author: ROBERTS, Judge. ONION, Presiding Judge,

text:
    Carlos Leauvano NUNEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 55394.
    Court of Criminal Appeals of Texas, En Banc.
    May 10, 1978.
    Ogden Hollis Pemberton, on appeal only, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and Tom Royee, Asst. Dist. Attys., Houston, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction of burglary of a habitation where the trial was before the court on a plea of guilty. The court assessed punishment at eighteen (18) years confinement in thé Department of Corrections. The sufficiency of the evidence is not challenged by appellant.

Appellant’s sole complaint on appeal is that “the trial court erred in denying appellant’s motion to withdraw plea of guilty and in denying the appellant’s motion for a new trial.”

On August 18, 1976, appellant entered a plea of guilty to the offense of burglary of a habitation alleged to have occurred on or about January 10, 1976, in Harris County. The record reflects that appellant was admonished pursuant to Art. 26.13, Vernon’s Ann.C.C.P. Additionally, appellant waived his right to trial by jury in writing pursuant to Arts. 1.13 and 1.14, Vernon’s Ann.C. C.P. Appellant also consented in writing, in open court, to waive the appearance, confrontation, cross-examination of witnesses and further consented to an oral stipulation of evidence of the burglary of a habitation. The waiver was approved by the court in writing and was filed with the papers of the cause as provided by Art. 1.15, Vernon’s Ann.C.C.P. In addition to the aforementioned waivers, appellant’s written stipulation of evidence judicially confessing to the offense of burglary of a habitation was admitted in evidence.

The record reflects that at the conclusion of the proceeding the trial court found appellant guilty and asked the State and counsel for appellant if there had been any plea bargain entered into in this matter. The State responded that the State had no recommendation and that appellant’s counsel would like to have a pre-sentence investigation on appellant. The court then recessed the hearing in order that a pre-sen-tence investigation could be prepared prior to an assessment of the punishment in this case.

On September 1, 1976, the proceedings in this cause were continued in order that punishment could be assessed against appellant. Appellant’s counsel called Tom Wells, a probation officer in Harris County who conducted the pre-sentence investigation of appellant, in order to have him testify as to the probation office’s recommendation in this case. Wells stated that the report indicated that the probation office’s recommendation to the court was that the maximum sentence allowed under the law be assessed appellant. In addition, the pre-sentence investigation was introduced into evidence in its totality.

Appellant then filed a motion to withdraw his plea of guilty on the grounds that the State in this cause had violated a plea agreement since the agreement was that there would be no recommendation by the prosecutor in this case and that appellant was induced to enter the plea of guilty on the basis of the statement that there would be no recommendation as to the punishment in this cause. The trial court listened to the argument of counsel concerning appellant’s motion and after stating that he must take into consideration the full range of punishment, the court denied appellant’s motion. Appellant’s counsel then offered testimony from an employee of Cenikor Corporation, a drug abuse rehabilitation program, that the program would accept Nunez for treatment if he was placed on probation.

It is appellant’s contention that the State of Texas violated the plea agreement with appellant by making a recommendation as to punishment through the pre-sentence investigative report requested by appellant since that report contained a recommendation that the trial court assess the maximum sentence under the law.

Prior to sentencing, appellant’s motion for new trial which urged the same allegation contained in appellant’s motion to withdraw his plea of guilty was overruled by the court. At the sentencing hearing the following colloquy took place:

“THE COURT: All right, so the matter was submitted to the Court — that is the question of punishment and the parties were allowed to examine the report and the examination conducted by the probation department. Now, what took place after that other than the assessment of punishment.
“MR. PEMBERTON: Aside from the witness’s testimony that’s all.
“THE COURT: Well, did the State violate any agreement?
“MR. PEMBERTON: The prosecutor did not.
“THE COURT: And if so why?
“MR. PEMBERTON: The prosecutor himself made no recommendation.
“THE COURT: That’s right.
“MR. PEMBERTON: But the probation officer is employed by the State.
“THE COURT: Is that all you have got to say?
“MR. PEMBERTON: Yes sir.”

Consequently, as the record reflects, the prosecutor in this cause did not violate any plea bargaining agreement made with appellant’s counsel, since the agreement apparently was that the district attorney’s office would make no recommendation and no recommendation as to what punishment was made. The assumption made by appellant that a probation officer is an agent of the prosecution is invalid. Probation officers are assigned or designated by the courts. See Art. 42.12, Sec. 2(d), Vernon’s Ann.C.C.P. The district attorney’s office does not employ a probation officer nor do they have any authority over the probation officers.

The record reflects that prior to sentencing appellant testified that he believed that he would be placed in the Cenikor program if Cenikor would accept him; however, upon further examination appellant admitted that he understood the full range of punishment could be assessed and he knew that he could be sent to the penitentiary but thought that the judge would not do it and that the real basis for the motion for new trial in this cause was that the probation officer had made a recommendation for the maximum sentence to be imposed. Regardless of appellant’s belief, the record reflects that the court in this cause substantially complied with Art. 26.13, supra, when appellant entered his plea of guilty. Appellant’s contention that a plea bargain was violated by the recommendation contained in the presentence investigation requested by appellant is totally without merit. We also note that the punishment assessed by the court was not the maximum imposed by law as recommended by the probation office, but rather, was substantially below the maximum term of years. It is clear that the punishment assessed by the trial court came within the range of punishment established by law, and a penalty imposed within that range prescribed by the legislature will not be disturbed on appeal. Ransonnette v. State, 522 S.W.2d 509 (Tex.Cr.App.1975); Jones v. State, 504 S.W.2d 906 (Tex.Cr.App. 1974); Herrera v. State, 513 S.W.2d 71 (Tex.Cr.App.1974). We find no evidence that appellant’s plea in this cause was coerced or obtained in violation of appellant’s statutory or constitutional rights.

Appellant’s sole ground of error is overruled.

The judgment is affirmed.

ONION, Presiding Judge,

concurring.

The sole question raised by the appellant is that the court erred in denying his motion to withdraw his guilty plea.

On August 18, 1976 appellant entered a plea of guilty to the offense of burglary of a habitation. He was duly admonished in accordance with Article 26.13, V.A.C.C.P., and after certain stipulations were entered into and offered into evidence the court found the appellant guilty. A definite penalty is an essential element of a judgment, but no punishment was assessed and the case was passed for a pre-sentence investigation.

On September 1, 1976 the case was again called at which time appellant called Tom Wells, a Harris County probation officer, as a witness and established that in the pre-sentence investigation report Wells had recommended to the court that maximum penalty permissible under the law be considered by the court as punishment in the instant case.

At this point the appellant moved to withdraw his guilty plea on the ground that there was a plea bargain that the State would make no recommendation as to punishment, and that while the assistant district attorney had made no recommendation, a recommendation as to punishment had been made by the probation officer, a representative of the State or county. He contended such action was in violation of Davis v. State, 463 S.W.2d 434 (Tex.Cr.App. 1971); and Santobello v. New York, 404 U.S. 257,92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Appellant’s motion to withdraw his guilty plea was denied. Thereafter at the “penalty” stage of the proceedings appellant offered the testimony of a representative of Cenikor Foundation, Inc., a behavior training facility for individuals with drugs, or alcoholic, or criminal behavior problems, who related that Cenikor would accept the appellant for treatment if he were placed on probation. Appellant then testified in his own behalf.

I concur with the majority opinion that the plea bargain established to have been made was not broken by the prosecutor as he made no recommendation. The probation officer was not part of the prosecution team and is appointed and acts under the authority of the court. See Article 42.12, V.A.C.C.P.

Although there is no merit to the basis stated for withdrawing the guilty plea, the question remains as to whether, in light of the procedure here used, the appellant had a right to withdraw his plea at the time of his motion without assigning any reason therefor.

A liberal practice prevails in this state concerning the withdrawal of a guilty plea, Garcia v. State, 91 Tex.Cr.R. 9, 237 S.W. 279 (Tex.Cr.App.1921); Stanton v. State, 159 Tex.Cr.R. 275, 262 S.W.2d 497 (Tex.Cr.App.1953), and a defendant may withdraw his guilty plea as a matter of right without assigning reason until such judgment has been pronounced or the case been taken under advisement. Milligan v. State, 168 Tex.Cr.R. 202, 324 S.W.2d 864 (Tex.Cr.App.1959); Rumage v. State, 324 S.W.2d 865 (Tex.Cr.App.1959); Stanton v. State, supra; Ralls v. State, 151 Tex.Cr.R. 146, 205 S.W.2d 594 (Tex.Cr.App.1947).

Article 27.13, Y.A.C.C.P., provides:

“A plea of ‘guilty’ or a plea of ‘nolo contendere’ in a felony ease must be made in open court by the defendant in person; and the proceedings shall be as provided in Articles 26.13, 26.14 and 27.02. If the plea is before the judge alone, same may be made in the same manner as is provided for by Articles 1.13 and 1.15.”

The procedure set forth for guilty pleas calls for a unitary trial, not a bifurcated one. Article 37.07, V.A.C.C.P., is, by its very terms, not applicable to pleas of guilty either before the court or jury in a felony case. Basaldua v. State, 481 S.W.2d 851, 853 (Tex.Cr.App.1972); see also Johnson v. State, 492 S.W.2d 505 (Tex.Cr.App.1973); Morales v. State, 416 S.W.2d 403 (Tex.Cr. App.1967).

