dissenting.
We granted the motion for leave to file a motion for rehearing to consider the State’s vigorously urged contention the panel opinion was in error in remanding this cause to the trial court to re-assess punishment in accordance with said opinion and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and its progeny.
It appears that a felony complaint charging the appellant with aggravated robbery was originally filed in the district court invoking the trial judge’s authority as a magistrate. See Article 2.09, V.A.C.C.P. See also Ex parte Clear, 573 S.W.2d 224 (Tex.Cr.App.1978). The trial court cause number was 302,991. On September 21, 1979, the appellant entered a plea of guilty before the court to said charge, waiving a jury trial, and pursuant to a plea bargain *438with the State, his punishment was assessed by the court at ten (10) years’ confinement in the Department of Corrections.
Shortly thereafter, it was discovered that the appellant had never been indicted for said offense, had not waived the presentment of an indictment, and no felony information had been filed. See Article 1.141, V.A.C.C.P. At the time of appellant’s plea of guilty in Cause No. 302,991, there was no valid State’s pleadings invoking the district court’s jurisdiction. The proceedings were a nullity. The appellant was bench warranted from the Department of Corrections to Harris County. As the original panel opinion indicated, the appellant’s motion for a new trial was granted. The trial court had no jurisdiction at the time of the first “conviction” for the offense involved. Ward v. State, 520 S.W.2d 395 (Tex.Cr.App.1975). The proceedings were a nullity and the court could have set aside the conviction on its own motion, which is apparently what it did. There is no need to question the validity of the order granting a new trial.
On October 16, 1979, the appellant was indicted in Cause No. 304,319 for the same offense of aggravated robbery. On November 14, 1979, the court heard evidence and overruled appellant’s motion to dismiss the indictment on the basis of double jeopardy. The appellant testified at such hearing and acknowledged that he had been offered by the State the same ten-year plea bargain as before, but that he had rejected the same. The double jeopardy motion was overruled. Appellant then entered a guilty plea before the court waiving trial by jury. Introduced into evidence was appellant’s 1973 conviction for possession of marihuana. This apparently was not before the court at the initial proceedings in September. The State made no recommendation as to punishment, but did ask the court to consider the evidence before it that had not been previously considered. The court assessed punishment at twelve (12) years’ imprisonment.
On original submission to the panel, this cause was remanded to the trial court to re-assess punishment in accordance with North Carolina v. Pearce, supra, since the 1973 marihuana conviction was not shown to be “identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” 395 U.S. at 725, 726, 89 S.Ct. at 2080, 2081.
The United States Supreme Court held in North Carolina v. Pearce, supra, that the Due Process Clause of the Fourteenth Amendment 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. The same principle was later applied to prohibit a prosecutor from reindicting a convicted misdemeanant on a felony charge after the defendant had invoked an appellate remedy, since in this situation there was also a realistic likelihood of vindictiveness. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).
In Pearce the court wrote:
“Due 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. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
“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 *439sentence may be fully reviewed on appeal.”
Pearce made clear, however, that absent vindictiveness or the possibility of vindictiveness more severe sentences imposed following reconviction are constitutionally valid. See also Chaffin v. Stynchcombe, 412 U.S. 17, 29, 93 S.Ct. 1977, 1984, 36 L.Ed.2d 714 (1973); Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973); Colten v. Kentucky, 407 U.S. 104, 116, 92 S.Ct. 1953, 1960, 32 L.Ed.2d 584 (1972); United States v. Floyd, 519 F.2d 1031, 1033 (5th Cir.1975).
The State urges that Pearce and Black-ledge are not applicable to the facts of this case and cite Ehl v. Estelle, 656 F.2d 166 (5th Cir.1981), in support thereof.
In Ehl v. Estelle, supra, the court held that there was no judicial or prosecutorial vindictiveness where although the punishment imposed on conviction following discretionary withdrawal of guilty plea was greater than that imposed pursuant to guilty plea defendant was aware of price of rejecting the bargain in that possibility of a greater punishment due to likely enhanced charges, which were withdrawn as part of plea agreement, was communicated to the defendant and his attorney in the initial bargaining stages.
Ehl was indicted for passing a forged instrument. While awaiting trial on this charge, Ehl was charged with the felony offense of escape from jail. As a result of prior felony convictions, Ehl faced the possibility of enhanced punishment as a habitual offender. In exchange for the prosecutor’s agreement not to seek the habitual offender status, Ehl agreed to plead guilty to both the “passing” and escape charges. Pursuant to the plea bargain, Ehl received two five-year concurrent sentences.
