Jackson v. State, No. 04-81-00373-CR

CourtCourt of Appeals of Texas
Writing for the CourtREEVES; DIAL
Citation662 S.W.2d 74
PartiesKenneth Earl JACKSON, Appellant, v. The STATE of Texas, Appellee.
Decision Date09 November 1983
Docket NumberNo. 04-81-00373-CR

Page 74

662 S.W.2d 74
Kenneth Earl JACKSON, Appellant,
v.
The STATE of Texas, Appellee.
No. 04-81-00373-CR.
Court of Appeals of Texas,
San Antonio.
Nov. 9, 1983.

Page 75

David Chapman, San Antonio, for appellant.

Bill White, Dist. Atty., John Horn, III, Asst. Dist. Atty., San Antonio, for appellee.

Before BUTTS, REEVES and DIAL, JJ.

OPINION

REEVES, Justice.

This is an appeal from a conviction for delivery of heroin. This court abated the appeal in order that an evidentiary hearing might be held to develop facts regarding appellant's allegation of ineffective assistance of counsel. See Jackson v. State, 640 S.W.2d 323 (Tex.App.--San Antonio 1982, pet. ref'd). The facts of this appeal are fully stated in Jackson, supra, however, for clarity they will be repeated here insofar as relevant.

Appellant was first tried and convicted of the offense of delivery of heroin. He was determined to be a repeat offender and sentenced by the court to the minimum punishment allowable, fifteen (15) years. TEX.PENAL CODE ANN. § 12.42(c) (Vernon 1974). Pursuant to former TEX.CODE CRIM.PRO.ANN. art. 40.09(12) (Vernon 1979), the trial court granted appellant a new trial. It is from the second trial which appellant brings this appeal. Appellant's first three grounds of error 1 all allege ineffective assistance of counsel. Because of our disposition of appellant's first ground of error, we need not consider grounds two and three.

Appellant in ground of error one, contends that trial counsel rendered ineffective assistance by failing to advise appellant sufficiently as to the consequences of electing to have the jury assess punishment. It was on this ground of error that the appeal was abated for an evidentiary hearing. Jackson, supra at 327. After examining the statement of facts of this hearing, we agree with appellant and sustain his first ground of error.

Because appellant was sentenced by the court at his first trial, absent objective information concerning identifiable conduct on the part of appellant occurring after the time of the original sentencing, the trial judge could not impose a more severe sentence. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975). Appellant, at his second trial, elected to go to the jury on punishment and pled true to the State's enhancement allegation. The jury sentenced appellant to twenty-five (25) years' confinement. The evidentiary hearing ordered by this court reveals no objective information concerning identifiable conduct of the appellant which would have allowed the trial judge to impose a more severe punishment. Appellant testified at this hearing that he had heard from another inmate, after appellant was granted a new trial, "that one of them [the judge or jury] would have to, if they was [sic] to find me guilty again, that one of them couldn't give me more time than I

Page 76

had.... I forgot which one it was, and that's what made me ask my attorney." At the evidentiary hearing, appellant's trial counsel testified that the decision to have the jury assess punishment came about as follows:

A [Appellant's Attorney]: Before we started the trial we had to make an election as required, and we discussed it back and forth as to what would be the best way to go. And at that time the decision was made to go to the jury.

Q: Did you advise...

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3 practice notes
  • Jackson v. State, No. 115-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 24, 1985
    ...Appeals held that appellant's trial counsel had rendered ineffective assistance of counsel and reversed the conviction. Jackson v. State, 662 S.W.2d 74 (Tex.App.--San Antonio 1983). The court of appeals noted that because appellant was sentenced by the court at his first trial, absent objec......
  • Jackson v. State, No. 115-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 23, 1988
    ...elect to have the jury assess punishment. The court thus sustained the first ground of error and reversed the judgment. Jackson v. State, 662 S.W.2d 74 (Tex.App.-San Antonio The State's petition for discretionary review was granted, and this Court affirmed the judgment of the Court of Appea......
  • Castleberry v. State, No. 166-83
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 18, 1984
    ...86 L.Ed.2d 716 (1985). 1 Jackson v. State, (Tex.Cr.App., No. 977-82, July 24, 1985), affirmed the Court of Appeals, Jackson v. State, 662 S.W.2d 74 (Tex.App.--San Antonio 1983), finding the defendant had been deprived of the effective assistance of trial counsel. The defendant Jackson was c......
3 cases
  • Jackson v. State, No. 115-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 24, 1985
    ...Appeals held that appellant's trial counsel had rendered ineffective assistance of counsel and reversed the conviction. Jackson v. State, 662 S.W.2d 74 (Tex.App.--San Antonio 1983). The court of appeals noted that because appellant was sentenced by the court at his first trial, absent objec......
  • Jackson v. State, No. 115-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 23, 1988
    ...elect to have the jury assess punishment. The court thus sustained the first ground of error and reversed the judgment. Jackson v. State, 662 S.W.2d 74 (Tex.App.-San Antonio The State's petition for discretionary review was granted, and this Court affirmed the judgment of the Court of Appea......
  • Castleberry v. State, No. 166-83
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 18, 1984
    ...86 L.Ed.2d 716 (1985). 1 Jackson v. State, (Tex.Cr.App., No. 977-82, July 24, 1985), affirmed the Court of Appeals, Jackson v. State, 662 S.W.2d 74 (Tex.App.--San Antonio 1983), finding the defendant had been deprived of the effective assistance of trial counsel. The defendant Jackson was c......

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