dissenting.
The record reflects that after serving approximately 8 years in the penitentiary on the equivalent of a 123 year sentence from McLennan County, (on change of venue from Travis County), Thomas Earl Gret-tenberg was released to parole status to Harris County by what was then the Texas Board of Pardons and Paroles, which is now the Pardons and Paroles Division of the Texas Department of Criminal Justice. While on parole, Grettenberg was accused of committing a number of criminal wrongs in Harris County.
The record also reflects that before the trial of this cause, Grettenberg was tried and convicted by a jury in Harris County for committing the offense of burglary of a habitation with intent to commit aggravated assault. Punishment, enhanced, was assessed by the jury at life imprisonment and a $10,000 fine. The jury also made an affirmative finding that Grettenberg used or exhibited a deadly weapon during the commission of the offense.
The Houston Fourteenth Court of Appeals, in an unpublished opinion, affirmed. See Grettenberg v. State, No. B14-87-00059-CR, August 25,1988. Grettenberg’s petition for discretionary review was refused by this Court on May 10, 1989. See this Court’s cause number 1198-88. Gret-tenberg did not challenge in the appeal of that cause the affirmative deadly weapon finding that the jury had made.
In this cause, Grettenberg was originally indicted in Harris County for committing the offenses of burglary of a habitation with intent to commit aggravated assault and attempted capital murder. Before this cause was transferred to Bexar County, the State abandoned or dismissed the attempted capital murder allegation of the indictment, thus removing from the indictment any allegation that might have given Grettenberg written notice that the State intended to seek an affirmative deadly weapon finding when the cause was tried in Bexar County. A jury in Bexar County found Grettenberg guilty of the burglary offense and assessed his punishment, enhanced, at life imprisonment and a $10,000 fine. Notwithstanding the omission from the indictment of any allegation regarding a deadly weapon, plus the fact that the State did not attempt to give Grettenberg any other kind of written notice, and over objection, in addition to instructing the jury on the possible punishments, the trial judge asked the jury to make the determination whether during the course of the commission of the offense Grettenberg had exhibited or used a deadly weapon. The jury answered the question in the affirmative.
On direct appeal, in an unpublished opinion, the San Antonio Court of Appeals ordered the affirmative finding deleted from the judgment, on the ground that Gretten-berg had not received sufficient written notice that the State intended to seek an affirmative finding when the cause was tried in Bexar County. See Grettenberg v. State, No. 04-87-00151-CR, November 21, 1988, (Held, “The indictment does not give adequate notice and there is no indication in the record that appellant received such notice.”) We granted the State’s petition for discretionary review, inter alia, in order *616to make the determination whether the court of appeals correctly decided the notice issue.
The principal issue before this Court to decide, however, is whether it should go and find and then bum Ex parte Patterson, 740 S.W.2d 766 (Tex.Cr.App.1987), and its progeny, in the nearest acceptable red hot oven, should that not have already occurred. Of course, if Ex parte Patterson were a human being, and had a wife and children, then the issue would be whether it would be acceptable for the “Gang of Five” to go and capture Patterson and his family, find the nearest and largest tree located in the area, and then hang Patterson and his family by their necks until it was finally determined that they were all actually dead, if that has not already occurred. Many prosecuting attorneys, as evidenced by the bitter diatribes of Ex parte Patterson that members of this Court have witnessed in recent times, would, of course, like to see either event take place. See, for example, the State’s brief filed in Luken v. State, 780 S.W.2d 264 (Tex.Cr.App.1989). It may be that in this cause those frustrated prosecutors, led by the “Gang of Five”, may finally be successful in destroying whatever is left of Ex parte Patterson, which is truly down for another ten count.
Carefully read, the majority opinion obviously does much mischief to this area of the law, if that is possible. For example, the majority opinion concludes that “accused persons are only entitled to notice, in some form, that the use of a deadly weapon will be a fact issue at the time of trial....” (Page 614 of majority opinion), and cites Ex parte Beck, 769 S.W.2d 525 (Tex.Cr.App.1989), as its authority to support such statement. If “in some form” means either oral or written, then it is in conflict with Luken v. State, supra. There, without a single dissenting vote or opinion, this Court ruled: “Today we hold that, just as an enhanced sentence must be supported by written allegations of a pri- or conviction or convictions, an affirmative finding of use or exhibition of a deadly weapon must be supported by a written pleading, albeit not necessarily in the indictment. (Footnote deleted.)” (My emphasis.) In Luken, 780 S.W.2d at 266-267, this Court also ruled that “proof alone will not support such a finding, for evidence alone gives the accused ‘no prior indication that the nature of a weapon used was to be a particular issue in the case, with additional consequences vis-a-vis his liberty.’ ” Today, however, the majority opinion, without citing any authority, holds: “When the theories of prosecution contained in the counts are so interrelated as under the facts of this case, the election by the State to pursue one of the counts in preference to the other will not vitiate the notice given in the indictment in its original form.” (Page 615 of majority opinion.) (My emphasis.)
In this instance, I find that the majority opinion acts much like a magician might perform, i.e., “You saw the lion once, didn’t you? Now, why can’t you see the lion again, notwithstanding that the lion has been dispatched to the unknown?”
How far can a prosecuting attorney run with the thread he might pull from the majority opinion before it completely unravels? For example, is sufficient notice given if a prosecuting attorney, while he and defense counsel are in a restroom at the same time, before court commences that morning, reaches over and gets a sheet of toilet tissue and writes thereon, “We are going to seek an affirmative finding against your client during his trial today,” and hands same to defense counsel, but later tells counsel to throw the piece of paper away, which counsel does. In that instance, would the State later be entitled, without more, to seek an affirmative deadly weapon finding? It would appear by the majority opinion that this would be more than sufficient notice that the State intended at some time during the defendant’s trial to seek an affirmative deadly weapon finding.
