Neal v. State

NEAL, Appellant, Ronnie Joe

The STATE of Texas.

No. PD-1559-03. Texas, Appeals

Court Criminal

En Banc.

Nov. Moon,

Kathryn Longview, Appel- B. lant. Austin, Paul, Attorney, State’s

Matthew for State. July appel-

his boxer shorts. On pleaded guilty, pursuant plea lant to a bargain, forgery burglary to both the OPINION 9, 1998, charges. On was September he COCHRAN, J., opinion the of delivered possession deadly weapon indicted for of a KELLER, P.J., in the Court which institution, penal stemming in a from the MEYERS, KEASLER, HERVEY and Appellant incident. filed a fed- June 16th HOLCOMB, JJ., joined. Rusk civil-rights against eral lawsuit a court judge appel- After found May 20, County alleging on mistreat- lant guilty possession deadly weap- of jail. ment in the Before in civil- trial on in penal him institution and sentenced suit, rights appellant State negoti- years’ to six imprisonment. The court two-year plea bargain ated a for a sen- appeals reversed this conviction and or- pending weapons charge. tence on the dered the case It dismissed. concluded Appellant prison was then in —who that appellant’s prosecution came —which serving burglary sentence—was bench- after filed a civil-rights federal suit— County plea warranted back to Rusk for a raised a presumption of that vindictiveness weapons charge. on But before that the State did not overcome trial.1 The plea hearing place, could take Rusk Coun- State asks whether the court of appeals ty appellant prison officials returned to by reversing erred judg- the trial court’s they positive. because learned he was HIV theory ment on a of prosecutorial vindic- Thus, 17, 2000, on November the State when theory prop- tiveness was never the weapons charge dismissed with a nota- erly presented to trial court.2 We hold tion that in defendant was convicted “[t]he that it did err when it reversed the trial another case.” judgment court’s on a pleaded, basis never proved, or upon ruled in the trial court. February 28, On federal dis- We therefore reverse the court appeals one-day trict court conducted a trial on judgment and affirm the of the trial court. Appellant civil suit. tes- possessed

tified and admitted he had I. County in Rusk weapon homemade jail. in ruling No was made on that date During the summer of 6, 2001, the federal trial. On March six was in the County jail Rusk trial awaiting days after the federal hearing, State— charges on forgery of a burglary County at the behest of the Rusk Sheriffs 16, 1998, habitation. On June local Office, jailers had first caught him with which learned about weap- a homemade sharpened weapons charge on—a toothbrush at the into a stab- bing instrument —which he had in civil-rights secreted trial —re-indicted 2) Neal (Tex.App. appeals applying 117 S.W.3d 301 The court of erred in 2003). Texarkana presumption vindictiveness prosecutor's to the decision re- granted Prosecuting Attorney’s 2. We the State indict, where the record fails establish grounds for review: reasonable likelihood of vindictiveness. 1) by reversing The court of erred agree Because we with the State’s is- first judgment theory prop- trial on a sue, we need not address the State’s second erly presented to the trial court and review, ground for and we therefore dismiss given opportu- court which it. rule; nity to agreed-to weapons charge.3 Appellant original learned assess the two- April Appellant’s in year attorney, the federal district sentence. $6,000 “Now, here, I judge judgment closing, him a stated: this man had awarded issue, in County against civil-rights agree- Rusk think resolve he’s ment, agreement, suit.4 his sister’s I’m punish him with the agreement, original The State declined re-offer its everybody thought bargain plea weapons on the closing, right.” In its the State asked the pre- case. After the trial court denied his court “to review all of the evidence that (none prose- trial motions of which claimed today, introduced review the serious- was vindictiveness), appellant cutorial a waived crime, his criminal rec- ness review jury requested a trial. and court After appropriate and issue sentence.” ord the hearing the State’s punishment court six The trial assessed at appellant guilty. court found prison. in punishment hearing, At the State appeals, his brief to the of 1) put previous evidence of: time, alleged, for that appellant the first 2) convictions; forgery burglary and appel- his conviction should be reversed and penitentiary packet, lant’s which listed case dismissed it “was in violation because robbery, four other convictions—one rights of his under Due Process Clause burglaries, and one use of a unauthorized of of the Fourteenth Amendment because 3) vehicle; appellant motor and letters He stated prosecutorial vindictiveness.” girlfriend wrote to his in the Rusk while in prosecutor that in this case acted “[t]he County in jail which he asked her by re-indicting maliciously bad faith and in into the smuggling handgun assistance a a “there second time” and that was [him] jail escape obtaining so could and in he revenge other reason except no a to create new documents identification prosecutor pursue retaliation for the to escaped. after he second indictment.” The defense evidence agreed and held civil-rights before trial on the federal court of (“the sequence of appellant negotiated the State that events State sentence, plea bargain charge completely, for a but dismissed Neal’s heard, re- unwilling that the State to re-offer civil suit was and then the State charge”) presump- that the federal trial. The filed same raised a bargain after of there defense characterized the re-indictment as tion vindictiveness and that in retaliatory unfair asked the trial the trial record to overcome Neal, against County.” exceptions, prosecutor In bill of testi- Rusk fact, fied that the decision to re-indict came after appellant that he 308. In testified found complained Office about Sheriff's damages April he out was awarded 18th. County original dismissal. The Rusk Jail Ad- copy of the federal The State has attached ministrator also testified. He stated after judgment court’s written to its brief in district open oath and in admitted under at We decline to consider that Court. possession deadly court that was of contents, its but we tachment for the truth of weapon, his office contacted district attor- document, do take notice of the fact that this re-indicting ney's appellant. office about verifying judgment as the date the federal April could been introduced have appeals mistakenly court of believed 4. The timely raised his into evidence had weapons charge not re-filed "was complaint proper in the forum. Neal and was awarded until after went damages of his civil violations it.5 gives It reversed the trial judgment good way faith either rebuttable presumption prosecutorial vindictive- dismissed the indictment.

