FRANCIS JERALD VASSUER v. THE STATE OF TEXAS--Appeal from 36th District Court of San Patricio County

 NUMBER 13-05-00301-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

FRANCIS JERALD VASSUER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 36th District Court of San Patricio County, Texas.

 MEMORANDUM OPINION

 Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Hinojosa

A jury found appellant, Francis Jerald Vassuer, guilty of one count of burglary[1] and one count of aggravated robbery,[2] and assessed his punishment at twenty years= imprisonment for each count. In one issue, appellant contends the evidence is insufficient to support his convictions for burglary and aggravated robbery. We affirm.

In his statement of issues, appellant specifically challenges only the factual sufficiency of the evidence. However, in his prayer for relief, appellant requests acquittal. Because acquittal is only appropriate when a legal sufficiency challenge is sustained, we will review the evidence under both legal and factual sufficiency standards. See Loredo v. State, 130 S.W.3d 275, 278 (Tex. App.BHouston [14th Dist.] 2004, pet. ref=d).

A. Standard of Review

When we review the legal sufficiency of the evidence, we look at all the evidence in the light most favorable to the verdict to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Patrick v. State, 906 S.W.2d 481, 486 (Tex. Crim. App. 1995); Turro v. State, 867 S.W.2d 43, 46-47 (Tex. Crim. App. 1993). Sufficiency of the evidence is measured by a hypothetically correct jury charge, which accurately sets out the law, is authorized by the indictment, and does not unnecessarily increase the State=s burden of proof. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Cano v. State, 3 S.W.3d 99, 105 (Tex. App.BCorpus Christi 1999, pet. ref=d). The jury, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, is free to accept or reject all or any part of the testimony of any witness. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 2005); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982).

In a factual sufficiency review, we must determine Awhether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@ Johnson, 23 S.W.3d at 11. Evidence is factually insufficient if: (1) it is so weak as to be clearly wrong and manifestly unjust; or (2) the adverse finding is against the great weight and preponderance of the available evidence. Id. ADue deference must be accorded the fact finder=s determinations, particularly those determinations concerning the weight and credibility of the evidence.@ Id. at 9.

B. Analysis

Appellant contends the evidence is insufficient to support his convictions for one count of burglary and one count of aggravated robbery.

A person commits the offense of burglary if, without the effective consent of the owner, the person enters a habitation or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or assault. Tex. Pen. Code Ann. ' 30.02 (Vernon 2005). A person commits the offense of robbery if in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. ' 29.02 (Vernon 2005). A person commits aggravated robbery if he commits robbery as defined in Section 29.02, and he uses or exhibits a deadly weapon. Tex. Pen. Code Ann. ' 29.03 (Vernon 2005).

In the first count of the indictment, the State alleged that appellant Aand his wife, Jewel Lee Pool, acting alone and together, did then and there, with intent to commit theft, enter a habitation, without the effective consent of the homeowner, Matthew Don Carper.@ In the second count of the indictment, the State alleged that

[appellant] and Pool, acting alone and together, did then and there, while in the course of committing theft of property with intent to obtain or maintain control of said property, intentionally or knowingly threaten or place Carper in fear of imminent bodily injury or death, and the [appellant] did then and there use or exhibit a deadly weapon, to-wit: a knife, that in the manner of its use or intended use was capable of causing death or serious bodily injury.

The State presented the testimony of five witnesses. Carper=s wife testified that she had seen Pool take a weed eater out of her garage. She yelled to Carper that someone was taking their weed eater. Mr. Carper testified that upon hearing his wife, he ran out of his home and after Pool, who was running toward a brown truck with the weed eater in her hands. He saw Pool throw the weed eater into the truck and then jump in. When Carper reached the truck, he jumped and grabbed hold of the tailgate. Despite the driver=s erratic driving, he was able to climb into the bed of the truck, where he saw his lawnmower. Carper further testified that Pool could not have lifted the lawnmower into the truck by herself, and that he himself needed assistance to lift the lawnmower.

Carper also testified that after the truck stopped, the driver got out and told him to take his property and get out of the truck. Carper identified the driver as the appellant. After walking toward Carper, appellant yelled at Pool and demanded a knife. Carper said that appellant threatened to cut him and, after being handed the knife, began to slash at Carper. Carper used the weed eater defensively. While appellant threatened Carper with the knife, Pool moved into the driver=s seat of the truck and began to operate it in such a manner as to attempt to throw Carper off balance. Carper lost his balance, fell, and hit a table saw that was also in the truck. Appellant then grabbed Carper=s lawnmower and threw it out of the truck.

Carper=s wife called the police while Carper was chasing appellant and Pool. Dennis Chupe, the first police officer to arrive on the scene, testified that the truck was stopped, and Carper and appellant were involved in a confrontation. Chupe noticed a shiny object in appellant=s hand and saw him throw it on the ground. Agustin Perez, the second police officer on the scene, testified that although he dealt primarily with Pool, he noticed that there was a disturbance going on between Carper and appellant. Mark Allen Lemons, the third police officer to arrive at the scene, testified that he spoke to Carper and determined that Carper was the victim.

A rational jury could have found that Pool would have had difficulty lifting the lawnmower into the truck by herself, but appellant had the ability to lift the lawnmower by himself as he was able to throw it out of his truck. The jury could also have concluded that appellant entered Carper=s home with the intent to commit theft. The record also support=s the jury=s finding that appellant was guilty of aggravated robbery. The jury could have rationally found that appellant=s attempts to throw Carper out of the truck and to cut Carper with a knife placed Carper in fear of imminent bodily injury or death. In light of this evidence, we conclude that a rational trier of fact could have found appellant committed burglary and aggravated robbery, and that the evidence is legally sufficient to support his convictions.

Appellant argues that the jury could not have found sufficient evidence to convict him of burglary and aggravated robbery because of Pool=s testimony. Pool testified that she had taken the lawnmower and the weed eater and had not informed appellant of her actions until she had thrown the weed eater into the truck. Pool said that she took Carper=s property because she needed to purchase gas for appellant and that she knew of an individual who would pay her for a lawnmower and yard equipment.

Viewing the evidence neutrally, we conclude the evidence is not so weak as to be clearly wrong and manifestly unjust, nor is the verdict against the great weight of the evidence. Appellant=s proof, which consisted of Pool solely taking the blame for the burglary, does not greatly outweigh the proof of guilt. Accordingly, we conclude the evidence is factually sufficient to support appellant=s convictions for burglary and aggravated robbery.

Appellant=s sole issue is overruled.

C. Conclusion

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 6th day of July, 2006.

[1] See Tex. Pen. Code Ann. ' 30.02 (Vernon 2005).

[2] See Tex. Pen. Code Ann. ' 29.03 (Vernon 2005).