*519OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT
ONION, Presiding Judge.At a second trial appellant was convicted of the actual delivery of heroin, a controlled substance, a first-degree felony. See Article 4476-15, § 4.03(b), V.A.C.S. One prior felony conviction was alleged and proved for enhancement of punishment. The jury assessed punishment at 25 years’ confinement in the Texas Department of Corrections.
At appellant’s first trial the trial judge assessed punishment at 15 years’ imprisonment. Later the same judge granted a new trial under Article 40.09, (12) V.A.C.C. P. (1965). This apparently was due to a claimed deficiency in the allegations of the indictment. A new indictment was then presented. A vacancy occurred on the trial court, and a new judge was appointed by the Governor. At the second trial the new judge presided and the appellant elected to have the jury assess punishment. Punishment was assessed at 25 years after the jury found appellant guilty and after he pled “true” to the enhancement allegation of a prior felony conviction.
On appeal the appellant, inter alia, complained in his first ground of error that his trial counsel provided ineffective assistance of counsel in advising him to elect to go to the jury for punishment. He asserted North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), barred the second trial judge from assessing a punishment greater than the first trial judge did, which was 15 years, and that by electing the jury to assess punishment upon counsel’s advice, he received 10 additional years of punishment.
The Court of Appeals held the evidence sufficient to sustain the conviction but remanded the cause to the trial court to hold a hearing to determine whether there was “objective information” available which would have allowed the trial judge to have assessed a more severe penalty than 15 years if he had been chosen by the appellant to have assessed punishment. Jackson v. State, 640 S.W.2d 323 (Tex.App.-San Antonio 1982) pet. ref’d. Following the evidentiary hearing in the trial court, the Court of Appeals determined that Pearce applied to this cause and there was no “objective information” which would have allowed the second trial judge to have imposed a greater punishment than 15 years. The Court of Appeals concluded that counsel had provided ineffective assistance of counsel for the sole reason of having advised appellant to elect to have the jury assess punishment. The court thus sustained the first ground of error and reversed the judgment. Jackson v. State, 662 S.W.2d 74 (Tex.App.-San Antonio 1983).
The State's petition for discretionary review was granted, and this Court affirmed the judgment of the Court of Appeals. This Court, with three judges dissenting, likewise determined that the so-called prophylactic rule in Pearce applied, and held in absence of “objective information” concerning identifiable conduct on the part of the appellant occurring after the first trial, the punishment could not have been assessed at a greater term than 15 years by the second trial judge if he had been chosen to assess punishment. This Court agreed that in electing the jury instead of the judge to assess punishment the limitation on punishment was removed. It was held that counsel failed to advise appellant about the impact of Pearce, and that this single error resulted in ineffective assistance of counsel. The judgment of the Court of Appeals reversing the trial court was affirmed.
The State then filed its petition for writ of certiorari with the United States Supreme Court claiming, inter alia, that Pearce had no application to this case. On April 21, 1986, the petition for writ of cer-tiorari was granted and the cause was remanded to this Court for further consideration in light of Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). Texas v. Jackson, 475 U.S. 1114, 106 S.Ct. 1627, 90 L.Ed.2d 175 (1986). See now McCullough v. State, 720 S.W.2d 93 (Tex.Cr.App.1986).
*520In McCullough the defendant was convicted of murder at his second trial and the trial judge assessed 50 years’ imprisonment as punishment. This was greater than the 20 years’ imprisonment he had received at the first trial at the hands of a jury, following which the court had granted a new trial based on prosecutorial misconduct. The trial judge entered findings to justify the greater penalty imposed at the second trial. She found that two State witnesses, who had not testified at the first trial, added to the credibility of the State’s key witness and detracted from the credibility of the defendant and a defense witness; that the new testimony directly implicated the defendant in the murder and shed new light upon his life and conduct; that it had been learned for the first time on retrial that the defendant had been released from prison only four months before the murder.
Relying on Pearce, which held that the Due Process Clause of the Fourteenth Amendment prevented increased sentences on retrial when the increase was motivated by the sentencing judge’s vindictiveness, and to show the absence of such vindictiveness the reasons for imposing the increased sentence must affirmatively appear, the Amarillo Court of Appeals reformed the sentence to 20 years and affirmed the judgment of the trial court. McCullough v. State, 680 S.W.2d 493 (Tex.App.-Amarillo 1983). In discussing the lack of valid reasons for the increased sentences, the Court of Appeals quoted directly from Pearce.
