No. 2-05-179-CR
Delivered: January 19, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Criminal District Court No. 1 of Tarrant County.
Panel B: HOLMAN, GARDNER, and McCOY, JJ.
BOB McCOY, Justice.
I. INTRODUCTION
A jury convicted Appellant John Ross Ewing of three counts of sexual assault of a child. The jury recommended twenty years' confinement on count one and ten years' probation for each of the other two counts. The trial court took the jury's recommendation and ordered the two probated sentences run consecutively with each other but concurrently with the twenty-year prison sentence for count one. In a prior appeal, this court ruled that the trial court's order, that the two ten-year terms of probation run consecutively, was unlawful because the code of criminal procedure prohibits imposing consecutive suspended sentences when the cumulative term of the suspended sentences exceeds ten years. Ewing v. State, 157 S.W.3d 863, 870 (Tex.App.-Fort Worth 2005, no pet.). Accordingly, this court reversed that portion of the trial court's judgment. Id. We cited to the code of criminal procedure for the proposition that, at re-sentencing, the trial court could either order the sentences on the second and third counts to begin when the twenty-year sentence has ceased to operate or order the sentences all to run concurrently. Id. At re-sentencing, the same trial judge who presided at the initial punishment hearing, ordered that the two probated ten-year sentences run concurrently to each other and consecutively to the twenty-year prison sentence. Ewing argues that the trial court's act effectively increases his sentence from twenty years to thirty years, in violation of due process of law under the Fourteenth Amendment. II. RE-SENTENCING
In his sole issue, Ewing asserts that the trial court erred when it increased his sentence during re-sentencing without any new evidence or new information to justify the increased sentence. He contends that the United States Supreme Court's decision in North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072 (1969) prohibits the imposition of a more severe sentence without new evidence or information. The Texas Court of Criminal Appeals has determined what constitutes an increase in a sentence for purposes of analysis under Pearce. See Wiltz v. State, 863 S.W.2d 463, 465 (Tex.Crim.App. 1993); Lechuga v. State, 532 S.W.2d 581, 586 (Tex.Crim.App. 1976) (op. on reh'g). In Lechuga, the court held that probation was not a part of the punishment assessed upon a defendant. 532 S.W.2d at 587. Probation lessens the immediate impact of the sentence on the defendant, but probation does not, per se, shorten or lengthen the sentence. Id. Thus, probation is not part of the sentence imposed upon a defendant. A judge may impose a more severe sentence upon a defendant if the reasons for her doing so affirmatively appear in the record. Ala. v. Smith, 490 U.S. 794, 798, 109 S. Ct. 2201, 2204 (1989). The reasons must be based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. Id. Absent reasons affirmatively appearing on the record, a presumption of vindictiveness arises. See United States v. Goodwin, 457 U.S. 368, 373, 102 S. Ct. 2485, 2488-89 (1982); Wiltz, 863 S.W.2d at 464. And due process of law requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the assessment of punishment or sentence that he receives after the new trial or proceedings. See Pearce, 395 U.S. at 725, 89 S. Ct. at 2080; Wiltz, 863 S.W.2d at 464; Tillman v. State, 919 S.W.2d 836, 839 (Tex.App.-Fort Worth 1996, pet. ref'd). Here, Ewing's original sentence sentenced him to twenty years' confinement for count one and ten years' probation on each of counts two and three, which would run consecutively to each other, but concurrently with the twenty-year prison sentence. Therefore, Ewing initially faced a twenty-year sentence. However, now Ewing faces the same twenty-year sentence in prison for count one, but it will be followed by two concurrent ten-year sentences for counts two and three, which are probated. Disregarding probation, after re-sentencing, Ewing now faces a thirty-year sentence, twenty years in prison, followed by two concurrent ten-year sentences which are probated. Thus, the trial court increased Ewing's sentence during re-sentencing. See Lechuga, 532 S.W.2d at 588 (holding trial court increased punishment where previously it imposed punishment of three years' imprisonment but on retrial same trial court imposed punishment of five years and placed defendant on probation). Because the judge increased Ewing's sentence, she must have complied with the criteria of Pearce in order to satisfy the constitutional requirements of due process. See 395 U.S. at 725, 89 S. Ct. at 2080. That is, she must have affirmatively stated her reasons for increasing Ewing's sentence on the record. See id. Here, the instant record contains no valid affirmative reasons for the increase in punishment that would rebut the presumption of vindictiveness. On April 28, 2005, at the proceeding ordered by this court to render judgment in compliance with article 42.08 of the code of criminal procedure, Ewing objected to the sentence on the basis that the more severe sentence violated his constitutional rights. The judge requested authority for Ewing's proposition and adjourned the proceedings until May 2, 2005. On that date, the judge acknowledged that she had reviewed the case citation provided to her by Ewing, but stated that she was not going to change the sentence. The judge made no further comment or stated any other reason as to why she was imposing a more severe sentence on re-sentencing. Consequently, the presumption of vindictiveness was not overcome. See Davila v. State, 961 S.W.2d 610, 617 (Tex.App.-San Antonio 1997, no pet.) (holding where same trial judge presided at first trial and at re-sentencing and reason stated for increased punishment was not valid one based on objective information concerning identifiable conduct on part of appellant occurring after time of the original sentence, presumption of vindictiveness not overcome). We sustain Ewing's issue. IV. CONCLUSION
Having sustained Ewing's sole issue, we reverse the trial court's judgment and remand for rendition of judgment in compliance with article 42.08 of the code of criminal procedure, though observing that the punishment imposed on remand should not exceed the punishment initially imposed on all counts, unless the judge satisfies the due process limitations of Pearce. See 395 U.S. at 726, 89 S. Ct. at 2081.