The opinion
*45 TAFT, Justice,
dissenting on Motion for Rehearing.
The majority opinion acknowledges that a defendant may be tried a second time after being acquitted for stealing the same property on the same date, first from an erroneously named owner, and second from a correctly named owner. See Fulmer v. State, 731 S.W.2d 943, 946 (Tex.Crim.App.1987); Smotherman v. State, 415 S.W.2d 430, 431 (Tex.Crim.App.1967) (both allowing the State to retry a defendant previously acquitted for the same conduct under an indictment alleging the wrong name for the complainant). The majority opinion would establish a different rule for a defendant first acquitted for stealing the same property on the same date from an unnamed owner and second from a named owner.
The majority opinion defines two categories of reindietment for: (1) mistaken name of owner; and (2) joint owners. Apparently, the present case cannot fit in category one because “unknown to the grand jury” is not a name; thus, it cannot be a mistaken name. For some reason the majority believes it fits in category two, however, thereby designating unknown owner and named owner as joint owners. I ask if “unknown to the grand jury” cannot be a mistaken name, how can it be a joint owner?
I think that the present case involves a mistaken designation of ownership more like the mistaken name cases than the joint ownership cases.
The rationale of the majority opinion appears to be that because the State could have proved R. Reese 1 was the owner in the first trial, naming him as the owner for the second trial is barred by double jeopardy. However, in Fulmer and Smotherman the State actually proved the person correctly named in the second indictment as the victim in both cases. Yet, no double jeopardy bar was found. It seems to me that the stronger case for a double jeopardy bar could be made under the facts of Fulmer and Smotherman . Nevertheless, double jeopardy was found to be no bar to a second prosecution, thereby allowing the State to correct its mistake in designating the complainant.
The majority opinion relies upon a proposition from sufficiency of the evidence cases where “unknown to the grand jury” is alleged. When the State alleges that an element is unknown to the grand jury, but then proves a known element at trial, the State must show that the grand jury did not know the element and could not have discovered it through the exercise of due diligence. Hicks v. State, 860 S.W.2d 419, 424 (Tex.Crim.App.1993). The majority opinion views this principle as if it authorizes the State to prove up a known when an unknown is alleged. The fallacy is that proving up a known is of no use unless the State also proves that, as alleged, the element was unknown to the grand jury. Alleging “unknown to the grand jury'’ does not give the State a license to prove any owner, but rather a burden to prove that the owner was unknown to the grand jury.
Under the standard of review, as set out in the majority opinion, the burden is on the accused to demonstrate entitlement to double jeopardy relief. To determine whether jeopardy attached, the court must inquire whether each offense contains an element not contained in the other. Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306 (1932). If a different element is present, double jeopardy does not attach. Id. However, if each element of the offense in the first indictment is identical to the offense in the second indictment, double jeopardy attaches and bars successive prosecutions. Id.
I would hold that appellant has not met her burden of showing that the elements of the two offenses are identical. “Unknown to the grand jury” is different from “R. Reese.”
In regard to appellant’s second argument that collateral estoppel bars a second trial, appellant must show that a fact issue has been determined adversely to the State and the State is now trying to relitigate the same fact issue. See Ex parte Tarver, 725 S.W.2d *46 195, 199 (Tex.Crim.App.1986). If the first indictment had alleged ownership in R. Reese, and if the instructed verdict in the first case had been granted on the basis that the State failed to prove R. Reese, then appellant would have a valid collateral estop-pel argument. What was litigated in the first case here, however, is the allegation and failure to prove that the owner was unknown to the grand jury.
For the above reasons, I would uphold the trial court’s order denying habeas corpus relief. To the majority’s failure to do so, I respectfully, but vigorously, dissent.
. It is interesting that in the trial court’s ruling on the motion for instructed verdict, no mention of R. Reese is made. The trial court seemed to think that the State had proved Houston Police Officer Macejewski as the owner.