*2 DAVIS, Before TOM G. McCORMICK TEAGUE, JJ. OPINION McCORMICK,Judge.
Appellant pled guilty County in Harris 14, 1979, charge aggrava- November to a robbery. appel- ted The trial court found lant and assessed years Department twelve in the Texas Corrections. September
The record reflects that on
apparently pled guilty
had
302,991to an aggravated
in cause number
bar-
robbery charge
to a
gain
years
sentenced to ten
been
It was
Department
Texas
of Corrections.
that at the time of the
later discovered
plea there
entry
September
charging
no
instrument
had been
valid
indict-
He had not been
against appellant.
indictment nor had an
ed nor had waived
1,1979,
information been filed. On October
filed a motion for new trial which
the trial court.
granted by
was thereafter indicted Oc-
Appellant
16, 1979,
aggravated robbery
for the
tober
that had been the basis of the
new indictment was cause
This
proceeding.
304,319.
November
number
in court for trial
back
indictment, cause num-
robbery
aggravated
appel-
again offered
ber
The State
Appellant
ten-year plea, bargain.
lant
pled
offer
accept
declined to
made
guilty before the court.
State
Introduced
recommendation.
evidence
into evidence
this trial was
posses-
appellant had a 1973 conviction
sion
marihuana.
tion is without merit.
apparently
This was
The record shows
origi-
not before the trial court
initial
that the
re-offered
at the
He,
nal
not the
bargain.
asked
proceedings
September. The State
State, 582
bargain. Lyles
re-offered
court to
consider the evidence before it
(Tex.Cr.App.1979).
S.W.2d 138
had not
previously considered.
*3
trial court
assessed
twelve
Finally, appellant complains that
years’ confinement.
pun
impermissibly
trial court
increased the
finding
guilt
of
on No
ishment after
Appellant
complains that
initially
1979,
14,
appel
thereby violating
vember
14,
guilty plea
proceeding on November
process rights.
lant’s due
1979, placed him in
jeopardy.
double
jurisdiction of the trial
had not been
court
argues that on
14
The State
November
21,
during
pro
invoked
1979
September
had
it
the trial court
before
information
If
ceedings.
jurisdiction
of the trial
1979,
21,
spe-
on
possess
did not
invoked,
is never
conviction that
any
conviction,
1973 marihuana
cifically the
may result is
Plant
void. American
Food v.
and, therefore,
punishment.
could increase
State, 508
(Tex.Cr.App.1974).
S.W.2d 598
Bowman,
677
In
523
parte
Ex
S.W.2d
Jeopardy will
attach if
generally not
this Court dealt with
(Tex.Cr.App.1975),
trial court never
jurisdiction
by the
similar
as now advanced
argument
State,
(Tex.
case. Ward v.
520
395
S.W.2d
in
that case it was held that
State.
Cr.App.1975).
also,
v.
See
Ball
United
permissibly
punishment,
order
to increase
States,
662,16
163
41 L.Ed.
U.S.
S.Ct.
for the increase in the punish-
reason
(1896). Further,
making
300
by
motion
oc-
by
ment set
the trial court must have
trial,
new
for
precluded
sen-
original
curred after
the date of the
raising
See,
his double jeopardy argument.
Supreme
United
Court
tence. The
States
(5th
Spradley,
Martin v.
341
89
Cir.
F.2d
Pearce,
395
North Carolina
U.S.
1965);
State,
(Tex.
Jones v.
