The opinion
OPINION ON APPELLANT’S MOTION FOR REHEARING
ODOM, Judge.
By motion for rehearing appellant urges for reconsideration his contention that his punishment assessed at life imprisonment under Article 63, V.A.P.C., is in violation of the principles of North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 .
The opinion in North Carolina v. Pearce, supra, commences:
“When at the behest of the defendant a criminal conviction has been set aside and a new trial ordered, to what extent does the Constitution limit the imposition of a harsher sentence after conviction upon retrial?” 395 U.S., at 713 , 89 S.Ct., at 2074 .
The court rejected two arguments urging an absolute bar to increased punishment:
“We hold, therefore, that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon recon-viction.” 395 U.S., at 723 , 89 S.Ct., at 2079 .
The Due Process Clause of the Fourteenth Amendment, however, was held to place limitations upon the imposition of a more severe sentence upon retrial:
“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 *363 sentence may be fully reviewed on appeal.” 395 U.S., at 725-726 , 89 S.Ct., at 2080 .
The narrow holding of North Carolina v. Pearce , then, is that the procedure stated in the last above-quoted paragraph must be followed whenever a judge imposes a more severe sentence upon a defendant after a new trial. As such, the mandated procedure addresses only those cases where the judge imposes a greater punishment. The principles that are the foundation of the holding in North Carolina v. Pearce, and that state the interests that the mandated procedure was fashioned to protect, however, are those stated in the second-to-last above-quoted paragraph, to-wit, (1) “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, more narrowly, (2) “that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.”
The facts of the instant case were set out in our opinion on original submission as follows:
“This was the second trial of appellant for this offense. The indictment on which he was first tried charged him with this same unlawful possession of heroin, and also charged that he had been twice convicted of felony offenses less than capital for enhancement purposes. The record reflects that when the case was called for trial on October 10, 1973, the State ‘waived and abandoned 2nd and 3rd paragraphs of indictment (Habitual enhancement of punishment) and agreed to proceed to trial on 1st paragraph.’ On a plea of guilty before the court, appellant, after evidence, was convicted and punishment was assessed at ten years. On appeal, the judgment was reversed and the cause was remanded for failure of the trial court to properly admonish appellant. See Alvarez v. State, 511 S.W.2d 521 .
“After remand, a new indictment was presented again charging appellant with possession of heroin, and containing the same provisions of prior felony convictions for enhancement purposes. When the case was called for trial on December 11, 1974, appellant changed his former plea to one of not guilty, and chose to be tried by jury. Thereupon, the court, on the State’s motion, dismissed the prior case, and the trial proceeded before a jury on the instant indictment which included the enhancement allegations. Appellant filed his request that in the event of a guilty verdict punishment be assessed by the court. After conviction, the court conducted the punishment hearing, and assessed punishment at life in accordance with Article 63, V.A.P.C.”
Under the indictment upon which appellant was tried, upon proof of the enhancement allegations under Article 63, V.A.P.C., the punishment was fixed by law at life imprisonment. Blackwell v. State, Tex.Cr.App., 510 S.W.2d 952, 955 ; Haro v. State, 132 Tex.Cr.R. 507 , 105 S.W.2d 1093, 1095 . The judge in this case had the authority to find the facts alleged for enhancement to be true or not, but having found the facts true, the court was without power to enter in the judgment or pronounce in the sentence any punishment other than that fixed by law. The penalty being fixed by law, the increase may not be attributed to possible vindictiveness of the judge. Stated another way, the reason that the judge imposed a more severe sentence upon appellant’s retrial does affirmatively appear in the record: the statutes of Texas dictated the life sentence upon proof of the enhancement allegations; the judge had no discretion in the matter of punishment. We therefore find that the procedural mandate of North Carolina v. Pearce has not been violated.
Our finding that the trial judge did not violate the procedural mandate of North Carolina v. Pearce, however, does not close the matter. That procedural mandate was fashioned by the Supreme Court to guard against violation of the fundamental requirement that “vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the *364 sentence he receives after a new trial,” (emphasis added). If the State may not be vindictive against such a defendant through the action of the trial judge imposing a more severe sentence, we do not see how the State could be permitted to secure a greater punishment for vindictive purposes by simply using enhancement allegations in the pleading. Vindictiveness is the evil object of North Carolina v. Pearce, and it is equally impermissible whether flowing from a judge or from a prosecutor. If shown, prosecutorial vindictiveness would be as fatal to increased punishment on retrial as would be judicial vindictiveness.
Although North Carolina v. Pearce placed a duty upon the trial judge to make the record affirmatively demonstrate grounds other than vindictiveness when a judge imposes a more severe sentence upon a defendant after a new trial, it mandated no such duty regarding possible prosecutorial vindictiveness. We decline to place such a duty upon the trial judge where the record demonstrates facts such as appear in this case. Although the record does not show whether the first conviction rested upon a negotiated plea, 1 it does show that appellant entered a plea of guilty and the State abandoned the enhancement allegations of the first indictment. 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.
Absent a showing of circumstances that would indicate prosecutorial vindictiveness, such as an improper refusal to continue to honor a plea bargain previously made, we are of the opinion that no violation of the principles of North Carolina v. Pearce has been shown. The increased punishment in this case, considered together with the ap-pedant’s change of his plea, we hold does not constitute a showing of such circumstances. We remain convinced that the disparity between the ten year sentence on appellant’s first trial and the life sentence on appellant’s second trial has not been shown to be anything other than a consequence of trial strategy, as opposed to pros-ecutorial vindictiveness.
The motion for rehearing is denied.
ONION, P. J., concurs in the results.
. See Cruz v. State, Tex.Cr.App., 530 S.W.2d 817 , and Gibson v. State, Tex.Cr.App., 532 S.W.2d 69 , for the suggested practice of placing the results of plea negotiations in the record.