subjective ~~"a claim of 'vindictive prosecution' presents primarily factual questions of government motive. ~~Intent?

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. PD-1559-03

RONNIE JOE NEAL, Appellant


v.


THE STATE OF TEXAS


ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SIXTH COURT OF APPEALS

RUSK COUNTY

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.

O P I N I O N

After a court trial, a judge found 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. (1) 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. (2) We hold that it did err when it reversed the trial court's judgment on a basis never pleaded, proved, or ruled upon in the trial court. We therefore reverse the court of appeals and affirm the judgment of the trial court.

I.

During the summer of 1998, appellant was in the Rusk County jail awaiting trial on charges of forgery and burglary of a habitation. On June 16, 1998, the local jailers caught him with a homemade weapon-a toothbrush sharpened into a stabbing instrument-which he had secreted in his boxer shorts. On July 17, 1998, appellant pleaded guilty, pursuant to a plea bargain, to both the forgery and burglary charges. On September 9, 1998, he was indicted for possession of a deadly weapon in a penal institution, stemming from the June 16th incident. Appellant filed a federal civil-rights lawsuit against Rusk County on May 20, 2000, alleging mistreatment in the jail. Before trial in the civil-rights suit, appellant and the State negotiated a plea bargain for a two-year sentence on the pending weapons charge. Appellant-who was by then in prison serving his burglary sentence-was bench-warranted back to Rusk County for a plea on the weapons charge. But before that plea hearing could take place, Rusk County officials returned appellant to prison because they learned he was HIV positive. Thus, on November 17, 2000, the State dismissed the weapons charge with a notation that "[t]he defendant was convicted in another case."

On February 28, 2001, the federal district court conducted a one-day trial on appellant's civil rights suit. Appellant testified and admitted that he had possessed the homemade weapon in the Rusk County jail. No ruling was made on that date in the federal trial. On March 6, 2001, six days after the federal hearing, the State-at the behest of the Rusk County Sheriff's Office, which had first learned about the dismissal of the weapons charge at the civil-rights trial-re-indicted appellant on the weapons charge. (3) Appellant learned on April 18, 2001, that the federal district judge had awarded him a $6,000 judgment against Rusk County in the civil-rights suit. (4)

The State declined to re-offer its original two-year plea bargain on the weapons case. After the trial court denied his pretrial motions (none of which claimed prosecutorial vindictiveness), appellant waived a jury and requested a court trial. After hearing the State's evidence, the trial court found appellant guilty.

At the punishment hearing, the State put on evidence of: 1) appellant's previous forgery and burglary convictions; 2) appellant's penitentiary packet, which listed four other convictions-one robbery, two burglaries, and one unauthorized use of a motor vehicle; and 3) letters appellant wrote to his girlfriend while in the Rusk County jail in which he asked for her assistance in smuggling a handgun into the jail so he could escape and in obtaining documents to create a new identification after he escaped.

The defense presented evidence that, before trial on the federal civil-rights case, the State and appellant had negotiated a plea bargain for a two-year sentence, but that the State was unwilling to re-offer that bargain after the federal trial. The defense characterized the re-indictment as unfair and retaliatory and asked the trial court to assess the original agreed-to two-year sentence. Appellant's attorney, in closing, stated: "Now, this man here, I think to resolve this issue, he's in agreement, his sister's in agreement, I'm in agreement, punish him with the original two years that everybody thought was right." In its closing, the State asked the court "to review all of the evidence that was introduced today, review the seriousness of the crime, review his criminal record and issue the appropriate sentence."

The trial court assessed punishment at six years in prison.

In his brief to the court of appeals, appellant alleged, for the first time, that his conviction should be reversed and the case dismissed because it "was in violation of his rights under the Due Process Clause of the Fourteenth Amendment because of prosecutorial vindictiveness." He stated that "[t]he prosecutor in this case acted in bad faith and maliciously by re-indicting [him] a second time" and that "there was no other reason except for revenge and retaliation for the prosecutor to pursue a second indictment."

The court of appeals agreed and held that the sequence of events ("the State dismissed Neal's charge completely, the civil suit was heard, and then the State re-filed the same charge") raised a presumption of vindictiveness and that there was no evidence in the trial record to overcome it. (5) It reversed the trial court's judgment and dismissed the indictment.
II.

Both Texas and federal courts recognize that prosecutors have broad discretion in deciding which cases to prosecute. Thus, "[i]f the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether to prosecute and what charge to file generally rests entirely within his or her discretion." (6) Courts must presume that a criminal prosecution is undertaken in good faith and in nondiscriminatory fashion to fulfill the State's duty to bring violators to justice. (7) Nevertheless, a decision to prosecute violates due process when criminal charges are brought in retaliation for the defendant's exercise of his legal rights. (8) Thus, the Supreme Court has held that, under specific, limited circumstances, the presumption that a prosecution is undertaken in good faith gives way to either a rebuttable presumption of prosecutorial vindictiveness or proof of actual vindictiveness. (9)

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; (10) 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. (11)

Under the first prong, if the State pursues increased charges or an enhanced sentence after a defendant is convicted, exercises his legal right to appeal, and obtains a new trial, the Supreme Court has found a presumption of prosecutorial vindictiveness. (12) In the very few situations in which this presumption does apply, it can be overcome by objective evidence in the record justifying the prosecutor's action. (13) The defendant must prove that he was convicted, he appealed and obtained a new trial, and that the State thereafter filed a greater charge or additional enhancements. The burden then shifts to the prosecution to come forward with an explanation for the charging increase that is unrelated to the defendant's exercise of his legal right to appeal. (14) The trial court decides the issue based upon all of the evidence, pro and con, and the credibility of the prosecutor's explanation. (15)

Under the second prong, when the presumption does not apply, the defendant may still obtain relief if he can show actual vindictiveness. (16) To establish that claim, a defendant must prove, with objective evidence, that the prosecutor's charging decision was a "direct and unjustifiable penalty" that resulted "solely from the defendant's exercise of a protected legal right." (17) Under this prong, the defendant shoulders the burden of both production and persuasion, unaided by any legal presumption. (18) Once again, the trial judge decides the ultimate factual issue based upon the evidence and credibility determinations.

