*1 LECHUGA, Appellant, David Texas, Appellee. STATE
No. 50426. Appeals
Court of Criminal of Texas.
Sept. 1975. Rehearing Feb. 1976.
Rehearing Denied March 1976. McGowan, II, Court-appointed,
William J. Brownfield, appellant.
582 Boedeker, Levelland, the Atty.,
E. W. Dist. legitimacy constitutional of the Vollers, Atty., Jim D. and David S. be fully State’s increased sentence reviewed Austin, McAngus, Atty., appeal.” Asst. State’s for on the State. Because the record contains neither for the in punishment reasons increase nor
OPINION
upon
factual data
which such an increase
based,
judgment
could have been
the
of the
ODOM, Judge.
assessing punishment must
court
be vacat
May
plead guilty
Bowman,
parte
supra.
ed. Ex
before the court to the offense of defraud-
ing with a worthless check. Punishment
years, probat
say
The dissents
was
assessed
the court at
years.
A ed,
a
is not more severe sentence than three
motion for new trial was
thereafter
filed
Actually,
is no
years.
probation
sentence at
granted by
the court. On
year
imposed
all: the five
sentence is not
at
2,1972,
August
appellant again plead guilty
all,
is
unless the
revoked. But
cause,
the
this
before
court in
and the court
imposition
suspended
whether
of sentence is
punishment
years. Appel-
assessed
at five
not,
punishment
the
assessed was 3 years
lant
placed
probation,
was then
on
which
first
at the
trial and 5
the second.
subsequently
Appeal
was
revoked.
is taken
Following
of probation
revocation
the
revoking
from the
probation.
order
was
finally
imposed,
harsher sentence
for
greater severity appear
no reasons
its
in
not
Although
raised
the record.
brief, we observe constitutional error which
jus
should be reviewed in the interest of
judgment,
punishment,
The
as to
is re-
tice.
40.09(13),
Appellant,
Art.
V.A.C.C.P.
versed, and the cause is remanded for as-
cause,
upon his
conviction in
second
this
punishment by
the
sessment
trial court
greater punishment
a
than
assessed
in accordance
North
Carolina v.
upon
his first conviction.
Pearce, supra.
proceedings
Both
were before the
tri
same
judge,
appears
al
data
in the
and no factual
DOUGLAS, Judge (dissenting).
legitimate
record which would constitute a
majority
years’
a five
pro-
The
holds that
punishment.
basis for increased
greater
is a
punishment
bation
Bowman,
parte
In Ex
677
S.W.2d
years’
Depart-
confinement
in the Texas
(Tex.Cr.App.1975),
prerequisites
in-
so,
doing
ment of Corrections.
In
it treats
a
punishment upon
creased
retrial
case
year
equivalent
a
as
to a
such as the
us were
from
quoted
one before
confinement.
North
Carolina
by anyone
The matter has not been raised
there
stated: upon pro- collateral attack imposes “. . whenever a bation. upon more severe sentence a defendant trial, majority apparently for his reasons that
after a new the reasons appear. grant- will be revoked after it is doing affirmatively so must not, objec- apparently ed. If then it reasons that Those reasons must be based concerning possible it is will be tive information identifiable probationer if part greater of the commits another or conduct on the defendant original the time other crimes and the is occurring after revoked. factual This is not the case time proceeding. And the at the sentencing data the increased sentence was assessed. The trial upon which not record, so part granted probation thought based must be made have if he up penalizing appealing. from a defendant for appellant would fail to live to its condi- present case the tions. showed com- vindictiveness, passion, giving appel- not at the time this case was Under the law lant and another chance. tried, years’ proba- of five Let us consider the facts of the case in have been reduced or terminated tion could *3 connection with sole contention. satisfactorily completed had original probationary peri- third of the one 23, 1972, May He convicted de- for This, course, of is somewhat less than od. check; frauding pun- with a worthless his 42.12, 7, Art. V.A.C. years. three See Sec. years. ishment was assessed at three His C.P. 2, granted August motion for new trial was 1972; plea he entered another of guilty and revocation, At the time of Art. Sec. asked probation. He was assessed a 8(a), provided probation V.A.C.C.P. if years probated. at five Two of revoked, were the court could have reduced probation the conditions of were that he imprisonment the term of to not less than “(a) commit against no offense the laws of prescribed the minimum for the offense for this or any State other State or the United which he had been convicted. States, (b) injurious avoid and vicious hab- provisions From the above its, particularly not become intoxicated statutes, it mandatory was not public in a