Nathaniel Wiltz v. State Texas

A jury convicted appellant of attempted aggravated sexual assault and the trial court assessed punishment at confinement for ten years, probated. The conviction was reversed by the Court of Appeals because of Batson error. Wiltz v. State, 749 S.W.2d 519 (Tex.App.--Houston[14th] 1988, no pet.). Upon retrial a jury again convicted appellant of attempted aggravated sexual assault and appellant again chose to have the trial court assess punishment. A different judge presided at the retrial and assessed punishment at confinement for five years. The Court of Appeals reversed and remanded for resentencing under North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), after concluding that the second sentence constituted greater punishment than that assessed in the first trial. Wiltz v. State, 827 S.W.2d 372 (Tex.App.--Houston[1st] 1992). We granted the States petition to determine whether the second sentence of five years without probation is a greater punishment than an initial sentence of ten years with probation.