¶1CONCURRING OPINION ON STATE’S MOTION FOR REHEARING ON STATE’S PETITION FOR DISCRETIONARY REVIEW
¶2concurring.
¶3I join the opinion of the Court, but write in response to Judge Baird’s dissenting opinion.
¶4In Sterling v. State, 800 S.W.2d 513 (Tex.Crim.App.1990), within three weeks of being sworn in, Judge Baird voted to grant the Appellant’s Motion for Rehearing even *949though he had not participated in the original decision handed down before he joined the Court. In the capital murder case of County v. State, 812 S.W.2d 303 (Tex.Crim.App.1989), in the Opinion on Rehearing, Judge Baird concurred in the result — a result different from that reached on original submission before he joined the Court. In Miller v. State, 815 S.W.2d 582 (Tex.Crim.App.1991), in the Opinion on Rehearing, Judge Baird joined the majority in reaching a conclusion different from that reached on original submission before he joined the Court. And in Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App.1991) Judge Baird joined the Opinion on Rehearing, again with a result contrary to the result in the opinion on original submission handed down before he joined the Court. In County, Miller, and Montgomery, the opinion on rehearing not only changed the result of the opinion on original submission, but also reversed the conviction. I do not criticize Judge Baird for taking part in these cases; this Court has no rule or policy prohibiting such participation. I simply point out that when Judge Baird joined the Court, he had no objection to the practice which he condemns today.
¶5Regarding the substance of his dissent, Judge Baird is right about one thing: the belief that might-makes-right is dangerous in a society governed by the rule of law. But in this case, his criticism would be more properly directed toward the former majority than toward the current majority. In the opinion on original submission, the former majority “torturfed] our own statutory scheme governing pretrial determinations,” and changed the law “without notice, without reason, without conscience, and without forethought.” Had the former majority adhered to the principles of judicial conservatism espoused in Judge Baird’s dissent, we would not today be in the position of correcting the error then committed.
¶6DISSENTING OPINION ON STATE’S MOTION FOB REHEARING ON STATE’S PETITION FOR DISCRETIONARY REVIEW
¶7dissenting.
¶8On November 30,1994, we delivered a well reasoned opinion in this case in response to the State’s petition for discretionary review. At that time, four members of this Court dissented. On January 1, 1995, two judges left the Court and were replaced, by two newly elected judges. On March 29, 1995, the Court, with the newly elected judges participating, granted the State’s motion for rehearing. Today, the majority adopts the dissenting opinion and reverses our opinion on original submission.
¶9I.
¶10The State fails to offer any intervening authorities in its motion for rehearing nor does the State advance a new or different argument. Instead, the motion for rehearing contends nothing more than that we “erred” and relies on the same argument and authorities we rejected on original submission.
¶11In truth, there is no principled reason for the majority’s action. The only difference today from November 30,1994, is the composition of the Court. Many years ago, Alfred North Whitehead asked and answered the following rhetorical question:
What is morality in any given time or place? It is what the majority then and there happen to • like, and immorality is what they dislike.
¶12Dialogues of Alfred North Whitehead (1953) prologue. This reasoning applies to the majority opinion in this case. The majority has taken the position that might-makes-right and that any result can be reached without any thought or reason simply because the majority has the power to command it. This position is dangerous in a society governed by the rule of law. In light of the majority’s action today, the law is subject to change without notice, without reason, without conscience and without forethought so long as it is the will of the majority.
¶13II.
¶14What is also perplexing about this case is the State’s willingness to relinquish a right to appeal. A recitation of the procedural facts will explain. In the instant case the trial judge determined, prior to trial, that appellant’s allegedly false statements were not material and quashed that portion of the indictment. Because the trial judge’s adverse ruling was made pursuant to a motion to quash, the State had the right to appeal. Tex.Code Crim.Proc.Ann. art. 44.01.
¶15Everyone agrees that the question of whether a statement is material is a question of law. And questions of law must initially be resolved by the trial judge. However, in light of the majority’s actions today, trial judges will no longer have the authority to answer such questions prior to trial; such questions must now be answered during trial at a time when jeopardy has attached and the State has no right to appeal. Consequently, the majority, at the State’s request, *951rescinds an appellate remedy previously available to the State. In short, the State voluntarily relinquishes its right to appeal adverse rulings on the issue of materiality.
¶16For these reasons, I dissent to the majority’s reversal of our well reasoned opinion on original submission for no reason other than its power to do so.
¶17. In a supplemental brief, the State directs us to United States v. Gaudin, — U.S.-, 115 S.Ct. 2310, 132 L.Ed.2d 444, but Gaudinhas very little to do with the issue at hand, namely whether the issue of materiality may be contested prior to trial. Instead, Gaudindealt with whether materiality was an element of a federal offense and, therefore, required to be submitted to the jury upon completion of the trial.
¶18The GaudinCourt held materiality was a mixed question of fact and law and an element which was required to be submitted to the jury under the Fifth and Sixth Amendments of the U.S. Constitution. Nevertheless, the Supreme Court noted that when a defendant "demurrers to the indictment" challenging the issue of materiality, the challenge raises a question of law to be resolved by the trial judge. That is precisely what occurred in the instant case. The trial judge determined as a matter of law, and the Court of Appeals agreed, the statements were not material. Therefore, the State could not proceed with its prosecution for aggravated perjury under Tex.Penal Code Ann. § 37.02 but was free to pursue the offense of perjury under Tex.Penal Code Ann. § 37.01. With this said, I join Judge Maloney's Dissenting Opinion.
