# Branch v. State

> Court of Criminal Appeals of Texas · June 18, 1969 · 445 S.W.2d 756

URL: https://www.frixlaw.com/law-library/cases/9778551

## Case

- **Full name:** Hamilton BRANCH, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 18, 1969
- **Citations:** 445 S.W.2d 756; 1969 Tex. Crim. App. LEXIS 1152
- **Precedential status:** Published
- **Opinion:** On rehearing by Belcher
- **Judges:** Onion, Belcher
- **Cited by:** 35 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/9778551

## Opinion text

ON APPELLANT’S MOTION FOR REHEARING
BELCHER, Judge.
The appellant now reurges his ground of error No. 10 in that since this court’s affirmance of the case, the Supreme Court of the United States decided North Carolin v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (June 23, 1969), which the appellant contends requires a different result in this case.
The appellant was indicted for felony theft enhanced under Article 63, V.A.P.C. At the appellant’s first trial the state failed to prove one of the two prior convictions alleged for enhancement, and the appellant was assessed 10 years as a second offender. On November 2, 1966, the court granted a motion for new trial. At the appellant’s second trial, he received a life sentence; the jury assessing the punishment. Motions for new trial were filed and withdrawn. The court, however, allowed the appellant to withdraw notice of appeal and granted another new trial. On the third trial the appellant was found guilty of the primary offense by a jury, and the jury in assessing the punishment found that the appellant had previously been twice convicted of a felony less than capital, and assessed his punishment at life imprisonment from which the appellant appealed.
The United States Supreme Court in Simpson v. Rice, the companion case to North Carolina v. Pearce, supra, holds that increased sentences on retrial which are the product of the sentencing judge’s retaliatory motives or vindictiveness should not be imposed. In this case Hamilton Branch’s increased punishment cannot be the result of a retaliatory motive on the *761 part of the sentencing judge because here the appellant’s punishment, in accordance with his request, was assessed by the jury. The verdict was in compliance with Art. 63, supra.
At the second retrial there was a finding of fact that the appellant had previously been twice convicted of felony offenses while at the original trial the evidence failed to prove one of the prior convictions. Upon the finding at the second retrial that there was sufficient evidence to prove the two prior felony convictions alleged for enhancement, Article 63, V.A.P.C., required that the punishment be assessed at life. Thus, there was additional proof on the second trial which under Art. 63, supra, required a definite punishment of life. Salisbury v. Grimes, 406 F.2d SO (Sth Cir. 1969).
The appellant’s ground of error No. 10 is overruled.
The appellant’s grounds of error Nos. 3 and 4 have been reconsidered and are overruled.
The appellant’s motion for rehearing is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9778551. Public record. Not legal advice.