“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.” (Emphasis was from the original.) (Added emphasis supplied.)
Thereafter the court observed that in the instant case there was no evidence of “identifiable conduct on the part of the defendant occurring after the original sentencing proceedings”; that the trial judge’s findings related to the original crime, etc., and not to the defendant’s subsequent conduct.
The State’s petition for discretionary review was granted. This Court held that as a matter of procedure the cause should be remanded to the trial judge for resentenc-ing, that under Pearce vindictiveness must be presumed even though a jury had fixed punishment at the first trial and a judge had fixed it at the second trial. McCullough v. State, 720 S.W.2d 89 (Tex.Cr.App.1983).
The United States Supreme Court granted certiorari and held that the Due Process Clause was not violated by the trial judge’s imposition of a greater sentence on retrial. The Court concluded the facts of McCullough provided no basis for a Pearce presumption of vindictiveness, noting that the granting of McCullough's motion for new trial based on prosecutorial misconduct hardly suggested vindictiveness on the judge’s part. The Court also held that the Pearce presumption is also inapplicable because different “sentencers” assessed varying “sentences,”1 where the trial judge at the second trial provided an on-the-record logical, nonvindictive reason for the greater punishment.
The Court further concluded that even if the Pearce presumption were to apply, the trial judge’s findings for imposing a great*521er punishment overcame that presumption as these findings clearly constituted “objective information justifying the increased sentence,” citing United States v. Goodwin, 457 U.S. 368, 375, 102 S.Ct. 2485, 2489, 73 L.Ed.2d 74 (1982). The Court noted that Pearce is not to be read as precluding a rebuttal of intimations of vindictiveness. The Court made clear the language in Pearce about justifying an increased sentence based on identifiable conduct oc-curing “subsequent to original sentencing proceedings” was never intended to describe exhaustively all of the possible circumstances in which an increase in punishment could be justified.
The Court reversed this Court’s judgment in McCullough and remanded the cause to this Court. Texas v. McCullough, supra.
In the instant Jackson case, the question is not whether Pearce would limit the punishment to be assessed for Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), made clear that Pearce is not applicable where a jury imposes the greater punishment on retrial. The question is one of effective assistance of counsel. Did the sole act of advising the appellant Jackson to elect to have the jury assess punishment constitute ineffective assistance of counsel? Was the trial judge limited by Pearce to the 15 years’ imprisonment originally imposed whereas the jury was not?
The central premise to appellant’s claim of ineffective assistance of counsel, adopted by this Court and the Court of Appeals, was that the prophylactic rule of Pearce would apply to the facts of this case, and that the trial judge at the second trial would have been “locked into” assessing no greater penalty than 15 years if he was called upon to assess punishment. Article 37.07, V.A.C.C.P.
However, if Pearce was not applicable to the facts of the case, the trial judge would be free as the jury to assess any punishment within the lawful range of punishment applicable to the offense charged and the enhancement allegations of the indictment. If Pearce has no application, then appellant’s counsel’s advice about the trial judge’s attitude on punishment and his reputation in connection herewith and counsel’s recommendation to elect to have the jury assess punishment would appear to have provided appellant with an understanding of the law in relation to facts sufficient to permit an informed and conscious choice on the part of appellant.
Simply put, if Pearce was not applicable to the facts of the case it would not have been ineffective assistance of counsel for appellant’s counsel to have failed to inform appellant that Pearce did apply.
In light of McCullough, was the Pearce presumption of judicial vindictiveness really applicable to the facts of this case? Here the first trial judge granted the appellant’s request for a new trial in accordance with the procedure of Article 40.09(12), V.A.C.C.P. (1965), in effect at the time. As in McCullough, this was hardly an act of vindictiveness. After the first trial judge left the state bench a new judge, with no connection with the case, was appointed to the court. Several months later appellant’s case, based on a new indictment, came to trial. Surely it cannot be said under the circumstances that the new or second trial judge had a “personal stake in the prior conviction.” Chaffin v. Stynchcombe, 412 U.S. at 27, 93 S.Ct. at 1983. To presume vindictiveness from these facts would be speculative. If the new judge had been called upon to assess punishment, there would have been “different sentencers" and the Pearce presumption would not apply. McCullough, 106 S.Ct. at 980. The Pearce presumption of judicial vindictiveness finds no basis for application here.
