concurring.
I concur in the results reached by the majority, but cannot agree with much of its reasoning.
Appellant was originally indicted for robbery by assault, alleged to have occurred on or about August 21, 1973, with a prior 1970 felony theft conviction alleged for enhancement. See Article 62, V.A.P.C., 1925. The enhancement paragraph was subsequently abandoned by the State and the appellant plead guilty to the primary offense and his punishment was assessed by the court in a bench trial at ten (10) years’ imprisonment. On appeal the robbery indictment was held to be fundamentally defective and the cause was ordered reversed and prosecution dismissed. Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975).
On July 31, 1975 appellant was re-indicted for robbery with the same prior conviction alleged for enhancement. However, on December 17,1975 he was again re-indicted. This time the indictment alleged the robbery was committed with a firearm (Article 1408, V.A.P.C., 1925). In addition to the prior 1970 felony theft conviction, a 1969 felony theft conviction was alleged for enhancement. See Article 63, V.A.P.C., 1925. After a voir dire examination of a jury *548panel, the appellant entered a guilty plea before the court to the primary offense, but pleaded “untrue” to the allegations relating to the two prior theft convictions. In a bench trial the court, upon finding the enhancement allegations “true,” assessed punishment at life imprisonment.
Appellant cites North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and argues that in absence of objective information concerning identifiable conduct on his part occurring after the time of the original sentence the court could not increase the punishment assessed over that assessed at original trial without running afoul of the due process clause of the Fourteenth Amendment.
In Pearce it was held that neither the guarantee against double jeopardy nor the equal protection clause of the Fourteenth Amendment imposes an absolute bar to a more severe sentence upon reconviction. In considering the impact of the due process clause of the Fourteenth Amendment upon the question, 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 of 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 sentence may be fully reviewed on appeal.”
Pearce made clear 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).
In Michigan v. Payne, supra, the “prophylactic” due process limitations established by Pearce to guard against the possibility of vindictiveness in cases where a more severe punishment is assessed upon a defendant after a new trial is not to be applied retroactively to resentencing proceedings that occurred prior to the date of the Pearce decision. While Pearce focused upon the vindictiveness or possible vindictiveness of the trial judge in the resentenc-ing process following a reversal of a prior conviction or the granting of a new trial, Chaffin v. Stynchcombe, supra, made clear that although the underlying rationale of Pearce was applicable whether punishment was assessed by judge or jury the due process clause of the Fourteenth Amendment is not offended as long as the jury at the subsequent trial is not informed of the punishment originally assessed and the assessment of punishment is not otherwise shown to be a product of vindictiveness. In Colten v. Kentucky, supra, it was held that Kentucky procedure for adjudicating less serious criminal cases, whereby a defendant convicted in inferior court could obtain a trial de novo in a court of general jurisdiction, did not deny due process even though a greater penalty could be imposed upon trial de novo, where it did not appear that imposition of a greater penalty would result from judicial vindictiveness.
While Payne, Chaffin and Colten all represent restrictions on the rationale of Pearce, Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), was an *549extension of that rationale to prosecutorial vindictiveness. While Perry was imprisoned in a North Carolina penitentiary, he became involved in an altercation with another inmate. He was charged with the misdemeanor offense of assault with a deadly weapon and convicted and given a six months’ sentence to be served after completion of the prison term he was then serving. Perry gave notice of appeal which entitled him to a trial de novo in Superior Court. After the filing of the notice of appeal, the prosecutor obtained an indictment for the felony offense of assault with a deadly weapon with intent to kill and inflict serious bodily injury covering the same conduct for which Perry had been tried and convicted in a lower court. He entered a guilty plea to the indictment and was sentenced to seven years in the penitentiary to run concurrently with his current prison term. The case reached the United States Supreme Court by way of federal habeas corpus proceedings and the granting of certiorari. There the Court wrote:
“The lesson that emerges from Pearce, Colten, and Chaffin is that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of ‘vindictiveness.’ Unlike the circumstances presented by those cases, however, in the situation here the central figure is not the judge or the jury, but the prosecutor. The question is whether the opportunities for vindictiveness in this situation are such as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case. We conclude that the answer must be in the affirmative.
