Jackson v. State

• Decision Date: 24 July 1985
• Docket Number: No. 115-84,115-84
• Parties: Kenneth Earl JACKSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 504

766 S.W.2d 504

Kenneth Earl JACKSON, Appellant, v. The STATE of Texas, Appellee.

No. 115-84.

Court of Criminal Appeals of Texas,

En Banc.

July 24, 1985.

David K. Chapman (court appointed), Richard D. Woods (court appointed), San Antonio, for appellant.

Sam D. Millsap, Jr., Dist. Atty. & Linda C. Anderson, Hipolito Canales, Jr. & John J. Horn, III, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

This is an appeal from a conviction for delivery of heroin, a first degree felony. See Art. 4476-15, § 4.03(b), V.A.C.S. Punishment, enhanced by proof of a prior felony conviction, was assessed by the jury at twenty-five years confinement in the Texas Department of Corrections.

This appeal arises from appellant's second trial for the same offense. At the first trial, appellant was convicted of delivery of heroin, found to be a repeat offender, and punishment was assessed by the court at the statutory minimum allowable upon proof of a prior felony conviction, fifteen years confinement in the Texas Department of Corrections. See V.T.C.A. Penal Code, § 12.42(c). Pursuant to former Art. 40.09(12), V.A.C.C.P., however, the trial court subsequently granted appellant a new trial.

In January, 1981, appellant was retried and again convicted of delivery of heroin. Appellant pled true to the enhancement allegation and elected to have the jury assess punishment pursuant to Art. 37.07, § 2(b)(2), V.A.C.C.P. Punishment, enhanced by proof of a prior felony conviction, was assessed by the jury at twenty-five years confinement in the Texas Department of Corrections.

On direct appeal, appellant attacked the sufficiency of the evidence and, in three grounds of error, alleged trial counsel had rendered ineffective assistance. On June 30, 1982, the San Antonio Court of Appeals held that the evidence was sufficient to sustain the conviction, but abated the appeal in order that an evidentiary hearing might be held to develop facts regarding appellant's first ground of error. Jackson v. State, 640 S.W.2d 323 (Tex.App.--San Antonio 1982, pet. ref'd.). Appellant's first ground of error alleged that trial counsel had rendered ineffective assistance by failing to sufficiently advise him as to the consequences of electing to have the jury assess punishment.

On August 26, 1983, an evidentiary hearing was held, developing facts germane to appellant's claim of ineffective assistance. The instructions from the court of appeals, as read to the parties by the trial judge, were:

"A hearing should be conducted in the trial Court to establish whether objective information could have been made [sic] to the trial court which might have resulted in the imposition of a more severe punishment than the 15 years assessed at the first trial, and thereby determine whether there was a reasonable basis for trial counsel's action." [Emphasis supplied]

The State had full opportunity at that hearing to present all "objective information" it could, including a continuance to bring an additional witness.

On November 9, 1983, with one justice dissenting as to the remedy, the San Antonio Court of 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 objective information concerning identifiable conduct on the part of the appellant occurring after the time of the original sentence, the trial judge could not impose a more severe sentence than the minimum of 15 years under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and its progeny. By electing to have the jury assess punishment, however, appellant exposed himself to the full range of punishment applicable to a repeat offender (15 to 99 years, or life). See Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973). Upon reviewing the record of the evidentiary hearing, the court of appeals held that there was no objective information concerning identifiable conduct of the appellant which would have allowed the trial judge to impose a more severe sentence; that appellant's trial counsel failed to sufficiently advise him as to the consequences of electing to have the jury assess punishment; and that, even though effectiveness of counsel is to be judged by the totality of the representation, this single error so permeated the proceedings that appellant's counsel was ineffective as a matter of law.