Under either prong, "[i]f the defendant is unable to prove actual vindictiveness or a realistic likelihood of vindictiveness, a trial court need not reach the issue of government justification." (19) That is, the State may stand mute unless and until the defendant carries his burden of proof under either prong.

III.

Appellant Forfeited His Prosecutorial Vindictiveness Claim Because He Failed to Comply with Texas Rule of Appellate Procedure 33.1(a).


In this case, 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. (20)

Texas Rule of Appellate Procedure 33.1 provides that, in general, as a prerequisite to presenting a complaint for appellate review, the record must show a timely, specific objection and a ruling by the trial court. "Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only ... all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)." (21)

In this case the trial court neither disregarded an absolute requirement (such as jurisdiction over the subject or person), nor denied appellant a waivable-only right (such as the right to counsel or a jury trial), so the only issue is whether appellant complied with Rule 33.1(a). He did not. Appellant's prosecutorial "retaliation" argument, mentioned for the first time in the punishment hearing, was neither timely nor specific. Furthermore, appellant never asked for dismissal of the indictment nor did he offer evidence to support a due-process claim. The State was never afforded an opportunity to offer rebuttal evidence, and the trial court was never asked to rule upon a legal claim of prosecutorial vindictiveness.

A. The claim was not timely.

The Texas Code of Criminal Procedure requires that, if a defendant seeks dismissal of an indictment as the remedy for his constitutional or statutory claim, the Rule 33.1 requirement of timeliness means that the claim generally must be raised and ruled upon before trial. (22) Under Article 28.01, a trial court must determine such "preliminary matters" at a pre-trial hearing. (23) All preliminary matters which are not raised at the pre-trial hearing, are generally considered forfeited. (24) A motion to set aside, dismiss, or quash an indictment should be made at the first opportunity, (25) and must be presented to the trial court prior to an announcement by that party that it is ready for trial. (26) This rule serves the salutary purpose "of preventing unnecessary trials and deterring the interruption of a trial on the merits for any objection relating to the institution and presentation of the charge." (27) It would make little sense to wait until after a trial is complete before complaining that the trial should never have taken place because the indictment was defective or should have been dismissed or quashed.

In this case, appellant did file 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 Tex. Penal Code §12.45, which provides that "[i]f a court lawfully takes into account an admitted offense, prosecution is barred for that offense." (28) The court held a pretrial hearing, and those were the only two issues discussed and ruled upon. 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 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. (29)

B. The claim was not specific.

Nor was appellant's prosecutorial vindictiveness claim, to the degree that it was raised at punishment, specific under Rule 33.1(a). At trial, 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. Appellant took the stand and testified as follows:

Q Now, when you got re-indicted, were you still willing and able to take - willing and wanting to, to take the two original years?

A Yes, sir, I was.

Q Even though you thought it was over with?

A Yes, sir.

Q But in the negotiations then, they wouldn't agree to that, would they?

A No, sir.

Q Now, are you asking the Judge today for the original two years that you agreed to back in 2000?

A Yes, sir, I am.

***

Q And after that [federal civil-rights] trial on February 28th, were you indicted for the same incident?

A Yes, sir, I was.

Q And were you surprised?

A Yes, sir because I thought it was dismissed. So the first thing I felt was this was retaliation.

Q Are you asking the Judge, in order to get this over with, - are you asking him for the two years?

A Yes, sir, I am.


Debra Neil-Terrell, appellant's sister, likewise testified she thought the re-indictment was retaliation, but that a two year sentence would be fair:

Q And why did you want to be here for the sentencing?

A Because I would like to talk to the Judge and speak to him on behalf of my brother, because I truly feel this case is not about justice. It's about revenge.

***

Q Now, are you asking the Court - what are you asking the Court to do today?

A I'm begging the Court to please give my brother the original deal.

Q Of two years?

A Of two years, yes.

Q And do you think justice will be served that way?

A Yes, I do.


Appellant never uttered the words "prosecutorial vindictiveness" at trial. He never made this due-process claim at trial nor did he request the same relief at trial-dismissal of the indictment- that he requested on appeal. (30) What he did assert at trial was that the State acted in bad faith when it refused to re-offer the two-year plea bargain that it had agreed to before it dismissed the indictment in November 2000, which was before the federal civil trial. (31) This was not sufficient to put the trial court or the State on notice that he was raising a legally-cognizable due-process claim and seeking dismissal of the indictment. Appellant's due-process vindictiveness theory on appeal bore no resemblance to the equitable plea he made at trial. His position at the punishment hearing was that any sentence over two years would be unfair. This was not sufficient to put the trial court on notice of a due-process claim.

