                                   NUMBER 13-07-00382-CR

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                                           Appellant,

                                                      v.

RODOLFO DELGADO,                                                                              Appellee.


   On appeal from the 139th District Court of Hidalgo County, Texas.


                               MEMORANDUM OPINION

                Before Justices Yañez, Rodriguez, and Benavides
                  Memorandum Opinion by Justice Benavides

        The State of Texas appeals an order dismissing a two-count indictment against

appellee, Rodolfo Delgado, charging him with evading arrest and misuse of official

information. See TEX . CODE CRIM . PROC . ANN . art. 44.01(a) (Vernon Supp. 2008); TEX .

PENAL CODE ANN . §§ 38.04, 39.06 (Vernon 2003). By two issues,1 the State argues that


        1
          By issue one, the State argues that Delgado failed to m eet his burden to prove vindictive prosecution
and that the State abused the grand jury process. By issue two, the State argues that Delgado failed to prove
a selective prosecution claim .
the trial court erred by granting Delgado’s “Motion to Dismiss Indictment for Outrageous

Government Conduct,” in which Delgado argued, among other things, that he was indicted

in retaliation for filing a civil suit against the City of Edinburg and several of its police

officers. We affirm.

                                             I. BACKGROUND 2

        On September 21, 2002, Delgado was arrested for driving while intoxicated (“DWI”)

and for evading arrest.3 Officer Edgar Rivas, a patrolman with the City of Edinburg Police

Department, conducted the traffic stop and the arrest. Officer Rivas transported Delgado

to the police department where Delgado was “booked” and his personal effects catalogued.

A “booking sheet” was filled out, and it did not indicate whether Delgado had any money

on his person at the time of the arrest. Officer Rivas, however, acknowledged that Delgado

did have money in his wallet. The parties dispute whether this money was returned to

Delgado when he was released from police custody. Delgado complained about the

missing money by filing a motion in his prosecution for DWI. No criminal investigation was

performed by the police department, and no action was taken in the DWI prosecution to

return the allegedly missing money.

        Additionally, at the time of the arrest, the police dispatcher ran a criminal history

background check on Delgado. The criminal history that was reported by the department

of public safety in Austin, Texas, indicated that Delgado had been arrested and convicted



        2
         As noted above, this appeal arises from the trial court’s dism issal of a two-count indictm ent against
Delgado. The facts and testim ony recited herein are derived from hearings the trial court held over several
days on Delgado’s m otion to dism iss the indictm ent.

        3
           Delgado’s DW I charge was dism issed on speedy trial grounds on January 24, 2005, and the
dism issal was affirm ed by this Court. See State v. Delgado, No. 13-05-00083-CR, 2007 W L 2199642 (Tex.
App.–Corpus Christi Aug. 2, 2007, pet. ref’d).

                                                       2
on three prior occasions for DWI and had been arrested once for “family offenses,”

although these offenses were not described in detail. Officer Renee Hernandez, a police

officer with the Edinburg Police Department, incorporated this information into a

supplemental offense report. At some time in 2002, Delgado obtained this report, although

it is disputed how the report came into Delgado’s possession. Delgado contends, and the

State does not contest, that the information contained in this report referred to another

person with the same name as Delgado.

       On November 13, 2002, Officer Rivas appeared before a grand jury to present

testimony regarding Delgado’s alleged attempt to evade arrest on September 21, 2002.

Officer Rivas detailed the traffic stop and arrest to the grand jury. Sofia Arizpe, the

assistant district attorney in charge of presenting cases to grand juries in Hidalgo County

at that time, testified that Delgado also appeared before the grand jury in 2002. Arizpe

stated that Delgado told the grand jury that he had received the supplemental offense

report with the false criminal history information. She explained that offense reports are

not public information if there is a criminal investigation pending and that criminal

defendants are not entitled to possess the supplemental offense report until trial. Although

Arizpe knew that Delgado should not have access to that document, she admitted she did

not confiscate it, and no charges were brought as a result of Delgado’s possession of the

supplemental police report.