While awaiting transfer to the Texas Department of Corrections, Ehl wrote the trial judge that he had been offered lesser punishment on the “passing” charge before the escape occurred, his guilty pleas had been coerced because of threat of enhanced punishment by the prosecutor and that he had a defense to the escape charge. After an evidentiary hearing, the court allowed Ehl to withdraw his guilty plea on the escape charge and to appeal his “passing” conviction, which was later affirmed by this court. Ehl v. State, 557 S.W.2d 123 (Tex.Cr.App.1977) (Table) (unpublished opinion).
After being permitted to withdraw his guilty plea to the escape charge, Ehl was indicted for the escape offense as the primary offense with two prior felony convictions alleged for enhancement of punishment.
At the bifurcated trial while the jury was deliberating on issue of guilt of the escape charge, a second plea agreement was reached. If the jury found Ehl guilty of escape the enhancement paragraphs of the indictment would have been abandoned and the State would recommend ten years’ imprisonment to commence when Ehl completed his time on the “passing” conviction. The jury found Ehl guilty of escape and the plea bargain as to punishment was carried out.
Displeased with the outcome, Ehl exhausted state habeas corpus remedies, and proceeded to federal district court where he obtained relief with the court relying upon North Carolina v. Pearce, supra, and Black-ledge v. Perry, supra.
On appeal the Fifth Circuit Court of Appeals in reversing the district court wrote:1
“Ehl’s reliance on Pearce and Blackledge and their progeny is misplaced. Those cases involved a situation where there had been an appeal of a contested trial, unlike the present situation in which Ehl has not claimed any error by the trial court in the original guilty plea hearing. Furthermore, this Court, sitting en banc in Frank v. Blackburn, 646 F.2d 873 (5th Cir.1980) has cast doubt on the applicability of Pearce in plea bargaining situations. ‘We find the rule of North Carolina v. Pearce to be completely inapplicable to post-plea bargaining sentencing proceedings. Accord, Martin v. Blackburn, 606 F.2d 92, 93 (5th Cir.1979), *440cert. denied, 446 U.S. 911,100 S.Ct. 1841, 64 L.Ed.2d 265 (1980) (“it is highly questionable whether Pearce applies to plea bargaining situations”)’, Frank, 646 F.2d at 883. The En Banc Court reasoned that if ‘a defendant can successfully demand the same leniency in exchange for a guilty plea, all the incentives to plea bargaining disappear; the defendant has nothing to lose by going to trial.’ Id.
“In light of this pronouncement in Frank and the facts of the present case, we find Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) more analogous than either Pearce or Blackledge. In Bordenkircher the prosecutor offered to recommend a five year prison sentence if the defendant would plead guilty to a forgery indictment. The prosecutor further made it clear that he would reindict the accused under the State’s habitual offender act if he chose to plead not guilty. Bordenkircher, 434 U.S. at 358, 98 S.Ct. at 665, 54 L.Ed. at 607. The defendant in that case chose to stand trial and the prosecution carried out its expressed purpose. The Supreme Court concluded that there was no due process violation when the prosecutor carried through with promised terms which the accused was aware of during plea negotiations, but which he ultimately chose to reject. In explaining the rationale for its holding, the Court distinguished Pearce and Blackledge, stating:
In those cases the Court was dealing with the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction — a situation “very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.” Parker v. North Carolina, 397 U.S. 790, 809, 90 S.Ct. 1458 [1479-80], 25 L.Ed.2d 785 (opinion of Brennan, J.). ******
But in the “give-and-take” of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.
Bordenkircher, 434 U.S. at 363, 98 S.Ct. at 668, 54 L.Ed.2d at 610-11.
“A crucial inquiry that we glean from Bordenkircher, therefore, is whether the accused was aware of and knew the price of rejecting the bargain. We find the record before us clear on this point. As reflected at the evidentiary hearing the possibility of a lengthier sentence due to likely enhanced charges was communicated to Ehl and his attorney in the initial plea bargaining stages.
