McCullough v. State, No. 351-83

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtTHOMAS G. DAVIS; ODOM
Citation720 S.W.2d 89
Decision Date07 December 1983
Docket NumberNo. 351-83
PartiesSanford James McCULLOUGH, Appellant, v. The STATE of Texas, Appellee.

Page 89

720 S.W.2d 89
Sanford James McCULLOUGH, Appellant,
v.
The STATE of Texas, Appellee.
No. 351-83.
Court of Criminal Appeals of Texas,
En Banc.
Dec. 7, 1983.
Rehearing Denied Dec. 5, 1984.
Second Rehearing Denied Feb. 20, 1985.

Ed McConnell, Amarillo, for appellant.

Randall L. Sherrod, Dist. Atty. and Deane C. Watson, Asst. Dist. Atty., Canyon, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

Page 90

OPINION ON DISCRETIONARY REVIEW ON THE COURT'S OWN MOTION

THOMAS G. DAVIS, Judge.

Appellant was convicted of murder in September 1980 and assessed punishment at 20 years confinement by the jury. Subsequently appellant's motion for new trial was granted and upon re-trial, appellant was again found guilty by a jury. Appellant elected to have the court assess punishment at the second trial, and the trial judge, who had presided at the first trial, assessed punishment at 50 years confinement. On appeal, the Amarillo Court of Appeals found that the increased punishment assessed by the court violated the principles of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). 1 The Court did not remand the case but instead granted appellant's requested reformation of the punishment to 20 years. See McCullough v. State. We granted review on our own motion under Art. 44.45(a), V.A.C.C.P. to determine the authority of the Court of Appeals to reform the punishment.

Art. 44.24(b), V.A.C.C.P., provides:

"(b) The courts of appeals and the Court of Criminal Appeals may affirm the judgment of the court below, or may reverse and remand for a new trial, or may reverse and dismiss the case, or may reform and correct the judgment or may enter any other appropriate order, as the law and nature of the case may require."

In Bogany v. State, 661 S.W.2d 957 (Tex.Cr.App.1983), we held that the authority of a court on appeal to reform a judgment under Art. 44.24, supra, does not extend to the situation where the error involves punishment unauthorized by law. A judgment or sentence may only be reformed "to cause those instruments to reflect the true finding of the fact finder when such a finding is reflected in the verdict or, in a bench trial, the pronouncement of the court's finding." Milczanowski v. State, 645 S.W.2d 445, 447 (Tex.Cr.App.1983).

In the instant case the judgment of the trial court assessing 50 years confinement was found by the Court of Appeals to be unauthorized under North Carolina v. Pearce, supra. As such, the Court of Appeals was unable to reform the punishment and should have remanded the cause to the trial court for the proper assessment of punishment. 2

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

OPINION ON STATE'S MOTION FOR REHEARING ON PETITION FOR

DISCRETIONARY REVIEW

ODOM, Judge.

The question presented on state's motion for rehearing is whether the presumption of vindictiveness established by North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), when a greater sentence is imposed following retrial, is applicable where a jury assesses punishment at the first trial, and a judge assesses punishment upon retrial.

In Pearce, a defendant who obtained a reversal of his conviction on appeal received a longer sentence from a judge on retrial than that originally imposed by the judge in the first trial. The United States Supreme Court stated that it would be a violation of the Due Process Clause of the Fourteenth Amendment for a trial court to impose a heavier sentence upon a reconvicted defendant "for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set

Page 91

aside." 89 S.Ct. at 2080. The Court noted, however, that "[t]he existence of a retaliatory motivation would, of course, be extremely difficult to prove in any individual case." Id., n. 20. Thus the Court found it necessary to establish a prophylactic rule to protect defendants from actual vindictiveness as well as from the reasonable apprehension of vindictiveness that could deter a defendant from appealing a 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."

"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., 89 S.Ct. 2080, 2081.

Simply stated, the rule of Pearce is that a greater sentence given by a judge after a new trial is presumptively vindictive, and...

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8 practice notes
  • Jackson v. State, No. 115-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 24, 1985
    ...law and to the administration of justice. For these additional reasons, I dissent. --------------- 1 Recently, in McCullough v. State, 720 S.W.2d 89 (Tex.Cr.App.1984) (Opinion onRehearing), cert. granted 472 U.S. 1007, 105 S.Ct. 2699, 86 L.Ed.2d 716 (1985), we reaffirmed our decision in Mil......
  • Wiltz v. State, No. 688-92
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 12, 1993
    ...an appeal from a lower court. Colten v. Kentucky, Page 467 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). In McCullough v. State, 720 S.W.2d 89 (Tex.Cr.App.1983), we held the presumption applied where the same trial judge granted McCullough's request for a new trial and assessed a puni......
  • Texas v. Cullough, No. 84-1198
    • United States
    • United States Supreme Court
    • February 26, 1986
    ...justifying the increased sentence," United States v. Goodwin, 457 U.S. 368, 375, 102 S.Ct. 2485, 2489, 73 L.Ed.2d 74. Pp. 141-144. 720 S.W.2d 89 (Tex.Cr.App.1983), reversed and remanded. BURGER, C.J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., ......
  • Jackson v. State, No. 115-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 23, 1988
    ...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 The United States Supreme Court granted certiorari and held that the Due Process Clause was not violated by the trial judge's imposition of......
  • Request a trial to view additional results
8 cases
  • Jackson v. State, No. 115-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 24, 1985
    ...law and to the administration of justice. For these additional reasons, I dissent. --------------- 1 Recently, in McCullough v. State, 720 S.W.2d 89 (Tex.Cr.App.1984) (Opinion onRehearing), cert. granted 472 U.S. 1007, 105 S.Ct. 2699, 86 L.Ed.2d 716 (1985), we reaffirmed our decision in Mil......
  • Wiltz v. State, No. 688-92
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 12, 1993
    ...an appeal from a lower court. Colten v. Kentucky, Page 467 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). In McCullough v. State, 720 S.W.2d 89 (Tex.Cr.App.1983), we held the presumption applied where the same trial judge granted McCullough's request for a new trial and assessed a puni......
  • Texas v. Cullough, No. 84-1198
    • United States
    • United States Supreme Court
    • February 26, 1986
    ...justifying the increased sentence," United States v. Goodwin, 457 U.S. 368, 375, 102 S.Ct. 2485, 2489, 73 L.Ed.2d 74. Pp. 141-144. 720 S.W.2d 89 (Tex.Cr.App.1983), reversed and remanded. BURGER, C.J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., ......
  • Jackson v. State, No. 115-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 23, 1988
    ...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 The United States Supreme Court granted certiorari and held that the Due Process Clause was not violated by the trial judge's imposition of......
  • Request a trial to view additional results

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