Jones v. State, 47678
| Decision Date | 05 December 1973 |
| Docket Number | No. 47678,47678 |
| Citation | 502 S.W.2d 771 |
| Parties | John Luther JONES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Melvyn Carson Bruder, James Mattox, Dallas, for appellant.
Henry Wade, District Atty., and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
This is an appeal from a conviction for the possession of marihuana. The punishment was assessed at confinement in jail for sixty days and a fine of $300. Both the confinement and the fine were probated for a six months' period. Appellant was indicated on April 23, 1973, for the unlawful possession of marihuana as denounced by Article 725b, Section 2(a), Vernon's Ann.P.C., for an offense alleged to have been committed on March 30, 1970.
Appellant was tried on August 27, 1973, the effective date of the Texas Controlled Substance Act, Vernon's Ann.Civ.St. art. 4476--15 which provides, in part, as follows:
'(c) In a criminal action pending, on appeal, or commenced on or after the effective date of this Act, for an offense committed before the effective date, the defendant, if adjudged guilty, shall be assessed punishment under this Act if he so elects by written motion filed with the trial court requesting that the court sentence him under the provisions of this Act.'
The appellant filed his written notice of his election to proceed under the provisions of the Texas Controlled Substances Act before the case was called to trial. Appellant was adjudged guilty of the felony offense of the unlawful possession of marihuana. The evidence shows and the trial court found that the uncontroverted evidence reflected that the amount of marihuana possessed and for which he was indicted was less than two ounces. After finding the appellant guilty, the court assessed the punishment within the terms of the new Controlled Substances Act but found appellant guilty of a felony even though the amount of marihuana possessed was under two ounces and was classified as a misdemeanor offense under the statute.
The appellant contends that the ameliorative effect of a new statute changes the conviction from a felony to a misdemeanor; that the elements of the offense were changed and that the prosecution now has to prove the amount of marihuana possessed. He also contends that the classification of an offense as a felony takes privileges and rights of citizenship from one who has been convicted. Section 6.01(a) of the Act provides:
'. . . A criminal action for an offense committed before this Act's effective date is governed by the law existing before the effective date, which law is continued in effect for this purpose, as if this Act were not in force. . . .'
Subsection (c) provides that if an action is pending
'. . . on or after the effective date of this Act, for an offense committed before the effective date, the defendant, if adjudged guilty, shall be assessed punishment under this Act If he so elects by written motion filed with the trial court requesting that the court sentence him under the provisions of this Act.' (Emphasis supplied)
Article 13 of the 1925 Penal Code provides, in part:
'. . . In every case the accused shall be tried under the law in force when the offense was committed, and if convicted punished under that law; except that when by the provisions of the second law the punishment is ameliorated he shall be punished under the second unless he elect to receive the penalty prescribed by law in force when the offense was committed.'
Article 15 of the 1925 Penal Code provides:
'When by the provisions of the repealing statute a new penalty is substituted for an offense punishable under the law repealed, such repealing statute shall not exempt from punishment a person who has offended against the repealing law while it was in force, but in such case the rule prescribed in Article 13 shall govern.'
It can readily be seen that the provisions of Article 6.01(a) of the Texas Controlled Substances Act are different from Article 13, supra, where the effect of modification by the subsequent law is concerned. Under Article 13, the punishment is ameliorated to the second act unless an accused elects to receive the penalty prescribed by the first law.
Under the provisions of the new Act, had the appellant not elected to have been tried under its provisions, then the penalty under the former Act, Article 725b, supra, would have applied. In this case, under the provisions of the present Act and under the proof, the appellant could not be convicted as a felon because the amount involved was less than four ounces.
The appellant further contends that the district court lost jurisdiction. We do not agree. The...
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