       The 2002 grand jury returned a no-bill on the evading arrest charge. See TEX . CODE

CRIM . PROC . ANN . art. 20.19 (Vernon 2005) (providing that nine members of the grand jury

must concur in finding the bill). After the grand jury failed to indict him, in September 2004,




                                              3
Delgado filed a civil suit in federal court against Officer Rivas and others.4 Delgado alleged

that Officer Rivas stole money from him on the night he was arrested and verbally and

physically abused him. Delgado attached the supplemental police report as an exhibit to

his civil complaint, claiming that the police department had fabricated the criminal history

information as part of an alleged conspiracy against him.

        In December 2004, after Delgado filed his civil suit, Arizpe was conducting

proceedings before another Hidalgo County grand jury. Arizpe testified that at that time,

the grand jury was not considering an indictment against Delgado, nor was any criminal

investigation pending with the District Attorney’s office. Arizpe testified, however, that on

December 8, 2004, she received a phone call from an attorney she identified as Robert

Rex Williams, informing her that Officer Rivas wished to speak to the grand jury about

Delgado. She could not recall who Williams said he represented. Arizpe stated that she

asked the grand jury if they would like to hear from Officer Rivas, and the grand jury

consented.

        Officer Rivas explained that he had heard that the first grand jury had returned a no-

bill against Delgado and that a second grand jury had convened. Although Officer Rivas

at first claimed that he “may have” spoken to his lawyer about appearing before the grand

jury, he later admitted that he had called to ask his attorney for advice because he heard

a second grand jury had been empaneled, and he wanted to appear.



        4
            The record does not contain a copy of the civil com plaint. However, Officer Rivas described the civil
suit in his testim ony before the grand jury on Decem ber 9, 2004. He testified that the lawsuit was filed against
him , other m em bers of the police departm ent, the City of Edinburg Police Departm ent, the m ayor of Edinburg,
and the Edinburg City Manager. Officer Rivas believed the civil suit alleged civil rights violations, including
that Officer Rivas verbally and physically abused Delgado and stole m oney from him while in police custody.
It further alleged that the police departm ent and its m em bers “conspired against [Delgado] to get him in
trouble, basically.” The State does not dispute Officer Rivas’s characterization of the civil suit.

                                                        4
       When asked why he wanted to appear, Officer Rivas explained that he “was not

happy with the first outcome” and believed he could “go and get a second chance.” He

clarified that he was unhappy that the first grand jury had failed to indict Delgado. He

conceded that by the time he testified before the second grand jury, Delgado had sued him

civilly, but he denied that the civil suit was the reason he approached the second grand jury

to testify against Delgado. He claimed he did not believe that appearing before the grand

jury would help him in the civil suit. Instead, he claimed he was merely seeking “justice.”

He admitted that he did not have any new evidence to present against Delgado.

       On the contrary, Arizpe testified that initially, she believed that Officer Rivas wanted

to appear before the grand jury because he had been sued by Delgado:

       [Defense counsel]: But you’re telling us today under oath that [Officer
                          Rivas] was upset because of allegations of misconduct
                          in that lawsuit and that's why he wanted to be there?

       [Arizpe]:             That was—when this case was originated that was my
                             understanding.

       [Defense counsel]: All right.

       [Arizpe]:             Okay. And I thought that it was not towards the end of
                             his testimony. Because I understood when he spoke to
                             me that he was upset because the offense report was
                             being used to sue him on this matter. So when I
                             entered the grand jury room, I entered the grand jury
                             room with an understanding that that's going to be the
                             key issue right there. And that's why I had asked
                             him—okay, tell me what it is you're complaining about?
                             Because all along—you know, when he goes into the
                             grand jury and then he starts talking about the evading
                             again. And I thought towards the end—I asked him
                             again, you know, about the other information with
                             reference to the lawsuit because I thought that's what it
                             was about.