If a trial judge bifurcates a guilty plea proceeding into guilt and penalty stages without objection, there would appear to be no reversible error, but it may create more problems than it solves. In the instant case the court accepted the guilty plea and found the appellant guilty at the initial stage of the proceedings, but no punishment was assessed. As the assessment of punishment is an essential element of a judgment (Article 42.01(10), V.A.C.C.P.), it is clear judgment had not been pronounced at the time the motion to withdraw the guilty plea at the “penalty” stage of the proceedings was made. Had the court sufficiently taken the case under advisement so as to foreclose the absolute right to withdraw the guilty plea? All the cited cases were decided under the former Code of Criminal Procedure when the unitary trial procedure prevailed and are of little assistance in view of the proceedings engaged in here. The court had already found the appellant guilty, and although there was no motion for probation, had ordered a pre-sentence investigation to determine the punishment. I would conclude, although not without difficulty, that the court had sufficiently taken the case under advisement to foreclose the absolute right to withdraw the guilty plea.

I would add a word of caution to trial judges about the use of pre-sentence reports to determine punishment. The only reference in the Code of Criminal Procedure to a pre-sentence investigation or report by a probation officer is found in the Adult Probation Parole and Mandatory Supervision Law. See Article 42.12(4), V.A.C.C.P. It was obviously designed as a tool to aid the trial judge in passing upon the question of whether probation should be granted. McNeese v. State, 468 S.W.2d 800, 801 (Tex. Cr.App.1971); Clay v. State, 518 S.W.2d 550 (Tex.Cr.App.1975). As stated in Rodriguez v. State, 502 S.W.2d 13 (Tex.Cr.App.1973):

“The primary purpose of the pre-sen-tence report is to provide the trial court with succinct and precise information upon which to base a rational decision on the motion for probation. Cf. American Bar Association Project on Standards for Criminal Justice Standards Relating to Probation, Part II, Sec. 2.2, p. 11 (Approved Draft 1970).”

While this court has stated it is desirable to utilize such pre-sentence reports for the purpose for which it was designed, Trevino v. State, 519 S.W.2d 864 (Tex.Cr.App.1975), it has also been observed that these reports often contain reports of arrests not resulting in final convictions, McNeese v. State, supra; Valdez v. State, 491 S.W.2d 415 (Tex.Cr.App.1973), reports of pending indictments, Clay v. State, supra, and hearsay statements. Brown v. State, 478 S.W.2d 550 (Tex.Cr.App.1972). In addition to the extraneous offenses, these reports often contain interviews with the defendant’s spouse resulting in information to which the spouse could not give in open court. See Article 38.11, V.A.C.C.P.

While many of these matters can be considered by the court in passing upon the issue of • probation, they would not be considered admissible on the issue of guilt or upon the issue of the punishment. Punishment should be assessed at the time of the guilty plea upon evidence properly admitted under the rules of evidence, including evidence that relates to appellant’s prior criminal record. If there be a pre-sentence report, it should be used to determine the question of granting probation alone. This would avoid any argument that in assessing punishment the court took into consideration arrest reports not resulting in final convictions, extraneous offenses, hearsay, rumors, etc., which frequently find their way into pre-sentence reports and which should not be used in determining punishment.

For the reasons stated, I concur.

      . Appellant’s counsel.

      . Although, as observed earlier, Article 37.07, V.A.C.C.P., does not by its very terms apply to guilty pleas before the court or the jury in felony cases, it contains this language in § 3(a) thereof:
      “Sec. 3. Evidence of prior criminal record in all criminal cases after a finding of guilty.
      “(a) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.”
      There appears no reason why such evidence could not be offered in pleas of guilty in felony cases before the court or jury. The above quoted provision represented a progressive step over the former Code of Criminal Procedure, but the Legislature was careful to define prior criminal records. The provision does not permit the introduction of arrests not resulting in convictions, hearsay, etc. ■


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Ex parte Gregory Arthur OTT
    No. 58114.
    Court of Criminal Appeals of Texas, Panel No. 2.
    May 10, 1978.

      Alan L. Levy, Denton, for appellant.
    Jerry Cobb, Dist. Atty., Denton, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order entered in a habeas corpus proceeding in the 158th Judicial District Court refusing the appellant, who was indicted for capital murder, bail.

The indictment charged the appellant with capital murder under V.T.C.A., Penal Code, § 19.03(a)(1), which provides:

“(a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and:
“(1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman.”

The proof offered at the habeas corpus hearing reflects the deceased, Bobby Doherty, was a Texas Ranger.

Article I, § 11 of the State Constitution, and Article 1.07, V.A.C.C.P., provide that all prisoners are entitled to bail except those charged with a capital offense “when the proof is evident.”

“The term ‘proof is evident’ means that the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense of capital murder has been committed; that the accused is the guilty party; and that the accused will not only be convicted but that the jury will return findings which will require a sentence of death.” Ex parte Wilson, 527 S.W.2d 310 (Tex.Cr. App.1975), and cases there cited; Ex parte Derese, 540 S.W.2d 332 (Tex.Cr. App.1976); Ex parte Hammond, 540 S.W.2d 328 (Tex.Cr.App.1976).

The burden of proof is on the State to establish that proof is evident. Ex parte Wilson, supra; Ex parte Derese, supra; Ex parte Hammond, supra; Ex parte Sierra, 514 S.W.2d 760 (Tex.Cr.App.1974); Ex parte Paul, 420 S.W.2d 956 (Tex.Cr.App. 1967). This burden requires the State in hearings of this nature not only to introduce evidence that the jury would convict the accused but would return the findings required under Article 37.071, V.A.C.C.P., which would require the imposition of the death sentence. Ex parte Derese, supra; Ex parte Hammond, supra; Ex parte Wilson, supra; Ex parte Sierra, supra.

In reviewing on appeal an order in a habeas corpus proceeding denying bail in a capital murder ease, it has long been the policy of this court to refrain from stating the facts at length and of expressing a conclusion as to the sufficiency of the evidence to show a defendant’s guilt as the ease has not yet been tried on its merits. Ex parte Paul, supra.

The record in the instant case discloses the deceased was shot and killed by the appellant during the late evening hours of February 20, 1978 while assisting other law enforcement officers in a marihuana purchase and seizure referred to by one officer as a “buy-bust.” The State introduced the testimony of the participating officers, which would tend to support a conviction under V.T.C.A., Penal Code, § 19.03(a)(1). The evidence is that after the purchase of the marihuana had been arranged between the appellant and an undercover agent and an informer, the undercover agent signaled the other officers hiding in a camper pickup. As the deceased sought to enter the back door of the appellant’s house by kicking it in, he was shot through the door and was hit in the head, dying of such wound.

There was evidence from a psychiatrist who had treated appellant at a hospital for fifteen months approximately ten years before the alleged offense. He related that appellant had a personality disorder, that he entered the hospital to learn to control his anger, his temper, his proneness to get into fights. The doctor related that during his stay at the hospital the appellant had attacked a staff member. It was his opinion that under certain circumstances there was an increased likeliness, possibility, probability of a violent response from the appellant than from an average person. There was other evidence that the shooting had been with a .38 caliber pistol, but that appellant also had a loaded .12 gauge shotgun, a loaded .22 caliber rifle, and knives, and that he informed the undercover agent that those who dealt with him in the purchase of marihuana would have his protection.

Appellant urges that the trial court erred in finding the “proof is evident” because “the evidence is not clear and convincing that he was aware that the deceased was a peace officer.” Appellant in an exhaustive and well researched brief argues that the evidence is conflicting as to whether or not he was aware that the deceased or the others were police officers. The State offered evidence, albeit circumstantial evidence, that the appellant knew that the deceased was a peace officer, at the time of the alleged offense. Appellant calls attention to certain res gestae statements he made immediately after the shooting and to other circumstances surrounding the event which he contends reflect a conflict in the evidence.

In 7 Tex.Jur.2d, Rev.Part 2, Bail and Recognizance, § 22, p. 621, it is written:

“The right to be admitted to bail is commonly held to exist where the evidence as to the accused’s guilt is conflicting. However, the mere fact that there is a conflict in the evidence does not conclusively establish the right. In other words, guilt may be evident despite conflict in the evidence. It is for the judge who hears the testimony to consider the evidence as a whole, and if, by the entire evidence, a reasonable doubt of the applicant’s guilt of a capital offense is not generated, the proof is evident, and bail should be denied.”

Considering the weight to be given to the trial court’s decision and considering all the circumstances, we conclude that appellant’s contention should be overruled.

He further contends that the proof is not evident since the evidence raised the issue of self-defense to prevent the commission of aggravated robbery. While it has been said that when the issue of self-defense is raised in such a manner as to make it necessary for the court to present the question to the jury (if there were a trial on the merits), then the court on an application for bail has no right to conclude the finding of the jury may not be favorable to the accused. Ex parte Burton, 75 Tex.Cr. 105, 170 S.W. 308 (1914); Ex parte Lewellen, 89 Tex.Cr. 57, 229 S.W. 326 (1921). The appellant did not testify nor offer other witnesses, and we cannot conclude from the other evidence that the issue of “self defense to prevent the commission of aggravated robbery” was sufficiently raised.

Further, it is stated in 7 Tex.Jur.2d, Rev. Part 2, Bail and Recognizance, § 14, p. 612:

“. . . However, the accused is not necessarily entitled to bail in every case where the issue of self-defense is raised, regardless of the other testimony introduced. When the evidence introduced by the state to show malice is controverted by the relator’s evidence showing that he acted in self-defense, the question is to be resolved by deciding whether the evidence is so clear and strong as to lead a well-guarded and dispassionate judgment to the conclusion that, if the law is properly administered, the accused will probably be punished by death.”

