Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00762-CR
Jason Robert VANWINKLE,
Appellant
v.
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Bandera County, Texas
Trial Court No. CR-14-041
Honorable M. Rex Emerson, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: December 16, 2015
REVERSED AND RENDERED
Jason Robert VanWinkle appeals his conviction for arson. In his first issue, VanWinkle
requests that we reverse his conviction and render an acquittal because he was indicted for arson
of a habitation but convicted of arson of a vehicle, and the latter is not a lesser-included offense of
the former. The State filed a letter in lieu of an appellee’s brief conceding error and harm. The
State concludes, “Accordingly, the State agrees with [VanWinkle’s] first point of error, that error
has been committed requiring the reversal of the unsupported conviction.” We also agree, and we
reverse VanWinkle’s conviction for arson of a vehicle and render a judgment of acquittal of the
04-14-00762-CR
offense for which VanWinkle was indicted. See Fuller v. State, 73 S.W.3d 250, 256-57 (Tex. Crim.
App. 2002) (explaining jeopardy-preclusion requires acquittal for the charged offense of which the
jury did not convict appellant, but permits the State “to prosecute for the ‘correct’ theory of the
crime’”); see also Byrd v. State, 336 S.W.3d 242, 246-47 (Tex. Crim. App. 2011) (holding that
“the defendant is entitled to an acquittal” when the State alleges one offense and proves another).
Because we reverse and render an acquittal, we need not address VanWinkle’s second issue
regarding the trial court’s improper admission of evidence. See TEX. R. APP. P. 47.1.
Luz Elena D. Chapa, Justice
DO NOT PUBLISH
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