I agree with the disposition of appellant's sole ground of error, but feel compelled to comment upon the bifurcated trial proceedings used and the use of pre-sentence reports where probation is not an issue. Further, I would consider as unassigned error under Article 40.09, Section 13, Vernon's Ann.C.C.P., the Santobello v. New York, 404 U.S. 257,92 S.Ct. 495, 30 L.Ed.2d 427 (1971), question reflected by this record and abate for an evidentiary hearing by the trial court.
First, I agree that assessment of the higher punishment at a so-called hearing on punishment was not in violation of North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081,23 L.Ed.2d 656 (1969), which stated in part:
". . . whenever a judge imposes a more severe sentence upon a defendant After a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal." (Emphasis Supplied)
In the instant case there was only one trial — a plea of guilty before the court. No new trial was granted. The withdrawal of the assessment of the two (2) years' punishment upon the request of appellant's counsel for an updated pre-sentence report and the subsequent assessment of three (3) years at the so-called punishment hearing did not constitute a new trial.
It is observed that the bifurcated trial proceedings utilized here are not required where the plea of guilty is before the court after waiver of trial by jury. Article 37.07, Vernon's Ann.C.C.P., is not applicable to such proceedings. Morales v. State, 416 S.W.2d 403 (Tex.Cr.App. 1967). Here, however, there was no objection to the bifurcated proceedings. Further, after the request for an updated pre-sentence report the court explained to the appellant that there would be a delay and no prompt assessment of punishment, and the appellant waived any right to prompt assessment of punishment.
As to pre-sentence reports, it is observed that the only statutory authority for presentence reports is found in the felony adult probation statute. Article 42.12, Section 4, Vernon's Ann.C.C.P. This statute is generally utilized by courts in passing upon the issue of probation. Rodriguez v. State, 502 S.W.2d 13 (Tex.Cr.App. 1973); McNeese v. State, 468 S.W.2d 800 (Tex.Cr.App. 1971). In the instant case the court referred to a pre-sentence report having been made some nine or ten months earlier when the appellant was acquitted of another offense. The *Page 552 court ordered an updated pre-sentence report although the issue of probation was not in issue. It appears that this was the practice of the trial court in all cases. It is observed though that no further mention is made of an updated pre-sentence report in the record at the hearing on punishment or otherwise. Whether one was prepared or not does not appear from this record.
With these observations, I agree that appellant's ground of error has been properly disposed of.
Another matter concerns me. This record shows that the trial court carefully admonished the appellant. At one point, he inquired if the appellant expected the State to make a recommendation as to punishment. The appellant replied in the affirmative, and stated he thought the State would recommend two (2) years. The court warned the appellant he was not bound by any recommendation. At the conclusion of the first hearing, the State did recommend two (2) years, and the court assessed a penalty of two (2) years. After the request for an updated pre-sentence report was made, the assessment of punishment was set side. At the subsequent so-called hearing on punishment, the State recommended three (3) years, the maximum penalty for breaking and entering a motor vehicle. The court assessed punishment at three (3) years.
In Santobello v. New York, supra, the United States Supreme Court vacated the judgment and remanded the case for reconsideration in light of the opinion in a situation where the State did not live up to its plea bargaining agreement that it would make no recommendation to the court as to punishment following a guilty plea. There, the court wrote:
"This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by the safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled."
In light of the record before us, I would abate the appeal and order the trial court to conduct a hearing to determine if the appellant bargained and negotiated his guilty plea on the condition that the State would recommend a punishment of two (2) years and would further instruct the court to make findings of fact and conclusions of law and return the same to this court together with a record of the hearing. See Kincaid v. State, 500 S.W.2d 487 (Tex.Cr.App. 1973); Hullum v. State, 415 S.W.2d 192,197 (Tex.Cr.App. 1967).
It should be kept in mind that a prosecutor's promise may deprive a guilty plea of the 'character of a voluntary act.' Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510,7 L.Ed.2d 473 (1962).
To the extent that the majority does not agree to abate the appeal for the reasons above stated, I dissent.