768
465 S.W.2d
said:
(1969),
89
The is remanded for the its does not cause trial court apply defendant —aware of the where the punishment assess accordance with price of Pearce, rejecting plea a offer—nevertheless supra. See, North Carolina v. Ex parte his entered Bowman, subsequently withdraws supra. or
plea otherwise attacks sentence after TEAGUE, J., conviction; not participating. restated, repudiation belated a of a bargain places a defendant in Before the court en banc. who refuses to posture carry as one part bargain pretrial out his OPINION ON STATE’S MOTION prosecutor serves release the from the FOR REHEARING well. obligation carry part out CLINTON, Judge. But record in the instant case does submission, a original panel appellant repudiated not establish Court remanded this cause to the trial court bargain; contrary affirmatively for a reassessment of in accord- in all respects indicates did Pearce, ance with North Carolina carry bargain, out his but part 2072, 23 L.Ed.2d in a whirlwind of the swept up thereafter (1969). indicated that panel machinations, oversight, prosecutor’s attacking for new trial filed motion conditions, amendment and ultimate sentence, his ten assessed year sum, anger. erupted frustration into plea bargain, then later declined why there Ehl does not are several reasons ten again year State’s offer to recommend a before us. apply the case punishment. panel granted appellant relief year from a twelve sentence assessed His Conviction Appellant Not Attack Did by the trial court without recommenda- day Appellant tion from the because the increased was arrested robbery, committed and he clearly aggravated due to a misde- next to the crime. The readily meanor extant at time of the confessed bearing issued original day, complaint sentencing. charging conviction, cessfully reasons cited as Ehl. attacked Hereinafter upon retrial be Odom, a more sentence must severe Presiding Judge Judge re- Onion upon objective dissenting opinion. information about identi- spectively, based Since have a latter, overlaps we men- former fiable occurring conduct “dissenting original sentencing, tion “dissent” hereinafter the after the opinion” dissenting opin- affirmatively upon to the the reference is spread record must be Judge. Presiding ion of our legitimacy of in- so that the constitutional fully reviewed creased prohibits of law vin- That since due higher court. against suc- a defendant who has dictiveness * * * Cause No. The following day, Palm, THE COURT: Mr. you don’t your days? counsel was want ten appointed and the parties ap- peared for trial.3 There is no MR. PALM: No.” indication from the record that appellant to, or The court the sen- thereupon pronounced was asked to waive indictment. The tran- tence than at not less than five nor more scription the hearing reflects confinement, years ten with sentence was admonished as to range punish- begin September the date of the ment, though he was not offense. advised that the
court was not bound to prosecu- follow the days plea, Three after the the district tor’s recommendation. In discussing the County clerk issued an order to the Harris plea bargaining agreement appellant, Depart- Sheriff to deliver the court inquired, (10th) ment of Corrections “after the tenth day following sentencing.”6 the date of you personally
“Do agree to that bargaining when, agreement aware The record does not reflect but being clearly it was sometime between the date of you have no appeal if I follow 24), the district clerk’s order (September agreement?”4 that... and October deputy district clerk Appellant agree. assigned to the convicting court “discover- He then entered of guilty, and ed,” judicial offered his confes- complete “I could not work7 my paper *5 sion, agreement to stipulate and waiver of because I could not find a waiver of in- rights.5 constitutional This document dictment executed in the I Court trial. part: states in “I intend to enter asked for the defendant reappear guilty and the will recommend Court possibly retaking and the plea or * * * that my should be set at ten something of that nature. I issued (10) years [confinement], agree and I a bench warrant.” that recommendation.” The court assessed The record next a truly reflects inscruta- the punishment at ten years. The trial preprinted ble form “Motionfor New Trial” court said, then ostensibly filed on behalf of appellant ground
“You October 1979.8 The alleged have ten days which to file a a new trial justify judg- is that “the Motion for New Trial or a motion in ment ... contrary is to the law and evi- Arrest of Judgment, or you may waive dence in said cause.” There is no indication that time and be sentenced now. What is from either the instruments contained in your desire in that matter? or the testimony, appellant He wishes to [DEFENSE COUNSEL]: present any hearing was on this motion be today. sentenced trial, or, matter, for new for that that ap-
