dissenting.
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 the enhancement of punishment. The jury assessed punishment at 25 years’ confine*512ment in the Texas Department of Corrections. V.T.C.A., Penal Code, § 12.42.
On appeal in three grounds of error appellant urged, through his appointed appellate counsel, the ineffective assistance of his trial counsel. In his fourth ground of error appellant attacked the sufficiency of the evidence to sustain the conviction.
The San Antonio Court rejected the sufficiency issue but abated the appeal for an evidentiary hearing concerning his first ground of error relating to the ineffective assistance of counsel. The other two grounds of error were not reached. Jackson v. State, 640 S.W.2d 323 (Tex.App.—San Antonio 1982, pet. ref'd.).
His first ground of error urged ineffective assistance of counsel because appellant was not advised sufficiently as to the consequences of electing to have the jury assess punishment in the event of a conviction. He alleged the appeal was from his conviction at a second trial for the same offense; that at his first trial the court had assessed his punishment at 15 years’ imprisonment as a repeat offender; that subsequently the trial court had granted him a new trial pursuant to former Article 40.09, § 12, then in existence; that in light of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Miller v. State, 472 S.W.2d 269 (Tex.Cr.App.1971), the trial court could not assess more than 15 years’ imprisonment, the minimum punishment for a first-degree felony, enhanced by one prior felony conviction and there was no reason to elect the jury to assess punishment at the second trial. Yet appellant contends his appointed counsel at the second trial had not sufficiently advised him and he chose the jury who assessed punishment at twenty-five years’ imprisonment to his detriment.
After discussing Pearce, the Court of Appeals wrote:
“Therefore, a hearing should be conducted in the trial court to establish whether objective information could have been made available to the trial court which might have resulted in the imposition of a more severe punishment than the fifteen years assessed at the first trial and thereby determine whether there was a reasonable basis for trial counsel’s action. As a result, this appeal is abated and a hearing ordered in the trial court for this purpose.”
At the time of the remand the record was meager as to evidence of a previous trial. The docket sheet reflects no earlier trial. No judgment, sentence or order granting new trial, etc., are in the record. There was a reference to a statement of facts from a previous trial, but it was not introduced.
The hearing on the motion for new trial in the instant case does reflect that appellant was originally indicted in Cause No. 77-CR-1066 for delivery of heroin with a “repeater” allegation in the 144th District Court; that on March 16, 1978, appellant entered a plea of not guilty before the court; that on March 24, 1978, 15 years was assessed as punishment by the trial judge; that subsequently a motion for new trial was overruled; that a hearing on motion for new trial filed by “appellate” counsel was conducted; that on December 3, 1979, a new trial was granted by the trial judge, apparently under Article 40.09, supra, then in existence. There was some indication in the testimony the word “actually” had been left out of the indictment for delivery of heroin resulting in the trial judge’s action in granting the new trial. The clerk of the court testified Cause No. 77-CR-1066 was “reinstated” under Cause No. 77-CR-3150 and subsequently “reinstated” in Cause No. 80-CR-0934 under which indictment the instant trial had been conducted.
At the time of remand there was evidence in the record that after the indictment in 80-CR-0934 the appellant failed to appear for a trial setting and a bond forfeiture was ordered and a capias issued for his arrest on September 29,1980. He was surrendered on October 21, 1980, by the sureties on his bond. See V.T.C.A., Penal Code, § 38.11 (Bail Jumping and Failure to Appear). At trial one police officer-witness referred to a pending theft charge against the appellant. This was the only evidence of possible identifiable conduct on the part *513of the appellant after the first sentence was imposed.
On August 26, 1983, at the evidentiary hearing ordered by the Court of Appeals, the appellant, who was already on parole on his 25 year sentence, testified that prior to the second trial he had heard from another inmate or prisoner that either the judge or jury would have to give him the same amount of time as at the first trial, but he could not remember which one it was, that he asked his counsel about it. The attorney promised to check on it as he didn’t know and asked appellant to do the same thing. Appellant testified he mentioned this matter to his counsel several times and received no answer. He did relate that his counsel told him that the judge was trying to make a name for himself, and he had heard in jail the judge “was kind of rough” so he “picked the jury” after counsel advised him to do so.
Appellant testified the judge at his first trial was Judge Hippo Garcia and that the second trial judge was Judge Roy Barrera, and that it was Barrera that he heard the talk about in jail.
Appellant’s second trial counsel testified at the evidentiary hearing. The record reflects:
“Q. But did he (appellant) actually inform you that someone had told him that he should choose one or the other and he asked you which one it was?
