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Click here for the full text of this decision FACTS:After a court trial, a judge found the appellant guilty of possession of a deadly weapon in a penal institution and sentenced him to six years imprisonment. The court of appeals reversed this conviction and ordered the case dismissed. It concluded that appellant’s prosecution which came after he filed a federal civil-rights suit raised a presumption of vindictiveness that the state did not overcome at trial. The state asks whether the court of appeals erred by reversing the trial court’s judgment on a theory of prosecutorial vindictiveness when that theory was never properly presented to the trial court. HOLDING:The court reverses the judgment of the court of appeals and affirms the trial court’s judgment. A constitutional claim of prosecutorial vindictiveness may be established in either of two distinct ways: 1. proof of circumstances that pose a “realistic likelihood” of such misconduct sufficient to raise a “presumption of prosecutorial vindictiveness,” which the state must rebut or face dismissal of the charges; or 2. proof of “actual vindictiveness” that is, direct evidence that the prosecutor’s charging decision is an unjustifiable penalty resulting solely from the defendant’s exercise of a protected legal right. The appellant forfeited his prosecutorial vindictiveness claim because he failed to comply with Texas Rule of Appellate Procedure 33.1(a). In this case, the appellant never filed a motion to dismiss or quash the indictment based on a claim of prosecutorial vindictiveness. Even at trial, he never argued that his due-process rights had been violated by the re-indictment. As the state prosecuting attorney points out, the evidence that the court of appeals relied upon to find prosecutorial vindictiveness was not presented at the hearing on appellant’s pretrial motions. Instead, it was presented at the sentencing hearing after he had been found guilty. Even then, appellant offered this evidence solely in mitigation of punishment, not to support a legal due-process claim requiring dismissal of the indictment. Appellant filed a timely motion to quash the indictment based on two specific grounds: 1. an allegation of an illegal amendment to the indictment; and 2. a claim under Texas Penal Code 12.45, which provides that “[i]f a court lawfully takes into account an admitted offense, prosecution is barred for that offense.” The court held a pretrial hearing, and those were the only two issues discussed and ruled upon. The appellant’s counsel stated during his closing arguments that the state declined to re-offer its original two-year plea bargain once it had re-indicted appellant. Thus appellant had ample time and opportunity to include any pertinent legal claim of vindictiveness in his pretrial motions. Because the appellant did not raise any prosecutorial vindictiveness claim at the pretrial hearing, that claim � based on events that occurred before trial and were known to appellant before trial � was untimely. Nor was appellant’s prosecutorial vindictiveness claim, to the degree that it was raised at punishment, specific under Rule 33.1(a). At trial, the appellant never asserted that the timing of the re-indictment demonstrated either actual vindictiveness or a reasonable likelihood of misconduct sufficient to raise a presumption of prosecutorial vindictiveness. He used the timing to argue for mitigation of punishment � to prove that he deserved no more than the two-year sentence that the state had originally offered. The court of appeals stated that there was no evidence in the record to overcome the presumption of vindictiveness. This is not surprising because the state was never on notice of the claim, the defense never offered evidence to support that claim, the state was never given an opportunity to offer rebutting evidence, and the trial court never given an opportunity to rule upon that claim. Because the appellant never presented his prosecutorial vindictiveness claim in the trial court, he failed to preserve this issue for appellate review. OPINION:Cochran, J., delivered the opinion of the Court in which Keller, P.J., Meyers, Keasler, Hervey and Holcomb, JJ., joined. Womack, J., filed a dissenting opinion in which, Price and Johnson, JJ., joined. DISSENT:Womack, J.; Price and Johnson, JJ., join. “The appellant’s prosecutorial-vindictiveness claim in the trial court was timely, specific, and ruled on. It was not the claim that this court discusses. . . . “This court’s opinion says that”never . . . did he request the same relief at trial � dismissal of the indictment � that he requested on appeal.’ It fails to say that the appellant’s brief in the court of appeals also sought the relief that he did request in the trial court: ‘In the alternative, the Defendant requests that the judgment of the trial court be reversed and remanded for a new trial, or the original indictment be reinstated, [and] the plea agreement for two years indictment be enforced. . . .’ The appellant made such a request to the trial court, and this court’s opinion has quoted it.”

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