pellant even was aware of its existence. Prosecuting Attorney 3. The State Department is incorrect in and SENTENCED to the Texas asserting the record does not contain the tran- Corrections...” scription plea hearing of this appellant’s plea guilty. Thus, contrary to his work,” by Apparently, “paper deputy position, any pre- this Court need not resort to sentence; judgment clerk and meant we sumption regularity regarding pro- those say this because neither is contained in the ceedings. record; the clerk’s “entire file” is certified as being before us. emphasis supplied throughout by 4. All is opinion writer of this unless otherwise indi- signed impossible It who this discern cated. document, thus, clear than intimated less by panel “appellant filed a motion for 1.15, 5. See Article V.A.C.C.P. case, trial....,” average in the and while assume, it is a material would be safe to 302,911 Ehl, 6. The pronouncements order recites that in No. Cause issue on which under appellant TRIED, CONVICTED, proof. been “[has] State has the burden of Another form document dated the his offer on 16: tor withdraw October clerk, deputy day executed district appoint- the record contains an instrument recites: “By Order the Court on the date; new counsel on that at the bot- ing October, day following A.D. 1979 the appears of this a handwrit- tom instrument action is in the styled directed above ten notation: cause:;” numbered an “X” in a appears are “All recommendations the State square by for printed which it is “Motion off.”11 granted.” new trial day, appellant the same indicted So, document, this latter which we liber- 304,316, No. conduct Cause identical ally construe to be an order of the trial against previ- in the alleged complaint him court, day indicates that on the same filed No. ously Cause someone, late motion9 filed the trial granted it.10 Strangely enough, on the next Octo- day, Insist Trial Appellant Did Not on a County ber the Sheriff of Harris deliv- on the Merits Department ered of Cor- later, one month on No- Approximately rections. 304,319 vember Cause No. was called days Nine after he arrived at Appointed trial. counsel that a insisted (October 10), a Department of Corrections jeopardy of former be be- considered bench warrant issued for apparent- else, anything upon arraignment, fore unwitting ly appellant, stating that Cause coun- replied, guilty,” “not 302,911 was “set on docket for the entered;” plea’ sel asked that ‘special “a October, 1979.” day 16th On October the court’s docket sheet reflects again present in Harris Coun- “a entered of not due to double ty-
jeopardy.”
Sign
Appellant’s Uncounseled Refusal
*6
testimony
Counsel adduced
deputy
of the
of
Waiver
Indictment Did Not Consti-
district clerk
his
of
regarding
“discovery”
the
Bar-
Repudiation
Original
tute
of
prior
the
proceeding.
defective
On crossex-
gain
amination,
the
the fol-
prosecutor elicited
the
does
reflect
the
Though
record
lowing:
appellant actually
date
back in Har-
arrived
“Q:
It
is
the
your
that
understanding
County,
ris
inference the record
only
the
brought
defendant was
back from
is
his
supports
that it was
refusal —without
of
sign
penitentiary
possi-
a waiver
indictment
and
with a
counsel —to
confronted
district
prosecu-
bility
doing
plea
clerk which caused the
since
again
over
days late;
appellant;
the tran-
he did not “attack his conviction”
9. This motion was ten
demonstrates,
hearing
ap-
successfully
scription
plea
of the
or otherwise.
right
pellant
had
his
to file such
waived
pro-
already
con-
been
notation like another document
motion and sentence had
11.This
“signed” by
prosecu-
nounced.
in the
is
tained
record
Appar-
tepee.
depiction
tor with a
of an Indian
that
the trial court
10. The dissent observes
initials,
ently
cryptogram
for Ted Poe’s
clever
did,”
have,
ap-
“apparently
set
could
...
sup-
“tepee”
the instruction
found under
motion;
pellant’s
aside on
own
its
ap-
sought
ports the
that
the State
conclusion
proceeds
apply
inexplicably,
then
to
the dissent
way
pellant’s cooperation
in some
to obviate
legal
relief
to this case a
rationale which denies
perforce,
ap-
proceeding (and
trial
“successfully attacked
to one because he has
counsel).
refus-
pointment
When
his conviction.”
starting
cooperate,
over
so
ed to
Contrary
suggestion
we
that
the dissents’
ap-
imminent,
simultaneous with
“give no
to the fact that the court
consideration
counsel,
pointment of
“all recommendations
jurisdiction
original proceed-
had no
over the
post
See
at 435
off.”
