holding that there was no evidence of bad faith when A[t]he prosecutor stated that he did not know of the witness= existence until the night before@ and Ahe did not determine that her testimony would be needed until the next day when the defense put on a witness that [the witness] would contradict in rebuttal@
How later courts described this case
- holding that there was no evidence of bad faith when A[t]he prosecutor stated that he did not know of the witness= existence until the night before@ and Ahe did not determine that her testimony would be needed until the next day when the defense put on a witness that [the witness] would contradict in rebuttal@
- finding that bad faith not shown where prosecutor did not know existence of witness until the night before
- mo tion for rehearing and petition for discretionary review was refused
Written by the judges who cited it.
The opinion
ANDELL, Justice,
dissenting.
In this, the State’s third motion for rehearing, it asks us to reform the judgment of the trial court from capital murder to murder rather than send the cause back for a new trial on murder. The State cites Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App.1993), in support.
In Bigley , the appellate court found that the evidence was insufficient to convict the appellant on a charge of possession of 400 grams or more of methamphetamine. Id. at 26-27 . The court found that there was ample evidence to convict on a lesser included offense of possession of 28 grams or more but less than 400. Id. at 27 . Relying on rule 80 of the Texas Rules of Appellate Proce *20 dure, the court reformed the judgment to reflect this lesser charge and sent the cause back to the trial court for a punishment hearing. Bigley, 865 S.W.2d at 27 . Rule 80(b), (c) states that the court of appeals may modify the judgment of a trial court by correcting or reforming it and that it may make any other appropriate orders. The Texas Court of Criminal Appeals affirmed. Id. at 28 .
This case was reversed because of a finding of prosecutorial vindictiveness. This Court has not reviewed the record and concluded that the evidence is sufficient to find appellant guilty of murder. Therefore, Big-ley is distinguishable. This Court may not turn to the record from the first trial and review for sufficiency there. This Court already reversed that judgment. There have been no cases that have ordered anything other than reversal and remand upon a finding of prosecutorial vindictiveness.
I would deny the State’s motion for rehearing, reverse the trial court’s judgment, and remand the cause.
DUGGAN and HUTSON-DUNN, JJ, also participating.