Benavidez v. State
In Benavidez v. State, 323 S.W.3d 179 (Tex. Crim. App. 2010), the defendant stood trial for the charged offense of aggravated sexual assault. Id.
The charge erroneously authorized the jury, if it acquitted the defendant of the charged offense, to convict him of the lesser-but-not-included offense of aggravated assault. Id.
The jury convicted the defendant of aggravated assault, and the defendant appealed. Id.
Based on that trial error, the court of appeals vacated the judgment and remanded for entry of a judgment of acquittal on the charge of aggravated assault. Id.
In reversing the court of appeals, the Court explained:
"The jury verdict in this case actually amounted to a finding of fact that the defendant was guilty of all of the elements of aggravated assault, and the trial court's judgment reflects accordingly. So nothing occurred at the trial court level that amounted to an acquittal for the lesser-but-not-included offense. Moreover, an appellate court does not properly order the entry of a judgment of acquittal unless either the trial court's ruling amounts to a de facto but unacknowledged acquittal, or the appellate court itself finds that the evidence was legally insufficient to support the conviction." Id. at 181.
The Court remanded the case to the court of appeals with directions to conduct an evidentiary sufficiency review, observing that, while the charge error alone would not bar the State from retrying the case, "a finding of legal insufficiency on appeal would interpose a jeopardy bar to retrial." Id. at 182-83.