The State of Texas appeals a determination by the district court,
The State asserts that the double jeopardy clause of the Constitution does not apply to enhancement proceedings. Alternatively, the State asserts that even if the double jeopardy clause bars a second enhancement proceeding when there has been a finding of insufficient evidence at the first proceeding, the United States Supreme Court decisions establishing that principle should not be made retroactive to invalidate Bullard’s second enhancement proceeding and resulting life sentence which occurred before those decisions were rendered.
We hold that the double jeopardy clause bars a second enhancement proceeding when the evidence at the first enhancement proceeding was insufficient to establish that the defendant committed one or more of the prior offenses necessary for enhancement, and that this principle must be retroactively applied to Bullard’s petition for a writ of habeas corpus.
I. THE FACTS
The State of Texas has custody of Bul-lard pursuant to a conviction, in Texas district court, for theft of property over the value of two hundred dollars but less than ten thousand dollars, a third degree felony. The indictment for theft also alleged, for enhancement of sentence purposes, two pri- or felony convictions: a 1970 conviction for burglary and a 1962 conviction for passing a forged instrument.
Bullard was found guilty by a jury of the offense alleged in the indictment. Pursuant to his written election, the jury was excused and the trial judge, after the state *1350 presented evidence 3 that Bullard was the same person who had committed the two prior offenses alleged in the indictment, assessed punishment at imprisonment for life.
Bullard pursued a direct appeal of his conviction and on March 3, 1976, the Texas Court of Criminal Appeals upheld the conviction,
Bullard v. State,
Bullard subsequently exhausted his state remedies by filing several post-conviction applications for a writ of habeas corpus under the Texas statutes. He then filed a federal habeas corpus petition, alleging six grounds of error. The district court rejected all grounds of attack except one: that his second enhancement proceeding violated the double jeopardy clause 5 of the United States Constitution. The court ordered Bullard discharged from custody unless retried or resentenced, in compliance with state law, within ninety days. The State appealed, challenging both the applicability of the double jeopardy clause to the enhancement proceedings of a trial and the retroactivity of controlling Supreme Court rulings to Bullard’s conviction which occurred prior to those rulings. We address each argument in turn.
II. APPLICABILITY OF THE DOUBLE JEOPARDY CLAUSE TO ENHANCEMENT PROCEEDINGS
A. Purposes of the Double Jeopardy Clause
The double jeopardy clause of the fifth amendment which provides that, in criminal proceedings, no person shall be placed twice in jeopardy for the same offense, though *1351 seemingly clear in its language, has been difficult to apply to discrete fact situations when a claim of double jeopardy is raised because the double jeopardy clause is a multifaceted provision which serves several distinct jurisprudential interests and values. These interests and values, delineated from jurisprudential literature and decisions of the United States Supreme Court,
[i]n ascending degrees of importance .. . are (1) an interest in finality ...; (2) an interest in avoiding double punishment which comes armed with a presumption in the defendant’s favor; and (3) an interest in nullification — vis., an interest in allowing the system to acquit against the evidence — which is absolute. These three interests are all loosely connected to the notion of ending litigation.... But they are conceptually distinct and should be separately addressed.
Westen and Drubel, Toward a General Theory of Double Jeopardy, 1978 Supreme Court Review, 81, 86 (1979) (hereafter Double Jeopardy■ Theory). Phrased another way, the double jeopardy clause implicates recognized values of:
(1) the integrity of jury verdicts of not guilty, (2) the lawful administration of justice, and (3) the interest in repose.
Westen, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 Mich.L.Rev. 1001, 1002 (1980) (hereafter Three Faces of Double Jeopardy).
Because there are several different and distinct values implicated, analysis of when a person is placed “twice” in jeopardy for the “same offense” has presented complex problems and has resulted in inconsistency and confusion in judicial rulings. 6 Additionally, there are myriad circumstances during the course of a criminal prosecution which may suggest that the defendant is being unconstitutionally subjected to double jeopardy.
[Although the state may firmly believe it can prove a defendant guilty if given another opportunity, it may not retry a defendant following a mistrial declared over his objection if the declaration was capable of being “manipulated ... to allow the prosecution an opportunity to strengthen its case;” [Illinois v. Somerville,410 U.S. 458 , 469,93 S.Ct. 1066 , 1073,35 L.Ed.2d 425 (1973),] nor following a declaration of any mistrial or the reversal of any conviction caused by deliberate prosecutorial harassment or overreaching; [see United States v. Dinitz,424 U.S. 600 , 611,96 S.Ct. 1075 , 1081,47 L.Ed.2d 267 (1976),] nor following a conviction for either exactly the same conduct; [see Waller v. Florida,397 U.S. 387 ,90 S.Ct. 1184 ,25 L.Ed.2d 435 (1970),] or nearly the same conduct; [see Brown v. Ohio,432 U.S. 161 ,97 S.Ct. 2221 ,53 L.Ed.2d 187 (1977),] .. . nor following a trial that ultimately terminates in a basic failure of proof. [See Burks v. United States,437 U.S. 1 ,98 S.Ct. 2141 ,57 L.Ed.2d 1 (1978).]
Three Faces of Double Jeopardy at 1037 (footnotes omitted).
