Lawrence, 07-01-445-CR (03/03/03) represents a recurrent problem where the State proves a serious violation of the law but neglects to show one of the factors that enhances the punishment. It appears that under current law the appellate court cannot remand for reassessment of the punishment nor retrial of the lesser offense, unless the lesser offense was submitted in the charge. But see Patterson, 46 S.W.3d at 303-4. While this is a good argument for submission of lesser offenses, there are limitations and impracticalities in the State doing that too. Is the only solution that the State either prove what is alleged or suffer an acquittal (which bars retrial of the lesser offenses)? One other solution is to not treat the aggravating factors as an element of the offense, thereby allowing affirmance of the verdict of guilt and remand for punishment for offense (punishment range) actually proved. Why must facts which affect only the degree of the offense be considered as elements? By the way the U.S. Constitution does not require that such factors be proved beyond a reasonable doubt (if they are not considered to be elemental facts). So the Lawrence conviction might even have been saved without a retrial.

[This message was edited by Martin Peterson on 03-09-03 at .]