Jackson v. State, No. 115-84

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtONION; DAVIS, McCORMICK and DUNCAN, JJ., and JON SPARLING; CLINTON; TEAGUE; Miller
Citation766 S.W.2d 518
PartiesKenneth Earl JACKSON, Appellant, v. The STATE of Texas, Appellee.
Docket NumberNo. 115-84
Decision Date23 November 1988

Page 518

766 S.W.2d 518
Kenneth Earl JACKSON, Appellant,
v.
The STATE of Texas, Appellee.
No. 115-84.
Court of Criminal Appeals of Texas,
En Banc.
Nov. 23, 1988.

Richard D. Woods, court appointed, San Antonio, for appellant.

Sam D. Millsap, Jr., Former Dist. Atty. & Charels Estee, Former Asst. Dist. Atty., San Antonio, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

Page 519

OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT

ONION, Presiding Judge.

At a second trial appellant was convicted of the actual delivery of heroin, a controlled substance, a first-degree felony. See Article 4476-15, § 4.03(b), V.A.C.S. One prior felony conviction was alleged and proved for enhancement of punishment. The jury assessed punishment at 25 years' confinement in the Texas Department of Corrections.

At appellant's first trial the trial judge assessed punishment at 15 years' imprisonment. Later the same judge granted a new trial under Article 40.09, (12) V.A.C.C.P. (1965). This apparently was due to a claimed deficiency in the allegations of the indictment. A new indictment was then presented. A vacancy occurred on the trial court, and a new judge was appointed by the Governor. At the second trial the new judge presided and the appellant elected to have the jury assess punishment. Punishment was assessed at 25 years after the jury found appellant guilty and after he pled "true" to the enhancement allegation of a prior felony conviction.

On appeal the appellant, inter alia, complained in his first ground of error that his trial counsel provided ineffective assistance of counsel in advising him to elect to go to the jury for punishment. He asserted North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), barred the second trial judge from assessing a punishment greater than the first trial judge did, which was 15 years, and that by electing the jury to assess punishment upon counsel's advice, he received 10 additional years of punishment.

The Court of Appeals held the evidence sufficient to sustain the conviction but remanded the cause to the trial court to hold a hearing to determine whether there was "objective information" available which would have allowed the trial judge to have assessed a more severe penalty than 15 years if he had been chosen by the appellant to have assessed punishment. Jackson v. State, 640 S.W.2d 323 (Tex.App.-San Antonio 1982) pet. ref'd. Following the evidentiary hearing in the trial court, the Court of Appeals determined that Pearce applied to this cause and there was no "objective information" which would have allowed the second trial judge to have imposed a greater punishment than 15 years. The Court of Appeals concluded that counsel had provided ineffective assistance of counsel for the sole reason of having advised appellant to 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 1983).

The State's petition for discretionary review was granted, and this Court affirmed the judgment of the Court of Appeals. This Court, with three judges dissenting, likewise determined that the so-called prophylactic rule in Pearce applied, and held in absence of "objective information" concerning identifiable conduct on the part of the appellant occurring after the first trial, the punishment could not have been assessed at a greater term than 15 years by the second trial judge if he had been chosen to assess punishment. This Court agreed that in electing the jury instead of the judge to assess punishment the limitation on punishment was removed. It was held that counsel failed to advise appellant about the impact of Pearce, and that this single error resulted in ineffective assistance of counsel. The judgment of the Court of Appeals reversing the trial court was affirmed.

The State then filed its petition for writ of certiorari with the United States Supreme Court claiming, inter alia, that Pearce had no application to this case. On April 21, 1986, the petition for writ of certiorari was granted and the cause was remanded to this Court for further consideration in light of Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). Texas v. Jackson, 475 U.S. 1114, 106 S.Ct. 1627, 90 L.Ed.2d 175 (1986). See now McCullough v. State, 720 S.W.2d 93 (Tex.Cr.App.1986).

