dissenting on appellant’s petition for discretionary review.
In ordering an acquittal on original submission in this cause a unanimous Court was right the first time. To its remand for concocted “trial error,” I respectfully dissent.
The majority opinion relies solely on rote application of Ex parte Duran, 581 S.W.2d 683 (Tex.Cr.App.1979). As I have reported elsewhere Ex parte Duran is “probably the first explication of that notion of ‘trial error*.” Ex parte Aaron, 691 S.W.2d 680 (Tex.Cr.App.1985) (Concurring Opinion, at 685, n. I).1 Certainly none of its progeny has ever revisited purported rationale of Ex parte Duran. See, e.g., Clark v. State, 657 S.W.2d 121 (Tex.Cr.App.1983). One who does will discern that Ex parte Duran was wrongly decided.
In Duran v. State, 552 S.W.2d 840 (Tex.Cr.App.1977), after a bench trial on a plea of not guilty, it was contended on appeal that evidence was insufficient to show a powdered substance possessed by defendant was heroin. Id., at 842. There was an oral stipulation to that effect, but the *701record on direct appeal did not contain a written waiver and consent prescribed by Article 1.15, V.A.C.C.P. A majority of the en banc Court held:
“Since the State did not follow the requirements of Article 1.15, V.A.C.C.P., the stipulation may not be considered and the evidence is insufficient to support the convictions, [four citations omitted].”
Id., at 843. The State pointed to certain live testimony of a police officer, but the Court found that the officer was not qualified to testify a substance is heroin. Ibid. Accordingly, having looked for other evidence and finding none, as was routinely done in those days (e.g., Hughes v. State, 533 S.W.2d 824 (Tex.Cr.App.1976); Rangel v. State, 464 S.W.2d 858 (Tex.Cr.App.1971); Elder v. State, 462 S.W.2d 6 (Tex.Cr.App.1971)), the Court reversed the conviction for evidentiary insufficiency and remanded the cause, saying nothing at all about “trial error” by the trial court. Ibid.
On remand Duran was convicted again. Then along came 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), which this Court accurately predicted would be applied retroactively. Ex parte Mixon, 583 S.W.2d 378 (Tex.Cr.App.1979). On their authority Duran applied for a postconviction writ of habeas corpus to “relieve him from conviction on the re-trial which followed our remand,” Ex parte Duran, supra, at 684, in that the Court had found on direct appeal that evidence was insufficient to support his conviction.
Recognizing its predicament and “manifestly struggling to avoid granting relief,” Ex parte Aaron, supra, the Court first opined that “Burks and Greene do not clearly require that the relief sought be granted,” and then set the scene, viz:
“That we used the words ‘the evidence is insufficient to support the conviction’ (552 S.W.2d at 843) in our earlier opinion, a year before Burks and Greene were decided, does not control the correct analysis of this case. The words are not a magic phrase which produces automatically results.”
Ex parte Duran, supra, at 684.2 Next it examined Burks and Greene and reviewed some of the proof offered and admitted on his trial before the court — on oral stipulation and without objection on the part of defendant. Id., at 684-685. With that done, the Court turned to resolution of the problem.
First the Court said, “As we have already held on appeal, the trial court erred in accepting this stipulation.” Id., at 685.3 Continuing in that vein, the Court believed the trial court “should have ruled that the stipulation was improper without defendant’s written waiver and consent,” and speculated that had the trial court “made the proper ruling, the defendant might have given his written waiver and consent,” but if he “refused” the State would then be put to proving the evidentia-ry matter “by other testimony or evidence.” Id., at 68S-686.4 In the event, though “the proper ruling” was not made, “it would not have been correct for the trial court to have directed a verdict of not *702guilty on the basis of insufficient evidence” since the State “had not yet rested.” Id., at 685. (The State rested right after the last stipulation was made, but the defense proceeded to put on its case.)