“Further, as Bordenkircher stresses, a prosecutor has a good deal of leeway to induce defendants to forego their rights to plead not guilty. The State’s interest in inducing Ehl to plead guilty, subsequent to the Court’s allowing him to stand trial after he effectively withdrew his guilty plea, was identical to its interest prior to his aborted guilty pleas. At this stage of the process, since Ehl had, in effect, rejected the bargain, there was no reason why the State should not be able to indict Ehl on all charges supported by probable cause even though this might induce him not to enter a plea of not guilty.
“In fact, this Court has recognized precisely this process in Moore v. Foti, 546 F.2d 67 (5th Cir.1977). We stated ‘an appellant’s successful challenge to his plea bargaining sentence is a tacit repudiation of the bargain, allowing the Government to prosecute him on the greater charges.’ Moore, 546 F.2d at 68, citing Martinez v. Estelle, 527 F.2d 1330, 1331-32 (5th Cir.1976); Arechiga v. Texas, 469 F.2d 646, 647 (5th Cir.1972); Harrington v. U.S., 444 F.2d 1190,1194 (5th Cir.1971).
“It is equally clear under Bordenkircher —contrary to the District Court’s findings — that the chronology of events in which the prosecutor enhanced Ehl’s indictments is not decisive. In Bordenkircher, the prosecutor did not actually obtain the recidivist indictment until after the plea negotiations had ended. However, his intentions to do so was clearly expressed at the outset, and the accused in that case was *441fully aware of the terms of the plea offer when he made his decision to plead not guilty. The Court thus reached the conclusion that ‘[a]s a practical matter, in short, this case would be no different if the grand jury had indicted Hayes [defendant] as a recidivist from the outset and the prosecutor had offered to drop that charge as part of the plea bargain.’ Bordenkircher, 434 U.S. at 361, 98 S.Ct. at 666, 54 L.Ed.2d at 609. Once again, the key to disarming an allegation of vindictiveness is the knowledge and awareness by the accused of the terms of the plea bargain and the price of rejecting the bargain with a plea of not guilty.
“Also persuasive is this Court’s holding in Chapman v. Estelle, 593 F.2d 687 (5th Cir. 1979), where we stated that in those cases that involved belated rejections of a plea bargain, the prosecution’s action in securing resentencing on a more serious charge does not appear even ‘minimally vindictive.’ Chapman, 593 at 690 n. 5. And this is especially so where the accused, as in the present case, presents little reason for rejecting the plea bargain or a motion for new trial other than general dissatisfaction with the sentence. Id.; see note 1, supra.
“We have not found a case from any jurisdiction that holds that a defendant can accept a plea bargain, take back his part of the bargain, insist upon a trial on the merits, and yet bind the prosecutor, and thus the Court, on the original promised recommendation of punishment after the prosecutor has lost all benefits of the bargain. To permit this situation would undercut the entire purpose and aim of the plea bargaining process. Rather, two results should flow from the accused’s rejection. First, the prosecutor under the authority of Bor-denkircher and Chapman should be able to carry through with any expressed promises made if the accused persists in a plea of not guilty. Second, the prosecutor should not be required under the Constitution to proffer again the identical deal, since it would again be rejected by the defendant, who not only now wishes to plead not guilty and contest the charge, but additionally believes that the earlier negotiated punishment was excessive in any event. In short, if the defendant refuses to carry out his part of the bargain, the prosecutor is under no obligation to carry out his part. And there is no appearance of prosecutorial vindictiveness — and, in addition, no necessity for the prosecutor to offer any explanation for his actions — where the punishment fixed is the same punishment he had promised to seek throughout plea negotiations in the event that the defendant insisted on his right to plead not guilty and contest guilt.
“III.
“In support of his allegations of ‘judicial vindictiveness’, Ehl looks again to the Pearce case, which requires:
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 approved on appeal.
Pearce, 395 U.S. at 726, 89 S.Ct. at 2081, 23 L.Ed.2d at 670. Once again, in following this Court’s recent pronouncement in Frank, we reject the applicability of Pearce when a plea bargaining situation is present, and look instead to Frank for instruction.
“Ehl attempts to convince us that Frank can be distinguished because the trial court in Frank sentenced the accused only one time — after a disrupted plea bargain rather than after a new trial. In Frank, the Judge agreed to a twenty year sentence in return for a guilty plea. Frank rejected the offer, stood trial, was found guilty and received a thirty-three year sentence. Frank, at 875. In Ehl’s ease, the Judge imposed two five-year concurrent terms pursuant to guilty pleas, a waiver of appeal and a dropping of the enhancement charges. Subsequently, *442Ehl sought and was granted a withdrawal of his guilty plea. This had the effect of repudiating the plea agreement and the necessity of his standing trial on the enhanced indictment.
