DISSENTING OPINION ON STATE’S MOTION FOR REHEARING
MALONEY, Judge,dissenting.
On original submission the Court was presented with the issue of “whether a defendant may raise a pretrial challenge to the State’s evidence of materiality in an aggravated perjury indictment where the materiality allegation in the indictment is valid on its face, thus requiring the State to prove materiality prior to a trial on the merits.” State v. Rosenbaum, 910 S.W.2d 934 (Tex.Crim.App.1994) (opinion on original submission). We held that because materiality is a question of law for the trial court rather than the jury, the trial court may make a ruling on the issue pretrial. We also held that the trial court has authority to make such a ruling pretrial under Tex.Code Crim.Proc.Ann. art. 28.01(2) and 27.02(8).
The State filed a motion for rehearing contesting our holding that the trial court has authority to make a pretrial determination of materiality. In a supplemental brief on rehearing, the State directs this Court’s attention to the recent United States Supreme Court opinion, United States v. Gaudin, - U.S. -, 115 S.Ct. 2810, 132 L.Ed.2d 444 (June 19,1995). In Gaudin, the question presented to the Court was “whether it was constitutional for the trial judge to refuse to submit the question of ‘materiality’ to the jury.” Gaudin, — U.S. at -, 115 S.Ct. at 2312, 132 L.Ed.2d 444. The government conceded that under the controlling statutory provision, “materiality” was an element of the offense that the government was required to prove. The Supreme Court held:
The Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged; one of the elements in the present case is materiality; respondent therefore had a right to have the jury decide materiality.
Id. at-, 115 S.Ct. at 2314.
While the constitutionality of the trial court’s review of the materiality question was not at issue in this case on original submission, our holding nevertheless turned in part upon the premise that materiality is a question of law for the trial court to decide as opposed to an issue for the jury. In light of Gaudin ⅛ holding, this premise can no longer stand. Indeed, this premise was based in part upon one of this Court’s cases which relied solely upon a Supreme Court ease that is expressly repudiated in Gaudin. See Yarbrough v. State, 617 S.W.2d 221, 228 (Tex.Crim.App.1981) (relying on Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692 (1929)); see also Gaudin, supra (repudiating reasoning in Sinclair). Our reasoning on original submission that the trial court can decide the materiality issue pretrial because materiality is an issue that is never submitted for consideration by the jury, is no longer valid. I would nevertheless continue to hold that the trial court had authority to hold the pretrial hearing and make the legal determination with respect to *952appellant’s Motion for Pretrial Determination of Materiality, pursuant to articles 28.01(2) and 27.02(8) Tex.Code Crim.Proc.Ann.1
For these reasons, I would affirm the Court of Appeals.
BAIRD, J., joins.. I note that under Gaudin, if the trial court determines that the statement at issue was material as a matter of law, then the issue must be submitted to the jury to decide. So long as perjury is defined in the penal code as including materiality as an element, then the trial court can no longer instruct the jury that it must find the statement material.