C. The claim was not ruled on by the trial court.

Because appellant never made his due-process claim in the trial court, that court was never given the opportunity to either hear evidence or rule on it. In Zillender v. State, (32) we stated the two-fold policies of requiring specific objections at trial:

First, a specific objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it. Second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony. (33)


Because a defendant must prove his prosecutorial vindictiveness claim, the importance of making that claim in the trial court is paramount. Appellant never formally offered any evidence to support this claim, and the State was never given an opportunity to offer evidence to rebut this claim. We stated in Bone v. State: (34)

Under our system of justice, the criminal defendant is entitled to an opportunity to explain himself and present evidence on his behalf. His counsel should ordinarily be accorded an opportunity to explain her actions before being condemned as unprofessional and incompetent. (35)


We should ordinarily accord the same opportunity to a prosecutor to explain his actions before a court condemns him as having violated a defendant's due-process rights with a vindictive prosecution and orders dismissal of a felony conviction. (36)

If appellant had properly raised this issue in a written pretrial motion, the State would have been on notice to introduce the federal court judgment (thus obviating a mistake of fact by the court of appeals) (37) and the prosecutor could have testified concerning any new evidence, such as appellant's letters from jail, that had come to his attention since the original dismissal of charges. The trial judge would have had an opportunity to rule upon that motion, based upon all of the evidence and by assessing the credibility of the prosecutor's explanations.

IV.

We conclude that the court of appeals violated ordinary notions of procedural default in reversing the trial court's judgment on a legal claim which was never presented in the trial court. (38) In this case, it was only on appeal that appellant analogized his situation to that in Blackledge. (39) The court of appeals agreed with his analogy:

Even though the charges are exactly the same in this case, the reasoning still applies. The sequence of events was that the State dismissed Neal's charge completely, the civil suit was heard, and then the State refiled the same charge. So in this case, Neal's position changed from being free from all charges to being subjected to a newly-filed charge-hence the "same" charge (as the original one) is "more serious" (than no charge at all). (40)


The court of appeals stated that there was no evidence in the record to overcome the presumption of vindictiveness. (41) 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 appellant never presented his prosecutorial vindictiveness claim in the trial court, he failed to preserve this issue for appellate review. We therefore reverse the judgment of the court of appeals and affirm the trial court's judgment.

Cochran, J.

Delivered: November 17, 2004

Publish

1.
Neal v. State, 117 S.W.3d 301 (Tex. App. - Texarkana 2003).

2. We granted the State Prosecuting Attorney's two grounds for review:

1) The court of appeals erred by reversing the trial court's judgment on a theory not properly presented to the trial court and upon which the trial court was given no opportunity to rule; and

2) The court of appeals erred in applying a presumption of prosecutorial vindictiveness to the prosecutor's pretrial decision to re-indict, where the record fails to establish a reasonable likelihood of vindictiveness.

Because we agree with the State's first issue, we need not address the State's second ground for review, and we therefore dismiss it.

3. In a bill of exceptions, the prosecutor testified that the decision to re-indict came after the Sheriff's Office complained about the original dismissal. The Rusk County Jail Administrator also testified. He stated that after appellant admitted under oath and in open court that he was in possession of the deadly weapon, his office contacted the district attorney's office about re-indicting appellant.

4. The court of appeals mistakenly believed that the weapons charge "was not re-filed until after Neal went to trial and was awarded damages for violations of his civil rights against Rusk County."
Neal, 117 S.W.3d at 308. In fact, appellant testified that he found out he was awarded damages on April 18th. The State has attached a copy of the federal district court's written judgment to its brief in this Court. We decline to consider that attachment for the truth of its contents, but we do take notice of the fact that this document, verifying the date of the federal judgment as April 18, 2001, could have been introduced into evidence had appellant timely raised his complaint in the proper forum.

5.
Neal, 117 S.W.3d at 308-09.

6.
State v. Malone Serv. Co., 829 S.W.2d 763, 769 (Tex. 1992); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) ("[i]n our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion").

7.
Gawlik v. State, 608 S.W.2d 671, 673 (Tex. Crim. App. 1980).

8.
Castleberry v. State, 704 S.W.2d 21, 24 (Tex. Crim. App. 1984) ("[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, 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.'") (quoting Hayes, 434 U.S. at 363).

9.
United States v. Goodwin, 457 U.S. 368, 373 (1982).

10.
United States v. Johnson, 171 F.3d 139, 140-41 (2d Cir. 1999).

11.
Goodwin, 457 U.S. at 380-81. See generally 4 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure § 13.7(c) (1999) (discussing historical evolution of constitutional "prosecutorial vindictiveness" claims). The Supreme Court made clear that it would be quite difficult for a defendant to meet the high burden of demonstrating actual vindictiveness. Goodwin, 457 U.S. at 384 n.19 (quoting government's brief that "the defendant is free to tender evidence to the court to support a claim that enhanced charges are a direct and unjustifiable penalty for the exercise of a procedural right. Of course, only in a rare case would a defendant be able to overcome the presumptive validity of the prosecutor's actions through such a demonstration").

12.
Blackledge v. Perry, 417 U.S. 21 (1974). In Goodwin, the Supreme Court explained why the presumption of vindictiveness prong rarely-if ever-applied outside the context of prior conviction, successful appeal, and post-appeal enhanced charging decision:

There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor's assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins-and certainly by the time a conviction has been obtained-it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.

