¶1dissenting and concurring.
¶2I respectfully dissent from the holding of the majority that Habeas Corpus is a proper vehicle for conferring jurisdiction of this matter upon the Court of Appeals where the cause has not yet been tried and resolved in the trial court. I base this reasoning upon Ex Parte Ruby, 403 S.W.2d 129 (Tex.Cr.App.1966) wherein the court of Criminal Appeals held:
“The writ of habeas corpus is not available to secure a judicial determination of any question which, even if determined in the prisoner’s favor, could not result in his immediate discharge.”
¶3The same fact situation is presented here since even if petitioner is released from prosecution below in this cause he will remain in custody because of his conviction in the companion cause.
¶4I read Ruby, supra in its most narrow terms to define “immediate discharge” to mean total freedom from all restraint. Apparently the majority construes “immediate discharge” to mean something less.
¶5Ex Parte Ruby, supra has not been overruled to this day. If it is to be overruled, or its plain language softened, then this should be done by the Court of Criminal Appeals and not by an intermediate level court.
¶6I would deny the petitioner leave to be heard on the writ and leave him to the normal appeal process if he is convicted below. However, this Court having decided to consider this matter on its merits, I now join the majority in holding that a second trial for the one act committed would constitute double jeopardy.