Lechuga v. State

¶1(dissenting).

¶2I cannot agree with the opinion of the majority that five years’ probation is “a more severe sentence” than three years’ imprisonment for purposes of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

¶3Probation is imposed for the purpose of rehabilitation without confinement, at least in theory. Probation permits an individual found guilty of a crime to continue his education, hold a job, and remain in the supportive company of family and friends. The trial judge here was not being vindictive in changing appellant’s sentence from three years’ imprisonment to five years’ probation after granting his motion for new trial. In fact, he was being more lenient. Probation is not granted on the assumption that it will be revoked, but rather on the assumption that it will be carried to a successful conclusion.

¶4The five-year probated sentence here looks harsher than three years’ imprisonment only when the probation is revoked. North Carolina v. Pearce is aimed at preventing vindictiveness in the imposition of a new sentence, not at a possible subsequent revocation hearing.

¶5For these reasons, I dissent to the majority’s disposition of this case, and proceed to address the ground of error brought forward in appellant’s brief.

¶6In his only ground of error, appellant complains that the trial judge took into consideration his failure to testify in revoking his probation, in violation of Art. 38.08, V.A.C.C.P. We find this contention to be without merit. Although a probation revocation hearing must be attended by due process of law, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970), it is not a trial in all constitutional senses. Hill v. State, 480 S.W.2d 200 (Tex.Cr.App.1972); cf. Fariss v. Tipps, 463 *586S.W.2d 176 (Tex.1971); Ross v. State, 523 S.W.2d 402 (Tex.Cr.App.1975). The accused in such a proceeding is not entitled to trial by jury, Barrow v. State, 505 S.W.2d 808 (Tex.Cr.App.1974); the benefits of the accomplice witness rule of Art. 38.14, V.A.C. C.P., Hulsey v. State, 447 S.W.2d 165 (Tex.Cr.App.1969); the ten-day preparation time provided for appointed attorneys by Art. 26.04(b), V.A.C.C.P., Hill v. State, 480 S.W.2d 200 (Tex.Cr.App.1972); or a jeopardy bar to further prosecution, Settles v. State, 403 S.W.2d 417 (Tex.Cr.App.1966). And a violation of the probationary terms need only be shown by a preponderance of the evidence, not beyond a reasonable doubt. This being a case of first impression, I would hold that the prohibition of Art. 38.08 applies only to criminal trials and not to probation revocation proceedings. The trial court therefore committed no error when he considered appellant’s failure to offer testimony.

¶7The judgment should be affirmed.

¶8OPINION ON STATE’S MOTION FOR REHEARING

¶9On rehearing the State vigorously urges that the majority was wrong in holding that a five (5) year assessment of punishment by the court with probation at the second trial was a “more severe” punishment than the three (8) years without probation assessed by the court at the first trial, and that North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), does not call for such result. If the three (3) years assessed at the first trial and the five (5) years assessed at the second trial had both been “straight time,” there would be no question but that North Carolina v. Pearce, supra,had application. Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975); Payton v. State, 506 S.W.2d 912 (Tex.Cr.App.1974); Miller v. State, 472 S.W.2d 269 (Tex.Cr.App.1971). In the above cases, as well as the instant case, the increase in punishment was not based upon objective information concerning identifiable conduct on the part of the accused occurring after the time the original punishment was assessed. The State urges, however, that the interjection of a grant of probation along with the assessment of five (5) years at the second trial in the instant case calls for a different result.

¶10At first blush, the State’s position is most appealing. This is so because it may be stated that any defendant standing before a court would opt for any sentence with probation1 rather than one without probation — for it would, at least temporarily, permit him to be a free man — over any punishment that requires immediate confinement. Our inquiry cannot stop here.

¶11The question presented arises out of the decision in North Carolina v. Pearce, supra.There, the court stated in part:

“. . . [D]ue process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial . In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.”