[were]
ings,”
heavily:
neces-
we
this fact
consider
n.
any
sity
relitigating
the cause was not due
this
effort on
failure or affirmative
that,
jurisdiction
agreed
waiver.” He also
in the words
absolutely
had
Court
he had
to “re-
prosecutor,
refused
the plea
guilty?12
to take
ease
plead
having juris-
with this Court
Yes,
A:
sir.
years....”13
He
diction for
Q: And that he
to waive indict-
refused
been
for the
acknowledged he had
indicted
ment in that case.
same conduct under a new cause number.
Yes,
A:
sir he did.
The prosecutor inquired:
Q:
why
And that is
we are
today,
here
is
“Q:
that
your position
you
And
that correct?
trial in
No.
go
want
Cause
Yes,
A:
sir.
304,319
want to
you
and that
do not
Q:
you
person-
Have
ever
[district clerk]
plead guilty,
right?
asked him
ally
regarding
waiver
jeopardy.”
A: A
of double
of indictment or not?
Yes, sir,
A:
I
on
have
numerous occa-
if he
prosecutor finally
asked
sions.
302,991
were
No.
was no
aware that Cause
Q:
you
And he has made it clear to
him, that
it had
longer pending against
he does not want to waive indictment
been
was not
Appellant
dismissed.
said he
Cause No.
aware
of such
action.
Yes,
A:
sir.”
report-
Finally,
transcription
placed
Defense counsel
also
er’s
*7
of
Judge
the
in September....”14
standing that he was
from the
In con-
returned
prosecutor
clusion
argued,
the
penitentiary
sign
to Harris
“to
a
County
plea proceeding
“possibility”
doing something
no new
necessary.
12. The
other
would be
of
16, post.
“doing
plea
again” pops up
See also n.
than
the
over
re-
throughout
record;
peatedly
[see, e.g.,
this
tes-
dissent, however, apparently
The
reads the
timony
deputy
clerk,
433];
of
district
ante at
prosecutor’s
question
appellant’s
last
af-
yet
notably vague
is
the alter-
the record
about
reply
firmative
out of context to
that
“show[ ]
native course the State had in mind to correct
again
after indictment the State
offered the
proceeding
the
in—if
defect
not the
itself—the
appellant
year plea bargain
the same ten
if he
13, post.
records of the
But see n.
cause.
guilty plea,
entered a
and that this was
by
appellant.”
the
But there is no evidence in
13. The
from the
testimo-
clear inference
above
support
reading;
the
record
entire
to
such a
ny
deputy
appellant
indeed,
clerk
evidence,
district
if the record contained such
when viewed as
is
“alterna-
sharply
a whole
that the
the Court would not be so
this case.
divided in
by
“doing
plea
tive” to
the
over” envisioned
the
merely
appellant
to
have
execute a
was
prosecutor
negotiated
original
request
14.This
the
waiver of
trict
at the
of the dis-
indictment
plea
clerk,
appellant
with
September
his
taken on
and back date it to
counsel
September
original
21.
Under
the record before us is a
date
was entered.
prerelease
plan, appellant
report
September
interview
this
not need counsel and
dated
would
Blackburn,
Frank v.
just
Quoting
the evidence before occurring part of assessed The court previously considered. original sentencing proceed- time imprison- (12) at twelve years’ And the data ing. factual ment. must the increased sentence based the con- so that made panel, original submission increased legitimacy stitutional trial cause was remanded to the
439
on
fully
ap-
reviewed
and that he
ishment
had
peal.”
charge.
to the escape
defense
After an
evidentiary hearing,
the court allowed Ehl
clear, however,
Pearce made
absent
his
on the
guilty plea
escape
withdraw
vindictiveness or
vindic-
possibility of
appeal
“passing”
and to
his
convic
charge
tiveness more severe sentences
fol-
imposed
tion,
later affirmed
this court.
lowing
are constitutionally
reconviction
val-
123 (Tex.Cr.App.
Ehl v.
557 S.W.2d
id. See also Chaffin v.
Stynchcombe,
1977) (Table) (unpublished opinion).
17, 29,
36 L.Ed.2d
(1973);
47,
v.
