dissenting (joined by BUTTS, Justice).
I respectfully dissent.
The only issue before this court is whether the triál court erred in denying the application for writ of habeas corpus because of a violation of the double jeopardy provisions of TEX. CONST. I, § 14 and U.S. CONST, amends. V and XIV.
On March 9, 1987, in cause number 87-02-000087-CV, entitled Tom Williams v. Robert E. Buffington, Dorothy Buffington, and Robbie Buffington, the court enjoined appellant among other things, from “causing or threatening to cause physical contact or bodily injury to the Defendants [Buff-ingtons].”
On June 18, 1987, appellant allegedly shot Robert Buffington, Sr. and Robert Buffington, Jr. with a shotgun.
On January 6, 1988, appellant was indicted for attempted capital murder by a grand jury on the following counts:
*820COUNT I
That THOMAS HIRAM WILLIAMS, on or about the 18TH day of JUNE, A.D. 1987 and before the presentment of this indictment, in said County and State did then and there intentionally and knowingly, with the specific intent to commit the offense of capital murder by murdering more than one person during the same criminal transaction, to-wit: ROBERT BUFFINGTON, SR. AND ROBERT BUFFINGTON, JR., do an act to-wit: shoot ROBERT BUFFINGTON, JR., with a deadly weapon, to-wit: a firearm, specifically, a shotgun, which act amounted to more than mere preparation that tended, but failed to effect the commission of such capital murder;
COUNT II
That THOMAS HIRAM WILLIAMS on or about the 18TH day of JUNE, 1987 and before the presentment of this indictment, in said County and State did then and there intentionally and knowingly, with the specific intent to commit the offense of capital murder by murdering more than one person during the same criminal transaction, to-wit: ROBERT BUFFINGTON, SR. AND ROBERT BUFFINGTON, JR. do an act, to-wit: shoot Robert Buffington, Sr., with a deadly weapon, to-wit: a firearm, specifically, a shotgun, which act amounted to more than mere preparation that tended, but failed to effect the commission of such capital murder.
On January 25, 1988, appellant was found guilty of criminal contempt for violating the court’s injunctive order dated March 9, 1987:
Tom Williams, Plaintiff/Respondent, violated subparagraph (a) on page 2 of the Order of the Court dated March 9, 1987 by causing physical contact and bodily injury to Defendants Robert E. Buffington and Robbie Buffington by shooting Robert E. Buffington and Robbie Buffington with a shotgun on June 18, 1987 on the Zuehl Road overpass on Interstate 10 in Guadalupe County, Texas.
As a result, appellant was punished in the same order as follows:
It is ADJUDGED that Plaintiff/Respondent, Tom Williams, is in contempt of this Court for each separate violation of the Order of this Court set forth above. It is, accordingly,
ORDERED that punishment for Plaintiff/Respondent Tom Williams’ violation of paragraph (a) on page 2 of the Order of the Court dated March 9, 1987 is assessed at a fine of $500.00 and confinement in the County Jail of Guadalupe County, Texas for a period of thirty days; ...
On February 10, 1988, appellant filed his application for writ of habeas corpus contending that the conviction and incarceration for contempt barred further prosecution under the pending indictment because of the double jeopardy provisions of TEX. CONST, art I, § 14 and U.S. CONST, amends. V and XIV. Appellant’s application for writ of habeas corpus was denied by the trial court on April 14, 1988 after appellant had served his 30 day punishment for criminal contempt. This appeal has been perfected.
The State does not challenge appellant’s contention that appellant was convicted of criminal contempt when he was incarcerated for 30 days or that the indictment involves the same occurrence for which appellant has already been punished. Therefore, appellant’s unchallenged allegations may be accepted as correct. TEX.R. APP.P. 74(f). The State relies exclusively on the antiquated cases of Ex parte Looper, 61 Tex.Crim. 129, 134 S.W. 345 (1919) and Ex parte Allison, 99 Tex. 455, 90 S.W. 870 (1906). Appellant relies upon Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); Ex parte Brown, 574 S.W.2d 618 (Tex.App. — Waco 1978, no writ), and Ex parte Englutt, 619 S.W.2d 279 (Tex.App. — Texarkana 1981, no writ).