We granted the State's petition for discretionary review to examine the court of appeals' holding that a single error may constitute ineffective assistance as a matter of law and to review the State's contention that there was a tactical reason for appellant's election because there existed objective information of identifiable conduct by appellant occurring after his first trial sufficient to authorize a more severe sentence by the trial judge. We affirm the decision of the court of appeals.

In North Carolina v. Pearce, supra, a defendant, whose conviction was reversed on appeal, received a longer sentence from a judge on retrial than that originally imposed by a judge in the first trial. The Supreme Court held that it would be a violation of the Due Process Clause of the Fourteenth Amendment for a trial court to impose a harsher sentence upon a reconvicted defendant for the explicit purpose of punishing a defendant for successfully attacking his original conviction. Noting the difficulty in proving a retaliatory motive and actual vindictiveness in any given case, the Court found it necessary to establish a prophylactic rule to protect a defendant from the reasonable apprehension of vindictiveness that could deter him from appealing his conviction:

"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 the 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." (Footnote ommitted.)

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."

Id., 395 U.S. at 725-26, 89 S.Ct. at 2080-81. Since its inception, this Court has frequently applied the doctrine of Pearce. Lechuga v. State, 532 S.W.2d 581 (Tex.Cr.App.1976); Moore v. State, 527 S.W.2d 529 (Tex.Cr.App.1975); Bingham v. State, 523 S.W.2d 948 (Tex.Cr.App.1975); Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975); Payton v. State, 506 S.W.2d 912 (Tex.Cr.App.1974); Miller v. State, 472 S.W.2d 269 (Tex.Cr.App.1971). ¹ See also, Palm v. State, 656 S.W.2d 429 (Tex.Cr.App.1981).

In Chaffin v. Stynchcombe, supra, the Supreme Court reaffirmed the doctrine of Pearce where the punishment on retrial is assessed by the judge, but held that a higher punishment assessed by a jury at a second trial does not "offend the Due Process Clause so long as the jury is not informed of the prior sentence and the second sentence is not otherwise shown to be a product of vindictiveness." Id., 412 U.S. at 35, 93 S.Ct. at 1987. Both before and after Chaffin this Court has reached the same result. Weeks v. State, 521 S.W.2d 858 (Tex.Cr.App.1975); Fairris v. State, 515 S.W.2d 921 (Tex.Cr.App.1974); Atkins v. State, 515 S.W.2d 904 (Tex.Cr.App.1974); Curlin v. State, 505 S.W.2d 889 (Tex.Cr.App.1974); Fuery v. State, 464 S.W.2d 666 (Tex.Cr.App.1971); Casias v. State, 452 S.W.2d 483 (Tex.Cr.App.1970); Gibson v. State, 448 S.W.2d 481 (Tex.Cr.App.1970); Branch v. State, 445 S.W.2d 756 (Tex.Cr.App.1969).

Applying these constitutional principles to the case at bar, certain important considerations arise applicable to the punishment phase of appellant's trial. Under the presumption of vindictiveness established in Pearce, supra, if appellant elected to have the trial judge assess punishment on retrial, the maximum he could receive would be fifteen years confinement absent "objective information concerning identifiable conduct on the part of the [appellant] occurring after the time of the original sentencing proceeding." Under the rationale of Chaffin, supra, if appellant elected to have the jury assess punishment on retrial, upon proof of a prior felony conviction, the absolute minimum punishment he could receive would be fifteen years confinement under V.T.C.A. Penal Code, § 12.42(c), yet he would be exposing himself to possible confinement for life, or a term of not more than 99 years. Thus, absent identifiable conduct by appellant occurring after his original sentence, the minimum punishment which the jury could have imposed was the maximum punishment the trial court could have imposed. Appellant asserts that his trial counsel rendered ineffective assistance because he failed to sufficiently advise him of the consequences of electing to have the jury assess punishment. We agree.

At the evidentiary hearing held pursuant to the order of the court of appeals, appellant testified that, after he had been granted a new trial, he had heard from another inmate "that one of them [the judge or...