The attempts to apply the appropriate values to numerous, seemingly unrelated .circumstances have created a body of law which, because of its complexity, must be carefully examined to define the values implicit in the double jeopardy clause and to identify the circumstances where those values are implicated. 7 This decisional law has additionally produced a plethora of legal literature in which attempts are made to explain why the clause is or is not applicable and to predict its application in future *1352 cases. 8 Unfortunately, neither in judicial decisions nor in legal literature are the complexities of the clause clarified and the inconsistencies reconciled so as to provide us with “explicit guidance” and a “bright line” analysis 9 to utilize in examining the question before us: whether a defendant may be subjected to a sentencing proceeding a second time in order to prove facts necessary to show habitual offender status when a reviewing court has determined that, in a prior sentencing proceeding, the evidence was insufficient to sustain the habitual offender status and sentence determined by the finder of fact. We must thus undertake a careful examination of the double jeopardy clause, the implicit values it seeks to protect and the circumstances in which it is applied in order to determine whether the interests protected by the double jeopardy clause are implicated in this enhancement proceeding and whether a second proceeding would offend any of these values or interests.
B. Implications of the Double Jeopardy Clause in Sentencing.
Bullard was convicted of theft, a third degree felony. That conviction is not under attack here. Rather, Bullard attacks his subjection to a second enhancement proceeding which may be characterized as a retrial of the factual issue whether his sentence should be enhanced because of prior convictions after an initial finding of insufficient facts to support habitual offender status. 10 Our analysis must focus on the question whether there are any values of the double jeopardy clause 11 implicated in this sentencing proceeding where Bullard’s first enhanced sentence was reversed for insufficient evidence.
Case law for many years indicated that the values 12 which undergird the double jeopardy clause were not often implicated in many circumstances where sentencing or resentencing occurred.
A defendant’s punishment [can] be increased if his initial sentence is invalid, if his initial conviction and sentence are vacated and he is reconvicted and resen-tenced, if the legislature has statutorily authorized the government to appeal the defendant’s sentence for such an increase, or if other limited conditions apply.
Note,
A Definition of Punishment for Implementing the Double Jeopardy Clause’s Multiple
— Punishment
Prohibition.
90 Yale L.J. 632, 638-39 (1981) (hereafter
Multiple Punishment).
A sentence was not often considered to have constitutional finality which would indicate that, on resentence, the defendant was being tried
twice, see Bozza v. United States,
First, the multiple-punishment doctrine requires that the sentencing court take full account of all separate punishments imposed for a single offense. Thus, if a criminal defendant has been reconvicted and resentenced after successfully challenging his first conviction, he must re *1353 ceive credit for the period of imprisonment served after the first trial... .
The second component of the doctrine prevents sentencing authorities from increasing the defendant’s punishment after he has begun to serve his sentence. The trial court may not lengthen the period of punishment, increase the amount of a fine, or substitute a “more severe” type of sanction for a “less severe” one....
Finally, the multiple-punishment doctrine prohibits the sentencing court from imposing a sanction not authorized by the legislature. Thus, if the legislature provides for alternative and exclusive punishments and the defendant has completely satisfied one of those penalties, the sentencing court may not require the defendant to suffer the alternative penalty. The court, in addition, may not impose sentence for more than one offense unless the legislature clearly intended to sanction the defendant’s conduct as a multiple offense.
Multiple Punishment at 636-640.
Bullard, however, correctly does not claim any double jeopardy violation because he has been subjected to multiple punishment. Instead he alleges that it is his subjection to a second proceeding, and of course the possible resulting finding of habitual offender status and increased sentence, after an appellate finding of insufficient evidence in the first proceeding, that violates his constitutional right. Bullard must somehow show that he has an interest protected by the double jeopardy clause, Le., a cognizable interest in finality in his first proceeding or an acquittal which occurred when the evidence was found to be insufficient.
Bullard’s task is, at first blush, made more difficult by the recent decision in
United States v. DiFrancesco,
The Court refused to invoke the double jeopardy clause. In doing so, it set forth several principles of the clause in relation to sentencing:
A. The Double Jeopardy Clause is not a complete barrier to an appeal by the prosecution in a criminal case. “[Wjhere a Government appeal presents no threat of successive prosecutions, the Double Jeopardy Clause is not offended.” United States v. Martin Linen Supply Co.,430 U.S. at 569-570 ,97 S.Ct., at 1353-1354 , 51 L.Ed2d 642. See also United States v. Wilson,420 U.S., at 342 ,95 S.Ct., at 1021 ,43 L.Ed.2d 232 ; United States v. Scott, supra.
B. The double jeopardy focus, thus, is not on the appeal but on the relief that is requested, and our task is to determine whether a criminal sentence, once pronounced, is to be accorded constitutional finality and conclusiveness similar to that which attaches to a jury’s verdict of acquittal. We conclude that neither the history of sentencing practices, nor the pertinent rulings of this Court, nor even considerations of double jeopardy policy support such an equation.
C. This Court’s decisions in the sentencing area clearly establish that a sentence does not have the qualities of constitutional finality that attend an acquittal.
*1354 D. The double jeopardy considerations that bar reprosecution after an acquittal do not prohibit review of a sentence.
We, however, are faced with a proceeding in which the availability of enhancement depended upon a finding that certain facts existed and where there has been an appellate determination of insufficient evidence at that proceeding to establish those facts. We are thus presented with a situation markedly different than that presented in
DiFrancesco
in that, in
DiFrancesco,
there was no need for a second hearing in order for the appellate court to increase the sentence as provided in the statute nor had there been a finding of insufficient evidence to establish the factual predicate for the sentence by a trial or an appellate court. Nor is it analogous to the cases on which
DiFrancesco
relied,
e.g., North Carolina v. Pearce,
C. Implications of the Double Jeopardy Clause in a Finding of Insufficient Evidence.
The question whether any values of the double jeopardy clause are implicated when there has been an appellate finding of insufficient evidence in a trial was addressed in
Burks v. United States,
The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials. The Clause does not allow “the State ... to make repeated attempts to convict an individual for an alleged offense,” since “[t]he constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.” Green v. United States,355 U.S. 184 , 187,78 S.Ct. 221 , 223,2 L.Ed.2d 199 (1957); see Serfass v. United States,420 U.S. 377 , 387-388,95 S.Ct. 1055 , 1061-1062,43 L.Ed.2d 265 (1975); United States v. Jorn,400 U.S. 470 , 479,91 S.Ct. 547 , 554,27 L.Ed.2d 543 (1971).
