Keller, P.J., filed a dissenting opinion in which WOMACK, KEASLER, and HERVEY, JJ., joined.

We should grant review on our own motion¹ and vacate the Court of Appeals’s decision because the claim before us is not cognizable on pretrial habeas corpus.

This Court has consistently held that “a pretrial writ application is not appropriate when resolution of the question presented, even if resolved in favor of the applicant, would not result in immediate release.”² In Headrick, the defendant sought to use the doctrine of collateral estoppel to exclude evidence.³ In holding that such a claim was not cognizable on a pretrial application, we observed that “[t]he State and Appellant agree that even if Appellant were entitled to the relief she seeks, the State would not be prevented from pursuing the pending prosecution.”⁴

Likewise, resolving appellant’s collateral estoppel claim in his favor does not result in his immediate release. Mandating an affirmative answer to the “sudden passion” issue⁵ does not impede the prosecution. The State is still entitled to prosecute appellant for attempted capital murder and attempted murder, and if he is found guilty, a factfinder would still be required to determine punishment. And, if appellant is convicted of attempted capital murder, the trial court will not even have an occasion to submit the “sudden passion” issue.⁶

Although the present case alleges a double jeopardy-based claim, rather than the mere evidentiary claim advanced in Headrick, pretrial habeas cognizability is not assured simply because a claim may be based upon double jeopardy principles. Not all double jeopardy claims are cognizable on a pretrial writ application.⁷ While we have before addressed on pretrial habeas the merits of a double jeopardy-based collateral estoppel claim, that claim, if granted would have resulted in the defendant’s immediate release.⁸

The Court correctly observes that I have cited no double jeopardy cases that specifically say a double jeopardy claim is not cognizable on a pre-trial writ if granting relief would not result in immediate release. I am aware of none. By the same token, I am aware of no cases that say a double jeopardy claim is cognizable if granting relief would not result in immediate release, and the Court has cited none. From the above discussion, however, we can see two well-established elements of our caselaw that run contrary to cognizability here: (1) We have never granted relief on a pretrial writ of habeas corpus in a form other than immediate release. The present case would be the first instance of doing so. (2) Not all double jeopardy claims are cognizable on a pretrial writ. The Court’s assertion that multiple punishment claims are cognizable runs contrary to recent statements made in Gonzales.⁹ Since some double jeopardy claims are not cognizable on a pretrial writ, and the present double jeopardy claim lacks a feature that has been required in every other case that has come before us, the obvious conclusion is that this double jeopardy claim is of the type that is not cognizable.

Nor does denying cognizability here threaten the interests underlying the Double Jeopardy Clause. As the Court notes, the point of permitting a pretrial writ is to protect the defendant from being tried. A grant of relief in this case serves no such purpose: appellant will still be tried for this crime, and there will still be a punishment phase at the trial.

The State has not raised the issue, but we should not be bound by the State’s failure in this regard. I view cognizability as an absolute requirement that is independent of the litigants’ wishes.¹⁰ In a given case, both parties may desire to have an appellate court address the viability of potential punishment issues, but that desire would not give them the ability to foist upon appellate courts issues that are not cognizable at the time they are raised in order to procure advisory opinions. As with preservation of error,¹¹ cognizability is an issue that ought to be raised by a first-level appellate court on its own motion.

As a second-level appellate court, we are not required to address a systemic issue not raised by the State in its petition,¹² but in this case we should. An opinion granting relief at this juncture would be purely advisory, and we may find that we have granted relief on an issue that does not even arise in the case. Moreover, evaluation of the merits may be assisted by factual development of the record. At the second trial, the parties may introduce evidence on the issue of sudden passion that was not introduced at the first trial. Assuming arguendo that we decline to distinguish between claims on the basis of who has the burden of proof, the question to be confronted would then be whether the new evidence has its genesis in the facts of the previously tried offense or is derived in some unique way from the facts of the separate offense. At this time, we are not in the best position to evaluate the legitimacy of such new evidence, and we should not require the State or appellant to give a preview of its case under the guise of habeas corpus.¹³ Finally, issuing a published opinion addressing the merits of this claim risks misleading future litigants and appellate courts into believing that this type of claim is cognizable in a pretrial habeas application.