Goodwin, 457 U.S. at 381.

13.
Goodwin, 457 U.S. at 375; see also United States v. Paramo, 998 F.2d 1212, 1220 (3rd Cir. 1993)("[e]ven if a defendant establishes a realistic likelihood of vindictiveness, however, the government still has an opportunity to proffer legitimate, objective reasons for its conduct").

14.
United States v. Krezdorn, 693 F.2d 1221, 1229 (5th Cir. 1982) (stating that when presumption of prosecutorial vindictiveness applies, "the district court may consider any reasonable explanation for the added charges, so long as the explanation tends to negate an inference of retaliatory motivation").

15.
Id.; see also United States v. Johnson, 91 F.3d 695, 698 (5th Cir. 1996) ("[a] district court's factual findings on prosecutorial vindictiveness are reviewed for clear error and the legal principles which guide the district court are reviewed de novo").

16.
Texas v. McCullough, 475 U.S. 134, 138 (1986).

17.
Goodwin, 457 U.S. at 384 & n.19; see also United States v. Whaley, 830 F.2d 1469, 1479 (7th Cir. 1987) ("[t]o prove actual vindictiveness, there must be objective evidence that a prosecutor acted in order to punish the defendant for standing on his legal rights").

18.
United States v. Sarracino, 340 F.3d 1148, 1177-79 (10th Cir. 2003); United States v. Moulder, 141 F.3d 568, 572 (5th Cir. 1998) ("[i]n reviewing a prosecutorial vindictiveness claim, 'the court must examine the prosecutor's actions in the context of the entire proceedings.' The defendant must prove the claim by a preponderance of the evidence; and, '[i]f any objective event or combination of events ... should indicate to a reasonable minded defendant that the prosecutor's decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to deter or punish appeals, no presumption of vindictiveness is created'") (citations omitted).

19.
United States v. Contreras, 108 F.3d 1255, 1262-63 (10th Cir. 1997).

20. The dissent argues that this Court does not address the claim that appellant actually raised in the trial court. That is, to some extent, true. The claim that appellant brought in the trial court was his closing argument equitable plea that
the trial judge should not impose any greater sentence than the two-year plea bargain that the prosecutor had once agreed to. That is not a legal claim of prosecutorial vindictiveness. Neither appellant nor the dissent cite any precedent that a plea-bargain offer that is once made, but later retracted, may form the basis of a legal claim of prosecutorial vindictiveness. It is largely for this reason that we have set out the two possible legal bases for a constitutional claim of prosecutorial vindictiveness in Part II.

This Court can address only the decision by the court of appeals, see Tex. R. App. P. 66.1, and that court ordered dismissal of the indictment on a legal claim that was not raised in the trial court.

21.
Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004).

22.
See 43A George E. Dix and Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 42.78, at 274 (2d ed. 2001).

23. Under Tex. Code Crim. Proc. art. 28.01 preliminary matters include:

(1) Arraignment of the defendant, if such be necessary; and appointment of counsel to represent the defendant, if such be necessary; (2) Pleadings of the defendant; (3) Special pleas, if any; (4) Exceptions to the form or substance of the indictment or information ....

24. Tex. Code Crim. Proc. art. 28.01, § 2, provides that "[w]hen a criminal case is set for such pre-trial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown; provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters. The record made at such pre-trial hearing, the rulings of the court and the exceptions and objections thereto shall become a part of the trial record of the case upon its merits."

25.
Valadez v. State, 408 S.W.2d 109, 111 (Tex. Crim. App. 1966).

26.
Wilson v. State, 398 S.W.2d 291, 293 (Tex. Crim. App. 1966) (op. on reh'g).

27.
Sewell v. United States, 406 F.2d 1289, 1292 (5th Cir. 1969).

28. Appellant claimed that, because the State checked the box "convicted on other charges" on the dismissal form when it originally dismissed the weapons indictment, the trial court must have taken this indictment into account in accepting the plea bargain in the forgery and burglary charges. The trial court rejected this claim because appellant pleaded guilty to those crimes before he was ever indicted for the deadly-weapon offense and there was no evidence that the trial court had taken this uncharged offense into account in accepting the plea bargain on the forgery and burglary charges.

29.
See United States v. Peterson, 233 F.3d 101, 105 (1st Cir. 2000) ("[b]ecause Peterson failed to raise a claim of vindictive prosecution prior to trial, the claim is waived and we review for plain error"); Jarrett v. United States, 822 F.2d 1438, 1442 (7th Cir. 1987) ("Rule 12(b) requires that motions for selective and vindictive prosecution must be brought prior to trial or they will be deemed waived"); United States v. Conkins, 9 F.3d 1377, 1382 (9th Cir. 1993) ("a claim of 'vindictive prosecution' presents primarily factual questions of government motive. However, Sandvig did not raise this issue below, and therefore there is no evidence in the record to support his contention. Therefore, this issue does not present any of the exceptional circumstances that warrant a departure from our rule barring consideration of an issue raised for the first time on appeal").

30. The dissent notes that appellant did request, as alternative relief, that the court of appeals remand the case for a new trial or enforcement of the State's original plea offer, but that alternative relief is nonetheless based upon a legal claim that was never presented to the trial court.

31. In his closing statement, appellant's attorney argued for a two-year sentence, not dismissal of the indictment:

Now, you know, you try- the law is supposed to do justice. The law is supposed to be equal to all. What each one of us interpret as justice makes the difference on what different people get. At one time, me and the Prosecutor in this case were on the same line with Ronnie Joe Neal as to what justice was in this case, and that was two years in the state penitentiary. That's what we all thought justice would be served in this case.

