Bouie v. State

• Decision Date: 17 May 1978
• Docket Number: No. 54711,54711
• Citation: 565 S.W.2d 543
• Parties: John Elson BOUIE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 543

565 S.W.2d 543

John Elson BOUIE, Appellant, v. The STATE of Texas, Appellee.

No. 54711.

Court of Criminal Appeals of Texas,En Banc.

May 17, 1978.

Jesse R. Funchess, Houston, for appellant.

Carol S. Vance, Dist. Atty., Phyllis M. Bell and Terry G. Wilson, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

Before the court in en banc.

OPINION

ODOM, Judge.

This is an appeal from a conviction for robbery by assault. Art. 1408, V.A.P.C. Punishment was enhanced on allegations and proof of two prior convictions. See Art. 63, V.A.P.C. and V.T.C.A., Penal Code Sec. 12.42(d).

Appellant first contends the trial court erred in allowing him to be retried as an habitual criminal after his first conviction in which he received ten years, was reversed. On appellant's first conviction for this crime he pleaded guilty and received a ten year sentence. That conviction was reversed on appeal. Bouie v. State, 528 S.W.2d 587. Subsequently he was reindicted for this same crime, and the new indictment alleged two prior convictions for enhancement. Appellant again entered a plea of guilty to the offense, but pleaded not true to the enhancement allegations. His motion to dismiss the enhancement allegations was denied, and on finding the allegations true the court fixed his punishment at life.

Appellant relies on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, in which the court wrote:

"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 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 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."

In Alvarez v. State, 536 S.W.2d 357, 364, cert. denied 429 U.S. 924, 97 S.Ct. 325, 50 L.Ed.2d 292, this Court wrote:

"Vindictiveness is the evil object of North Carolina v. Pearce, and it is equally impermissible whether flowing from a judge or from a prosecutor."

See also Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628. In Alvarez, supra, we also stated that where the penalty is fixed by law, as it was here, the increase may not be attributed to possible vindictiveness on the part of the judge. The focus of this issue, therefore, as in Alvarez, must turn to the prosecutor's acts.

In Alvarez the controlling facts were these:

"Although the record does not show whether the first conviction rested upon a negotiated plea, it does show that appellant entered a plea of guilty and the State abandoned the enhancement allegations of the first indictment. On the second trial appellant elected to plead not guilty and be tried by a jury, and the State prosecuted its case on a new indictment containing the enhancement allegations that had been abandoned at the first trial. We perceive no reason why an accused who changes his plea from guilty to not guilty on retrial should be able at the same time to hold the State to the punishment sought or secured at the first trial."

The facts in this case are entirely different from those presented in Alvarez. Here appellant entered pleas of guilty to the primary offense under both the first indictment and the second indictment. Also, the second indictment here alleged two prior convictions, whereas the first alleged one, and it was dismissed on the state's motion.

In cases such as this one and Alvarez, where a conviction on a guilty plea is reversed on appeal and the State adds enhancement allegations on retrial, the constitutionality of the increased punishment so obtained turns on whether the prosecutor's acts may have been the product of vindictive retaliation for the prior exercise of the accused's right to appeal. In Alvarez we found no such indication of prosecutorial vindictiveness:

"Absent a showing of circumstances that would indicate prosecutorial vindictiveness, such as improper refusal to continue to honor a plea bargain previously made, we are of the opinion that no violation of the principles of North Carolina v. Pearce has been shown. . . . We remain convinced that the disparity between the ten year sentence on appellant's first trial and the life sentence on appellant's second trial has not been shown to be anything other than a consequence of trial strategy, as opposed to prosecutorial vindictiveness." (Emphasis added.)

Prosecutorial vindictiveness is retaliation and distinguishable from trial strategy that is a matter of the defendant's free choice with full knowledge of the consequences. This is precisely the distinction relied on by the United States Supreme Court in its recent decision in Bordenkircher v. Hayes, --- U.S. ----, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). The court there said:

"(I)n the 'give and take' of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer.

"While confronting a defendant with the risk of more severe punishment clearly may have a 'discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices (is) an inevitable' and permissible 'attribute of any legitimate system which tolerates and encourages the negotiation of pleas.' Chaffin v. Stynchcombe, 412 U.S. 17, at 31 (93 S.Ct. 1977, 36 L.Ed.2d 714). It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forego his right to plead not guilty."

If the prosecutor may increase the sought for punishment from five years to life because the defendant refuses to plead guilty at the first trial, as the court held permissible in Bordenkircher v. Hayes, supra, he certainly can do the same when the defendant changes his plea from guilty to not guilty at the second trial, as was done in Alvarez v. State, supra, so long as the defendant is presented with and aware of the alternatives when he makes his choice, as was expressed in both Hayes and Alvarez.

It was also stated in Bordenkircher v. Hayes, supra:

"The Court has emphasized that the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right, see Colten v. Kentucky, 407 U.S. 104 (92 S.Ct. 1953, 32 L.Ed.2d 584); Chaffin v. Stynchcombe, 412 U.S. 17 (93 S.Ct. 1977, 36 L.Ed.2d 714), but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction. See Blackledge v. Perry, supra, 417 U.S., at 26-28 (94 S.Ct. 2098, 40 L.Ed.2d 628)."

If a defendant withdraws on retrial from a plea bargain obtained at the first trial, an increased punishment would be a legitimate response of the State to the defendant's rejection of that agreement. This is based on the teaching of Bordenkircher v. Hayes, supra. On the other hand, if the defendant enters the same plea on retrial as on the first trial, the use of the enhancement statute cannot be said to be the legitimate response approved in Bordenkircher v. Hayes. The possibility of prosecutorial vindictiveness in retaliation for the exercise of the right to appeal again arises, and the burden shifts, as in this case, to the State to show "objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Pearce, supra. The record before us is devoid of any such objective information. At the hearing on the motion for new trial the prosecutor testified to the contrary:

"Q. So I take it then that your testimony is that you had no information available to you nor did you seek out any information, objective information, concerning the conduct on the part of the Defendant which might have occurred after the time of your original sentencing in the original case

"THE COURT: To justify the increase in punishment?

"Q. Yes, sir.

"A. No, sir, I did not study his conduct in between the time that he entered the plea of guilty and the time of the re-trial.

"Q. And, of course, his conduct during that period of time was not the basis on which the re-indictment was sought?

"A. The re-indictment sir was sought

"Q. Excuse me sir, my question is, whether or not his conduct during this period of time, which you didn't even check into, was the basis of the re-indictment being sought?

"A. No, sir, it was not."

In view of the absence of objective information about identifiable conduct by appellant occurring after the first trial, and in view of the prosecutor's admission that no such conduct was the basis for enhancing appellant's punishment, we hold that due process was violated by use of the enhancement paragraphs of the indictment, and that the trial court erred in denying appellant's motion to dismiss the enhancement paragraphs. Accordingly, we will set aside the punishment, and remand the cause with orders that the enhancement allegations be dismissed and that the court assess punishment within the principles of North Carolina v. Pearce, supra.

In his second ground...