In this instance, the indictment, as it legally read in Bexar County where this cause was tried, in particular, as it read when the jury was instructed at the punishment stage of the trial on the issue whether appellant exhibited or used a deadly weapon during the commission of the offense of burglary of a habitation with intent to commit aggravated assault, it did *617not contain any allegation that might have encompassed a weapon, implement, or instrumentality that could be found by any factfinder to be “a deadly weapon.” Notwithstanding this omission in the indictment at that time, the majority opinion manages to hold, in what appears to be some form of weird retrospective reasoning, that this gave Grettenberg more than sufficient notice that the State was going to seek an affirmative finding to the special issue when the case went to trial in Bexar County.
The record reflects that before venue of this cause was changed from Harris County to Bexar County, the State abandoned or dismissed the attempted capital murder count of the indictment, which contained the only allegation in the indictment that might have supported the trial judge submitting the special issue to the jury, or the jury’s affirmative finding to the special issue, whether appellant had used or exhibited a deadly weapon during the commission of the burglary offense. The jury assessed punishment, enhanced, at life imprisonment and a $10,000 fine, and also answered the special issue in the affirmative.
The San Antonio Court of Appeals, after finding that appellant did not receive sufficient notice pursuant to the indictment, as the indictment existed when the jury was given the special issue to answer (remember, the attempted capital murder count was abandoned or dismissed by the State way back in Harris County), nor in any other way, ordered the affirmative finding deleted from the judgment and affirmed the trial court’s judgment of conviction in an unpublished opinion. See Grettenberg v. State, No. 04-87-00151-CR, November 21, 1988.
The majority opinion reverses the judgment of the court of appeals and holds that as the original indictment contained sufficient allegations of a deadly weapon, that was sufficient to give Grettenberg notice that the State might seek during his trial in Bexar County an affirmative finding that he used or exhibited a deadly weapon during the commission of the offense. However, it fails to discuss what this Court held in Luken, nor does it even make an attempt to distinguish Luken from what happened in this cause. It relies, instead, on Ex parte Beck, 769 S.W.2d 625 (Tex.Cr.App.1989), as its authority. This is understandable given the fact that for all practical purposes Beck hit Patterson so hard in the first round of their fight that Patterson still remains unconscious, although he is occasionally propped up by this Court to give the illusion that he is still fighting in the ring, although not consciously aware that the referee has already stopped the fight and counted him out. Also see Ex parte Beck, 769 S.W.2d at 530 (Teague, J., dissenting opinion), and Gilbert v. State, 769 S.W.2d 535, 537 (1989) (Teague, J., dissenting opinion).
The majority opinion also does not explain how one can breathe life either to an indictment that no longer exists because it has been dismissed at the insistence of the State, or breathe life into that part of an indictment which contained a material allegation that was previously dismissed at the insistence of the State. Compare Art. 1.14(b), Y.A.C.C.P. This omission from the majority opinion is not understandable in light of this Court’s decision of Garcia v. Dial, 596 S.W.2d 524, 528 (Tex.Cr.App.1980), in which this Court held that once a criminal indictment has been dismissed, “there is, concomitant to such dismissal, no case pending against the accused and, accordingly, no jurisdiction remaining in the dismissing court_” (528).
I find that Garcia v. Dial is on point in . principle with what occurred in this cause. Here, the State dismissed from the indictment the only allegation regarding a deadly weapon. Once this occurred, the trial court lost jurisdiction over that portion of the indictment. When Grettenberg went to trial in Bexar County, there was nothing in the indictment that might have given him notice that the State would, during the trial, at either stage of the trial, seek an affirmative finding regarding a deadly weapon. Also see Stephens v. State, (Tex.Cr.App. No. 914-88, May 2, 1990).
*618Of course, if the record reflected or indicated that although the State was dismissing the attempted capital murder count for prosecution purposes only, but was still going to rely upon those allegations for purposes of giving Grettenberg written notice that it might seek during his trial in Bexar County a deadly weapon finding from the factfinder, then this Court would be confronted with another, but entirely different issue. However, that did not happen in this cause. In this cause, the State, without any reservations or qualifications, caused the attempted capital murder count of the indictment to be dismissed, and there is nothing in the record that through some other form of notice, either oral or written, Grettenberg was put on notice that the State might seek in Bexar County an affirmative deadly weapon finding.
Given what occurred in this cause, how can one logically argue that Grettenberg had written notice, assuming that when Grettenberg was tried written notice was required before the State could seek an affirmative deadly weapon finding, see Luken, supra, that the State would seek in Bexar County an affirmative finding that he used or exhibited a deadly weapon during the commission of the primary offense? Except through some sort of weird retrospective reasoning, I don’t believe he can.*
Therefore, I respectfully dissent.
On direct appeal, the State argued that "if dismissed portions of an indictment may be looked to in order to satisfy an element of the offense, surely those portions may be used to demonstrate that a defendant had actual knowledge that the State would seek a deadly weapon finding,” citing London v. State, 739 S.W.2d 842, 844 (Tex.Cr.App.1987), as authority. The court of appeals, however, did not address this contention because it sustained Grettenberg's above point on appeal. Furthermore, given the facts that are set out in London, London is inapposite to the facts of this cause, as far as giving a defendant written notice that the State intends to seek an affirmative deadly weapon finding after it has dismissed the deadly weapon allegation from the indictment.