       Officer Rivas and several others testified before a grand jury on December 9, 2004,


                                              5
and again on February 17, 2005. Officer Rivas again testified in detail about the 2002

traffic stop and also about the civil lawsuit Delgado filed against him. Arizpe questioned

several police officers from the Edinburg Police Department about how Delgado came into

possession of the supplemental offense report that was attached to Delgado’s civil petition.

       The grand jury asked Arizpe to prepare an indictment of all possible charges, and

she prepared a two-count indictment including evading arrest as Count 1 and misuse of

official information as Count 2.         She testified that Delgado’s possession of the

supplemental police report was the basis for the charge of misuse of official information

in Count 2. The grand jury returned a true bill and presented the indictment as prepared

by Arizpe.

       The district attorney’s office pursued the prosecution against Delgado, and before

trial, Delgado filed a “Motion to Dismiss Indictment for Outrageous Government Conduct.”

He alleged that the indictments were sought in retaliation for the exercise of his

constitutional right to seek redress for the injuries he suffered by filing the civil lawsuit, and

thus, the indictment constituted vindictive prosecution in violation of his due process rights.

After hearing testimony and arguments over several days, visiting judge Joaquin Villarreal

granted the motion as to both counts of the indictment. This appeal ensued.

                                      II. APPLICABLE LAW

       It is well settled that prosecutors enjoy “broad discretion in deciding which cases to

prosecute,” and it is presumed that prosecutors exercise that discretion in good faith. Neal

v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004). However, “a decision to prosecute

violates due process when criminal charges are brought in retaliation for the defendant's

exercise of his legal rights.” Id. Thus, the presumption that a prosecution was undertaken


                                                6
in good faith gives way when the defendant proves “prosecutorial vindictiveness”—that the

charges were brought in retaliation for the exercise of a protected legal right. Id.

       Prosecutorial vindictiveness may be established by showing either: (1) “proof of

circumstances that pose a ‘realistic likelihood’ of such misconduct sufficient to raise a

‘presumption of prosecutorial vindictiveness,’ which the State must rebut or face dismissal

of the charges”; or (2) proof of "‘actual vindictiveness’—that is, direct evidence that the

prosecutor's charging decision is an unjustifiable penalty resulting solely from the

defendant's exercise of a protected legal right.” Id. (citing United States v. Goodwin, 457

U.S. 368, 380-81 (1982); United States v. Johnson, 171 F.3d 139, 140-41 (2d Cir.1999)).

When a presumption of vindictiveness applies, the burden shifts to the State to justify its

conduct with “objective evidence in the record” explaining the prosecutor’s decision, and

this explanation must be independent from the defendant’s exercise of his legal rights. Id.

at 174. “The trial court decides the issue based upon all of the evidence, pro and con, and

the credibility of the prosecutor's explanation.” Id.

       When the defendant’s evidence does not invoke the presumption, however, the

defendant bears the burden to establish “actual vindictiveness” by presenting “objective

evidence” that “the prosecutor's charging decision was a ‘direct and unjustifiable penalty’

that resulted ‘solely from the defendant's exercise of a protected legal right.’” Id. (quoting

Goodwin, 457 U.S. at 384 & n.19). This is a very difficult burden that is rarely, if ever, met.

Goodwin, 457 U.S. at 384 n.19.

                                      III. DISCUSSION

       Delgado argues that the presumption of vindictiveness applies to this case, and it

required the State to put forth an objective explanation for its actions, which he claims the


                                              7
State failed to do. In the alternative, Delgado argues that there is objective evidence

establishing actual vindictiveness. The State, on the other hand, argues that this is not the

type of case to which a presumption of vindictiveness can be applied. Furthermore, the

State argues that there is no evidence of actual vindictiveness.

A.     Does the presumption apply?

       The State argues that a presumption of vindictiveness applies only when the State

pursues increased charges or an enhanced sentence after a defendant successfully

appeals a conviction and obtains a new trial. In other words, the State believes that the

only “right” protected by the due process clause in these circumstances is the right to an

appeal. We disagree.

