Pearce presumption in Texas

2020If the new judge had been called upon to assess punishment, there would have been ‘different sentencers’ and the Pearce presumption would not apply.” Id.

2020If the new judge had been called upon to assess punishment, there would have been ‘different sentencers’ and the Pearce presumption would not apply.” Id.

2024See Jimenez v. State, 298 S.W.3d 203, 210 (Tex. App.—San Antonio 2009, pet. ref’d) (recognizing that under Alabama v. Smith, 490 U.S. 794 , 799–800 (1989), “a party is entitled to a presumption of vindictiveness (thus invoking the Pearce rule) unless the State can show, based on the record, that there is no reasonable likelihood of vindictiveness.”).

2024See Jimenez v. State, 298 S.W.3d 203, 210 (Tex. App.—San Antonio 2009, pet. ref’d) (recognizing that under Alabama v. Smith, 490 U.S. 794 , 799–800 (1989), “a party is entitled to a presumption of vindictiveness (thus invoking the Pearce rule) unless the State can show, based on the record, that there is no reasonable likelihood of vindictiveness.”).

2020See Chaffin v. Stynchcombe, 412 U.S. 17 (1973) (Pearce does not apply when sentence on retrial is assessed by a jury rather than the judge); Alabama v. Smith, 490 U.S. 794 (1989) (Pearce presumption does 3 not apply when the sentence imposed after a trial was greater than the sentence previously imposed after a guilty plea); Texas v. McCullough, 475 U.S. 134 (1986) (Pearce presumption does not apply when a judge decides, as opposed to being ordered by a reviewing court, to conduct a new trial, and when a different judge presides over the second trial).

2006See, e.g., Texas v. McCullough , 475 U.S. 134,137 , 106 S. Ct. 976, 978 (1986) (defendant originally sentenced by jury; judge concluded defendant entitled to new trial; upon retrial defendant chose sentencing by judge; Pearce presumption inapplicable and even if it were to apply, court's findings overcame presumption); Wasman v. United States , 468 U.S. 559, 569 , 104 S. Ct. 3217, 3224 (1984) (presumption of vindictiveness applies because petitioner received greater sentence following retrial than that he had originally received; consideration by court of conviction between original sentencing

2024See Jimenez v. State, 298 S.W.3d 203, 210 (Tex. App.—San Antonio 2009, pet. ref’d) (recognizing that under Alabama v. Smith, 490 U.S. 794 , 799–800 (1989), “a party is entitled to a presumption of vindictiveness (thus invoking the Pearce rule) unless the State can show, based on the record, that there is no reasonable likelihood of vindictiveness.”).

2024See Jimenez v. State, 298 S.W.3d 203, 210 (Tex. App.—San Antonio 2009, pet. ref’d) (recognizing that under Alabama v. Smith, 490 U.S. 794 , 799–800 (1989), “a party is entitled to a presumption of vindictiveness (thus invoking the Pearce rule) unless the State can show, based on the record, that there is no reasonable likelihood of vindictiveness.”).

2014See Watson, 487 U.S. at 994-95 , 108 S.Ct. 2777 (explaining that there is no rigid formula for demonstrating causation).

2014See Watson, 487 U.S. at 994-95 , 108 S.Ct. 2777 (explaining that there is no rigid formula for demonstrating causation).

2010See Pearce at 726; Hood v. State, 185 S.W.3d 445, 448-50 (Tex.Crim.App.2006).

2010See Pearce at 726; Hood v. State, 185 S.W.3d 445, 448-50 (Tex.Crim.App.2006).

2019On appeal, Bell contends that the judge vindictively sentenced him to a lengthier sentence for declining a plea bargain to discourage future defendants from doing the same.3 He relies on North Carolina v. Pearce, which established that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear [in the record].” 395 U.S. 711, 726 (1969) overruled in part by Alabama v. Smith, 490 U.S. 794, 801 (1989) (holding that Pearce presumption of judicial vindictiveness does not 3 Bell’s counsel put the declined offer on the r

2012In Pearce, the United States Supreme Court concluded that "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear [in the record].” 395 U.S. 711, 726 , 89 S.Ct. 2072, 2081 , 23 L.Ed.2d 656 (1969), overruled in part by Alabama v. Smith, 490 U.S. 794, 801 , 109 S.Ct. 2201, 2205 , 104 L.Ed.2d 865 (1989) (holding that Pearce presumption of judicial vindictiveness does not apply when trial judge imposes greater penalty after remand and full trial than was imposed after prior guilty plea).