place operate a motor vehicle years had to be served even if while under the intoxicating influence of were revoked. The could have liquors.” serving any been set aside without time. 27, 1974, an November amended mo- Nearly every person charged except per- tion to revoke was filed. It al- haps professional accepts criminal who leged that the terms and conditions of said getting caught a part the risk of as of his probation have been violated as follows: risk, business would rather have five “a) That on or about day the 20th probated years’ confinement. October, 1974, Lechuga, David in Terry judg- If there could be a that a County, knowingly Texas and intentional- years probated ment of five is less than ly another, physical cause contact with confinement, just ask the man Robertson, he, to-wit: Mrs. Robert when just who has one or ask a person who has the said defendant knew and should have his felony charged committed first and been reasonably believed that the said Mrs. crime, lawyer with that or ask a who has Robert regard Robertson would the said represented first offenders. contact as offensive provocative. North Carolina v. U.S. b) That on or day about 20th of Octo- 23 L.Ed.2d which holds that ber, 1974, Lechuga, Terry David Coun- judge greater the same should not assess a ty, Texas knowingly and intentionally after a case has been reversed physical cause another, contact with to- shown, unless certain facts are appeal on he, Lechuga, wit: Deola when the said misapplied by has been misconstrued and defendant knew and should have reason- majority, because in the present case ably believed that Lechuga the said Deola trial a lesser regard the said contact as offen- the time of provocative. sive and trial. c) day That on or about the 20th of Octo- Pearce, supra, In North Carolina v. ber, 1974, Lechuga, Terry David Coun- a trial permitting reason for not ty, Texas with the intent to damage and higher punishment assess a after a defend- destroy telephone furniture and a with- appel- had been in an ant’s cause reversed out the effective consent of Mrs. Robert Robertson, prevent late court was to a vindictive the owner thereof. d) That on or about the 20th day of Octo- She went to the hall to call the officers. ber, 1974, Lechuga, David was intoxicat- Appellant “knocked the door in”. After a public place Terry ed in County, entering, dragged he Deola out of bed and Texas. started striking her with his fists. Theresa again officers, tried to call the appel- but e) Lechuga That David on or about the pushed lant against her the wall and was day January 10th in Lubbock attempting to hit her when Deola stepped County, Texas did then and there while between them. committing in the course of theft good and lawful Currency United States here- He then took Deola and the three chil- after called the property from Mark Cor- dren outside stayed a few minutes. ley, with intent to obtain and maintain Robert Robertson tried to call police, control property, knowingly and but appellant came back pulled inside and intentionally place threaten and JaNette *4 telephone off the wall. He up tore Hodges bodily injury in fear of imminent screen and the door. He threw high chair and death.” at Deola light and hit a fixture and broke A “Judgment Revoking Probation” dated it. 2, 1974, December was entered. breath, She did not smell his stag- but he appellant It recited that violated the gered real bad and she believed that he was terms of as follows: intoxicated. “a) That on or about the 20th day of Lechuga Deola testified that appellant October, 1974, Lechuga, David in Terry came to the door of the Robertson house County, Texas did knowingly and inten- and knocked. She told them not to let him tionally physical cause contact with an- in. He broke in the door and entered. He other, he, Lechuga, to-wit: Deola when then struck her “all over” her face and body Lechuga, the said David knew and should with his fists. He shoved her and then have reasonable believed that the said up doubled his fists to hit Theresa and she Lechuga regard Deola the said stepped got between them and hit in the provocative. contact and as offensive mouth. She smelled alcoholic beverages on b) day That on or about the 20th of Octo- his breath and believed that he was intoxi- ber, 1974, Lechuga, Terry David in Coun- cated. She had seen him on other occa- ty, damage Texas and destroy did furni- again sions. She asked what was her telephone ture and a the effec- opinion. answered, She “That just he was Robertson, tive consent of Mrs. Robert drunk, Dog drunk.” the owner thereof. She further related appellant that took c) day That on or about the 20th of Octo- baby their and fell down with it.