ness or proof actual vindictiveness.9 II. prosecuto- A claim of constitutional Both Texas and federal courts rial vindictiveness be established recognize prosecutors 1) have broad dis ways: proof either of distinct cretion deciding which prose cases to pose circumstances that a “realistic likeli Thus, prosecutor prob cute. hood” of such “[i]f has misconduct sufficient raise a “presumption able cause to believe that the accused vin dictiveness,” which the must or State rebut statute, committed offense defined 2) face charges;10 proof prosecute decision whether is, of “actual vindictiveness”—that direct charge what generally entirely file rests prosecutor’s evidence that the de charging within his or her discretion.”6 Courts unjustifiable penalty resulting cision is an presume must prosecution criminal solely from the a defendant’s exercise of is in good undertaken faith and in nondis protected legal right.11 criminatory fashion to fulfill the State’s duty bring to justice.7 violators to Never first if the prong, Under theless, a prosecute decision to violates pursues charges State increased or an en due process charges when criminal hanced sentence after a defendant is con in brought retaliation for the defendant’s victed, legal right exercises his to appeal, legal Thus, exercise of rights.8 trial, and obtains a Supreme new Supreme Court has held spe under found a presumption prosecu- Court has cific, limited circumstances, presump torial In very vindictiveness.12 few tion a prosecution is undertaken in presumption situations in which this does Neal, Johnson, 139, 5. 117 at S.W.3d 308-09. 10. United States v. F.3d 171 (2d Cir.1999). 140-41 Co., 763, 6. v. State Malone Serv. 829 S.W.2d (Tex. 1992); 769 Hayes, Bordenkircher v. 434 Goodwin, 380-81, 11. 457 at U.S. 102 S.Ct. 357, 364, 663, U.S. 98 S.Ct. 54 L.Ed.2d 604 generally 2485. See 4 R. Wayne LaFave, Jerold (1978) ("[i]n system, long prose our so as the H. Israel & King, Nancy J. Criminal Procedure probable cutor has cause to believe that the 13.7(c) (1999) § (discussing historical evolu- accused committed an ute, by offense defined stat "prosecutorial tion of constitutional vindic- prosecute, the decision whether or not to claims). Supreme tiveness” Court made charge bring to what file or a quite clear that it would be a difficult for grand jury, generally entirely rests dis high defendant to meet the burden of demon- cretion”)- Goodwin, strating actual 457 vindictiveness. State, 671, (Tex. 7. Gawlik v. 608 19, S.W.2d (quoting U.S. at n. 102 S.Ct. 2485 Crim.App.1980). government’s brief that "the defendant is free support tender evidence to the 21, (Tex. Castleberry 8. v. charges claim that enhanced are direct ("[t]o Crim.App.1984) punish person be unjustifiable penalty pro- for the exercise of a plainly cause has what he done the law allows course, right. only cedural Of ain rare case process him do is a due of the violation would a defendant be able to overcome the sort, agent most basic and for an State presumptive validity prosecutor's of the ac- pursue objective course of action whose through demonstration”). tions such a penalize person’s legal is to reliance on his ”) (quot ‘patently is unconstitutional.’ 21, Blackledge Perry, v. 417 U.S. 94 S.Ct. 663). ing Hayes, 434 U.S. 98 S.Ct. Goodwin, (1974). 40 L.Ed.2d 628 Goodwin, Supreme explained why pre- United States v. Court 457 U.S. (1982). sumption prong rarely S.Ct. 73 L.Ed.2d 74 of vindictiveness —if prong, second when by objective can Under the