But for some reason, it was dismissed, just up and dismissed by the District Attorney, who undoubtedly thought at that time even two years was too much justice, so they just dismissed. And I think there's been testimony as to why it was dismissed is because the night before the plea, the Sheriff's Office found out he had AIDS, and they took him back and didn't want to bring him back to Rusk County. But then when the federal lawsuit is heard, all at once justice should be 2 to 20 years. Not 2 years, but anywhere between 2 and 20 years.

That is not justice. That is punishing a man for filing suit on violation of his civil rights and not punishing for any criminal things he had done. And that ain't justice, Judge. In no sense of the word is that justice. Now, this man here, I think to resolve this issue, he's in agreement, his sister's in agreement, I'm in agreement, punish him with the original two years that everybody thought was right.

32. 557 S.W.2d 515 (Tex. Crim. App. 1977).

33.
Id. at 517.

34. 77 S.W.3d 828 (Tex. Crim. App. 2002).

35.
Id. at 836.

36.
See United States v. Amberslie, 312 F. Supp.2d 570, 571-72 (S.D.N.Y. 2004) (stating that when defendant provides sufficient circumstances to raise a rebuttable presumption of vindictiveness sufficient to require the Government to respond with evidence of lack of animus, "[s]uch a response may normally be made, at least in the first instance, through affidavits from the relevant prosecutors, after which the burden shifts back to the defense to establish that the proffered response is pretextual or otherwise inadequate").

37. See note 4,
supra.

38.
Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002) ("a trial court's decision will not be reversed on a theory the trial court did not have an opportunity to rule upon and upon which the non-appealing party did not have an opportunity to develop a complete factual record").

39. Even then, appellant did not articulate whether his vindictive-prosecution claim was one purportedly raising a presumption of vindictiveness or one of actual animus. Arguably, therefore, the court of appeals reversed the trial court on a theory that was never properly raised, even in the appellate court.

40.
Neal, 117 S.W.3d at 308.

41.
But see United States v. White, 972 F.2d 16, 19 (2d Cir. 1992)("White violated federal and state laws in selling illegal drugs. The state's 1986 decision not to prosecute White is unrelated to the federal Government's 1991 determination that there was probable cause to believe that White had committed narcotics offenses. Even though White can show that his forfeiture claim brought his unprosecuted activities to the prosecutor's attention, this showing does not esta

Juan Garcia "Feelin the Byte". Prevarication is not an attribute S TX "Believes In"

Juan is Using HD #33 AS A STEPPING STONE. ASK HIM TO COMMIT TO PUTTING THE TIME IN TO ACQUIRE THE NEEDED SENIORITY TO ACCOMPLISH GOALS FOR SOUTH TEXAS.

Mikal Watts? Who knows why the Good Government PAC gave the money and made the ads. It seems that it is hurting Juan more than helping him. maybe that is WATT Mikal intended.

IMO Juan Garcia should distance himself from the ads. But Juan is probably on the same page with the good Governnment PAC and the polarizing ads.


Payed? or what?
Posted on October 8, 2006 at 09:16:51 AM by cabalas

So jk and wife...
How much did seamen pay you guys to write and blast juan g.?
Or does you wife just like seamen?

-------------------------------------------------------------------------------------------------

Juan Garcia is not a Democrat. He is a Progressive.

Juan Lied From The Get Go.
Posted on October 8, 2006 at 11:17:12 AM by Jaime Kenedeno

We dont like Seamen and we dont like people who lie.

Not a choice IMO.

Juan's wife works for KFATSO. The only thing he is passionate about is the Homeowner's insurance on the island. I wonder why?

Juan should have been truthful.

You might want to ask him about intlellectual property.

Payed? Nobody pays us to write on this board. We can turn up the volume should you guys choose.


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The fact that he frequents the SPTX Radio Station and Advertises in the SPTX Paper......
Posted on October 8, 2006 at 11:20:23 AM by Jaime Kenedeno

and the fact that he is a military man just do not reconconcile with each other.

Just doesnt make sense.
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Re(1): The fact that he frequents the SPTX Radio Station and Advertises in the SPTX Paper......
Posted on October 8, 2006 at 06:20:29 PM by kj

What makes you so good jaime?
What have you done or could you do better than juan g.?
He works harder than you and homero.
Don't you still live at your parents house? Do you have a job other than doing homers bidding? Get real you are nothing more than a political prost.

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That trash Christain Archer is Putting Out is costing Juan Garcia even on the Island.
Posted on October 8, 2006 at 11:00:33 PM by Jaime Kenedeno

Juan Garcia and Joe Hall live on the Island and their neighbors won't even vote for Juan. The military vote is second guessing due to the company of Companeros Juan is hangin with these days. Also, FYI I have my own home but it is not on the Island. Average people cant afford to live on the Island. Go run for office over there with that Menendez group. You guys dont got it and never will here in South Texas. Go do your business in San Antonio.

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You are Jealous Rowland. A Kelleyized Socialista Anti American Air Brown Nosing For WATT
Posted on October 8, 2006 at 10:49:52 PM by Jaime Kenedeno

"What makes me so good?"

I can back up WATT I write. That is WATT makes me so good.

A JOB?

Do you pay my bills?

Do I ask you for anything?