For these reasons, I would grant review on the Court’s own motion, vacate the judgment of the Court of Appeals, and remand the case with instructions to dismiss the application.

I respectfully dissent.

KELLER, Presiding Judge

Date filed: April 3, 2002
¹ Tex. R. App. P. 67.1.
² Ex Parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001); see also Headrick v. State, 988 S.W.2d 226, 228 (Tex. Crim. App. 1999); Ex Parte Ruby, 403 S.W.2d 129, 130 (Tex. Crim. App. 1966).
³ 988 S.W.2d at 228.
⁴ Id.
⁵ See Tex. Pen. Code §19.02(d).
⁶ A capital murder defendant is not entitled to the submission of the “sudden passion” issue at guilt, and if convicted of capital murder, is not entitled to the issue’s submission at punishment. Wesbrook v. State, 29 S.W.3d 103, 112-113 (Tex. Crim. App. 2000). Although “sudden passion” can be an issue in an attempted murder prosecution, Mims v. State, 3 S.W.3d 923 (Tex. Crim. App. 1999), its applicability is due to the derivation of attempted murder from murder. Because the “sudden passion” issue is not applicable to capital murder, it would likewise be inapplicable to attempted capital murder.
The Court is incorrect in contending that Mims’s reasoning supports a conclusion that a finding of sudden passion in a murder case reduces the punishment range of a subsequent conviction for the attempted capital murder of a separate victim. When a defendant attempts to kill two people, he is attempting to commit a capital murder. Under Wesbrook, “sudden passion” does not reduce a capital murder to a lesser crime. That capital murder is built upon first degree murder is immaterial. If the State proves the additional elements required to establish capital murder, then “sudden passion” simply does not constitute a partial excuse to the crime, as it would if the State had proved only ordinary murder. The Legislature is within its prerogative to set a factor that is mitigating as a matter of law with respect to one offense, but not with respect to a greater offense.
⁷ Gonzales v. State, 8 S.W.3d 640, 643 n. 9 (Tex. Crim. App. 2000).
⁸ Ex Parte Robinson, 641 S.W.2d 552, 555-556 (Tex. Crim. App. 1982)(magistrate at examining trial found no probable cause to bind the defendant over for grand jury).
⁹ See footnote 7.
¹⁰ See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993).
¹¹ Jones v. State, 942 S.W.2d 1, 2 n. 1 (Tex. Crim. App. 1997); Hughes v. State, 878 S.W.2d 142, 151 (Tex. Crim. App. 1992)(on rehearing).
¹² See Jones, 942 S.W.2d at 2 n. 1.
¹³ The Court contends that offering “new, more, and better evidence” is precisely what the principle of double jeopardy-collateral estoppel bars. That contention is correct only if the existence of sudden passion in one offense resolves the question of the existence of sudden passion in the other. In Ashe v. Swenson, collateral estoppel applied because, “The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers.” 397 U.S. 436, 445 (1970). If a jury could rationally conclude that appellant acted under the influence of sudden passion as to the victim in the first prosecution but not as to the victim in the second, then double jeopardy-collateral estoppel would not bar litigation on the sudden passion issue in the second trial. For example, if appellant had been prosecuted in the first trial for the murder of the first victim, then in the second trial for the murder of the second victim, the State might have been able to claim that appellant had “cooled off” and was no longer under the influence of sudden passion when the second victim was killed. The actual circumstances present here are that the second killing was prosecuted first. To show a different factual basis, the State would likely have to prove that the defendant’s emotional state escalated between the killings so that appellant was capable of cool reflection when he killed the first victim but became incapable of cool reflection when he killed the second. That could be a much harder sell than the cooling off scenario, but it is a possibility nonetheless, and we cannot determine on this record that collateral estoppel would bar consideration of sudden passion relating to the second victim.