No. 04-05-00600-CR.
December 13, 2006. Do Not Publish
Appeal from the 290th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-5413, Honorable Sharon MacRae, Judge Presiding. AFFIRMED
Sitting: SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.
REBECCA SIMMONS, Justice.
Shortly after appellant Glenn McGarity, Jr. entered a plea of nolo contendere to three counts of aggravated robbery, the trial court granted defense counsel's motion for new trial. McGarity was charged by a second indictment which included additional charges with regard to the same victims. McGarity was found guilty by a jury and assessed punishment at ten years and two years, respectively, in the Institutional Division of the Department of Criminal Justice. McGarity now asserts that the new charges listed in the second indictment amount to prosecutorial vindictiveness. Because McGarity failed to preserve this issue for appellate review, we affirm the trial court.
Factual Background
On September 15, 2003, appellant Glenn McGarity, Jr. and Clarence Johnson entered the Sauceda family house and threatened the family and two friends with a firearm and bound them with duct tape. The two men retrieved car keys and left the residence in the family's new Cadillac Escalade. Dr. Fernando Sauceda contacted the San Antonio Police Department and OnStar. After his arrest, McGarity confessed to the police officers that Dr. Sauceda and "Bubba" (later identified as Clarence Johnson) staged the theft of the vehicle. McGarity was initially indicted on December 17, 2003, in a nine-count indictment for the offenses of aggravated robbery, burglary of a habitation and aggravated kidnapping. There were seven different complainants. On May 28, 2004, McGarity entered a plea of nolo contendere to what he thought were three counts of aggravated robbery in the indictment, and was sentenced to fifteen years confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a fine of $1,200.00. Approximately a week later, on June 7, 2004, defense counsel filed a motion for new trial after discovering that McGarity entered a plea to aggravated robbery while the three corresponding counts in the indictment alleged aggravated kidnapping. The trial court granted the motion for new trial. On July 27, 2004, a grand jury returned a new indictment alleging McGarity committed one count of burglary of a habitation, one count of aggravated robbery, seven counts of aggravated kidnapping and seven new counts of second degree aggravated assault. All complainants in the new indictment were the seven victims identified in the original indictment. On August 3, 2004, the State dismissed the original indictment. The matter was called to trial on August 9, 2005, and the State abandoned all counts in the indictment associated with Dr. Saucedo. McGarity entered a plea of not guilty and on August 11, 2005, the jury returned guilty verdicts on the remaining six counts of aggravated kidnapping and six counts of aggravated assault, as alleged in the second indictment. The jury assessed a sentence of ten years and two years confinement, respectively, but did not assess a fine against McGarity. Prosecutorial Vindictiveness
There are two alternative methods through which a defendant may establish prosecutorial vindictiveness. Neal v. State, 150 S.W.3d 169, 173 (Tex.Crim.App. 2004). Both alternatives require the defendant to present some evidence in order to raise the issue of prosecutorial vindictiveness, either through direct evidence of actual vindictiveness, or through circumstantial evidence sufficient to raise a presumption of vindictiveness which the State may then rebut. Id. at 173-74. In proving actual vindictiveness, the defendant has the burden of both production and persuasion to show with objective evidence that the prosecutor's charging decision was a "direct and unjustifiable penalty" resulting solely from his exercise of a legal right. Id. at 174. Under the alternative method, the defendant has the burden of production to present evidence of his conviction, successful appeal, and re-indictment upon additional or greater charges or enhancements, which raises a presumption of prosecutorial vindictiveness; the burden then shifts to the State to provide an objective explanation for the additional charges or enhancements, and the trial court decides the issue based on all the evidence, both pro and con, and the credibility of the prosecutor's explanation. Id. at 173-74; Hood v. State, 185 S.W.3d 445, 448 (Tex.Crim.App. 2006), petition for cert. filed(U.S. June 26, 2006) (No. 06-5409). Both methods require the trial judge to decide the ultimate issue based on the evidence and credibility determinations. Neal, 150 S.W.3d at 174-75. Although McGarity argues on appeal that he has proved prosecutorial vindictiveness through both methods, it is clear from the record that McGarity never raised the issue of prosecutorial vindictiveness in the trial court, and thus never presented any evidence to establish such a claim under either method. Accordingly, we resolve the appeal based solely on McGarity's forfeiture of his claim. See id. at 175 (appellant forfeited claim of prosecutorial vindictiveness because he never filed a motion to dismiss or quash the indictment based on prosecutorial vindictiveness and never argued or offered evidence at trial that his due process rights were violated by re-indictment). Conclusion
Because McGarity failed to raise the issue of prosecutorial vindictiveness in the trial court, we affirm the judgment.