The majority concludes, without analysis, that the State did not vindictively add enhancement paragraphs after the appellant had his prior conviction reversed on appeal. As a result, I dissent.

The majority uses Texas v. McCullough ⁽¹⁾ 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, ⁽²⁾ the facts of McCullough are drastically different from the facts of the instant case.

In McCullough, the defendant was first sentenced by a jury. The trial court granted a new trial, and the defendant went to the judge for sentencing (the same judge who granted the motion for new trial). On retrial, the State produced more evidence, including the facts that the defendant was actually the shooter in the offense and that the defendant had been out of prison for only four months when he committed the offense. The Supreme Court simply held that the reason for an increase in punishment resulting from a retrial need not have arisen after the first sentencing. ⁽³⁾

In the case before us now, the State added enhancements to an indictment after the court of appeals had reversed the prior conviction. The State's reason: we simply forgot to do it the first time. This is not even remotely like McCullough.

The majority opinion notes that some jurisdictions have chosen to accept the excuse, "we forgot," as a legitimate reason for increasing the stakes in a criminal case on retrial. It also notes that some jurisdictions have chosen not to accept "we forgot." It then simply adopts that former, without any analysis whatsoever.

Because the majority provides no analysis for its conclusion, I must dissent.

Filed: January 18, 2006.

Publish.

1. 475 U.S. 134, 135-37 (1986).

2. Id. at 137.

3. Ibid.