apply, be overcome justifying prose- the record the defen apply, does not presumption must cutor’s action.13 The defendant may obtain relief if he can show dant still convicted, appealed that he was prove To actual vindictiveness.16 establish a new and that obtained objec prove, a defendant must with greater charge or thereafter filed a State evidence, prosecutor’s charg tive The burden additional enhancements. unjustifiable “direct and ing decision was a prosecution to come for- then shifts to the “solely from de penalty” that resulted explanation charging with an for the ward protected legal of a fendant’s exercise unrelated to defen- increase right.”17 prong, the defendant Under legal right dant’s exercise of his production shoulders the burden both peal.14 The trial court decides the issue any legal pres persuasion, unaided pro based all of the again, judge umption.18 Once con, credibility prosecutor’s and the ultimate factual issue based explanation.15 decides the any prior plies, applied district court consider outside the context of "the ever— conviction, charges, post-appeal explanation the added appeal, reasonable successful negate long explanation tends to charging so as enhanced decision: motivation"). retaliatory inference good There is reason to cautious before pros- presumption adopting an inflexible Id.; Johnson, see also United States setting. ecutorial vindictiveness (5th Cir.1996) 695, ("[a] district 698 F.3d trial, preparing case In the course of a findings prosecutorial factual vin- may prosecutor uncover additional in- error and are reviewed for clear dictiveness suggests a formation that basis for further guide legal principles the district which prosecution simply may come to real- or he novo”). de reviewed by possessed State ize that information stage significance. has a broader At this McCullough, 16. 475 U.S. Texas v. proceedings, prosecutor’s assess- 976, (1986). S.Ct. 89 L.Ed.2d 104 106 prosecution proper extent of ment contrast, may crystallized. In not have 19, Goodwin, & 457 U.S. at 384 n. 102 begins by certainly once a trial —and 2485; Whaley, see States v. S.Ct. also United a been obtained—it is time conviction has 1469, (7th Cir.1987) (”[t]o F.2d 1479 likely the State has discov- much more vindictiveness, prove there must be ob- actual all of the information ered and assessed jective prosecutor a acted in evidence that against a deter- an accused and has made punish standing on the defendant for order information, mination, on the basis of that legal rights”). prose- of the extent to which should be Thus, charging change in deci- cuted. a Sarracino, 1148, 340 F.3d 18. United States v. completed an is made after initial trial sion (10th Cir.2003); v. United States 1177-79 likely improperly to be moti- much more 568, Cir.1998) Moulder, (5th 141 F.3d vated than is decision. (”[i]n reviewing prosecutorial vindictiveness 381, Goodwin, at 457 U.S. 102 S.Ct. prosecu- 'the court must examine the pro- context of the entire tor’s actions Goodwin, 2485; U.S. at 102 S.Ct. ceedings.’ prove The defendant must Paramo, v. 998 F.2d see also United States evidence; by preponderance of the (3rd Cir.l993)(''[e]ven if a defen- and, any objective or event combination '[i]f a realistic likelihood of vin- dant establishes dictiveness, however, to a reasonable of events ... should indicate government still has prosecutor’s deci- defendant that the minded proffer legitimate, objective opportunity severity charges sion to increase the conduct”). reasons for its by purpose some other than vin- motivated Krezdorn, appeals, punish dictive desire to deter or 14. United States ”) Cir.1982) presumption created’ (5th (stating pre of vindictiveness is that when (citations omitted). ap- sumption prosecutorial vindictiveness credibility the evidence and determi- Appellate Texas Rule of Procedure 33.1 nations. provides general, prerequisite as a presenting complaint appellate prong, Under either the de “[i]f review, the record must timely, show a prove fendant is actual unable vindic specific objection by and a ruling tiveness or a realistic likelihood of vindic “Except complaints involving court. tiveness, a trial court need not reach the (or absolute) systemic requirements, or government justification.”19 issue of That only that are waivable ... all other is, the State stand mute unless and constitutional, complaints, whether statuto- until the defendant carries his burden of otherwise, ry, or by are forfeited failure to proof prong. under either 33.1(a).”21 comply with Rule III. In this case the trial court neither disre- (such garded an requirement absolute as Appellant Forfeited His Prosecutorial jurisdiction subject person), over the Vindictiveness Claim Because He nor denied a waivable-only right Comply Failed to with Texas Rule (such right jury as the to counsel or a 33.1(a). Appellate Procedure trial), only so the issue is appel- whether never filed 33.1(a). lant complied with Rule He did a motion to quash dismiss or the indict Appellant’s prosecutorial not. “retalia- ment based on a claim prosecutorial argument, tion” mentioned for the first vindictiveness. Even at he never punishment time in the hearing, was nei- argued due-process that his rights had timely Furthermore, ther specific. nor been violated the re-indictment. As the pellant