“A. No. The conversation didn’t come about that way.”
Counsel stated they discussed an election before the trial started and a decision was made to go to the jury, that “it was during the time of the Judge’s election campaign” and the fact was discussed the judge would be harsher than the jury. He explained his recommendation was based on “election reasons.” He acknowledged they had discussed the fact Judge Barrera “had a reputation for handing out heavy sentencing because he was trying to make a name for himself.” Counsel stated he left the decision to the appellant though he had suggested the jury. His interrogation ended with:
“Q. Can you think of any other reasons why you would have advised him to go to the jury?
“A. No.”
Judge Roy Barrera, Jr., testified he was the trial judge at appellant’s second trial on January 13,1981, that he had been judge of the 144th District Court since October 22, 1980. He stated the trial was about three months after his appointment and “I hardly doubt that I was in the middle of an election year campaign.” Judge Barrera recalled a discussion in front of the bench about the election of judge or jury, and it was his recollection the appellant wanted the jury to assess punishment.
The evidentiary hearing did not develop very well the evidence as to objective information about identifiable conduct by the appellant between the time of the first sentencing and the second.
At the evidentiary hearing appellant admitted he had been arrested for theft during the time period in question, denied his guilt, and stated after his 25 year conviction the theft charges had been dismissed. When Judge Barrera testified he was asked by the prosecutor whether he had not received presentence report information that during the time period in question appellant had been arrested five times “for such things as aggravated assault, felony theft ... ,” the judge pointed out that it was a jury trial and he had not requested a presentence report.
The State did not further attempt to develop this line of testimony though that apparently had been the principal objective of the Court of Appeals. Further, appellant’s trial counsel was never interrogated as to whether he was aware of the Pearce decision or had researched that area of the law. The indictment, judgment, sentence, order granting new trial or other papers from the first trial were never introduced into evidence.1
Following the evidentiary hearing, the Court of Appeals agreed with appellant’s *514first ground of error and noted that the trial judge could not have imposed a more severe penalty on the appellant at the second trial absent objective information concerning identifiable conduct on the part of the appellant after the time of the first sentence, and that appellant’s counsel did not advise him as to this matter. The Court of Appeals then held that appellant was, as a matter of law, denied the effective assistance of counsel.
Recognizing the standards applied in the past to claims of ineffective assistance of counsel, the court nevertheless wrote:
“It is true that in the case before us we have singled out one error of counsel upon which we base this holding. In our opinion, however, this single error of counsel permeates the entire proceeding below and demonstrates an obvious lack of knowledge of the applicable legal principles governing punishment on retrial by appellant’s attorney.” Jackson v. State, 662 S.W.2d 74 (Tex.App.—San Antonio 1983).
The Court of Appeals reversed the conviction without reaching appellant’s ground of error 2 and 3 also claiming ineffective assistance of counsel even though acknowledging effectiveness of counsel is to be judged by the totality of representation.
The majority of this Court now affirms the judgment of the Court of Appeals stating:
“While we hesitate to designate any error as per se ineffective assistance of counsel as a matter of law (and we therefore retreat from any such inference in the language employed by the court of appeals), we hold that the record supports the result the court of appeals reached; that the single error of omission by appellant’s counsel constituted ineffective assistance....”
We have now abandoned or seriously undermined our standards for passing on questions of ineffective assistance of counsel. A single error on counsel’s part as viewed by an appellate court may necessitate a reversal of a case without considering the totality of the representation, other claims of ineffective assistance, provided the one envisioned error is big enough, bad enough in the eyes of appellate judges.
Appellant’s counsel is faulted for allowing appellant to opt for the jury to assess punishment rather than the trial judge which resulted in a 25 year sentence rather than the 15 years the trial judge would have been limited to in light of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and its progeny. It surely cannot be argued that without the applicability of Pearce counsel’s action would not call for reversal.
Pearce involved the reversal of a conviction by a higher court on appeal. It first should be observed that in the instant case there was no reversal of the conviction by an appellate court. The first trial judge granted a new trial before he was succeeded on the bench by another judge some 10 months later.
If counsel is faulted for not seeing the applicability of Pearce to the case, it should be noted that as late as July 18, 1984, a majority of this Court (7-2)2 in Castleberry v. State, 704 S.W.2d 21 (Tex.Cr.App.1984), wrote:
“We conclude the rationale of Pearce does not and cannot apply to the instant case simply because appellant never exercised his statutory or constitutional right to review by a higher court. Therefore, what happened to him in terms of increased punishment cannot under any interpretation be attributed to any unconstitutional response to exercise of those rights — a response condemned in Pearce.” (Emphasis supplied.)