       In United States v. Goodwin, the Supreme Court considered whether to apply a

presumption of vindictiveness in a pre-trial setting. Id. at 372-85.      In that case, the

defendant was charged with a misdemeanor and exercised his right to a jury trial. Id. at

370-71. Thereafter, the prosecutor obtained a felony indictment against the defendant for

the same conduct. Id. at 371. After the defendant was convicted, he moved to set aside

the verdict, alleging that the felony charge gave the appearance of vindictive prosecution

because it punished him for exercising his right to a jury trial. Id.

       The Court summarized its prior case law and clarified the circumstances under

which it will apply a presumption of vindictiveness. Id. at 372-85. Because of the difficulty

of discerning motives, the Court noted it is necessary to imply improper motives in certain

circumstances where a prosecution follows the exercise of a legal right, even though an

actual vindictive motive may not exist. Id. at 373.

       When determining whether to apply a presumption of vindictiveness, the Court has


                                              8
considered many different factors, but the ultimate determination is always based on

whether there is a realistic likelihood of vindictiveness. Id. at 384. The Goodwin Court

focused on two factors in particular. First, while not dispositive, the Court has looked at

whether “opportunities” for vindictiveness exist in the prosecutorial decision-making

process, including whether the prosecutor has a “stake” in the prosecution. Id. at 376

(quoting Blackledge v. Perry, 417 U.S. 21, 27-28 (1974)). For example, in Blackledge, the

Court determined that the prosecutor had a significant stake in deterring the exercise of

an appeal by a defendant, which would increase expenditures of resources by the

prosecution and could result in a previously convicted defendant going free. See id. (citing

Blackledge, 417 U.S. at 27-28). The Court referred to this justification as “institutional bias

inherent in the judicial system against the retrial of issues that have already been decided.”

Id.

       Additionally, in the pre-trial setting, the Court has considered whether the accused

was on equal footing with the prosecution at the time the procedural or legal right was

raised.   For example, in Bordenkircher, the Court considered whether to apply a

presumption of vindictiveness to a prosecution’s decision to pursue additional charges after

the defendant refused to plead guilty to the charged offense.              Id. at 377 (citing

Bordenkircher v. Hayes, 434 U.S. 357, 362 (1978)). The Court held that the equality of

bargaining power in the plea negotiation process distinguished the case from the Court’s

earlier decisions, which had involved unilateral charging decisions by the prosecution. Id.

at 377-78 (citing Bordenkircher, 434 U.S. at 362). The Court in Bordenkircher explained

that the “due process violation . . . ‘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


                                              9
be retaliating against the accused for lawfully attacking his conviction.’” Id. at 378 (quoting

Bordenkircher, 434 U.S. at 363). Because the accused is free to reject the plea bargain,

the Court held there was no threat of “punishment” for refusing to plead guilty. Id. The

Court in Goodwin noted that the decision in Bordenkircher was based on the Court’s

acceptance of plea negotiation as a legitimate process. Id.

       Applying its prior precedent, the Court in Goodwin declined to apply a presumption

of vindictiveness. Id. at 380-81. First, it noted that during pre-trial proceedings, the

“prosecutor’s assessment of the proper extent of prosecution may not be crystallized,”

whereas once a trial has been conducted, it is much more likely the State has completed

its evaluation. Id. at 381. Thus, it is more likely that a change in the charging decision

made after an initial trial was based on vindictive reasons. Id.

       Second, the Court expected that defendants will exercise procedural rights before

trial that “inevitably impose some ‘burden’ on the prosecutor.” Id. For example, defendants

routinely file pretrial motions to suppress evidence, request access to government files,

and request a trial by jury. Id. Thus, the Court held that the timing of a prosecutor’s

actions in the pre-trial setting in that case, after a defendant requested a jury trial, did not

warrant a presumption of vindictiveness. Id.

       This case is certainly different from the facts in Goodwin and the cases discussed

therein, and it presents a unique set of circumstances. See id. In fact, we have located

an identical fact pattern in only one Texas court of appeals opinion. In Neal v. State, the

Texarkana Court of Appeals faced a situation where the defendant was initially charged

with possession of a weapon while incarcerated in the Rusk County jail. See 117 S.W.3d

301, 306-08 (Tex. App.–Texarkana 2003), rev’d on other grounds, 150 S.W.3d 169 (Tex.


