Palm v. State , 1981 Tex. Crim. App. LEXIS 1190 ( 1981 )

OPINION

McCORMICK, Judge.

Appellant pled guilty in Harris County on November 14, 1979, to a charge of aggravated robbery. The trial court found appellant guilty and assessed punishment at twelve years in the Texas Department of Corrections.

The record reflects that on September 21, 1979, appellant had apparently pled guilty in cause number 302,991 to an aggravated robbery charge and pursuant to a plea bargain had been sentenced to ten years in the Texas Department of Corrections. It was later discovered that at the time of the entry of the September 21, 1979 plea there had been no valid charging instrument against appellant. He had not been indicted nor had he waived indictment nor had an information been filed. On October 1,1979, appellant filed a motion for new trial which was granted by the trial court.

Appellant was thereafter indicted on October 16, 1979, for the aggravated robbery that had been the basis of the September 21 proceeding. This new indictment was cause number 304,319. On November 14, 1979, appellant was back in court for trial on the aggravated robbery indictment, cause number 304,319. The State again offered appellant the ten-year plea, bargain. Appellant declined to accept the plea offer and pled guilty before the court. The State made no punishment recommendation. Introduced into evidence at this trial was evidence that appellant had a 1973 conviction for possession of marihuana. This was apparently not before the trial court at the initial plea proceedings in September. The State asked the court to consider the evidence before it that it had not previously considered. The trial court assessed punishment at twelve years’ confinement.

Appellant initially complains that the guilty plea proceeding on November 14, 1979, placed him in double jeopardy. The jurisdiction of the trial court had not been invoked during the September 21, 1979 proceedings. If the jurisdiction of the trial court is never invoked, any conviction that may result is void. American Plant Food v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). Jeopardy will generally not attach if the trial court never had jurisdiction of the case. Ward v. State, 520 S.W.2d 395 (Tex.Cr.App.1975). See also, Ball v. United States, 163 U.S. 662,16 S.Ct. 1192, 41 L.Ed. 300 (1896). Further, by making a motion for new trial, appellant was precluded from raising his double jeopardy argument. See, Martin v. Spradley, 341 F.2d 89 (5th Cir. 1965); Jones v. State, 465 S.W.2d 768 (Tex.Cr.App.1971).

Next, appellant complains that the trial court lacked authority to grant a new trial on its own motion and cites the cases of Ramirez v. State, 587 S.W.2d 144 (Tex.Cr.App.1979), and Zaragosa v. State, 588 S.W.2d 322 (Tex.Cr.App.1979).

The record, however, reflects a motion for new trial was filed by appellant on October 1,1979, and that it was granted on that date. Therefore, neither case cited by appellant is relevant.

Appellant next complains that the aggravated robbery indictment failed to allege an offense because it failed to specifically list what type of property had been taken. The indictment, in pertinent part, read:

“Charles Alvin Palm * * * did while in the course of committing theft of property owned by ..:. ”

This same contention was rejected in Hill v. State, 568 S.W.2d 338 (Tex.Cr.App.1978).

Appellant next accuses the prosecutor of prosecutorial vindictiveness. This contention is without merit. The record shows that the State re-offered appellant his original bargain. He, not the State, rejected the re-offered plea bargain. Lyles v. State, 582 S.W.2d 138 (Tex.Cr.App.1979).

Finally, appellant complains that the trial court impermissibly increased the punishment after the finding of guilt on November 14, 1979, thereby violating appellant’s due process rights.

The State argues that on November 14 the trial court had before it information it did not possess on September 21, 1979, specifically the 1973 marihuana conviction, and, therefore, could increase punishment.

In Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975), this Court dealt with a similar argument as now advanced by the State. In that case it was held that in order permissibly to increase punishment, the reason for the increase in the punishment set by the trial court must have occurred after the date of the original sentence. The United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), said:

“Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he received after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

“In order to assure the absence of such a motivation, we have 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. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” (Emphasis added). 395 U.S. at 725, 726, 89 S.Ct. at 2080, 2081.

If the marihuana conviction had occurred after September 21, 1979, the increase in the sentence would have been permissible. Since it was a 1973 conviction, the trial court could not use that as a basis for increasing punishment. Nothing in the record appears to have occurred after the original sentence that would justify an increased punishment.

The cause is remanded for the trial court to assess punishment in accordance with North Carolina v. Pearce, supra. See, Ex parte Bowman, supra.

TEAGUE, J., not participating.

Before the court en banc.