“Ehl argues that the factors creating a ‘reasonable likelihood of vindictiveness’ in Pearce — the increased sentence following a new trial — are present in Ehl’s case, but lacking in Frank. Ehl submits this difference is fundamental and, consequently, Pearce should be controlling. We disagree.
“Both Frank and Ehl ultimately rejected the plea bargains and chose to contest their guilt by standing trial. The fact that they opted to exercise their constitutional rights at different stages of the legal process does not determine the ultimate issue of judicial vindictiveness. The critical factor is, rather, the presence or absence of plea negotiations. Frank makes it clear that once there is a bargain — whether it be reduced charges, a recommended sentence, or some other concession — and it is rejected, ‘the defendant cannot complain that the denial of the rejected offer constitutes a punishment or is evidence of judicial vindictiveness. To accept such an argument is to ignore completely the underlying philosophy and purposes of the plea bargaining system.’ Frank, 646 F.2d at 883.
“The trial judge in the present case cannot be held to have acted vindictively by imposing on Ehl a sentence expressly agreed to by him and the prosecutor after he exercised his unqualified, uncoerced right to stand trial and at a time he did not know whether he would or would not be found guilty.
“In addition, the trial judge had the benefit of hearing the trial testimony, was aware of Ehl’s prior record, and the sentence was not greater than that prescribed by statute. Blackmon v. Wainwright, 608 F.2d 183 (5th Cir.1979). Finally, since the allegations of judicial vindictiveness are to a great extent dependent upon the assertion of prosecutorial vindictiveness which we have found wanting, this claim also fails.” (Footnotes omitted.)
Clearly the facts in the instant case are not on all fours with Ehl’s case, but the Fifth Circuit’s opinion is persuasive. Appellant entered a plea bargain with the State for a punishment of ten (10) years’ imprisonment and pleaded guilty before the court. The agreed penalty was imposed, but it was soon discovered the Court’s jurisdiction had never been invoked by a proper State’s pleading, an indictment or felony information.
After an indictment had been presented, the appellant sought to quash it on the basis of double jeopardy. At the hearing on appellant’s motion, it was shown that at the time of the original plea bargain appellant and his counsel were aware of the 1973 conviction for possession of marihuana. At the hearing, it was also shown that after indictment the State had again offered the appellant the same ten year plea bargain if he entered a guilty plea, and that this was rejected by the appellant. After the double jeopardy motion was overruled, the appellant did enter a guilty plea before the court. The State produced evidence to support such plea as well as evidence of the 1973 marihuana conviction. The State made no recommendation to the court as to punishment. The court then assessed appellant’s punishment at twelve (12) years’ imprisonment.
In Pearce and Blackledge there were contested trials on pleas of not guilty followed by convictions from which appellant obtained relief by way of appeal, etc., and thereafter a more severe punishment was assessed upon the second trial.
Here there was a plea bargain followed by a guilty plea. Although it appears appellant filed a motion for new trial, the whole proceedings were a nullity because the court had no jurisdiction.
When an indictment was returned, the State offered the same plea bargain, but this was rejected by the appellant, who nevertheless entered a guilty plea to the indictment with the State making no recommendation as to punishment. Although the prior conviction was introduced, I do *443not conclude that Pearce and Blackledge control under the circumstances of the case.
I would grant the State’s motion for rehearing, withdraw the order for reassessment of punishment and affirm the judgment.
The majority seems to give no consideration to the fact that the court had no jurisdiction over the initial proceedings. It seems overly obsessed in pointing out all examples of ineptness, both real and imagined, occurring in the court below. Further, it infers that the State withdrew all recommendations because the appellant refused to act without counsel. Such inference is based on the drawing of an Indian tepee on several portions of the record which indicates to the majority the cryptogram for the prosecutor’s initials. The majority then assumes that because a tepee is found on the order appointing counsel for appellant the conclusion is compelled the plea bargain was withdrawn because the appellant exercised his right to counsel. So much for the trip to Disneyland. I dissent for the reasons stated.
TOM G. DAVIS and W.C. DAVIS, JJ., join this dissent.. The footnotes of the Ehl opinion are omitted.