Page 520

In McCullough the defendant was convicted of murder at his second trial and the trial judge assessed 50 years' imprisonment as punishment. This was greater than the 20 years' imprisonment he had received at the first trial at the hands of a jury, following which the court had granted a new trial based on prosecutorial misconduct. The trial judge entered findings to justify the greater penalty imposed at the second trial. She found that two State witnesses, who had not testified at the first trial, added to the credibility of the State's key witness and detracted from the credibility of the defendant and a defense witness; that the new testimony directly implicated the defendant in the murder and shed new light upon his life and conduct; that it had been learned for the first time on retrial that the defendant had been released from prison only four months before the murder.

Relying on Pearce, which held that the Due Process Clause of the Fourteenth Amendment prevented increased sentences on retrial when the increase was motivated by the sentencing judge's vindictiveness, and to show the absence of such vindictiveness the reasons for imposing the increased sentence must affirmatively appear, the Amarillo Court of Appeals reformed the sentence to 20 years and affirmed the judgment of the trial court. McCullough v. State, 680 S.W.2d 493 (Tex.App.-Amarillo 1983). In discussing the lack of valid reasons for the increased sentences, the Court of Appeals quoted directly from Pearce.

"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." (Emphasis was from the original.) (Added emphasis supplied.)

Thereafter the court observed that in the instant case there was no evidence of "identifiable conduct on the part of the defendant occurring after the original sentencing proceedings"; that the trial judge's findings related to the original crime, etc., and not to the defendant's subsequent conduct.

The State's petition for discretionary review was granted. This Court held that as a matter of procedure the cause should be remanded to the trial judge for resentencing, that under Pearce vindictiveness must be presumed even though a jury had fixed punishment at the first trial and a judge had fixed it at the second trial. McCullough v. State, 720 S.W.2d 89 (Tex.Cr.App.1983).

The United States Supreme Court granted certiorari and held that the Due Process Clause was not violated by the trial judge's imposition of a greater sentence on retrial. The Court concluded the facts of McCullough provided no basis for a Pearce presumption of vindictiveness, noting that the granting of McCullough's motion for new trial based on prosecutorial misconduct hardly suggested vindictiveness on the judge's part. The Court also held that the Pearce presumption is also inapplicable because different "sentencers" assessed varying "sentences," 1 where the trial judge at the second trial provided an on-the-record logical, nonvindictive reason for the greater punishment.

The Court further concluded that even if the Pearce presumption were to apply, the trial judge's findings for imposing a greater

Page 521

punishment overcame that presumption as these findings clearly constituted "objective information justifying the increased sentence," citing United States v. Goodwin, 457 U.S. 368, 375, 102 S.Ct. 2485, 2489, 73 L.Ed.2d 74 (1982). The Court noted that Pearce is not to be read as precluding a rebuttal of intimations of vindictiveness. The Court made clear the language in Pearce about justifying an increased sentence based on identifiable conduct occuring "subsequent to original sentencing proceedings" was never intended to describe exhaustively all of the possible circumstances in which an increase in punishment could be justified.

The Court reversed this Court's judgment in McCullough and remanded the cause to this Court. Texas v. McCullough, supra.

In the instant Jackson case, the question is not whether Pearce would limit the punishment to be assessed for Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), made clear that Pearce is not applicable where a jury imposes the greater punishment on retrial. The question is one of effective assistance of counsel. Did the sole act of advising the appellant Jackson to elect to have the jury assess punishment constitute ineffective assistance of counsel? Was the trial judge limited by Pearce to the 15 years' imprisonment originally imposed whereas the jury was not?

The central premise to appellant's claim of ineffective assistance of counsel, adopted by this Court and the Court of Appeals, was that the prophylactic rule of Pearce would apply to the facts of this case, and that the trial judge at the second trial would have been "locked into" assessing no greater penalty than 15 years if he was called upon to assess punishment. Article 37.07, V.A.C.C.P.

