Ex Parte Queen

On original submission, a majority of this Court held the sufficiency of the evidence may not be challenged by pretrial writ of habeas corpus following the granting of a motion for a new trial on non-sufficiency grounds. Ex parte Queen, 877 S.W.2d 752 (Tex.Cr.App.1994). Accordingly, appellant’s retrial was not jeopardy barred regardless of the sufficiency of the evidence at his first trial. Id., 877 S.W.2d at 754, 755. Because the opinion on original submission was based on Lofton v. State, 777 S.W.2d 96 (Tex.Cr.App.1989), a case I believe to have been wrongly decided, I respectfully dissent…