dissenting.
In Bullington v. Missouri, - U.S. -, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), the *80Supreme Court held that a defendant, who was given a punishment of life imprisonment by the jury at his first trial on capital charges, was protected by the Double Jeopardy and Due Process Clauses from exposure to the death penalty at the retrial.1 Because of this effect on a retrial, a challenge to the sufficiency of the punishment evidence must be considered in an appeal from a capital case. Cf. Rains v. State, 604 S.W.2d 118, 120 (Tex.Cr.App.1980) (sufficiency of evidence must be considered even when trial error is found, because of different effect on retrial).2
I agree that the evidence was insufficient to support the jury’s verdict on special issue (2). I also agree that, if there were no reversible trial error, the judgment should be reformed to confinement for life and affirmed.
But in this case there was reversible trial error. The appellant was entitled to a charge on self-defense under the law of parties, but he was denied it. The court passes over the error by holding that it was not preserved.
The appellant “object[ed] to the charge in that it fails to include a submission of the issue of self-defense to the jury.” He also presented a special requested charge, which was imperfect in that it referred to what “the Defendant reasonably believed” rather than to White’s reasonable belief. But the appellant also asked that the charge “be keyed ... with the instructions of parties.” Although a specially requested charge may be defective, it still may serve to call the court’s attention to the need to charge on a defensive issue. Austin v. State, 541 S.W.2d 162, 166 (Tex.Cr.App.1976). The objection and the special requested charge were sufficient to preserve the error.
Since the conviction should be reversed for the failure to charge on self-defense, I dissent from the affirmance.
. In Home v. State, 607 S.W.2d 556, 561, 564 n. 7 (Tex.Cr.App.1980) (concurring opinion), I suggested that this result could be reached in Bullington while recognizing a substantive difference between issues of historical fact and issues of future conduct. This could have required a different application of the Double Jeopardy Clause to special issue (2) of Tex. Code Crim.Proc. art. 37.071(b), which is an issue of future conduct, than to all the other issues in the trial, which are issues of historical fact. Similar substantive distinctions were urged by the dissenters in Bullington, but the court based its decision entirely on the procedural similarities between the punishment stage of a capital trial and the trial on guilt or innocence. Since these procedural similarities obtain for all three special issues under article 37.071(b), the distinction that I proposed in my Home opinion cannot be maintained in light of Bullington. To me and others that light may be “wholly unpersuasive,”- U.S. at-, 101 S.Ct. at 1856 (Powell, J., dissenting), but it is controlling.
. It would also follow that the court must consider a challenge to the sufficiency of the evidence to prove that a defendant “has previously been finally convicted of two felony offenses,” etc.; Tex.Penal Code sec. 12.42(d). All the procedural hallmarks of the trial on guilt or innocence that underlie the decision in Bullington v. Missouri, - U.S. -, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), are present when the jury decides whether a defendant is an habitual felony offender. There is a separate proceeding, a requirement of proof of additional facts beyond a reasonable doubt, an explicit standard to guide the jury, and a choice of only two alternatives. The procedural basis of Bulling-ton makes this court’s decision in Poner v. State, 591 S.W.2d 482 (Tex.Cr.App.1979) (Double Jeopardy Clause does not prevent retrial of enhancement allegations after appellate reversal for insufficiency of evidence), appear even more plainly wrong than I said it was on substantive grounds in Home v. State, 607 S.W.2d 556, 561, 563 n. 4 (Tex.Cr.App.1980) (concurring opinion).