of the complaint.” This Court ruled that Article 44.02, V.A.C. C.P., expresses the Legislature’s intent to provide a meaningful appeal, while still encouraging guilty pleas when the only contested issue is, for example, the lawfulness of a search.

The trial court’s assurances to the appellant that his guilty plea would not waive his appeal, in addition to this Court’s ruling in Morgan, supra, require that we reverse the judgment of the Court of Appeals, and remand this cause to that court for review of the appellant’s search and seizure claim only.

CLINTON, Judge,

concurring.

For the reasons stated and developed in my concurring opinion in Hurwitz v. State, — S.W.2d — (Tex.Cr.App., No. 742-84, delivered April 10, 1985), I would not base a test of the nature and character of a guilty plea on the admonishment as to range of punishment in a case involving impact of the Texas Controlled Substances Act after its revival through the effect of Ex Parte Crisp, 661 S.W.2d 944, 661 S.W.2d 956 (Tex.Cr.App.1983). The analysis the Court undertakes to perform demonstrate the twisting, straining and torturing nature of the exercise.

However, as in Ex parte Smith, 678 S.W.2d 78 (Tex.Cr.App.1984), an entirely separate and distinct issue is whether considerations for a plea bargain are given and a bargain made in a context of provisions of the law as they then existed, particularly with respect to available ranges of punishment touching respective offenses included in the transaction alleged in a charging instrument.

We granted review of a ground in appellant’s petition on his representation that the “ ‘plea negotiations’ were based primarily upon a lesser included offense which did not exist due to the unconstitutional statute,” but which was then provided in that statute. Though the State says the appellant is incorrect in asserting that “the State offered to reduce the charge to a lesser included offense,” the facts remain that there was a plea bargain pursuant to which appellant entered his plea to an offense charged in terms of the statute then in effect, the trial court admonished him of the range of punishment attached thereto and the judgment reflects his conviction of that offense in such terms. Indeed, the court of appeals stated in the first paragraph of its opinion that the conviction is for violation of Article 4476-15, § 4.03(c), as enacted in 1981.

I would find that there is plenty material in the record showing that “the state’s election was part of a plea bargain,” and proceed to address the issue in that context. Because the majority does not, I am unable to join the opinion of the Court. However, I do agree with the judgment of the Court upon its sustaining appellant’s second ground of review.

TEAGUE, J., joins.

      . The trial court did misstate the fine, which the appellant faced, as being "up to $50,000.00.” The proper fine under the pre-House Bill 730 Controlled Substances Act would be $10,000.00. However, appellant does not claim that this misstatement influenced his plea, misled him in any way, or contributed to a misunderstanding of the consequences of the plea. The court did not assess a fine in this case.