OPINION ON STATE’S SECOND MOTION FOR REHEARING
W.C. DAVIS, Judge.On original submission a unanimous panel of this Court held the evidence 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. See V.T.C.A., Penal Code, § 36.06. The jury’s verdict was authorized by and based upon the court’s charge which stated in the definitional portion of the charge: “A person commits the offense of retaliation if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service of another as a witness.”1
The State’s motion for leave to file a motion for rehearing was granted. The motion for rehearing was denied on the merits, this Court specifically rejecting the State’s argument that the evidence need only be sufficient to support the general allegations in the indictment and that the court’s charge which defined the victim as a “witness” was error. This Court further stated that “[bjecause 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. 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.”
The State’s Prosecuting Attorney filed a motion for leave to file a second motion for rehearing arguing the identical contentions rejected in the first motion for rehearing. The motion for leave to file was granted. Cf. Tex.Cr.App.R. 309(f).
We once again address the issue of whether the reviewing court must look to the indictment — as the State contends, or to the charge — to determine the sufficiency of the evidence.
An indictment serves two functions. First, it gives the court jurisdiction over the case. American Plant Food Corp. v. State, 508 S.W.2d 598, 603 (Tex.Cr.App.1974). Second, it satisfies due process requirements by providing notice to a defendant of that offense with which he is charged. Sattiewhite v. State, 600 S.W.2d 277, 282 (Tex.Cr.App.1979) (opinion on rehearing 1980). The State is bound by the allegations it sets out in the indictment and it must prove those allegations, because of due process requirements, beyond a reasonable doubt. Taylor v. State, 637 S.W.2d 929, 930 (Tex.Cr.App.1982); Moore v. State, 531 S.W.2d 140, 142 (Tex.Cr.App.1975).
In order to satisfy the dual requirements of jurisdiction and sufficient notice to a defendant, the indictment must allege all the necessary elements of the offense. One “exception” to this rule is that a burglary indictment, as in this case, must allege the specific elements of burglary, but will satisfy due process to the extent that it is not rendered fundamentally defective by merely alleging the intent element with the phrase “with intent to commit theft (or a particular felony)” without setting out the elements of theft or of that felony.
The indictment is directed to the defendant. The charge, on the other hand, is directed to the jury. The charge must set out all the essential elements of the offense. Jackson v. State, 633 S.W.2d 897 (Tex.Cr.App.1982); Zuckerman v. State, 591 S.W.2d 495 (Tex.Cr.App.1979). The charge should correspond with and incorporate the allegations in the indictment. Jackson, supra; Hardie v. State, 588 S.W.2d 936 (Tex.Cr.App.1979); see also Sattiewhite v. State, supra.
The purpose of the charge is to inform the jury of the law applicable to the case. The judge must deliver to the jury a written charge “distinctly setting forth the law applicable to the case.” Art. 36.14, V.A.C.C.P. Therefore, it follows that the *714jury must be informed of the individual elements that constitute the offense for which a defendant is being tried. For example, in the present case the indictment alleged in pertinent part: “[Appellant] did then and there intentionally and knowingly enter a habitation without the effective consent of Virgie Harris, the owner, having intent to commit the felony offense of retaliation.” The elements of retaliation were not set out. Before the jury could fairly convict appellant they had to be informed of the elements that constitute the offense of retaliation. Clearly the jury must know what is alleged to have been intended before they can pass upon the question of the existence of the alleged intent.
The statutory elements of an offense must be set out either in the application paragraph or in the definitional portion of the charge. Lewis v. State, 656 S.W.2d 472 (Tex.Cr.App.1983); Evans v. State, 606 S.W.2d 880 (Tex.Cr.App.1980). The court in this case properly—and without objection— informed the jury that the offense of retaliation is committed if a person “intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service of another as a witness.”2
The charge in this case contains no error. It informs the jury of the State’s theory of what the appellant did. It corresponds to the allegations in the indictment and it informs the jury of the law, including those individual elements which must be proved by the State to constitute the offense of burglary with intent to commit retaliation, the State’s theory of the case, and the burden of proof in which the State acquiesced.
The charge states that “in matters of law you must be governed by the instructions, definitions, and the rulings of the Court.” The jury evaluates the evidence and applies it to the instructions and definitions given in the charge. A jury determines guilt or innocence based upon that charge. A defendant is found guilty or not guilty by a jury, based upon the evidence adduced as viewed in light of the charge.
We turn now to the sufficiency issue. This case was reversed on original submission because the evidence was insufficient to show that appellant “possessed the requisite intent to act ‘in retaliation for or on account of the services of another as a witness.’ ” This Court, relying on Ulmer v. State, 544 S.W.2d 414 (Tex.Cr.App.1976) and a more recent case not decided at the time of appellant’s trial, Jones v. State, 628 S.W.2d 51 (Tex.Cr.App.1980), held that the term “witness” means “ ‘one who has testified in an official proceeding,’ and does not include a mere ‘prospective witness.’ ” The record shows that the victim, Mary Benson, was a prospective witness at the time and was not, under the facts of the case, a witness under Art. 36.06, V.T.C.A.
