concurring.
The majority expressly “overrule[s] the Benson/Boozer line of eases,” and describes that line of decisions as holding that “the sufficiency of the evidence is measured by the jury charge if that charge is more favorable to the defendant than the law requires and if the State fails to object.” Majority opinion at 235. But in this case the State objected. Therefore the majority’s holding is dicta and I decline to join it. I concur in the judgment of the Court, however, because application of the controlling caselaw calls for a reversal of the judgment of the Court of Appeals.
The trial court erroneously included in the jury charge an instruction on the legality of appellant’s detention (whether or not appellant had been driving his vehicle in a suspicious manner, thereby justifying a stop). The State objected at trial to the inclusion of the charge. On appeal, appellant claimed the evidence was insufficient to support the jury’s finding that appellant had been driving in a suspicious manner. The Court of Appeals noted that the legality of a detention is normally “irrelevant” for purposes of a sufficiency review, but decided to “assume” the charge was correct and review the sufficiency of the evidence to support it. Upon reviewing the evidence, the Court of Appeals determined it was insufficient to support “the jury’s determination that appellant was driving his vehicle in a suspicious manner,” reversed the judgment of the trial court, and ordered a judgment of acquittal. Malik v. State, No. 14-92-31490 slip op., 1996 WL 65639 (Tex.App.—Houston [14th Dist.] Feb. 15, 1996)(opinion on remand)(unpublished).
We granted the State’s petition on the following ground for review:
The Court of Appeals erred in failing to properly apply the correct standard of review in analyzing the sufficiency of the evidence and in reversing and remanding for an order of acquittal.
The State argues the Court of Appeals erred in its sufficiency analysis in two respects: (1) Jackson v. Virginia does not apply here since the legality of the detention is not one of the “elements of the offense”; and (2) since the State objected to the charge, the *241issue should be treated as trial error rather than a sufficiency problem, citing Ortega v. State, 668 S.W.2d 701 (Tex.Crim.App.1983)(opinion on original submission) and Stephens v. State, 717 S.W.2d 388, 341 (Tex.Crim.App.1986).
The State is correct on its second argument.1 In Ortega, we explained that when the trial court unnecessarily increases the State’s burden in the jury instructions and the State objects to the increase, the matter should be viewed as trial error on appeal:
But once the [additional burden] is incorporated into the court’s instructions to the jury in such a way that the jury must find it before a verdict of guilt is authorized, Article 36.13, V.A.C.C.P., it must be proved, or the verdict will be deemed “contrary to the law and evidence.” See Article 40.03(9), V.A.C.C.P. In sum, there is no such thing as “surplusage” in the part of the court’s instructions to the jury which authorizes a conviction, and if the prosecutor believes that portion of the charge unnecessarily increases his burden of proof, it behooves him specially to request a charge which correctly allocates the burden placed on him by law. This is nothing more than the course of law which is due before a person may be deprived of liberty. Article 1.04, V.A.C.C.P. And if the record reflects the prosecutor has pursued this course to protect his lawful obligations, but the trial court has nevertheless refused the amendment to the indictment or submission of the requested charge, and the evidence is found insufficient to support the verdict because of the trial court’s errors in this regard, those reviewable rulings of the trial court found erroneous by the appellate court constitute “trial error,” and the State is free to pursue another prosecution. Cf. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).
Ortega, 668 S.W.2d at 705 n. 10. We further explained in Stephens that when the charge imposes a greater burden on the State than placed upon it by the controlling statute, and the State does not object to the increased burden, it can be assumed that the State voluntarily shouldered that burden. But if the State objects to the greater burden, then the increased burden is not assumed by the State so as to bar it from retrying the case if the evidence is insufficient under the increased burden in the charge.2
Stephens, 717 S.W.2d at 341.
The State argues that an article 38.23 instruction is required only if there is a factual dispute about how the evidence was obtained and there was no factual dispute in this case.3 The State objected to inclusion of the instruction.