My JOB Opportunities have been modified.

It is called being "BLACKBALLED".

But I never will relax and enjoy it.

Again it is your info Rowland.

Shall we blast your secrets to the world?

Why dont you got the balls to talk your crap to my face. I live at my parent's house cuz it is my house and my Father was ill. Well today he died.

And I run circles around all of these guys, i am smarter and much more prepared than you guys would ever estimate.

Political Prostitutes get paid and unlike them I enjoy WATT I do.

It aint ever gonna be about money for me like it is for the Andrades and the Rowlandos and all of you other brown nosing puds.

So you JUANA blast?

You found just the right guy.

Juan Garcia is a lying, decieving and backstabbing piece of work with a pretty face and a surfbord.

SO WATT.

Just wait and see who gets the word out now.

Del Mar Electronic Anonymous Input Forum: WATT will happen 2 morrow @ the Regents Meeting with CG who LOVES TA. Also, there is an individual (per Cox

Del Mar Electronic Anonymous Input Forum: WATT will happen 2 morrow @ the Regents Meeting with CG who LOVES TA. Also, there is an individual (per Cox v. DMC) Who's Welfare is Threatened

Dreams of Elaborate (elastic) Policies and Shifting Sands of Due Process. How many "DUBBLE TALKS" can you find in the Paragraphs Below?

The Response Article to this should be entertaining.

Mike Westergren should recuse as well. Will the Regents heed our words?

Probably not.

Del Mar Electronic Anonymous Input Forum: WATT will happen 2 morrow @ the Regents Meeting with CG who LOVES TA. Also, there is an individual (per Cox v. DMC) Who's Welfare is Threatened

Welcome back my friend to the show that never ends, we are so glad you could attend....

Anti "American Air" RAIDio Polluting the Body of Christ. "We Know, We're From Here"

Anti "American Air" Radio Polluting the Body of Christ & Subversive Faux Publication using Marxist tactic controlling the press & flow of information


Many of you asked how someone like Sanctus Vilitas came to power. This is the lesson that all must learn. It is survival to the free society that must be established.

Vilitas came to power by using a Marxist tactic of controlling the press and the flow of information. It works my friends. The theory is simple. Control the information, the language, and you control the masses.


Even if you dont post it you read it!

Where is the First Amendment now?

Their once thrivin venue (STX Chisme), is now deserted.

Wonder why?

"We Know, We're from here"

--
Kenedeno & Associates

Anti American Air

Without Shame?


Why did they mask themselves?

Why do they want to claim the Democratic Name?

WATT does the DINO conspire to gain

at the expense of our neighbor's pain

They were sent down from the North with a "Points of Unity" Campaign

To piggy back our "work product" and say it is their own, is that not WATT they claim?

Now we will see the Beach Blockade succeed cuz for the JOB they bought the wrong brain.

And still they will have no shame.

You will see and I already know, their word is meaningless. Their Articles are very boring and slow.

After all, "We're From Here".....

And such is life in South Texas

True to our roots ......

The People Reap WATT they Sew.

That is a promise I quote.....

"We know" posted by Jaime Kenedeño

Del Mar Electronic Anonymous Input Forum: WATT the..........? Del Mar eyes tax boost to finance construction? Another Fultonian Overun? Or Fleeced by

Del Mar Electronic Anonymous Input Forum: WATT the..........? Del Mar eyes tax boost to finance construction? Another Fultonian Overun? Or Fleeced by Alaniz?

A 19% tax rate increase.

Those scratch offs are getting very expensive Mr Alaniz.

Nueces County Aristocrat Society: This Nueces County Jail issue is a counter balance in the ongoing tactical maneuvers

Nueces County Aristocrat Society: This Nueces County Jail issue is a counter balance in the ongoing tactical maneuvers

Nueces De La Parra: Ranch museum tells epic tale of pioneering Kenedy family

Nueces De La Parra: Ranch museum tells epic tale of pioneering Kenedy family

South Texas Chisme: Dangerous chisme?

South Texas Chisme: Dangerous chisme?
Remember when you could look in the mirror and even if it was unfavorable to YOU or YOURS the announcement came in stentoric fashion????

South Texas Chisme: Don't Have To Get Physical To Be Someone's "Ho"

South Texas Chisme: Don't Have To Get Physical To Be Someone's "Ho"

Del Mar Electronic Anonymous Input Forum: "We have intelligent people that know the right words to say to get attention," he said of those who have co

Del Mar Electronic Anonymous Input Forum: "We have intelligent people that know the right words to say to get attention," he said of those who have complained.

Del Mar Electronic Anonymous Input Forum: Adriana will you please look into the selective release / demotions at Del Mar? Isn't the fat better cut at

Del Mar Electronic Anonymous Input Forum: Adriana will you please look into the selective release / demotions at Del Mar? Isn't the fat better cut at the Executive Level?

Nueces De La Parra: "IN THE KNOW": The Retaliation and Harassment Continues After the Shooting

Nueces De La Parra: "IN THE KNOW": The Retaliation and Harassment Continues After the Shooting

I Love My Corpus Christi: Roy Miller "Loved His Corpus Christi"!

I Love My Corpus Christi: Roy Miller "Loved His Corpus Christi"!

Leadership lessons from the past
Roy Miller’s political skills, vision brought Corpus Christi into the modern era
By Mike Carlisle


Before Henry Pomeroy “Roy” Miller, became mayor of Corpus Christi in 1913, streets were made of sand, the bluff was a muddy mess, and water needed to be hauled in, said Bill Walraven, a local historian, author and journalist.

