dissenting.
Dallas Alan Martin, Jr., hereinafter applicant, challenges by way of Article 11.07, V.A.C.C.P., the validity of the life sentence that is causing him to be presently confined in the Department of Corrections. Applicant specifically challenges in his application the use by the State, for enhancement of punishment purposes, of a prior felony conviction that he sustained in 1973. Punishment was assessed by the trial judge pursuant to Penal Code, § 12.42(d), prior to amendment, at life imprisonment. Applicant asserts in his application that the double jeopardy clauses prohibited the State from using the 1973 conviction to enhance his punishment to life imprisonment.
On original submission, this Court unanimously agreed with applicant and held that “the second conviction obtained in this cause was invalid and unavailable for enhancement purposes”, and remanded the cause to the trial court for a new hearing on punishment. In a majority opinion that I find is seriously flawed, for reasons that I will later state, this Court now rejects applicant's contention.
I believe that to fully appreciate applicant’s contention it is necessary to understand what has happened to applicant in the past when he appeared before this Court, and what this Court has previously held in those causes.
This Court’s records reflect that in Martin v. State, 491 S.W.2d 421 (Tex.Cr.App.1973), this Court, in reversing applicant’s conviction in that cause, held either that because the evidence was insufficient or that because “no evidence” was adduced on the element of the indictment that went to *797ownership the trial court’s judgment had to be reversed. Two weeks later, applicant was reindicted, and, without protest, again pled guilty to the same offense, was again found guilty, and the same punishment was assessed. Applicant was thereafter transferred to the Department of Corrections where he successfully completed serving that sentence. Until now, applicant has never challenged the validity of that conviction and sentence.
The records of this Court also reflect that after applicant had been released from the penitentiary he was charged by indictment with committing a new felony offense, burglary of a vehicle. Two prior convictions, one of which was the 1973 reindictment conviction that he had sustained, were alleged to enhance his punishment. See V.T.C.A., Penal Code, § 12.42(d), prior to amendment. Applicant did not in that cause challenge pretrial, during trial, or on appeal the validity of the 1973 reindictment conviction and sentence that he had sustained on the ground of double jeopardy. The jury found applicant guilty and the trial court assessed his punishment at life imprisonment pursuant to § 12.42(d), supra. In an unpublished panel opinion of this Court, the trial court’s judgment and sentence were affirmed. See Martin v. State, 600 S.W.2d 336 (Tex.Cr.App.1980). The only issue that was presented on appeal was whether the indictment that went to the primary offense was fundamentally defective. This Court held that it was not, overruled applicant’s ground of error, and affirmed the trial court’s judgment and sentence.
When this Court reversed the conviction that applicant had sustained in 1973, the law of this State provided that the double jeopardy provisions of the respective Constitutions did not bar a retrial after the defendant had succeeded on appeal in obtaining a reversal of his conviction because the evidence was held to be insufficient— the defendant was presumed in that instance to have waived any objection to being put a second time in jeopardy, and thus could be tried anew. See, for example, 1 Bish. Crim.Law (4th ed.) § 844; Sterling et al. v. State, 25 Tex.App. 716, 9 S.W. 45 (1888).
However, in 1960, approximately 13 years before this Court reversed applicant’s conviction and prior to when applicant was convicted on the reindictment, the Supreme Court created an exception to the above rule of law, and held in Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), that a conviction based upon “no evidence” violated due process of law. Notwithstanding this Court’s express holding that there was “no evi dence” as to one of the elements of the offense, and just two weeks after this Court had reversed applicant’s conviction, after being reindicted for the same offense, without protest, applicant was again convicted on a plea of guilty and his punishment was again assesssed at 3 years’ confinement in the Department of Corrections. Applicant apparently successfully completed serving that sentence.
In this proceeding, apparently for the first time ever, applicant challenges the validity of his life sentence on the ground that the double jeopardy clauses prohibited the State from using the 1973 reindictment felony conviction to enhance his punishment to life imprisonment in the present cause. Is this permissible?
