dissenting.
The majority asks the wrong question and necessarily arrives at the wrong answer.
New interpretations of the double jeopardy clause are not per se retroactive. See Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973); Jackson v. Justices of Superior Court of Massachusetts, 549 F.2d 215 (1st Cir.) cert. denied, 430 U.S. 975, 97 S.Ct. 1666, 52 L.Ed.2d 370 (1977). However, the traditional retroactivity test outlined in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), is not readily applicable to non-procedural rights. Recognizing this, the Supreme Court, in Robinson v. Neil, supra, has applied a more flexible test for determining retroactivity. Although, as the Robinson Court candidly concedes:
“We would not suggest that the distinction that we draw is an ironclad one that will invariably result in the easy classification of cases in one category or the other.”
The majority correctly interprets the flexible rule utilized in Robinson ; however, in applying it to these facts, they misstate the issue as “whether the State should be allowed a post-acquittal conviction.” The issue can be better framed by looking at the ultimate purpose of the protection against double jeopardy. The purpose underlying the decisions in Burks and Greene is, as the *905majority earlier observes, “ ‘squarely directed to the prevention of the second trial’s taking place at all.’ ” In a similar light, the Supreme Court stated the purpose of the protection against double jeopardy as follows:
“It is a guarantee against being twice put to trial for the same offense * * * the guarantee against double jeopardy assures an individual that, among other things, he will not be forced, with certain exceptions, to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).”
This purpose, of preventing the second trial, can be fully accomplished prospectively.1 It cannot be accomplished after the second trial has occurred. We must, therefore, approach the instant case by acknowledging that the double jeopardy clause, as currently interpreted, has been violated. The proper question concerning retroactivity, in keeping with the flexible approach used in Robinson is: What interest, that is protected by the Double Jeopardy Clause, can not be furthered by granting relief in a collateral attack upon an otherwise valid conviction.
In considering this issue, we must recognize that our federal constitution contains several evolving concepts that have been and continually will be reinterpreted by the Supreme Court. Retrial of the instant petitioner did not violate the Double Jeopardy Clause in 1973. The subsequent conviction was obtained in good faith and with sufficient evidence. Petitioner has already suffered the consequences of the second trial process. Double jeopardy does not effect the validity of the fact finding process. Thus, the only possible interest which could be furthered by retroactivity would be to elevate the Double Jeopardy Clause to the highest magnitude of constitutional rights such that any violation of it is so fundamental that it requires full and automatic retroactive application. We have not even accorded our Fourth Amendment protections, against arbitrary government searches, such a lofty position. Linkletter v. Walker, supra. The Supreme Court in Robinson held that the Double Jeopardy Clause did not protect such a fundamental right, and there is no reason to elevate the protection beyond the current Supreme Court interpretations. No other interest, constitutional or otherwise, will be furthered by now allowing petitioner to escape the consequences stemming from a conviction which was constitutionally and legally obtained in 1973.
The reversal of the original conviction was an error of law on the part of the majority of the Court. See the original and dissenting opinions in Reynolds v. State, 489 S.W.2d 866 (Tex.Cr.App.1970). There was sufficient evidence in that case to support the conviction with or without the testimony of an accomplice witness.
The relief requested should be denied.
W. C. DAVIS, J., concurs in this opinion.. Since the decisions in Burks and Greene, when we reverse a conviction for insufficient evidence, we order a judgment of acquittal. E. g., Owens v. State, 576 S.W.2d 859 (Tex.Cr.App.1979). The federal courts allow an interlocutory appeal from the district court’s denial of a motion asserting double jeopardy. Abney v. United States, supra. Thus, both our Court and the federal courts recognize the importance of preventing the second trial.