“A prosecutor clearly has a considerable stake in discouraging convicted misde-meanants from appealing and thus obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prose-cutorial resources before the defendant’s conviction becomes final, and may even result in a formerly convicted defendant’s going free. And, if the prosecutor has the means readily at hand to discourage such appeals — by ‘upping the ante’ through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy — the State can insure that only the most hardy defendants will brave the hazards of a de novo trial.
“There is, of course, no evidence that the prosecutor in this case acted in bad faith or maliciously in seeking a felony indictment against Perry. The rationale of our judgment in the Pearce case, however, was not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, we emphasized that ‘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.’ 395 U.S. 711, at 725, 89 S.Ct. 2072, 23 L.Ed.2d 656. We think it clear that the same considerations apply here. A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration. Cf. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138.
“Due process of law requires that such a potential for vindictiveness must not enter into North Carolina’s two-tiered appellate process. We hold, therefore, that it was not constitutionally permissible for the State to respond to Perry’s invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo.”
Branch v. State, 445 S.W.2d 756 (Tex.Cr. App.1969), relied upon by the State, was originally decided prior to Pearce. On rehearing this court decided that Pearce was not applicable. Branch was indicted *550for felony theft with two prior convictions alleged for enhancement of punishment. See Article 63, V.A.C.C.P., 1925. At the first trial, the State failed to prove one of two prior convictions alleged and Branch’s punishment was assessed at ten years as a second offender. See Article 62, V.A.C. C.P., 1925. He was granted a new trial. At the second trial he was assessed a life sentence following the jury’s verdict. Another new trial was granted, and at the third trial appellant was found guilty by the jury of the primary offense, who also found he was the same person twice previously convicted as alleged. The court in accordance with Article 63, supra, assessed punishment at life, there being no discretion on the judge’s part. The court found that Pearce’s prohibition against increased sentences on retrial which are the product of the sentencing judge’s motives or vindictiveness was not applicable. There was no focus upon any vindictiveness on the part of the prosecutor. To the same effect is Martinez v. State, 471 S.W.2d 399 (Tex.Cr.App. 1971). These cases were, of course, decided prior to Perry, but Martinez’s later claim that there was prosecutorial vindictiveness was rejected. See Martinez v. Estelle, 527 F.2d 1330 (5th Cir. 1976). In Alvarez v. State, 536 S.W.2d 357 (Tex.Cr.App.1976), this court on original submission relied upon Branch and Martinez in disposing of Alvarez’s contention that the rationale of Pearce was violated. On rehearing the court discussed the possibility of prosecutorial vindictiveness, but rejected the same.
In the instant case the prosecutor had to seek a new indictment for robbery if he intended to prosecute the appellant since the first indictment was held to be fundamentally defective. He later sought and obtained a third indictment, this time for robbery by assault with a firearm, rather than the original charge of robbery by assault. Though a difference in penalty exists between the offenses, Article 1408, V.A. P.C., 1925,1 the difference was largely neutralized by the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). However, the prosecutor did not stop with changes in the offense charged in the primary court, but alleged two prior convictions for enhancement whereas only one had been alleged in the first and second indictments. The indictments were not identical, and it appears clear that there was an escalation of the charges which, if proven, would require an automatic life sentence to be imposed and which, if not used, would give the prosecutor greater leverage in any plea bargain. Thus, like Perry, we are presented with facts suggesting a likelihood of potential prosecutorial vindictiveness. A person convicted of an offense is entitled to pursue his right of appeal without apprehension that the prosecution will retaliate by substituting a more serious charge for the original one thus subjecting him to a significantly increased potential period of incarceration.
The life sentence must be set aside and the cause remanded with instructions that the allegations of the prior convictions for the purpose of enhancement be dismissed from the indictment and that the court assess punishment for the primary offense in accordance with Blackledge v. Perry, supra, and North Carolina v. Pearce, supra. We need not go further in reaching the proper result in this case. However, the majority lunges ahead, apparently in defense of the opinion on rehearing in Alvarez,2 cited by the State.
