      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00196-CR



                              Gary Lavelle Richardson, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 67169, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Gary Lavelle Richardson, appellant, pleaded guilty to the offense of possession with

intent to deliver 400 grams or more of a controlled substance within 1000 feet of a school. See Tex.

Health & Safety Code Ann. § 481.112 (West 2010), § 481.134(c)(1) (West Supp. 2012). Appellant

was sentenced by the court, which assessed punishment at 45 years’ imprisonment. Appellant filed

a motion for new trial on punishment, which the trial court granted. After conducting a new

sentencing hearing, the court assessed punishment at 60 years’ imprisonment. In one issue, appellant

complains that the trial court erred by imposing on retrial a sentence higher than the one originally

imposed. We will affirm.


                     FACTUAL AND PROCEDURAL BACKGROUND

               After his motion to suppress evidence was denied, appellant pleaded guilty to the

offense of possession of over 400 grams of a controlled substance within 1000 feet of a school. At
the sentencing hearing, the trial court received the presentence investigation report and was referred

to probable cause affidavits in the court’s file. The State also reminded the court that the record of

the hearing on the motion to suppress evidence was part of the file. The court asked appellant’s

counsel if he would like to present evidence, and counsel indicated that appellant had friends and

family and stated that he “believe[d] if [he] called them they would testify that [appellant] is trying

to turn his life around.” Appellant’s counsel then proceeded to make a brief argument for leniency

but did not call any witnesses. In its argument, the State described appellant as a person “engaged

in the large scale distribution of cocaine.” The State then reminded the court of the evidence it heard

during the hearing on the motion to suppress evidence; specifically that appellant’s car was parked

illegally at the home of a suspected drug dealer near a middle school and that after he was detained

by the officers, appellant grabbed from his truck a green bag containing a bag of marijuana and over

400 grams of cocaine and ran through a neighborhood pursued by three officers. The State recounted

that once the police caught up to him, appellant did not surrender but fought with the police and bit

one of them on the arm. The State argued that appellant was not dealing small amounts of cocaine

but rather supplied drugs to the dealers themselves and asked the court to “set his punishment high.”

After hearing the arguments, the court sentenced appellant to 45 years’ imprisonment.

               Appellant was then appointed new counsel, who filed a motion for new trial on

punishment. Appellant asserted that he had received ineffective assistance of counsel at the

punishment hearing because his previous counsel did not properly investigate and prepare to present

evidence to the trial court. Specifically, appellant’s mother, who was present at the hearing, was not

called to testify about appellant’s background. Appellant also asserted that his previous counsel did



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not respond to his mother’s attempts to contact him and consequently he did not learn of other

character witnesses whose testimony could be beneficial to appellant, including his brother. The

court held a hearing on the motion for new trial at which appellant’s previous counsel testified that

he did not ask appellant’s mother about anything in appellant’s personal background that might

mitigate or reduce a sentence in the case. At the conclusion of the hearing, the trial court granted

the motion for new trial on punishment.

                At the new sentencing hearing, the State did more than simply refer to the presentence

investigation report and the probable cause affidavits. It called all four officers involved in arresting

appellant, each of whom gave a detailed account of the events. They described how appellant ran

through a neighborhood with a bag full of marijuana and cocaine. He jumped over several fences

with the officers pursuing him. One of the officers suffered a serious shoulder injury that required

surgery and six-months’ absence from work. When one of the officers caught up to appellant and

tackled him, appellant continued to struggle and was only brought under control when the other

officer sprayed him with pepper spray. During the struggle appellant bit one of the officers on the

arm. The State also elicited testimony from a detective with the Killeen Police Department’s

organized crime unit who identified the drugs taken from appellant, which were then admitted into

evidence. The detective testified that the drugs were packaged in such a way that indicated to him

they were cut from a brick and were in amounts that revealed they were being sold to dealers rather

than for individual consumption. After the State rested, appellant’s counsel called several witnesses,

including appellant’s mother, his brother, his spiritual guide, and a former business associate. While

each testified as to appellant’s good character, they also stated that they were unaware that he was



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involved with drugs or that he had an extensive criminal history. At the conclusion of the hearing,

the court assessed punishment at 60 years’ imprisonment.

               Counsel for appellant objected to the new sentence on the ground that no new

evidence was presented that justified the trial court’s imposing a longer sentence than she had

previously assessed. In his brief in support of his objection to the increased sentence, appellant cited

the “well-settled doctrine of ‘judicial vindictiveness’” according to which “the trial judge could not

sentence [appellant] to a greater term of years after a successful appeal unless there was objective

evidence in the record to support an increased sentence.” Appellant asserted that the higher sentence

was “vindictive and not supported by any new evidence of conduct on the part of the Defendant and

there was no new evidence presented by the State that could not have been presented at the original

sentencing that was within the knowledge of the prosecutor or could not have been found with due

diligence on the part of the State.”

               The court held a hearing on appellant’s objection to the higher sentence. At the

conclusion of the hearing, the court announced that it was going to stay with the 60-year sentence.