Having thus put the burden on a trial court to reject sua sponte a proffered stipulation between the parties, the Court believed itself able to say that the situation in Duran is “different” from Burks, in that error on the part of the trial court in the latter “was in failing to grant a motion for new trial which was based on insufficiency of the evidence,” whereas in Duran “the basic error was not failure to recognize, after the State had rested, that the evidence was insufficient; it was error in admitting evidence,” and perforce “trial error” rather than “jeopardy error.” Id., at 686.5
Thus adjusting clear findings and holding of Duran v. State to fit its own analysis of Burks and Greene evinces that the Ex parte Duran Court was determined to convert what was reversal for evidentiary insufficiency into reversal for “trial error.” Quoting one paragraph in Burks concerning “trial error” and appropriating the term for its own purposes, it does not even attempt to convey an understanding of the problems being addressed by the Supreme Court in those two opinions.
What the Supreme Court resolved is “the question of whether an accused may be subjected to a second trial when conviction in a prior trial was reversed by an appellate court solely for lack of sufficient evidence to sustain the jury’s verdict.” Burks, 437 U.S. at 2, 98 S.Ct. at 2143. First it reviewed developments in lower courts through the finding of evidentiary insufficiency on a sanity issue by the Court of Appeals for the Fifth Circuit and its ordered remanding the cause for determination of whether to enter a directed verdict of acquittal or a new trial — in light of at least two groups of past decisions of the Supreme Court. One it called “the Bryan-Forman line.”6 That line produced the following proposition:
“A defendant who requests a new trial as one avenue of relief may be required. to stand trial again, even when his conviction was reversed due to failure of proof at the first trial.”
Burks, at 10, 98 S.Ct. 2146.7 The other group of decisions deal more with traditional notions of jeopardy prohibiting a second trial to allow the prosecution another opportunity to supply evidence it failed to muster in the first one, the proposition that failure of proof in a trial court calls for an acquittal, and the view that it should make no difference that the reviewing court rather than the trial court determined evidence to be insufficient, first suggested by Justice Douglas concurring in Sapir v. United States, 348 U.S. 373, 374, 75 S.Ct. 422, 423, *70399 L.Ed. 426 (1955). Burks, 437 U.S. at 10-11, 98 S.Ct. at 2147.
Upon close examination of the Bryan-Formcm precedents and holdings the Supreme Court was persuaded that “they have not properly construed the [Double Jeopardy] Clause, and accordingly should no longer be followed.” Burks, supra, at 12, 98 S.Ct., at 2147. It further found that United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896) “provides a logical starting point for unraveling the conceptual confusion” arising from Bryan v. United States, supra, and its progeny, including Forman v. United States.
In Ball accused obtained a reversal of his first conviction due to a defective indictment. It was therefore “based not on insufficiency of evidence but rather on trial error, i.e., failure to dismiss a faulty indictment,” as were the cases it cited. Burks, 437 at 14, 98 S.Ct., at 2148. The problem perceived by the Supreme Court was that cases decided since Ball “do not distinguish between reversals due to trial error and those resulting from evidentiary insufficiency” and the Supreme Court, seeing that failure as “contribut[ing] substantially to the present state of confusion existing in this area of the law,” thought “it is important to consider carefully the respective roles of these two type of reversals in double jeopardy analysis.” Id., at 15, 98 S.Ct. at 2149.
Accordingly, the Supreme Court abstractly compared the respective roles: first, “trial error” in the passage quoted by the Court in Ex parte Duran, supra, at 684, then evidentiary insufficiency. On the issue being decided, see ante, at p. 696, the Court concluded:
“In our view it makes no difference that a defendant has sought a new trial as one of his remedies, or even as the sole remedy. It cannot be meaningfully said that a person ‘waives’ his right to a judgment of acquittal by moving for a new trial. * * * * Since we hold today that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the ‘just’ remedy available for that court is the direction of a judgment of acquittal. To the extent that our prior decisions suggest that by moving for a new trial, a defendant waives his right to a judgment of acquittal on the basis of evidentiary insufficiency, those cases are overruled.”
Id., 437 U.S. at 17-18, 98 S.Ct. at 2150-2151.
Had Burks and its application to the States by Greene been recognized as the law then extant, that the Court should have directed a judgment of acquittal in Duran v. State cannot be gainsaid. Since it was not, the Court did that which it always had when an appellant prevailed on appeal in such cases — remand to the trial court. Faced with Burks and Green, however, the Court sought to justify the remand by equating what it said in retrospect was the holding in Duran with “dictum” of the Supreme Court in remanding Greene, supra. Ex parte Duran, at 686.