Michigan
Payne, 412 U.S.
being permitted
After
withdraw his
93 S.Ct.
ledge are not applicable deliberating to the of this guilt facts on issue of of the escape Estelle, case and cite Ehl v. charge, plea agreement 656 F.2d second (5th Cir.1981), support thereof. If the Ehl jury guilty reached. found escape paragraphs enhancement Estelle, In Ehl v. supra, the held court indictment would have been abandoned and judicial there was no or prosecutorial years’ would recommend ten im- although punish- vindictiveness where prisonment to complet- commence Ehl imposed ment following dis- ed time on “passing” his conviction. cretionary withdrawal of guilty plea jury found Ehl escape and the than greater imposed plea bargain as to was carried guilty plea defendant was aware price out. rejecting the bargain in that of a possibility greater punishment due to likely outcome, enhanced Displeased Ehl ex- charges, which remedies, were withdrawn as corpus hausted state habeas plea agreement, was proceeded to the to federal communicated district where he defendant and attorney in the initial relief obtained with the court relying upon bargaining stages. Pearce, supra, North v. Carolina and Black- ledge Perry, supra. v.
Ehl was indicted for passing
forged
instrument. While
awaiting trial
the Fifth
Court of
appeal
Ap-
Circuit
charge, Ehl was charged
felony
with the
peals
reversing
court wrote:1
district
offense
jail.
escape
As a result of
reliance on
and Blackledge
“Ehl’s
Pearce
convictions,
prior felony
possi-
Ehl faced the
misplaced.
their
progeny
Those
bility of
enhanced
as a habitual
cases involved a situation where there had
offender.
In exchange for the prosecutor’s
appeal
been an
of a
unlike
contested
agreement not to seek the habitual offender
present
situation in which Ehl has not
status, Ehl agreed
plead
both
guilty to
any error
the trial court in the
claimed
the “passing”
escape
Pursu-
charges.
Furthermore,
original guilty plea hearing.
plea bargain,
ant
two
Ehl received
Court,
sitting
en banc
Frank
five-year concurrent sentences.
Blackburn,
(5th Cir.1980)
While awaiting transfer to the Texas De- cast applicability doubt Pearce Corrections, partment of plea bargaining Ehl wrote the trial situations. ‘We find the judge that he had been pun- offered lesser rule of North Carolina v. Pearce to be com- ishment on the “passing” charge pletely inapplicable post-plea bargaining before occurred, Accord, escape been guilty pleas sentencing proceedings. Martin pun- Blackburn, (5th Cir.1979), coerced because of threat of enhanced 606 F.2d opinion 1. The footnotes of omitted. are Ehl
440 911,100 denied, 1841,
cert.
446
free
accept
reject
U.S.
64
cused is
to
or
prose-
S.Ct.
the
(1980)
265
cution’s
(“it
questiona
L.Ed.2d
is
offer.
highly
ble whether Pearce applies
plea bargain
to
Bordenkircher,
363,
434
at
U.S.
98 S.Ct. at
ing situations”)’, Frank, 646 F.2d
at
668,
rejecting bargain with a not guilty. allegations ‘judicial of his support “In vindictiveness’, again Ehl looks persuasive
“Also this holding is Court’s in case, Chapman Estelle, (5th requires: Pearce which F.2d 687 Cir. 1979), where we stated that in those cases imposes Whenever a a Judge more severe rejections involved belated a upon sentence a defendant after a new bargain, the prosecution’s in securing action trial, doing the reasons for his so must resentencing on a more charge serious does affirmatively appear. Those reasons not appear even ‘minimally vindictive.’ objective based information upon must be Chapman, 593 at 690 n. 5. this And concerning identifiable conduct accused, so especially where as in the after part occurring case, present presents little for re- reason proceed- the original sentencing time of
jecting
plea bargain
or a motion for
ing.
upon
And
factual data
other
general
trial
than
dissatisfaction
the increased sentence is
must be
based
Id.;
with the sentence.
see
supra.
note
the con-
made
“We have not found a
from any
case
legitimacy
stitutional
the increased
jurisdiction that holds that a defendant can
fully approved
be
on ap-
sentence
accept plea bargain,
take
his part
back
peal.