In Pearce the Supreme Court found no per se constitutional impediment to the imposition of greater punishment on retrial of a defendant. See also Chaffin v. Stynchcombe, supra, 412 U.S. at 29, 93 S.Ct. at 1984; McCullough, supra, 106 S.Ct. at 981.
Even if the Pearce presumption applies, a judge may according to Pearce impose a more severe sentence upon a defendant after a new trial if his reasons for doing so *522affirmatively appear, and the reasons are based on objective information concerning identifiable conduct of the defendant occurring after the time of the original sentence. As earlier noted, McCullough made clear that such language from Pearce was never meant to describe exhaustively all of the possible circumstances in which an increase in sentence could be justified. In fact, the findings of the trial judge in McCullough were based on conduct occurring before the time of the first sentence.
The instant record reflects that after the second indictment appellant Jackson failed to appear for a trial setting and a bond forfeiture was ordered and a capias was issued for his arrest. He was later surrendered by the sureties on his bond. See V.T.C.A., Penal Code, § 38.11 (Bail Jumping and Failure to Appear). Appellant was charged with theft occurring after the first sentence. Appellant denied this offense, and the charge was later dismissed after appellant received his 25 year sentence. At the evidentiary hearing ordered by the Court of Appeals, the second trial judge was asked if the pre-sentence report had not reflected five arrests for various designated offenses after the first sentence, and the judge simply replied that there had been no pre-sentence report since the second trial was a jury trial and none had been requested.
Even if Pearce could be interpreted as applicable to the instant case, there may well have been another basis for counsel not to have told appellant the trial judge would be “locked in” on punishment.
This cause was reversed by the Court of Appeals and its judgment affirmed by this Court because of ineffective assistance of counsel based on the sole error of failure to sufficiently advise appellant of the consequences of electing the jury to assess punishment when the trial judge would have been bound by Pearce to assess no more than 15 years.
In light of what has been said, this was wrong.
Under the standard of effective assistance of counsel established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must show: (1) that counsel’s performance was deficient; and (2) that the deficient performance prejudiced the defense. See also Butler v. State, 716 S.W.2d 48 (Tex.Cr.App.1986); Ex parte Adams, 707 S.W. 2d 646 (Tex.Cr.App.1986); Wilkerson v. State, 726 S.W.2d 542 (Tex.Cr.App.1986).
Appellant has not satisfied the two part test of Strickland. Further, appellant’s counsel satisfied the standard of counsel reasonably likely to render and rendering reasonably effective assistance. Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980).
The original judgment of this Court is set aside, the judgment of the Court of Appeals is reversed, and the cause is remanded to the Court of Appeals to respond to all grounds of error not yet answered.
DAVIS, McCORMICK and DUNCAN, JJ., and JON SPARLING, Special Judge,2 join this opinion.. In footnote 3 of Texas v. McCullough, supra, 106 S.Ct. at 980, the Supreme Court wrote:
"Pearce itself apparently involved different judges presiding over the two trials, a fact that has led some courts to conclude by implication that the presumption of vindictiveness applies even where different sentencing judges are involved. See, e.g., United States v. Hawthorne, 532 F.2d 318, 323 (CA3), cert. denied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177 (1976). That fact, however, may not have been drawn to the Court’s attention and does not appear anywhere in the Court’s opinion in Pearce. Clearly the Court did not focus on it as a consideration for its holding. See Hardwick v. Doolittle, 558 F.2d 292, 299 (CA5 1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978). Subsequent opinions have also elucidated the basis for the Pearce presumption. We held in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.CU977, 36 L.Ed.2d 714 (1973), for instance, that the presumption derives from the judge’s 'personal stake in the prior conviction,’ id., at 27, 93 S.Ct., at 1983, a statement clearly at odds with reading Pearce to answer the two-sentencer issue. We therefore decline to read Pearce as governing this issue. See also n. 4, infra.”