[W]hen a defendant’s conviction has been overturned due to a failure of proof at trial, ... the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble. Moreover, such an appellate reversal means that the government’s case was so lacking that it should not have even been submitted to *1355 the jury. Since we necessarily afford absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.
The focus of our question, considering that a finding of insufficiency of the evidence leads to an implicit acquittal, is whether such implicit acquittal is to be found when there is insufficiency of the evidence in an enhancement proceeding.
D. Insufficient Evidence in Fact Finding Sentencing Proceedings.
If
DiFrancesco
were our only authority for the application of the double jeopardy clause to sentencing, we would face a difficult task in reconciling
Burks
and its “implicit acquittal” theory to an enhancement proceeding. There is, however, an even more recent decision by the Court which does apply the implicit acquittal theory to the sentencing phase of a trial to bar a resentencing procedure.
Bullington v. Missouri,
In Bullington, the defendant was convicted of capital murder and sentenced by the jury to life in prison rather than to death, the other alternative for the jury under the applicable Missouri statute. Bullington was, after the verdict and sentence, able to show to the trial court that his trial was constitutionally infirm because of the systematic exclusion of women from the jury. The court granted a new trial. The state then gave notice that it would again seek *1356 the death penalty. Bullington claimed that subjection to a new hearing on whether the death penalty should be imposed would subject him to double jeopardy. On direct appeal, the Missouri Supreme Court found no double jeopardy implications. The United States Supreme Court, Justice Blackmun (the author of DiFrancesco) writing for the Court, held that because the jury had failed to find “whatever was necessary” to sentence Bullington to death, an implicit acquittal occurred as to imposition of the death penalty in that sentencing proceeding. Bullington was protected by the double jeopardy clause from being subjected to a new hearing where the death penalty might be imposed.
The Court stated:
Chief Justice Badgett, in his dissent from the ruling of the Missouri Supreme Court majority, observed that the sentence of life imprisonment which petitioner received at his first trial meant that “the jury has already acquitted the defendant of whatever was necessary to impose the death sentence.”509 S.W.2d at 922 . We agree.
The Court noted that the prior cases,
Pearce, Stroud
and
Ball,
had not applied the “acquittal” rationale to a sentencing proceeding,
The procedure that resulted in the imposition of the sentence of life imprisonment upon petitioner Bullington at his first trial, however, differs significantly from those employed in any of the Court’s cases where the Double Jeopardy Clause has been held inapplicable to sentencing. The jury in this case was not given unbounded discretion to select an appropriate punishment from a wide range authorized by statute. Rather, a separate hearing was required and was held, and the jury was presented both a choice between two alternatives and standards to guide the making of that choice. Nor did the prosecution simply recommend what it felt to be an appropriate punishment. It undertook the burden of establishing certain facts beyond a reasonable doubt in its quest to obtain the harsher of the two alternative verdicts. The presentence hearing resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence. It was itself a trial on the issue of punishment so precisely defined by the Missouri statutes.
Moreover, the Court distinguished DiFrancesco.
In only one prior case, United States v. DiFrancesco, has this Court considered a separate or bifurcated sentencing procedure at which it was necessary for the prosecution to prove additional facts.... The Government must! prove the additional fact that the defendant is a “dangerous special offender,” as defined in the statute, in order for the court to impose an enhanced sentence, but there are highly pertinent differences between the Missouri procedures controlling the present case and those found constitutional in DiFrancesco. The federal procedures at issue in DiFrancesco include appellate review of a sentence “on the record of the sentencing court,” ... not a de novo proceeding that gives the Government the opportunity to convince a second factfinder of its view of the facts. Moreover, the choice presented to the federal judge ... is far broader than that faced by the state jury at present petitioner’s trial. Bullington’s Missouri jury was given — and under the State’s statutes could be given — only two choices, death or life imprisonment. On the other hand, if the Federal Government proves that a person convicted of a felony is a dangerous special offender, the judge may sentence that person to “an appropriate term not to exceed twenty-five *1357 years and not disproportionate in severity to the maximum term otherwise authorized by law for such felony.” § 3575(b). Finally, although the statute requires the Government to prove the additional fact that the defendant is a “dangerous special offender,” it need do so only by a preponderance of the evidence. Ibid. This stands in contrast to the reasonable doubt standard of the Missouri statute, the same standard required to be used at the trial on the issue of guilt or innocence. Jackson v. Virginia,443 U.S. 307 ,99 S.Ct. 2781 ,61 L.Ed.2d 560 (1979); In re Winship,397 U.S. 358 ,90 S.Ct. 1068 ,25 L.Ed.2d 368 (1970). The State’s use of this standard indicates that, as has been said generally of the criminal case, “the interests of the defendant are of such magnitude that .. . they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.... [O]ur society imposes almost the entire risk of error upon itself.” Addington v. Texas,441 U.S. 418 , 423-424,99 S.Ct. 1804 , 1808,60 L.Ed.2d 323 (1979).
