dissenting.
The opinion on original submission of this cause was delivered by a unanimous En Banc Court on April 29,1981. The core of that decision is founded on a progression of three propositions, viz: In Burks and Greene the Supreme Court of the United States held that “the Double Jeopardy Clause of the United States Constitution precludes a second trial once a reviewing court has found the evidence legally insufficient to support a conviction.”1 The Court held in Ex parte Mixon the rule would be applied retroactively.2 And, as in Laflore, the rule is applicable following a reversal “for insufficient evidence to support a plea of guilty.”3 Accordingly, Judge Tom Davis wrote that the Court concluded a prior reversal of a conviction for legally insufficient evidence to support a guilty plea under Article 1.15, V.A.C.C.P., barred a second prosecution for the same offense, thereby rendering the latter conviction “unavailable for enhancement purposes.” The cause was therefore remanded to the trial court for reassessment of punishment within the appropriate range. See Martin v. State, 491 S.W.2d 421 (Tex.Cr.App.1973).
The State filed its motion for rehearing June 17, 1981. At that time rules of the Court adopted and promulgated November 30, 1977, effective January 1, 1978, included Rule 11, styled “Rehearings After an Initial Disposition by the Court En Banc.” *794See “Rules of the Court of Criminal Appeals” following Article 44.33, V.A.C.C.P. (1979). Rule 11 provided, inter alia, that a party desiring a rehearing “must” present a motion for rehearing, “distinctly specifying the grounds relied on for a rehearing,” and “such written argument in behalf of the motion as may be desired.”4
In its motion for rehearing the State presents a single ground of error asserting that the Court erred in remanding the cause for reassessment of punishment pursuant to its determination that the prior conviction was not available for enhancement, “as such would be a tremendous burden upon the administration of justice.” 5
Under the heading “Arguments for Leave to Pile and in Support of Motion for Rehearing,” after reviewing criteria then extant for determining retroactive application of new constitutional rules, the district attorney’s only argument is to the effect that retroactive application of Burks and Greene in such a situation would create extremely great prejudice to the State and to administration of justice. The argument concludes:
“The doctrine of retroactivity should not be carried so far as to cause the remand of a conviction or new trial of that conviction due to the use in that conviction of an enhancement prior which enhancement prior was declared void only after the subsequent conviction in which it was used became final.”
Thus both distinctly specified ground for rehearing and argument in behalf of the motion contest only retroactive application of the decision of the Court. There is not the slightest suggestion in either that our opinion on original submission is wrong on the law. Nonetheless, now more than six years later, the plurality gratuitously “rehears” that which has not been contested in order to overrule Laflore v. State and Thornton v. State, both supra — expressly specifying, however, just the opinion on rehearing in the latter, to which the author of the plurality opinion in this cause is the sole dissenter remaining on the Court.
The plurality opinion reproduces massive excerpts from Ex parte Williams, 703 S.W.2d 674 (Tex.Cr.App.1986), leading a majority of the Court to conclude the Jackson and Winship opinions of the Supreme Court have no impact upon guilty pleas entered before a trial court or affect our rule that sufficiency of the evidence may not be collaterally attacked by habeas corpus. Id., at 678, 683. Now the same excerpts are said also to mean that “in a federal constitutional sense” the Burks-Greene jeopardy rule does not apply to a conviction upon a plea of guilty or nolo contendere. At 792. Neither Laflore nor Thornton holds that it does.
The opinion of the Court in Ex parte Moffett, 542 S.W.2d 184 (Tex.Cr.App.1976), the holding of which we found controlled disposition of LaFlore, was delivered October 20, 1976 — more than a year and seven months before rendition of Burks-Greene on June 14, 1978. Moffett is a postconviction habeas corpus proceeding involving a collateral attack against an order revoking probation. Under the facts and circumstances presented, in an opinion approved by the Court, then Commissioner Dally found that “the order of revocation is unsupported by any proper evidence” and the Court held, “There being no evidence to support the order revoking probation, a violation of due process has been shown and the order is subject to collateral attack by habeas corpus.” The relief granted was to set aside the order revoking probation. Id., at 186.