The court explained that she assessed the higher sentence because at the new trial on punishment

she heard detailed testimony from several witnesses regarding appellant’s actions on the day he was

arrested, including fleeing from the police and running through a neighborhood with a bag of drugs.

The court referred to the fact that she had seen the large amount of drugs appellant had in his

possession and how they were packaged. The court stated that the State’s evidence was much more

detailed than the presentence information report she saw at the first punishment hearing and that “the

court was overwhelmed with all of what I heard and what I saw by both sides.” The court explained



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that she weighed all the evidence, along with the presentence investigation report, and concluded that

a 60-year sentence was appropriate. Appellant then perfected this appeal.


                                           DISCUSSION

               In one issue, appellant asserts that the trial court erred in assessing a higher sentence

after the new trial on punishment. Relying on Ex parte Miller, 330 S.W.3d 610 (Tex. Crim. App.

2010), appellant states that imposing the higher sentence was error because there was no evidence

presented at the new trial on punishment that the trial court had not heard before or that the State

could not have presented at the original trial on punishment. In Miller, the court of criminal appeals

held that the defendant’s appellate counsel was ineffective because he failed to raise a point of error

on appeal that would have required the appellate court to vacate the sentence imposed and remand

the case for a new trial. 330 S.W.3d at 622. The court explained that this would have resulted in

the possibility of a lesser sentence being imposed and carried no risk of a greater sentence because

a greater sentence would be barred by the presumption of judicial vindictiveness unless the State

could introduce new objective information to justify an increased sentence. Id. at 632. To qualify

as “new” evidence, the evidence must have been “unknown to the state at the time of the first

punishment hearing and [] could not have been discovered by the state using due diligence at that

time.” Id.

               Although appellant asserts in his brief that he does not rely on any presumption of

vindictiveness, the requirement he relies on in seeking reversal—that there be “new” evidence to

justify imposing a higher sentence after a new trial on punishment—applies only when the

presumption of judicial vindictiveness exists. See North Carolina v. Pearce, 395 U.S. 711, 726

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(1969) (holding that more severe sentence imposed by same judge on retrial after appellate reversal

is presumed to be vindictive unless rebutted by “objective information concerning identifiable

conduct on the part of the defendant occurring after the time of the original sentencing proceeding”).

In the present case, however, because the trial court itself granted the motion for new

trial on punishment, no presumption of judicial vindictiveness arises. See Castleberry v. State,

704 S.W.2d 21, 24 (Tex. Crim. App. 1984) (“We conclude the rationale of Pearce does not and

cannot apply to the instant case simply because appellant never exercised his statutory or

constitutional right to review by a higher court.”). The Castleberry court observed that the rationale

of Pearce is that due process of law is violated if “a convict suffers an increase in punishment as

a direct result of his having exercised a constitutional or statutory right to present legal errors

to a higher court.” Id. at 23 n.3 (emphasis added). Thus, a presumption of vindictiveness

attaches only when the initial sentence was set aside on appellate review. See Alexander v. State,

No. 04-08-00050-CR, 2008 WL 4594995, at *2 (Tex. App.—San Antonio Oct. 15, 2008, no pet.)

(mem. op., not designated for publication) (“[T]he presumption of vindictiveness does not apply

unless the defendant exercises a statutory or constitutional right to review by a higher court.”);

Coleman v. State, No. 03-99-00103-CR, 2000 WL 351363, at *2 (Tex. App.—Austin Apr. 6, 2000,

no pet.) (mem. op., not designated for publication) (same); see also Texas v. McCullough,

475 U.S. 134, 138 (1986) (no basis for presumption of vindictiveness when second trial “came about

because the trial judge herself concluded that the prosecutor’s misconduct required it”). There is no

presumption of vindictiveness here. In the absence of such a presumption, there is no corresponding

requirement that the higher sentence be justified by evidence of conduct that occurred after the initial



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sentencing hearing or that could not have been discovered by the State using reasonable diligence

at that time.

                 In the absence of a presumption of vindictiveness, the State asserts that the trial court

need only set out adequate justification for the increased punishment. Assuming that it was required

to do so, the trial court explained at the hearing the reasons for increasing the sentence. Specifically,

the court expressed that it heard about appellant’s conduct in greater detail, including hearing

testimony from the officers involved regarding injuries inflicted on them by appellant and that even

when tackled by the officers he continued to struggle until subdued using pepper spray. The officers

testified that they pursued appellant and his bag of drugs through several privately owned properties

in a neighborhood near a middle school. The court also noted that rather than merely read about the

amount of drugs in appellant’s possession, she was able to see them at the new trial on punishment.

Essentially, the trial court stated that the testimony and exhibits presented a fuller picture of the

seriousness of appellant’s actions both in dealing large amounts of cocaine and in fleeing the officers

and causing injuries to two of them. We hold that the trial court set out sufficient grounds to justify

increasing appellant’s sentence after granting the new trial on punishment. We overrule appellant’s

sole appellate issue.


                                            CONCLUSION

                 Having overruled appellant’s only appellate issue, we affirm the judgment

of conviction.




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                                           _____________________________________________

                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Goodwin and Field

Affirmed

Filed: February 12, 2013

Do Not Publish




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