Menna, supra, involved a situation strikingly similar to the case before us. The petitioner had served 30 days confinement for contempt of court after refusing to testify before a grand jury in violation of *821the trial court’s order. He was later indicted for the same offense. After asserting unsuccessfully that the indictment should be dismissed because the prior contempt conviction barred further prosecution under double jeopardy principles, he plead guilty. The New York State courts failed to address the double jeopardy claim, contending that it had been waived because of the guilty plea. Following the bedrock rule of avoiding constitutional decisions whenever possible, the United States Supreme Court reversed and remanded the case to the state court with instruction to consider the double jeopardy claim holding that the double jeopardy claim was not waived by a guilty plea. However, the Supreme Court nevertheless made significant declarations regarding the issue before us:
The State concedes that petitioner’s double jeopardy claim is a strong one on the merits. In light of the flat 30-day sentence imposed, the earlier conviction was a criminal conviction. People v. Colombo, 31 N.Y.2d 947 [341 N.Y.S.2d 97] 293 N.E.2d 247 (1972), on remand from Columbo v. New York, 405 U.S. 9, 30 L.Ed.2d 762, 92 S.Ct. 756 (1972); and New York law supports the proposition that the earlier conviction was based, at least in part, on the failure to answer questions on November 7, 1968, and was thus for the same crime as the one charged in the instant indictment. In re Capio v. Justices of the Supreme Court, 41 App.Div.2d 235, 342 N.Y.S.2d 100 (1973) affd', 34 N.Y.2d 603, 310 N.E.2d 547 (1974); People v. Matra, 42 App. Div.2d 865, 346 N.Y.S.2d 872 (1973).
Menna, 423 U.S. at 62 n. 1, 96 S.Ct. at 242 n. 1.
In a concurring opinion, Mr. Justice Brennan held that the double jeopardy claim should be sustained without remand, citing Ashe v. Swenson, 397 U.S. 436, 453-54, 90 S.Ct. 1189, 1199-1200, 25 L.Ed.2d 469 (1970) (Brennan, J. concurring).
In support of their argument denying the double jeopardy claim, the majority here attributes considerable significance to the fact that seven justices of the United States Supreme Court did not join Mr. Justice Brennan in his concurring opinion.
We see more significance in the fact that the United States Supreme Court did not simply declare that the failure of New York to take up the double jeopardy matter as harmless error because double jeopardy did not apply. The Supreme Court must have necessarily determined that implications of the Double Jeopardy Clause raised a substantial federal question, else it would not have granted the petition for certiorari. It is likewise significant, that none of the justices issued their own opinions disagreeing with Mr. Justice Brennan. Further, they all agreed in the court’s per curiam opinion which went out of its way to remind New York “that the petitioner’s double jeopardy claim is a strong one on the merits,” that “the earlier conviction was a criminal conviction,” and “that the earlier conviction was based, at least in part, on the failure to answer questions on November 7, 1968, and was thus for the same crime as the one charged in the instant indictment.” Thus, these instructions of the United States Supreme Court directed to New York indicate clearly an inclination in support of the double jeopardy claim.
Menna, supra, can very reasonably be read to reveal that the majority of the United States Supreme Court adhered to one of its cornerstone rules, which is enunciated by Mr. Justice Harlan and Mr. Justice Stewart in their dissenting opinion in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969):
One of the bedrock rules that has governed, and should continue to govern, the adjudicative processes of this Court is that the decision of constitutional questions in the disposition of cases should be avoided whenever fairly possible.
Obviously, the Supreme Court of the United States avoided a constitutional decision by directing New York to take care of its .own constitutional problem and by suggesting how to do it. Furthermore, the highest court of New York received the message clearly when, upon rehearing, they unanimously held:
*822The order of the Appellate Division should be reversed and the indictment dismissed.
The Supreme Court of the United States has held that this defendant’s claim of double jeopardy survived his plea of guilty (Menna v. State of New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 [1975]). On review of such claim on the merits we conclude, with the ' concurrence of the prosecutor, that the double jeopardy clause precludes the prosecution of defendant on the charge to which he pleaded guilty.