¶19. In her concurrence, Judge Keller notes that I participated in the rehearing of three cases shortly after I came to the Court. However, her recount of those cases is less than complete. For example, in County v. State, 812 S.W.2d 303 (Tex.Cr.App.1989), rehearing was granted in 1989, when I was not a member of this Court. While Judge Keller is correct that on rehearing the Court changed the result of the opinion on original submission and reversed the conviction, that is not the whole story. Before the Court granted rehearing, the Court abated the appeal and remanded the case to the trial court to correct inaccuracies in the statement of facts. Id. at 315. Following the abatement, we recognized the record on original submission was flawed with numerous inaccuracies. As Judge McCormick noted in his concurring opinion: "How such inaccuracies in the record which directly related to the main issue presented could have been so glaring and go unnoticed for so long is, indeed, appalling. Today, we reverse appellant’s conviction two years after it should have been done.” Id.,812 S.W.2d at 317. (Emphasis added.) I cannot agree with Judge Keller that we should not change our position when we learn the record on which we based that position is inaccurate.
¶20Moreover, Judge Keller misses the point of my dissent. In each of the three cases cited by her, the complaining party advanced reasons and arguments for rehearing and the Court, on rehearing, labored to offer the bench and bar thorough and complete opinions addressing those reasons and arguments. As noted above, today’s majority opinion is nothing more than an adoption of the dissent when neither the State Prosecuting Attorney nor the new majority provides any reason, argument or authority for doing so. If Judge Keller believes we erred on original submission, she should bless the bench and bar with an opinion analyzing how we erred rather than espousing on "judicial conservatism."
¶21. Tex.Code Crim.Proc.Ann. art. 44.01 provides the State "is entitled to appeal an order of a court ... if the order (1) dismisses an indictment, information, or complaint or any portion of an indictment, information or complaint....”
¶22. The motion for rehearing was filed by the Honorable Robert Huttash, State Prosecuting Attorney. Jim James, the special prosecutor appointed to replace the disqualified district attorney of Washington County, did not file a motion for rehearing.
¶23DISSENTING OPINION ON STATE’S MOTION FOR REHEARING
¶24dissenting.
¶25On original submission the Court was presented with the issue of “whether a defendant may raise a pretrial challenge to the State’s evidence of materiality in an aggravated perjury indictment where the materiality allegation in the indictment is valid on its face, thus requiring the State to prove materiality prior to a trial on the merits.” State v. Rosenbaum, 910 S.W.2d 934 (Tex.Crim.App.1994) (opinion on original submission). We held that because materiality is a question of law for the trial court rather than the jury, the trial court may make a ruling on the issue pretrial. We also held that the trial court has authority to make such a ruling pretrial under Tex.Code Crim.Proc.Ann. art. 28.01(2) and 27.02(8).
¶26The State filed a motion for rehearing contesting our holding that the trial court has authority to make a pretrial determination of materiality. In a supplemental brief on rehearing, the State directs this Court’s attention to the recent United States Supreme Court opinion, United States v. Gaudin, - U.S. -, 115 S.Ct. 2810, 132 L.Ed.2d 444 (June 19,1995). In Gaudin, the question presented to the Court was “whether it was constitutional for the trial judge to refuse to submit the question of ‘materiality’ to the jury.” Gaudin, — U.S. at -, 115 S.Ct. at 2312, 132 L.Ed.2d 444. The government conceded that under the controlling statutory provision, “materiality” was an element of the offense that the government was required to prove. The Supreme Court held:
The Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged; one of the elements in the present case is materiality; respondent therefore had a right to have the jury decide materiality.
¶27Id.at-, 115 S.Ct. at 2314.
¶28While the constitutionality of the trial court’s review of the materiality question was not at issue in this case on original submission, our holding nevertheless turned in part upon the premise that materiality is a question of law for the trial court to decide as opposed to an issue for the jury. In light of Gaudin ⅛ holding, this premise can no longer stand. Indeed, this premise was based in part upon one of this Court’s cases which relied solely upon a Supreme Court ease that is expressly repudiated in Gaudin. See Yarbrough v. State, 617 S.W.2d 221, 228 (Tex.Crim.App.1981) (relying on Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692 (1929)); see also Gaudin, supra(repudiating reasoning in Sinclair). Our reasoning on original submission that the trial court can decide the materiality issue pretrial because materiality is an issue that is never submitted for consideration by the jury, is no longer valid. I would nevertheless continue to hold that the trial court had authority to hold the pretrial hearing and make the legal determination with respect to *952appellant’s Motion for Pretrial Determination of Materiality, pursuant to articles 28.01(2) and 27.02(8) Tex.Code Crim.Proc.Ann.
¶29For these reasons, I would affirm the Court of Appeals.
¶30. I note that under Gaudin, if the trial court determines that the statement at issue was material as a matter of law, then the issue must be submitted to the jury to decide. So long as perjury is defined in the penal code as including materiality as an element, then the trial court can no longer instruct the jury that it must find the statement material.