As a matter of federal and state law, a conviction for a lesser offense constitutes an acquittal of the greater offense. (1) So, by convicting appellant of the lesser offense of sexual assault, the jury acquitted him of aggravated sexual assault, and on retrial, the State can prosecute appellant only for sexual assault. Yet that is the very verdict appellant claims he should not have received and the very verdict this Court now determines the State should not have obtained. Because the offense of sexual assault should not have been submitted to the jury, appellant is now subject to a new trial on the offense of sexual assault. This incongruity was created by the Court's decision in Arevalo v. State, in which the Court decided that the Royster/Rousseau test for determining when a trial court is required to submit a lesser-included offense also applied to determine whether a trial court is permitted to submit a such an offense. (2) We should take this opportunity to reexamine a precedent that creates such illogical results and then we should overrule Arevalo. I respectfully dissent.
KELLER, Presiding Judge
Date filed: July 2, 2003
1. Green v. United States, 355 U.S. 184 (1957); TEX. CODE CRIM. PROC., Art. 37.14.
2. 943 S.W.2d 887, 890 (Tex. Crim. App. 1997) (McCormick, P.J. dissenting) and at 892 (Meyers, J. dissenting).