People v. Menna, 38 N.Y.2d 850, 382 N.Y.S.2d 56, 345 N.E.2d 599 (1976).1
In Ex parte Brown, supra, the Waco Court of Appeals unanimously discharged the relator from confinement based on a criminal contempt conviction following a criminal court conviction involving the same conduct for which he had already been punished by fine and confinement. Citing Menna, supra, Chief Justice McDonald delivered the opinion holding the contempt punishment violated the double jeopardy provisions:
Contempt actions are criminal in nature. And the procedure therein should conform as nearly as practicable to criminal procedure. Ex parte Genecov, 143 Tex. 476, 186 S.W.2d 225....
The Fifth Amendment prohibition against double jeopardy precludes relator’s punishment by contempt proceeding for what he has already been punished for under the state laws in the criminal proceeding, [citations omitted]
Id. 574 S.W.2d at 620-21.
Furthermore, the Texarkana Court of Appeals, in a unanimous opinion authored by Chief Justice Comelious, rejected Allison, supra, choosing an interpretation which falls more in line with modem double jeopardy principles:
In this era of enlightened constitutional interpretation and expanded constitutional protection, it is recognized that, while a purely coercive confinement for contempt will not constitute a criminal conviction for purposes of the double jeopardy prohibition, Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957); United States v. Morales, 566 F.2d 402 (2d Cir.1977), a flat confinement as punishment for an act constituting contempt does constitute such a conviction, and cannot lawfully be imposed for the same act for which punishment has previously been imposed in a criminal prosecution. See Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); Ex parte Brown, 574 S.W.2d 618 (Tex.Civ.App. — Waco 1978, no writ); Solender, Family Law: Parent and Child, 34 SW. L.J. 176 (1980).1
1 Early cases had held to the contrary. See Ex parte Winfree, 153 Tex. 12, 263 S.W.2d 154 (1953); Ex parte Allison, 99 Tex. 455, 90 S.W. 870 (1906).
******
Ex parte Englutt, 619 S.W.2d at 282 (Tex. App. — Texarkana 1981, no writ).
*823The majority has chosen to disregard Menna, supra, and refuses to follow Ex parte Brown, supra, and Ex parte En-glutt, supra.
The majority concedes that Ex parte En-glutt, supra, and Ex parte Brown, supra, hold that double jeopardy principles bar a contempt conviction after the State has already prosecuted the respondent and obtained a conviction for the same conduct. However, the majority asserts that the reverse sequence of a criminal contempt conviction preceding a State criminal prosecution for the same conduct is somehow different. It describes the difference by simply asserting that such a situation would undesirably result in the possible undermining of the enforcement of criminal laws and contempt actions. While this concern is recognized, we cannot ignore the undesirable results created by the erosion of valuable double jeopardy constitutional protections.
The majority seems to view the application of the double jeopardy constitutional protections here as an impermissible waiver by private litigants of the State’s privilege to punish for criminal violations. We view the application of these constitutional protections as they were originally intended, to protect an accused from multiple punishment for the same offense.
The majority opinion correctly asserts the right of two distinct sovereigns to prosecute for the same conduct, but fails to define the two sovereigns it alludes to. Certainly, the State District Judge that imposed the original punishment for criminal contempt derived his authority from the State of Texas. The State District Judge that would impose punishment in the event of a subsequent conviction for attempted capital murder would likewise derive his authority from the State of Texas. It must be conceded therefore, that all State District judges of this State serve one sovereign. Further, if the argument is directed at the instigators of the court action, it likewise cannot be seriously contended that private litigants and the State of Texas are two distinct sovereigns.
Certainly, in the case before us, it would have been preferable for the State to pursue the capital murder charge first.2 However, this is not the issue before us. We are only called upon to determine whether the principles of double jeopardy would be violated by further prosecution for the same offense. If so, with or without reluctance, this constitutional protection must be upheld. Appellate judges must be immune to criticism for upholding the Constitution from those who would classify constitutional provisions as “technicalities.” If we do not uphold the Constitution today, there may not be a Constitution to uphold tomorrow.
The majority finally simply declines to follow Englutt, supra and Brown, supra, because, allegedly, the two Texas Courts of Appeals “palpably” misread Menna, supra. If this is true, then eight Texas justices, including two chief justices from two Texas Courts of Appeals and all the justices of the highest court of New York must have “palpably” misread Menna, supra.
The majority also relies too narrowly on Blockburger v. United States, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309, and its proclaimed rule:
The applicable rule is that when the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.
