# Shiflett v. State

> Court of Criminal Appeals of Texas · October 8, 1975 · 530 S.W.2d 548

URL: https://www.frixlaw.com/law-library/cases/5045092

## Case

- **Full name:** Daniel Dane SHIFLETT v. The STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** October 8, 1975
- **Citations:** 530 S.W.2d 548; 1975 Tex. Crim. App. LEXIS 1099
- **Precedential status:** Published
- **Opinion:** Concurrence by Odom
- **Judges:** Roberts, Odom, Onion
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5045092

## Opinion text

ODOM, Judge
(concurring).
I concur in the conclusion of the majority that no violation of the requirements of North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969), has been shown, but I base that conclusion upon different reasoning.
The majority observe that no formal imposition of sentence had occurred between the assessment of two years and the assessment of three years, and from that fact conclude that Pearce does not apply. Apparently this is based upon the language in Pearce stating its scope of application as “whenever a judge imposes a more severe sentence upon a defendant after a new trial.” (Emphasis added.) The imposition of sentence spoken of in Pearce , however, should not be taken to mean the formal imposition of sentence of Texas procedure. At least two unreasonable results would flow from such a rigid identification. First, the recognized and well-founded distinction of eases where punishment is assessed by a jury from cases where it is assessed by the court, referred to by the majority, would have to be abolished because, regardless of who assesses punishment, formal imposition of sentence is always by the court, never by a jury. The second unreasonable result of holding Pearce inapplicable whenever the first punishment has not been formally imposed is that the granting of a motion for new trial, which occurs between judgment and sentence, would never invoke Pearce . Nor would Pearce apply to retrial after withdrawal of a guilty plea permitted prior to formal sentencing. Yet such were apparently the facts in Moore v. State, 527 S.W.2d 529 (Tex.Cr.App.1975) in which this Court unanimously held Pearce applicable and remanded the case for proper assessment of punishment. If the rationale of the majority is sound, Moore apparently was decided wrongly.
I submit that both Moore and the instant case are properly decided upon the following rationale. North Carolina v. Pearce, supra, by its own language applies “whenever a judge imposes a more severe sentence upon a defendant after a new trial.” (Emphasis added.) In Moore v. State, supra, the defendant was permitted to withdraw his plea of guilty and given a new trial. In the instant case appellant was not given a new trial, not even upon the issue of punishment alone. From the record it appears that after the initial assessment of punishment appellant requested that the court withdraw his assessment and recess *551 the cause until a later date in order that more evidence might be presented before final assessment of punishment. The court granted appellant’s request and ordered the first assessment of punishment expunged. No judgment had been entered upon the first assessment of punishment. Had judgment been previously entered, the action of the trial court would have been tantamount to vacating the punishment portion of the judgment, which would have constituted the granting of a new trial on the issue of punishment, invoking Pearce. However, from the facts of this case it is clear that the request and the action of the trial court, as expressed in the record and coming at the stage of the proceedings at which they did, constituted nothing more than a recess in the cause followed by a continuation of the original trial of the cause on the issue of punishment. No new trial was had on the issue of punishment. Accordingly, North Carolina v. Pearce, supra, was not violated.
I therefore concur in the affirmance of this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5045092. Public record. Not legal advice.