Finally, the Court cited, with approval, the holding in
Burks
that insufficient evidence leads to a finding of an acquittal,
The Court already has held that many of the protections available to a defendant at a criminal trial also are available at a sentencing hearing similar to that required by Missouri in a capital case. See, e.g., Specht v. Patterson,386 U.S. 605 ,87 S.Ct. 1209 ,18 L.Ed.2d 326 (1967) (due process protections such as right to counsel, right to confront witnesses, and right to present favorable evidence are available at hearing at which sentence may be imposed based upon “a new finding of fact ... that was not an ingredient of the offense charged,” id., at 608,87 S.Ct. 1211 ). Because the sentencing proceeding at petitioner’s first trial was like the trial on the question of guilt or innocence, the protection afforded by the Double Jeopardy Clause to one acquitted by a jury also is available to him, with respect to the death penalty, at his retrial.
Thus the Supreme Court decision indicates that after a death penalty sentencing proceeding, where there is an implicit acquittal from the death penalty based on facts presented, the defendant, by virtue of that implicit acquittal, is protected by the double jeopardy clause from subjection to a second hearing where the death penalty may be imposed.
E. Applicability of DiFrancesco, Burks and Bullington to this Case.
The ultimate question is whether Bullard has a cognizable interest identified in the double jeopardy clause. Applying the rationale of Burks and Bullington, we find that Bullard has an interest in maintaining the integrity of his acquittal which occurred because of insufficiency of the evidence and that he cannot be subjected to another attempt by the State to prove what it failed to prove initially. The language of the Court in DiFrancesco, the reasoning of Bullington, which adopted the Burks rationale and the distinctions drawn by the Court in Bullington provide, if not explicit guidance toward a bright line analysis, a conceptual framework in which we may consider Bullard’s case.
Initially we set forth the unique aspects of the Texas enhancement proceeding.
20
The State is required to prove
at trial
that the defendant had committed two prior felony offenses.
21
The two prior convictions must be alleged in the indictment,
Bell v. State,
With this factual background we now examine the relevant case law, Burks, Bull-ington and DiFrancesco, for guidance.
We begin first with the principle of
Burks
that a reversal of a conviction because of insufficiency of the evidence at trial is to be treated as an acquittal.
as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the [prosecution] has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct.
The first question that we face is whether the failure of the State to prove, by any *1359 acceptable method, 24 that Bullard was the person who committed one of two alleged prior offenses is an “insufficiency of the evidence” error as opposed to a “trial error.”
The State characterizes the error as a trial type error rather than' as insufficiency of the evidence, relying on
Porier v. State,
The type of error here is the type of trial error which, although it rendered the original proceeding “defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence”, does not prohibit a full readjudication of the original proceedings.... The prior conviction is not a question of fact which determines the guilt or innocence of appellant; rather, it is an historical fact. The error in improper proof then goes to the method of proof, not the validity of the event.
Our examination of the Texas court’s concept of trial error in an enhancement proceeding leads us to the conclusion that, after Bullington, this characterization can no longer be viable.
Initially, after
Bullington,
death penalty sentencing proceedings are explicitly within the penumbra of the double jeopardy clause. Implicity, enhancement proceedings such as this Texas proceeding, where there are findings of fact similar to the findings in the guilt phase of the trial, are also within the penumbra.
See Bullington
451 at 444-46,
While we are mindful that a state’s characterization of error will be accepted by this court when the error so characterized is clearly trial error as identified in
Burks, Tapp v. Lucas,
Finally, we note that if we were always to accept a state’s characterization of error as trial error for purposes of habeas corpus review, a state could effectively prevent any error from being characterized as insufficiency of evidence and implicating the valued right to acquittal inherent in the double jeopardy clause. Here where the state’s characterization militates against the clear language of Burks and the obvious failure of proof which occurred, and when in fact, the state court described the error as “failure of proof” we find that the correct interpretation of the error was that there was an appellate finding of insufficient evidence. 27
Because the evidence of habitual offender status was insufficient, we next turn to the question whether this insufficiency amounted to an implied acquittal under Bullington.
The analogy of the Texas procedure to that in Bullington has been well stated:
All the procedural hallmarks of the trial on guilt or innocence that underlie the decision in Bullington v. Missouri,451 U.S. 430 ,101 S.Ct. 1852 ,68 L.Ed.2d 270 (1981), are present when the jury decides whether a defendant is an habitual felony offender. There is a separate proceeding, a requirement of proof of additional facts beyond a reasonable doubt, an explicit standard to guide the jury, and a choice of only two alternatives.
Wallace v. State,
Even in DiFrancesco, the Court distinguished its case where double jeopardy was not implicated from one as we have before us:
We have noted above the basic design of the double jeopardy provision, that is, as a bar against repeated attempts to convict, with consequent subjection of the *1361 defendant to embarrassment, expense,anxiety, and insecurity, and the possibility that he may be found guilty even though innocent. These considerations, however, have no significant application to the prosecution’s statutorily granted right to review a sentence. This limited appeal does not involve a retrial or approximate the ordeal of a trial on the basic issue of guilt or innocence... . Furthermore, a sentence is characteristically determined in large part on the basis of information, such as the presen-tence report, developed outside the courtroom. It is purely a judicial determination, and much that goes into it is the result of inquiry that is nonadversarial in nature.
The distinctions from DiFrancesco in the case before us are clear — there was no statutorily granted appeal to the State of Texas to provide for a review of the habitual offender status; any imposition of a life sentence would require a new factual hearing, as opposed to DiFrancesco, where a sentence could be enhanced by an appellate court on review of the record only; a finding here necessitated proof beyond a reasonable doubt, in DiFrancesco only by a preponderance of the evidence.
While the Court in DiFrancesco refused to ascribe to any sentence the status of acquittal, its cautious approach in limiting its holding and distinguishing the factual context in which it was appropriate suggested that other sentencing proceedings might implicate the values of the double jeopardy clause. Bullington provides the gap left by DiFrancesco required for our analysis of this case and mandates application of the double jeopardy clause to the case before us.