The majority asserts that because each of the two offenses involved here contains a different element, they cannot be the same offense for double jeopardy purposes. In so doing, they completely ignore subsequent United States Supreme Court decisions which have recognized that “the Blockburger test is not the only standard *824for determining whether successive prosecutions impermissibly involve the same offense.” Brown v. Ohio, 432 U.S. at 166, n. 6, 97 S.Ct. at 2226, n. 6. Even where the elements are sufficiently different to permit consecutive sentences, “successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first.” Id. at 166-67, n. 6, 97 S.Ct. at 2225-2226, n. 6; citing Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) and In re Nielson, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889).
The majority likewise ignores the treatment of the Blockburger rule by the Texas Court of Criminal Appeals:
Blockburger being but a rule of statutory construction, the “other double jeopardy matters” alluded to in McWilliams [Ex parte McWilliams, 634 S.W.2d 815 (Tex.Crim.App.1982) ] — “additional protection offered by Ashe [Ashe v. Swenson, 397 U.S. 436, 453-454, 90 S.Ct. 1189, [1199-1200] 25 L.Ed.2d 469 (1970)] and Nielson” [In re Nielson, 131 U.S. 176, 188, 9 S.Ct. 672, 676, 33 L.Ed. 118 (1889) ] — may become very pertinent in a given case. Illinois v. Vitale, supra, 447 U.S. at 420, 100 S.Ct. at 2267; see, e.g., Ex parte Rogers, 632 S.W.2d 748 (Tex.Crim.App.1982); Ex parte McWilliams, supra, at 836 (Clinton, J., dissenting).
******
[T]o say that [the Texas Court of Criminal Appeals] correctly adopted Blockbur-ger as the sole test for determining jeopardy where an act or transaction violates two separate and distinct statutes is to ignore a whole body of jeopardy law to the contrary.
May v. State, 726 S.W.2d 573, 575, 577 (Tex.Crim.App.1987).
In May, supra, the Texas Court of Criminal Appeals held that the double jeopardy provisions apply to protect an accused from being tried for driving while intoxicated after being tried for involuntary manslaughter involving the same incident.
In Ex parte Peterson, 738 S.W.2d 688 (Tex.Crim.App.1987) the Texas Court of Criminal Appeals held that double jeopardy applies to protect an accused from being tried for involuntary manslaughter after pleading guilty to driving while intoxicated involving the same incident. Recognizing that under a strict application of Blockbur-ger, the double jeopardy claim would have to be rejected, the court refused to follow Blockburger, and followed the “whole body of jeopardy law to the contrary.” May, supra at 577.
In the case at bar, applicant pled guilty to and was convicted of DWI, after which he was charged with the offense of involuntary manslaughter. Each offense may require proof of a fact the other does not, to wit: involuntary manslaughter, recklessness of defendant causing death of an individual; DWI, operating a motor vehicle upon a public roadway while under the influence. See May, supra. In the abstract, then the two offenses are distinct and separate. We now turn our attention to the record at hand and compare the offenses as viewed in the context of this particular case.
******
... Given the record before us, it is clear that the State intends to relitigate the issue of driving while intoxicated. This it cannot do. May v. State, supra. It is clear from the record that the State, at least under the present indictment, will find it necessary to prove that appellant was driving in an intoxicated condition or to rely on conduct necessarily involving that conviction. Because appellant has already been convicted for conduct that is here shown to be a necessary element of the more serious crime for which he has been charged, his claim of double jeopardy is substantial under Vitale [Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980)] and Brown [Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) ]. See alse [sic] Harris [v. State *825of Oklahoma] 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977). (Emphasis added).
Ex parte Peterson, supra at 691.
Considering the record before us, it is clear that in order for the State to prove the attempted capital murder charge, it must relitigate the same conduct of appellant for which he has already been convicted and punished. This is not permissible under the present state of law.
Finally, the State before this Court misplaces its reliance exclusively on the antiquated cases of Ex parte Allison, 99 Tex. 455, 90 S.W. 870, 871 (1906) and Ex parte Looper, 61 Tex.Crim. 129, 134 S.W. 345, 346 (1911). However, it is noteworthy that the majority opinion here justifiably finds no support from these cases.3
Allison, supra, although making gratuitous remarks about the double jeopardy question, dealth simply with the issue of whether a state statute permitting enjoining of the use of property for gambling was valid.
