dissenting.
Appellant, Thomas Smith Mathes, III, was indicted and tried for the capital murder of Debra Davis. The jury in that trial answered the punishment questions as provided by Article 37.071(b)(1) and (2), V.A.C.C.P. The jury answered “yes” to the first question, finding that appellant acted deliberately with a reasonable expectation that death would result. The jury, however, answered “no” to the question of whether there existed a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society. As such, appellant was sentenced to life imprisonment pursuant to Article 37.071(e), V.A.C.C.P. Thereafter, the State proceeded on the indictment alleging the capital murder of John Vandi-ver.
In the trial court prior to the second trial, appellant filed an application for writ of habeas corpus alleging that the doctrine of collateral estoppel prevented the State from again trying him for capital murder. According to appellant, the question of his future dangerousness had been resolved in the Davis case and could not be relitigated by the parties in the Vandiver case. The trial court denied appellant’s writ and he appealed the decision to the Beaumont Court of Appeals. The Court of Appeals reversed the trial court, finding that the State was collaterally estopped from relit-igating the future dangerousness issue previously decided in appellant’s favor. Ex parte Mathes, 755 S.W.2d 161 (Tex.App.— Beaumont 1988).
The doctrine of collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). In deciding whether a party is collaterally estopped from litigating an issue the Supreme Court in Ashe determined that the reviewing court must “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” 397 U.S. at 444, 90 S.Ct. at 1194. If we follow Ashe’s mandate to examine the records before us and to determine whether the jury has litigated appellant’s future dangerousness, extant at this time, we can only conclude that that issue has not been litigated.
In a capital murder case, evidence to be presented in the punishment phase concerning the future dangerousness of a defendant is guided by Article 37.071, V.A.C.C.P. That Article provides in part that:
*600“Upon a finding that the defendant is guilty of a capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or life impris-onment_ In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, (emphasis added.)”
Consistent with Supreme Court decisions, see, e.g., Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion), we have interpreted Article 37.071 so as to allow the introduction of any evidence relevant to the determination of future dangerousness of a capital murder defendant. “ ‘Justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.’ ” Woodson, 428 U.S. at 304, 96 S.Ct. at 2991, quoting Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 82 L.Ed. 43 (1937) (emphasis added). See also Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337 (1949) (indicating that the sen-tencer may consider “the convicted person’s past life, health, habits, conduct, and mental and moral propensities”). Therefore, where, as in the case before us, the circumstances of the offender, in particular, whether the offender poses a future danger to society, is at issue, we are in no position to say that the issue has been litigated as it relates to the Vandiver murder. Indeed, if we accept appellant’s arguments that the State may not relitigate his future dangerousness, it would follow that appellant could commit additional acts of murder exempt from the Texas capital murder statutes; we do not believe that the State or Federal Constitution sanctions such impunity.
The Court of Appeals, however, reversed the trial court’s judgment relying upon Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). Bulling-ton was a capital murder case under Missouri’s bifurcated system. After a defendant is found guilty of capital murder, the jury hears punishment evidence to determine the existence of mitigating and aggravating factors — such factors being specifically listed in the capital murder statute. A jury must make specific findings designating the factors warranting imposition of the death penalty. Bullington’s first conviction, where the jury determined the issues regarding imposition of the death penalty in his favor, was set aside on appeal. The Supreme Court held that Missouri was barred by the Double Jeopardy Clause of the Fifth Amendment from again seeking the death penalty in the same case after the initial conviction had been reversed. Bullington, 451 U.S. at 446, 101 S.Ct. at 1862. See also Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). Accord Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Cooper v. State, 631 S.W.2d 508, 513 (Tex.Cr.App.1982). The Court of Appeals reasoned that application of collateral estoppel principles, having the same constitutional basis as that of double jeopardy, would require that the State be automatically precluded from again seeking the death penalty. With this I cannot agree.