2020See Chaffin v. Stynchcombe, 412 U.S. 17 (1973) (Pearce does not apply when sentence on retrial is assessed by a jury rather than the judge); Alabama v. Smith, 490 U.S. 794 (1989) (Pearce presumption does 3 not apply when the sentence imposed after a trial was greater than the sentence previously imposed after a guilty plea); Texas v. McCullough, 475 U.S. 134 (1986) (Pearce presumption does not apply when a judge decides, as opposed to being ordered by a reviewing court, to conduct a new trial, and when a different judge presides over the second trial).

1993Under such circumstances, the possibility of *468 vindictiveness is too speculative to invoke the Pearce presumption of judicial vindictiveness. [2] Therefore, Pearce does not apply to the instant case because there is nothing in the record to suggest that the sentencing judge possessed a "personal stake in the prior conviction." Chaffin, 412 U.S. at 27 , 93 S.Ct. at 1983 .

2004Id. at 699-700 .

2000The trial court permitted Gandy to proceed on the claim that State Farm mishandled Pearce’s defense.- Id. at 704 .

2006See, e.g., Texas v. McCullough , 475 U.S. 134,137 , 106 S. Ct. 976, 978 (1986) (defendant originally sentenced by jury; judge concluded defendant entitled to new trial; upon retrial defendant chose sentencing by judge; Pearce presumption inapplicable and even if it were to apply, court's findings overcame presumption); Wasman v. United States , 468 U.S. 559, 569 , 104 S. Ct. 3217, 3224 (1984) (presumption of vindictiveness applies because petitioner received greater sentence following retrial than that he had originally received; consideration by court of conviction between original sentencing

2006See, e.g., Texas v. McCullough , 475 U.S. 134,137 , 106 S. Ct. 976, 978 (1986) (defendant originally sentenced by jury; judge concluded defendant entitled to new trial; upon retrial defendant chose sentencing by judge; Pearce presumption inapplicable and even if it were to apply, court's findings overcame presumption); Wasman v. United States , 468 U.S. 559, 569 , 104 S. Ct. 3217, 3224 (1984) (presumption of vindictiveness applies because petitioner received greater sentence following retrial than that he had originally received; consideration by court of conviction between original sentencing

2012We have recognized that the Pearce presumption of judicial vindictiveness applies "in cases where judges assess harsher sentences after retrial following successful appeal." Wilson v. State, 810 S.W.2d 807, 810 (Tex.App.Houston [1st Dist.] 1991, no pet.) (emphasis added).

2012We have recognized that the Pearce presumption of judicial vindictiveness applies "in cases where judges assess harsher sentences after retrial following successful appeal." Wilson v. State, 810 S.W.2d 807, 810 (Tex.App.Houston [1st Dist.] 1991, no pet.) (emphasis added).

1998See State Farm Fire & Casualty Co. v. Gandy, 880 S.W.2d 129 (Tex.App.—Texarkana 1994), rev’d, 925 S.W.2d 696 (Tex.1996).

1998See State Farm Fire & Casualty Co. v. Gandy , 880 S.W.2d 129 (Tex. App--Texarkana 1994), rev'd , 925 S.W.2d 696 (Tex. 1996).

1992The rationale for the Pearce rule is simply to prevent the fear of vindictiveness against a defendant, for having successfully attacked his first conviction, or the chilling of the defendant’s decision to appeal. 2 North Carolina v. Pearce, 395 U.S. at 725 , 89 S.Ct. at 2080 ; United States v. Colunga, 812 F.2d 196, 199 (5th Cir.1987); Wiltz v. State, 827 S.W.2d 372, 373 (Tex.App.— Houston [1st Dist.] 1992, pet. granted).

1992Pearce, 395 U.S. at 725 , 89 S.Ct. at 2080 ; United States v. Colunga, 812 F.2d 196, 199 (5th Cir.1987).

