dissenting.
I respectfully dissent. As the majority opinion notes, Appellant was charged in seven cases with delivery of cocaine. A jury was empaneled and sworn. The indictments were read to the jury, and Appellant then entered his pleas, “guilty” to cause number 27367 and “not guilty” to the other six indictments. The State then moved to dismiss the six indictments to which Appellant had pleaded “not guilty,” and the trial court granted the State’s motion. The trial proceeded in cause number 27367. During the punishment phase, the State sought to introduce evidence to the jury of the facts of the cases to which Appellant pleaded “not guilty” and the trial court dismissed on the State’s motion after jeopardy had attached. Appellant strenuously objected to the admission of the dismissed cases on the grounds of double jeopardy under the federal and state constitutions and collateral estoppel.
I agree with the majority that jeopardy attached to the six cases that were dismissed. However, I disagree with its holding that collateral estoppel does not bar evidence of the dismissed cases.
Collateral estoppel means that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). In Ashe, the United States Supreme Court considered the application of collateral es-toppel to a criminal case. Ashe was indicted as one of three or four men who robbed six men engaged in a poker game. Ashe was acquitted at trial of an armed robbery of one of the victims. The State then tried and the jury convicted Ashe on a charge of committing armed robbery of another of the victims. Ashe appealed, contending collateral estoppel prevented the State from prosecuting him on the second charge. The Court in Ashe noted that
the rule of collateral estoppel in criminal cases is not to be applied with the hy-pertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.”
Id., 397 U.S. at 444, 90 S.Ct. at 1194. The court then reviewed the evidence, and determined the only issue on which the first jury could have acquitted Ashe was a failure of the evidence to identify Ashe as one of the robbers. The Court held that the State was precluded from prosecuting Ashe again “in the hope that a different jury might find that evidence more convincing.” Id.
The issue before us is whether evidence of dismissed cases against a defendant can be used against that defendant at a subsequent punishment hearing in another case after (1) the defendant has been brought to trial and placed in jeopardy on the dismissed cases, (2) the defendant has pleaded not guilty, (3) the State has offered no evidence in the cases, and (4) the trial court then has dismissed those cases against the defendant. Texas Code of Criminal Procedure article 37.07, section 3(a) allows the admission of evidence, subject to other evidentiary rules, only if “evidence of an extraneous crime or bad act [can be] ... shown beyond a reasonable doubt by evidence to have been committed *468by the defendant-” Tex.Code CRiM. PROc. Ann. art. 87.07 § 3(a).
In the present case, Appellant pleaded not guilty to six of the charges in front of a jury empaneled and sworn to hear the case. Jeopardy attached. The State then dismissed those six indictments without presenting any evidence. According to Ashe, in determining whether collateral es-toppel prevents the State from relitigating these cases, a reviewing court is to “examine the record of a prior proceeding ... and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Ashe, 397 U.S. at 444, 90 S.Ct. at 1194.
In most cases where the issue of collateral estoppel is raised, there is some evidence on each issue. In those cases, it is difficult, if not impossible, for a reviewing court to determine if the issue that a defendant seeks to preclude in a subsequent trial was the exact issue on which the jury failed to find sufficient evidence, resulting in a “not guilty” verdict. By contrast, in the present case, there is a complete absence of any evidence admitted on any of the six dismissed indictments; therefore, there was absolutely no evidence on any element of the six charged offenses that were dismissed. Had the State not moved to dismiss the cases, proceeded to a jury trial, and declined to present evidence, the jury would have been required to enter a “not guilty” verdict on each case. The result should not be different merely because the State elected to move for dismissal after the jury was empaneled and jeopardy attached instead of proceeding to trial. In either scenario, any subsequent attempt by the State to prove these issues beyond a reasonable doubt would constitute relitigation of those issues. See Tex. Code Ceim. PROC. Ann. art. 37.07 § 3(a) (State has burden of proving beyond a reasonable doubt by evidence that extraneous acts were committed by the defendant). In other words, at the punishment phase, the State cannot seek to establish what was found against it as a result of the dismissal. Accordingly, the State is precluded, by virtue of collateral estoppel, from relitigating any of the elements of the six cases that were dismissed against Appellant, and estopped from adducing any evidence of those offenses at the punishment phase of the remaining case. Therefore, I would reverse and remand Appellant’s case for a new punishment hearing with instructions that evidence of the six dismissed cases be excluded.