OPINION
Appellant was tried before the court on a plea of guilty to the offense of breaking and entering a vehicle. He was found guilty and assessed a punishment of three years' confinement by the court.
The record shows that the prosecuting attorney recommended a sentence of two years after appellant's trial before the court on June 17, 1974. The court assessed punishment at two years but, after defense counsel requested that an updated pre-sentencing report be compiled for the judge's consideration, the court instructed the reporter to expunge the reference to two years' imprisonment from the record. A punishment hearing was held on July 8, 1974 and the court considered an updated pre-sentencing report and heard evidence on the issue of punishment. At the conclusion of the hearing, the prosecutor recommended and the judge assessed a punishment of three years.
Appellant's sole ground of error asserts that the longer sentence assessed by the court was in violation of the restraints imposed by North Carolina v. Pearce, 395 U.S. 711,89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Pearce held that due process of law dictated that vindictiveness could not play a part in the court's sentencing of a defendant who had successfully availed himself of his statutory rights in obtaining a new trial. Therefore, any decision of the trial court to assess a greater sentence than that imposed in the earlier sentencing proceeding had to be accompanied by an affirmative showing in the record of objective conduct on the part of the defendant occurring after the time of the original sentencing proceeding and justifying a harsher sentence.
This salutary constitutional principle was followed in Texas in the case of Miller v. State, 472 S.W.2d 269 (Tex.Cr.App. 1971). It has been extended to constrain the trial court's imposition of sentence in a trial following the granting of a motion for new trial. Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App., delivered June 4, 1975); Payton v. State, 506 S.W.2d 912 (Tex.Cr.App. 1974). The Pearce principle has even been applied to a vindictive reimposition of sentence following the giving of defendant's notice of appeal. Colburn v. State,501 S.W.2d 680 (Tex.Cr.App. 1973). However, we decline to extend Pearce to the instant case. Sentences following requests for updated pre-sentencing reports are far removed from the situations originally contemplated by Pearce and its progeny. Consideration of pre-sentence reports is discretionary *Page 550 with the trial judge. Art. 42.12, Sec. 4, V.A.C.C.P. A practice on the part of a trial judge in considering such reports does not elevate them to the status of a statutory right protected from infringement by North Carolina v. Pearce. Nor does vindictiveness appear here where the court merely followed the prosecutor's recommendation for a higher sentence. A prosecutorial request for an enhanced sentence following the grant of a new trial was held not to invoke the Pearce rule in Arechiga v. State, 469 F.2d 646 (5th Cir. 1972).
The Pearce rationale obviously does not apply to resentencing by a jury ignorant of a defendant's earlier trial. Curlin v. State, 505 S.W.2d 889 (Tex.Cr.App. 1974); Casias v. State, 452 S.W.2d 483 (Tex.Cr.App. 1970). In fact, the case of Ex parte Mullins, 505 S.W.2d 575 (Tex.Cr.App. 1974) would appear to be dispositive of the case at bar. In Mullins, the petitioner claimed that the judge cumulated his sentences rather than running them concurrently, in violation of North Carolina v. Pearce. This Court noted that the original order for concurrent sentences had never been assessed at a formal sentencing proceeding, thus there could be no vindictive resentencing. The judge's initial assessment of two years in the instant case came immediately after appellant's trial, before his motion for new trial or waiver of the ten days therefor. There was thus no formal imposition of the two year sentence and the Pearce reasoning did not attach.
Appellant's ground of error is overruled and the judgment is affirmed.