*795In Thornton, supra, on original submission, following the Moffett exception to the general rule that sufficiency of evidence may not be collaterally attacked, and relying on the decision in Reid v. State, 560 S.W.2d 99 (Tex.Cr.App.1978), in a similar situation, a Court Panel (Dally, W.C. Davis and Clinton, JJ.) found that “the admissions of appellant in his judicial confession will not support a conviction based upon the offense charged in the indictment, [and there] is no other evidence contained [in the record] to support appellant’s guilt of forgery by passing ... as alleged in the indictment.” Therefore, the judgment was reversed and “the trial court is ordered to enter a judgment of acquittal.” Id., at 342-343.
In Laflore the defendant appealing from an order revoking probation contended that there was no evidence introduced at the trial on her plea of guilty to establish her guilt of the primary offense. Contrasting the “judicial confession” in Dinnery v. State, 592 S.W.2d 343 (Tex.Cr.App.1980), the Laflore Court found that “the record itself demonstrates an absolute lack of any evidence tending to support the plea of guilty and ... the ‘judicial confession’ relied upon by the Dinnery majority was not made.” Id., at 864 (emphasis in original). Relying on Moffett, the unanimous En Banc Court concluded:
“Therefore, for lack of any evidence to support her conviction, appellant’s motion for rehearing is granted, the affirmance is set aside, and the judgment is now reversed and remanded to the trial court with instructions to enter a judgment of acquittal."
Ibid.
At that point in time, then, teachings of Moffett had been explicitly accepted by every member of the Court, some of them more than once. After finding evidence legally insufficient to support a conviction upon a guilty plea, both Laflore and Thornton on original submission ordered an acquittal. Meanwhile, Thornton was pending on motions for rehearing by the respective parties. See Thornton, supra, at 343.
For its part, the State did not contest the finding of “no evidence” by the Court Panel. Id., at 343-344. Nor did the State contend that reliance of Moffett was misplaced. Ibid. Rather it presumed that in ordering an acquittal in Thornton (there was no motion for rehearing in Laflore), the Court had Burks-Greene in mind, so it took the position that those federal constitutional jeopardy dictates do not apply to a conviction following plea of guilty pursuant to Article 1.15. Ibid. And apparently laboring under the same impression, today the plurality opines that “failure to comply with [Article 1.15] does not a federal constitutional violation make, nor does it render Burks and Greene applicable to such proceedings[.]” At 793.
In its opinion on rehearing in Thornton the Court did not hold otherwise.
We first examined underlying public interests found by the Supreme Court and the resulting rationale it employed in Burks-Greene, then looked to the burden of proof in a jury trial and in a bench trial on a plea of not guilty and a plea of guilty or nolo contendere, and came to the following conclusions:
“There is no greater societal interest we perceive in retrying an accused after a judge has done what a jury may not. The trial court, as a matter of law, while empowered to accept the guilty plea, was not authorized to find him guilty on the basis of the State’s evidence. [Note omitted demonstrating federal common law effect of guilty plea not of constitutional origin]. We agree with the Supreme Court that there is no compelling interest in retrying an accused after the State has already had ‘its turn at bat’— before a judge or jury — though the Supreme Court spoke in the context of a jury trial.”
Id., at 345 (emphasis in original).
