Palm v. State, 67133

Decision Date07 October 1981
Docket NumberNo. 67133,No. 3,67133,3
Citation656 S.W.2d 429
PartiesCharles Alvin PALM, Appellant, v. The STATE of Texas, Appellee
CourtTexas Court of Criminal Appeals

Don R. Cantrell, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., James C. Brough, and Ted Poe, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before TOM G. DAVIS, McCORMICK and TEAGUE, JJ.

OPINION

McCORMICK, Judge.

Appellant pled guilty in Harris County on November 14, 1979, to a charge of aggravated robbery. The trial court found appellant guilty and assessed punishment at twelve years in the Texas Department of Corrections.

The record reflects that on September 21, 1979, appellant had apparently pled guilty in cause number 302,991 to an aggravated robbery charge and pursuant to a plea bargain had been sentenced to ten years in the Texas Department of Corrections. It was later discovered that at the time of the entry of the September 21, 1979 plea there had been no valid charging instrument against appellant. He had not been indicted nor had he waived indictment nor had an information been filed. On October 1, 1979, appellant filed a motion for new trial which was granted by the trial court.

Appellant was thereafter indicted on October 16, 1979, for the aggravated robbery that had been the basis of the September 21 proceeding. This new indictment was cause number 304,319. On November 14, 1979, appellant was back in court for trial on the aggravated robbery indictment, cause number 304,319. The State again offered appellant the ten-year plea bargain. Appellant declined to accept the plea offer and pled guilty before the court. The State made no punishment recommendation. Introduced into evidence at this trial was evidence that appellant had a 1973 conviction for possession of marihuana. This was apparently not before the trial court at the initial plea proceedings in September. The State asked the court to consider the evidence before it that it had not previously considered. The trial court assessed punishment at twelve years' confinement.

Appellant initially complains that the guilty plea proceeding on November 14, 1979, placed him in double jeopardy. The jurisdiction of the trial court had not been invoked during the September 21, 1979 proceedings. If the jurisdiction of the trial court is never invoked, any conviction that may result is void. American Plant Food v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). Jeopardy will generally not attach if the trial court never had jurisdiction of the case. Ward v. State, 520 S.W.2d 395 (Tex.Cr.App.1975). See also, Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). Further, by making a motion for new trial, appellant was precluded from raising his double jeopardy argument. See, Martin v. Spradley, 341 F.2d 89 (5th Cir.1965); Jones v. State, 465 S.W.2d 768 (Tex.Cr.App.1971).

Next, appellant complains that the trial court lacked authority to grant a new trial on its own motion and cites the cases of Ramirez v. State, 587 S.W.2d 144 (Tex.Cr.App.1979), and Zaragosa v. State, 588 S.W.2d 322 (Tex.Cr.App.1979).

The record, however, reflects a motion for new trial was filed by appellant on October 1, 1979, and that it was granted on that date. Therefore, neither case cited by appellant is relevant.

Appellant next complains that the aggravated robbery indictment failed to allege an offense because it failed to specifically list what type of property had been taken. The indictment, in pertinent part, read:

"Charles Alvin Palm * * * did while in the course of committing theft of property owned by ...."

This same contention was rejected in Hill v. State, 568 S.W.2d 338 (Tex.Cr.App.1978).

Appellant next accuses the prosecutor of prosecutorial vindictiveness. This contention is without merit. The record shows that the State re-offered appellant his original bargain. He, not the State, rejected the re-offered plea bargain. Lyles v. State, 582 S.W.2d 138 (Tex.Cr.App.1979).

Finally, appellant complains that the trial court impermissibly increased the punishment after the finding of guilt on November 14, 1979, thereby violating appellant's due process rights.

The State argues that on November 14 the trial court had before it information it did not possess on September 21, 1979, specifically the 1973 marihuana conviction, and, therefore, could increase punishment.

In Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975), this Court dealt with a similar argument as now advanced by the State. In that case it was held that in order permissibly to increase punishment, the reason for the increase in the punishment set by the trial court must have occurred after the date of the original sentence. The United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), said:

"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 received 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." (Emphasis added). 395 U.S. at 725, 726, 89 S.Ct. at 2080, 2081.

If the marihuana conviction had occurred after September 21, 1979, the increase in the sentence would have been permissible. Since it was a 1973 conviction, the trial court could not use that as a basis for increasing punishment. Nothing in the record appears to have occurred after the original sentence that would justify an increased punishment.

The cause is remanded for the trial court to assess punishment in accordance with North Carolina v. Pearce, supra. See, Ex parte Bowman, supra.

TEAGUE, J., not participating.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

CLINTON, Judge.

On original submission, a panel of the Court remanded this cause to the trial court for a reassessment of punishment in accordance with North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The panel indicated that appellant had filed a motion for new trial attacking his ten year sentence, assessed pursuant to a plea bargain, then later declined the State's offer to again recommend a ten year punishment. The panel granted appellant relief from a twelve year sentence assessed by the trial court without a recommendation from the State, because the increased punishment was clearly due to a misdemeanor conviction extant at the time of the original sentencing.

In a stout motion for rehearing, the State Prosecuting Attorney urges our application of Ehl v. Estelle, 656 F.2d 166 (CA5 1981) 1 to the facts of this case; that motion has occasioned our careful review and reconsideration of the facts reflected by the record before us.

We first observe that the essence of Ehl is embodied in Texas law already. See Bouie v. State, 565 S.W.2d 543 (Tex.Cr.App.1978); and Alvarez v. State, 536 S.W.2d 357 (Tex.Cr.App.1976). Indeed the logic of Ehl's exegesis can hardly be assailed with feeling, viz: the rationale of North Carolina v. Pearce, supra, 2 and its progeny does not apply where the defendant--aware of the price of rejecting a plea offer--nevertheless subsequently withdraws his entered guilty plea or otherwise attacks the sentence after conviction; restated, a belated repudiation of a plea bargain places a defendant in the same posture as one who refuses to carry out his part of the bargain pretrial and serves to release the prosecutor from the obligation to carry out his part as well.

But the record in the instant case does not establish appellant repudiated the plea bargain; on the contrary it affirmatively indicates that appellant did in all respects carry out his part of the bargain, but was thereafter swept up in a whirlwind of the prosecutor's oversight, machinations, amendment of conditions, and ultimate frustration erupted into anger. In sum, there are several reasons why Ehl does not apply to the case before us.

Appellant Did Not Attack His Conviction

Appellant was arrested the day after he committed an aggravated robbery, and he readily confessed to the crime. The next day, a charging complaint issued bearing Cause No. 302,911. The following day, counsel was appointed and the parties appeared for trial. 3 There is no indication from the record that appellant agreed to, or was asked to waive indictment. The transcription of the hearing reflects appellant was admonished as to the range of punishment, though he was not advised that the court was not bound to follow the prosecutor's recommendation. In discussing the plea bargaining agreement with appellant, the court inquired,

"Do you personally agree to that plea bargaining agreement being aware that you have no right of appeal if I follow that... agreement?" 4

Appellant did agree.

He then entered his plea of guilty, and the prosecutor offered his judicial confession, agreement to stipulate and waiver of constitutional rights. 5 This document states in part: "I intend to enter a plea of guilty and the prosecutor will recommend that my punishment should be set...

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