¶1concurring.
¶2In Elizalde v. State, 507 S.W.2d 749 (Tex.Cr.App.1974), the State, as in the instant case, failed to sustain its burden of proof as to a prior conviction alleged for enhancement of punishment. The trial court nevertheless assessed punishment under Article 62, V.A.P.C., 1925. On appeal this court *515remanded to the trial court for the assessment of punishment under the range of punishment provided for the primary offense of burglary with intent to commit theft (Article 1397, V.A.P.C., 1925). There an unanimous court stated: “In assessing the punishment, the court shall consider the record made at the trial of the case, omitting the evidence which we have held inadmissible.” The State was thus not permitted a second bite at the apple. Today we reach the same result.
¶3Regrettably in Bullard v. State, 533 S.W.2d 812 (Tex.Cr.App.1976), the majority, over this writer’s dissent, overruled Elizaldeto the extent of any conflict. In Bullardthe majority stated:
“Inasmuch as the State’s proof of prior convictions is insufficient, the proper remedy is to set aside the life sentence and remand the case to the trial court for a new hearing or trial on the issue of punishment to be assessed by the court, at which time the State may again attempt to prove the prior convictions for the purpose of enhancing punishment
¶4Of course this was wrong. Article I, § 19, Texas Constitution, and the Due Process Clause of the Fourteenth Amendment and the double jeopardy provisions of the federal and state Constitutions were in place at the time. We shouldn’t have needed 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), or Bullard v. Estelle, 665 F.2d 1347 (5th Cir. 1982), to see that double jeopardy, due process and fundamental fairness were all involved.
¶5I applaud today’s overruling of Bullard v. State, supra, and its progeny. Elizaldeis again alive and well.
¶6I concur.
¶7concurring.
¶8I concur in the decision to overrule Porier v. State, 591 S.W.2d 482, for the reasons stated in the opinion concurring in part and dissenting in part in that case. I write today to state that retrial o.f the punishment issue would violate not only the principles upon which Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15, were decided, as held by the majority, but also would deny appellant due course of law under Art. 1, Sec. 19, Texas Constitution. Today’s decision should be grounded on both federal and state constitutional principles.