Norman Darden v. The State of Texas--Appeal from Crim Dist Ct of Dallas Co of Dallas County

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Darden v. State /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-95-142-CR

 

NORMAN DARDEN,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the Criminal District Court No. 1

Dallas County, Texas

Trial Court # F94-57782-PH

 

O P I N I O N

 

Appellant Darden appeals from his conviction for delivery of cocaine less than 28 grams, for which he was sentenced to eight years in the Texas Department of Criminal Justice, probated for eight years, plus a $1,500 fine.

On October 6, 1994, Appellant waived a jury and pled guilty before the court to delivery of cocaine, less than 28 grams, on August 4, 1994. The trial court found him guilty on October 6, 1994, and on that date sentenced him to eight years in the Texas Department of Criminal Justice, probated for eight years, and a $1,500 fine.

Appellant appeals on one point of error: "The trial court erred by assessing punishment in excess of the statutory maximum for a state jail felony."

Appellant contends the trial erred in punishing him as a first-degree felon because he should have been prosecuted and punished for a state-jail felony under Texas Senate Bill 1067, Chapter 900, 73rd Legislature (1993), rather than for a first-degree felony under the provision of the Health and Safety Code which was in effect at the time Appellant committed the charged offense. The record reflects that Appellant's judicial confession stated he delivered less than 28 grams of cocaine. Appellant committed the charged offense on August 4, 1994, and was sentenced on October 6, 1994. He was prosecuted and sentenced under Texas Health & Safety Code 481.112(b), which was in effect at the time of the commission of his offense, which provided that delivery of less than 28 grams of cocaine was a first-degree felony. In 1993, the Legislature amended section 481.112(b) to make delivery of less than one gram of cocaine punishable as a state-jail felony with a lower range of punishment. S.B. 1067, ch. 900, sec. 2.01, 73rd Leg. (1993). The amendment is effective for offenses committed on or after September 1, 1994. Tex. Health & Safety Code sec. 481.112.

In amending the Health & Safety Code, the legislature specifically provided that "an offense committed before the effective date of this article is covered by the law in effect when the offense was committed and the former law is continued in effect for that purpose. Act of May 29, 1993, 73rd Leg. ch. 900, sec. 2.08(h) 1993, Tex. Gen. Laws 3586, 3714.

The trial court properly assessed punishment within the range provided by the laws in effect at the time of the offense. Accord: Wilson v. State, 899 S.W.2d 36, 1995 (Tex. App. Amarillo 1995, no pet.h.); Perry V. State, 902 S.W.2d 162, 163 (Tex. App. Houston [1st Dist.] 1995, pet. ref'd). Appellant's point is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

 

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed February 14, 1996

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