                              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




                                               -2-
