concurring.
The State argues that applicant is not entitled to relief in this cause because the claim he raises was raised and rejected already on direct appeal. See Drake v. State, 686 S.W.2d 935 (Tex.Cr.App.1985). In my Anew the majority does not adequately address this contention. Although I join the judgment of the Court, I therefore write separately.
Twice in recent memory the Court has invoked the law of the case doctrine in the context of post-conviction habeas corpus. See Ex parte Schuessler, 846 S.W.2d 850, at 852, n. 7 (Tex.Cr.App.1993); Ex parte Purtell, 1994 WL 18209 (Tex.Cr.App., No. 71,515, delivered January 26, 1994) (Pending on motion for rehearing).1 Given that a post-conviction habeas corpus is a collateral attack of an earlier conviction, and not the same “case” at all, I continue to fail to see the applicability of law of the case doctrine. I take this to be an imprecise expression of an otherwise valid intuition, a rough notion of judicial economy, a justifiable interest in the finality of litigation. But the Court would do better to incorporate its concerns about the finality of criminal litigation into its jurisprudence of the eognizability of matters in post-conviction habeas corpus in the first instance.
Today the Court simply chooses to ignore its recent holdings in Schuessler and Purtell, and does not even attempt to find an exception to its recently embraced doctrine of law of the case in post-conviction habeas corpus.2 *217How the Court, given its recent pronouncements, can grant relief in this cause without any discussion of law of the case and exceptions thereto escapes me. Because I reject any application of the doctrine at all in post-conviction habeas corpus, I need not look for an exception.
Over the past five years I have begun to develop a kind of uniform theory of cogniza-bility of matters in post-conviction habeas corpus. I have suggested that cognizability ought to be limited to those matters, constitutional or statutory, that we would characterize, or, in our perception, the Legislature has characterized, as “so fundamental to the fair operation of the system as to be 1) immune from procedural default, 2) not subject to a harm analysis, and 3) fully retroactive in application.” Ex parte Sadberry, 864 S.W.2d 541, at 545 (Tex.Cr.App.1993) (Clinton, J., dissenting).3 Our interest in rectifying any defect in a prior proceeding that is “fundamental” in this sense is sufficient to defeat the State’s otherwise legitimate interest in the finality of its convictions.4 Any appellate court failing to reverse a conviction on the basis of such a genuinely “fundamental” defect will, from the vantage of post-conviction habeas review, invariably appear to be “clearly erroneous.” See Ex parte Granger, 850 S.W.2d 513, at 523 (Tex.Cr.App.1993) (Clinton, J., dissenting). This is true even though the defect may not have been recognized by the courts until after the appeal, since we have said the matter, to be cognizable in post-conviction habeas corpus in the first place, must be fully retroactive.5 To apply the doctrine of law of the case under these circumstances would be absurdly redundant because the result will always be the same, viz: the habeas applicant will obtain relief anyway under an exception to that doctrine, because the appellate court that denied it to him “clearly erred” to do so. See Ex parte Granger, supra.
In Fortune v. State, 745 S.W.2d 364 (Tex.Cr.App.1988), the Court held that more than one conviction from a single indictment would be void for lack of authority to plead more than one offense in a single indictment.6 We held that such an error was not subject to procedural default; that it was “fundamental” at least in that sense. Moreover, we did not conduct a harm analysis before rectifying the error. Although we did not address the question whether the overruling of Drake v. State, 686 S.W.2d 935 (Tex.Cr.App.1985) would have retroactive effect,7 the quasi-jurisdictional nature of the defect, and characterization of the superfluous conviction as “void,” certainly suggests an intention to reach back and nullify any conviction thus erroneously obtained. Accordingly, the Court in this cause should *218simply recognize that a claim brought under Fortune is cognizable in Article 11.07 post-conviction application for writ of habeas corpus, and, finding applicant has adequately pled such a claim, and proved it to our satisfaction, grant relief.
Because that is basically what the Court does today, I concur in the result.
WHITE, J., joins this opinion.. Both Schuessler and Purtell cite Ex parte Calvin, 689 S.W.2d 460 (Tex.Cr.App.1985), as if it stood for the proposition that law of the case doctrine applies even in a post-conviction habeas corpus context. The style notwithstanding, careful study of Ex parte Calvin reveals that it does not remotely support this proposition.
. The majority does liken this case to Schuessler and suggests that, because law of the case did not control there, it also does not control here. That is wrong. In Schuessler we held that law of the case did not come into play because this Court had lacked jurisdiction in the first instance to overturn the lower appellate court on petition for discretionary review. Surely a purported *217opinion from this Court in a context in which we lacked jurisdiction could not be interposed as law of the case so as to prevent further post-conviction review, and we held as much in Schuessler. (In doing so, we also suggested that law of the case ordinarily does apply in post-conviction habeas review — a mistake, in my view, and one the Court later duplicated in Purtell.) By contrast, this Court did not lack jurisdiction to decide Drake v. State, supra. Nothing in the reasoning in Schuessler justifies exempting applicant from the law of the case effect (if any) of this Court's prior appellate review of his present contention.
.“I would also adopt a doctrine of excuses, entertaining any federal constitutional claim recognized as of the time of trial but for which a record could not have been made, despite due diligence of the accused, in time to preserve the error for direct appeal.” Id. By definition, a claim brought on habeas corpus under this doctrine of excuses would not involve retroactive application of changes or new rules of law of a non-fundamental nature.
. On the flipside, any claimed defect less than “fundamental” in this sense is insufficient to defeat the State's finality interest, and is not, therefore, cognizable in post-conviction habeas corpus — unless it can be brought under the limited doctrine of excuses. See n. 3, ante.
. In the case of a statutory requirement, belated recognition of its "absolute” or "fundamental" nature, see Ex parte Sadberry, supra, at 545, would be retroactive to its effective date.
. It is unclear whether this holding emanates from the Court’s interpretation of Article 21.24, V.A.C.C.P., or from "the old common law doctrine of one conviction per indictment.” 745 S.W.2d at 368.
. That is to say, whether our re-interpretation of Article 21.24, supra, if that is what Fortune proceeds upon, see n. 6, ante, would be applied to all cases tried after the effective date of that provision, including Drake’s. See n. 5, ante.