In summary, our analysis shows that the implicit acquittal theory of Burks must be applied after Bullington to bar a second enhancement proceeding in the sentencing phase of a trial 28 where there has been a finding of insufficient evidence of habitual offender status. 29
Secondly, “embarrassment, expense and ordeal” and insecurity may attend a sentencing proceeding as well as a trial.
Bull-ington,
*1362 Because Bullard was once subjected to an enhancement proceeding, because the appellate court found insufficient evidence of habitual offender status, thus leading to Bullard’s implicit acquittal as a habitual offender, and because resentencing would require a second trial with the State having an unwarranted “second bite at the apple” to prove facts that it failed to prove initially, the double jeopardy clause bars this second trial-like enhancement to life proceeding.
III. RETROACTIVITY OF BURKS AND BULLINGTON
Having determined that Burks and Bull-ington prohibit a second trial for the purposes of enhancement of a sentence, we now face the question whether the principles established in Burks and Bullington prohibited a second trial for the purpose of enhancement of Bullard’s sentence, that is, whether the principles established in Burks and Bullington are “retroactive” in application so as to vacate Bullard’s life sentence which was handed down in a second sentencing hearing prior to the rulings in Burks and Bullington.
The question before us is not a simple one. The court below held that Burks provided the supporting rationale for its determination that the double jeopardy clause was applicable to Bullard and also determined that Burks should be applied retroactively. Because we, however, premise our decisions on both Burks and Bullington, we must look to see if both decisions are retroactive, thus applying to Bullard’s case.
The retroactivity of Burks has been discussed in several cases 31 ; in determining whether Bullington is retroactive, we write on a virtually clean slate. The approach to retroactivity, however, involves asking the same questions of Burks and Bullington. We thus set forth the principles applicable to retroactivity in the double jeopardy context before we analyze Burks and Bulling-ton to determine whether either or both are to be applied retroactively.
A. Retroactivity of the Constitutional Protection Against Double Jeopardy
Retroactivity has been defined as follows:
In precise language, prospective operation means that the overruling decision is operative in the future only and does not even affect the parties to the overruling case. Retroactive, or retrospective, operation refers to an overruling decision, the operation of which is not limited solely to events occurring after the time of the decision. Such retroactive or retrospective operation may apply to the parties in the overruling case, or to the parties in other pending cases in addition to the overruling case, or to past transactions where no litigation was commenced before the overruling case was decided or which have been adjudicated in a final judgment, i.e., a judgment no longer subject to appeal or writ of error or a similar remedy of review. Overruling decisions which are given effect only in the overruling case itself and in pending cases are properly referred to as being of “limited” retroactive effect, and decisions which have retroactive effect going beyond the overruling case and others pending are properly referred to as being of “unlimited” or “general” retroactive effect.
Rossum, New Rights and Old Wrongs: The Supreme Court and the Problem of Retro-activity, 28 Emory L.J. 381, n.2 (1974).
Until 1965, a presumption existed that constitutional rulings were to be given ret
*1363
roactive effect.
32
In 1965, however, in
Linkletter v. Walker,
In 1973, the Court discussed retroactivity in the double jeopardy context.
Robinson v. Neil,
We do not believe that this case readily lends itself to the analysis established in Linkletter. Certainly, there is nothing in Linkletter or those cases following it to indicate that all rules and constitutional interpretations arising under the first eight Amendments must be subjected to the analysis there enunciated. Linkletter itself announced an exception to the general rule of retroactivity in a decision announcing that the exclusionary rule of Mapp v. Ohio,367 U.S. 643 [81 S.Ct. 1684 ,6 L.Ed.2d 1081 ] (1961), would be given prospective effect only. Linkletter, . .. dealt with those constitutional interpretations bearing on the use of evidence or on a particular mode of trial. Those procedural rights and methods of conducting trials, however, do not encompass all of the rights found in the first eight Amendments. Guarantees that do not relate to these procedural rules cannot, for retroactivity purposes, be lumped conveniently together in terms of analysis. For the purpose and effect of the various constitutional guarantees vary sufficiently among themselves so as to affect the necessity for prospective rather than retrospective application.
The Court further found that, when confronted with a question of retroactivity of the double jeopardy clause, the appropriate question is not whether the rule is necessary to protect the integrity of the fact finding process.
[t]he guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial. A number of the constitutional rules applied prospectively only under the Linkletter cases were found not to affect the basic *1364 fairness of the earlier trial, but to have been directed instead to collateral purposes such as the deterrence of unlawful police conduct, Mapp v. Ohio, supra. In Waller, however, the Court’s ruling was squarely directed to the prevention of the second trial’s taking place at all, even though it might have been conducted with a scrupulous regard for all of the constitutional procedural rights of the defendant. (emphasis added)
Unfortunately, the Court did not expound to any great length on whether rulings implicating the double jeopardy clause should always be retroactive and, if not, under what circumstances they should be retroactive.
The Court, however, indicated that
Link-letter
reliance would not be “wholly absent”
33
in the double jeopardy context, implying that reliance might prevent retroac-tivity,
“the state’s justifiability of the reliance on lower court decisions supporting the dual sovereignty analogy was a good deal more dubious than the justification for reliance that has been given weight in our Linkletter line of cases. We intimate no view as to what weight should be accorded to reliance by the State that was justifiable under the Linkletter test in determining retroactivity of a non-procedural constitutional decision such as Waller.
Thus, in Robinson, the Court, while seeming to distinguish procedural from non-procedural rulings, did not eschew consideration of justifiable reliance, instead considering and finding that such reliance was not justified.