However, if Pearce was not applicable to the facts of the case, the trial judge would be free as the jury to assess any punishment within the lawful range of punishment applicable to the offense charged and the enhancement allegations of the indictment. If Pearce has no application, then appellant's counsel's advice about the trial judge's attitude on punishment and his reputation in connection herewith and counsel's recommendation to elect to have the jury assess punishment would appear to have provided appellant with an...

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30 practice notes
  • Ex Parte Carl Eddie Miller, Applicant., No. AP–76,167.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 28 Octubre 2009
    ...to raise the issue of the insufficiency of the evidence of the required sequence of the alleged prior convictions. Jackson v. State, 766 S.W.2d 518 (Tex.Crim.App.1988)(modified on other grounds on remand from U.S. Supreme Court, Jackson v. State, 766 S.W.2d 518 (Tex.Crim.App.1988)); Ex part......
  • Hubbard v. State, Nos. 05-82-00467-C
    • United States
    • Court of Appeals of Texas
    • 31 Marzo 1989
    ...he has failed to establish that he was denied effective assistance of counsel. 10 In the recent decision of Jackson v. State, 766 S.W.2d 518 (Tex.Crim.App.1988), the Court of Criminal Appeals appeared to apply the standard of Strickland v. Washington to a claim of ineffectiveness arising fr......
  • Wiltz v. State, No. 688-92
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 12 Mayo 1993
    ...Page 465 therefore decline to read Pearce as governing this issue.... 475 U.S. at 140 n. 3, 106 S.Ct. at 980 n. 3; see Jackson v. State, 766 S.W.2d 518, 521-522 (Tex.Crim.App.1988). Where there is no reasonable likelihood of vindictiveness, the burden remains upon the defendant to prove act......
  • Ex parte Robertson, NO. WR-30,077-01
    • United States
    • Texas Court of Criminal Appeals
    • 1 Julio 2020
    ...vacated on other grounds , 475 U.S. 1114, 106 S.Ct. 1627, 90 L.Ed.2d 175 (1986), different result reached on remand on other grounds , 766 S.W.2d 518 (Tex. Crim. App. 1988) (ineffective-assistance claim in connection with electing jury punishment).20 He cites a case as old as 1978. See Unit......
  • Request a trial to view additional results
30 cases
  • Ex Parte Carl Eddie Miller, Applicant., No. AP–76,167.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 28 Octubre 2009
    ...to raise the issue of the insufficiency of the evidence of the required sequence of the alleged prior convictions. Jackson v. State, 766 S.W.2d 518 (Tex.Crim.App.1988)(modified on other grounds on remand from U.S. Supreme Court, Jackson v. State, 766 S.W.2d 518 (Tex.Crim.App.1988)); Ex part......
  • Hubbard v. State, Nos. 05-82-00467-C
    • United States
    • Court of Appeals of Texas
    • 31 Marzo 1989
    ...he has failed to establish that he was denied effective assistance of counsel. 10 In the recent decision of Jackson v. State, 766 S.W.2d 518 (Tex.Crim.App.1988), the Court of Criminal Appeals appeared to apply the standard of Strickland v. Washington to a claim of ineffectiveness arising fr......
  • Wiltz v. State, No. 688-92
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 12 Mayo 1993
    ...Page 465 therefore decline to read Pearce as governing this issue.... 475 U.S. at 140 n. 3, 106 S.Ct. at 980 n. 3; see Jackson v. State, 766 S.W.2d 518, 521-522 (Tex.Crim.App.1988). Where there is no reasonable likelihood of vindictiveness, the burden remains upon the defendant to prove act......
  • Ex parte Robertson, NO. WR-30,077-01
    • United States
    • Texas Court of Criminal Appeals
    • 1 Julio 2020
    ...vacated on other grounds , 475 U.S. 1114, 106 S.Ct. 1627, 90 L.Ed.2d 175 (1986), different result reached on remand on other grounds , 766 S.W.2d 518 (Tex. Crim. App. 1988) (ineffective-assistance claim in connection with electing jury punishment).20 He cites a case as old as 1978. See Unit......
  • Request a trial to view additional results

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