never asked for dismissal of the Prosecuting out, State Attorney points indictment nor did he offer evidence to evidence that the court of appeals relied support due-process claim. The State upon to find vindictiveness was never an opportunity afforded to offer was not hearing appel rebuttal and the trial court was pretrial Instead, lant’s motions. it was never upon legal asked to rule claim of presented at the sentencing hearing after prosecutorial vindictiveness. then, he had been guilty. found Even appellant solely offered this evidence timely. A. The claim not mitigation punishment, of not to support a legal due-process requiring claim The Texas Code of Criminal the indictment.20 if requires Procedure a defendant Contreras, 1255, retracted, 19. United v. legal States later form the basis of a (10th Cir.1997). 1262-63 prosecutorial claim of vindictiveness. It is largely for this reason that we have set out the argues 20. The dissent that this Court does not possible legal bases for constitutional appellant actually address claim that prosecutorial claim of vindictiveness in Part is, raised in the trial court. That to some II. extent, appellant true. The claim that brought closing only by in the trial This Court court was his can address the decision 66.1, argument equitable plea judge appeals, that trial the court of see P. Tex.R.App. impose any greater should not sentence than and that court ordered dismissal of the indict- two-year plea bargain prosecutor legal ment on a claim that was not raised in agreed legal had once to. That is not a claim the trial court. prosecutorial vindictiveness. Neither State, (Tex. pellant any precedent nor the dissent cite v. that S.W.3d 21. Mendez made, plea-bargain Crim.App.2004). offer that is once but the was or have dis- seeks dismissal an indictment as defective should been remedy statutory for his constitutional or quashed. or missed 33.1 requirement the Rule timeli- appellant timely did file a generally ness means that the claim must quash indictment motion based upon be and ruled before trial.22 raised (1) an specific grounds: allegation 28.01, Under Article a trial court must indictment; illegal an to the amendment “preliminary at a determine such matters” (2) and under Tex. Penal Code pre-trial hearing.23 preliminary All mat- 12.45, § provides which that a court “[i]f pre-trial ters which are not raised at the an lawfully takes into account admitted hearing, generally considered forfeit- offense, that of- prosecution is barred for aside, dismiss, ed.24 A motion to set pretrial fense.” court held hear- quash an indictment should be made at the ing, only those were the two issues opportunity,25 first must be upon. Appellant’s discussed ruled prior to the trial court announcement stated, during closing argu- counsel it ready that that for trial.26 party ments, State declined to re-offer salutary purpose This serves the “of rule bargain plea its once preventing unnecessary trials and deter- had Thus appellant. re-indicted ring interruption of a on the time ample opportunity to include any objection relating merits any legal pertinent claim of vindictiveness presentation institution Because motions. charge.”27 It would little make sense to any did raise vindictive- complete wait until after a trial is pretrial hearing, ness claim at the the trial should never complaining be- place have taken because indictment claim—based events occurred part its George 22. See E. of the trial record of the case 43A O. and Robert Daw- Dix merits." son, Practice and Pro- Texas Practice: Criminal 42.78, ed.2001). (2d § at 274 cedure State, (Tex. v. 408 S.W.2d Valadez pre- 23. Under Tex.Code Crim. Proc art. 28.01 Crim.App.1966). liminary matters include: defendant, (1) Arraignment of such if (Tex. Wilson necessary; appointment of counsel Crim.App.1966) reh’g). (op. on defendant, represent if such be neces- defendant; (3) (2) sary; Pleadings of the States, v. United Sewell (4) any; Exceptions Special pleas, if (8th 1969). Cir. substance the indictment or in- form or ... formation. that, Appellant because the State claimed charges” the box on other checked "convicted 28.01, 2,§ pro- Crim. Proc. art. Tex.Code originally when it dis- the dismissal form case is “[w]hen vides that set criminal indictment, weapons missed pre-trial hearing, preliminary any such such into court must have taken this indictment days or seven matters not raised filed accepting plea bargain in the account in hearing be will not thereafter allowed charges. forgery burglary The trial court filed, by permission except of the raised or rejected appellant pleaded this claim because shown; provided good cause court for guilty he was ever to those crimes before shall have sufficient notice defendant deadly-weapon indicted for the offense hearing to allow not less than 10 such him that the trial court had there was days preliminary to raise file such in which or uncharged into account in taken this offense pre-trial matters. The record made such plea bargain forgery rulings accepting the hearing, court and ex- charges. objections burglary ceptions shall thereto become Q civil-rights] fore trial and were known to And after that tri- [federal 28th, untimely.29 February you before trial —was al on were indicted for the same incident? Yes, sir, A I was. specific.

