McCullough v. State, No. 351-83

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: WHITE
• Citation: 720 S.W.2d 93
• Decision Date: 18 June 1986
• Docket Number: No. 351-83
• Parties: Sanford James McCULLOUGH, Appellant, v. The STATE of Texas, Appellee.

Page 93

720 S.W.2d 93 Sanford James McCULLOUGH, Appellant,
v.
The STATE of Texas, Appellee. No. 351-83. Court of Criminal Appeals of Texas,
En Banc. June 18, 1986.

Mark Laney, Plainview, 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 94

OPINION ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

WHITE, Judge.

The State successfully petitioned ¹ the United States Supreme Court for a writ of certiorari. 472 U.S. 1007, 105 S.Ct. 2699, 86 L.Ed.2d 716 (1985).

The Supreme Court, in reversing the judgment of this Court (on the State's motion for rehearing), held that under the facts of this case, there was no presumption of vindictiveness. Consequently, in this case, the North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), presumption was inappropriate. 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104, at 111 (1986).

Accordingly, the judgment of the trial court is affirmed.

TEAGUE, J., concurs in the result; however, he also agrees with the dissenting opinion that MARSHALL, J. of the Supreme Court filed in McCullough v. Texas, --- U.S. ----, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986).

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1 This Court originally heard this case on its own motion. McCullough v. State, 720 S.W.2d 89 (Tex.Cr.App., 1983).

Subsequently, we handed down an opinion on the State's motion for rehearing. McCullough v. State (Tex.Cr.App., Dec. 5, 1984). It is this opinion that was before the United States Supreme Court.