







 


IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0945-04


DENNIS HOOD, Appellant
 
v.


THE STATE OF TEXAS





ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW 
FROM THE SEVENTH COURT OF APPEALS
POTTER COUNTY


 Hervey, J., delivered the opinion of the Court in which Keller, PJ., Keasler,
Holcomb and Cochran, JJ., joined.  Meyers, J., filed a dissenting opinion.  Price, J.,
filed a dissenting opinion in which Johnson, J., joined.  Womack, J., not participating.

OPINION

 At issue is whether the government violated due-process principles by adding two
enhancement paragraphs to appellant's reindictment after appellant's conviction on the original
indictment was reversed on appeal.  We decide that no due-process violation occurred.
	Appellant was indicted in November 1994 for aggravated sexual assault of a child under
fourteen years of age.  This indictment contained no enhancement paragraphs.  A jury convicted
appellant of the offense charged in this indictment and assessed a sixty-five-year sentence.  The
Seventh Court of Appeals reversed this conviction and remanded "the cause for further proceedings"
on grounds not relevant to this opinion. (1)  The State subsequently reindicted appellant for the same
offense that was charged in the original indictment.  The reindictment included two enhancement
paragraphs that were not in the original indictment. (2)
	Appellant moved to quash the reindictment claiming that the prosecution vindictively added
the enhancement paragraphs because appellant had successfully appealed his conviction on the
original indictment. (3)  The trial court denied this motion based on the prosecutor's explanation that
the enhancements were "an omission from the very first indictment and should have been charged
from the beginning." (4)  Appellant presented no argument or evidence on why this explanation was
insufficient to defeat a prosecutorial vindictiveness claim.  After convicting appellant of the offense
charged in the reindictment, a jury found the enhancement paragraphs "true" and sentenced appellant
to life imprisonment. (5)
	Appellant claimed on direct appeal that the prosecution vindictively added the enhancement
paragraphs to the reindictment.  The Seventh Court of Appeals rejected this claim and decided that
the trial court did not abuse its discretion in deciding that the prosecutor's uncontroverted
explanation (which we have set out above) overcame any presumption of vindictiveness.  Hood v.
State, 2004 Tex. App. LEXIS 2570 slip op. at 7 (Tex. App.- Amarillo 2004) (not designated for
publication).  We exercised our discretionary authority to review this decision.  The grounds upon
which we granted discretionary review state:
	Did the Court of Appeals err in holding that the State was not vindictive when it
reindicted petitioner and added the two enhancement paragraphs?

	Can petitioner be reindicted for an offense greater than the offense for which he was
originally indicted?

	Was the State allowed to reindict petitioner after the original conviction was reversed
and remanded for a new trial without providing objective information to show why
the two enhancement paragraphs were added?

	Was the State allowed to retaliate against the petitioner for availing himself on direct
appeal?

	Was the petitioner's right under the due process [sic] violated by the use of two
enhancement paragraphs on the reindictment?[ (6)]
 