The State is exactly right. The instruction should not have been given because there was no dispute about the facts leading to the stop. By objecting to the charge, the State did not assume the greater burden. See Ortega, supra; Stephens, supra. The Court of Appeals erred in reversing and ordering a *242judgment of acquittal based upon insufficiency of the evidence as to the legality of the detention. This ease should be reversed due to trial error, and the State afforded the opportunity to reprosecute.4 Ortega, 668 S.W.2d at 705 n. 10 (if State objects to increased burden in charge and evidence is found insufficient to support the verdict because of trial court’s error in this regard, “those reviewable rulings of the trial court found erroneous by the appellate court constitute ‘trial error,’ and the State is free to pursue another prosecution”).
The majority does not mention the Court’s opinions in Ortega and Stephens, even though those cases provide an exception to application of the Benson/Boozer doctrine which applies in this case. The State does not cite to Benson and Boozer, much less present an argument for overruling those opinions. It has always been my understanding that this Court should not strain to overrule precedent when not called for on the facts at hand, but should wait for the appropriate case where the parties raise and have the opportunity to argue the issue, and where the precedent to be overruled would be otherwise be applicable and control the disposition of the ease at hand. See Blanco v. State, No. 098-97 (State’s pet. granted April 30, 1997)(State urges Court to re-examine Benson ¡Boozer). As a believer in the adversarial system, I would wait for the appropriate case where the Court could entertain the best arguments on the issue from both sides of the table before rendering a decision.
I concur in the judgment of the Court.
BAIRD and OVERSTREET, JJ., join.. Addressing the second argument would resolve the case and I therefore decline to comment on the State’s first argument.
. Judge Clinton best explained this notion in concurring in the denial of the State’s motion for rehearing in Boozer:
... in the event the State had objected to the trial court’s unnecessarily increasing its burden of proof, we would be in a position to point to the accomplice witness charge and say, "that charge was erroneous just as the prosecutor argued,” then hold that error was the direct cause of the reversal of the conviction and as such was “trial” charge error.
Boozer, 717 S.W.2d at 614 (Clinton, J., concurring in denial of State’s motion for leave to file motion for rehearing).
. Article 38.23(a) provides that no evidence obtained in violation of the Constitutions or laws shall be admitted against the accused. Further,
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
We have interpreted this provision as only requiring a charge thereunder "if there is a factual dispute as to how the evidence was obtained.” Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim.App.1986). In other words, a defendant is not entitled to a charge if the defendant does not controvert or challenge the State’s facts, as opposed to the legal conclusions to be drawn from the facts. Id.
. This rule is consistent with the Court s holdings as to reprosecution of a lesser included offense upon a finding on appeal of insufficiency of the evidence on the aggravating element of the greater offense. In Ex Parte Granger, 850 S.W.2d 513 (Tex.Crim.App.1993), the defendant was convicted of capital murder, but on direct appeal, we found the evidence insufficient as to the capital element. The defendant claimed his subsequent prosecution for murder was barred by double jeopardy. We disagreed. We explained that allowing the State to reprosecute placed the defendant in the position he would have been in absent the trial court's error in submitting the capital charge. Because the evidence was only insufficient as to the capital element, if the lesser included offense alone had gone to the juiy, the defendant would have been convicted. We emphasized, however, that had no charge been included on the lesser offense, the defendant could not have been retried for that offense:
... We were careful to point out repeatedly in our opinion [in another case where a jury instruction was not given on the lesser included offense at the first trial] that at the original trial, the State had chosen not to request an instruction on the lesser included offense of rape. In other words, the State had, at the first trial, failed to pursue the lesser included offense charge after jeopardy attached to it and was, therefore, forever barred from prosecuting it again.
As the court correctly explained in [another case] when faced with essentially the same facts:
... the jury ... was not instructed on [the lesser offense]. It appears that the state simply chose not to pursue a conviction for that offense, although the [defendant] was in jeopardy as to that offense. Had it so elected, the state could have requested the additional instruction [on the lesser offense]. Therefore, with respect to the [lesser] offense ..., the trial was abandoned or aborted by the state without manifest necessity.
Id. at 520(emphasis in original).