Lechuga v. State

532 S.W.2d 581

• Court: Court of Criminal Appeals of Texas
• Decided: February 11, 1976
• Docket: 50426
• Status: Published

Opinions

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.