Payton v. State, 47651
| Decision Date | 20 March 1974 |
| Docket Number | No. 47651,47651 |
| Citation | 506 S.W.2d 912 |
| Parties | Leslie Edward PAYTON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Herbert Green, Jr., Dallas., for appellant.
Henry Wade, Dist. Atty., and John E. Rapier, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
RALEIGH BROWN, Commissioner.
The conviction which forms the basis for this appeal was aggravated assault on a child. The punishment was assessed by the court at one year in the county jail after a jury finding of guilty.
The sufficiency of the evidence has not been challenged.
The record reflects that this case has been tried twice. In the first trial the jury found the appellant guilty and the court sentenced him to thirty days in jail. A new trial was granted by the trial court and the same judge tried and sentenced the appellant in this the second trial.
Appellant urges that the increase in the punishment from thirty days in jail to one year in jail violates his constitutional rights. We agree.
The United States Supreme Court in North Carolina v. Pearce, 295 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656 (1969), has held:
In following Pearce this Court in Miller v. State, 472 S.W.2d 269 (Tex.Cr.App.1971) emphasized 'occurring after the time of the original sentencing proceeding.' Although the record in the case at bar established that the trial court exerted every effort to avoid the vindictiveness that Pearce was designed to prevent, the reasons given for imposing a more severe sentence upon appellant failed to include any 'based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.'
The other grounds of error have been considered and are overruled. The judgment is affirmed except as to punishment. The cause is remanded for the assessment of punishment by the...
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Jackson v. State
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