ber, 1974, Lechuga, Terry David in Coun- ty, public Texas was intoxicated in a Robert Robertson testified that on the place Terry County, in Texas.” night in he appellant and went to appel- Theresa Robertson testified that the Farmer’s in Club Brownfield. While Deola, lant had been married to her sister there he appellant drinks, saw have four they but the time ques- maybe were divorced at in more. Robertson left the club at tion. Deola and her children were at the approximately 6:30 get appel- and tried to appellant leave, Robertson house while and There- lant to but he would not. At that sa’s time, husband went to a club in Brownfield. say “I would pretty he was well on his Robert way Robertson returned to the house at being intoxicated.” He related that approximately 11:30 or 12:00 o’clock that he would not let enter the house. night. Later came to the Appellant cursed, house loose, tore the screen door and knocked on door, the door. He was told to broke the glass out of the tried go away. He cursed and beat on the door. unlock it and then open kicked the door and No error or abuse of discretion has been so, facing on the door. doing broke should be affirmed. shown. testimony about the assaults was sub- His the two wom- stantially the same as that of
en. ROBERTS, Judge (dissenting). agree opinion I cannot with the judge stated: revoking probation years’ probation is “a did, on or you “. . I find that three years’ more severe sentence” than October, strike day about the 20th imprisonment purposes of North Caroli- wife, Lechuga, and your former Deola na v. did, physical you intentionally cause (1969). L.Ed.2d 656 you should contact with her and imposed purpose Probation is for the probably did know and have known confinement, rehabilitation without at least this contact with her was believe that theory. permits Probation an individual provocative. offensive guilty found of a crime to continue his did, intent, you also find that I education, job, hold a and remain in the damage destroy light fixture supportive company family and friends. and also telephone the house and the being The trial here was not vindic- evidence, preponderance from a changing appellant’s tive in sentence from you public were intoxicated in a years’ imprisonment to five day. Although place on or about *5 granting his motion for new testimony vague, is rather the Court fact, being trial. he was more lenient. none, you hereby that since offered finds granted assumption Probation is not on the you that were intoxicated preponderates revoked, it that will be but rather on the public place in a on this date. assumption that it will be a carried to suc- taking money
About the and threatene cessful conclusion. that ing Hodges, Janetta the court finds five-year probated The sentence here part to sustain that is insuf- the evidence years’ imprison- looks harsher ficient. only ment when the is revoked. pre- North Carolina v. Pearce is aimed at Judgment I will enter a to this effect.” venting imposition vindictiveness the of a apparent It that the did not sentence, possible new subsequent not a appellant the fact that did not consider hearing. revocation testify when he found in effect that he reasons, majori- For these I dissent to the Lechuga destroyed Deola the assaulted case, ty’s disposition proceed of this property in the house. ground brought address the of error for- only proba- issue in a revocation of The appellant’s ward in brief. tion case is did the trial court abuse its error, only ground appellant In his Here, considering in- without discretion. complains that the trial took into toxication, grounds upon there were two testify consideration his failure to in revok in which the which was revoked ing 38.08, probation, his in violation of Art. no say did not offered We find to be V.A.C.C.P. this contention evidence. Although without merit. a revo discussing fully question the Without hearing cation must be attended due judge’s law, about the statement process Mempa Rhay, v. being an allusion to (1967), offered no evidence 19 336 88 S.Ct. L.Ed.2d State, (Tex.Cr. there was evi- appellant’s testify, Campbell failure to v. 456 918 S.W.2d peo- with other App.1970), to show that he was it is not a trial in all constitu dence State, who could have tional senses. Hill v. 480 200 ple at the Farmer’s Club S.W.2d Tipps, cf. Fariss v. 463 (Tex.Cr.App.1972); been called. 586 (Tex.1971); State, 176
S.W.2d
Ross v.
OPINION ON
MOTION
STATE’S
having
fendant for
successfully attacked
FOR REHEARING
*6
his first conviction must play
part
no
he
sentence
receives after a new trial
ONION, Presiding Judge.
In order to assure the absence
rehearing
vigorously
the State
urges
motivation,
of such a
we have concluded
wrong
that
was
in holding
that
judge imposes
whenever a
a more
(5) year
that a five
punish
assessment of
severe
upon
sentence
a defendant after a
ment
the court with
at the
trial,
new
the reasons
doing
for his
so
punish
second trial was a “more severe”
must affirmatively appear. Those rea-
(8) years
ment than the three
pro
sons
upon objective
must be based
infor-
bation assessed
the court at the first
mation concerning identifiable conduct on
trial,
that
North Carolina v.
395
part
of the defendant occurring after
711,
2072,
U.S.
89 S.Ct.
587
discussing
concluded that it was. After
with “more severe
synonymous
a trial
pro
than the formal
broad discretion
in Missouri is
penalty”
rather
provided
given
fashioning punishment
in Arti
of sentence as
nouncement
guilt,
“sen-
“probation,”
of our
of Criminal
determination of
cles 42.02 and 42.03
Code
punishment,
that Pearce is
tence” and
the court concluded
Procedure.
