dissenting.
Relying on this Court’s prior opinion in Carter v. State, 676 S.W.2d 353 ((Tex.Cr.App.1984), the majority takes another giant step in the wrong direction and further compounds the erroneous expansion of Burks-Greene-Bullington1 that began with Carter. Where the majority goes astray, as it did with Carter, is in comparing *574the proof of “habitual offender status” with failure to prove guilt. A reading of Bullington together with Burks, Greene, Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); and Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), convinces me that the majority has totally misconstrued the requirements of the Double Jeopardy Clause of the United States Constitution as well as misapplied the holdings of these cases.
The doctrine of “implicit acquittal” of Green, supra, which the United States Supreme Court applied to Burks-Greene-Bullington cannot be logically twisted to arrive at the tortured result the Court reaches today or that it reached in Carter. In the instant case, applicant initially was found guilty of theft, and after pleading true to the two enhancement allegations, was sentenced to life imprisonment. Thereafter, it was apparently discovered that one of the prior convictions alleged in the indictment was based on a fundamentally defective charging instrument.
A new indictment was returned which alleged the same primary offense, the previously alleged prior conviction which was valid, and a different prior conviction in place of the one which had been based on the faulty charging instrument. Applicant was again assessed a life sentence following a determination of guilt on the primary offense and a finding of true on the enhancement paragraphs.
The majority now concludes that such substitution of a different prior conviction is prohibited by the Double Jeopardy provisions of both the United States and Texas Constitutions. The State, upon retrial, did not. attempt to muster additional evidence to prove what had been alleged in the first trial. Further, the fact that the prior conviction relied upon in the first trial was based on a void indictment is not an implied acquittal under the Double Jeopardy provisions. This Court has on numerous occasions held that a retrial of a defendant whose conviction was based on a fundamentally defective indictment is not prohibited. The State in such instances is warranted in seeking a new, valid indictment and again putting such defendant to trial for the same conduct, and any new conviction which obtains is riot subject to a Double Jeopardy attack. So why make an exception in this instance?
No matter how broadly one reads Burks-Greene-Bullington, it cannot be concluded that they hold any more than this: When the prosecution is unsuccessful in proving facts it has alleged, then the prosecution is prohibited from thereaftér attempting to prove the same facts. This Court was incorrect when it extended, the holdings of Cooper v. State, 631 S.W.2d 508 (Tex.Cr.App.1982), and Ex parte Augusta, 639 S.W.2d 481 (Tex.Cr.App.1982), to apply to the facts of Carter. Carter should be overruled.
Where the Court has erred is that it compares the “status of habitual offender” to an allegation of an offense. It was held by this court that “habitual offender” was not an offense. Ex parte Burch, 160 Tex. Cr.R. 83, 267 S.W.2d 560 (1954). To equate the legal determination of habitual offender status to the finding of guilt for an offense is to compare apples to oranges. Both the Fifth Amendment to the United States Constitution and Article I, Section 14, speak to double jeopardy in terms of the same offense. Even when it extended Burks-Greene-Bullington, the Supreme Court was very careful to point out that it was carving a very narrow exception:
“It is well established that the Double Jeopardy Clause forbids the retrial of a defendant who has been acquitted of the crime charged. [Citations omitted.] This Court, however, has resisted attempts to extend that principle to sentencing. The imposition of a particular sentence usually is not regarded as an ‘acquittal’ of any more severe sentence that could have been imposed. The Court generally has concluded, therefore, *575that the Double Jeopardy Clause imposes no absolute prohibition against the imposition of a harsher sentence at retrial after a defendant has succeeded in having his original conviction set aside. [Citations omitted.]” (Emphasis in original.) Bullington, supra, 101 S.Ct. at 1857-1858.
Would it not be logical to also conclude that imposition of an equal sentence upon retrial is permissible?
Because the majority goes far beyond the requirements of either the Texas or United States Constitution, I must dissent not only to the granting of relief to applicant in the instant case, but also to its failure to reexamine Carter and overrule it.
W.C. DAVIS and CAMPBELL, JJ., join in this dissent.. 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); Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).