The basis for the Supreme Court’s holding in Bullington is that because Missouri established a procedure for its trial of capital offenses whereby in the punishment phase specific factual issues are to be decided, a failure by the State to meet its burden of proof regarding those particular punishment issues acts as an acquittal thereon. Therefore, in a case where a retrial is required, the State is barred by principles of double jeopardy from again litigating those factual issues. Specifically, in Bullington, the Supreme Court wrote:
“By enacting a capital sentencing procedure that resembles a trial on the issue of guilt or innocence, however, Missouri explicitly requires the jury to determine whether the prosecution has ‘proved its case.’ Both Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) ] and Greene [v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) ], *601as has been noted, state an exception to the general rule relied upon in North Carolina v. Pearce [395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1960) ]. That exception is applicable here, and we therefore refrain from extending the rationale of Pearce to the very different facts of the present case. Chief Justice Bardgett, in his dissent from the ruling of the Missouri Supreme Court majority, observed that the sentence of life imprisonment which petitioner received at his first trial meant that ‘the jury has already acquitted the defendant of whatever was necessary to impose the death sentence.’ [State ex rel. Westfall v. Masson, 594 S.W.2d 908, 922 (Mo.1980)]. We agree.” Bullington, 451 U.S. at 445, 101 S.Ct. at 1861 (emphasis in the original).
Thereafter, the Bullington Court discussed the purposes of the Double Jeopardy Clause: the State with its resources and power should not be allowed to make repeated attempts to convict an individual which could possibly wear down even the innocent. The Court concluded, therefore:
“Given these considerations, our decision today does not at all depend upon the State’s announced intention to rely only upon the same aggravating circumstances it sought to prove at petitioner’s first trial or upon its statement that it would introduce no new evidence in support of its contention that petitioner deserves the death penalty. Having received ‘one fair opportunity to offer whatever proof it could assemble,’ Burks v. United States, 437 U.S. at 16 [98 S.Ct. at 2150], the State is not entitled to another." Bullington, 451 U.S. at 446, 101 S.Ct. at 1862 (emphasis added).
Has the State, in the trial of appellant for another capital offense, been given “one fair opportunity” to prove appellant’s future dangerousness in regard to this capital offense?
The rule of collateral estoppel derives its applicability to criminal proceeding from the Fifth Amendment of the United States Constitution, viz:
“... [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” (emphasis added.)
No one can rationally argue that the Davis murder and the Vandiver murder are the same offense under any theory.
Appellant has allegedly violated the Texas capital murder statute, not once but twice. He has murdered two individuals and has therefore committed two separate criminal offenses. Ex parte Rathmell, 717 S.W.2d 33 (Tex.Cr.App.1986). He has been tried only for the murder of one of the two individuals. The statement of facts from the Davis trial is not before us but proof regarding the second case will necessarily involve a litigation of appellant’s “acts, motives, state of mind, intent, demeanor and degree of malice” unique to the Vandiver killing. See Mathes, 755 S.W.2d at 165 (Brookshire, J., dissenting). These issues in the Vandiver case may be quantitatively different than those in the Davis case and a jury’s determination of future dangerousness, based upon facts particular to the Vandiver case, would be entirely justified. See Livingston v. State, 739 S.W.2d 311, 340 (Tex.Cr.App.1987) cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988); Landry v. State, 706 S.W.2d 105, 112-113 (Tex.Cr.App.1985) cert. denied, 479 U.S. 871, 107 S.Ct. 242, 93 L.Ed.2d 167 (1986); Demouchette v. State, 591 S.W.2d 488, 491-492 (Tex.Cr.App.1979) cert. denied, 453 U.S. 913, 101 S.Ct. 3146, 69 L.Ed.2d 996 (1981). As such, Bullington’s concept of double jeopardy — allowing the State but one fair opportunity to prove death as an appropriate punishment — is not applicable, where, as here, the State has been given no opportunity to litigate the facts of the Vandiver murder.
During the hearing on appellant’s application for writ of habeas corpus, the parties stipulated:
“[DEFENSE ATTORNEY]: ... [T]he Petitioner is, in fact, the same individual that has been charged with the offense of capital murder in both Cause No. 18557 and 18556; that the details regarding the offense which is the basis of both *602indictments are basically the same in that it was one continuing episode that happened at the same time; that there were two individuals that allegedly were murdered on that date, one being John Van-diver and the other Debra Davis; during the trial of Cause No. 18557, that virtually all of the details regarding the death of John Vandiver were admitted into evidence; and that the evidence with regard to Cause No. 18556 would be virtually the same as evidence that has already been presented in Cause No. 18557.