Alvarez was originally indicted for possession of heroin with two prior convictions alleged for enhancement. See Article 63, supra. The allegations as to the prior con*551victions were dismissed and appellant plead guilty before the court to the primary count and was assessed punishment of ten years. His conviction was subsequently reversed. He was then re-indicted with the same two prior convictions being alleged again for enhancement. He then plead not guilty and chose to be tried by a jury. He was convicted and a life sentence was imposed in accordance with said Article 63. On original submission of his second appeal, Alvarez claimed a violation of North Carolina v. Pearce, supra, and Blackledge v. Perry, supra. The court held that the trial court exercised no discretion but imposed a life sentence as an habitual criminal as required by law, and that the disparity in the punishment imposed at the two trials was the result of appellant's choice of trial strategy. On rehearing the court held that a defendant who changes his plea of guilty to a plea of not guilty upon a new trial may not, at the same time, hold the State to the punishment sought or secured at the first trial. The instant case is distinguishable from Alvarez on the facts. The appellant entered guilty pleas both times and the trial was before the judge in each instance. However, insofar as Alvarez holds that where there is potential prosecutorial vindictiveness the case may turn upon whether the plea was different at the two trials and whether trial strategy was involved, it should be overruled. A defendant should not lose the due process protection afforded by Pearce and Perry merely because at his second or subsequent trial he changes his plea or his trial strategy.
In considering the question of potential prosecutorial vindictiveness in Alvarez (on rehearing), the court concluded that the disparity between the punishments assessed at the first and second trials was the result of trial strategy. The court noted that Alvarez had at his first trial entered a guilty plea before the court and then wrote:
“. . . On the second trial appellant elected to plead not guilty and be tried by a jury, and the State prosecuted its case on a new indictment containing the enhancement allegations that had been abandoned at the first trial. We perceive no reason why an accused who changes his plea from guilty to not guilty on retrial should be able at the same time to hold the State to the punishment sought or secured at the first trial.” (Emphasis added.)
It is observed that the above quoted portion of Alvarez is quoted with approval in the instant majority opinion. I dissent to a reiteration of the holding in Alvarez (on rehearing) that a change of his plea at the second trial will deprive a defendant of his due process protection given him by North Carolina v. Pearce, supra, and Blackledge v. Perry, supra. If a defendant enters a guilty plea before the court the first time and after reversal on appeal enters a plea of not guilty and asks for a jury, are we really prepared to say that this is forbidden trial strategy which if engaged in causes the loss of the due process protection afforded? Suppose between the time of the first and second trials the procedural law has been changed by legislative action or the federal or state court decision making process has rendered certain procedures more favorable to the defendant, suppose that new evidence has been discovered relevant to the defendant’s innocence, or the defendant has different counsel who feels the earlier guilty plea was a mistake under the circumstances now or then prevailing? Must such a defendant forego entering a not guilty plea after successfully attacking the first conviction and further forego a jury trial in order to preserve the due process protection afforded by North Carolina v. Pearce, supra, and Blackledge v. Perry, supra? I do not conclude that the rationale of Pearce was every intended to cause a defendant’s hands to be tied behind his back or that he was to be deprived of the other matters of plain fairness at the second trial to atone for having invoked Pearce.
To support its reliance upon Alvarez that the disparity between the punishment at the first and second trials was not shown to be other than a consequence of trial strategy as opposed to prosecutorial vindictiveness, the majority states, “[Pjrosecutorial vindictiveness is retaliation and distinguish*552able from trial strategy that is a matter of the defendant’s free choice with full knowledge of the consequences.” The majority then states that this “is precisely the distinction relied upon the United States Supreme Court in its recent decision in Bor-denkircher v. Hayes, - U.S. -, 98 S.Ct. 663, 54 L.Ed.2d 604, 22 Cr.L. 3023 (January 18, 1978).” Such reliance is totally misplaced.
The Court in Hayes stated:
“The question in this case is whether the Due Process Clause of the Fourteenth Amendment is violated when a state prosecutor carries out a threat made during plea negotiations to reindict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged.”
