dissenting.
Robert R. Salinas, applicant, asserts in his writ application that his conviction is void because the State, through the actions of Preston Slocum, a San Antonio police officer at the time of applicant’s arrest and conviction, rendered a material witness, Jimmie Levine, unavailable to testify on his behalf at his trial.
In Salinas v. State, 542 S.W.2d 864 (Tex.Cr.App.1976), in which this Court affirmed applicant’s conviction, as well as Hernandez v. State, 506 S.W.2d 884 (Tex.Cr.App.1974); White v. State, 517 S.W.2d 543 (Tex.Cr.App.1974), cert. denied, 421 U.S. 1014, 95 S.Ct. 2422, 44 L.Ed.2d 683 (1975); Sigard v. State, 537 S.W.2d 736 (Tex.Cr.App.1976); and Varela v. State, 561 S.W.2d 186 (Tex.Cr.App.1978), this Court has rejected this same assertion.
However, after this Court affirmed applicant’s conviction, the Fifth Circuit Court of Appeals decided Hernandez v. Estelle, 674 F.2d 313 (5th Cir.1982), and White v. Estelle, 685 F.2d 927 (5th Cir.1982), and granted those defendants relief.
In light of the “Evidentiary Stipulation” that was entered into by the parties in this cause, the trial court record of this cause, and what has been stated by the Fifth Circuit, the only issue before this Court is whether, in light of Hernandez v. Estelle, supra, and White v. Estelle, supra, applicant is entitled to relief. Also see United States v. Valenzuela-Bernal, 458 U.S. -, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). Because of what is before this Court at this time, and further because there is factually no substantial difference between this cause and Hernandez v. Estelle, supra, as well as White v. Estelle, supra, applicant is entitled to relief.
By what is in the record before this Court, and what has been stated in the above decisions of the Fifth Circuit, it is clear that Levine would have been a material witness for applicant and that the actions of Slocum caused Levine not to be available at applicant’s trial. In Hernandez v. Estelle, supra, the Fifth Circuit stated the following: “Deliberate concealment by the state of a material witness is a prima facie deprivation of due process, which ripens into a constitutional error upon a showing that the missing witness’ testimony, when evaluated in the context of the entire record, would create a reasonable doubt of guilt that did not otherwise exist.” 674 F.2d at 315. Because Levine would have testified that applicant did not sell the heroin to Chevera, another San Antonio police officer at the time of applicant’s arrest and conviction, this without a doubt established prejudice to applicant. I find that Levine’s proffered testimony, if believed, would have created in the minds of a rational trier of facts a reasonable doubt about applicant’s guilt. Applicant is entitled to relief.
However, a majority of this Court refuses to grant applicant relief. The majority appears to hang its decision to deny applicant *103relief on the past holdings that this Court has made on the issue before us today. I find that the past holdings of this Court are contrary to what the Fifth Circuit has held in Hernandez v. White, supra, and White v. State, supra, and, for the reasons stated in those two decisions, all cases of this Court holding to the contrary should be overruled.
The majority states the following in its opinion: “[N]ot all local law enforcement agencies have available fancy publically funded witness protection programs as does the federal government.” This may be true. However, overlooked by the majority in its statement, but as pointed out by Judge Odom in his dissenting opinion in Sigard v. State, supra, “Other means are available for the protection of a material witness than sending him out of town and rendering him totally unavailable to either party.” (537 S.W.2d at 741). At a minimum, rather than independently approving Levine’s leaving town, I believe that it was incumbent upon Slocum to implicate the judiciary in that decision making process. See Art. 24.24, V.A.C.C.P. This is simply another reason why applicant is entitled to relief.
To the majority’s denying applicant relief, I respectfully dissent.
ODOM and CLINTON, JJ., join.