concurring.
Indictment in district court alleged an offense thusly:
“The defendant on or about April 16, 1982, did then and there unlawfully recklessly cause the death of Kenneth A. Ott ... by shooting a gun in the direction of and into an adjacent apartment building with windows directly facing the defendant.]”
Pre-trial Petition for Writ of Habeas Corpus, at 2, para. V.*
One must read Keith v. State, 692 S.W.2d 921 (Tex.App.—Houston [14th] 1985), to gain an understanding of facts and circumstances surrounding the “act” of appellant. Essentially they are that during early morning hours Ott was asleep in his bed when a bullet crashed through a window some sixty eight feet on a direct line from the apartment of appellant, entered his body and caused his death; the bullet had been fired from a pistol appel*865lant admitted handling that night in his apartment. But, as the court of appeals discerned, viz:
"... We are most troubled by the absence of evidence concerning the circumstances surrounding the discharge of the gun. Such evidence is consistently found in cases where involuntary manslaughter convictions have been affirmed, [citations omitted]. From the record before us, we are unable to determine if appellant acted recklessly in his handling of the weapon. ”
Id., at 923. Accordingly, the appellant court reversed the judgment of the trial court and remanded the cause “with instructions to enter a judgment of acquittal of involuntary manslaughter.” Ibid.
However, finding that criminally negligent homicide is a lesser included offense of involuntary manslaughter, and gratuitously concluding that “the evidence would be sufficient to support a conviction for this lesser offense,” the appellate court also stated it was remanding the cause to the trial court with instructions “to conduct an independent review of all the evidence” and then to decide whether to convict appellant of criminally negligent homicide. Ibid.
In the instant habeas corpus proceeding, holding that “this will not violate double jeopardy,” the court of appeals adhered to that notion. Ex parte Keith, 761 S.W.2d 442, 444 (Tex.App.—Houston [14th] 1988). But this Court now decides the latter remand instruction is without legal authority, as Presiding Judge McCormick and other Judges insisted earlier in dissenting from refusal of State’s PDR.
Despite the fact, or because of it, that the court of appeals succumbed to an urge to render an “advisory” concerning disposition of an unalleged offense of criminal negligent homicide, the correct resolution of this habeas matter is an order denying relief.
The prior judgment of the Houston [14th] Court reversing the judgment of conviction below and instructing the trial court to enter a judgment of acquittal of the felony offense of involuntary manslaughter became final when this Court refused State’s PDR. The mandate issued to the trial court, and that court was obliged to enter a judgment of acquittal as instructed. There can be but one judgment, and entry of that judgment would terminate the case. Article 42.01, V.A.C.C.P. (judgment is written declaration of court and entered of record showing conviction or acquittal of defendant).
Once it entered the judgment of acquittal, but for an unauthorized and erroneous remand with instructions to conduct “an independent review of all the evidence” to “determine whether a conviction upon criminally negligent homicide should be entered,” the trial court was without further jurisdiction, power and authority in the case.
Dicta in Moss v. State [574 S.W.2d 542 (Tex.Cr.App.1978) ] and its progeny, cited by the Houston [14th] Court in its first opinion, Keith, 692 S.W.2d at 923, was repudiated in Garrett v. State, 749 S.W.2d 784, at 794, n. 13, and at 804, n. 4. In the event, that notion is inapplicable here for the simple reason that in each cited case the lesser included offense mentioned is a felony within the jurisdiction of the trial court, to which the cause was remanded. The offense of criminally negligent homicide is a Class A misdemeanor. V.T.C.A. Penal Code, § 19.07.
Thus applicant is seeking relief against a prosecution that has not yet been properly initiated. Rather than repeat “the same mistake in past cases,” Garrett, supra, at 804, n. 4, applicant and courts should await the day he is “subsequently charged with some lesser included offense.” Garrett, at 804.
Above emphasis in original; all other emphasis throughout this opinion is mine unless otherwise indicated.