concurring.
The “primary focus of the analysis [of the court below] is on substantial compliance” with Article 26.13, V.A.C.C.P. Hurwitz v. State, 673 S.W.2d 347, 351 (Tex. App. — Austin 1984). That analysis flows from its premise that the part of his admonishment as to range of punishment given by the judge of the trial court is “erroneous,” id., at 350. In my view, however, what is erroneous is that premise.
A few days before the guilty plea hearing the trial court had overruled a motion to quash the indictment founded on the holding in Crisp v. State, 643 S.W.2d 487 (Tex.App. — Austin 1982), affirmed, Ex parte Crisp, 661 S.W.2d 944, aff’d on rehearing, 661 S.W.2d 956 (Tex.Cr.App.1983). On the day the trial judge admonished appellant the range of punishment provided by statute for the second degree felony with which he was then charged was a term not more than twenty years nor less than two years and a fine not to exceed $10,000. That is precisely what the trial judge informed appellant.
An admonishment comporting with the law then in effect simply is not “erroneous.” That there is extant — but not final— an opinion of an appellate court holding invalid the legislative act from which that particular offense is derived would not authorize or require a judge, who has earlier overruled an attack against the statute, to state a range of punishment other than that provided therein by the Legislature. See Komurke v. State, 562 S.W.2d 230, 235 (Tex.Cr.App.1978).
To find an admonishment as to range of punishment wanting because the statutory amendment underlying the prosecution was later found unconstitutional is, of course, to indulge in sheer fiction. Rather than continuing to engage in that kind of fiction, the Court should test propriety of accepting a plea of guilty or nolo contendere under Article 26.13, V.A.C.C.P., in light of *922the existing substantive statutory prescription of the offense charged — then and there presumptively valid, after all — as well as the admonishment that is given and other conditions accompanying entry of the plea.
Acceptance of the plea of guilty passes muster in those circumstances in this cause. The admonishment was correct and proper when given. In the absence of evidence showing otherwise it follows that the guilty plea was made freely and voluntarily. Thus, “substantial compliance” is not in the case.
The plea bargain appears to be regular, and there is nothing in this record to suggest that in the face of a mountain of evidence to support a finding of guilt, appellant entered his plea for any other reason than to perfect an appeal on the merits of his motion to suppress that evidence. The judgment and sentence in this cause describe the offense as “possession of marihuana” — without stating a classification as to degree of felony. The punishment is two years confinement in the Texas Department of Corrections.
On those bases the judgment of the court of appeals should be affirmed.1
But for the fact that H.B. 730 was subsequently found unconstitutional there would be no question about what the prosecution and accused agreed to do and did and what the trial court ultimately did. Under each ground appellant acknowledges that the punishment assessed is within the range of a felony of the third degree. (Actually it is the absolute minimum.) Nevertheless, he contends that “under the circumstances, it was manifestly unfair to threaten him with a twenty-year exposure, and the action of the trial court in so doing had a coercive effect concerning the guilty plea entered.” Reiterating that contention in his brief on the merits, appellant adds a citation to and quotes from Ex parte Smith, 678 S.W.2d 78 (Tex.Cr.App.1984); it had not been decided by this Court before the opinion of the court below was delivered.
Similarly, the majority opinion examines Smith, and though the majority then proceeds to distinguish Smith from the circumstances of this cause, the perceived need to make that distinction lends credibility and weight to its precedential value. Smith, like this cause was seen by the court of appeals, involved a “substantial compliance” determination. Without explaining its reason for finding that admonishment “improper,” Smith merely states: “There can be no question that the admonition was not proper.” 678 S.W.2d at 78. The Austin Court of Appeals found that since the effect of Crisp was to revive the Texas Controlled Substances Act (Act) as it existed prior to enactment of H.B. 730, appellant “was on trial for a third-degree felony,” and therefore the admonishment as to range of punishment for a second degree felony actually given by the trial judge was “erroneous.” Presumably, a similar but unstated rationale led to the same conclusion in Smith. Retroactively, then, an admonishment correctly made at the time becomes incorrect, and depending on other circumstances may undo the en*923tire trial — Smith awards a new trial while appellant is denied one.
The plea hearing in Smith had been held on September 16, 1983; an appeal was not taken. The Crisp opinion of this Court on rehearing was not delivered until December 7, 1983. Under the rationale developed ante, I am now convinced that in this narrow aspect Smith is wrong. Since the trial judge correctly stated the range just as provided by the applicable statute then in effect, in my view the admonishment in Smith with respect to the range of punishment was not “improper.”
For those reasons I join the judgment of the Court.
W.C. DAVIS and McCORMICK, JJ., join.. Indeed, appellant has not sought review on a theory that when given the admonishment was erroneous per se. His ground for review is: "The trial of petitioner pursuant to his indictment under an unconstitutional statute rendered his guilty plea involuntary.” And as I understand his ground of error one in the court of appeals, it is stated substantially the same. Hurwitz v. State, supra, at 350. So far no one seems to have addressed the ground headon, opting instead to look at a contention made under it. Addressing the ground first, I find it is untenable for much the same reasons I would affirm the judgment of the court of appeals: that the statute was later found unconstitutional would not ipso facto render an otherwise free and voluntary plea "involuntary.” However, other factors — such as assessment of punishment within a higher range than authorized by the revived law — might require reversal of the conviction. Compare Hernandez v. State, 669 S.W.2d 734 (Tex.Cr.App.1984).
(There is a misstatement of historical fact in Hernandez. At page 735 it is stud that "in Crisp we refused to set aside the convictions ...” The basis for the habeas corpus proceeding in Crisp was that the statute underlying the prospective prosecution was unconstitutional; trial had not yet been held; there were no convictions to set aside. See Crisp, at 948.)