Opinion
No. 200-88.
May 9, 1990. Rehearing Denied June 27, 1990.
Appeal from Criminal District Court No. 1, Dallas County, Ron Chapman, J.
Petition for discretionary review from Court of Appeals, 5th Supreme Judicial District.
Danny D. Burns, Fort Worth, for appellant.
John Vance, Dist. Atty., and Pamela Sullivan Berdanier, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
The appellant plead guilty to the offense of possession of phenylacetone and the judge assessed punishment at 15 years in the Texas Department of Corrections. On direct appeal, appellant argued he was "being illegally restrained of his liberty by the ex post facto legislation under which he was convicted." The Court of Appeals observed the appellant was alleged to have possessed phenylacetone on August 2, 1985, and such conduct was not against the laws of this State until September 1, 1985. Milam v. State, 742 S.W.2d 810 (Tex.App. — Dallas 1988, pet. granted). On this basis, the court reversed appellant's conviction and dismissed the indictment. Id. at 815.
See Texas Health and Safety Code, Subtitle C (Controlled Substances Act), § 481.116 (West 1989).
Now the Texas Department of Criminal Justice, Institutional Division.
This Court granted the State's petition for discretionary review on the issue of the Court of Appeals' jurisdiction under Tex.R.App.P., 40(b). After careful review of the State's petition, the record before us, and the briefs and responses filed by the parties, we have determined we improvidently granted the State's petition for discretionary review.
Therefore, State's petition is ordered dismissed. Just as in cases where this Court refuses to grant a petition for discretionary review, this Court's decision in this cause to order State's petition for discretionary review dismissed because it was improvidently granted should not be construed as approval of the reasoning used by the Court of Appeals in reaching its decision.
The decision of the Court of Appeals is affirmed.
McCORMICK, P.J., dissents.
TEAGUE, J., concurs in the result.
STURNS, J., not participating.