1984As the [ Martin ] panel pointed out, Pearce held that a defendant must not be penalized for asserting his right to a new trial by the imposition of a longer sentence than he received at the first trial.[ [5] ] The Pearce rule applies only to sentencing after a retrial, and even in that situation, `the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of "vindictiveness."' Blackledge v. Perry, 417 U.S. 21, 27 [ 94 S.Ct. 2098, 2102 , 40 L.Ed.2d 628 ]...." [Emphasis original.] This erroneou

1984As the [ Martin ] panel pointed out, Pearce held that a defendant must not be penalized for asserting his right to a new trial by the imposition of a longer sentence than he received at the first trial.[ [5] ] The Pearce rule applies only to sentencing after a retrial, and even in that situation, `the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of "vindictiveness."' Blackledge v. Perry, 417 U.S. 21, 27 [ 94 S.Ct. 2098, 2102 , 40 L.Ed.2d 628 ]...." [Emphasis original.] This erroneou

1988The Court further concluded that even if the Pearce presumption were to apply, the trial judge’s findings for imposing a great er punishment overcame that presumption as these findings clearly constituted “objective information justifying the increased sentence,” citing United States v. Goodwin, 457 U.S. 368, 375 , 102 S.Ct. 2485, 2489 , 73 L.Ed.2d 74 (1982).

1988The Court further concluded that even if the Pearce presumption were to apply, the trial judge’s findings for imposing a great er punishment overcame that presumption as these findings clearly constituted “objective information justifying the increased sentence,” citing United States v. Goodwin, 457 U.S. 368, 375 , 102 S.Ct. 2485, 2489 , 73 L.Ed.2d 74 (1982).

2010Jackson v. State, 766 S.W.2d at 521 ; Washington v. State, 127 S.W.3d 197, 205 (Tex.App.-Houston [1st Dist.] 2003, pet. dism'd).

2010Jackson v. State, 766 S.W.2d at 521 ; Washington v. State, 127 S.W.3d 197, 205 (Tex.App.-Houston [1st Dist.] 2003, pet. dism'd).

2024In State v. Larson, 783 P.2d 1093, 1095 (Wash. Ct. App 1989), review denied, 114 Wash.2d 1015 , the Washington Court of Appeals held that “[f]ederal courts addressing the issue uniformly hold that the Pearce presumption never arises when the aggregate period of incarceration remains the same or is reduced on remand.” Id. (internal citations omitted; emphasis in original).

2024In State v. Larson, 783 P.2d 1093, 1095 (Wash. Ct. App 1989), review denied, 114 Wash.2d 1015 , the Washington Court of Appeals held that “[f]ederal courts addressing the issue uniformly hold that the Pearce presumption never arises when the aggregate period of incarceration remains the same or is reduced on remand.” Id. (internal citations omitted; emphasis in original).

2006See, e.g., Texas v. McCullough , 475 U.S. 134,137 , 106 S. Ct. 976, 978 (1986) (defendant originally sentenced by jury; judge concluded defendant entitled to new trial; upon retrial defendant chose sentencing by judge; Pearce presumption inapplicable and even if it were to apply, court's findings overcame presumption); Wasman v. United States , 468 U.S. 559, 569 , 104 S. Ct. 3217, 3224 (1984) (presumption of vindictiveness applies because petitioner received greater sentence following retrial than that he had originally received; consideration by court of conviction between original sentencing

2006See, e.g., Texas v. McCullough , 475 U.S. 134,137 , 106 S. Ct. 976, 978 (1986) (defendant originally sentenced by jury; judge concluded defendant entitled to new trial; upon retrial defendant chose sentencing by judge; Pearce presumption inapplicable and even if it were to apply, court's findings overcame presumption); Wasman v. United States , 468 U.S. 559, 569 , 104 S. Ct. 3217, 3224 (1984) (presumption of vindictiveness applies because petitioner received greater sentence following retrial than that he had originally received; consideration by court of conviction between original sentencing

1994In a review of the sufficiency of the evidence to support jury findings, we review the legal sufficiency of the evidence under the standard set out in Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965), and the factual sufficiency under the standard set out in In re King’s Estate, 150 Tex. 662 , 244 S.W.2d 660, 661-62 (1951).