The Court later stated:
“It may be helpful to clarify at the outset the nature of the issue in this case. While the prosecutor did not actually obtain the recidivist indictment until after the plea conferences had ended, his intention to do so was clearly put forth at the outset of the plea negotiations. Hayes was thus fully informed of the true terms of the offer when he made his decision to plead not guilty. This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendant’s insistence on pleading not guilty. . . . ”
In Hayes the Court further wrote:
“This Court held in North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 23 L.Ed.2d 656, 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, supra, 417 U.S., at 27, 94 S.Ct. 2098, 40 L.Ed.2d 628.
“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 the defense, which arguably possess relatively equal bargaining power.’ Parker v. North Carolina, 397 U.S. 790, 809, 90 S.Ct: 1458, 25 L.Ed.2d 785 (opinion of Brennan, J.). The Court has emphasized that the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right, see Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584; Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction. See Blackledge v. Perry, supra, 417 U.S., at 26-28, [94 S.Ct. 2098, 40 L.Ed.2d 628],
“To punish a person because he had done what the law plainly allows him to do is a due process violation of the most basic sort, see North Carolina v. Pearce, supra, 395 U.S., at 738, 89 S.Ct. 2072, 23 L.Ed.2d 656 (opinion of Black, J.), and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional.’ Chaffin v. Stynchcombe, supra, 412 U.S., at 32-33, n. 20, 93 S.Ct. 1977, 36 L.Ed.2d 714. See United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138. 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." (Emphasis added.)
Thus, it is clear that Hayes does not support Alvarez (on rehearing) as claimed by the majority.
*553The majority states, “If a defendant withdraws on retrial from a plea bargain obtained at the first trial, an increased punishment would be a legitimate response of the State to the defendant’s rejection of that agreement. This is based on the teaching of Bordenkircher v. Hayes, supra.” This is clearly wrong, and represents a misinterpretation of Hayes. The Hayes case involved an attempt at a plea bargain which failed and where the prosecutor carried out his threat made during the plea negotiations to bring more serious charges if a bargain was not reached. In the instant ease there was a completed plea bargain at the first trial, but the appellant did what he had a legal right to do, that is, to appeal, which appeal resulted in a reversal. After the reversal, the prosecutor then elevated the charges. Hayes is a far cry from this situation and does not teach as the majority indicates that the appellant loses his due process rights if he withdraws at the second trial from the original plea bargain after he exercised a right he was legally entitled to exercise.
While I concur in the result reached, I do not agree with much of the majority’s reasoning.
I must also express my concern that the majority opinion has failed to mention the “unassigned ground of error” upon which two judges would reverse the cause. These judges point out that the trial judge did not admonish the appellant in accordance with Article 26.13, V.A.C.C.P., as amended 1975 (in effect at the time of appellant’s trial) that any recommendation of the prosecuting attorney as to punishment is not binding on the court.
An examination of the record does show that the court did not mention such fact in its admonishment of the appellant. However, immediately prior to the admonishment the defense counsel inquired about a waiver of the enhancement paragraphs of the indictment. The prosecutor in the presence of the court, the appellant and his counsel refused to waive such enhancement allegations, and stated that the State intended to prosecute the appellant as an “habitual criminal” and made clear that there would be no plea bargain.
To reverse a case for the failure of the trial court to admonish a defendant that any recommendation of the prosecuting attorney as to punishment is not binding on the court when there in fact has been no plea bargain and the defendant and his counsel have been informed the State intends to seek the maximum punishment would be to reach an absurdity. My very strong views on Article 26.13, supra, and its forerunners have been expressed in many opinions of this court, but I do not believe that the Legislature ever intended any such nonsense such as a reversal would be under the circumstances here involved. To the extent that Murray v. State, 561 S.W.2d 821 (Tex.Cr.App.1977), is in conflict, it should be overruled.
I concur.
TOM G. DAVIS, and DALLY, JJ., join in this concurrence.. This writer concurred only in the result reached in such opinion.