B. The claim was not Q you surprised? And were Nor appellant’s prosecutorial vindic- Yes, A I thought sir because was dis- claim, to degree tiveness that it was I thing missed. So the first felt was this punishment, specific raised at under Rule was retaliation. 33.1(a). At appellant never asserted Q you asking Judge, Are in order to timing of the re-indictment dem- with, get you him asking this over onstrated either actual vindictiveness —are years? for the two reasonable likelihood of misconduct suffi- cient to a presumption prosecutori- raise Yes, sir, A I am. al timing vindictiveness. He used the Neil-Terrell, sister, Debra argue mitigation of punishment —to likewise testified she thought the re-indict-

prove that he deserved no more than the retaliation, ment year but that a two origi- sentence that the State had sentence would be fair: nally Appellant offered. took the stand Q why you And did want to be here and testified as follows: sentencing? Now, Q you got re-indicted, when were A I Because would like to talk to the you still willing and able to willing take — Judge speak my to him on behalf of to, wanting to take original the two brother, I truly because feel case years? justice. revenge. about It’s about Yes, sir, A I was. Q Now,

Q you asking are though you Even the Court —what thought it was over you asking today? are the Court to do with? A I’m begging please give the Court to Yes, A sir. my brother the deal. Q then, But in the negotiations they Q years? Of two agree wouldn’t they? would years, yes. A Of two No, A sir. Q you justice And do think will be served Now, Q you asking Judge today way? for the original you Yes, A I do. agreed to back in 2000? Appellant never uttered the words Yes, sir, A I am. “prosecutorial vindictiveness” at trial. He