Next, the Court turned to review the constitutional insistence of Texans on right to trial by an impartial jury, some related public policy determinations considered by the Court, and the equally constitutional moderation of that requirement in 1931 by the Legislature in enacting the predecessor *796to Article 1.15, by which “evidence is received to support the judgment, not to accept a plea.” We discerned from Supreme Court decisions the principle that “States are free to reject the common law effect of a plea of guilty and adopt their own measures to govern their trial courts in trying a guilty plea case, including a requirement that sufficient evidence be presented by the State to show guilt,” and we found that “the concept of ‘Our Federalism’ militates against directed application of the federal view of consequences of a guilty plea to an otherwise constitutional procedure adopted by a State to convict on a guilty plea when trial by jury has been waived.” Id., at 346-347. Accordingly, in that connection, we concluded:
“Thus, it matters not at all that the common law viewed a plea of guilty as a conviction, nor is it all that clear that such view is ‘the constitutional sense.’ What does matter and what is clear is that Texas is not, and patently has not subjected itself to be, bound by any such federal common law doctrine of conviction by plea. That doctrine simply has not been imposed on the criminal law of this State by the Constitution of the United States or by the Supreme Court of the United States directly or through Fourteenth Amendment ‘incorporation’ or any other fashion.”
Id., at 348.
Finally, the Thornton Court announced its holding on rehearing, viz:
“Therefore, based on deeply felt and stoutly maintained considerations of public policy that produced, inter alia, Article I, §§ 10 and 15 of the Constitution of Texas and Article 1.15 of its code of criminal procedure, and borrowing the Burks-Greene rationale, we hold that the jeopardy provisions of Article I, § 14 of the Constitution of Texas and its implementing statutory provisions are fully applicable to a trial of a guilty plea where the evidence introduced by the State to show the guilt of an accused and accepted by a trial court fail[s] as a matter of law to constitute sufficient evidence to support the judgment of conviction.”
Ibid.
To say, as the plurality does, that a trial judge’s finding an accused guilty on insufficient evidence is “trial error” is to give new meaning to the concept of “double jeopardy.”
I dissent.
DUNCAN, J., joins.. 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).
. Ex Parte Mixon, 583 S.W.2d 378 (Tex.Cr.App.1979), cert. denied, Texas v. Mixon, 445 U.S. 919, 100 S.Ct. 1284, 63 L.Ed.2d 605 (1980). Accord: Ex parte Dixon, 583 S.W.2d 793 (Tex.Cr.App.1979), cert. denied, Texas v. Dixon, 445 U.S. 919, 100 S.Ct. 1284, 63 L.Ed.2d 605 (1980); Ex parte Reynolds, 588 S.W.2d. 900 (Tex.Cr.App.1979), cert. denied, Texas v. Reynolds, 445 U.S. 920, 100 S.Ct. 1284, 63 L.Ed.2d 605 (1980).
. Laflore v. State, 595 S.W.2d 862 (Tex.Cr.App.1980). Note, however, that in Laflore the En Banc Court did not cite Burks and Greene, supra. Rather, we found that "the holding of Ex parte Moffett, 542 S.W.2d 184 (Tex.Cr.App.1976) controls this case,” in that there was no evidence to support the guilty plea, and we reversed the judgment and remanded the cause to the trial court with instructions to enter a judgment of acquittal—just as had been done in Thornton v. State, 601 S.W.2d 340 (Tex.Cr.App.1979), on original submission by a Court Panel (of which this writer was a member). Writing for the Panel in Thornton v. State, supra, at 343, Judge W.C. Davis did not cite Burks and Green either.
. All emphasis is mine throughout unless otherwise noted.
. Verbatim, the ground for rehearing is as follows:
“THE COURT OF CRIMINAL APPEALS INCORRECTLY HELD THAT CAUSE NO. F77-8054-KQ SHOULD BE REMANDED FOR PUNISHMENT DUE TO THE USE OF A PRIOR FOR ENHANCEMENT VIOLATING THE BURKS V UNITED STATES AND GREENE V. MASSEY DOCTRINE PROHIBITING RETRIAL FOLLOWING THE APPELLATE COURTS FINDING OF INSUFFICIENCY OF THE EVIDENCE TO SUPPORT THE CONVICTION, AS SUCH WOULD BE A TREMENDOUS BURDEN ON THE ADMINISTRATION OF JUSTICE.”