dissenting.
Shamelessly the majority overrules appellant’s motion for rehearing even though the opinion on original submission is in conflict with other opinions of this Court dealing with North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). This conflict was ignored in the opinion on original submission, and was the basis for this writer’s earlier dissent without written opinion. Now over a year and a half after the filing of appellant’s motion for rehearing urging that the majority was wrong on original submission, the majority finally decides to respond by overruling the motion for rehearing with a brief opinion still ignoring the conflict and mischaracter-izing the facts as a “withdrawal” of plea, when the motion for new trial was filed and granted.
Appellant was indicted for burglary of a habitation. A prior conviction for burglary of a motor vehicle was also alleged for enhancement of punishment. About two months later appellant entered a plea of nolo contendere to the primary offense before the court, waiving trial by jury. The State waived and abandoned the paragraph of the indictment alleging the prior conviction for enhancement purposes. As a result of a plea bargain the court assessed appellant’s punishment at 12 years’ imprisonment for the primary offense.
A few days later, by letter to the trial court, appellant indicated his dissatisfaction with the “deal” he got, claimed a lack of understanding as to what happened. After a discussion with the trial court, a motion for new trial was filed by appellant’s counsel and it was granted by the trial court.
Several weeks later appellant was tried before a jury which found him guilty of the primary offense. The penalty stage of the trial was conducted before the court. Appellant entered a plea of “true” to the enhancement allegations. The court assessed appellant’s punishment at 20 years’ imprisonment, an increase of eight years over that at the first trial.
On appeal appellant contended the trial court exhibited “judicial vindictiveness” by increasing the penalty assessed, citing North Carolina v. Pearce, supra. In light of Pearce, Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975), and Palm v. State, 656 S.W.2d 429 (Tex.Cr.App.1983), the Court of Appeals vacated the judgment and remanded the cause to the trial court for reassessment of punishment.
We granted the State’s petition for discretionary review. The State argued the Court of Appeals erred because the presumption of vindictiveness of Pearce need not be applied on a second trial where the punishment assessed at the first trial was the result of a plea bargain which appellant breached by successfully seeking a new trial.
The majority of this Court on original submission then 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. Simply stated, he never got that far. Therefore, what happened to him in terms of increased punishment cannot under any interpretation be attributed to an unconstitutional response to exercise of those rights — a response condemned in Pearce.” (Emphasis added.)
*31In the past, however, this Court has also applied the rationale of Pearce to cases where a new trial was granted by the trial court without an appeal, without the defendant ever exercising his constitutional or statutory right to review by a higher court. See 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.1983).
While the rationale of applying Pearce in these cases was not there discussed, it was discussed in McCullough v. State, 680 S.W.2d 493, 497 (Tex.App.—Amarillo 1983) (opinion on rehearing). There it was written:
“The State argues that this case materially differs from Pearce because this appellant was granted a new trial by the trial judge, not by an appellate court. Although that is a difference, it is not a distinction. The purpose of Pearce is to forbid vindictiveness against a defendant who successfully pursues post-conviction remedies. As quoted from Pearce in our original opinion, due process ‘requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he received after a new trial.’ 395 U.S. at 725, 89 S.Ct. at 2080. (Emphasis added.) It is immaterial whether the new trial is obtained by an order from the trial court or by a judgment of an appellate court; the principles stated in Pearce still must be observed on retrial.”
McCullough was convicted of murder by a jury which assessed his punishment at 20 years’ imprisonment. His motion for new trial was granted by the trial court. A second jury found him guilty, but McCullough elected to have the trial court assess punishment. She did and assessed 50 years’ imprisonment. The Amarillo Court of Appeals found the principle of Pearce violated, although there was no appeal to a higher court, and reassessed punishment at 20 years. The Court of Criminal Appeals on its own motion granted discretionary review, reversed, found reformation was not proper and remanded to the trial court for assessment of punishment in accordance with Pearce. In an opinion on State’s motion for rehearing the Court found the prophylactic rule of Pearce applicable to the case and overruled the rehearing motion. McCullough v. State, (Tex.Cr.App. No. 351-83, Dec. 5, 1984). It is observed that McCullough was decided after the instant case on original submission.