Appellant also contends that the evidence also raises several other defensive matters which entitle him to bail. We do not agree. The matters were not sufficiently raised as to require submission to the jury (if there had been a trial on the merits). Further, appellant urges that the evidence was insufficient to support a finding that a jury would return affirmative answers to the special issues under Article 37.071, V.A.C.C.P. While less than ideal, we conclude the evidence, including the facts surrounding the events in question, the psychiatric testimony, appellant’s background, and statements made to undercover agents prior to the shooting are sufficient to support the trial court’s finding.

The decision of the trial judge that proof is evident is entitled to weight on appeal, although it is the duty of this court to examine the evidence and determine if bail was properly denied. Ex parte Wilson, supra; Ex parte Derese, supra; Ex parte Hickox, 90 Tex.Cr. 139, 233 S.W. 1100 (1921).

After reviewing all the circumstances, we conclude the trial court did not abuse its discretion in denying bail.

      . There are several other temporary exceptions which are not here applicable. See Article I, § 11a, Texas Constitution.

      . In Burton the court found the State’s evidence would support a verdict of murder upon express malice, rendering the case nonbailable, but found the defensive issue raised the issues of self-defense with such cogency the issues would be required to be submitted to the jury “and a court cannot say that a jury would not be justified in finding for the defendant on one or the other of those defenses, and under such circumstances, we think the court erred in refusing to grant appellant bail.”

      . In Lewellen, which cited Burton, the court reached the same conclusion as Burton that the case was a bailable one, but stated:
      “We do not desire to be understood as holding that, in every case where the issue of self-defense is raised, the accused would be entitled to bail, regardless of other testimony controverting it.”


author: ODOM, Judge. ONION, Presiding Judge, ROBERTS, Judge, PHILLIPS, Judge,

text:
    John Elson BOUIE, Appellant, v. The STATE of Texas, Appellee.
    No. 54711.
    Court of Criminal Appeals of Texas, En Banc.
    May 17, 1978.

      Jesse R. Funchess, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis M. Bell and Terry G. Wilson, Asst. Dist. Attys., Houston, and Jim D. Vollers, State’s Atty., Austin, for the State.

      I. Article 1408, V.A.P.C., 1925, reads:
      “If any person by assault, or violence, or by putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another any property with intent to appropriate the same to his own use, he shall be punished by confinement in the penitentiary for life, or for a term of not less than five years; and when a firearm or other deadly weapon is used or exhibited in the commission of the offense, the punishment shall be death or by confinement in the penitentiary for any term not less than five years.”

   OPINION

ODOM, Judge.

This is an appeal from a conviction for robbery by assault. Art. 1408, V.A.P.C. Punishment was enhanced on allegations and proof of two prior convictions. See Art. 63, V.A.P.C. and V.T.C.A., Penal Code Sec. 12.42(d).

Appellant first contends the trial court erred in allowing him to be retried as an habitual criminal after his first conviction, in which he received ten years, was reversed. On appellant’s first conviction for this crime he pleaded guilty and received a ten year sentence. That conviction was reversed on appeal. Bouie v. State, 528 S.W.2d 587. Subsequently he was reindict-ed for this same crime, and the new indictment alleged two prior convictions for enhancement. Appellant again entered a plea of guilty to the offense, but pleaded not true to the enhancement allegations. His motion to dismiss the enhancement allegations was denied, and on finding the allegations true the court fixed his punishment at life.

Appellant relies on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, in which the court wrote:

“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 receives after a new trial. And since 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.”

In Alvarez v. State, 536 S.W.2d 357, 364, cert, denied 429 U.S. 924, 97 S.Ct. 325, 50 L.Ed.2d 292, this Court wrote:

“Vindictiveness is the evil object of North Carolina v. Pearce, and it is equally impermissible whether flowing from a judge or from a prosecutor.”

See also Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628. In Alvarez, supra, we also stated that where the penalty is fixed by law, as it was here, the increase may not be attributed to possible vindictiveness on the part of the judge. The focus of this issue, therefore, as in Alvarez, must turn to the prosecutor’s acts.

In Alvarez the controlling facts were these:

“Although the record does not show whether the first conviction rested upon a negotiated plea, it does show that appellant entered a plea of guilty and the State abandoned the enhancement allegations of the first indictment. On the second trial appellant elected to plead not guilty and be tried by a jury, and the State prosecuted its case on a new indictment containing the enhancement allegations that had been abandoned at the first trial. We perceive no reason why an accused who changes his plea from guilty to not guilty on retrial should be able at the same time to hold the State to the punishment sought or secured at the first trial.”

The facts in this case are entirely different from those presented in Alvarez. Here appellant entered pleas of guilty to the primary offense under both the first indictment and the second indictment. Also, the second indictment here alleged two prior convictions, whereas the first alleged one, and it was dismissed on the state’s motion.

In cases such as this one and Alvarez, where a conviction on a guilty plea is reversed on appeal and the State adds enhancement allegations on retrial, the constitutionality of the increased punishment so obtained turns on whether the prosecutor’s acts may have been the product of vindictive retaliation for the prior exercise of the accused’s right to appeal. In Alvarez we found no such indication of prosecutorial vindictiveness:

“Absent a showing of circumstances that would indicate prosecutorial vindictiveness, such as improper refusal to continue to honor a plea bargain previously made, we are of the opinion that no violation of the principles of North Carolina v. Pearce has been shown. . . . We remain convinced that the disparity between the ten year sentence on appellant’s first trial and the life sentence on appellant’s second trial has not been shown to be anything other than a consequence of trial strategy, as opposed to prosecutorial vindictiveness." (Emphasis added.)

Prosecutorial vindictiveness is retaliation and distinguishable from trial strategy that is a matter of the defendant’s free choice with full knowledge of the consequences. This is precisely the distinction relied on by the United States Supreme Court in its recent decision in Bordenkircher v. Hayes, -U.S.-, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). The court there said:

“[I]n the ‘give and take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.
“While confronting a defendant with the risk of more severe punishment clearly may have a ‘discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable’ —and permissible— ‘attribute of any legitimate system which tolerates and encourages the negotiation of pleas.’ Chaffin v. Stynchcombe, 412 U.S. 17, at 31 [93 S.Ct. 1977, 36 L.Ed.2d 714]. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the' prosecutor’s interest at the bargaining table is to persuade the defendant to forego his right to plead not guilty.”

If the prosecutor may increase the sought for punishment from five years to life because the defendant refuses to plead guilty at the first trial, as the court held permissible in Bordenkircher v. Hayes, supra, he certainly can do the same when the defendant changes his plea from guilty to not guilty at the second trial, as was done in Alvarez v. State, supra, so long as the defendant is presented with and aware of the alternatives when he makes his choice, as was expressed in both Hayes and Alvarez.

It was also stated in Bordenkircher v. Hayes, supra:

“The Court has emphasized that the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right, see Colten v. Kentucky, 407 U.S. 104 [92 S.Ct. 1953, 32 L.Ed.2d 584]; Chaffin v. Stynchcombe, 412 U.S. 17 [93 S.Ct. 1977, 36 L.Ed.2d 714], but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction. See Blackledge v. Perry, supra, 417 U.S., at 26-28 [94 S.Ct. 2098, 40 L.Ed.2d 628].”

If a defendant withdraws on retrial from a plea bargain obtained at the first trial, an increased punishment would be a legitimate response of the State to the defendant’s rejection of that agreement. This is based on the teaching of Bordenkircher v. Hayes, supra. On the other hand, if the defendant enters the same plea on retrial as on the first trial, the use of the enhancement statute cannot be said to be the legitimate response approved in Bordenkircher v. Hayes. The possibility of prosecutorial vindictiveness in retaliation for the exercise of the right to appeal again arises, and the burden shifts, as in this case, to the State to show “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Pearce, supra. The record before us is devoid of any such objective information. At the hearing on the motion for new trial the prosecutor testified to the contrary:

“Q. So I take it then that your testimony is that you had no information available to you nor did you seek out any information, objective information, concerning the conduct on the part of the Defendant which might have occurred after the time of your original sentencing in the original case—
“THE COURT: —To justify the increase in punishment?
“Q. Yes, sir.
“A. No, sir, I did not study his conduct in between the time that he entered the plea of guilty and the time of the re-trial.
“Q. And, of course, his conduct during that period of time was not the basis on which the re-indictment was sought?
“A. The re-indictment sir was ■ sought—
“Q. —Excuse me sir, my question is, whether or not his conduct during this period of time, which you didn’t even cheek into, was the basis of the re-indictment being sought?
“A. No, sir, it was not.”

In view of the absence of objective information about identifiable conduct by appellant occurring after the first trial, and in view of the prosecutor’s admission that no such conduct was the basis for enhancing appellant’s punishment, we hold that due process was violated by use of the enhancement paragraphs of the indictment, and that the trial court erred in denying appellant’s motion to dismiss the enhancement paragraphs. Accordingly, we will set aside the punishment, and remand the cause with orders that the enhancement allegations be dismissed and that the court assess punishment within the principles of North Carolina v. Pearce, supra.

In his second ground of error appellant challenges the indictment as fundamentally defective for failure to allege an element of robbery under V.T.C.A., Penal Code Sec. 29.02. This prosecution was brought under Art. 1408, V.A.P.C. (1925), not under the new penal code. The ground of error is without merit.

The third ground of error attacks evidence of the prior convictions used for enhancement. In view of our disposition of the first ground of error, this issue is now moot.

By pro se brief appellant complains that the State failed to release him after his first conviction was reversed, and that his retrial after reversal violated double jeopardy. The double jeopardy clause does not limit the State’s power to retry a defendant who has secured reversal. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300; North Carolina v. Pearce, supra. We also find appellant’s pro se contention that he was denied effective assistance of counsel is without merit.

The judgment of conviction is affirmed, the punishment is set aside, and the cause is remanded for dismissal of the enhancement allegations in the indictment and for assessment of punishment within the principles of North Carolina v. Pearce, supra.

