dissenting.
I respectfully dissent to the reasons that the majority opinion gives for denying the motion for rehearing that was filed on behalf of Enrique “El Red” Garcia, henceforth appellant.
The original majority opinion was incorrect when it held that because the trial court’s judgment of conviction in the voluntary manslaughter cause, in which Officer Victor Serna was the named victim, was reversed by the Corpus Christi Court of Appeals in an unpublished opinion, see Garcia v. State, No. 13-86-171-CR, Tex.App.— Tex.App.-13th Dist., October 30, 1986, this “bars the appellant’s claim of collateral es-toppel against his trial for attempted capital murder.” (Page 729.) On rehearing, the majority opinion aggravates the error when it states “that ‘a conviction from which an appeal has been taken is not considered to be a final conviction until the conviction is affirmed’ and the mandate of affirmance becomes final. Jones v. State, 711 S.W.2d 634 (Tex.Cr.App.1986). This Court decided in the instant case that without a final and valid judgment of conviction, appellant had no claim of collateral estoppel.” (Page 730.)
Jones is no authority for rejecting appellant’s contention. This Court in Jones simply held that, in proving up an alleged prior felony conviction for enhancement of punishment purposes, it is incumbent upon the State to establish that the alleged prior felony conviction is a final conviction. In Jones, the State, through its own proof, actually established that the alleged prior felony conviction was not final, thus compelling this Court to reverse the trial court’s judgment. Jones is no collateral estoppel case.
When the jury found appellant guilty of voluntary manslaughter, in the Serna cause, it necessarily acquitted him of the offenses of capital murder and murder of Officer Serna. See Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970); Davis v. Herring, 800 F.2d 513, 519 (5th Cir.1986); Art. 37.08, V.A.C.C.P.; Pope v. State, 509 S.W.2d 593 (Tex.Cr.App.1974); and Daniels v. State, 464 S.W.2d 368 (Tex.Cr.App.1971). Thus, for purposes of collateral estoppel, appellant has a valid final judgment of acquittal. The question that should be answered, but is not by this Court, is whether, in finding appellant guilty of voluntary manslaughter of Officer Serna, that jury also conclusively determined appellant’s state of mind as to the pending attempted capital murder of Officer Sam Ayala, which prosecution appellant seeks to prevent through this pretrial habe-as corpus proceeding. The posed question should be answered in the affirmative, and this Court should hold that under the collateral estoppel doctrine, as enunciated in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the State is barred from prosecuting appellant on the Ayala indictment for any offense that might be greater than attempted voluntary manslaughter.
In this regard, the State did not in this cause in the trial court proffer any new facts that might be adduced should it be permitted to prosecute appellant for the attempted capital murder of Ayala.
I find that what the Fifth Circuit Court of Appeals stated and held in Green v. Estelle, 601 F.2d 877 (5th Cir.1979), and De La Rosa v. Lynaugh, 817 F.2d 259 (5th Cir.1987), not only persuasive but authoritative in how the issue should be resolved. The Fifth Circuit in De La Rosa stated the following: “The Texas Court of Appeals reached a similar conclusion in Garcia v. State, 718 S.W.2d 785 (Tex.App.—Corpus Christi 1986)” (266), thus at least implicitly *731approving the court of appeals decision to bar the State from prosecuting appellant on the Ayala indictment for any offense that might be greater than attempted voluntary manslaughter.
This Court should withdraw its original opinion and hold, as the court of appeals did, that the State is barred from prosecuting appellant on the Ayala indictment for any offense that might be greater than attempted voluntary manslaughter.
Therefore, I respectfully dissent to this Court denying appellant’s motion for rehearing for the reasons it gives.
CLINTON, MILLER and DUNCAN, JJ., join.