“Miller took the lead in building a water works, storm and sanitary sewer system, a garbage incinerator, installing electric lights, (building) paved streets, improving the bluff, creating a fire department, pushing for causeways, and rebuilding the city after it lay in ruins following the 1919 hurricane,” Walraven said. “He was also a leader in the fight for the Gulf Intracoastal Waterway.”

In one of his biggest achievements, Miller used his leadership skills to secure Corpus Christi a deep-water port in 1922 after the city had lost a fight for such a port in 1910.
Historian Mary Jo O’Rear also has researched Roy Miller and written about Corpus Christi politics through her work to expand on an article she wrote for the January 2005 Southwestern Historical Quarterly. O’Rear taught history for more than 32 years in Corpus Christi secondary schools and six years at Del Mar College.


CorpusBeat: What brought Miller to Corpus Christi?
Mary Jo O’Rear: Robert Kle-berg, who took over King Ranch, wanted to push South Texas. The Kleberg family was funding a railroad line from St. Louis to Brownsville through South Texas. During a trip to Houston, Kleberg ran into Roy Miller ... and brought him to Corpus Christi in 1904 as a booking agent for the St. Louis, Brownsville and Mexico Railroad. Robert Kleberg and other ranchers were selling off the pastureland to farmers. The ranchers needed someone to convince farmers they could grow great crops in South Texas, which is scrub desert. Kleberg needed someone to sell the idea to Midwesterners, Czechoslovakians, and Germans who were desperate for land.

As mayor, then newspaper editor, Roy Miller worked to secure a port of Corpus Christi. Photo courtesy of Jim Moloney.

CB: Was Miller successful?
MO: Miller was doing a marvelous job bringing in farmers who were tired of living up north, or fresh off the boat from Europe. Miller would load them up on trains called “Blackland Specials” to bring them down to South Texas and show them the land.

CB: Why did Roy Miller have such conviction about a deep-water port for the economic growth and industrial development of Corpus Christi?
MO: Many of the farmers who had come down and set up their farms around Kingsville could not get their crops to Galveston or Houston ports soon enough before spoiling. Miller was convinced a deep-water port in Corpus Christi was the solution. Rockport and Aransas Pass thought they should be the port location as well, so an intense rivalry emerged.

CB: How did Miller build support for the deep-water port in Corpus Christi?
MO: Miller re-invigorated the Corpus Christi Commercial Club, which was similar to a Chamber of Commerce. Miller brought a lot of young men into the club interested in developing the city. This is when he really began to push Corpus Christi as an economic entity. Miller realized politics was the only way economic growth was going to work successfully. Eventually the work propelled Miller onto a city commission and into city politics.

CB: How did people react to Roy Miller being in city politics?
MO: City politics came easy to Miller because he was such an outgoing person. He was full of energy and full of sincerity, but more than that he was a great speaker. He loved speaking and he wrote the same way he delivered speeches.

Miller used the word “excellent” all the time. People flocked to hear him speak. Whether he was selling a candidate, right of way on the “Blackland Special,” or even himself, whatever it was, he was a firm believer.

Miller moved straight ahead to secure the port after being elected mayor in 1913, with backing from Kleberg and local businesses. Corpus Christi had lost the fight for a port in 1910 because the Army Corps of Engneers did not consider it big enough nor developed enough. So when Miller became mayor in 1913, he began to accelerate the changes that former Mayor Clark Pease had started.

CB: Why did Miller lose his fourth mayoral bid?
MO: Miller ran for a fourth term, the term in which he expected to finally secure the port. But Walter Pope, former city attorney and state representative put his own law partner, Gordon Boone, up against Miller. The action split the city. Then, Pope revealed that Miller had taken money on the side from businesses for special favors. The allegations made it appear that Miller was taking money under the table. Miller never denied the allegation. He explained that he just used the money to finance trips to Washington. He lost the election in April 1919.

CB: What was the result of Miller losing the mayoral election?
MO: All the work ground down to a halt. All the work on the port, the federal efforts, modernization, all of it stopped. Then the hurricane of 1919 struck in September.

CB: How did the new administration respond to the storm? MO: The new mayor, Gordon Boone, set up a relief committee to recover from the storm. Boone placed himself and Miller in charge of the committee.

CB: What did Miller do?
MO: By the next day, Roy Miller had everybody in the city working together, including all the leading political opponents and adversaries. Miller was devastated to lose the election and bitter. But when “his” city, because it was still “his” city, when it was damaged so terribly, he answered the call of Gordon Boone to co-head the relief committee. Miller did a tremendous amount of work during the rehabilitation. But more than that, people discovered through the rehabilitation they could work together despite their differences.

From that point, Miller continued pulling together all of the opposing political factions. People watched Miller work with former political rivals and adversaries like State Sen. Archie Parr and State Rep.Walter Pope to push the port through the state legislature.

CB: What other ways did Miller unite the efforts for a Corpus Christi port?
MO: Miller wrote a series of essays and editorials in the Caller (where he was editor), and canvassed businesses to bring in money for the port. Miller was successful in getting the San Antonio Chamber of Commerce to support Corpus Christi, a major breakthrough because San Antonio had not supported Corpus Christi very well up until that time.