                                              10
Crim. App. 2004). That charge was dismissed. Id. The defendant then brought a civil

lawsuit against Rusk County based on actions taken against him while he was in jail. Id.

After the defendant won that lawsuit, the prosecutor reindicted the defendant for the same

crime. Id.

       The court of appeals noted that the most common scenario raising a claim of

vindictive prosecution involves re-prosecutions or re-indictments following successful

appeals. Id.; see Ortegon v. State, 267 S.W.3d 537, 540-42 (Tex. App.–Amarillo 2008,

pet. ref’d). The court noted that although the facts did not “fit neatly with most prosecutorial

vindictiveness cases,” the filing of more serious charges after the exercise of a procedural

right invokes the presumption of vindictiveness. Neal, 117 S.W.3d at 308. The court held

that the defendant “went from having no charge to the new indictment at this critical point,”

and found the new indictment “analogous to the ‘more serious charge’ concept,” which

“invokes the presumption of vindictiveness.” Id.

       While Neal lacks analysis in some respects, we believe the holding is sound, and

its logic has not been examined or rejected by the Texas Court of Criminal Appeals. Id.;

see Neal, 150 S.W.3d at 180 (holding that defendant failed to preserve issue of vindictive

prosecution without addressing the merits of the argument). Applying the principles in

Goodwin, we hold that a realistic likelihood of vindictiveness exists based on these facts.

First, there is an opportunity for vindictiveness, given that the State has a stake in the

outcome of the civil litigation.     The State relies on its police officers to perform

investigations into criminal matters, and it is certainly in the State’s best interest if its

investigators are not distracted by civil suits based on those investigations. Thus, while we

are not holding that the State actually sought to deter Delgado from pursuing his civil suit


                                              11
by seeking an indictment, the opportunity to do so existed.

       Second, the State is not on equal footing with the accused in these circumstances.

The outcome of the criminal case can certainly affect the outcome of the civil litigation,

particularly if the charges result in a felony conviction of the civil plaintiff. A felony

conviction could be used to impeach the civil plaintiff’s credibility. See TEX . R. EVID . 609(a)

(allowing impeachment of a witness by felony conviction). No such consequence flows

against the civil defendants or the State.

       Third, this case is not similar to Goodwin, where the defendant asserted his right to

trial by a jury, which is an important right, but is nevertheless a routine procedural

maneuver in criminal cases. Goodwin, 457 U.S. at 381. While we perceive some risk that

a criminal defendant could file a civil lawsuit before an indictment is presented, we believe

that such a risk is de minimus, particularly given the existing remedies for frivolous

lawsuits. See, e.g., TEX . R. CIV. P. 13. Allowing a presumption of vindictiveness in these

circumstances would not impede prosecutions because the filing of a civil suit is not a

routine procedural maneuver in criminal cases.

       Here, the first grand jury was asked to indict Delgado for evading arrest, and it

returned a no-bill. Even though the district attorney was aware that Delgado possessed

the supplemental offense report and that such possession may be improper, no charges

were brought. Thereafter, the district attorney’s office did not pursue additional charges

against Delgado on any grounds. Delgado asserted that he was verbally and physically

assaulted by Officer Rivas and that money was taken from him during his arrest. He also

alleged that the Edinburg Police Department fabricated the criminal history as part of a

conspiracy against him. He sought a remedy for these injuries by filing a civil suit against


                                               12
Officer Rivas and others. See Ca. Motor Transport Co. v. Trucking Unlimited, 404 U.S.

508, 510 (1972) (holding that an individual's right of access to courts is protected by the

First Amendment's clause granting an individual's right to petition the government for

grievances); Russoli v. Salisbury, 126 F. Supp. 2d 821, 854 (E.D. Pa. 2000). Shortly

thereafter, Officer Rivas approached the grand jury and sought a second chance to indict

Delgado, and Delgado was indicted based on Officer Rivas’s testimony. The State then

proceeded with the prosecution.