never made this due-process at trial Peterson, 101, Cir.1993) (“a 29. See United States v. prosecution’ claim ‘vindictive (1st Cir.2000) (“[b]ecause 105 presents primarily questions gov- Peterson failed factual However, prosecution pri- to raise a claim Sandvig of vindictive ernment motive. did not below, or to the claim is waived and we review raise this issue therefore there error”); States, plain for support Jarrett v. United 822 the evidence in record to his con- (7th Cir.1987) (“Rule 12(b) Therefore, F.2d 1442 pres- tention. this issue does not requires any exceptional that motions for selective and vindic- ent of the circumstances that prosecution brought prior tive departure barring must be to trial warrant from our rule waived”); they will be deemed United consideration of an issue raised for the first Conkins, (9th appeal”). States v. F.3d time on to either given opportunity did the relief at tri- was never the request nor he same the al—dismissal of indictment —that he or rule on it. In Zillender hear evidence requested appeal.30 he did assert on What State,32 we policies stated the two-fold trial the acted in bad at was State objections at requiring specific trial: faith when it refused two- to re-offer the First, objection is to specific required agreed year plea bargain that it had to the of the judge inform trial basis it in No- dismissed the indictment the objection opportunity and afford him vember which was before federal Second, specific objec- to on it. rule put civil trial.31 This was not sufficient to required opposing afford coun- tion is to trial or the court State notice objec- opportunity sel an to remove the raising legally-cognizable he was due- supply testimony.33 tion or other process seeking prove prose- a defendant must his Because Appellant’s due-process vin- indictment. claim, impor cutorial vindictiveness theory on re- appeal dictiveness bore no making that claim in the trial tance of equitable he made at plea semblance to for paramount. Appellant court is never punishment trial. position His any to this mally support offered any hearing was that sentence over two an given and the State was never years would be unfair. This was not suffi- this opportunity to offer evidence to rebut put cient to the trial court on notice of a stated in Bone v. State:34 claim. We due-process claim. system justice, crimi- our Under C. claim was not ruled to opportuni- nal defendant is entitled trial court. ty evi- explain present to himself his His counsel should made dence on behalf. appellant never his due- Because court, to ordinarily opportunity in the be accorded an process claim I they just And think there’s 30. The notes that did re- dismissed. dissent relief, testimony why dismissed quest, as alternative court of been as to night plea, a new appeals remand the case for trial or before the is because offer, AIDS, original plea enforcement of the State's Office out he Sheriff's found had bring but that alternative relief is nonetheless based they didn’t to took him back and want legal claim that was never County. to But then when him back Rusk heard, trial court. at once federal lawsuit is all years. Not 2 justice should be 2 to statement, closing appellant's attor- anywhere years, 2 and but between sentence, argued ney dis- not years. missal the indictment: justice. punishing a is not That is That filing his civil suit on violation of man Now, know, you sup- you try law is —the any punishing criminal supposed posed justice. do The law is justice, things And that ain’t done. equal each one of inter- be to all. What us is that Judge. In no sense of word pret what justice as makes the difference on Now, here, justice. man I think this time, get. people At one me different issue, agreement, he's in resolve this case were on the the Prosecutor agreement, agreement, I’m in sister’s in as what same with Ronnie Joe Neal line years that punish him with justice and that was in this right. everybody thought was penitentiary. That’s what in the state thought justice we would served all (Tex.Crim.App.1977). S.W.2d 515 this case. dismissed, reason, But it was for some at 517. Id. just up by and dismissed the District Attor- ney, undoubtedly thought at that time who (Tex.Crim.App.2002). justice, years was so 34. 77 S.W.3d 828 even too much explain being reversing judg her actions before con- fault in the trial court’s unprofessional demned as incompe- ment a legal which was never tent.35 case, presented in the trial court.38 In this ordinarily We should op- accord the same only appeal appellant analo portunity a prosecutor explain gized Blackledge.39 his situation to that actions before court condemns him as appeals agreed The court of analo with his having violated a due-process defendant’s gy: rights with a vindictive prosecution and though charges exactly Even felony orders dismissal of a conviction.36 case, same in reasoning this still If properly had raised this is- applies. sequence of events was motion, sue a written the State charge State dismissed Neal’s would have been on notice to introduce the completely, heard, the civil suit was (thus judgment federal court obviating a then charge. the State refiled the same by mistake of fact appeals)37 court of So in prosecutor position changed and the this Neal’s could have testified concerning any new such as from being charges free from all to be- pellant’s jail, letters from that had come to subjected ing newly-filed charge- to a his attention since original (as hence the “same” charge charges. The trial judge would have one) (than is “more serious” no charge motion, an opportunity to rule upon all).40 upon based all of the evidence and The court of appeals stated that there was assessing credibility prosecutor’s the record to overcome the explanations.

presumption of vindictiveness.41 This is IV. surprising because the State was never claim, We on notice of the conclude that the court of the defense never appeals ordinary violated procedural notions of support de- offered evidence to &en, 35. Id. at 836. 39. Even did not articulate vindictive-prosecution whether his claim was Amberslie, 36. See United States v. purportedly raising presumption one of vin- F.Supp.2d (S.D.N.Y.2004) (stat- 571-72 Argu- dictiveness or one of actual animus. ing provides that when defendant sufficient therefore, ably, the court of reversed circumstances to presump- raise rebuttable theory the trial court on a that was never tion of require vindictiveness sufficient to raised, properly appellate even in the court. respond Government to with evidence of lack animus, response may normally "[s]uch Neal, 117 S.W.3d at 308. made, instance, at least in through the first prosecutors, affidavits from the relevant after White, which the burden 41. But shifts back to the defense see United States v. proffered (2d Cir.l992)("White response pretex- establish that the violated federal and inadequate”). tual or otherwise selling illegal drugs. state laws in The state's prosecute 1986 decision not to White is unre- 4, supra. 37. See note lated to the federal Government’s 1991 deter- probable mination that there was cause to (Tex. Hailey believe that White had committed narcotics (“a Crim.App.2002) trial court’s decision will though offenses. Even White can show that theory not be reversed on a the trial court did brought unprosecuted his forfeiture claim opportunity upon not have an to rule attention, prosecutor’s activities to the non-appealing party which the did not vindictiveness”). showing does not opportunity develop complete have an establish record”). factual 180 never an for find it given opportunity quoted