CB: When was the port secured?
MO: In 1922, President Warren Harding signed a bill designating Corpus Christi as a deep-water port, and within four years it was built. Miller was master of ceremonies when the port was dedicated. That is why Roy Miller is considered the “father” of the port. He had a devotion to Corpus Christi. He did everything he could to secure the port.

CB: How do you think people would perceive Roy Miller today?
MO: Well, it’s not fair because people back then looked at things differently. Nobody went about getting votes honestly back then. If you didn’t force people to vote your way because you owned the land they lived on, you were trying to keep people from voting because they were black, or poor or brown.

Roy Miller was a “Progressive” (a faction of the Democratic party). The Progressives wanted to limit the vote to whites only and the Old Guard Democrats like Archie Parr and Walter Pope wanted things the way they were, letting Mexican American and black voters vote as long as they voted the way you wanted them to vote. We have the advantage of looking back. We can say, “Oh, that’s bad, you are using bribery, you are using prejudice, you are using all sorts of things to get votes and that is not right.” I don’t think Miller would fare well at all today, especially if he would try things now that he did back then. Miller was not politically correct.

But, if you put all of that aside, if you look at his enthusiasm, his energy, his love, his personality, I still don’t think he would survive because people are not used to that today. I think we have people who are full of energy and enthusiasm, a passion for whatever cause they have, but we invariably try to tear them down. It is almost like we are uncomfortable with them.

Miller would have been a strong leader, but Corpus would look at him and say, “Now what have you really got going?” Leaders today would love to have Miller’s charisma and sincerity. Because even if people were not quite sure that he was totally on the up and up, they liked him.

CB: Would you describe Roy Miller as a leader who delegated well?
MO: Miller relied on people close to him like his in-laws who were doctors, especially about medical matters, such as closing down everything during the 1918 Spanish flu epidemic. He also made good choices and use of commission members. All the different areas of the city had different commissions to handle, areas like sanitation, or law enforcement. He did not feel the need to control everything.

CB: Did Roy Miller remain in Corpus Christi throughout his life?
MO: He kept his home here in Corpus. He was a leading politician behind the scenes for years, with homes in Houston and Washington, but he always made time for his home in Corpus Christi. Every time, he and his wife would return home to Corpus Christi, they would fly a Texas and American flag to let everyone know they were home and looking for guests to come over and see them.

Sergio Perez contributed to this article."!

Political Pulse

Woody Guthrie was fond of telling the story of a fellow who was out walking one day. Now this person was of the sort that some might call a hobo or perhaps a bum but whom I shall call a free spirit. Now as this free spirit was walking he found a fence blocking his progress and a large sign that said "PRIVATE PROPERTY - No trespassing." But being a free spirit he ignored the sign, hopped the fence and proceeded on his way. After a while another fellow approached him at rather a fast clip displaying signs of extreme agitation. "Didn't you see that sign" he demanded. "This here is private property and there's NO TRESPASSING." "So you're saying you own this land" inquired the free spirit. "Damn right" replied the other. "Well how did you get to own it?" said the free spirit.

Nueces De La Parra: Face it Gabe Rivas, Carlos Garcia & Ben Blanco; Del Mar Female Students are not interested in YOU or your VIAGRA!

Nueces De La Parra: Face it Gabe Rivas, Carlos Garcia & Ben Blanco; Del Mar Female Students are not interested in YOU or your VIAGRA!

South Texas Chisme: LULAC are you serious?

South Texas Chisme: LULAC are you serious?

Nancy Vera starts to put into writing

Esperanza Y Poder
e-mail to a friend print this
Contributed by: Nancy Vera on 4/28/2006

Let's talk about the plight of immigrants, the struggle of the poor, and how we can take action against atrocities and crimes against humanity. Let's talk about class struggle and let's talk about true freedom. I am appalled with the following incident about how two teens in Spring, Texas attacked a Mexican teen. I am equally as appalled that prosecutors " are considering whether to attach hate-crime charges." When racial epithets are blurted during an act of violence, it is a hate crime. These prosecutors, whether the penalty is the same with what the alleged perpetrators are already charged or not, should call it what it is. It should be noted for the record. To do otherwise is a sin against humanity and God. There is no doubt that racist video games perpetuate these heinous crimes. Where is the outrage? Reports state that the teen attackers dragged the young man from a party and into the yard and sodomized him with a plastic pipe from a patio table umbrella. They also indicate that the victim had high levels of toxins in his organs which means that the attackers may have poured bleach inside the pipe. Additionally, after they got him down, the attackers stomped his head with steel-toed boots and one official says that the attackers kicked the pipe further into him with the boots.The pipe was sharpened at one end and the attackers also tried to carve something on the young victim's chest with a knife. The attackers were also spewing racial epithets as they committed the act.May God help us all and may peace, nonviolence and social justice reign in the world, especially in the country of the free and the brave.


You should advocate for this despite the color of skin
Posted on May 15, 2006 at 04:03:11 AM

by Jaime Kenedeno
Nancy, maybe it was a hate crime however, you help the cause only less by bringing in the race card. IMO it is an attempt to appeal to a select group of people instead of all who despise this heinous act. Your credibility is diminshed as is the cause your fight for. This is a provocation attempt to build a united base for YOU to YANQUI (exploit). It is obvious YOU are in it for YOU first and then for the cause. You should advocate for this despite the color of skin. Quit using your people and let's start creating equality. Work smarter not harder.

Jorge an enthusiastic puffy horn of KFATSO

Dont forget the Caller times