After
Robinson,
with its intimation that reliance is to be considered to some degree, the Court, when confronted with a question of retroactivity in the procedural context, seemingly narrowed the circumstances in which reliance is to be considered, stating that reliance, after
Robinson,
is only a consideration “when the purpose of the rule in question [does] not clearly favor either retroactivity or prospectivity.”
Brown v. Louisiana,
With Robinson and Brown for guidance, we now address the question whether the double jeopardy rulings of Burks and Bullington should be retroactive to apply to the resentencing of Bullard which occurred prior to the decisions in Burks and Bulling-ton.
As in all double jeopardy cases, the decisions in Burks and Bullington are squarely directed to the prevention of second trials and the concomitant conviction or enhance *1365 ment of sentence which may follow from those second trials. These decisions are markedly different from decisions, such as Linkletter, setting forth procedural rules which speak only to the manner of how trials are conducted. There the question is whether second trials are necessary to insure the protection of defendants convicted under the old unconstitutional rule and thus whether the rule must be applied retroactively. Rather, Burks and Bullington seek completely to prevent second trials and must be given retroactive effect to insure a defendant’s right to be free from double jeopardy. As the district court stated,
Unlike retroactivity of procedural guarantees such as the exclusionary rule, see Linkletter, supra, retroactivity of the Burks/Greene aspect of the guarantee against double jeopardy will not interfere with the results of trials fair in other respects, thereby resulting in a burden on our system of justice and a windfall to those lucky enough to escape reprosecution. Burks and Greene instead teach that second trials should not have been held at all, and that another reprosecution would be barred. Retroactivity of those decisions thus serves rather than disserves the ends of justice.
Where no trial should have been held, there cannot be a question, as in procedural rulings, whether the defendant, in spite of the unconstitutional ruling, was treated fairly at trial. As Burks and Bullington indicate, the double jeopardy clause forbids a second enhancement hearing; thus only if Bul-lard’s second sentencing hearing is nullified by retroactive application of Burks and Bullington will he receive the protection the double jeopardy clause intended.
Moreover, “The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial
and possible conviction
more than once for an alleged offense.”
Greene v. United States,
To the extent that reliance by the State on the former rule is a consideration after
Robinson
and
Brown,
we find it unpersuasive here. The State claims that it relied on prior
Burks
law that it could retry Bullard. We note, however, that
Texas
law, prior to Bullard’s appeal, had prohibited retrial and new proof.
Elizalde v. State,
Moreover, we find the claim of prejudice to the State equally unpersuasive. The
*1366
Court in
Robinson
found that the State was prejudiced by its holding of retroactivity. It was of the opinion, however, that the State should have been aware of the constitutional impropriety of its action. Here, where the State has had one complete, unencumbered chance to prove the facts necessary for enhancement, “the prosecutor cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.”
Burks, supra,
This is wholly unlike the issue of retroac-tivity where the alternatives are whether the State can obtain a conviction without observation of the new rule, or must seek a conviction, if any, in compliance with the new rule. The issue under Burks-Greene is whether the State should be allowed a post-acquittal conviction, and no changes in the rules for obtaining it are implicated. As stated in Burks, “Given the requirements for entry of a judgment of acquittal, the purposes of the Clause would be negated were we to afford the Government an opportunity for the proverbial ‘second bite of the apple.’ ”
Ex Parte Reynolds,
In summary, there is no indication that the decisions in Burks and Bullington should not be retroactive. 35 To the contrary, the purpose of the double jeopardy clause mandates their retroactivity to Bullard’s request for habeas relief. 36
The judgment of the trial court is hereby affirmed in all respects. 37
AFFIRMED.
Notes
. In Texas, criminal trials are bifurcated. Tex. Penal Code Ann. § 37.07 (Vernon) (1974). After the determination of guilt the jury is then appraised of circumstances affecting sentence (such as prior convictions, see note 2, infra) and the jury, or the judge if the defendant has elected to waive a jury, assesses punishment. This sentencing proceeding where the state must prove beyond a reasonable doubt that prior convictions occurred is a part of the trial. Tex. Penal Code Ann. § 12.42 (Vernon) (1974). See note 2, infra.
. In Texas, conviction of a felony after one or more prior convictions mandates that the sentence be increased or “enhanced” up to, and including, possible imposition of a life sentence. The defendant is known as an habitual offender.
(a) If it be shown on the trial of a third-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished for a second-degree felony.
(b) If it be shown on the trial of a second-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished for a first-degree felony.
(c) If it be shown on the trial of a first-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished by confinement in the Texas Department of Corrections for life, or for any term of not more than 99 years or less than 15 years.
(d) If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.
Tex. Penal Code Ann. § 12.42 (Vernon) (1974).
. At the enhancement proceeding, the trial court heard evidence concerning the State’s allegations that Bullard had two prior convictions. Deputy Sheriff John Slovak, a fingerprint expert from the Dallas County Sheriff’s Department, testified that he had taken Bul-lard’s fingerprints earlier that day. He testified that, in the supporting documents of each prior conviction, one Charles Edwin Bullard was the man named as the convicted defendant. Further, each prior conviction contained a set of fingerprints. Bullard’s fingerprints taken the day of trial were identified as State’s Exhibit No. 1. The conviction and fingerprints in cause No. C-70-6579-MN were identified as State’s Exhibit No. 2. The record of the conviction and fingerprints in Cause No. D-7519-JI were identified as State’s Exhibit No. 3. Deputy Slovak compared the fingerprints on State’s Exhibit No. 2 with those he had taken of Bul-lard earlier that afternoon and testified that they were made by the same person. However, Deputy Slovak was not asked to compare the fingerprints he had taken of Bullard with those on State’s exhibit No. 3; at no time did he testify that the fingerprints he had taken from Bullard were made by the same person whose fingerprints appeared on State’s Exhibit No. 3. Thus there was absolutely no positive identification of Bullard as the man who had committed a second prior offense.