         We hold that the trial court properly applied a presumption of vindictiveness.5 We

pause to note, however, that when a court applies a presumption of vindictiveness, it is by

no means making a determination that there was actual vindictiveness, which is an entirely

separate inquiry. Raetzsch v. State, 709 S.W.2d 39, 40 (Tex. App.–Corpus Christi 1986,

pet. ref’d) (“[T]he task of the reviewing court is to analyze the appearance of vindictiveness

from the facts of each case, not to inquire into the motives of the prosecutor.”). The same

is true here—we express no opinion, and we do not intend to imply, that the State actually

harbored ill will towards Delgado. The presumption exists to protect defendants from the

mere appearance of an unconstitutional prosecution. See United States v. Jenkins, 504

F.3d 694, 700 (9th Cir. 2007) (“The mere appearance of prosecutorial vindictiveness

suffices to place the burden on the government because the doctrine of vindictive


         5
           Alm ost as an afterthought, the State suggests that Delgado is not entitled to the presum ption
because he “never attem pted to prove and never even argued that this presum ption applied to his case.” W e
note that the State does not explain this argum ent and does not support it with any authority. In fact, the
Texas Court of Crim inal Appeals has noted that if a defendant raises a due process argum ent based on
vindictive prosecution in a pre-trial m otion to dism iss, this m otion is sufficient to put the State on notice that
it m ust rebut the claim . See Neal v. State, 150 S.W .3d 169, 179 (Tex. Crim . App. 2004). Delgado filed a
proper pretrial m otion raising this issue. In his brief in support of his m otion to dism iss, Delgado argued that
“this case sm acks of retaliation, collusion, and conspiracy between the defense civil lawyers and the district
attorney’s office to deprive defendant of his constitutional rights and therefore have a ‘chilling effect’ on the
exercise of defendant’s right to due process and other rights afforded to any citizen of the United States of
Am erica.” This argum ent was sufficient to preserve the right to rely on the presum ption.

                                                        13
prosecution ‘seek[s] to reduce or eliminate apprehension on the part of an accused’ that

she may be punished for exercising her rights.”). Delgado presented evidence raising a

realistic likelihood of vindictiveness, creating the appearance of an unconstitutional

prosecution. Having found that the presumption applies, we now discuss whether the

State met its burden to rebut that presumption.

B.      Did the State rebut the presumption?

        Once the presumption is invoked, the State bears the burden to rebut the

presumption with an explanation of the charges “‘that is unrelated to the defendant’s

exercise of his legal right . . . .’” Hood v. State, 185 S.W.3d 445, 448 (Tex. Crim. App.

2006) (quoting Neal, 150 S.W.3d at 173-74). An objective explanation is required. Id. at

450. For example, the Texas Court of Criminal Appeals has held that “mistake or

oversight” in failing to initially charge a defendant with a crime is a sufficient justification,

especially “when . . . a prosecutor does not merely deny his state of mind was motivated

by vindictiveness.” Id. A subjective denial by the prosecution that a vindictive motive was

present is insufficient to rebut the presumption. See id.6

        The State argues that Delgado’s theories are negated by Officer Rivas’s testimony

at the hearing on Delgado’s motion. First, the State argues that Officer Rivas testified that

he initiated his appearance before the second grand jury because he felt that justice had

not been served when the first grand jury refused to indict Delgado. Clearly, this is a

subjective explanation that is insufficient to rebut the presumption of vindictiveness. Even

if it could be construed as objective, however, Arizpe testified that when Officer Rivas


        6
          In Hood, the court of crim inal appeals noted that “subjective” m eans “‘[o]f, produced by, or resulting
from an individual’s m ind or state of m ind’ or ‘existing only in the m ind.’” Hood v. State, 185 S.W .3d 445, 450
n.15 (Tex. Crim . App. 2006) (citing W ebster’s II New College Dictionary 1098 (1995)).