the bargain,
insist
a trial
mer-
Pearce,
395 U.S.
S.Ct. at
its, and yet
prosecutor,
bind the
and thus
again,
following
L.Ed.2d at 670. Once
in
Court,
original
promised recom-
pronouncement
in
Court’s recent
of punishment
prosecu-
mendation
after the
Frank,
reject
we
of Pearce
applicability
tor
bargain.
has lost all benefits of the
To
present,
plea bargaining
when a
situation is
permit this situation would undercut
to Frank for instruction.
look instead
purpose
bargain-
entire
and aim of the plea
attempts
“Ehl
us that Frank
convince
Rather,
ing process.
two results should
distinguished
can be
because the trial court
First,
flow from the
rejection.
accused’s
only
in
one
Frank sentenced the accused
the prosecutor
authority
under the
of Bor-
disrupted plea bargain
time—after a
rather
be
Chapman
denkircher and
should
able to
Frank, the Judge
than
a new trial. In
through
carry
any expressed promises
twenty year
return
made if the accused
of not
persists
offer,
plea.
for a
Frank
guilty
Second,
guilty.
should not
guilty
stood
was found
and received a
be required
prof-
under the Constitution to
Frank,
year
at 875.
thirty-three
sentence.
deal,
fer
again
identical
it would
since
ease,
two five-
Judge imposed
defendant,
Ehl’s
again
rejected by
who not
year
guilty
terms
only
plead
now
concurrent
wishes to
pleas,
dropping
contest
and a
charge,
additionally
appeal
but
believes
a waiver of
charges. Subsequently,
that the earlier
negotiated punishment was
enhancement
sought
granted
Ehl
and was
a withdrawal
Clearly the facts
the instant case are
case,
of his
the effect of
guilty plea. This had
not on all fours with Ehl’s
but the
repudiating
plea agreement
and the ne- Fifth
opinion
persuasive. Ap-
Circuit’s
cessity of his
trial on the
standing
pellant
plea bargain
enhanced
with the
entered
indictment.
ten
(10) years’
State for a
imprisonment
pleaded guilty
before the
argues
“Ehl
that the
creating
factors
imposed,
court.
agreed penalty
‘reasonable likelihood of
vindictiveness’
juris-
but it was soon
discovered
Court’s
following
Pearce —the increased sentence
diction had never been invoked
aby proper
present
case,
new trial —are
in Ehl’s
but
felony
State’s
an indictment or
pleading,
lacking in Frank. Ehl
submits
differ-
information.
and,
ence is
consequently,
fundamental
controlling.
Pearce should be
disagree.
presented,
We
After an indictment had been
appellant sought
on the basis
quash
*13
“Both Frank and Ehl ultimately rejected
hearing
ap-
of double
At the
jeopardy.
the plea bargains and chose to contest their
motion,
at the
pellant’s
it was shown that
guilt by standing
they
trial. The fact that
plea bargain appellant
time of the original
opted
rights
to exercise their constitutional
were
and his counsel
aware of
stages
legal process
different
of the
does
of marihuana. At
possession
judicial
not
determine the ultimate issue
it
hearing,
was also shown that after
is,
vindictiveness.
critical factor
rath-
again
indictment the
offered the
State
er,
presence
or
plea negotia-
absence of
year plea bargain
ten
if
tions. Frank makes it clear that
there
once
this
guilty plea,
he entered
and that
bargain
it be reduced
—whether
rejected by the
After the double
appellant.
sentence,
charges,
recommended
or some
overruled,
motion was
jeopardy
appel-
other
it is
‘the
rejected,
concession—and
plea
enter
guilty
lant did
before
court.
complain
defendant cannot
denial
produced evidence to support
The State
offer constitutes a punish-
plea
such
as well as evidence of the 1973
or is
of judicial
ment
evidence
vindictive-
conviction. The
made no
marihuana
To
is to
accept
argument
ness.
such
punish-
to the court as to
recommendation
ignore completely
underlying philoso-
ment. The court then assessed appellant’s
phy
purposes
bargaining
(12)
imprison-
punishment
years’
twelve
Frank,
system.’
