concurring in part and dissenting in part.
The majority opinion states that the use of prior convictions for enhancement, under Section 12.42; V.T.C.A., Penal Code does not constitute double jeopardy. I do not question this rule. At issue here is not the use of prior convictions to enhance punishment. The issue is whether the State is entitled to a second attempt to prove the facts necessary for enhancement of punishment under Sec. 12.42(d), supra, after having had one -fair opportunity to do so and having failed.
*485The majority quotes Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, and United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448, to the effect that society maintains an interest in punishing the guilty even after reversal for trial error, and that it would be too high a price for society to pay if every accused were granted immunity from punishment because of trial error. Those quotes miss the mark in this case on two counts. First, reversal here is not the result of trial error, but due to the State’s failure to prove the facts required under the enhancement of punishment issues submitted to the jury. Second, a bar to retrial of that issue would not grant appellant immunity from punishment, but would only bar imposition of a mandatory life sentence under the terms of Sec. 12.42(d), supra.
The point of Burks v. United States, supra, and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15, as applied to this case, that is overlooked by the majority, is that due to the insufficiency of the evidence on the issue, the trial court should have required the jury to return a verdict favorable to appellant, and the State should not thereafter be given a “second bite at the apple.” The State failed to meet its burden of proof on the issue when given one fair opportunity to do so. If the trial court had directed the only verdict allowable under the evidence presented, then clearly appellant could not be subjected to the second trial of the issue that the majority allows. Retrial of the issue under these circumstances is in conflict with the principles upon which Burks and Greene, supra, were decided, and denies appellant due course of law under Article 1, Sec. 19, of the Texas Constitution.
I concur in reversal of the judgment, but dissent to the holding that the State may make a second attempt to prove the enhancement allegations under Sec. 12.42(d), supra.
ROBERTS, PHILLIPS and CLINTON, JJ., join in this opinion.