                                                       14
initiated the second grand jury investigation, she believed he was asking to testify before

the grand jury because he was upset about the civil lawsuit Delgado filed against him. The

trial court was entitled to weigh the credibility of Officer Rivas’s testimony and discount his

testimony, particularly in light of Arizpe’s opinion about Officer Rivas’s motive. Neal, 150

S.W.3d at 173-75. Thus, we hold that Officer Rivas’s explanation alone was insufficient

to rebut the presumption.

        Second, the State asserts that at the time the second grand jury was empaneled,

the district attorney’s office was no longer investigating any further charges against

Delgado, and it was Officer Rivas who initiated the proceedings against him. In other

words, the State disclaims responsibility for initiating the prosecution and places the

responsibility on Officer Rivas.             However, “[b]ecause both the State and the law

enforcement authorities participate on the side of the State in a joint effort to convict

defendants, a suggestion from parties connected with the State coming after the legal

proceeding dismissing the charge could not be considered as a factor negating the

vindictiveness presumption.” Neal, 117 S.W.3d at 309. The State cannot disclaim

responsibility for the prosecution by shifting the blame to Officer Rivas, on which it clearly

relied to investigate the alleged offenses. Moreover, the State, not Officer Rivas, pursued

the prosecution after the indictment. Given that the presumption of vindictiveness seeks

to prevent the appearance of an unconstitutional prosecution, this justification is

insufficient. Accordingly, we hold that neither of the State’s proposed justifications is

sufficient to rebut the presumption of vindictiveness.7

        7
          The presum ption of vindictiveness applies in this case to both counts of the indictm ent, even though
the m isuse of official inform ation charge was not pursued initially in 2002. The presum ption arises not just
when a prosecutor re-indicts an individual on the sam e charges that were pending before the individual’s
exercise of a legal right, but also when new and different charges are brought. See United States v. Krezdorn,

                                                      15
        Because we have held that the presumption of vindictiveness applies and the State

has not rebutted the presumption, we hold that the trial court did not err in granting

Delgado’s motion to dismiss the indictments. We need not address Delgado’s argument

that the evidence showed “actual vindictiveness,” and we express no opinion on that issue.

See TEX . R. APP. P. 47.1. We also need not address the remaining arguments under the

State’s first and second issues. See id.

                                              IV. CONCLUSION

        We affirm the trial court’s judgment dismissing the indictment.




                                                                     GINA M. BENAVIDES,
                                                                     Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this the 4th day of June, 2009.




693 F.2d 1221, 1228-31 (5th Cir. 1982). However, the “distinction between substituting m ore serious charges
and adding new charges is relevant in determ ining what type of explanation on the prosecutor's part will be
regarded as sufficient to rebut a presum ption of prosecutorial vindictiveness.” Id. For exam ple, when new
inform ation becom es available justifying further prosecution, that inform ation m ay suffice as an “objective”
explanation of the later prosecution. See Raetzch v. State, 709 S.W .2d 39, 41-42 (Tex. App.–Corpus Christi
1986, pet. ref’d) (holding that prosecutor’s later decision to reindict defendant with enhancem ent was justified
because it was based on receiving a“pen pack” that supported enhancem ent). W e note that the State has
not argued that its prosecution was justified because new inform ation was obtained involving Delgado’s
alleged m isuse of official inform ation or evasion of arrest. Officer Rivas acknowledged that when he testified
before the second grand jury, he did not have any additional evidence regarding the evading arrest charge,
and the State does not argue otherwise. And with respect to the charge of m isuse of official inform ation, the
grand jury indicted Delgado under Texas Penal Code section 39.06(c), which only required the State to prove
that Delgado solicited or received the confidential inform ation with the intent to obtain a benefit. See T EX .
P EN AL C OD E A N N . § 39.06(c) (Vernon 2003). Arizpe conceded that she was aware that Delgado possessed
the supplem ental offense report when he testified before the 2002 grand jury, but no action was taken. The
State has not argued that the facts underlying the charge of m isuse of official inform ation were not fully
developed at that tim e or that new inform ation justified its prosecution of Delgado for that charge.

                                                      16