F.2d
at 883.
ment.
present
can-
judge
“The trial
in the
case
were
Blackledge
In Pearce and
there
con-
not
vindictively
be held to have acted
pleas
guilty
tested
of not
followed
trials
imposing on Ehl a sentence expressly
from which
obtain-
by convictions
him and the
etc.,
and there-
by way
appeal,
ed relief
he
uncoerced
unqualified,
exercised
was as-
more severe
after a
not
right to stand trial and at
time
trial.
sessed
the second
whether he would would not
know
bargain followed
there was a
Here
found guilty.
plea. Although
appears ap-
aby
guilty
addition,
had the bene-
judge
“In
the trial
a motion for new
filed
pellant
fit
the trial
hearing
testimony,
a nullity
whole
were
because
proceedings
sen-
prior
of Ehl’s
and the
aware
jurisdiction.
the court had no
prescribed
than that
greater
tence
returned,
Wainwright, 608 When an indictment
Blackmon v.
statute.
bargain, but
(5th Cir.1979). Finally,
since the
the same
State offered
F.2d
appellant, who
rejected by
judicial
are
this was
allegations of
vindictiveness
the asser- nevertheless entered a
great
dependent upon
extent
no rec-
making
indictment with the State
which
prosecutorial
tion
vindictiveness
Although
punishment.
claim also ommendation as to
we
wanting,
have found
introduced, I do
prior conviction was
(Footnotes omitted.)
fails.”
not conclude that Pearce and Blackledge
teaching
This is based on the
of Borden
control under the circumstances of
Hayes,
the case.
kircher v.
98 S.Ct.
[434
(1978)].”
The majority give seems to no considera- tion to the fact court juris- that the had no DAVIS, J., joins opinion. W.C. diction over the initial proceedings. It seems overly pointing obsessed out all
examples ineptness, both real and imag-
ined, occurring in below. Fur-
ther, it infers that the State withdrew all
recommendations because the re-
fused to act counsel. without infer- Such
ence is based on the drawing of an Indian tepee on several portions record Ray parte Billy Ex MARTIN. majority indicates to the the crypto- gram for the prosecutor’s initials. The ma-
jority then assumes that because a tepee is Appeals Texas, Court of Criminal *14 found on the order appointing counsel for En Banc. is compelled conclusion bargain Nov. was withdrawn because the exercised counsel. So Rehearing Sept. Denied much for the trip Disneyland. I dissent for the reasons stated. DAVIS, JJ.,
TOM G. DAVIS and W.C.
join this dissent.
ODOM, Judge, dissenting. State, Alvarez S.W.2d
(Tex.Cr.App.1976) the Court held: perceive
“We why no reason an accused
who changes his guilty to not
guilty on retrial should be able at
same time to hold pun- the State to the
ishment sought or secured at the first
trial.”
Although did not change here
plea to guilty, reject he did on retrial plea bargain of first trial. The
same principle as that announced in Alvarez apply,
would stated in Bouie 546 (Tex.Cr.App. S.W.2d
1978):
“If a defendant withdraws on retrial bargain
from a at the first obtained
an increased would be a le-
gitimate response State to the agreement.
defendant’s of that rejection notes events November Appellant having stand. testified to the trial reflects conducted through September hear- been 304,319: in Cause en- merits No. ing, and to having everything done he had guilty. tered a do bargaining under the plea agreement, waiving days ten including sentencing waiving appeal. No Showing Appellant Understood He also testified he days had served nine the Consequences the Department of Corrections A very routine hearing is reflected— cross, ten year prose- sentence. at least until the prosecutor requested per- cutor elicited appellant’s agreement question mission to appellant. prosecu- judicially aggravated confessed to the tor’s focus was aggravated facts robbery and that confes- offense, prior and a misdemeanor sion true. Appellant agreed with the possession marihuana, conviction for prosecutor that he had never waived indict- which the prosecutor ment, repeatedly emphasized 302,- nor been indicted Cause appellant had “never Appellant stated it was under- mentioned... front