Castleberry is now pending rehearing.3 Regardless of what action is taken on re*515hearing, can counsel be faulted if he interpreted Pearce as applicable only to reversals upon appeal by a higher court? If he is faulted, then he is in good company.
Further, the new trial was granted by the first trial judge apparently because of a fundamental defect in the indictment.
Over 10 months later a new judge assumed the bench of the trial court, and the second trial commenced 18 months later upon a new indictment. Is it likely that the second trial judge would consider himself to have a “personal stake” in the prior conviction or a “motivation to engage in self-vindication”? See and cf. Chaffin v. Stynchcombe, 412 U.S. 17, 27, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973); Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 3222, 82 L.Ed.2d 424 (1984). While appellant did not expressly concede the second trial judge was not vindictive because the prior conviction had been set aside, see Moon v. Maryland, 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed.2d 262 (1970), he made no claim that Judge Barrera was vindictive on this basis. It is true that in Bingham v. State, 523 S.W.2d 948 (Tex.Cr.App.1975), the rule of Pearce was applied where there were two different judges. The conviction was obtained in a trial before a “visiting” judge. On appeal the cause was remanded by this Court, not for a new trial, but reassessment of punishment because of the improper admission of certain evidence. Upon remand, the “regular” judge of the court increased the punishment although aware of the earlier sentence and without evidence of identifiable conduct on the part of the defendant after time of original sentence. No other rationale was offered.
It has been said the major purpose of the Pearce doctrine is to prevent an increased penalty on retrial from being the product of retaliation or vindictiveness on the part of the sentencing judge who was offended by the accused’s successful efforts in securing a new trial. Casias v. Beto, 333 F.Supp. 214 (N.D.Tex.1971), aff'd. 459 F.2d 54 (5th Cir.1972), cert. den. 410 U.S. 970, 93 S.Ct. 1450, 35 L.Ed.2d 706 (1973). Can it be said Judge Barrera was offended by the granting of a new trial by Judge Garcia?
The Pearce rule, of course, has been read to apply a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence. United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 2489, 73 L.Ed.2d 74 (1982). See Wasman v. United States, supra, 104 S.Ct. at p. 3221. In Wasman, a plurality opinion, Chief Justice Burger wrote:
“If it was not clear from the Court’s holding in Pearce, it is clear from our subsequent cases applying Pearce that due process does not in any sense forbid enhanced sentences or charges, but only enhancement motivated by actual vindictiveness toward the defendant for having exercised guaranteed rights. In Pearce and in Blackledge,4 the Court ‘presumed’ that the increased sentence and charge were products of actual vindictiveness aroused by the defendants’ appeals. It held that the defendants’ right to due process was violated not because the sentence and charge were enhanced, but because there was no evidence introduced to rebut the presumption that actual vindictiveness was behind the increases; in other words, by operation of law, the increases were deemed motivated by vindictiveness. In Colten,5 Chaffin,6 Bordenkircher,7 and *516Goodwin,8 on the other hand — where the presumption was held not to apply — we made clear that a due process violation could be established only by proof of actual vindictiveness.
“In sum, where the presumption applies, the sentencing authority or the prosecutor must rebut the presumption that an increased sentence or charge resulted from vindictiveness; where the presumption does not apply, the defendant must affirmatively prove actual vindictiveness.”
Five justices concurred in the result of Wasman that a sentence may be increased on retrial based on an intervening event as well as intervening conduct, but in substance stated the Pearce presumption is not simply concerned with actual vindictiveness, but is also intended to protect against reasonable apprehension of vindictiveness that could deter a defendant from seeking a new trial. Thus the Supreme Court justices too are not in agreement as to the proper application of Pearce. Needless to say, “Pearce is not without its ambiguities; ...” Wasman, supra, at 104 S.Ct. at p. 3224. It would not be surprising if counsel had difficulty in determining if Pearce had application to the circumstances in the instant case.
