Gates v. State

• Decision Date: 15 August 1985
• Docket Number: No. 05-84-00225-CR,05-84-00225-CR
• Citation: 696 S.W.2d 671
• Parties: Jerry Alonzo GATES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 671

696 S.W.2d 671

Jerry Alonzo GATES, Appellant, v. The STATE of Texas, Appellee.

No. 05-84-00225-CR.

Court of Appeals of Texas,

Dallas.

Aug. 15, 1985.

Melvyn Carson Bruder, Bruder & Cooper, Dallas, for appellant.

Donald G. Davis, Asst. Dist. Atty., Dallas, for appellee.

Before SPARLING, WHITHAM and DEVANY, JJ.

DEVANY, Justice.

Jerry Alonzo Gates seeks reassessment of the punishment imposed after the trial court revoked his probation. Appellant was originally convicted of aggravated robbery and sentenced to serve five years in prison. That conviction was overturned on appeal. ¹ On retrial, he pleaded guilty to a lesser offense, attempted aggravated robbery, and received a ten year sentence probated. While on probation, he was charged with and convicted of credit card abuse. A motion was made by the state to revoke his probation to which he made an open plea of true. The trial court revoked his probation and required him to serve the ten years assessed on retrial. Appellant now argues that it was unconstitutional for the trial court to sentence him for a longer period than he would have served if he had not appealed the original conviction. Without addressing the merits of appellant's argument, we hold that he waived this complaint by his open plea of true to the motion to revoke. Accordingly, we affirm the trial court's judgment.

The threshold question in this appeal is whether appellant's complaint presents anything for review. Appellant characterizes the increased punishment on retrial as a violation of the prohibitions against double jeopardy. U.S. Const.Amends. V, XIV, Tex. Const. art. I, § 14. On the basis of this characterization, he argues that his sentence is void. We do not agree that the increased punishment on retrial offends the prohibition against double jeopardy. The Supreme Court of the United States has held:

Long-established constitutional doctrine makes clear that ... the guarantee against double jeopardy imposes no restrictions upon the length of a sentence imposed upon reconviction. At least since 1896, ... it has been settled that this constitutional guarantee imposes no limitations whatever on the power to retry a defendant who has succeeded in getting his first conviction set aside.... And at least since 1919, ... it has been settled that a corollary of the power to retry a defendant is the power, upon reconviction, to impose whatever punishment may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction.

North Carolina v. Pearce, 395 U.S. 711, 719-20, 89 S.Ct. 2072, 2077-78, 23 L.Ed.2d 656 (1969) (footnotes and citations omitted); see also Weeks v. State, 521 S.W.2d 858, 863-64 (Tex.Crim.App.1975). The court in Pearce held, however, that increased punishment on retrial would offend the due process guarantee if imposed as punishment for overturning the original conviction. United States v. Goodwin, 457 U.S. 368, 375, 384, 102 S.Ct. 2485, 2489, 2494, 73 L.Ed.2d 74 (1982); Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974). Therefore, appellant's complaint stems from the due process clause of the fourteenth amendment and not the double jeopardy prohibition of the fifth amendment.

In Helms v. State, 484 S.W.2d 925, 927 (Tex.Crim.App.1972), the Court of Criminal Appeals held that where a guilty plea is voluntarily and understandingly made, all nonjurisdictional defects, including federal due process claims, are waived. On retrial of the robbery case, appellant entered an open plea of guilty. Literally applied, the Helms rule precludes appellate review of appellant's complaint. However, because appellant pleaded guilty without having negotiated a recommendation on punishment, he could not have known at that moment in time that the trial court would assess a longer sentence but probated. We are reluctant, therefore, to say that his guilty plea to the robbery alone waived a defect that did not exist at that time. See King v. State, 687 S.W.2d 762, 767 (Tex.Crim.App.1985) (Clinton, J., concurring). However, appellant could have raised his claim in the hearing on the State's motion to revoke probation.

The trial court assesses punishment before it grants probation. Teel v. State 432 S.W.2d 911, 912 (Tex.Crim.App.1968); Tex.Code Crim.Proc.Ann. art. 42.12, § 3 (Vernon 1979). The order granting probation suspends the imposition of punishment until the probationer violates the terms of his probation or successfully completes the probationary period. Tex.Code Crim.Proc.Ann. art. 42.12, § 2(b) (Vernon Supp.1985); see also Gordon v. State, 575 S.W.2d 529, 532 (Tex.Crim.App.1978); Teel, 432 S.W.2d at 912. While the Supreme Court in Pearce discussed the due process violation in terms of imposing increased punishment, the Court of Criminal Appeals in Lechuga v. State, 532 S.W.2d 581, 588 (Tex.Crim.App.1976), held that Pearce would be violated, if at all, when the trial court assessed punishment. "It should be clear that the term 'more severe sentence' should be read as synonymous with 'more severe punishment or penalty' rather than formal pronouncement of sentence as provided in ... our Code of Criminal Procedure." Lechuga, 532 S.W.2d at 586-87. Apparently, the court reached this conclusion to avoid deciding whether a longer term with probation was "increased punishment" when compared with a shorter period of actual incarceration. See Lechuga, 532 S.W.2d at 587 n. 2. If this were an open question, we would probably avoid this problem by holding that Pearce would not be violated until the punishment on retrial was imposed. Thus, the increased punishment question could be resolved by comparing the sentence in the original conviction with the punishment actually imposed after retrial and probation revocation.

We perceive several advantages in this approach. First, it harmonizes Pearce with established Texas punishment, probation and sentencing procedures. Second, under our reasoning of examining punishment when it is actually imposed, the procedural stumbling block of waiving the due process claim by pleading true to the motion to revoke would be eliminated because that violation, if any, would not occur until after the plea was entered. Third, it prevents anticipation of constitutional questions in advance of the necessity for deciding them. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346, 56 S.Ct. 466, 482, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).

Under Lechuga, a defendant who receives increased punishment suspended by probation on retrial may raise the Pearce claim in an appeal from the adjudication of guilt. Cf. Burson v. State, 511 S.W.2d 948, 950 (Tex.Crim.App.1974) (defendant may appeal judgment of guilt which orders probation). However, the probation suspends imposition of punishment. Teel, 432 S.W.2d at 912; Tex.Code Crim.Proc.Ann. art....