Certiorari has now been granted by the United States Supreme Court in Texas v. McCullough, - U.S. -, 105 S.Ct. 2699, 86 L.Ed.2d 716 (1985).1
Jackson v. State, (Tex.Cr.App., No. 977-82, July 24, 1985), affirmed the Court of Appeals, Jackson v. State, 662 S.W.2d 74 (Tex.App.-San Antonio 1983), finding the defendant had been deprived of the effective assistance of trial counsel. The defendant Jackson was convicted at his second trial of the actual delivery of heroin and his punishment was assessed at 25 years’ imprisonment by the jury after finding as “true” an allegation of a prior felony conviction alleged for enhancement of punishment. The defendant alleged that at his first trial he had pleaded guilty before the court to the same charge and enhancement allegations and the court assessed his punishment at 15 years’ imprisonment as a repeater offense. Subsequently the trial court granted a new trial apparently because of a defective indictment. At his *32second trial before a different trial judge his counsel permitted him to elect a jury to assess punishment and they did at 25 years’ imprisonment. In light of Pearce he argued that the trial court would have been locked in at 15 years and his counsel’s advice assured him 10 extra years in prison.
The Court of Appeals held that this single error of counsel permeated the entire proceeding and demonstrated an obvious lack of knowledge of applicable legal principles governing punishment on retrial by defense counsel. On State’s petition for discretionary review, this Court affirmed the Court of Appeals that the single error of “omission” by counsel constituted ineffective assistance.
Just what was this dreadful single error of counsel? It was the failure or omission of counsel to advise the defendant that under Pearce the judge was limited in the punishment to be assessed at the second trial after the defendant had successfully attacked his first conviction while the jury was not so limited. What makes Jackson an unusual case is that not only did the court abandon the normal standards for determining the effective assistance of counsel but held that Pearce applied to the grant of a new trial by the trial court even though there had been no appeal for review by a higher court as the Castleberry case held was required by Pearce. And strangely enough the opinion on original submission in Castleberry had been handed down by the time of the decision in Jackson and was mentioned therein. When this Court cannot even decide consistently as to when Pearce applies, how can the single error by Jackson’s counsel be so dreadful that it permeated the entire ease and deprived Jackson of the effective assistance of counsel? Surely Castleberry and Jackson cannot both be right.
If a defense counsel, whose client has been granted a new trial by the trial court, reads Jackson, he will know that if he recommends to the Client to elect the jury to assess punishment then by that single error he will be rendering ineffective assistance of counsel. If, however, he has the client elect the trial court to assess punishment, that court may read Castle-berry and decide that since there was no review and reversal by a higher court, it is free to assess any penalty within the range of punishment fixed by law to the offense charged. If the trial court does then assess a penalty greater than that assessed at the first trial without any basis under Pearce for doing so, has it committed reversible error, or has defense rendered ineffective assistance for permitting the defendant to elect the court to assess punishment and for knowing about the conflict between Castleberry and Jacksonl
Much more could be written, but suffice it to say that both before and after Castle-berry this Court has applied Pearce to situations where a new trial has been granted to the defendant and there has been no review by a higher court.
If Castleberry is correct, then the other cases should be overruled or clearly distinguished. It serves no purpose to remain silent and pretend they do not exist. We fool only ourselves and confuse the bench and bar who are daily on the firing line. My concern, my deep concern, is that the majority permits this situation to prevail when they know the problem is squarely before the court. They flex their raw judicial muscles and stare straight ahead as if nothing was awry.
I dissent, as my late colleague, Judge W.A. Morrison, used to write, “with all the vigor at my command.”2
MILLER, J., joins this opinion.. The questions presented are:
"1. Whether a presumption of vindictive sentencing attaches when the trial judge grants the defendant’s motion for new trial, the defendant elects to be sentenced by the judge, and the judge imposes a higher sentence than that imposed by the jury at the first trial.
"2. Whether a presumption of vindictive sentencing can be rebutted by reliance for an increased sentence on new, objective information, not known at the time of the first sentencing but relating to events antedating that sentencing."
. Although not raised, this record shows that at appellant's first trial the State, with consent of the trial court, waived and abandoned the enhancement allegations as to the prior felony conviction. Thus that paragraph passed out of the indictment and out of the case, and the subsequent granting of the new trial did not breathe new life into the abandoned allegations. See and cf. Garcia v. Dial, 596 S.W.2d 524 (Tex.Cr.App.1980).