Castleberry v. State, No. 166-83

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtCLINTON; ODOM; ONION, P.J., and TEAGUE; W.C. DAVIS; TEAGUE; ONION; MILLER
Citation704 S.W.2d 21
PartiesWilliam Charles CASTLEBERRY, Appellant, v. The STATE of Texas, Appellee.
Docket NumberNo. 166-83
Decision Date18 July 1984

Page 21

704 S.W.2d 21
William Charles CASTLEBERRY, Appellant,
v.
The STATE of Texas, Appellee.
No. 166-83.
Court of Criminal Appeals of Texas,
En Banc.
July 18, 1984.
Rehearing Denied Feb. 12, 1986.

Page 22

Brian W. Wice, Houston (court appointed on appeal), for appellant.

John B. Holmes, Jr., Dist. Atty. and Winston E. Cochran, Jr., Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Before us on State's petition for discretionary review is the Houston (1st) Court of Appeals' vacation of appellant's 20 year sentence assessed by the trial court pursuant to his jury conviction for burglary of a habitation.

The record reveals appellant was indicted for burglary of a habitation, a first degree felony, 1 alleged to have been committed on or about December 17, 1981. The indictment included a repeater paragraph which further alleged appellant had been previously finally convicted of burglary of a motor vehicle. 2

Approximately two months after return of the indictment, appellant entered a plea of no contest before the trial court sitting without a jury, on March 2, 1982. The State at that time introduced appellant's written waiver of rights and stipulation of evidence as State's Exhibit No. 1. The written stipulation reflects the State abandoned the repeater paragraph in exchange for appellant's plea, and recommended twelve years confinement. The transcription of the court reporter's notes reveals the trial court admonished appellant on the first degree felony then accepted his plea upon the prosecutor's assertion, and appellant's agreement, that the term of years recommended constituted the plea bargain between the parties. Appellant was found guilty and his punishment was assessed at twelve years.

Within the succeeding six days, and while still confined in the county jail, appellant apparently wrote a letter to the trial judge; he told the judge he did not understand what had happened, the proceeding had gone too fast, he did not agree with what his attorney had done and thought he had gotten a "bad deal."

On March 8, 1982, the trial judge had appellant brought in to discuss his letter. Appellant told the court he wanted a jury to try his case. The trial judge evidently explained to appellant that if he insisted on a jury trial on the original indictment and was found guilty, and the repeater paragraph were proved, the minimum punishment

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would be fifteen years (three more than was assessed pursuant to the plea bargain). Appellant persisted. On the same day, a form motion for new trial was submitted by defense counsel; it alleged only "that the judgment of the Court is contrary to the law and evidence...."

The trial judge immediately entered an order granting a new trial.

Thereafter, on March 23, and 24, 1982, appellant was tried by a jury which returned a verdict of guilty. Having elected to have the trial court assess punishment, appellant was asked for his plea on the repeater allegation. He personally entered a plea of "true."

The trial court then, "[f]or purposes of the record" observed that appellant had initially entered a plea in this cause, "and on recommendation of the State and through a plea bargain arrangement in which the enhancement count [sic] was abandoned by the State, they recommended twelve years." Appellant voiced his agreement. The trial judge continued:

"Fine. And you entered a plea to that and I assessed your punishment at twelve years, and then you wrote a letter to me from the jail stating you did not understand what had happened, that we had taken you too fast, and you did not agree with what your attorney had done and you thought you had gotten a bad deal, and I put you back on the docket ... and you were brought back in and I discussed the matter with you and you asked for a new trial and I granted your motion for new trial, because you wanted a jury to try your case, and I did that, which brings you here, and the jury having found you guilty of burglary of a habitation, which is a first-degree felony, and the enhancement count [sic] has now been proved, which means your minimum punishment is fifteen years. Well, I explained all that to you before. You know I buy you books and I buy you books, but I can't make you do it."

The trial judge then assessed appellant's sentence at twenty years confinement.

In the court of appeals, Tex.App., 646 S.W.2d 599, appellant contended the trial court had erred and, in fact, exhibited "judicial vindictiveness" by increasing his sentence from twelve to twenty years after "permitting him to withdraw his earlier plea of guilty [sic]." Appellant argued his case was "indistinguishable" from Palm v. State, 656 S.W.2d 429 (Tex.Cr.App.1983) [hereinafter Palm ] and, therefore, the rule of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) [hereinafter Pearce ] should operate to prevent this increase in punishment. 3

The Harris County District Attorney conceded this cause would be governed by Palm, which had in turn relied on Pearce. Accordingly, the court of appeals held the increased punishment constituted error, because "the record does not indicate any factors which may have occurred after the time of the original sentencing, and which were considered by the trial judge as the basis for his enhanced [sic] punishment."

We granted the State Prosecuting Attorney's petition for discretionary review in order to determine whether the rule in

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Pearce is applicable under the facts of this case.

We conclude the rationale of Pearce does not and cannot apply to the instant case simply because appellant never exercised his statutory or constitutional right to review by a higher court. Simply stated, he never got that far. Therefore, what happened to him in terms of increased punishment cannot under any interpretation be attributed to an unconstitutional response to exercise of those rights--a response condemned in Pearce.

I.

This conclusion is compelled by orderly consideration of constitutional concepts developed by and since Pearce to which we now turn.

JUDICIAL VINDICTIVENESS

In Pearce, the Court apparently acknowledged that, when faced with a determination by a reviewing court that a trial was legally infirm to the extent a new trial is required, the judge who presided over that trial might react both negatively and personally to the criticism of him inherent in such a determination. Recognizing the potential effect of such a reaction on the part of the affected trial judge, 4 the Supreme Court fashioned its prophylactic rule, expressing ultimate concern that no person convicted of a criminal offense be dissuaded from invoking constitutional or statutory procedures of right for attacking the legality of his conviction. See n. 3 ante.