In Greene, the Supreme Court applied the “standard” of Burks to the States. Id., 437 U.S. at 24, 98 S.Ct. at 2154. However, it was unable to reverse the judgment of the courts below and grant appropriate relief because “the situation is confused” in that while the per curiam opinion in Sosa [and Greene] v. State, 215 So.2d 736 (Fla. 1968), “leaves no room for interpretation by us” other than the Florida Supreme Court had found evidence insufficient to convict in the first trial, Greene, supra, 437 U.S. at 24-25, 98 S.Ct. at 2154, (and reversed the judgments and “remanded for a new trial,” Sosa, at 737), there was also a concurring opinion subject to different interpretations.8 The Supreme Court *704thought the concurrence could be viewed at least two ways: one involving only trial error;9 the other, that those three judges were of the opinion that “once the inadmissible hearsay was discounted, there was insufficient evidence to permit the jury to convict.” Greene, 437 U.S. at 24-26, 98 S.Ct. at 2154-2155. Eschewing any indication that it considered such a reversal as “trial error,” the Supreme Court cautioned that it expressed no opinion “as to the double jeopardy implications of retrial following such a holding,” id., n. 9. Given that tiny opening, this Court equated its “holding” in Duran with the latter view of the concurring opinion in Sosa, supra. Ex parte Duran, at 684-685.
As matters would finally turn out, however, the Supreme Court proved to be wrong in several interpretations of the situation.10 The “confusion” that prompted those dicta dissolved on remand and certification. With its underpinnings thus removed Ex parte Duran must fall. See Greene v. Massey, 706 F.2d, at 552-553.
The essence of Burks, and hence Greene, was reprised by the Supreme Court in Hudson v.. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), viz:
“We considered in Burks the question ‘whether an accused may be subjected to a second trial when conviction in a prior trial was reversed by an appellate court solely for lack of sufficient evidence to sustain the jury’s verdict.’ [cites to Burks omitted throughout]. We held that a reversal ‘due to failure of proof at *705trial,’ where the State received a ‘fair opportunity to offer whatever proof it could assemble,’ bars retrial on the same charge. We also held that it makes ‘no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient,’ (emphasis in original), or that ‘a defendant has sought a new trial as one of his remedies, or even as the sole remedy.’”
Id., at 42-43, 101 S.Ct., at 972.
Applying Burks in Hudson v. Louisiana, supra, the opinion points out:
“The Louisiana Supreme Court recognized that the trial judge granted the new trial on the ground that the evidence was legally insufficient. The Supreme Court described the trial judge’s decision in these words: ‘[T]he trial judge herein ordered a new trial pursuant to LSA C Cr P art 851(1) solely for lack of sufficient evidence to sustain the jury’s ver-dict_’ (emphasis in original). This is precisely the circumstance in which Burks precludes retrials. Nothing in Burks suggests, as the [Louisiana] Supreme Court seemed to believe, that double jeopardy protections are violated only when the prosecution has adduced no evidence at all of the crime or an element thereof.”
Id., at 43, 101 S.Ct., at 972.
Finally, the Supreme Court agreed with the Louisiana Supreme Court that the fact that a trial judge had found evidentiary insufficiency is no different in principle announced in Burks and followed in Greene when an appellate court does.
Again, as in Burks and Hudson v. Louisiana, had it been known the same principle would have precluded retrial in Duran. What happened during trial of accused in Duran was variously characterized.11 However, he did not object to the procedure, the court made no ruling and the fact of the matter is that stipulated evidence and other testimony produced by the prosecution and relied on by the trial court were legally insufficient to support of a finding of guilt. That was his precise contention on appearand the Court found that State failed to prove “the brown powdered substance was heroin,” Duran, at 843. He was entitled to, and the Court should have ordered, an acquittal on his postconviction application for habeas corpus.12
Ex parte Duran was, therefore, wrongly decided; it and progeny should be overruled. Because the majority does not, but instead follows the former to allow the State “another bite at the apple,” I respectfully dissent.
