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Click here for the full text of this decision FACTS:Appellant was indicted in November 1994 for aggravated sexual assault of a child under 14 years of age. This indictment contained no enhancement paragraphs. A jury convicted appellant of the offense charged in this indictment and assessed a 65-year sentence. The court of appeals reversed this conviction and remanded “the cause for further proceedings” on grounds not relevant to this opinion. The state subsequently reindicted appellant for the same offense that was charged in the original indictment. The reindictment included two enhancement paragraphs that were not in the original indictment. Appellant moved to quash the reindictment claiming that the prosecution vindictively added the enhancement paragraphs because appellant had successfully appealed his conviction on the original indictment. The trial court denied this motion based on the prosecutor’s explanation that the enhancements were “an omission from the very first indictment and should have been charged from the beginning.” Appellant presented no argument or evidence on why this explanation was insufficient to defeat a prosecutorial vindictiveness claim. After convicting appellant of the offense charged in the reindictment, a jury found the enhancement paragraphs “true” and sentenced appellant to life imprisonment. Appellant claimed on direct appeal that the prosecution vindictively added the enhancement paragraphs to the reindictment. The court of appeals rejected this claim and decided that the trial court did not abuse its discretion in deciding that the prosecutor’s uncontroverted explanation. HOLDING:Affirmed. In the instant case, there is a presumption of prosecutorial vindictiveness because the defendant was convicted, he successfully appealed and the state thereafter filed additional enhancements. However, the trial court was entitled to believe the prosecutor’s explanation that the enhancement paragraphs were added to the reindictment because they were “an omission from the very first indictment and should have been charged from the beginning,” meaning that their absence from the original indictment was an oversight or a mistake. This objective explanation is “unrelated to [appellant's] exercise of his legal right to appeal,” and is, therefore, sufficient to rebut a presumption of vindictiveness. Relying on this court’s decision in Bouie v. State, appellant claims that the prosecutor did not rebut a presumption of vindictiveness with Bouie’s requirement of “identifiable conduct by appellant occurring after the first trial.” Bouie v. State, 565 S.W.2d 543 (Tex.Cr.App. 1978). This statement from Bouie was based on a portion of the U.S. Supreme Court’s decision in North Carolina v. Pearce, 395 U.S. 711 (1969). The U.S. Supreme Court decided in Texas v. McCullough, 475 U.S. 134 (1986), that Pearce “was never intended to describe exhaustively all of the possible circumstances in which a sentence increase could be justified” and that “[r]estricting justifications for a sentence increase to only”events that occurred subsequent to the original sentencing proceedings’ could in some circumstances lead to absurd results.” To the extent that it is inconsistent with McCullough, Bouie must be overruled, the court decides. The court holds that a “mistake or oversight” explanation is an “objective explanation” that may be sufficient to rebut a presumption of prosecutorial vindictiveness especially when as here, a prosecutor does not merely deny his state of mind was motivated by vindictiveness. OPINION:Hervey, J., delivered the opinion of the court in which Keller, PJ., Keasler, Holcomb and Cochran, JJ., joined. Meyers, J., filed a dissenting opinion. Price, J., filed a dissenting opinion in which Johnson, J., joined. Womack, J., not participating. DISSENT:Meyers, J. “While there is no standard set forth that the State must meet in order to overcome the presumption that its actions were vindictive, it appears that the State just had to show by a preponderance of the evidence that the enhancements were not vindictively added to the second indictment. This is not strong enough. It should at least require clear and convincing evidence to overcome a presumption. To me, “We forgot” doesn’t quite get there when we presume that the enhancement paragraphs were vindictively added to the second indictment because the first conviction was reversed on appeal. The State’s excuse sounds a lot like”the dog ate my homework’ and the trial court should not have”unpresumed’ with this lame excuse. Therefore, I respectfully dissent.” DISSENT:Price, J., filed a dissenting opinion, in which Johnson, J., joined. “The majority uses Texas v. McCullough to conclude that the State rebutted the presumption that the State acted vindictively in adding enhancement allegations when the appellant was re-indicted after successfully having his prior conviction reversed. Although McCullough generally stands for the proposition that events that occur after the initial sentencing are not the only factors that can rebut a presumption of vindictiveness, the facts of McCullough are drastically different from the facts of the instant case. . . . “Because the majority provides no analysis for its conclusion, I must dissent.”

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