	When a defendant proves "that he was convicted, he appealed and obtained a new trial, and
that the State thereafter filed . . . additional enhancements," the burden shifts to the prosecution to
provide an explanation of the additional enhancements "that is unrelated to the defendant's exercise
of his legal right to appeal."  See Neal v. State, 150 S.W.3d 169, 173-74 (Tex.Cr.App. 2004); see
also Blackledge v. Perry, 417 U.S. 21, 28-29 (1974).  The trial court "decides the issue based upon
all of the evidence, pro and con, and the credibility of the prosecutor's explanation."  See Neal, 150
S.W.3d at 173-74.  This is entirely consistent with United States Supreme Court precedent.  See
United States v. Goodwin, 457 U.S. 368, 374 (1982) (presumption of vindictiveness may be
overcome by objective information justifying the increased sentence); see also Maddox v. Elzie, 238
F.3d 437, 446 (D.C. Cir.), cert. denied, 534 U.S. 836 (2001). 
	In the instant case, there is a presumption of prosecutorial vindictiveness because the
defendant was convicted, he successfully appealed, and the State thereafter filed additional
enhancements.  However, the trial court was entitled to believe the prosecutor's explanation that the
enhancement paragraphs were added to the reindictment because they were "an omission from the
very first indictment and should have been charged from the beginning," meaning that their absence
from the original indictment was an oversight or a mistake.   This objective explanation is "unrelated
to [appellant's] exercise of his legal right to appeal," (7) and is, therefore, sufficient to rebut a
presumption of vindictiveness.
	Relying on this Court's decision in Bouie v. State, appellant claims that the prosecutor did
not rebut a presumption of vindictiveness with Bouie's requirement of "identifiable conduct by
appellant occurring after the first trial."  See Bouie v. State, 565 S.W.2d 543, 547 (Tex.Cr.App.
1978). (8)  This statement from Bouie was based on a portion of the United States Supreme Court's
decision in North Carolina v. Pearce which stated that the reasons for an increased sentence must
be based on "objective information concerning identifiable conduct on the part of the defendant
occurring after the time of the original sentencing proceeding."  See North Carolina v. Pearce, 395
U.S. 711, 726 (1969).
	In Texas v. McCullough, (9) the Supreme Court rejected a vindictiveness claim.  In McCullough,
the defendant successfully moved for a mistrial after having been convicted and sentenced by a jury. 
See McCullough, 475 U.S. at 135-37.  After a jury again convicted the defendant on retrial, the
defendant chose to have the trial judge impose sentence and the trial judge imposed a greater
sentence than that imposed by the jury in the original trial.  See id.  This increased sentence on retrial
was not based on any of the defendant's conduct after the original trial.  See id.  For this reason, a
Texas Court of Appeals reluctantly decided that the defendant's increased sentence was invalid under
Pearce.  See McCullough, 475 U.S. at 135-37 and at 144.  On petition for discretionary review, this
Court apparently agreed.  See id. (10)
	The Supreme Court decided, however, that Pearce "was never intended to describe
exhaustively all of the possible circumstances in which a sentence increase could be justified" and
that "[r]estricting justifications for a sentence increase to only 'events that occurred subsequent to
the original sentencing proceedings' could in some circumstances lead to absurd results.  See
McCullough, 475 U.S. at 141 (emphasis in original).  Therefore, to the extent that it is inconsistent
with McCullough, Bouie must be overruled.  See State v. Guzman, 959 S.W.2d 631, 633-34
(Tex.Cr.App. 1998) (this Court required to overrule its federal constitutional decisions that conflict
with United States Supreme Court federal constitutional decisions).
	This disposes of appellant's argument that he presents here in support of his prosecutorial
vindictiveness claim.  We also note that appellant procedurally defaulted any claim that the
prosecution's "mistake or oversight" explanation isfactually insufficient to rebut a presumption of
prosecutorial vindictiveness because appellant did not make that specific claim in the trial court or
in this Court. (11)  We further note that some jurisdictions would decide that a "mistake or oversight"
explanation isfactually sufficient to rebut a presumption of prosecutorial vindictiveness (12) while other
jurisdictions would not so decide. (13)  The former treat a "mistake or oversight" explanation as an
"objective" explanation (14) while the latter treat it as a "subjective" explanation. (15)  This is an important
distinction because an objective explanation is required.  See Neal, 150 S.W.3d at 174 (requiring
objective evidence to rebut presumption of vindictiveness).
	We decide that a "mistake or oversight" explanation is an "objective explanation" that may
be sufficient to rebut a presumption of prosecutorial vindictiveness especially when as here, a
prosecutor does not merely deny his state of mind was motivated by vindictiveness. Cf. Batson v.
Kentucky, 476 U.S. 79, 98-99 (1986) (prosecutor cannot satisfy obligation to provide race-neutral
explanation for peremptory strike "merely by denying that he had a discriminatory motive").  Further
there was no indication that the oversight explanation was influenced by emotion or personal
opinion. (16)
	The judgment of the Court of Appeals is affirmed.