¶12It should be clear that the term “more severe sentence” should be read as *587synonymous with “more severe punishment or penalty” rather than the formal pronouncement of sentence as provided in Articles 42.02 and 42.03 of our Code of Criminal Procedure. It is also clear that Pearceis not to be applied retroactively, Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973), and that it normally would not apply to jury trial where the jury assesses punishment, Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973). This is particularly true where the jury is unaware of the first penalty assessed and there is no showing of vindictiveness. See Curlin v. State, 505 S.W.2d 889 (Tex.Cr.App.1974); Fuery v. State, 464 S.W.2d 666 (Tex.Cr.App.1971). Further, Pearcehas no application where the more severe punishment is assessed upon a trial de novo in a court of general jurisdiction following an appeal from a conviction in an inferior court for a lesser criminal offense. Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). The court found the possibility of vindictiveness found to exist in Pearcewas not inherent in the Kentucky two-tier system.

¶13None of these areas of the inapplicability of Pearcehave relevancy in the instant case.

¶14In McCulley v. State, 486 S.W.2d 419 (S.Ct. Mo.Div. # 1, 1972), the Missouri Supreme Court was confronted with a question of whether a seven year sentence without probation was a “more severe” sentence than two years without probation in light of North Carolina v. Pearce, supra,and concluded that it was. After discussing the broad discretion a trial judge in Missouri is given in fashioning punishment after the determination of guilt, “probation,” “sentence” and punishment, the court concluded that “sentence” or the penalty does not include as a part of its definition such conditional orders as the court makes for the amelioration of the punishment — probation. Probation lessens the immediate impact of the sentence on the defendant, but probation does not, per se, shorten or lengthen the sentence. It was then added, “The court holds that probation ... is not part of the sentence imposed upon a defendant.”

¶15Rejecting the reasoning of Thurman v. United States, 423 F.2d 988 (9th Cir. 1970), that “more severe” as used in Pearcemeans something more than longer sentence and that “totality of the impact of the sentence upon the defendant must be considered,” the Missouri Supreme Court adopted the reasoning of United States v. Barash, 428 F.2d 328 (2nd Cir. 1970), that any attempt to compare one kind of punishment with another under circumstances similar to the question presented in McCulleywas wholly impractical. The court observed that to give the words “more severe” as used in Pearcea different meaning than longer sentence would make every question of whether Pearcehas been violated “purely subjective” defying “objective application.” 2

¶16The court then held that any sentence imposed in a second trial before a judge cannot be greater than a sentence imposed *588by the judge at the first trial except in those instances noted in Pearce. The court found, however, that Pearcewas not to be applied retroactively and that McCulley’s second trial occurred prior to Pearce. Nevertheless, the holding in McGulley as to the procedure to be used after the date of the Pearcedecision is in accord with the majority opinion on original submission in the instant case.

¶17In the instant case the punishment assessed by the judge was three (3) years for the offense of defrauding by a worthless check. Upon retrial, after granting appellant’s motion for new trial, the court assessed punishment at five (5) years for the same offense. The judge made no affirmative showing for his reasons for increasing the penalty as required by Pearce. Thus, at that point the procedure was in violation of Pearce. Does the granting of probation for five (5) years cure such constitutional error? We think not.

¶18Remaining convinced that the correct results were reached on original submission, the State’s motion for rehearing is overruled.

¶21DISSENTING OPINION ON STATE’S MOTION FOR REHEARING

¶22The majority still holds that five years of probation is more punishment than three years in the penitentiary. The majority is correct in that five years are more than three years. But this is like saying that five pennies are worth more than three dollars. Five blows in a spanking would be more punishment than three blows provided they are uniformly applied. Which would be greater: five soft blows applied with a folded newspaper by a compassionate mother or three hard blows applied with a razor strap by an enraged father? Measured at the time punishment is assessed, five years of probation would not be more punishment than three years’ confinement.

¶23When probation was revoked and the sentence was executed, appellant’s time of confinement was increased because he had committed several other offenses. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, relied upon by the majority, has been misapplied by the majority because there was new conduct that could be considered. Such was not the case in North Carolina v. Pearce. There was no vindictiveness by the trial judge when he assessed or revoked probation.

¶24No error has been shown. The State’s motion for rehearing should be granted and the judgment affirmed.