Basic facts are that D was originally indicted as a evading arrest w/vehicle enhanced to a second degree with 2 prior trips. Just prior to trial, we realize he had a previous evading conviction such that we could've enhanced his offense to a third degree and then further enhanced to habitual with the priors. We ultimately tried the case as indicted, D was convicted and sentenced to 8 years TDC. Now the case has been reversed on a Standefer issue (which we still think we're right on, but that's another topic...) and is back on the docket. There's some debate about whether we can now go back and re-indict to allege this as a third degree w/habitual range or whether it would now be construed as prosecutorial vindictiveness. Thoughts?

To determine prosecutorial vindictiveness, a reviewing court will review WHY you took an action more than reviewing WHAT it is that you did. So while at first blush proceeding with the enhancements may appear to be "vindictive" IF you can show that the reason (the "WHY") has a legitimate basis, you should be OK. It may be helpful to have people who were involved in the initial trial prepare affidavits NOW explaining why the enhancements were not alleged before, and that the decision to proceed on the initial indictment was to avoid additional delay. I do not think you are prohibited from pursuing the enhancement, but think seriously about how you are going to answer the questions that are sure to arise.

I agree with Larry. Your case is similar to Raetzsch v. State, 709 S.W.2d 39, 41 (Tex.App.-Corpus Christi 1986, pet. ref'd), in that the failure to allege the enhancement at the first trial was that it was only discovered "just before trial." If your trial judge finds that explanation to be non-vindictive, then it should hold up on appeal.