Ex Parte Harris

600 S.W.2d 791

Opinions

OPINION

W. C. DAVIS, Judge.

On July 26,1978, petitioner was convicted for the offense of aggravated robbery. Punishment was assessed by the trial court at confinement for thirty-two years. Petitioner now contends that he is entitled to relief because the first trial of his case resulted in a reversal because the evidence was held to be insufficient to support the conviction and he was again convicted in the present case for the same offense.¹ We agree that he is entitled to relief.

In Harris v. State, 562 S.W.2d 463 (Tex.Cr.App.1978), this Court reversed appellant’s conviction for aggravated robbery, holding that the evidence was insufficient to sustain the conviction. He now attacks the second conviction because of the recent rulings of the Supreme Court of the United States in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene N. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.ED.2d 15 (1978), which held that a second trial is barred by double jeopardy once a reviewing court determines that there was insufficient evidence to support the verdict.

Since those decisions were handed down, this Court has held the Burks and Greene cases to be retroactive. See Ex parte Mixon, Tex.Cr.App., 583 S.W.2d 378 (1979), and Ex parte Reynolds, Tex.Cr.App., 588 S.W.2d 900 (1979).

In view of these holdings, the relief sought should be granted and this is tantamount to an acquittal. See Ex parte Dixon, Tex.Cr.App., 583 S.W.2d 793 (1979); Ex parte Mixon, supra.

It is ordered that the judgment of conviction in cause # F-76-5503-PM in the 194th District Court of Dallas County, Texas, is set aside and is reformed to show an acquittal, and petitioner is discharged from confinement in the Texas Department of Corrections under the sentence in this cause.

1 . Petitioner has filed both an application for a writ of habeas corpus and an application for a writ of mandamus. We will treat both together as an application for a writ of habeas corpus.