Trejo v. State

In this appeal, we must decide whether the trial court had jurisdiction to enter a judgment convicting appellant, Roberto Yarit Trejo, of aggravated assault when he was indicted for aggravated sexual assault but convicted of aggravated assault, which was submitted as a lesser-included offense. We conclude (1) aggravated assault is not a lesser-included offense of aggravated sexual assault as charged in the indictment, (2) the trial court therefore was without jurisdiction to convict appellant of aggravated assault, and (3) contrary to the States argument, appellant was not required to make a record affirmatively showing he did not request that the trial court submit aggravated assault to the jury as a lesser-included offense. Accordingly, we vacate the judgment of conviction for aggravated assault and remand to the trial court to render a judgment of acquittal on the charged offense of aggravated sexual assault.