Appellant Eric Ramirez was convicted by a jury of burglary of a habitation and the commission of the felony offense of sexual assault, and the jury assessed punishment at 37 � years confinement and a $5,000 fine. By two issues, appellant challenges his conviction contending the trial court erred (1) in admitting a portion of his testimony given during a previous revocation proceeding in violation of his right against self-incrimination, and (2) in failing to include the lesser included offense of sexual assault in the court’s charge. Based upon the rationale expressed herein, we affirm.
Appellant does not challenge the legal or factual sufficiency of the evidence. Therefore, only the evidence necessary for the disposition of appellant’s issues will be discussed. On the evening of June 24, 2000, appellant burglarized the victim’s *fn1 home. After appellant entered the victim’s home and discovered that she was alone, he engaged in sexual intercourse with her. The victim’s mother, who was away from the home at that time, did not discover the burglary until the following morning. During the police investigation, appellant parked his vehicle adjacent to the victim’s home, which resulted in his identification and apprehension. After he was arrested, appellant made a voluntary written statement admitting that he broke into the home; however, he claimed that sex with the victim was consensual. At the time of arrest, appellant was on probation for a prior offense whereupon the State filed a motion to revoke his probation. Appellant was represented by counsel and testified in his own defense at the probation revocation hearing.
Testimony from the revocation hearing was admitted at trial. After his prior testimony was admitted over the objections of defense counsel, appellant again took the stand in his own defense. The written statements given to police, the testimony from the revocation hearing, and the testimony appellant gave at trial were consistent. Appellant stated that he broke into the home with the intent to steal, but denied any intent to commit sexual assault. He claimed he engaged in consensual sex with the victim, but confirmed a prior awareness of the victim’s mental retardation.
