Ex Parte Granger

Once again the Court is called upon in this cause to address the question whether following acquittal of a greater inclusive offense an accused may be prosecuted for a lesser included offense for which the evidence at the first trial was legally sufficient, consistent with the Fifth Amendment Double Jeopardy Clause. See Stephens v. State, 806 S.W.2d 812 (Tex.Cr.App.1990). Specifically we must address one of the questions expressly left open in Stephens, viz: “whether the Double Jeopardy Clause [bars] a subsequent prosecution if the jury charge ... included an instruction on the lesser…