Turning to the objective information about identifiable conduct on the part of appellant after the time of the original sentencing, it is first noted there was a failure to appear and an ordered bond forfeiture. Appellant was later surrendered by the sureties on his bond, all within the prescribed time period. Such conduct may well have constituted a violation of V.T. C.A., Penal Code, § 38.11 (Bail Jumping and Failure to Appear). Surely appellant and his counsel were aware of this conduct. At the evidentiary hearing appellant admitted he had been arrested for theft after the first trial, but claimed his innocence and dismissal of the pending charges after the imposition of the 25 year sentence at his second trial. Appellant and his counsel were obviously aware of these pending charges at the time of the second trial. There was reference in a question at the evidentiary hearing to appellant’s five arrests after the first trial. These facts, of course, were not developed. Besides other problems with Pearce, counsel may well have concluded that if the judge had chosen to assess punishment, and there had been an insistence on his part that the judge was limited to 15 years under the Pearce rule, the State could have proved “identifiable conduct” after the first trial. In that situation the judge may have assessed a harsher punishment than the jury actually did. Can it really be said that counsel’s action was without the wide range of reasonable professional assistance? 9
The majority views counsel’s action in the case as error, and a single error that, standing alone, deprived the appellant of the effective assistance of counsel. While the majority “retreats” from the “matter of law” approach of the Court of Appeals, it nevertheless seems to depart from the adopted standard for effective counsel— “counsel reasonably likely to render and rendering reasonably effective assistance.” Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980). Cf. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984). The majority acknowledges that each claim of ineffective assistance of counsel must be determined upon the particular circumstances of each case. Benoit v. State, 561 S.W.2d 810 (Tex.Cr.App.1977); Ex parte Raborn, 658 S.W.2d 602 (Tex.Cr.App.1983). And we know that the constitutional right to counsel does not mean error-less counsel, and ineffectiveness is not to be determined by hindsighted comparison with how other counsel might have tried the case. Benoit v. State, supra; Boles v. *517State, 598 S.W.2d 274, 279 (Tex.Cr.App.1980); Hawkins v. State, 660 S.W.2d 65 (Tex.Cr.App.1983). And most importantly, the adequacy of counsel’s service on behalf of an accused must be gauged by the totality of representation, rather than isolated acts or omissions. Boles v. State, supra; Benoit v. State, supra; Ex parte Raborn, supra; Archie v. State, 615 S.W.2d 762 (Tex.Cr.App.1981).
What was said in Strickland v. Washington, supra, 104 S.Ct. at p. 2065-66, is here instructive.
“Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second guess counsel’s assistance after conviction or adverse sentence, and it is all easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134, 102 S.Ct. 1558, 1574-1575, 71 L.Ed.2d 783 (1982). A fair assessment of attorney performance requires that every effort he made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s counsel falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ See Michel v. Louisiana, supra, 350 U.S. [91] at 101, 76 S.Ct. [158] at 164 [100 L.Ed. 83 (1955) ]. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 343 (1983).”
Since totality of representation is the proper basis for inquiry, Boles v. State, supra, I cannot agree, given the circumstances of this case, that the error, if any, was such, standing alone, as to call for reversal on the basis of ineffective assistance of counsel. The Court of Appeals never considered grounds of errors 2 and 3 also dealing with claims of ineffective assistance of counsel. I would remand to that court to consider those grounds and reconsider this ground of error under the totality of representation test.
I dissent most vigorously to the majority prying open Pandora’s box and setting the stage for the multitude of claims of ineffective counsel based on one error.
W.C. DAVIS, J., joins this dissent.. It appears the State had ineffective assistance of counsel at the evidentiary hearing.
. This writer and Judge Teague dissented.
. In the past this Court has applied Pearce where a new trial was granted by the trial court without an appeal. See, e.g., Payton v. State, 506 S.W.2d 912 (Tex.Cr.App.1974); Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975); Moore v. State, 527 S.W.2d 529 (Tex.Cr.App.1975); Lechuga v. State, 532 S.W.2d 581 (Tex.Cr.App.1975); Palm v. State, 656 S.W.2d 429 (Tex.Cr.App.1981). The rationale of extending Pearce in these cases was not discussed, however, it (rationale) was discussed in McCullough *515v. State, 680 S.W.2d 493,497 (Tex.App.—Amarillo 1983), by Justice Countiss for the court in the opinion on rehearing which cause was reversed on other grounds. McCullough v. State, 720 S.W.2d 89 (Tex.Cr.App.1983), cert. granted, 472 U.S. 1007, 105 S.Ct. 2699, 86 L.Ed.2d 716 (1985). Castleberry, on original submission, overruled these cases sub silentio.
. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).
. Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972).
. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973).
. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).
. United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982).
. Upon the retrial now authorized by the majority the appellant will be guaranteed no greater punishment than 15 years if convicted. The State will be authorized to demonstrate objective information about identifiable conduct or event since the trial of the original sentence. If this is done the trial judge will not be limited to 15 years, and of course, if a jury is chosen again the jury may impose a penalty with the entire range of punishment.