Opinion
No. 06-06-00237-CR
Date Submitted: June 20, 2007.
Date Decided: July 17, 2007. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 34109-B.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
MEMORANDUM OPINION
Raymond Rosborough pled guilty to the offense of evading detention using a vehicle, a state jail felony. Tex. Penal Code Ann. § 38.04(b)(1) (Vernon 2003). After properly admonishing Rosborough, the trial court accepted the plea of guilty and sentenced Rosborough to fifteen months' confinement. Such sentence was to be consecutive to a seven and one-half-year sentence Rosborough had been assessed in a jury trial for aggravated assault. The guilty plea in this case did not involve any negotiated plea agreement. Rosborough's sole point on appeal is that the State and the trial court acted in a vindictive manner in assessment of punishment and violated the Due Process Clause of the Fourteenth Amendment. We affirm the judgment of the trial court. In this case, Rosborough was indicted for evading detention March 1, 2006, for an act committed December 10, 2005. For the offense of aggravated assault allegedly occurring in February 2006, Rosborough was convicted by a jury in October 2006. On November 30, 2006, Rosborough pled guilty in this case. After Rosborough entered his guilty plea, the State advised the trial court that Rosborough had received a seven and one-half-year sentence for the aggravated assault charge and recommended a fifteen-month sentence consecutive to or stacked on the seven and one-half-year sentence. Counsel for Rosborough responded, "[O]bviously I don't, agree with the stacking, your Honor" and argued that stacking would be inappropriate. The State opined that it thought Rosborough received a "lenient" sentence in the aggravated assault charge. The trial court then reviewed the facts of the instant case and concluded that this evading detention charge was a serious offense and that the facts showed a potential for great harm. The trial court assessed punishment at fifteen months' confinement in a state jail facility consecutive to the aggravated assault sentence. After no objection was made to formally pronouncing sentence, the trial court sentenced Rosborough. A motion for new trial only raised general issues and a disproportionate sentence issue. We find this case is controlled by Neal v. State, 150 S.W.3d 169 (Tex.Crim.App. 2004). In Neal, this Court determined that the renewed prosecution of the defendant — after the defendant filed a federal civil rights suit against the county — raised a presumption of prosecutorial vindictiveness. Neal v. State, 117 S.W.3d 301 (Tex.App.-Texarkana 2003), rev'd, 150 S.W.3d 169 (Tex.Crim.App. 2004). The Texas Court of Criminal Appeals reversed and found that the defendant forfeited the vindictiveness claim by failing to comply with Rule 33.1(a) of the Texas Rules of Appellate Procedure. It was determined that the vindictiveness claim was never timely presented, was not specific, and was not ruled on by the trial court. Neal, 150 S.W.3d at 175-78. The Texas Court of Criminal Appeals analyzed the punishment hearing where the issue of "retaliation" was raised and found that the complaint at trial was nonspecific and that it was not ruled on by the trial court. Id. at 178. In this case, there is no mention of vindictiveness, retaliation, or any suggestion of a due process violation on the part of the State or the court at any time before the appellate brief was filed. We have searched the trial record — which includes the plea of guilt proceeding, all motions filed with the trial court before trial, and the motion for new trial. No allegation of vindictiveness is raised at the trial court level. Rule 33.1 requires a timely, specific complaint by objection, request, or motion to the trial court in order to present an issue on appeal. Further, the issue must be ruled on expressly or implicitly by the trial court. Tex. R. App. P. 33.1. Having found none of these requirements were met, we hold the issue of vindictiveness was not preserved for appeal. In Neal, the Texas Court of Criminal Appeals was faced with only an allegation of prosecutorial vindictiveness, not judicial vindictiveness. We see no reason that an allegation of judicial vindictiveness should not also require the same preservation of error as does an allegation of prosecutorial vindictiveness. However, if the issue of judicial vindictiveness was properly before us, it would not apply to the facts of this case. Judicial vindictiveness only applies "whenever a judge imposes a more severe sentence upon a defendant after a new trial." North Carolina v. Pearce, 395 U.S. 711, 726 (1969). Here, there has not been a "new trial"; this appeal arises from the first and only trial of the instant case. Therefore, there can be no showing that the trial court was vindictive when imposing the complained-of sentence. Rosborough's point on appeal is overruled. We affirm the judgment of the trial court.
The aggravated assault case is also appealed to this Court and has been disposed of by a separate opinion in cause number 06-06-00212-CR.
However, Judge Womack in a dissenting opinion joined by Judges Price and Johnson thought the record demonstrated preservation of the issue. Neal, 150 S.W.3d at 180 (Womack, J., dissenting).