The State argues that, because the indictment simply alleged “... with intent to commit retaliation” and did not further define retaliation, the evidence is not insufficient because of the failure of the state’s proof, but only because of the court’s unnecessarily restrictive charge. The State contends that under Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) sufficiency of the evidence should be measured by the indictment alone and not by the charge; under the State’s theory the evidence in this case is sufficient since the general allegation of “retaliation” in the indictment would include retaliation against a witness, informant or public servant and the evidence is sufficient to prove that Mary Benson was an “informant” under Art. 36.06. We do not agree with the State’s fundamental premise.
The standard by which sufficiency is measured was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); “The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” This standard must *715be applied to the evidence and to a correct charge that corresponds to the indictment allegations. The verdict comes from the jury’s determination of the evidence in light of the instructions and law given in the charge. The indictment is directed to the defendant for notice and jurisdiction requirements. It is the charge that “convicts.”
Some cases have relied on the indictment to determine sufficiency, particularly when a variance or “extra” allegation is involved.
The variance problem is a due process issue and the “extra” allegation problem involves the charge. See Ortega v. State, - S.W.2d -No. 821-82, n. 11 (delivered September 14, 1983). Many cases discuss sufficiency without reference to either the indictment or the charge. Rather they discuss the elements of the offense and whether the evidence supports the statutory elements. A charge should contain the statutory elements so that the conviction is based on the law and on the jury’s determination of the evidence as applied to that law.
Generally, all the essential elements of an offense are set out in the indictment. In burglary however, the intent element involves another offense which is not required to be set out by its elements, but can simply be defined in the charge. When that occurs, the only guide to the jury in determining what the essential elements of an offense are, is necessarily, the definition in the charge. The charge together with the proof and the indictment reflects the State’s theory of the offense. The charge must define the offense so that the jury knows its essential elements.
The charge in this case was not erroneous. The application paragraph tracked the indictment exactly. A commonsense reading of the charge to determine if the State had met its burden and proved all the essential elements consistent with its theory of the case, meant that the jury would necessarily have to refer to the definition of the offense of retaliation in order to determine if all elements of that offense had been proved. It appeared to all intents and purposes that the State’s theory of retaliation involved a “witness”. The proof does not support a conviction under this theory.
In Jason v. State, 589 S.W.2d 447, 452 (Tex.Cr.App.1979), we said that the “language of the verdict should be interpreted in light of the indictment and charge.” Jason involved an improper verdict form. This Court affirmed the conviction in Jason, holding that all three — the verdict indictment and charge — should be examined together. See also Chavez v. State, 657 S.W.2d 146 (Tex.Cr.App.1983). The same theory applies to this case for sufficiency determination.’ We hold that when a charge is correct for the theory of the case presented we review the sufficiency of the evidence in a light most favorable to the verdict by comparing the evidence to the indictment as incorporated into the charge.
There is an interaction between the indictment, proof and charge. The State shapes the indictment to charge a defendant with a particular offense. They then seek to prove all the elements of that offense. The next step is a sort of “codification” of the State’s theory of prosecution, the particular statutory elements together with definitions, instructions, and defenses. The charge comprises these.
In the instant case the State did not object to the burden of proof placed on it by the trial court’s instructions to the jury. There was nothing to suggest that the State’s theory was anything but retaliation as directed to a “witness.” Unfortunately for the State, the evidence was insufficient to support that theory, given this Court’s interpretation of “witness.” The State has failed to satisfy its burden of proof. See Jones, supra and Sewell v. State, 629 S.W.2d 42 (Tex.Cr.App.1982).
The United States Supreme Court in Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960); Burks, supra, and most recently in Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1981) has stated that legal insufficiency “means that the government’s case was so lacking that it should not have even been submitted to the *716jury.” Burks, 437 U.S. at 16, 98 S.Ct. at 2149. The Court went on to say:
Since we necessarily afford absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.
437 U.S. at 16, 98 S.Ct. at 2149.
The Supreme Court noted that legal insufficiency may not necessarily coincide with innocence. In other words insufficiency means that the State’s case could be cured or satisfied only by the introduction of new evidence to prove, if possible, their theory of the case. Forman, 361 U.S. at 426, 80 S.Ct. at 487. In the present case a reading of the charge that presents the law of the case, together with the State’s indictment demonstrates that the State was proceeding under an erroneous assumption that Mary Benson was a “witness.” It is as if the State had charged one offense and proved another. The State would have to present additional evidence to show that Benson had testified in order to prove “witness.” A reading of the charge and indictment as incorporated into the charge shows that the evidence is insufficient as a matter of law to support the jury’s verdict and the conviction.
This case is analogous to a situation in which a proper indictment alleges the elements of burglary and alleges the intent element as “intent to commit theft.” Since a jury charge authorizing a conviction must require the jury to find all the elements of the offense, Evans, supra, and Thompson v. State, 574 S.W.2d 103 (Tex.Cr.App.1978), and theft has several different sets of possible elements, the charge must set out one of those sets of theft elements. See Ex Parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976) (opinion on rehearing 1977). If the State fails to object to a charge that-defines theft in terms of elements of receiving stolen property and the evidence shows an unlawful appropriation from the owner, the conviction should be reversed for insufficient evidence if a jury convicts under such a charge. The only possible interpretation of the indictment and charge is that the State’s theory is burglary with intent to commit theft — theft by receiving stolen property. Therefore in viewing the evidence in terms of a proper charge incorporating the indictment, a reviewing court would be bound to find the evidence insufficient as a matter of law.
The State’s second motion for rehearing is denied.
TEAGUE and MILLER, JJ., concur.. Emphasis added.
. Emphasis added.