VOLLERS, J., not participating.

ONION, Presiding Judge,

concurring.

I concur in the results reached by the majority, but cannot agree with much of its reasoning.

Appellant was originally indicted for robbery by assault, alleged to have occurred on or about August 21, 1973, with a prior 1970 felony theft conviction alleged for enhancement. See Article 62, V.A.P.C., 1925. The enhancement paragraph was subsequently abandoned by the State and the appellant plead guilty to the primary offense and his punishment was assessed by the court in a bench trial at ten (10) years’ imprisonment. On appeal the robbery indictment was held to be fundamentally defective and the cause was ordered reversed and prosecution dismissed. Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975).

On July 31, 1975 appellant was re-indicted for robbery with the same prior conviction alleged for enhancement. However, on December 17,1975 he was again re-indicted. This time the indictment alleged the robbery was committed with a firearm (Article 1408, V.A.P.C., 1925). In addition to the prior 1970 felony theft conviction, a 1969 felony theft conviction was alleged for enhancement. See Article 63, V.A.P.C., 1925. After a voir dire examination of a jury panel, the appellant entered a guilty plea before the court to the primary offense, but pleaded “untrue” to the allegations relating to the two prior theft convictions. In a bench trial the court, upon finding the enhancement allegations “true,” assessed punishment at life imprisonment.

Appellant cites North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and argues that in absence of objective information concerning identifiable conduct on his part occurring after the time of the original sentence the court could not increase the punishment assessed over that assessed at original trial without running afoul of the due process clause of the Fourteenth Amendment.

In Pearce it was held that neither the guarantee against double jeopardy nor the equal protection clause of the Fourteenth Amendment imposes an absolute bar to a more severe sentence upon reconviction. In considering the impact of the due process clause of the Fourteenth Amendment upon the question, the court wrote:

“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 receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right of 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.”

Pearce made clear that absent vindictiveness or the possibility of vindictiveness more severe sentences imposed following reconviction are constitutionally valid. See also Chaffin v. Stynchcombe, 412 U.S. 17, 29, 93 S.Ct. 1977, 1984, 36 L.Ed.2d 714 (1973); Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973); Colten v. Kentucky, 407 U.S. 104, 116, 92 S.Ct. 1953, 1960, 32 L.Ed.2d 584 (1972); United States v. Floyd, 519 F.2d 1031,1033 (5th Cir. 1975).

In Michigan v. Payne, supra, the “prophylactic” due process limitations established by Pearce to guard against the possibility of vindictiveness in cases where a more severe punishment is assessed upon a defendant after a new trial is not to be applied retroactively to resentencing proceedings that occurred prior to the date of the Pearce decision. While Pearce focused upon the vindictiveness or possible vindictiveness of the trial judge in the resentenc-ing process following a reversal of a prior conviction or the granting of a new trial, Chaffin v. Stynchcombe, supra, made clear that although the underlying rationale of Pearce was applicable whether punishment was assessed by judge or jury the due process clause of the Fourteenth Amendment is not offended as long as the jury at the subsequent trial is not informed of the punishment originally assessed and the assessment of punishment is not otherwise shown to be a product of vindictiveness. In Colten v. Kentucky, supra, it was held that Kentucky procedure for adjudicating less serious criminal cases, whereby a defendant convicted in inferior court could obtain a trial de novo in a court of general jurisdiction, did not deny due process even though a greater penalty could be imposed upon trial de novo, where it did not appear that imposition of a greater penalty would result from judicial vindictiveness.

While Payne, Chaffin and Colten all represent restrictions on the rationale of Pearce, Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), was an extension of that rationale to prosecutorial vindictiveness. While Perry was imprisoned in a North Carolina penitentiary, he became involved in an altercation with another inmate. He was charged with the misdemeanor offense of assault with a deadly weapon and convicted and given a six months’ sentence to be served after completion of the prison term he was then serving. Perry gave notice of appeal which entitled him to a trial de novo in Superior Court. After the filing of the notice of appeal, the prosecutor obtained an indictment for the felony offense of assault with a deadly weapon with intent to kill and inflict serious bodily injury covering the same conduct for which Perry had been tried and convicted in a lower court. He entered a guilty plea to the indictment and was sentenced to seven years in the penitentiary to run concurrently with his current prison term. The case reached the United States Supreme Court by way of federal habeas corpus proceedings and the granting of certiorari. There the Court wrote:

“The lesson that emerges from Pearce, Colten, and Chaffin is that 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.’ Unlike the circumstances presented by those cases, however, in the situation here the central figure is not the judge or the jury, but the prosecutor. The question is whether the opportunities for vindictiveness in this situation are such as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case. We conclude that the answer must be in the affirmative.
“A prosecutor clearly has a considerable stake in discouraging convicted misde-meanants from appealing and thus obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prose-cutorial resources before the defendant’s conviction becomes final, and may even result in a formerly convicted defendant’s going free. And, if the prosecutor has the means readily at hand to discourage such appeals — by ‘upping the ante’ through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy — the State can insure that only the most hardy defendants will brave the hazards of a de novo trial.
“There is, of course, no evidence that the prosecutor in this case acted in bad faith or maliciously in seeking a felony indictment against Perry. The rationale of our judgment in the Pearce case, however, was not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, we emphasized that ‘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.’ 395 U.S. 711, at 725, 89 S.Ct. 2072, 23 L.Ed.2d 656. We think it clear that the same considerations apply here. A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration. Cf. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138.
“Due process of law requires that such a potential for vindictiveness must not enter into North Carolina’s two-tiered appellate process. We hold, therefore, that it was not constitutionally permissible for the State to respond to Perry’s invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo.”

Branch v. State, 445 S.W.2d 756 (Tex.Cr. App.1969), relied upon by the State, was originally decided prior to Pearce. On rehearing this court decided that Pearce was not applicable. Branch was indicted for felony theft with two prior convictions alleged for enhancement of punishment. See Article 63, V.A.C.C.P., 1925. At the first trial, the State failed to prove one of two prior convictions alleged and Branch’s punishment was assessed at ten years as a second offender. See Article 62, V.A.C. C.P., 1925. He was granted a new trial. At the second trial he was assessed a life sentence following the jury’s verdict. Another new trial was granted, and at the third trial appellant was found guilty by the jury of the primary offense, who also found he was the same person twice previously convicted as alleged. The court in accordance with Article 63, supra, assessed punishment at life, there being no discretion on the judge’s part. The court found that Pearce’s prohibition against increased sentences on retrial which are the product of the sentencing judge’s motives or vindictiveness was not applicable. There was no focus upon any vindictiveness on the part of the prosecutor. To the same effect is Martinez v. State, 471 S.W.2d 399 (Tex.Cr.App. 1971). These cases were, of course, decided prior to Perry, but Martinez’s later claim that there was prosecutorial vindictiveness was rejected. See Martinez v. Estelle, 527 F.2d 1330 (5th Cir. 1976). In Alvarez v. State, 536 S.W.2d 357 (Tex.Cr.App.1976), this court on original submission relied upon Branch and Martinez in disposing of Alvarez’s contention that the rationale of Pearce was violated. On rehearing the court discussed the possibility of prosecutorial vindictiveness, but rejected the same.

In the instant case the prosecutor had to seek a new indictment for robbery if he intended to prosecute the appellant since the first indictment was held to be fundamentally defective. He later sought and obtained a third indictment, this time for robbery by assault with a firearm, rather than the original charge of robbery by assault. Though a difference in penalty exists between the offenses, Article 1408, V.A. P.C., 1925, the difference was largely neutralized by the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). However, the prosecutor did not stop with changes in the offense charged in the primary court, but alleged two prior convictions for enhancement whereas only one had been alleged in the first and second indictments. The indictments were not identical, and it appears clear that there was an escalation of the charges which, if proven, would require an automatic life sentence to be imposed and which, if not used, would give the prosecutor greater leverage in any plea bargain. Thus, like Perry, we are presented with facts suggesting a likelihood of potential prosecutorial vindictiveness. A person convicted of an offense is entitled to pursue his right of appeal without apprehension that the prosecution will retaliate by substituting a more serious charge for the original one thus subjecting him to a significantly increased potential period of incarceration.

The life sentence must be set aside and the cause remanded with instructions that the allegations of the prior convictions for the purpose of enhancement be dismissed from the indictment and that the court assess punishment for the primary offense in accordance with Blackledge v. Perry, supra, and North Carolina v. Pearce, supra. We need not go further in reaching the proper result in this case. However, the majority lunges ahead, apparently in defense of the opinion on rehearing in Alvarez, cited by the State.

Alvarez was originally indicted for possession of heroin with two prior convictions alleged for enhancement. See Article 63, supra. The allegations as to the prior convictions were dismissed and appellant plead guilty before the court to the primary count and was assessed punishment of ten years. His conviction was subsequently reversed. He was then re-indicted with the same two prior convictions being alleged again for enhancement. He then plead not guilty and chose to be tried by a jury. He was convicted and a life sentence was imposed in accordance with said Article 63. On original submission of his second appeal, Alvarez claimed a violation of North Carolina v. Pearce, supra, and Blackledge v. Perry, supra. The court held that the trial court exercised no discretion but imposed a life sentence as an habitual criminal as required by law, and that the disparity in the punishment imposed at the two trials was the result of appellant's choice of trial strategy. On rehearing the court held that a defendant who changes his plea of guilty to a plea of not guilty upon a new trial may not, at the same time, hold the State to the punishment sought or secured at the first trial. The instant case is distinguishable from Alvarez on the facts. The appellant entered guilty pleas both times and the trial was before the judge in each instance. However, insofar as Alvarez holds that where there is potential prosecutorial vindictiveness the case may turn upon whether the plea was different at the two trials and whether trial strategy was involved, it should be overruled. A defendant should not lose the due process protection afforded by Pearce and Perry merely because at his second or subsequent trial he changes his plea or his trial strategy.