PROSECUTORIAL VINDICTIVENESS

In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the Court delineated a very narrow due process violation extant in prosecutorial vindictiveness exhibited by "upping the ante" with a felony indictment after a convicted misdemeanant pursued his statutory appellate remedy of trial de novo.

Four years later, the Supreme Court clearly distinguished the circumstances in Blackledge from the situation in which pretrial plea negotiations between the accused and the State break down and the State then makes good promises regarding its posture in response to the accused's refusal to plead guilty.

"To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action, whose objective is to penalize a person's reliance on his legal rights is 'patently unconstitutional.' [citation omitted.] But in 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."

Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978).

The Court recognized " 'the mutuality of advantage' to both defendants and prosecutors, each with his own reasons for wanting to avoid trial" which underlies plea bargaining and observed that "acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense...." 434 U.S. at 363, 98

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S.Ct. at 668. Conceding that confronting an accused with the risk of more severe punishment may have a discouraging effect on his assertion of trial rights, the Court stated that presenting such "difficult choices" to the accused is both inevitable and permissible in a system which encourages negotiation of pleas.

"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 forgo his right to plead not guilty."

434 U.S. at 364, 98 S.Ct. at 668.

Unstated, then, is the concomitant that it is constitutionally permissible for the prosecutor to exercise his discretion by "punishing" a defendant who insists on asserting his right to trial in spite of concessions offered; indeed, it is the threat of this very sanction which supplies the strength of the prosecutor's bargaining position during negotiations.

Only eighteen months after Bordenkircher was decided, the En Banc Fifth Circuit applied its rationale to the post -trial withdrawal from a negotiated plea by the defendant in Chapman v. Estelle, 593 F.2d 687 (CA5 1979). The determining factor in the court's decision was the "particular reason" the defendant requested the trial judge grant him a new trial: the defendant was dissatisfied with the sentence he had accepted under the plea agreement and stated he wished he had taken...

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22 practice notes
  • Jackson v. State, No. 115-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 24, 1985
    ...of Pearce to the case, it should be noted that as late as July 18, 1984, a majority of this Court (7-2) 2 in Castleberry v. State, 704 S.W.2d 21 (Tex.Cr.App.1984), "We conclude the rationale of Pearce does not and cannot apply to the instant case simply because appellant never exercised his......
  • Ex parte McAfee, No. 69666
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 8, 1988
    ...106 S.Ct. 1238, 89 L.Ed.2d 346; Castleberry v. State, 646 S.W.2d 599 (Tex.App.--Houston [1st Dist.] 1983), reversed on other grounds, 704 S.W.2d 21; Tenery v. State, 680 S.W.2d 629 (Tex.App.--Corpus Christi 1984), PDR ref'd; 22 C.J.S., Criminal Law, § 272, p. Also where the reversal on appe......
  • Woodson v. State, No. 13-88-061-CR
    • United States
    • Court of Appeals of Texas
    • August 31, 1989
    ...does not apply if the defendant never exercises a statutory or constitutional right to review by a higher court. Castleberry v. State, 704 S.W.2d 21, 24 (Tex.Crim.App.1984). Appellant ignores this crucial fact; he made no move for which the State's decision to file the increased charge can ......
  • HOLMES v. The State of Tex., No. PD-0453-07 to PD-0460-07.
    • United States
    • Texas Court of Criminal Appeals
    • February 24, 2010
    ...to a guilty plea”: 4First, the appellate court must identify “the fruits” that the trial court held would not be suppressed. McGlynn, 704 S.W.2d at 21. Second, the appellate court must determine that these fruits have “somehow been used” by the State. Kraft, 762 S.W.2d at 613-14. If it is n......
  • Request a trial to view additional results
22 cases
  • Jackson v. State, No. 115-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 24, 1985
    ...of Pearce to the case, it should be noted that as late as July 18, 1984, a majority of this Court (7-2) 2 in Castleberry v. State, 704 S.W.2d 21 (Tex.Cr.App.1984), "We conclude the rationale of Pearce does not and cannot apply to the instant case simply because appellant never exercised his......
  • Ex parte McAfee, No. 69666
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 8, 1988
    ...106 S.Ct. 1238, 89 L.Ed.2d 346; Castleberry v. State, 646 S.W.2d 599 (Tex.App.--Houston [1st Dist.] 1983), reversed on other grounds, 704 S.W.2d 21; Tenery v. State, 680 S.W.2d 629 (Tex.App.--Corpus Christi 1984), PDR ref'd; 22 C.J.S., Criminal Law, § 272, p. Also where the reversal on appe......
  • Woodson v. State, No. 13-88-061-CR
    • United States
    • Court of Appeals of Texas
    • August 31, 1989
    ...does not apply if the defendant never exercises a statutory or constitutional right to review by a higher court. Castleberry v. State, 704 S.W.2d 21, 24 (Tex.Crim.App.1984). Appellant ignores this crucial fact; he made no move for which the State's decision to file the increased charge can ......
  • HOLMES v. The State of Tex., No. PD-0453-07 to PD-0460-07.
    • United States
    • Texas Court of Criminal Appeals
    • February 24, 2010
    ...to a guilty plea”: 4First, the appellate court must identify “the fruits” that the trial court held would not be suppressed. McGlynn, 704 S.W.2d at 21. Second, the appellate court must determine that these fruits have “somehow been used” by the State. Kraft, 762 S.W.2d at 613-14. If it is n......
  • Request a trial to view additional results

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