TEAGUE, J., joins.. Emphasis in original opinion; all other emphasis is mine throughout unless otherwise indicated.
. Nonetheless, the reality of the matter is that the Court did reverse the conviction in Duran for insufficient evidence — not "trial error” — as demonstrated ante. See Burks, supra, 437 U.S. at 16, n. 10, 98 S.Ct. at 2150, n. 10.
. As I have pointed out, the Court did not so hold in terms that “the trial court erred." Rather, it held that since the stipulation may not be considered as evidence and other testimony lacked probative value, the State failed to prove the substance was heroin; thus the evidence was insufficient to support the conviction, and reversal followed automatically. See ante, pp. 700-701 and note 2.
.Of course, the State was already “put to proving” that essential element of the offense it alleged, and the trial court had not been been called on by either party to make any ruling. Compare Greene v. Massey, supra, 437 U.S. at 21, 98 S.Ct. at 2153, and see Sosa [and Greene] v. State, 215 So.2d 736, 742 (Fla.1968). Indeed, both were in full agreement that the stipulation and exhibits, including lab report and "the heroin” itself, be received in evidence. Thus the parties "seemed satisfied at the time to assist in making a record of evidence on which appellant would get ‘a fair adjudication of his guilt free from error.’" Ex parte Aaron, supra, n. 1. (emphasis in original).
. "We think that this basic error, upon which our earlier reversal rested, was therefore trial error. Properly construed, our holding was not that the State had failed to prove its case, but that it had been permitted erroneously to prove its case through incorrect receipt of evidence. Cf. Burks, 437 U.S. at 15, 98 S.Ct. 2141, quoted above. A reversal for such trial error as was committed in this case is not tantamount to a holding by this Court that a directed judgment of acquittal should have been entered. It was a holding that the applicant should have a fair readjudication of his guilt free from error. For this reason, our earlier reversal was not one that would bar a re-trial because of the application of the double jeopardy clause in Burks and Greene." Id., at 686.
. "Petitioner’s contention that to require him to stand trial again would be to place him twice in jeopardy is not persuasive. He sought and obtained reversal of his conviction assigning a number of errors on appeal, including denial of his motion for judgment of acquittal. ‘_ [Wjhere the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial, [citations omitted].” Bryan v. United States, 338 U.S. 552, 560, 70 S.Ct. 317, 321, 94 L.Ed. 335 (1950).
“It is elementary in our law that a person can be tried a second time for an offense when his prior conviction for that same offense has been set aside by his appeal, [citing United States v. Ball, supra]. Even though petitioner may be right in his claim that he did not request a new trial with respect to the portion of the charge dealing with the statute of limitations, still his plea of double jeopardy must fail. Under 28 U.S.C. § 2106, the Court of Appeals has full power to go beyond the particular relief sought." Forman v. United States, 361 U.S. 416, 425, 80 S.Ct. 481, 486, 4 L.Ed.2d 412 (1960).
.Emphasis by the Supreme Court.
. An examination of that concurrence in Sosa, supra, reveals that the hearsay testimony at issue was given by Mary Kane, a rebuttal witness for the State, She was allowed “over objection ” to testify as to statements made by her to an FBI agent. In turn, the FBI agent was permitted to testify to what Kane and, "over objection," what another witness, Mae Turner, had told him. Id., at 742-743. In the Florida Supreme Comí: Sosa and Greene contended "that the trial court erred in admitting these extrajudicial statements of the witnesses into evidence." Ibid. After an extensive discussion of applicable law the concurrence concluded:
*704“When, as in the present case, the extrajudicial statements contain references to additional and extrinsic facts whose potential probative force is highly incriminating and critical to the establishment of an ultimate fact in dispute, we believe that the admission of such extrinsic portions of the extrajudicial statements constitutes reversible error.”
Id., at 745. Accordingly, for reasons stated in their opinion the concurring judges opined that the judgments should be reversed and remanded for a new trial "so we have agreed to the Per Curiam order doing so.” Id., at 746.
. One interpretation was that "the three concurring judges were concerned simply with trial error and joined in the remand solely to afford Greene and Sosa a fair error-free trial — even though they were satisfied that the evidence was sufficient to support the verdict. A reversal grounded on such a holding, of course, would not prevent a retrial." Greene, 437 U.S. at 26-27, 98 S.Ct. at 2155. Ex parte Duran does not mention that interpretation of reversal for “trial error.”