In considering the question of potential prosecutorial vindictiveness in Alvarez (on rehearing), the court concluded that the disparity between the punishments assessed at the first and second trials was the result of trial strategy. The court noted that Alvarez had at his first trial entered a guilty plea before the court and then wrote:

“. . . On the second trial appellant elected to plead not guilty and be tried by a jury, and the State prosecuted its case on a new indictment containing the enhancement allegations that had been abandoned at the first trial. We perceive no reason why an accused who changes his plea from guilty to not guilty on retrial should be able at the same time to hold the State to the punishment sought or secured at the first trial.” (Emphasis added.)

It is observed that the above quoted portion of Alvarez is quoted with approval in the instant majority opinion. I dissent to a reiteration of the holding in Alvarez (on rehearing) that a change of his plea at the second trial will deprive a defendant of his due process protection given him by North Carolina v. Pearce, supra, and Blackledge v. Perry, supra. If a defendant enters a guilty plea before the court the first time and after reversal on appeal enters a plea of not guilty and asks for a jury, are we really prepared to say that this is forbidden trial strategy which if engaged in causes the loss of the due process protection afforded? Suppose between the time of the first and second trials the procedural law has been changed by legislative action or the federal or state court decision making process has rendered certain procedures more favorable to the defendant, suppose that new evidence has been discovered relevant to the defendant’s innocence, or the defendant has different counsel who feels the earlier guilty plea was a mistake under the circumstances now or then prevailing? Must such a defendant forego entering a not guilty plea after successfully attacking the first conviction and further forego a jury trial in order to preserve the due process protection afforded by North Carolina v. Pearce, supra, and Blackledge v. Perry, supra? I do not conclude that the rationale of Pearce was every intended to cause a defendant’s hands to be tied behind his back or that he was to be deprived of the other matters of plain fairness at the second trial to atone for having invoked Pearce.

To support its reliance upon Alvarez that the disparity between the punishment at the first and second trials was not shown to be other than a consequence of trial strategy as opposed to prosecutorial vindictiveness, the majority states, “[Pjrosecutorial vindictiveness is retaliation and distinguishable from trial strategy that is a matter of the defendant’s free choice with full knowledge of the consequences.” The majority then states that this “is precisely the distinction relied upon the United States Supreme Court in its recent decision in Bor-denkircher v. Hayes, - U.S. -, 98 S.Ct. 663, 54 L.Ed.2d 604, 22 Cr.L. 3023 (January 18, 1978).” Such reliance is totally misplaced.

The Court in Hayes stated:

“The question in this case is whether the Due Process Clause of the Fourteenth Amendment is violated when a state prosecutor carries out a threat made during plea negotiations to reindict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged.”

The Court later stated:

“It may be helpful to clarify at the outset the nature of the issue in this case. While the prosecutor did not actually obtain the recidivist indictment until after the plea conferences had ended, his intention to do so was clearly put forth at the outset of the plea negotiations. Hayes was thus fully informed of the true terms of the offer when he made his decision to plead not guilty. This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendant’s insistence on pleading not guilty. . . . ”

In Hayes the Court further wrote:

“This Court held in North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 23 L.Ed.2d 656, that the Due Process Clause of the Fourteenth Amendment ‘requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.’ The same principle was later applied to prohibit a prosecutor from reindicting a convicted misdemeanant on a felony charge after the defendant had invoked an appellate remedy, since in this situation there was also a ‘realistic likelihood of “vindictiveness.” ’ Blackledge v. Perry, supra, 417 U.S., at 27, 94 S.Ct. 2098, 40 L.Ed.2d 628.
“In those cases the Court was dealing with the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction — a situation ‘very different from the give-and-take negotiation common in plea bargaining between the prosecution and the defense, which arguably possess relatively equal bargaining power.’ Parker v. North Carolina, 397 U.S. 790, 809, 90 S.Ct: 1458, 25 L.Ed.2d 785 (opinion of Brennan, J.). The Court has emphasized that the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right, see Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584; Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction. See Blackledge v. Perry, supra, 417 U.S., at 26-28, [94 S.Ct. 2098, 40 L.Ed.2d 628],
“To punish a person because he had done what the law plainly allows him to do is a due process violation of the most basic sort, see North Carolina v. Pearce, supra, 395 U.S., at 738, 89 S.Ct. 2072, 23 L.Ed.2d 656 (opinion of Black, J.), and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional.’ Chaffin v. Stynchcombe, supra, 412 U.S., at 32-33, n. 20, 93 S.Ct. 1977, 36 L.Ed.2d 714. See United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138. But in the ‘give-and-take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer." (Emphasis added.)

Thus, it is clear that Hayes does not support Alvarez (on rehearing) as claimed by the majority.

The majority states, “If a defendant withdraws on retrial from a plea bargain obtained at the first trial, an increased punishment would be a legitimate response of the State to the defendant’s rejection of that agreement. This is based on the teaching of Bordenkircher v. Hayes, supra.” This is clearly wrong, and represents a misinterpretation of Hayes. The Hayes case involved an attempt at a plea bargain which failed and where the prosecutor carried out his threat made during the plea negotiations to bring more serious charges if a bargain was not reached. In the instant ease there was a completed plea bargain at the first trial, but the appellant did what he had a legal right to do, that is, to appeal, which appeal resulted in a reversal. After the reversal, the prosecutor then elevated the charges. Hayes is a far cry from this situation and does not teach as the majority indicates that the appellant loses his due process rights if he withdraws at the second trial from the original plea bargain after he exercised a right he was legally entitled to exercise.

While I concur in the result reached, I do not agree with much of the majority’s reasoning.

I must also express my concern that the majority opinion has failed to mention the “unassigned ground of error” upon which two judges would reverse the cause. These judges point out that the trial judge did not admonish the appellant in accordance with Article 26.13, V.A.C.C.P., as amended 1975 (in effect at the time of appellant’s trial) that any recommendation of the prosecuting attorney as to punishment is not binding on the court.

An examination of the record does show that the court did not mention such fact in its admonishment of the appellant. However, immediately prior to the admonishment the defense counsel inquired about a waiver of the enhancement paragraphs of the indictment. The prosecutor in the presence of the court, the appellant and his counsel refused to waive such enhancement allegations, and stated that the State intended to prosecute the appellant as an “habitual criminal” and made clear that there would be no plea bargain.

To reverse a case for the failure of the trial court to admonish a defendant that any recommendation of the prosecuting attorney as to punishment is not binding on the court when there in fact has been no plea bargain and the defendant and his counsel have been informed the State intends to seek the maximum punishment would be to reach an absurdity. My very strong views on Article 26.13, supra, and its forerunners have been expressed in many opinions of this court, but I do not believe that the Legislature ever intended any such nonsense such as a reversal would be under the circumstances here involved. To the extent that Murray v. State, 561 S.W.2d 821 (Tex.Cr.App.1977), is in conflict, it should be overruled.

I concur.

TOM G. DAVIS, and DALLY, JJ., join in this concurrence.

ROBERTS, Judge,

dissenting.

I cannot agree that the majority has correctly decided this cause. The majority has ignored an issue that should be addressed and which controls the disposition of this cause.

This is an appeal from a conviction for robbery by firearms, enhanced by two pri- or felonies, under our former Penal Code. The appellant pleaded guilty before the trial judge, who found the enhancement paragraphs true and assessed the appellant’s punishment at life in the Texas Department of Corrections.

The trial judge’s admonitions were not in compliance with Article 26.13, Vernon’s Ann.C.C.P., which states:

“(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
“(1) the range of punishment attached to the offense; and
“(2) the fact that any recommendation of the prosecuting attorney as to punishment is not binding on the court.
“(b) No plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.
“(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.”

The only admonishments given by the trial judge were as follows:

“THE COURT: How do you plead to that indictment, Mr. Bouie?
“THE DEFENDANT: Guilty.
“THE COURT: Are you pleading guilty now because you are guilty and for no other reason, and are you satisfied in your own mind that you are guilty of this offense?
“THE DEFENDANT: Yes, sir.
“THE COURT: Has anyone induced you to make this plea because of any threat or fears or delusive hope of pardon; anything of that nature?
“THE DEFENDANT: No.
“THE COURT: You understand this is punishable by confinement in the Texas Department of Corrections by not less than five years nor more than 99 years or by life?
“THE DEFENDANT: Yes.
“THE COURT: You have elected to accept your punishment under the provisions of the new Code. Have you ever been a patient in a mental hospital or treated psychiatrically for any mental illness?
“THE DEFENDANT: No.
“THE COURT: Are you satisfied Counsel, that he does appreciate the nature of this proceeding and the consequences of his plea?
“MR. FUNCHESS [DEFENSE COUNSEL]: Yes, I am, Your Honor.
“THE COURT: All right. Have your seat.”

It is clear that the trial judge did not comply with Article 26.13(a)(2) — “. . the fact that any recommendation of the prosecuting attorney as to punishment is not binding on the court.” In Murray v. State, 561 S.W.2d 821 (Tex.Cr.App.1977), delivered October 5, 1977, this Court held that the trial judge’s failure to comply with Article 26.13(a)(1) — “. . . the range of punishment attached to the offense . . ” was reversible error. See Walker v. State, 524 S.W.2d 712 (Tex.Cr.App.1975).