. The Texas Court of Criminal Appeals has approved several different means to prove that a defendant is the same person previously convicted:
This Court has approved several different means to prove the accused was the same person previously convicted. They include, but are not necessarily limited to: (1) Testimony of a witness who identifies the accused as the same person previously convicted; (2) Introduction of certified copies of the judgment and sentence and records of the Texas Department of Corrections or a county jail including fingerprints of the defendant; supported by expert testimony identifying them as identical with known prints of the defendant; (3) And by stipulation or judicial admission of the defendant, (citations omitted) (emphasis added).
Cain v. State,
. The double jeopardy clause states:
[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb....
U.S.Const. amend. V.
. This state of the law of double jeopardy has been acknowledged by the United States Supreme Court itself. See
Burks v. United States,
. See, e.g., Burks v. United States, supra, where the Court reviews and overrules several cases dealing with the question whether a reversed conviction implicates the double jeopardy clause.
. See Double Jeopardy Theory at 81-161 for a thorough analysis of double jeopardy values and the circumstances in which those values are implicated.
. This “bright line analysis” was the hope of the Court in its decision in
United States v. Jenkins,
. Facts necessary to enhance sentence are, in Texas, considered to be among those facts proved at trial. See note 1 and note 2, supra.
. See note 12, infra and Double Jeopardy Theory at 106-122.
. Finality, the integrity of acquittal and prevention of multiple punishment have been articulated as the purposes of the double jeopardy clause. See Double Jeopardy Theory at 84, and text, supra at 4-5.
. 18 U.S.C. § 3736 (1976).
.
Burks
was made applicable to state prosecutions where there is an appellate reversal for insufficient evidence in
Greene v. Massey,
. The Supreme Court ... developed a definition of acquittal as “ ‘the ruling of the judge, whatever its label, [which] actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged’
Martin Linen [United States v. Martin Linen Supply Co.,
Tibbs v. State,
. This rationale has been criticized, see
Double Jeopardy Theory
at 146, but the Court has continued to utilize it and has cited it with approval in its most recent double jeopardy case.
Bullington v. Missouri,
. Whether an acquittal by a trial judge — implicit or explicit — should be given the same weight as an acquittal by a jury has been the subject of legal comment.
Double Jeopardy Theory
at 132-137. The Supreme Court, however, has refused to make such a distinction, and a judge’s ruling of acquittal or an appellate court’s finding that the judge should have acquitted,
Burks,
. Two commentators suggest that not all findings of Burks type insufficiency of the evidence support invocation of the double jeopardy clause. Westen & Drubel, Double Jeopardy Theory at 146-47. While their analysis arguably confuses the Burks concept of sufficiency of evidence with the Burks concept of trial errors, see note 25, infra, and accompanying text, we need not determine if, indeed, the Court in its decisions has established different types of insufficiency of the evidence for purposes of double jeopardy, for even under the theory advanced above, that insufficient evidence only prevents retrial when the prosecution “has no excuse for not having mustered sufficient evidence the first time around,” id. at 147, n. 292, such is the case before us, that is, the prosecution has presented no reason why it failed to muster sufficient evidence for enhancement the first time around.
. The case before us must be distinguished from those where the double jeopardy clause has (or has not) been invoked on appeal after a favorable ruling by a trial judge in a trial by jury or a bench trial in cases other than sufficiency of the evidence. For example, in
United States v. Wilson,
This case is additionally unlike one where a sentence, based upon one count of a valid conviction, is altered when another sentence, based on another count of the conviction, is ruled invalid and vacated.
See U.S. v. Busic,
. The statute is set forth at note 2, supra.
. The bifurcated nature of Texas criminal trials requires a factual finding of guilt first and then a separate sentencing phase, Here the sentencing phase was also a factual hearing which, according to the language of the statute was part of the “trial.” See note 1 and note 2, supra.
. The State has not disagreed that this standard is applicable. We note also that we do not intend to review the Texas court’s finding of insufficiency of the evidence, but rather inquire whether beyond a reasonable doubt is the applicable standard to see if there is an analogy to the “beyond a reasonable doubt” standard of
Buffington
that was persuasive to the Court in finding that the double jeopardy clause applied.
. The State attempts to characterize imposition of the habitual offender status as merely “a reason for more severe punishment.” This characterization overlooks the statutory language and the decisions of the Texas Court of Criminal Appeals which require a factual finding of this status as an habitual offender. It is the question whether a defendant may be subjected to this fact finding procedure and the risk of enhancement a second time after the state initially failed to prove sufficient facts the first time which raises implications of double jeopardy — not just the possibility that Bullard will be subjected to a more severe sentence.
Additionally, the State alleges that the rationale for the district court’s opinion was that double punishment for one offense would occur if Bullard were resentenced. We find no such language in the court’s opinion. Rather, the question addressed and correctly decided by the court was whether the State is to be afforded a second chance to muster evidence found insufficient in the first proceeding,
cf. Burks v. United States, supra,
Finally, whether Texas could be compelled under the Constitution to hold an adversarial trial on punishment issues and demand proof of prior convictions beyond a reasonable doubt is irrelevant. It is beyond dispute that state procedures not in themselves constitutionally mandated must be applied within the strictures of the Constitution. Cf.
Griffin v. Illinois,
. See note 3 & note 4, supra.