State was looks it will verbatim. essence, rebutting offer trial and the Edited its was: to rule given opportunity court never law supposed Now ... the is to do upon that claim. time, justice. ... At one me the presented Because never in this were the Prosecutor case prosecutorial in vindictiveness claim same with Neal as to line Ronnie Joe court, preserve trial he failed to this issue justice inwas this what appellate for review. We therefore re- years penitentiary. was two in the state judgment the court verse the trial court’s judgment. affirm ... But then when the federal lawsuit heard, justice is all at once should be WOMACK, J., dissenting opinion, filed a years. years, anywhere Not but JOHNSON, JJ., in which PRICE and years. between and

joined. justice. punishing That not That is is J., WOMACK, dissenting, in which filing a man for suit on violation of his JOHNSON, JJ., joined. PRICE and any punishing civil and not for things criminal he had done. And that concludes, court The “Because justice, Judge. ain’t In no sense of never vindic- Now, justice. ... punish word is that court, claim trial he failed tiveness years everybody him with preserve this re- appellate issue for thought right.5 was three view.” This conclusion rests on bases: “The claim was [1] ^[2] not trial court.”4 specific,3 ... [and 3] not not timely,2 ruled on ... did he dismissal of the indictment —that he re- This court’s request opinion says the same relief that “never at trial— ... appeal.”6 say It fails to quested record, As I is opposite read appellant’s court of appeals brief true. appellant’s prosecutorial-vindic- The did sought request also the relief that he timely, claim trial court tiveness was alternative, “In in the trial court: specific, and It not the ruled on. judgment requests Defendant this claim that court discusses. be reversed and remanded The claim that this court discusses or the indictment new subsequent one that calls reinstated, plea agreement [and] prosecution on of prosecutorial the basis enforced ....”7 indictment be did vindictiveness. The request appellant made such a to the The pun- It call for dismissal. asked court, opinion has that which the State ishment be limited to quoted it. before he sued agreed recommend timely, because it was deputies request for their the sheriffs violations punish- it to made before assessment rights. relegates his civil The court who ment. opinion, footnote in the but the reader id., Ante, 5. See 31. at 178 n.

1. at 180. Id.,

2. at 175-76. Id., at 178. Id., at 177. 7.Brief, at 14. Id., at 178-79. request

The quite specific. This O’HARA, Jr., Donald Lee says, “Appellant never uttered the al., Appellants, words et ‘prosecutorial at tri- vindictiveness’ 8al.” But due-process he made his v. (if in terms that were specific powerful NORTH AMERICAN MORTGAGE folksy). They closely somewhat resemble COMPANY, Appellee. language in another footnote of this opinion: court’s punish person “To be- No. 12-01-00193-CV. cause he has plainly done what the law him process allows to do is a due violation Texas, Appeals Court of sort, of the most basic agent and for an Tyler. action, pursue State to a course of June objective penalize

whose is to a person’s legal rights reliance on his ‘patently ”9 unconstitutional.’ request when, ruled on as-

sessing punishment years, of six

court refused to limit punishment years.

The appellant muddied the water on

peal by advancing an request additional prosecution.

dismissal of the request This

was not to the trial court. I

agree with this court request

dismissal may not be made for the first

time on appeal. As the opinion

says, such a claim brought must be

trial.10 I agree that the court of appeals

should not have sustained that claim.

I agree do not that the court

or this court ignore the claim that

appellant did make. I would vacate the

judgment of the court of appeals and re-

mand the case to that court for reconsider-

ation claim. Ante, Castleberry (1984)). id.., (quoting 9. See at 173 n. 6 Bordenkircher v. Hayes, 434 U.S. 98 S.Ct. id., 10.See at 175-76. (1978), quoted L.Ed.2d 604 as this court it in

Case Details

Case Name: Neal v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Nov 17, 2004

Citation: 150 S.W.3d 169

Docket Number: PD-1559-03

Court Abbreviation: Tex. Crim. App.