. Following its suggestion that the Court of Appeals was free to certify unresolved questions of state law to the Florida Supreme Court, Greene, 437 U.S. at 27, 98 S.Ct. at 2155, the Fifth Circuit panel did just that in Greene v. Massey, 595 F.2d 221 (CA5 1979). Although all were not answered in Greene v. Massey, 384 So.2d 24 (Fla 1980), the Florida Supreme Court made clear that its per curiam opinion became the majority opinion when three specially concurring members joined in the per curiam; that the special concurring opinion had no precedential value and cannot serve to condition or limit the concurrence in the per curiam opinion by the three who joined in that special concurring opinion; that the majority per curiam opinion “constitutes the only opinion of the Court." Id., at 27. However, after reversal Greene and Sosa sought a writ of prohibition to bar retrial and their jeopardy position was rejected by the trial court and a district court of appeal in Sosa v. Maxwell, 234 So.2d 690 (Fla.2d CDA 1970), upon its own construction of the original per curiam opinion: reversal not for insufficient evidence but ‘based on a finding that the evidence, though technically sufficient, is so tenuous as to prompt an appellate court to exercise its discretion and, in the interest of justice, grant a new trial." When the Florida Supreme Court declined to review that construction, the decision of the district court "became the law of the case with respect to the jeopardy claim;” thus on appeal from conviction on retrial the district court of appeal "properly declined to reconsider the same double jeopardy claim" in Sosa v. State, 302 So.2d 202 (Fla. 4th DC 1974). As far as Florida courts were concerned the decision “interpreting our original opinion ... is control.ling ... with respect to the double jeopardy issue,” Greene, 384 So.2d at 27.
Thereafter, in Greene v. Massey, 706 F.2d 548 (CA5 1983), the Fifth Circuit panel sorted it all out. With intervening "Tibbs litigation” finally terminated, the majority found that reversal in the original per curiam opinion had been “based on evidentiary weight and 'the interests of justice,”' id., at 557. Therefore, the Double Jeopardy Clause was not offended by the opinion of the district court of appeal denying writ of prohibition and ordering a retrial. Id., at 554, n. 13. [See Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); see also Hill v. State, 719 S.W.2d 199 (Tex.Cr.App.1986) (Dissenting Opinion).] Accordingly, the Fifth Circuit denied habeas relief and affirmed the district court The Supreme Court denied certio-rari, 464 U.S. 1046, 104 S.Ct. 718, 79 L.Ed.2d 180 (1984).
. In Duran the Court said "the State did not follow the requirements of Article 1.15;" in Ex parte Duran the Court said the trial court "should have ruled that the stipulation was improper," and without such ruling the State "had been permitted to erroneously to prove its case through incorrect receipt of evidence.” See ante, pp. 695-696.
The first case to construe Article 1.15 after the legislative revision in 1965 and amendment in 1967 is Rodriguez v. State, 442 S.W.2d 376 (Tex.Cr.App.1969). The offense is theft, the plea not guilty and the issue is sufficiency of evidence to prove want of consent by owner. On original submission two judges opined Article 1.15 is not mandatory where the plea is not guilty; two judges dissented. On rehearing a majority held otherwise and then posited:
"If the stipulation is sufficient there is sufficient evidence to support the conviction, if the stipulation is not in accord with the legal requirements of art. 1.15 then there is insufficient evidence to support the conviction."
Id., at 385 (emphasis in original). Finding a failure to comply with Article 1.15, and thus the testimony at issue inadmissible, since there was no other evidence on point the Court held the State had failed to prove an essential element of the offense charged and, therefore, reversed the judgment and remanded the cause. Ibid.
. Ex parte Duran never suggests that the State had not been given “one fair opportunity to offer whatever proof it could assemble," Hudson v. Louisiana, supra; Burks, at 16, 98 S.Ct. at 2150. Indeed, the Court could not with straight face, for in Duran the Court found the State had proved the substance was heroin in another case in August, but failed to prove that element in the case under consideration in October.