“Further, it is stipulated that in Cause No. 18556, which case is still pending and has not been tried, that the State has made known its intention to seek the death penalty.
“I would ask [the State’s attorney] if that is correct with regards to the stipulation of the parties.
“[STATE’S ATTORNEY]: Essentially, that’s correct Your Honor. We intend at this time to pursue Cause No. 18556 which is an indictment for capital mur-der_ The evidence that we would introduce in the trial of Cause No. 18556 would be in all material respects exactly the same evidence that the jury heard for the other defendant, 18557 to which and based on which they answered no answer to the second punishment question." (emphasis added.)
In short, the parties have agreed the evidence that will be presented in appellant’s trial will be the same as that presented in a co-defendant’s trial.1 No mention is made as to upon what evidence the State will rely in establishing the future dangerousness of appellant.2 Without such a stipulation or evidence in the record which reflects no difference in the evidence between the Van-diver and Davis trials, we cannot say, as a matter of law, that the State and appellant have litigated the issue of appellant’s future dangerousness as it would exist at the time of trial. See State of Illinois v. Vitale, 447 U.S. 410, at 421, 100 S.Ct. 2260, at 2267-68, 65 L.Ed.2d 228 (1980). Consequently, the State is not, at this time, prevented from again seeking the death penalty in the subsequent trial of appellant for the offense of capital murder of another individual, and we should not so hold.
After Bullington, this Court decided Padgett v. State, 717 S.W.2d 55 (Tex.Cr.App.1986). In that case, as in the present case, the defendant was charged with a subsequent capital offense. He applied for a writ of habeas corpus alleging that, since the jury in his previous capital murder trial was unable to answer the second punishment question, the State was collaterally estopped from again seeking the death penalty. We held that the jury’s inability to answer the future dangerousness question at defendant’s trial “was not an actual determination of that issue.” 717 S.W.2d at 58. As such, we concluded that the State was not collaterally estopped from seeking the death penalty in the subsequent trial. The Padgett Court opined that had the jury answered the second punishment question in the affirmative the State would be prevented from relitigating the issue. See 717 S.W.2d at 57. The Court failed to consider the possibility of the State presenting evidence in defendant’s second trial different from that presented in the first trial. As discussed above, such evidence would make principles of collateral estoppel or double jeopardy inapplicable to the subsequent determination of future dangerousness.
As noted at the outset, collateral estop-pel “means simply that when an issue of *603ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the parties in any future lawsuit.” “Ultimate” has been defined as “incapable of further analysis, division, or separation.” Webster’s New Collegiate Dictionary, 1981. An “ultimate fact” must therefore be an historic fact which, having been once determined, cannot be changed. The absence of further dangerousness is not absolute. Evidence of future dangerousness may develop which changes the determination, but an historic fact — an ultimate fact — will not change. Collateral estoppel principles have no application to this cause.
Finally, the majority relies primarily on Bullington v. Missouri, supra, and Arizona v. Rumsey, supra, in reaching its conclusion. The majority fails to note, however, that in both the Missouri and Arizona capital punishment schemes the aggravating factors are not determined at the guilt stage as in Texas, but are reserved for the punishment phase. Further, those aggravating factors involve historic factual determinations “comparable to a trial” on the issue of guilt. Rumsey, supra. Those cases are clearly distinguishable. Collateral estoppel has no application to the case presented here.
I dissent.
MILLER, J., joins that part of this dissent that reasons that future dangerousness is not an ultimate (i.e. historic) fact and thus collateral estoppel principles have no application to this case.. Appellant was indicted with three other individuals for the capital murder of John Vandiver. Apparently the trial of one of the co-defendants for his participation in the Vandiver murder has taken place and it is upon the same facts presented in that case that the State will prove the offense of capital murder in appellant’s case. A statement of facts from the co-defendant’s trial is not before us. I recognize that the majority' have determined the stipulation set forth above causes an affirmance of this case, but do not believe the rule of collateral estoppel is applicable here. Furthermore, the stipulation is not as clear as the majority reads it. Note the underscored language.
. Considering that future dangerousness may be established by appellant’s conduct occurring up to, and even including conduct that may occur during the trial of his case, it is doubtful that a stipulation of such evidence will ever be possible prior to the second trial.