							Hervey, J.
Delivered: January 18, 2006
Publish
1.  See Hood v. State, 944 S.W.2d 743, 747 (Tex.App.-Amarillo 1997, no pet.).
2. 	Appellant faced a maximum sentence of life imprisonment with or without the enhancement
paragraphs.  See Tex. Pen. Code, § 22.021(e); Tex. Pen. Code, § 12.32.  The addition of the
enhancement paragraphs had the effect of increasing appellant's minimum sentence from five years
on an unenhanced aggravated sexual assault of a child offense to twenty-five years upon a finding
of "true" to the enhancements.  See id.; Tex. Pen. Code, § 12.42(d).  Arguably, the additional
enhancements did not harm appellant since neither of appellant's sentencing juries apparently
considered a minimum sentence.  But see Miracle v. Estelle, 592 F.2d 1269, 1276-77 (5th Cir. 1979)
(describing how this could support a prosecutorial vindictiveness claim); but also see Miracle v.
State, 604 S.W.2d 120, 125 (Tex.Cr.App. 1980) (asserting that Fifth Circuit's Miracle v. Estelle
decision was "chock full of factual misstatements and some misconceptions of the Texas substantive
law applicable to the case before it"). 
3. 	The record reflects that appellant filed a pro se pretrial motion to quash the reindictment. 
This lengthy motion contained various allegations of prosecutorial misconduct.  Among various
other things, this motion alleged that the "prosecutor was vindictive with the reindictment for
alleging two enhancement paragraphs to increase the minimum punishment."  During the pretrial
motions hearing, appellant's trial attorney did not present this motion to the trial court until reminded
to do so by appellant.

	[APPELLANT'S TRIAL COUNSEL]: All right.  Those are all the motions I have.

	[APPELLANT]: You didn't-you didn't identify the motion to quash the indictment.

	[APPELLANT'S TRIAL COUNSEL]: Oh. [Appellant] had previously filed, and I
did not include it within the trial motions, a separate motion to quash the indictment. 
The various grounds and arguments, one of which-let me see if I can try to
summarize them-that-that the State is-has vindictively reindicted him by adding
enhancement paragraphs which were not present in the original indictment and
therefore is, in essence, punishing him for exercise of his constitutional rights to seek
redress from the Court of Appeals and to insist upon a constitutionally fair trial.  And
so [appellant] has sought a motion to quash the indictment.  I believe that these have
been filed quite some time ago and they are in the Court's record.  They were filed
in April of this year. 
4. 	The prosecutor stated:

	Concerning the first argument, which was the fact that it was vindictive prosecution
to now allege two enhancement paragraphs, that is the State's option.  I was not the
prosecutor on the first case, as the Court is aware, however, I assure you from all of
my research and trial preparation that that was not the case.  That was not vindictive
reindictment adding enhancement paragraphs.  That was an option made-an option
decided upon by a prior prosecutor, and in speaking with her about the case, it was
not for vindictive reasons.  As a matter of fact, it was an omission from the very first
indictment and should have been charged from the beginning.  That's the State's
response, Your Honor.
5. 	This sentence on the reindictment (life), which is harsher than the one appellant received on
the original indictment (sixty-five years), does not implicate due-process principles.  See Colten v.
Kentucky, 407 U.S. 104, 112-19 (1972).
6. 	We answer in the negative the first and third through fifth grounds for review.  We dispose
of the second ground for review by deciding that appellant was not reindicted for an offense greater
than the offense for which he was originally indicted. 
7. 	See Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (emphasizing that due process
violation in prosecutorial vindictiveness cases "lay not in the possibility that a defendant might be
deterred from the exercise of a legal right" but "rather in the danger that the State might be retaliating
against the accused for lawfully attacking his conviction"); Neal, 150 S.W.3d at 173-74 (when
defendant proves that "he was convicted, he appealed and obtained a new trial, and that the State
thereafter filed a greater charge or additional enhancements[,]" burden shifts to prosecution to
[objectively] explain its charging increase "that is unrelated to the defendant's exercise of his legal
right to appeal").
8. 	In relevant part, appellant argues in his brief:

