OPINION ON STATE’S MOTION FOR REHEARING
CLINTON, Judge.On original submission a unanimous panel of the Court held the evidence was insufficient to support the jury’s verdict that appellant committed the offense of burglary of a habitation with intent to commit the “felony offense of retaliation,” which was in turn authorized by the court’s abstract charge upon a finding that such intended retaliation was “for or on account of the service of another as a witness.”1 The State conceded the evidence adduced did not support such a finding of fact by the jury.
On motion for rehearing, however, the State’s Attorney contends the evidence was adequate to support the indictment allegation that appellant intended to commit the offense of “retaliation” — so long as the general term, “retaliation,” is specifically narrowed to the alternative theory in which the intended victim is an “informant” as opposed to “witness.”2 Therefore, goes the argument, the error in the case is merely a matter of an erroneous charge which was drafted on a theory not supported by the evidence and, as such, presents only “trial *712error” which does not necessitate the entry of a judgment of acquittal.
A review of the record and the transcription of the court reporter’s notes reveals that all of appellant’s specially requested charges were denied, and all of his objections to the charge given were overruled. Thus, there is no indication that the instructions ultimately given to the jury were done so at the instance of appellant. Furthermore, the record reflects no objection was lodged by the State to the portion of the court’s charge now complained of on rehearing; neither did the State request that portion of the charge be limited only to (or expanded to include) the theory of “retaliation” that party contends was the only one supported by the evidence. And finally, neither does the State argue the court’s charge was fundamentally erroneous — and clearly, it was not. See Robinson v. State, 596 S.W.2d 130 (Tex.Cr.App.1980), and cf. Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977).
While the State today advances a provocative argument, it is apparent that the State also acquiesced at trial to the court’s unnecessary limitation of the legal theory in issue, to one which was not established by that party’s evidence. Thus, as a procedural matter, we believe the State’s complaint is behindhand: the trial is over, the verdict in, the proverbial damage done.
We therefore hold that, as a matter of procedure, the State may not avoid the consequences of its lapse under the circumstances presented.
Because a verdict of “guilty” necessarily means the jury found evidence of that on which it was authorized to convict, the evidence is measured by the charge which perforce comprehends the indictment allegations.3 It follows that if it does not conform to the charge, it is insufficient as a matter of law to support the only verdict authorized.4 Even if we agreed with the State that the court’s instruction constituted reversible error in a vacuum, it is now settled that, though finding reversible “trial error,” the Federal Constitution compels us nevertheless to review the sufficiency of the evidence, if raised by the appellant. Thompson v. State, 621 S.W.2d 624 (Tex.Cr.App.1981); Penagraph v. State, 623 S.W.2d 341 (Tex.Cr.App.1981); Hooker v. State, 621 5.W.2d 597 (Tex.Cr.App.1981); Rains v. State, 604 S.W.2d 118 (Tex.Cr.App.1980); Swabado v. State, 597 S.W.2d 361 (Tex.Cr.App.1980). Ironic indeed is the observation that the State’s Attorney by necessity has reviewed the evidence and found it deficient, in order to raise his contention that the charge contained error at all; yet we are nevertheless asked to ignore that established deficiency!
Under the court’s charge, the only verdict authorized in view of the evidence was “not guilty.” Upon scrutiny the State’s contention on rehearing is tantamount to an argument that, had the jury returned the only verdict authorized, the State should be given an opportunity to correct the omission in the trial court’s charge upon a retrial.5 Patently, the State may not do on motion for rehearing what the Constitution and laws of this State prohibit it from doing upon the return of a “not guilty” verdict.6
Finding no “trial error” of which the State may at this point in the process avail itself to the end of a more desirable result, we must conclude the disposition of this cause made on original submission was correct. Cf. Thornton v. State, 601 S.W.2d 340 (Tex.Cr.App.1980) (Opinion on motions for rehearing).
The State’s motion for rehearing is accordingly overruled.
DALLY and McCORMICK, JJ., dissent.*713Before the court en banc.
. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. See opinion on original submission wherein it is fully explicated that V.T.C.A.Penal Code, § 36.06(a) proscribes retaliation against another on account of service as a “public servant,” “witness,” or “informant,” each of which has a distinct technical meaning.
. V.A.C.C.P., Articles 1.15; 36.13; 38.04; 36.-14; 38.03; 37.07, § 2(a); 37.07, § 1(a) and (b); 37.01; 37.12; 42.01, § 1(4)-(8); and 1.04.
. Ibid; and 40.03(9), V.A.C.C.P.
. And indeed, an error for which the State was as responsible as anyone the first time around.
. See Article V, § 26 Tex. Const.; Articles 40.-02; 44.01, V.A.C.C.P.; see also Faulder v. Hill, 612 S.W.1d 512 (Tex.Cr.App.1980) (Opinions on original submission).