Looper, supra, which relied entirely on Allison, supra, did not involve a prior con-victíon with confinement as punishment, but merely involved a fine, which, is not described as either coercive or punitive in the opinion. In the case before us, it is undisputed that the original contempt conviction was a criminal conviction and that incarceration was part of the punishment.
The case before us clearly requires the application of Menna, supra, Ex Parte Brown, supra and Ex parte Englutt, supra. As in Menna, supra, appellant had already been punished for the same offense with a 30 day confinement as a result of a criminal contempt conviction. As suggested in Menna, supra, and as held in Ex Parte Brown, supra, the double jeopardy prohibitions preclude additional punishment for the same conduct in a second criminal proceeding under these circumstances. No valid reason exists to ignore sound double jeopardy law based on declared modem double jeopardy principles.4 Further prosecution under the indictment before us would be in violation of the double jeopardy provisions of both the Texas and United States Constitutions.
The judgment should be reversed and the charge dismissed.
. The majority dismisses this action of the New York Court of Appeals as being insignificant to the issue in question. A double jeopardy plea cannot receive a more overwhelming endorsement than a per curiam unanimous declaration that "the double jeopardy clause precludes the prosecution of defendant on the charge to which he pleaded guilty." The New York Court’s failure to discuss the issue further, in addition to the concurrence of the prosecution, shows that the court and the prosecution considered the court's action axiomatic. We fail to see how that court’s action is insignificant, considering that the charge to which the defendant plead guilty, and which the New York Court found would preclude further prosecution, was a contempt charge as in the case before us.
Because in Menna, supra, the United States Supreme Court avoided the double jeopardy question directly, the majority justifies criticism of all those who would place any reliance on the Menna double jeopardy suggestions. Those touched by this criticism would necessarily include the author and those concurring with this dissent, the unanimous courts of Ex parte Brown, supra, and Ex parte Englutt, supra, and the unanimous New York Court of Appeals together with the New York prosecutors. Nevertheless, it is impossible to ignore the clear instructions of the Supreme Court to the New York court on remand as to the identical issue before us. These instructions were so obvious to the New York court on remand, that the court acted swiftly, unanimously, and without discussion to uphold the double jeopardy contention. If the cotut to which the instructions were directed understood and adhered to the Supreme Court message, We see no reason why other courts should not do the same.
. The State contends that they were unaware of the contempt proceeding which took place in the same court that would eventually hear the attempted capital murder. Considering the size of the community of Seguin, Texas and the limited number of attempted capital murder cases that take place in such a small community, this contention is difficult to perceive.
. Although the dissent refuses to follow Ex parte Englutt, 619 S.W.2d 279, 282 (Tex.App. — Texar-kana 1981, no writ) they recognize and embrace the new "era of enlightened constitutional interpretation and expanded constitutional protections,” which led the court in Englutt, supra and apparently all the court here to place no reliance on Ex parte Allison, supra.
. Without citing authority, the concurring majority opinion justifies multiple punishment where the initial punishment is administered at the instigation of private litigants. It argues that such punishment is not for an "offense” within the meaning of the double jeopardy clauses because it was not administered as a result of litigation injecting the name of the State. We are unable to find any authority which distinguishes between criminal contempt convictions depending on who instigates them. In Menna, supra, the court said, ‘In light of the flat 30 day sentence imposed, the earlier conviction was a criminal conviction.”
Further, it must be conceded that the facts of the case before us and Menna, supra, are identical in that both defendants were made subject to court orders of State trial judges; both defendants were charged with violating the court orders of the State trial judges; both defendants were convicted of criminal contempt for violating the State trial judges’ orders; both defendants were incarcerated for 30 days as punishment for criminal contempt; both defendants were subsequently indicted for the same offense for which both had already been punished; and both defendants preserved the error properly with writs of habeas corpus, which were denied.
There can also be no disagreement that incarceration for 30 days is punishment no matter who instigates it, that the complainants in the contempt action were the same complainants in the attempted murder indictment, that only one sovereign was herein involved, and that the double jeopardy provisions were intended to protect the individual accused from multiple punishment for the same offense. This being the case, it appears inconsistent to hold that no such protection is available to an accused, if ingenious vehicles can be found to punish him several times for the same offense without injecting the name of the State directly.