Wiltz v. State

¶1OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

¶2A jury convicted appellant of attempted aggravated sexual assault and the trial court assessed punishment at confinement for ten years, probated. The conviction was reversed by the Court of Appeals because of Batson1error. Wiltz v. State, 749 S.W.2d 519 (Tex.App.—Houston [14th] 1988, no pet.). Upon retrial a jury again convicted appellant of attempted aggravated sexual assault and *464appellant again chose to have the trial court assess punishment. A different judge presided at the retrial and assessed punishment at confinement for five years. The Court of Appeals reversed and remanded for resen-tencing under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), after concluding that the second sentence constituted greater punishment than that assessed in the first trial. Wiltz v. State, 827 S.W.2d 372 (Tex.App.—Houston [1st Dist.] 1992). We granted the State’s petition to determine whether the second sentence of five years without probation is a greater punishment than an initial sentence of ten years with probation.

¶3In North Carolina v. Pearce, the United States Supreme Court held that neither the Double Jeopardy Clause nor the Equal Protection Clause prohibits a trial judge from imposing a harsher sentence on retrial after a criminal defendant successfully attacks an initial conviction on appeal. 395 U.S. at 723-724, 89 S.Ct. at 2079-80; United States v. Goodwin, 457 U.S. 368, 373, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982). However, “Due 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.” Pearce, 395 U.S. at 725, 89 S.Ct. at 2080. In Pearcethe Supreme Court held that “[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 in the record.” 395 U.S. at 726, 89 S.Ct. at 2081. This has created a prophylactic rule that creates a presumption of vindictiveness in certain cases. United States v. Goodwin, 457 U.S. at 373, 102 S.Ct. at 2488. “Given the severity of such a presumption, however — which may operate in the absence.of any proof of an improper motive and thus may block a legitimate response to criminal conduct — the Court has done so only in cases in which a reasonable likelihood of vindictiveness exists.” Id.

¶4This presumption of vindictiveness does not apply to a second sentence where a defendant initially plead guilty, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), where the second sentence was a result of a conviction following a trial de novo at a superior court in a two-tier system for adjudicating certain offenses, Colten v. Commonwealth of Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), where the first sentence was by jury and the second sentence was by judge, Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986), and where the first sentence was by a plea agreement and the second sentence occurs after the plea agreement is not accepted by the defendant. United States v. Goodwin, supra.In McCullough, the Supreme Court also cast doubt concerning whether this presumption applied where a different judge presided over the second sentencing hearing. But see Bingham v. State, 523 S.W.2d 948, 949 (Tex.Crim.App.1975) (presumption of vindictiveness applied where a different judge, who was aware of the proceedings incident to the first sentence, sentenced defendant on retrial); In McCulloughthe Supreme Court noted:

Pearceitself apparently involved different judges presiding over the two trials, a fact that has lead some courts to conclude by implication that the presumption of vindictiveness applies even where different sentencing judges are involved. See, e.g., United States v. Hawthorne, 532 F.2d 318, 323 (CA3), cert. denied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177 (1976). That fact, however, may not have been drawn to the Court’s attention and does not appear anywhere in the Court’s opinion in Pearce. Clearly the Court did not focus on it as a consideration for its holding. See Hardwick v. Doolittle, 558 F.2d 292, 299 (CA5 1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978). Subsequent opinions have also elucidated the basis for the Pearcepresumption. We held in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), for instance, that the presumption derives from the judge’s “personal stake in the prior conviction,” id., at 27, 93 S.Ct., at 1983, a statement clearly at odds with reading Pearceto answer the two sentencer issue. We *465therefore decline to read Pearceas governing this issue....

¶5475 U.S. at 140 n. 3,106 S.Ct. at 980 n. 3; see Jackson v. State, 766 S.W.2d 518, 521-522 (Tex.Crim.App.1988). Where there is no reasonable likelihood of vindictiveness, the burden remains upon the defendant to prove actual vindictiveness. Alabama v. Smith, 490 U.S. at 799, 109 S.Ct. at 2205; see Wasman v. United States, 468 U.S. 559, 569, 104 S.Ct. 3217, 3223, 82 L.Ed.2d 424 (1984).

¶6Neither the Court of Appeals, the State, nor appellant raise the issue of whether the presumption of vindictiveness applies in this case, and therefore we limit our consideration to those cases where the presumption does apply.2

¶7Essentially we are again asked to determine exactly what constitutes a sentence in Texas for purposes of analysis under North Carolina v. Pearce. We have previously resolved this issue in Lechuga v. State, 532 S.W.2d 581 (Tex.Crim.App.1975) (opinion on rehearing). In Lechugaour Court held that probation was not a part of the punishment assessed upon a defendant. 532 S.W.2d at 587; see also McCulley v. State, 486 S.W.2d 419 (Mo.1972) (“The ‘sentence’ that a court imposes consists of punishment that comes within the particular statute designating the permissible penalty for the particular statute ... [Probation or parole is not a part of the sentence imposed upon a defendant.”); Smith v. State, 517 S.W.2d 148, 150 (Mo.1974). In fact, a trial court assesses punishment before it grants probation. Tex. Code Crim.Proc.Ann. art. 42.12 § 3; Gates v. State, 696 S.W.2d 671, 673 (Tex.App.—Dallas, 1985). The order granting probation suspends the imposition of sentence until the probationer violates the terms of his probation or successfully completes the probationary period. Tex.Code Crim.Proc.Ann. art. 42.12, § 3; Gates, supra.3Therefore, the comparison to be considered in a Pearceresentencing situation is the assessment of the punishment provided for under the Texas Penal Code, which does not include probation. Tex.Penal Code Ann. Title 3, Chapter 12; Lechuga, 532 S.W.2d at 588; see also Sanders v. State, 580 S.W.2d 349, 353 (Tex.Crim.App.1979).

¶8In Lechugawe recognized the difficulty of comparing probation and “straight time.” 532 S.W.2d at 587 n. 2. Hypothetically we asked whether ten years probation was more severe than two years “straight time?” Id.Today, we are asked whether five years “straight time” is more severe than ten years probated. We continue in our belief in Le-chuga that the courts of appeals in Texas should not undertake this comparison because of the tremendous difficulties in determining which punishment is “more severe.” 4 As we said in Lechuga, “[it] would be easy to *466get into never-never land.” 532 S.W.2d at 587 n. 2.

¶9Because of this belief, we adhere to our opinion in Lechugathat for determination of whether a second sentence is “more severe” within the context of Pearce, a reviewing court should only review the punishment assessed. Accordingly, the Court of Appeals erred in considering probation when it compared appellant’s initial punishment of ten years to his subsequent sentence of five years. The Court of Appeals is reversed. As there are no other points of error to be addressed by the Court of Appeals, the trial court’s judgment and sentence are affirmed.5