	But even if the prosecutor's statement acts as evidence, its content was insufficient
to satisfy Pearce and its progeny inasmuch as there was nothing that occurred after
the sentencing in the first trial that made the enhancements any more available than
at the first trial.  The enhancements were unconstitutionally utilized at [appellant's]
second trial to punish him for appealing his first conviction and, as such, his sentence
should be vacated and he should receive a new trial without the State having the
benefit of the enhancement paragraphs. 
9. 	475 U.S. 134 (1986).
10. 	See also McCullough v. State, 720 S.W.2d 89, 90-93 (Tex.Cr.App. 1983) (op. on reh'g),
rev'd, 475 U.S. at 144.
11. 	See Reyna v. State, No. PD-0255-04 slip op. at 5-12 (Tex.Cr.App., delivered June 29, 2005)
(discussing and applying "party responsibility" concept of error preservation).
12. 	See Hardwick v. Doolittle, 558 F.2d 292, 301 (5th Cir. 1977), cert. denied, 434 U.S. 1049
(1978) (explanations which would negate prosecutorial vindictiveness could include "mistake or
oversight in the initial action"); but see United States v. Krezdorn, 718 F.2d 1360, 1365 (5th Cir.
1983), cert. denied, 465 U.S. 1066 (1984) (suggesting that "mistake or oversight in the initial action"
may defeat a presumption of vindictiveness but would not be sufficient once a presumption of
vindictiveness arises); but then see United States v. Doran, 882 F.2d 1511, 1523 n.6 (10th Cir. 1989)
(noting that "as a conceptual matter it may be cleaner to only consider the prosecutor's explanation
for the new charges as rebuttal to a presumption of vindictiveness.  As a practical matter, however,
it would be a mere artifice not to consider explanations at the presumption stage which are readily
evident from the objective sequence of proceedings leading to the added charge"); also see United
States v. Walker, 514 F.Supp. 294, 312-25 (E.D. Louisiana 1981) (describing history of prosecutorial
vindictiveness jurisprudence and Fifth Circuit's application of it).
 Also see United States v. Taylor, 749 F.2d 1511, 1514 (11th Cir. 1985) ("mistake or
oversight" is sufficient explanation); United States v. Mahdi, 777 A.2d 814, 821 (D.C. Ct. App.
2001) ("administrative error" is sufficient explanation); Harris v. State, 481 N.E.2d 382, 385 (Ind.
1985) (suggesting that "honest mistake" is sufficient explanation). 

13. 	See United States v. Motley, 655 F.2d 186, 189-90 (9th Cir. 1981) ("carelessness" is
insufficient explanation); United States v. Andrews, 633 F.2d 449, 456 (6th Cir. 1980), cert. denied,
450 U.S. 927 (1981) (only objective, not subjective good faith, explanations are sufficient and
prosecutor's explanation that "she made a mistake is not, by itself, sufficient to rebut"); Gardner v.
State, 963 S.W.2d 590, 597 (Ark. 1998) (prosecutor's explanation that she made a "mistake" is not
an "objective explanation" for her actions).  
14. 	Webster's II New College Dictionary defines the term "objective" as, among other things,
"[h]aving actual existence or reality" or "[u]ninfluenced by emotion, surmise, or personal opinion." 
See Webster's II New College Dictionary 755 (1995). 
15. 	Webster's II New College Dictionary defines the term "subjective" as, among other things,
"[o]f, produced by, or resulting from an individual's mind or state of mind" or "[e]xisting only in
the mind."  See Webster's II New College Dictionary 1098 (1995).
16. 	We also note that a "we forgot" explanation does not rise to the definition of "vindictive." 
See Webster's II New College Dictionary 1232 (defining "vindictive" as "[i]nclined to seek revenge"
or "revengeful" or "[m]eant to cause pain or harm" or spiteful").  While some might consider a "we
forgot" explanation to be "lame," "lame" is not the same as these definitions of "vindictive."    