. In
Tapp,
the Mississippi Supreme Court had characterized a state trial court’s compulsion of a wife’s testimony as trial error (in the language of
Burks,
an “incorrect receipt of evidence”) and allowed retrial of a defendant whose conviction had been overturned because of this erroneously admitted testimony. This court, because the error was clearly trial error, recognized it could defer to Mississippi’s characterization and did so.
Tapp
v.
Lucas,
. We note that the decision in
Porier, supra,
which was the basis of the ruling that failure of proof in an enhancement proceeding was trial error was a five to four decision which was questioned at the time,
id.
at 484-85 (Odom, J. dissenting), and after
Bullington, Wallace v. State,
. Additionally, the State’s reliance on
Burks, supra,
and
Jackson v. Virginia,
Secondly,
Jackson v. Virginia
is inappropriate as authority for the proposition apparently advanced by the State that there was in fact no insufficient evidence.
Jackson
establishes the federal standard for appellate review to determine whether evidence is so insufficient as to violate due process in a state criminal trial. We, here, however, are not conducting a review of sufficiency of the evidence in a due process context — that evidence has been reviewed and found insufficient, according to insufficiency standards of the double jeopardy clause,
see Burks
at
. While Justice Blackmun spoke in terms of a capital sentencing proceeding, he did not limit his rationale of acquittal to fact finding sentencing proceedings concerned only with the death penalty nor do we see any reason to do so. The important factors persuasive to the Court in Bullington, a trial like proceeding where the burden of proof is beyond a reasonable doubt where the government asks for a second “bite at the apple,” are present here.
. Justice Rehnquist, dissenting in
Bullington,
stated that: “The sentencer’s function is not to discover a fact, but to mete out just deserts as he sees them.”
In Bullington, however, and in the case before us, the prosecution was required to set forth, and the sentencer to determine, facts beyond a reasonable doubt. It is the further need for a second factual discovery that warrants invocation of the double jeopardy clause.
. The State argues that this case is closer to DiFrancesco that Bullington. It presents a novel rule it has extracted from Bullington —that only where there is an expectation of finality is Bullington applicable. The State would claim that Bullard had no expectation of finality because the judge had initially erroneously found the facts against him. If the State’s theory were adopted, Burks, where there was insufficient evidence as determined by the appellate court, would not be the law today, as no defendant who suffered an erroneous conviction could expect finality. Burks, however, tells us that a finding of insufficient evidence leads to the implicit acquittal. This implicit acquittal recognized in Bullington gave Bullard an expectation of finality. The State had marshalled all its resources to prove a set of facts and it had failed. Under no possible rule to be gleaned from Bullington could a second hearing be warranted. Under the State’s theory, an erroneous decision of a judge later reversed by an appellate court would al *1362 low the State a second chance to do what it did not do before. We will not assume that any defendant was the person who committed prior felonies after a finding of insufficient evidence on that point; the question is rather, knowing that the evidence was insufficient to show that the defendant was the same person, may a second trial be held?
. In both courts where the retroactivity of
Burks
has been analyzed, there has been a finding of retroactivity.
U. S. v. Bodey,
. The exceptions were those such as stated in
Chicot County Drainage District v. Baxter State Board,
. The State, in its brief, alleged: “[t]he Court [in Robinson] continued to emphasize, however, the ‘element of reliance embodied in the Linkletter analysis .. . maintaining that that decision established a two pronged test which was concerned with good faith reliance and prejudice. As has been pointed out to the State by the Texas Court of Criminal Appeals, its position may misread Robinson.
The State in its brief takes the position that Robinson in effect established a retroactivity test for double jeopardy holdings that looks only to the last two prongs of the three prong test of Linkletter. We believe that position misreads Robinson. Instead of emphasizing the “reliance” prong of Linkletter, Robinson simply stated, “The element of reliance embodied in the Linkletter analysis will not be wholly absent in the case of constitutional decisions not related to trial procedure . ...” (Emphasis added). We construe this phrasing to indicate that the reliance component, while not wholly absent, will be of lesser significance in the double jeopardy area.
Ex Parte Reynolds,
We intimate no view as to what weight should be accorded to reliance by the State that was justifiable under the Linkletter test in determining retroactivity of a nonproce-dural constitutional decision such as Waller.
. The State claims that because the second hearing has been held, there is no reason to make the rules of
Burks
and
Bullington
retroactive. We disagree. While one purpose of the double jeopardy clause is to prevent a second trial,
Robinson,
. The State complains in its brief that:
Second, there are many reasons why there might have been additional evidence that could have been introduced at Bullard’s trial — even at the punishment phase — but that was excluded for a variety of reasons.... Or Bullard might have been reindicted and retried as a habitual offender with different prior convictions alleged for enhancement. It is worth noting that there are numerous reasons why the State during the second prosecution might adduce constitutionally sufficient evidence after failing to do so during the first. Of some importance is the possibility that the passage of time might produce additional evidence.
The fact that the State made those tactical decisions cannot be justification for abrogation of the double jeopardy clause. “Legal consequences ordinarily flow from what has actually happened, not from what a party might have done from the vantage of hindsight.” Sanabria
v. United States,
Finally, the State further alleges that Bullard had to undergo a second punishment hearing after the ruling of insufficiency to determine “a valid punishment.” The State offers no authority for this proposition. As the district court stated, while enhancement to life is not possible, the State does have one valid prior conviction to use for enhancement, see note 2, supra, and a sentence based on this prior conviction may, under Texas law be possible without any new factual hearing. In any event, this is a question to be decided, in the first instance, by the Texas courts.
. This court, in
Webster v. Estelle,
. The district court ordered that Bullard should be discharged from custody unless retried or resentenced, as the state law requires, within ninety days. See note 36, supra.