This Court has long stated and held that the failure to object at trial does not constitute a waiver of the right to raise the issue of double jeopardy in a post conviction collateral habeas corpus attack. See, for example, Ex parte Pleasant, 577 S.W.2d 256 (Tex.Cr.App.1979); Ex parte Hilliard, 538 S.W.2d 135 (Tex.Cr.App.1976); Ex parte Jewel, 535 S.W.2d 362 (Tex.Cr.App.1976). Thus, the fact that applicant has never complained that the 1973 conviction was barred from future use does not estop him from complaining now. Furthermore, this Court has long held that the fact that an applicant subsequently entered a plea of guilty to the same charge does not preclude him from raising the double jeopardy contention in an application for writ of habeas corpus. See, for example, Ex parte Morehead, 596 S.W.2d 895 (Tex.Cr.App.1980); Ex parte Hilliard, supra; Ex parte Jewel, *798supra; Ex parte Seelles, 511 S.W.2d 300 (Tex.Cr.App.1974). Also see Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); United States v. Broussard, 645 F.2d 504 (5th Cir.1981); Green v. Estelle, 524 F.2d 1243 (5th Cir.1975).
In 1979, this Court, either expressly or implicitly, overruled the above rule of law that the double jeopardy clauses did not prevent retrial where this Court had previously found the evidence was insufficient to support the defendant’s conviction. Except for the fact that applicant had entered a plea of guilty, and was tried before the court on his plea, what occurred in applicant’s situation is almost exactly what occurred in Ex parte Reynolds, 588 S.W.2d 900 (Tex.Cr.App.1979), in which this Court granted that defendant relief. The defendant in Ex parte Reynolds, supra, had challenged the validity of her second conviction, which occurred after this Court had held that the evidence was insufficient to sustain her conviction, on the ground of double jeopardy. Relief was granted.
As previously noted, on original submission, this Court unanimously granted applicant relief, to the extent that he was entitled to have a new punishment hearing.
The State, in its motion for rehearing, does not really challenge anything that this Court stated in its original opinion; its concern in its motion goes to this Court’s holding that what it had stated and held was to be applied retroctively to applicant’s cause. In its argument against retroactivity, the State believed that this Court’s decision to remand the cause for a new punishment hearing would impose “a tremendous burden upon the administration of justice.” (Page 2, State’s Motion for Leave and Motion for Rehearing). Counsel for the State, however, acknowledged in his motions that this Court had previously held that 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), which had held that the federal double jeopardy clause, as applicable to the states, precluded a retrial “once the reviewing court has found the evidence legally insufficient to support the conviction”, are to be applied retroactively. See, for example, Ex parte Mixon, 583 S.W.2d 378 (Tex.Cr.App.1979); Ex parte Colunga, 587 S.W.2d 426 (Tex.Cr.App.1979); and Ex parte Reynolds, supra. The State’s motion for rehearing was granted by this Court. I believed then, and still do, that given what this Court had previously stated the State’s motion was frivolous because when this Court reversed applicant’s conviction in 1973, which factually is the same offense for which he was convicted on a reindictment two weeks later, the State was forever after barred from using that conviction to enhance his punishment, or for that matter for any other purpose. That conviction closely resembles a dead limb on a tree; it can be chopped off at any time by the injured party. Applicant now seeks to chop off the dead limb that exists on his criminal record.
The majority opinion of this Court appears to reject applicant’s contention on the ground that the “insufficiency error” that caused this Court to reverse applicant’s conviction in 1973 was mere “trial error” and that Burks-Greene, supra, as interpreted by this Court, is inapplicable to “trial error”; thus, applicant is not entitled to any relief. Or, is the majority opinion holding that applicant is now challenging the sufficiency of the evidence that went to his 1973 reindictment conviction, and that under Ex parte Williams, 703 S.W.2d 674 (Tex.Cr.App.1986), he may not now challenge the sufficiency of the evidence to sustain a plea of guilty by way of a post-conviction application for writ?
