Bingham v. State, 48263

• Decision Date: 18 June 1975
• Docket Number: No. 48263,48263
• Citation: 523 S.W.2d 948
• Parties: Charles Harold BINGHAM, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 948

523 S.W.2d 948

Charles Harold BINGHAM, Appellant, v. The STATE of Texas, Appellee.

No. 48263.

Court of Criminal Appeals of Texas.

June 18, 1975.

Mary B. Edwards, Houston, for appellant.

Carol S. Vance, Dist. Atty., Phyllis Bell and Vic Driscoll, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

In a trial before the court, appellant was convicted of burglary. This appeal was by per curiam opinion dated April 3, 1974, abated because of the erroneous consideration by the trial court for punishment purposes of improperly admitted evidence, and the cause was remanded to the trial court for re-assessment of punishment by a different judge, and for resentencing. A supplemental record has now been filed reflecting that in compliance with the mandate of this Court the trial court, with a different judge presiding, conducted a punishment hearing, heard evidence omitting the objectionable testimony, and assessed punishment at twelve years. Appellant was resentenced, this sentence to run concurrent with that against appellant in a conviction for felony theft (our Cause No. 48,262). He again gave notice of appeal, and this cause is now before us for disposition.

In his sole ground of error, appellant contends that the trial court erred in permitting him to be convicted on both the burglary and felony theft cases, since each grew out of the same transaction.

The record reflects that appellant was tried and convicted simultaneously on two indictments, one charging burglary and the other felony theft, both occurring March 12, 1973. The evidence established that the theft involved property taken in the burglary.

It is well established by statute and case law that where one commits burglary, and after the felonious entry he commits another offense, he may be prosecuted for both offenses, and neither prosecution is a bar to the trial for the other. See Article, 1399, 1400, Vernon's Ann.P.C.; Warren v. State, Tex.Cr.App., 514 S.W.2d 458; Perkins v. State, Tex.Cr.App., 485 S.W.2d 792; Pena v. State, Tex.Cr.App., 442 S.W.2d 691; Ashcraft v. State, 155 Tex.Cr.App., 229 S.W.2d 813; Cooper v. State, 154 Tex.Cr.R. 182, 226 S.W.2d 122.

Appellant's ground of error is overruled.

Although not raised by appellant in his brief, we note that punishment at the hearing after remand was assessed at twelve years, whereas the original punishment assessed before appeal was ten years. This increase in punishment raises a constitutional question of due process under the Federal Constitution. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656; United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138. The constitutional question requires our review in the interest of justice. See Article 40.09, Sec. 13, Vernon's Ann.C.C.P.; Ellis v. State, Tex.Cr.App., 502 S.W.2d 146; Duckett v. State, 454 S.W.2d 755. For collateral review on habeas corpus where the question was not raised on original appeal, see Ex Parte Bowman, 523 S.W.2d 677, (Tex.Cr.App.1975).

The trial of this cause on its merits was conducted by a visiting judge sitting for the regular judge of the 176th District Court. The punishment hearing after remand was conducted by the regular judge of the court. The record reflects that he was familiar with the former proceedings, and knew that the penalty appealed from was ten years; in fact, he mentioned that fact in his preliminary remarks in calling the proceedings to trial.

In Ex parte Bowman, supra, we quoted from North Carolina v. Pearce, supra, as follows:

'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. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

'In order to...