OPINION ON STATE’S MOTION FOR REHEARING
ONION, Presiding Judge.On rehearing the State vigorously urges that the majority was wrong in holding that a five (5) year assessment of punishment by the court with probation at the second trial was a “more severe” punishment than the three (8) years without probation assessed by the court at the first trial, and that North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), does not call for such result. If the three (3) years assessed at the first trial and the five (5) years assessed at the second trial had both been “straight time,” there would be no question but that North Carolina v. Pearce, supra, had application. Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975); Payton v. State, 506 S.W.2d 912 (Tex.Cr.App.1974); Miller v. State, 472 S.W.2d 269 (Tex.Cr.App.1971). In the above cases, as well as the instant case, the increase in punishment was not based upon objective information concerning identifiable conduct on the part of the accused occurring after the time the original punishment was assessed. The State urges, however, that the interjection of a grant of probation along with the assessment of five (5) years at the second trial in the instant case calls for a different result.
At first blush, the State’s position is most appealing. This is so because it may be stated that any defendant standing before a court would opt for any sentence with probation1 rather than one without probation — for it would, at least temporarily, permit him to be a free man — over any punishment that requires immediate confinement. Our inquiry cannot stop here.
The question presented arises out of the decision in North Carolina v. Pearce, supra. There, the court stated in part:
“. . . [D]ue process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial . In order to assure the absence of such a motivation, we have concluded that 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.”
It should be clear that the term “more severe sentence” should be read as *587synonymous with “more severe punishment or penalty” rather than the formal pronouncement of sentence as provided in Articles 42.02 and 42.03 of our Code of Criminal Procedure. It is also clear that Pearce is not to be applied retroactively, Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973), and that it normally would not apply to jury trial where the jury assesses punishment, Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973). This is particularly true where the jury is unaware of the first penalty assessed and there is no showing of vindictiveness. See Curlin v. State, 505 S.W.2d 889 (Tex.Cr.App.1974); Fuery v. State, 464 S.W.2d 666 (Tex.Cr.App.1971). Further, Pearce has no application where the more severe punishment is assessed upon a trial de novo in a court of general jurisdiction following an appeal from a conviction in an inferior court for a lesser criminal offense. Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). The court found the possibility of vindictiveness found to exist in Pearce was not inherent in the Kentucky two-tier system.
None of these areas of the inapplicability of Pearce have relevancy in the instant case.
In McCulley v. State, 486 S.W.2d 419 (S.Ct. Mo.Div. # 1, 1972), the Missouri Supreme Court was confronted with a question of whether a seven year sentence without probation was a “more severe” sentence than two years without probation in light of North Carolina v. Pearce, supra, and concluded that it was. After discussing the broad discretion a trial judge in Missouri is given in fashioning punishment after the determination of guilt, “probation,” “sentence” and punishment, the court concluded that “sentence” or the penalty does not include as a part of its definition such conditional orders as the court makes for the amelioration of the punishment — probation. Probation lessens the immediate impact of the sentence on the defendant, but probation does not, per se, shorten or lengthen the sentence. It was then added, “The court holds that probation ... is not part of the sentence imposed upon a defendant.”
Rejecting the reasoning of Thurman v. United States, 423 F.2d 988 (9th Cir. 1970), that “more severe” as used in Pearce means something more than longer sentence and that “totality of the impact of the sentence upon the defendant must be considered,” the Missouri Supreme Court adopted the reasoning of United States v. Barash, 428 F.2d 328 (2nd Cir. 1970), that any attempt to compare one kind of punishment with another under circumstances similar to the question presented in McCulley was wholly impractical. The court observed that to give the words “more severe” as used in Pearce a different meaning than longer sentence would make every question of whether Pearce has been violated “purely subjective” defying “objective application.” 2
The court then held that any sentence imposed in a second trial before a judge cannot be greater than a sentence imposed *588by the judge at the first trial except in those instances noted in Pearce. The court found, however, that Pearce was not to be applied retroactively and that McCulley’s second trial occurred prior to Pearce. Nevertheless, the holding in McGulley as to the procedure to be used after the date of the Pearce decision is in accord with the majority opinion on original submission in the instant case.
In the instant case the punishment assessed by the judge was three (3) years for the offense of defrauding by a worthless check. Upon retrial, after granting appellant’s motion for new trial, the court assessed punishment at five (5) years for the same offense. The judge made no affirmative showing for his reasons for increasing the penalty as required by Pearce. Thus, at that point the procedure was in violation of Pearce. Does the granting of probation for five (5) years cure such constitutional error? We think not.
Remaining convinced that the correct results were reached on original submission, the State’s motion for rehearing is overruled.
. By virtue of the provisions of Article 42.12, Vernon’s Ann.C.C.P., the period of probation cannot exceed ten (10) years.
. In Texas can it be said that any “straight time” in the Department of Corrections is a “more severe” punishment than any term of probation? Is 10 years’ probation (the maximum under Article 42.12, Vernon’s Ann.C. C.P.) “more severe” than two years’ “straight time”? If it is, then where do you draw the line on possible probation periods and say they are more and less severe than two years’ “straight time”? If it is not, do you take into consideration that a person imprisoned in the Department of Corrections may earn “good time credits” (Article 61841) and may be eligible for parole after having credit for ⅝ of his sentence? Do you counter with the fact that, although a 10 year probationer at any time during the period may have his probation revoked and be called upon to serve his 10 year sentence, such probationer may also (1) successfully serve his 10 year probation, or (2) if revoked, may have the time to be served reduced (Article 42.12, Sec. 8, Vernon’s Ann. C.C.P.), or (3) may upon successful completion of two years or V3 of his probationary period have probation terminated (Article 42.12, Sec. 7, Vernon’s Ann.C.C.P.)? It would be easy to get into never-never land.