This Court is not confronted with a situation involving substantial compliance. Article 26.13(c). Rather, there was absolute noncompliance with the mandate of Article 26.13(a)(2). We should therefore hold that despite the absence of an objection, the trial judge’s failure to comply with Article 26.-13(a)(2) was reversible error.

I feel compelled to make one further comment in light of the concurring opinion filed in this case. The Legislature in passing the Code of Criminal Procedure intended that the rules governing criminal trials should be uniform throughout the state. When the Legislature amended Article 26.-13 of that Code in 1975, it provided that the trial judge in a guilty plea has two mandatory duties: He must tell the accused what the range of punishment is, and he must advise the accused that the prosecutor’s punishment recommendation is not binding on the judge.

Once again: These duties are mandatory. The Legislature intended that they should be complied with in all cases. To say that a trial judge may ignore these requirements is to hold that a mandatory statute of statewide application may be ignored in certain “exceptional” circumstances. This is the equivalent of standing aside from our duty as an appellate court. As the Chief Justice recently wrote in a somewhat different context:

“A legislature appropriately inquires into and may declare the reasons impelling legislative action but the judicial function commands analysis of whether the specific conduct charged falls within the reach of the statute and if so whether the legislation is consonant with the Constitution.” Landmark Communications, Inc. v. Virginia,-U.S.-,-, 98 S.Ct. 1535,1544, 56 L.Ed.2d 1 (1978).

When a trial judge fails to follow a mandatory statute, the failure should be called to his attention. As an appellate court, our only way of calling attention is by reversing the case. To do so is neither nonsense nor an absurdity; it is nothing less than our duty.

The judgment should be reversed and the cause remanded.

PHILLIPS, Judge,

dissenting and concurring.

I join in the dissent of Judge Roberts, infra. The failure to comply with Article 26.13, V.A.C.C.P., a mandatory statute, renders the plea of guilty void. The Legislature, via Article 26.13, has imposed minimum guidelines for assuring the voluntariness of guilty pleas in the State of Texas. Brady v. U. S., 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; Cruz v. State, Tex.Cr.App., 530 S.W.2d 817.

This admonishment omission renders the conviction void, thus relegating the punishment issue decided by the majority secondary. The proper disposition is to reverse the judgment and remand the cause.

Although secondary, I concur in the reasoning of the majority on the question of prosecutorial vindictiveness. The appellant was originally indicted for robbery by assault, second offender. Articles 1408 and 62, V.A.P.C. (1925). The enhancement allegation was waived and, upon entry and acceptance of a guilty plea, appellant was sentenced to 10 years confinement. This conviction was reversed on direct appeal. Bouie v. State, 528 S.W.2d 587. At the May term, 1975, appellant was indicted for robbery by firearms, second offender. Articles 1408 and 62, V.A.P.C. (1925). This indictment alleges use of a firearm whereas the original indictment alleged only violence. The prior conviction alleged for enhancement was the same in both indictments. A superceding indictment was returned in the November term of 1975 alleging robbery by firearms and two prior convictions for enhancement.

Appellant entered a plea of guilty to the robbery by firearms indictment and not true to the allegation of two prior convictions. Appellant was sentenced to life imprisonment upon the trial court’s finding that the allegations of two prior convictions were true. Article 63, V.A.P.C. (1925).

Here the appellant pled guilty on remand to the substantive offense of robbery. The only reasonable conclusion to be reached on the history and facts of this case is that the prosecutor retaliated against appellant for his originally successful appeal. It is this Court’s solemn responsibility to assure that the right of criminal defendants to appeal and contest their convictions is not impaired by the “apprehension” of retaliation. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656; Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628; Article 1, Sec. 19, Article 5, Sec. 5, Texas Constitution; Articles 1.04 and 44.-02, Y.A.C.C.P. Cf. Alvarez v. State, 536 S.W.2d 357.

The State’s reliance on Alvarez, supra, is misplaced. There the defendant was rein-dicted as originally indicted. The repudiation of the original plea bargain by way of successful appeal and the plea of not guilty on remand deprived Alvarez of the benefits originally negotiated for on the premise of a guilty plea. Here, however, the State “ups the ante” by invoking Article 63, V.A. P.C. (1925), on remand and by refusing to waive the enhancement allegations when appellant persisted in his plea of guilty.

While dissenting to the disposition of this cause, I concur in the majority’s reasoning on the issue of prosecutorial vindictiveness.

      . This writer concurred only in the result reached in such opinion.

      . Vernon’s Ann.P.C., Article 1408.

      . The appellant’s plea of guilty was entered on January 14, 1976. Article 26.13, supra, was amended to its present form in 1975, and was effective as of June 19, 1975.

      . A number of procedural irregularities must be noted. First, the appellant was arraigned only on the primary offense of robbery by firearms. At that point, the appellant entered a plea of guilty and the admonitions here quoted were given. After a trial before the court, the trial judge found the appellant guilty of robbery by firearms. The appellant was then re-arraigned on the two prior felonies. The appellant pleaded not true, but no admonitions were given. The State then proved up the two prior felonies.
      Thus, it appears that the appellant was at no time admonished that if he pleaded guilty, and the trial judge found that the two prior felonies were true, the punishment would necessarily be life imprisonment. The majority also ignores the issue of whether the trial judge’s admonitions regarding the range of punishment substantially complied with Article 26.13(a)(1).

      . The 1977 amendment to Article 26.13 expands these duties to provide (1) that the judge shall determine if a plea bargain was made, (2) that he shall then, before finding the accused guilty, tell the accused whether he will go along with the agreement, and (3) that he shall allow the accused to go withdraw the plea if he does not do so.

      . Cf. Article 44.02, V.A.C.C.P., as amended in the Acts of 1977, 65th Leg., P. 940, Ch. 351, Sec. 1, effective August 29, 1977.


author: PER CURIAM.

text:
    Carol KOLSTI et al., Relators, v. Calvin R. GUEST et al., Respondents.
    Motion No. 15825.
    Court of Civil Appeals of Texas, Austin.
    April 7, 1978.
    Randall B. Wood, Ray & Wood, Austin, for relators.
    R. C. Slagle, III, Sherman, for Calvin Guest and The State Democratic Executive Committee.
    Shannon H. Ratliff, McGinnis, Lochridge & Kilgore, Austin, for intervenor Texas Thoroughbred Breeders Ass’n, Inc.
   PER CURIAM.

Relators have filed a motion for leave to file an original proceeding in this Court to enjoin the Chairman of the State Democratic Executive Committee of Texas and the State Democratic Executive Committee from including on the primary ballot of the Democratic Party a referendum issue. The referendum issue inquires whether the voter is for or against the next Legislature enacting legislation permitting pari-mutuel wagering on horse races subject to local county option. Relators are Carol Kolsti, Harold Hammett, and Mary Jo Spradlin.

Also, Relators have filed an appeal in this Court from the order of the district court of Travis County dismissing for want of jurisdiction their suit filed in that court.

On March 13, 1978, the State Democratic Executive Committee met to determine the composition of the ballot. The Committee was presented with petitions which ostensibly contained more than 76,065 signatures requesting that the referendum issue appear on the primary ballot. The Committee adopted a resolution authorizing a ballot which included the referendum issue. Rela-tors filed their suit in the Travis County district court on March 23, 1978. The basis for the suit was that the petitions presented to the Committee contained insufficient valid signatures to require the Committee to place the issue on the ballot. Tex.Election Code Ann. art. 13.33 (1967). The district court entered a temporary restraining order, but thereafter dismissed the cause upon the basis that it was without jurisdiction to entertain the suit.

Relators ask this Court to enjoin the Chairman and the Committee from including the referendum issue on the ballot, pending the disposition of the appeal by this Court on its merits in order to protect the jurisdiction of this Court.

We will deny the motion for leave to file the petition for writ of injunction. It is beyond the powers of the courts to enjoin an election or any incident to it, although the election may be called without authority and therefore absolutely void. City of Austin v. Thompson, 147 Tex. 639, 219 S.W.2d 57 (1949). An election is essentially the exercise of political power, and during its progress, is not subject to judicial control. Leslie v. Griffin, 25 S.W.2d 820 (Tex.Com.App.1930). When it is said that elections are beyond the control of the judicial power, it is meant that the whole election, including every step and proceeding necessary to its completion, is exempt from judicial interference. City of Dallas v. Dallas Consolidated Electric Street Railway Co., 105 Tex. 337,148 S.W. 292 (1912); Pickard v. Castillo, 550 S.W.2d 107 (Tex.Civ.App.1977, no writ). The courts have refrained from interference in party primaries for essentially the same reasons. See Hamilton v. Davis, 217 S.W. 431 (Tex.Civ.App.1920, writ ref’d).

Relators recognize the rule announced in City of Austin v. Thompson, supra, but claim in their brief that the “ . . . rule has long since been abandoned.” As authority for the proposition that the rule of noninterference has been abandoned, Rela-tors list Thiel v. Harris County Democratic Executive Committee, 534 S.W.2d 891 (Tex.1976); Lee v. Daniels, 377 S.W.2d 618 (Tex.1964); Kirk v. Gordon, 376 S.W.2d 560 (Tex.1964); Willis v. Potts, 377 S.W.2d 622 (Tex.1964); and Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037 (1916).

Relators’ cases involve primarily the right of a candidate to have his name appear on the ballot against a contention that he was, for some reason, ineligible. Those cases involve original proceedings in mandamus filed in the Supreme Court, and the Court entertained the proceedings and directed various political officials to omit the names of candidates from the ballot. Those cases, with the exception of Gilmore v. Waples, supra, do not refer to the rule of noninterference by the courts in the exercise of political power.