Given this Court’s prior decision in 1973, which held that the evidence was insufficient, why should applicant challenge the sufficiency of the evidence to sustain his plea of guilty that occurred in the reindictment conviction cause when this Court has already made that determination? Thus, isn’t applicant now entitled to his belated judgment of acquittal? In addition to the above cited cases, also see McDowell v. State, 142 Tex.Cr.R. 530, 155 S.W.2d 377 (App.1941). Furthermore, in Stuart v. State, 561 S.W.2d 181 (Tex.Cr.App.1978), *799this Court held that it was reversible error for the trial judge to admit into evidence a prior occurrence for which the defendant had been previously acquitted. I find that Judge Douglas, in the dissenting opinion that he filed in Stuart, supra, correctly interpreted the majority opinion in that cause to mean that “today’s decision prohibits the relitigation of any fact with reference to prior criminal conduct of which the defendant was acquitted.” (183). See, however, the concurring opinion that I recently filed in Gold v. State, 736 S.W.2d 685 (Tex.Cr.App., 1987), that discusses an appellate court reviewing the sufficiency of the evidence and making the determination that the evidence is insufficient to sustain the conviction. The issue here, however, is whether the double jeopardy clauses barred the State from using applicant’s 1973 conviction to enhance his punishment to life imprisonment in the conviction that he sustained in 1977, and not whether the evidence was sufficient to sustain the 1973 reindictment conviction. That issue was decided adversely to the State back in 1973.
The majority opinion’s reliance upon Ex parte Williams, 703 S.W.2d 674 (Tex.Cr.App.1986), is sorely misplaced. The bottom line holding in that cause was that “an applicant may not collaterally attack the sufficiency of the evidence to support a felony conviction [that was] based upon a plea of guilty.” (683). Here, however, applicant is not challenging the sufficiency of the evidence that went to the 1973 conviction that was used in 1977 to enhance his punishment. That decision has already been made by this Court. Thus, any reliance upon the dicta and obiter dicta that might be present in Ex parte Williams, supra, to support the majority holding is sorely misplaced. Also see the dissenting opinion that I filed in Ex parte Girnus, 640 S.W.2d 619 (Tex.Cr.App.1982), and the well written majority opinion that Judge Clinton wrote for the Court in Thornton v. State, 601 S.W.2d 340 (Tex.Cr.App.1980) (On motions for rehearing), which the majority opinion in this cause erroneously overrules.
The next serious flaw of the majority opinion is how it erroneously interprets “trial error”. Judge Clinton remarks in the dissenting opinion that he files in this cause, “To say, as the majority 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’.” In the dissenting opinion that he filed in Messer v. State, 729 S.W.2d 694, 700 (Tex.Cr.App.1986), Judge Clinton correctly characterized an erroneous reference to “insufficiency error” as “trial error” as being “concocted ‘trial error.’ ”
I will not repeat here the discussion on the subject of “trial error” that I set out in the concurring and dissenting opinion that I filed in Gardner v. State, 699 S.W.2d 831 (Tex.Cr.App.1985), but will simply state that unless the trial judge is called upon to act, through an objection, there can be no “trial error.” Nowhere in this cause has “trial error” occurred.
On original submission, this Court, speaking through Judge Tom Davis, unanimously held that applicant’s “second conviction [that he sustained in 1973] was invalid and unavailable for enhancement purposes.” Although Judge Davis did not directly mention or discuss the applicability of the double jeopardy clauses, and even though he did so in a sufficient manner that the members of this Court each apparently understood what it stated and held when they voted for his opinion, it is now obvious to me that Judge Davis should have written a treatise on the law of double jeopardy. Perhaps then there would have been no need for this Court to grant what I found then and find now to be a frivolous motion for rehearing.
For all of the foregoing reasons, I respectfully dissent to the majority of this Court denying applicant the relief to which he is entitled; a new hearing on the issue of punishment without the State being permitted to use for purposes of punishment the 1973 reindictment conviction.