¶1dissenting.
¶2Assuming, as we must under Ex parte Rathmell, 717 S.W.2d 33 (Tex.Crim.App. 1986), that the State may successively prosecute Appellant for the nearly contemporaneous capital murders of two individuals, the question presented in this case is whether it may put him at risk of a death sentence in the second prosecution after a jury finding in the first that it was not probable he “would commit criminal acts of violence that would constitute a continuing threat to society[.]” V.A.C.C.P., Art. 37.-071(b)(2). Under ordinary principles of collateral estoppel, as embodied in the Double Jeopardy Clause of the Fifth Amendment, the issue of Appellant’s future dangerousness may not be litigated at his second trial if it was the same issue resolved in his favor at the first. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
¶3Plainly, the issue of an individual’s probability to commit criminal acts of violence is a different issue every time it arises. If it were not, a person once found unlikely to pose a continuing threat could never thére-after be found likely to do so, no matter how substantially the probability might in fact have been altered by intervening events and circumstances. But because special issue number two is necessarily an inquiry concerning probability at the time of trial, it follows that trials occurring at different times present somewhat different questions under this special issue. Accordingly, the State is not, in my opinion, categorically estopped to litigate the issue of Appellant’s future dangerousness at his second trial or at a subsequent trial.
¶4Nevertheless, it seems to me that Appellant is undoubtedly entitled to the benefit of any earlier finding in his favor on future dangerousness, and that the State may not seek to prove at his second trial anything which is inconsistent with such a finding. In other words, I think it must be conclusively presumed at Appellant’s second trial that he probably did not pose a continuing threat to society when the issue was submitted for jury consideration at his first trial. An affirmative finding of future dangerousness at his second trial should not be permissible, therefore, unless events or circumstances transpiring after his first trial have actually changed in the interim the probability of his future dangerousness.
¶5A number of procedural consequences follow from this. First, the trial judge must grant a motion for instructed verdict on the second issue if the State produces no evidence of events or circumstances occurring after the first trial which are relevant to that issue. If such events or circumstances have occurred, I am inclined to *604think that the State may rely both on those events and on any other events and circumstances which were actually available for jury consideration at the first trial. In any case, because the State is entitled to rely at the second trial upon the same proof it offered at Appellant’s first trial, so long as it can also produce evidence of subsequent events or circumstances relevant to the question of future dangerousness, the rationality of jury decisionmaking cannot reasonably be assured without an instruction to the effect that Appellant was not likely to be a continuing threat to society at the conclusion of his first trial. Indeed, a review of evidentiary sufficiency on appeal is not really possible without such an instruction. Cf. Boozer v. State, 717 S.W.2d 608 (Tex.Crim.App.1984). Thus, while I agree that the benefit of Appellant’s earlier victory may not be taken from him in a subsequent trial, I think that a rule which would entirely foreclose future litigation of his dangerousness throws out the baby with the bath water.
¶6The question in this case is difficult because it calls for an exceptional application of unexceptional rules. It is just the sort of case which is widely supposed to make bad law, and in spite of the Court’s best efforts to solve the problem fairly, it has done just that in this case. The plurality opinion, in giving Appellant the benefit of an earlier finding to which he is undoubtedly entitled, has overshot the mark and held by necessary implication that he may not be found dangerous enough for the death penalty when the issue next arises even if he meantime proves himself to be so, as for example by murdering two prison guards while awaiting trial. Because I am certain that special issue number two calls for an up-to-date judgment in each case about the probability of future violent conduct, I cannot join an opinion which would effectively chain such a judgment to the past.
¶7On the other hand, our Presiding Judge and those who join his dissent, contend for a rule which would surely deprive Appellant of his earlier success for no better reason than that circumstances of the second offense are potentially different than those of the first. In my view, this analysis has nothing to do with the question presented. Circumstances of the second offense were, or could have been, taken into account by the jury at Appellant’s first trial anyway. But, even if such circumstances were excludable at his first trial under some rule of evidence, it would still be clear to me that the issue of future dangerousness as of that time, as opposed to the evidence offered to prove it, was finally and conclusively resolved in Appellant’s favor. Accordingly, whatever evidence might be offered at Appellant’s next capital murder trial, it would certainly violate the Double Jeopardy Clause to there authorize in any manner a finding that Appellant was probably a future threat to society at the time of his first trial. Because it seems to me that our Presiding Judge’s dissenting opinion would permit such a result, I am unable to join it either.
¶8Finally, resolution of this problem in the present context is complicated somewhat by the prosecutor’s acknowledgment at a pretrial hearing that “[t]he evidence that we would introduce in the [second] trial ... would be in all material respects exactly the same that the jury heard for the [first trial.]” Were I to understand this comment as a commitment to refrain from offering any evidence at the penalty phase of trial not actually offered at Appellant’s earlier trial, including any evidence of intervening events relevant to the probability of his future dangerousness, and were I also to believe such a commitment sufficient to bar the introduction over objection of any such additional evidence at his second trial, I might be moved to forbid further litigation of future dangerousness by prospectively directing a negative answer to the second special punishment, conditioned of course on the fact of Appellant’s conviction. But I do not understand it this way. Rather, the prosecutor has, in my view, frankly admitted only that both killings, because they were contemporaneous, must necessarily be established by proof of essentially the same facts, not that he intends gratuitously to withhold proof of as yet unknown future events or circumstances *605affecting the question of Appellant’s dangerousness.
¶9For these reasons I would reverse the judgment of the Court of Appeals.