It is also clear
retroactively, Michigan
penalty
v.
that “sentence” or the
does not
applied
not to be
47,
1966,
Payne,
part
412
93
36
include as a
of its definition such con-
U.S.
S.Ct.
(1973),
normally
it
ditional orders as the court makes for the
L.Ed.2d 736
jury
jury
punishment probation.
trial where the
amelioration of the
apply
would not
to
—
Styn
impact
v.
Probation lessens the immediate
of
punishment,
assesses
Chaffin
1977,
defendant,
chcombe,
36
the sentence on the
but proba-
412
93 S.Ct.
U.S.
se,
not,
(1973).
particularly
per
lengthen
This is
tion does
shorten or
L.Ed.2d 714
added,
of the first
the sentence.
It was then
“The
jury
true where the
is unaware
showing
is no
court holds that
...
is not
penalty assessed and there
State,
part
imposed upon
v.
505
of the sentence
a de-
vindictiveness.
See Curlin
v.
(Tex.Cr.App.1974); Fuery
fendant.”
889
S.W.2d
State,
(Tex.Cr.App.1971).
666
464 S.W.2d
reasoning of Thurman v.
Rejecting the
Further,
application
no
where
Pearce has
States,
(9th
1970),
jurisdiction
impact of the sentence
“totality of the
in an inferior court for a lesser
viction
considered,”
upon the defendant must
Kentucky,
Colten v.
407
criminal offense.
adopted the
Supreme
the Missouri
Court
92
out was a “more severe” sentence any The court then held that sentence years probation light two imposed than in in a second judge trial before a Pearce, supra, greater of North Carolina v. and imposed cannot be than a sentence credit for n of his sentence? Do any “straight having you 2. In Texas can it be said that Department that, although time” in the of is a Corrections counter with the fact a 10 punishment any year probationer any “more severe” than during pe- term of at time the probation? years’ (the probation may Is 10 max- riod have his revoked and be 42.12, upon year sentence, imum under Article Vernon’s Ann.C. called to serve his 10 C.P.) probationer may (1) successfully “more severe” than two such also is, “straight you year probation, (2) time”? If it then where do serve his 10 or if re- voked, possible probation periods may draw the line on have the time to be served re- say they 42.12, 8, (Article are more and less severe than duced Sec. Vernon’s Ann. not, years’ “straight C.C.P.), (3) may upon comple- two time”? If it is do successful you person years probationary take into consideration tion of two period or V3 of his imprisoned Department (Article in the of Correc- have terminated 7, may “good (Article Ann.C.C.P.)? tions earn time credits” Sec. Vernon’s It 61841) eligible parole easy get be for after would be into never-never land. by judge except the trial in When the first was revoked and the sen- executed, Pearce. court those instances noted in The tence was time of con- however, found, that Pearce to be was not finement was increased because he had applied retroactively McCulley’s and that committed other several offenses. North prior second trial occurred to Pearce. Carolina v. 89 S.Ct. Nevertheless, holding the in as to McGulley L.Ed.2d by relied the after procedure majority, the be used the date misapplied by has been the major- in ity the Pearce decision is accord with the because there was new conduct original opinion on in majority submission could considered. Such was not the case case. the instant in North v. Carolina Pearce. There was no the by
vindictiveness trial when he the the probation. instant case assessed or revoked (3) years was assessed three No error has been shown. The State’s defrauding by a worth for the offense rehearing motion for granted should be retrial, Upon granting less check. affirmed. trial, appellant’s motion for new the court (5) years at five for ROBERTS, J., joins in this dissent. offense. no af same The made showing his in firmative for reasons for required
creasing penalty as Pearce.
Thus, procedure point at that granting Pearce. Does the
violation of (5) years five cure such consti for We not.
tutional error? think Remaining convinced the correct re- Bryce WARREN, Appellant, Richard original submission, sults were reached on rehearing motion over- State’s is Texas, Appellee. The STATE ruled.
No. 50908. Appeals Court of Criminal of Texas. OPINION ON DISSENTING STATE’S MOTION FOR REHEARING Feb. 1976. DOUGLAS, Judge. years that five majority
The still holds more is
years penitentiary. are than
correct five more But is like years. saying
three this pennies are worth more than *8 spanking blows in a would be
dollars. Five provided
more than three blows uniformly
they applied. are Which greater: applied five with a soft blows compassionate newspaper by
folded a moth- applied with razor
er or three hard blows enraged
strap by an father? Measured assessed,
the time more would not be confinement.