Since at least 1919, the law has been that no ineligible candidate may have his name placed upon the ballot at any primary, general, or special election. Tex.Laws 1919 ch. 40 § 1, at 97; now appearing at Tex.Election Code Ann. art. 1.05 subdiv. 4 (1967). Contrary to Relators’ argument, their cases do not indicate an abandonment by the Supreme Court of its pronouncement in City of Austin v. Thompson, supra, but instead, reflect the charge of art. 1.05 subdiv. 4.

The motion for leave to file the petition for writ of injunction is denied.


author: KLINGEMAN, Justice.

text:
    James Heiser WILD et ux., Appellants, v. George E. HARGRAVE et ux., Appellees.
    No. 15927.
    Court of Civil Appeals of Texas, San Antonio.
    April 12, 1978.
    Rehearing Denied May 10, 1978.

      Pat Maloney, Jack Pasqual, Samuel C. Fried, San Antonio, for appellants.
    Richard J. Karam, San Antonio, for ap-pellees.
    Stayton, Maloney, Hearne & Babb, Austin, Foster, Lewis, Langley, Gardner & Ba-nack, San Antonio, amicus curiae.
   KLINGEMAN, Justice.

This is a summary judgment proceeding. Suit was filed by George E. Hargrave and wife, Mary C. Hargrave, plaintiffs below and appellees here, against James Heiser Wild and wife, Sydney D. Wild, defendants below and appellants here, for damages in the amount of $5,000 alleged to be liquidated damages under an undated and unsigned Earnest Money Contract for the purchase and sale of real estate, which sale was never consummated. Both plaintiffs and defendants filed motions for summary judgment. The court denied defendants’ motion for summary judgment and granted plaintiffs’ motion for summary judgment against defendants in the amount of $5,000.

Defendants’ defenses. are predicated on the following grounds: (1) the writings relied upon do not satisfy the requirements of the Statute of Frauds, Tex.Bus. & Comm. Code § 26.01, in several respects; (2) no contractual agreement was ever entered into between plaintiffs and defendants; (3) all negotiations between plaintiffs and defendants were subject to a condition precedent which was never fulfilled and any contractual relationships between plaintiffs and defendants were null and void; (3) there never was a valid acceptance by plaintiffs of any offer of defendants and any attempted acceptance varied and qualified the terms of the offer and as such amounted to a counteroffer and a rejection of the original offer; (4) the writings were never signed by the parties; (5) the contract is not enforceable because the property description is insufficient as a matter of law.

The writings relied upon by plaintiffs may be summarized as follows:

(a) A telegram sent by appellants to their real estate agent dated October 20, 1976, as follows:

Accept contract on 2703 Oak Bluff as $68,500.00 by Brakey. Offer $100,000.00 for 101 Windmill as per contract.

(b) A telegram dated October 21, 1976, sent by appellants to the realtor promising to pay $5,000 earnest money on 101 Windmill to US Life Title Company;

(c) An earnest money contract, undated and unsigned, for 101 Windmill.

(d) A telegram dated October 22, 1976, by appellees to a realtor stating:

We . . . accept earnest money contract dated 20 October whereby purchaser James H Wild and wife Sidney D Wild agree to purchase our home at 101 Windmill for the sale price of $100,000 with $5,000 earnest money. Bedroom built in wall units and bedspread do not remain.

We have concluded that this case must be reversed for three principal reasons: (1) the property description is insufficient as a matter of law; (2) if there was a valid offer, appellees’ acceptance varied and qualified the offer and was not a valid acceptance and constituted a rejection of the offer; (3) the written documents here involved do not comply with the requirements of the Statute of Frauds and are in violation thereof.

The property referred to in the telegrams is “101 Windmill.” No city, county or state is mentioned in connection with the location of the property. No lot or block number is given nor is there any indication as to the amount of land. There is no evidence that the contract referred to in the telegrams was ever signed or was in existence at the time the various telegrams were exchanged.

In the absence of equities removing the case from the operation of the Statute of Frauds, which do not here exist, it is settled that before a court will decree the specific performance of a contract for the sale of land, or entertain a suit for damages for the breach thereof, the written agreement or memorandum required by the Statute must contain the essential terms of a contract, expressed with such certainty and clarity that it may be understood without recourse to parol evidence to show the intention of the parties; and no part of the instrument is more essential than that which identifies the subject matter of the agreement. Jones v. Carver, 59 Tex. 293, 295 (1883).

Insofar as a description of the property is concerned, the writing must contain within itself or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152 (1945). See also U. S. Enterprises, Inc. v. Dauley, 535 S.W.2d 623, 627 (Tex.1976); Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972); Owen v. Hendricks, 433 S.W.2d 164, 166 (Tex.1968); Walzem Development Company v. Gerfers, 487 S.W.2d 219, 222 (Tex.Civ.App.—San Antonio 1972, writ ref’d n. r. e.); O’Herin v. Neal, 56 S.W.2d 1105 (Tex.Civ.App.—Texarkana 1932, writ ref’d).

It is obvious that the telegrams here involved do not contain sufficient data to satisfy the requirements of the Statue of Frauds either as to property description or otherwise. Appellees apparently rely on an earnest money contract to supply the information (Ex. “A”). Such purported contract is not dated and is not signed by anyone and there is nothing in the record whatsoever to show when it was prepared or that it was in existence at the time of the exchange of the telegrams here involved. To be sufficient, the writing must furnish within itself or by reference to some other existing writing the means or data by which the land to be conveyed may be identified with reasonable certainty.' Morrow v. Shotwell, supra. Subsequent documents cannot be used to aid in supplying a sufficient description. Wright v. Povlish, 498 S.W.2d 686 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.); Boddy v. Gray, 497 S.W.2d 600 (Tex.Civ.App.—Amarillo 1973, writ ref’d); Gohlke v. Davis, 279 S.W.2d 369 (Tex.Civ.App.—San Antonio 1955, writ ref’d n. r. e.). The writings here involved do not meet the requirements of the Statute of Frauds.

The telegram of October 22 sent by ap-pellees, one of the writings relied upon by them, contains a counteroffer of a material nature varying and creating different terms than the offer contained in appellants’ telegram.

It is well settled that an acceptance must not change or qualify the terms of the offer. If it does, the offer is rejected. United Concrete Pipe Corporation v. Spin-Line Company, 430 S.W.2d 360, 364 (Tex.1968); Humble Oil & Refining Company v. Westside Investment Corp., 428 S.W.2d 92 (Tex.1968); National Furniture Manufacturing Co. v. Center Plywood Co., 405 S.W.2d 115, 118 (Tex.Civ.App.—Tyler 1966, writ dism’d); Garrett v. International Milling Co., 223 S.W.2d 67 (Tex.Civ.App.—Texarkana 1949, no writ); Morrow v. De Vitt, 160 S.W.2d 977 (Tex.Civ.App.—Amarillo 1942, writ ref’d w. o. m.).

In 13 Tex.Jur.2d, Contracts § 27 at 144-46 (1960), it is stated:

No contract may be deemed to be formed until each party has accepted every proposition of the other without modification or the addition of new matter. In other words, to bind the offeror, the acceptance of the offer must be unconditional and unequivocal, so that, without any addition or variation, it is identical to the terms of the offer . . .. Consequently, where the acceptance varies the terms of the offer, it constitutes a rejection of the offer and becomes instead a new offer or proposal. And if such new offer is not accepted in accordance with its own terms and conditions, the proposed agreement is then at an end.

See also Great West Grain & Seed Co. v. Ray, 204 S.W.2d 26, 28 (Tex.Civ.App.—El Paso 1947, writ ref’d n. r. e.); Liquids Dispatch Line v. Texas Power & Light Co., 6 S.W.2d 169 (Tex.Civ.App. — Dallas 1928, writ ref’d); 1 Williston on Contracts, §§ 72, 73 (3rd ed. 1957).

The telegrams and documents here presented fail to satisfy the requirements of the Statute of Frauds because (1) it remains uncertain what contract, if any, the telegrams refer to, and (2) there is no proof that a written contract was in existence at the time the reference was made.

In any event, there was no unqualified acceptance of any offer of sale and the purported acceptance varied and qualified the terms of the offer and as such was a rejection of the offer.

The judgment of the trial court is reversed and judgment here rendered that appellees, George E. Hargrave, et ux., take nothing.

MURRAY, J., did not participate in the disposition of this appeal.

      . The certainty of a contract may be aided by parol only with certain limitations. The essential elements may never be supplied by parol. The details which merely explain or clarify the essential terms appearing in the writing may ordinarily be shown by parol. But the parol must not constitute the framework or skeleton of the agreement. That must be contained in the writing. Thus resort to extrinsic evidence where proper at all, is not for the purpose of supplying the location or description of the land but only for the purpose of identifying it with reasonable certainty from the data in the memorandum. Wilson v. Fisher, supra; U. S. Enterprises, Inc. v, Dauley, supra; O’Herin v. Neal, supra.


text:
    John R. BIGHAM, Relator, v. Vada SUTTON, Bell County Democratic Chairwoman, et al., Respondents.
    No. 12814.
    Court of Civil Appeals of Texas, Austin.
    April 12, 1978.

      John R. Bigham, Bigham, Cain & Mahler, Belton, for relator.
    Stanton B. Pemberton, Bob Burleson, Bowmer, Courtney, Burleson & Pemberton, Temple, for respondents.
   PER CURIAM.

John R. Bigham, Relator in this original proceeding, as a citizen of Bell County and a candidate for re-election to the office of State Representative for the 44th Legislative District, filed in this Court motion for leave to file petition for mandamus to compel Vada Sutton, chairman, and the Bell County Democratic Executive Committee, to omit from the official ballot for the general primary the name of William A. Messer, III, who also has filed for the office to which Relator seeks re-election.