1994In a review of the sufficiency of the evidence to support jury findings, we review the legal sufficiency of the evidence under the standard set out in Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965), and the factual sufficiency under the standard set out in In re King’s Estate, 150 Tex. 662 , 244 S.W.2d 660, 661-62 (1951).

1994In a review of the sufficiency of the evidence to support jury findings, we review the legal sufficiency of the evidence under the standard set out in Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965), and the factual sufficiency under the standard set out in In re King’s Estate, 150 Tex. 662 , 244 S.W.2d 660, 661-62 (1951).

1992The rationale for the Pearce rule is simply to prevent the fear of vindictiveness against a defendant, for having successfully attacked his first conviction, or the chilling of the defendant’s decision to appeal. 2 North Carolina v. Pearce, 395 U.S. at 725 , 89 S.Ct. at 2080 ; United States v. Colunga, 812 F.2d 196, 199 (5th Cir.1987); Wiltz v. State, 827 S.W.2d 372, 373 (Tex.App.— Houston [1st Dist.] 1992, pet. granted).

1986Krezdorn, 693 F.2d at 1229 ; see also United States v. Motley, 655 F.2d at 188-89 ; United States v. Andrews, 633 F.2d 449, 453-55 (6th Cir.1980); United States v. Burt, 619 F.2d 831, 837 (9th Cir.1980); United States v. Griffin, 617 F.2d 1342, 1347 (9th Cir. 1980).

1986Krezdorn, 693 F.2d at 1229 ; see also United States v. Motley, 655 F.2d at 188-89 ; United States v. Andrews, 633 F.2d 449, 453-55 (6th Cir.1980); United States v. Burt, 619 F.2d 831, 837 (9th Cir.1980); United States v. Griffin, 617 F.2d 1342, 1347 (9th Cir. 1980).

1986Krezdorn, 693 F.2d at 1229 ; see also United States v. Motley, 655 F.2d at 188-89 ; United States v. Andrews, 633 F.2d 449, 453-55 (6th Cir.1980); United States v. Burt, 619 F.2d 831, 837 (9th Cir.1980); United States v. Griffin, 617 F.2d 1342, 1347 (9th Cir. 1980).

1986Krezdorn, 693 F.2d at 1229 ; see also United States v. Motley, 655 F.2d at 188-89 ; United States v. Andrews, 633 F.2d 449, 453-55 (6th Cir.1980); United States v. Burt, 619 F.2d 831, 837 (9th Cir.1980); United States v. Griffin, 617 F.2d 1342, 1347 (9th Cir. 1980).

1986Krezdorn, 693 F.2d at 1229 ; see also United States v. Motley, 655 F.2d at 188-89 ; United States v. Andrews, 633 F.2d 449, 453-55 (6th Cir.1980); United States v. Burt, 619 F.2d 831, 837 (9th Cir.1980); United States v. Griffin, 617 F.2d 1342, 1347 (9th Cir. 1980).

1986Krezdorn, 693 F.2d at 1229 ; see also United States v. Motley, 655 F.2d at 188-89 ; United States v. Andrews, 633 F.2d 449, 453-55 (6th Cir.1980); United States v. Burt, 619 F.2d 831, 837 (9th Cir.1980); United States v. Griffin, 617 F.2d 1342, 1347 (9th Cir. 1980).

1986Krezdorn, 693 F.2d at 1229 ; see also United States v. Motley, 655 F.2d at 188-89 ; United States v. Andrews, 633 F.2d 449, 453-55 (6th Cir.1980); United States v. Burt, 619 F.2d 831, 837 (9th Cir.1980); United States v. Griffin, 617 F.2d 1342, 1347 (9th Cir. 1980).

1986Krezdorn, 693 F.2d at 1229 ; see also United States v. Motley, 655 F.2d at 188-89 ; United States v. Andrews, 633 F.2d 449, 453-55 (6th Cir.1980); United States v. Burt, 619 F.2d 831, 837 (9th Cir.1980); United States v. Griffin, 617 F.2d 1342, 1347 (9th Cir. 1980).

1985Cf. Burson v. State, 511 S.W.2d 948, 950 (Tex.Crim.App.1974) (defendant may appeal judgment of guilt which orders probation).

1985Cf. Burson v. State, 511 S.W.2d 948, 950 (Tex.Crim.App.1974) (defendant may appeal judgment of guilt which orders probation).