concurring.
I agree with the majority that the result that the court of appeals reached is correct, that appellant is not entitled to relief. Robert Allen Hurwitz, appellant, had asserted on appeal that his plea of guilty, made pursuant to a plea bargain agreement, was coerced because he was erroneously admonished by the trial judge as to the maximum possible punishment available. Because I find that “The reasoning the court of appeals followed in affirming appellant’s conviction is unsound,” as is the reasoning the majority follows in this cause, I can only concur in the result the majority reaches in this cause.
What causes the majority’s reasoning to be faulty lies in the fact that it is attempting to resolve the issue of whether appellant was properly admonished by the trial judge by applying some form of retro-spectivity to what we now know to be the law to what was the law at the time the appellant entered his plea of guilty in this cause. However, in this instance, but as Judge Clinton correctly points out in the concurring opinion that he has filed in this cause, “The admonishment [that appellant received in this cause] was correct and proper when given. In the absence of evidence showing otherwise it follows that the guilty plea was made freely and voluntarily ...” Judge Clinton, however, opines that the issue of “substantial compliance,” see Art. 26.13, V.A.C.C.P., is not in the case. For reasons soon to be stated, I am unable to agree with Judge Clinton that the issue of “substantial compliance” is not in this cause. However, I do agree with Judge Clinton’s implicit suggestion that Ex parte Smith, 678 S.W.2d 78 (Tex.Cr.App.1984), should be expressly overruled.
I believe that what appellant is actually trying to accomplish in this cause is to have this Court invoke and apply to this cause the provisions of Art. 1, Section 16, Texas Constitution, which provides: “No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.”
In Millican v. State, 145 Tex.Cr.R. 195, 167 S.W.2d 188 (1943), this Court wrote: “An ex post facto law, in criminal matters, is defined by Justice Wheeler in the case of Holt v. State, 2 Tex. page 363, as follows: The prohibition as to ex post facto laws, Constitution Art. 1, Section 14, has been held to extend only to a law which makes an act done before its passage and which was innocent when done, criminal; or which aggravates a crime and makes it greater than when committed; or which changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; or which alters the legal rules of evidence and receives less, or different testimony than the law required at the time of the commission of the offense, in order to convict the offender. (Citations Omitted.)” (190).
In this instance, however, appellant was convicted and punished under what was then a presumptively valid law. However, in Ex parte Crisp, 661 S.W.2d 944, aff’d on rehearing, 661 S.W.2d 956 (Tex.Cr.App.1983), this Court affirmed the decision of the Austin Court of Appeals, see Crisp v. State, 643 S.W.2d 487 (Tex.App. — Austin 1982), and declared that because of Art. Ill, Section 35 of the Texas Constitution, the Controlled Substances Act under which appellant was found guilty was unconstitutional. This Court also held that the Con*924trolled Substances Act stood as if the new law had never been enacted.
Thus, appellant is not the victim of a law which changed the punishment for a crime after the crime had been committed, which would be an ex post facto law, nor is he the victim of a law that inflicted a greater punishment, which also would be an ex post facto law. To the contrary, but by what this Court held in Ex parte Crisp, supra, appellant’s conviction stands as though he had been convicted under the former law, which considerably decreased the punishment that was provided by the law under which he was convicted.
In the case at bar, by virtue of this Court’s decision in Ex parte Crisp, supra, the range of punishment for appellant’s offense has been considerably decreased from what it was under the new law. See and compare Ex parte Scott, 471 S.W.2d 54 (Tex.Cr.App.1971). In this instance, appellant received the minimum punishment that was provided under the former law, and there is no claim that had the former law been in effect when appellant pled guilty he would have received a different punishment. This Court’s decision of Ex parte Crisp, supra, caused the trial court’s admonition to be incorrect only as to the maximum possible punishment that could have been assessed. In Taylor v. State, 610 S.W.2d 471, 478 (Tex.Cr.App.1981), (Opinion on State’s Motion for Rehearing), a majority of this Court held that in admonishing a defendant, if the trial judge states the correct minimum possible punishment, but incorrectly states the maximum possible punishment, but the defendant’s punishment is assessed within the correct range of punishment, notwithstanding the error, there has been substantial compliance with the provisions of Art. 26.13, V.A. C.C.P. Thus, in this cause, the admonishment that appellant received from the trial judge was in substantial compliance with the law that was formerly in effect. The error in the trial court’s admonition did not cause the appellant’s plea to become involuntary, nor is he subject to any type ex post facto law.
The majority reaches the right result. I concur.