This Court granted Relator’s motion to file his petition, and the parties were heard in oral argument on April 6, 1978.

Relator contends that Messer is ineligible to the Legislature under Article III, section 19, of the Constitution of Texas, which provides:

“No judge of any court, Secretary of State, Attorney General, clerk of any court of record, or any person holding a lucrative office under the United States, or this State, or any foreign government shall during the term for which he is elected or appointed, be eligible to the Legislature.”

It appears that the charter of the City of Belton empowers the city council to appoint a City Judge to preside over the corporation court “. . .to serve for a term of one year,” and Relator contends that Messer, while serving as City Judge.in a term to expire on March 9, 1978, was in January of this year “. . . reappointed City Judge for a one year term upon expiration of present term of office,” which new term would not terminate until March of 1979. Relator contends that Messer, after expiration of the 1977-78 term on March 9, held court and transacted business as City Judge at the scheduled session of court on March 15.

Courts of civil appeals have jurisdiction and authority to issue writs of mandamus against officers of a political party to compel performance in accordance with law in holding any election. Art. 1735a, V.A.C.S., as amended effective August 28,1967. The Texas Election Code forbids the placing upon the ballot of any primary, special, or general election the name of an ineligible candidate. Art. 1.05, subd. 4, as amended effective September 1, 1975.

The record in this proceeding consists of pleadings filed by the parties, together with affidavits and certificates attached in support of allegations contained in the pleadings. Questions of fact appear to be in dispute which are not resolved by official records now before this Court. The pleadings suggest, but do not establish, that Mes-ser declined to accept the appointment as City Judge for a new term beginning March 9, 1978, and that Messer has not qualified for the new term by taking the oath of office. The uncontroverted fact that Mes-ser presided as City Judge on March 15, 1978, fails to establish acceptance and qualification, but merely invokes conjecture as to whether Messer was qualified to sit as City Judge, or was acting in discharge of a constitutional duty to serve beyond an expired term until a successor should be duly qualified. Art. XVI, sec. 17, Constitution of Texas.

Under the facts now before this Court the right of Relator to prevent Mes-ser’s name from being placed on the ballot is doubtful, and that doubt may not be resolved by an appellate court passing upon the weight and credibility of opposite statements. Cobra Oil & Gas Corporation v. Sadler, 447 S.W.2d 887, 895 (Tex.Sup.1968). The question for determination, in deciding whether writ of mandamus should issue, is whether the right of Relator is so free from doubt, and the duty of the political party officers so clear and free from any substantial question, that an order should issue to compel performance. Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1151 (1939).

It is well established that mandamus will lie when the duty to act is clear and there are no disputed facts. Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593, 602 (Tex.Sup.1975); Employees Retirement System v. McDonald, 551 S.W.2d 534, 535 (Tex.Civ. App.Austin 1977, writ ref’d). It is not the function of mandamus to establish, as well as enforce, a claim of uncertain merit, for if the right be doubtful, it must be established first in some other form of action. Wor-tham v. Walker, supra.

Petition for writ of mandamus is denied.


author: HUGHES, Justice.

text:
    Mary RICHARDSON, Appellant, v. Bennie RICHARDSON et al., Appellees.
    No. 17956.
    Court of Civil Appeals of Texas, Fort Worth.
    April 13, 1978.
    Carmen Glazner and Ernest May, Fort Worth, for appellant.
    Cantey, Hanger, Gooch, Munn & Collins, Ira Butler, Sr., and S. G. Johndroe, III, Fort Worth, for appellees.
   OPINION

HUGHES, Justice.

Mary Richardson appealed the order of trial court dismissing the defendant, National Bank of Detroit from the suit she had filed against it and her former husband. The court found that it did not have jurisdiction over the person and property of Bank.

We affirm.
Trial court, in its order, found:
1. Plaintiff’s suit is not a local action in rem.
2. Bank is not incorporated in this state.
3. Bank has never had an office or designated agent in this state.
4. Bank has never done business in this state.
5. The trust pension funds held by Bank and sought by plaintiff are not now and have never been located in Texas.

Mary Richardson and Bennie Richardson were divorced in Tarrant County, Texas, in 1974. The divorce judgment incorporated an agreed property settlement which awarded Mary forty percent of the community right in Bennie’s General Motors pension plan. Mary sued Bennie and General Motors in trial court to enforce her right in the pension plan.

General Motors removed the case to the United States district court. That court held that Mary lacked standing and failed to state a cause of action under 29 U.S.C. § 1132(a)(1)(B) which statutes required “a simultaneous determination of jurisdiction, standing, and stating a claim.” The U.S. district court further held its dismissal of Mary’s claims to be substantive determinations, operating as “res adjudicata of any similar claims in state court.” The court also held its dismissal of Mary’s claims to be appealable.

Mary did not appeal, and the case was remanded to the state trial court. Mary filed first amended original petition and impleaded Bank as a defendant.

Mary had citation issued to Bank under Tex.R.Civ.P. 108. By special appearance, under Tex.R.Civ.P. 120a, Bank challenged jurisdiction of trial court and asked for dismissal of the proceedings for want of jurisdiction of the person or property of Bank.

It is undisputed that: Bennie is entitled to receive a monthly pension under the “General Motors Hourly Rate Employees’ Pension Trust”; such pension payments are made from payments made over a period of time by General Motors at Detroit to Bank; Bank holds and administers the funds under Employee Retirement Income Security Act of 1974, 29 U.S.C.A. § 1001 et seq.

The only question in this appeal is whether or not trial court was in error in holding plaintiff’s suit against Bank was not a local action in rem. Plaintiff does not deny trial court’s findings numbered 2 through 5.

The Banking Code, 12 U.S.C.A. § 94, provides:

“Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”

Bank relied on this section in its defense.

Mary cites, as an exception to Rule 94, a ruling of the U.S. Supreme Court which held that such rule “relates to transitory actions only and not to such actions as are by law local in their character.” (Emphasis added.) Casey v. Adams, 102 U.S. 66, 67-68, 26 L.Ed. 52 (1880). Other pertinent quotations from the Supreme Court in Casey: “(W)e see nowhere in the Banking Act any evidence of an intention on the part of Congress to exempt banks from the ordinary rules of law affecting the locality of actions founded on local things. . . (Emphasis added.) Local actions are in the nature of suits in rem, and are to be prosecuted where the thing on which they are founded is situated. . . . The proceeding in this case was clearly local in its nature. It related to property in the parish of La Fourche, which had been seized and sold under process from the District Court of that parish. The proceeds of the sale were in that court, and could not be distributed until ‘a conflict of privileges’ arising between creditors was settled. No personal claim was made against the bank. Nothing was wanted except to ‘class the privilege’ of the bank on the property seized ‘according to its rank. . . .’”

Plaintiff emphasizes that the res in Casey was not land (as claimed by trial court) but the cash proceeds of the sale of land: she seeking to refute the notion that actions in rem must be for realty only and not personalty.

Many claims that the res of the law suit is “her adjudged interest in the trust fund.” She apparently feels that her suit, like Casey, is one to “class the privilege”.

We disagree with Mary’s application of Casey to this case in that in Casey the funds involved were in the custody of the court. In this case, the funds are in Michigan, have never been located in Texas, and are in the custody of a corporation which: is not incorporated in Texas; nor has ever had an office or designated agent in Texas; nor has ever done business in Texas.

A very similar question to this one was tried in a New York state court in which the trust was in Illinois; all funds received were in Illinois; and no funds were or had been deposited in New York. The New York court dismissed the suit on motion of the defendant bank citing Casey, supra:

“The Supreme Court of the United States in Casey v. Adams, supra, held that local actions are in the nature of suits in rem and are to be prosecuted where the thing in which they are found is situated. The instant action, however, is not within the exception to Section 94 as expounded in Casey v. Adams. The trust was established and has been administered in Chicago, Illinois. No trust funds have been or are deposited in New York. The only way in which this Court can render a decision with respect to the obligations of Continental under this trust is to acquire in personam jurisdiction over Continental.”
(Emphasis added.)

Tuthill v. George S. May International Co., 55 Misc.2d 542, 285 N.Y.S.2d 317, aff’d 31 A.D.2d 721, 296 N.Y.S.2d 1021 (N.Y.1968).

Since the res is not in Texas, citation of Bank under Tex.R.Civ.P. 108 will not support a personal judgment against it. American Institute of Real Estate Apprais. v. Hawk, 436 S.W.2d 359 (Tex.Civ.App.— Houston (14th Dist.) 1968, no writ).

A recent U.S. Supreme Court decision, Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), requires the same standard of “fair play and substantial justice” for a state to obtain jurisdiction of an out of state defendant under in rem proceedings as it does for assertions of jurisdiction in personam.

“It is premised on recognition that ‘(t)he phrase, “judicial jurisdiction over a thing,” is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing.’ Restatement (Second) of Conflict of Laws § 56, introductory note. This recognition leads to the conclusion that in order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising ‘jurisdiction over the interests of persons in a thing.’ The standard for determining whether an exercise of jurisdiction over the interests of persons is consistent with the Due Process Clause is the minimum contacts standard elucidated in International Shoe.” Shaffer, supra, at 207, 97 S.Ct. at 2581.

In Shaffer the court further states, at 216, 97 S.Ct. at 2587, that the “Due Process Clause

‘does not contemplate that a state may make binding a judgment against an individual or corporate defendant with which the state has no contacts, ties, or relations’ ”, quoting International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

Although Section 94 is not involved in Shaffer, supra, the Supreme Court’s enunciation of a new standard for application of “in rem” jurisdictional matters makes the “in rem” and “in personam” distinctions in this case moot.

We overrule both points of error and affirm.