Lechuga v. State, 50426

Decision Date23 September 1975
Docket NumberNo. 50426,50426
Citation532 S.W.2d 581
PartiesDavid LECHUGA, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

William J. McGowan, II, Court-appointed, Brownfield, for appellant.

E. W. Boedeker, Dist. Atty., Levelland, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

On May 23, 1972, appellant plead guilty before the court to the offense of defrauding with a worthless check. Punishment was assessed by the court at three years. A motion for new trial was thereafter filed by appellant and granted by the court. On August 2, 1972, appellant again plead guilty before the court in this cause, and the court assessed punishment at five years. Appellant was then placed on probation, which was subsequently revoked. Appeal is taken from the order revoking probation.

Although not raised in appellant's brief, we observe constitutional error which should be reviewed in the interest of justice. Art. 40.09(13), V.A.C.C.P. Appellant, upon his second conviction in this cause, was assessed a greater punishment than that assessed upon his first conviction. Both proceedings were before the same trial judge, and no factual data appears in the record which would constitute a legitimate basis for increased punishment.

In Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975), the prerequisites for increased punishment upon retrial in a case such as the one before us were quoted from North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. It was there stated:

'. . . 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.'

Because the record contains neither reasons for the increase in punishment nor factual data upon which such an increase could have been based, the judgment of the court assessing punishment must be vacated. Ex parte Bowman, supra.

The dissents say five years, probated, is not a more severe sentence than three years. Actually, probation is no sentence at all: the five year sentence is not imposed at all, unless the probation is revoked. But whether imposition of sentence is suspended or not, the punishment assessed was 3 years at the first trial and 5 years at the second. Following revocation of probation the harsher sentence finally was imposed, and no reasons for its greater severity appear in the record.

The judgment, as to punishment, is reversed, and the cause is remanded for assessment of punishment by the trial court in accordance with North Carolina v. Pearce, supra.

DOUGLAS, Judge (dissenting).

The majority holds that a five years' probation is a greater punishment than three years' confinement in the Texas Department of Corrections. In doing so, it treats a year of probation as equivalent to a years' confinement.

The matter has not been raised by anyone except the majority of this Court in its own collateral attack upon the judgment of probation.

The majority apparently reasons that probation will be revoked after it is granted. If not, then it apparently reasons that it is possible that the punishment will be greater if probationer commits another or other crimes and the probation is revoked. This is not the case at the time punishment was assessed. The trial judge would not have granted probation if he thought that appellant would fail to live up to its conditions.

Under the law at the time this case was tried, the punishment of five years' probation could have been reduced or terminated after appellant had satisfactorily completed one third of the original probationary period. This, of course, is somewhat less than three years. See Art. 42.12, Sec. 7, V.A.C.C.P.

At the time of revocation, Art. 42.12, Sec. 8(a), V.A.C.C.P. provided that if probation were revoked, the court could have reduced the term of imprisonment to not less than the minimum prescribed for the offense for which he had been convicted.

From the above provisions of probation statutes, it was not mandatory that five years had to be served even if probation were revoked. The probation could have been set aside without serving any time.

Nearly every person charged except perhaps a professional criminal who accepts the risk of getting caught as a part of his business risk, would rather have five years probated than three years' confinement.

If there could be a question that a judgment of five years probated is less than three years' confinement, just ask the man who has one or ask a person who has just committed his first felony and been charged with that crime, or ask a lawyer who has represented first offenders.

North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, which holds that the same judge should not assess a greater punishment after a case has been reversed on appeal unless certain facts are shown, has been misconstrued and misapplied by the majority, because in the present case the trial judge assessed appellant a lesser punishment of probation at the time of trial.

In North Carolina v. Pearce, supra, the reason for not permitting a trial judge to assess a higher punishment after a defendant's cause had been reversed in an appellate court was to prevent a vindictive judge from penalizing a defendant for appealing. In the present case the judge showed compassion, not vindictiveness, in giving appellant probation and another chance.

Let us consider the facts of the case in connection with appellant's sole contention.

He was convicted May 23, 1972, for defrauding with a worthless check; his punishment was assessed at three years. His motion for new trial was granted August 2, 1972; he entered another plea of guilty and asked for probation. He was assessed a punishment at five years probated. Two of the conditions of probation were that he '(a) commit no offense against the laws of this State or any other State or the United States. (b) avoid injurious and vicious habits, and particularly not become intoxicated in a public place or operate a motor vehicle while under the influence of intoxicating liquors.'

On November 27, 1974, an amended motion to revoke probation was filed. It alleged that the terms and conditions of said probation have been violated as follows:

'a) That on or about the 20th day of October, 1974, David Lechuga, in Terry County, Texas knowingly and intentionally cause physical contact with another, to-wit: Mrs. Robert Robertson, when he, the said defendant knew and should have reasonably believed that the said Mrs. Robert Robertson would regard the said contact as offensive and provocative.

b) That on or about the 20th day of October, 1974, David Lechuga, in Terry County, Texas knowingly and intentionally cause physical contact with another, to-wit: Deola Lechuga, when he, the said defendant knew and should have reasonably believed that the said Deola Lechuga would regard the said contact as offensive and provocative.

c) That on or about the 20th day of October, 1974, David Lechuga, in Terry County, Texas with the intent to damage and destroy furniture and a telephone without the effective consent of Mrs. Robert Robertson, the owner thereof d) That on or about the 20th day of October, 1974, David Lechuga, was intoxicated in a public place in Terry County, Texas.

e) That David Lechuga on or about the 10th day of January 1974, in Lubbock County, Texas did then and there while in the course of committing theft of good and lawful United States Currency hereafter called the property from Mark Corley, with intent to obtain and maintain control of the property, knowingly and intentionally threaten and place Janette Hodges in fear of imminent bodily injury and death.'

A 'Judgment Revoking Probation' dated December 2, 1974, was entered.

It recited that appellant violated the terms of probation as follows:

'a) That on or about the 20th day of October, 1974, David Lechuga, in Terry County, Texas did knowingly and intentionally cause physical contact with another, to-wit: Deola Lechuga, when he, the said David Lechuga, knew and should have reasonable believed that the said Deola Lechuga would regard the said contact as offensive and provocative.

b) That on or about the 20th day of October, 1974, David Lechuga, in Terry County, Texas did damage and destroy furniture and a telephone without the effective consent of Mrs. Robert Robertson, the owner thereof.

c) That on or about the 20th day of October, 1974, David Lechuga, in Terry County, Texas was intoxicated in a public place in Terry County, Texas.'

Theresa Robertson testified that appellant had been married to her sister Deola, but they were divorced at the time in question. Deola and her children were at the Robertson house while appellant and Theresa's husband went to a club in Brownfield. Robert Robertson returned to the house at approximately 11:30 or 12:00 o'clock that night. Later appellant came to the house and knocked on the door. He was told to go away. He cursed and beat on the door. She went to the hall to call the officers. Appellant 'knocked the door in'. After entering, he dragged Deola out of bed and started striking her with his fists. Theresa again tried to call the officers, but appellant pushed her against the wall and was attempting to hit her when Deola stepped between them.

He then took Deola and the three children outside and stayed a few minutes. Robert Robertson tried to call the police, but appellant came back inside and pulled the telephone off the wall. He tore up the screen and...

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22 cases
  • Thomas v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
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    ...of this Court's opinion that five years' probation was more punishment than three years in the penitentiary. See Lechuga v. State, Tex.Cr.App., 532 S.W.2d 581 (1975). If the appellant had made an incriminating statement after he was stopped and not free to leave, would the majority hold the......
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