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.