HOWARD JAMES HAMPTON, FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00726-CR
HOWARD JAMES HAMPTON, FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES STEWART, BAKER AND WHITTINGTON
OPINION PER CURIAM
JUNE 22, 1989
        The trial court convicted appellant of aggravated robbery and assessed punishment at twelve years' confinement. In his sole point of error, appellant contends that the evidence is insufficient to support his conviction. We affirm.
        Appellant argues that the evidence is insufficient because there was no proof that appellant took the complainant's automobile as alleged in the indictment. The required elements of aggravated robbery are that (1) a person (2) in the course of committing theft (3) with intent to obtain or maintain control of property (4) intentionally or knowingly (5) threatens another with, or places another in fear of (6) imminent bodily injury or death and (7) uses or exhibits (8) a deadly weapon. Bilbrey v. State, 594 S.W.2d 754, 759 (Tex. Crim. App. 1980).
        The complainant testified that he was drinking at the Righteous Brothers Lounge when he was approached by appellant, whom he had known as the son of good friends, for several years. Appellant offered complainant two dollars for a ride home. The complainant told appellant that he would take him home for free. They left immediately. Only the complainant and appellant were in the car. While appellant was giving directions, he told complainant to stop the car.
        When the complainant stopped the car, appellant said, "This is a stickup." Appellant pointed a gun at the complainant, and when the complainant resisted by reaching toward him, appellant shoved him back and hit him on the head with the pistol. The complainant exhibited the scar over his left eye caused by the pistol blow. Appellant took the complainant's wallet, a pocket knife, about $6.00 in cash, and the car keys.
        The complainant testified that appellant then left the car, leaving the bleeding complainant in the driver's seat. The complainant also left the car to call the police. A man who saw him bleeding also called an ambulance. After calling the police, the complainant returned to the place he left his car, but it was gone. He testified that he had been gone only ten or fifteen minutes. He did not see appellant take his car.
        Appellant's version of the events differs substantially. He testified that he saw the complainant at "Mama Reese's house," and offered him two dollars for a ride home for himself and his eight-year-old son. The complainant had a gallon of gin in his hand and said he was going to the club to drink. Appellant and his son went with the complainant to the club, and waited on the porch for the complainant to take them home. Appellant testified that he looked for his mother, who worked at the lounge, but another woman told him his mother had already left. Appellant testified that the complainant went into the club around 9:30 p.m., and around midnight appellant went into the club to see if the complainant was ready to leave. He testified that the complainant was intoxicated and arguing with another patron. He convinced the complainant it was time to leave, and he and his son got into the car with the complainant.
        Appellant testified that as the complainant drove him toward his home he was weaving while driving. At one point a police car came by and an officer on the loud speaker told the complainant to move over. The complainant thought the police were pulling him over, so he pulled into a gas station. Appellant told him that the police did not want him to stop, but were just telling him to get back into his lane. The complainant responded that he needed to get gas anyway, but appellant told him he had gas in his car and that the gas station was closed. Nevertheless, the complainant got out of the car and walked toward the pumps. Two men in a car pulled into the gas station, and followed the complainant back to his car. They forced the complainant into the car and made him drive. They told the complainant to stop the car and pulled him from the car. Appellant told his son to run home. When the two men hit the complainant, appellant got out of the car and told them to stop. They then hit appellant on the head with a brick. Appellant ran home, stopping at a phone booth to call the police.
        Appellant testified that after he got to his apartment, the same two men kicked down his door, having apparently followed him home. Appellant told the men that he had called the police and they left. They were only in his apartment for two or three minutes. When the police came, appellant testified, he told them that he and the complainant had been robbed by two men, that the men had hit him, and that they had followed him home and had broken down his door. He showed them his bleeding head wound. The police left. The two men then returned, forced their way into the apartment again and began ransacking the place and asking for money and guns. Appellant testified that he grabbed a lug wrench and the men left. He again called the police. Appellant also testified that he saw the two men who had robbed him driving the complainant's car on the morning following the robbery. He also pointed out the two men in the car to his mother.
        Appellant admitted that he had been previously convicted of misdemeanor theft and was currently on probation for burglary of a vehicle. He stated that the complainant was intoxicated the night of the robbery and was known to drink heavily. He did not know why the complainant said appellant robbed him rather than the two men who did it.
        Appellant's wife testified that her husband returned home around 11:00 p.m. or 12:00 a.m. the day of the robbery. She had been watching television and was half asleep. When her husband came in, he was out of breath and told her he and the complainant had been robbed. Their son was with him at the time. Two men kicked in the door and demanded money and guns. She testified that the two men were in the apartment about twenty or thirty minutes. She stated that the men came to the apartment only once.
        Appellant's mother testified that she saw her son the night of the robbery. He came to the Righteous Brothers Club and asked her for some money to get the children something until she got off work. He also asked for a ride home, but she told him he would have to wait until 1:00 a.m. until she got off work. The mother testified further that after the robbery the complainant told her he really did not know how many robbers there were. When she asked if he were drunk at the time of the robbery, he said he was not although he admitted he had been drinking. Appellant's mother testified that the complainant always drank heavily. She also testified that she saw the complainant's car on Sunday morning following the Friday night robbery. The car was driven by two men she did not know.
        Appellant's eight-year-old son testified that two boys broke out their windows, kicked in their door, hit his daddy with a brick and tried to take all his money. He was sitting on the couch with his mother and father when the two men came in. Before that, he was with his dad at the Righteous Brothers Club. He testified that he could not remember being with the complainant that night and that nothing funny happened on the way home. He also testified, however, that the complainant gave him and his father a ride part of the way home. He admitted that when he talked to a police officer concerning the events of that night, he told him that he had last seen his father at 4:00 that afternoon and did not see him again until he got home that night.
        Officer Dwyer testified that he interviewed appellant's son four days after the robbery. The boy told him that he was not in any car with his father that night and that the last time he saw his father was about 4:00 when his daddy went to school. He said that he stayed in the apartment all day and later that evening, while he was asleep, two men burst into the apartment and hit his daddy and demanded to know where the guns were. Officer Dwyer also testified that the complainant's car was recovered on Sunday, April 3, two days after the robbery. The car was found one street over from where appellant lived.
        Officer Martinez testified that he responded to a call at appellant's apartment. Appellant told him that a couple of Jamaicans had been following him and had entered his apartment and caused some kind of disturbance. He told him that he did not need the police anymore and that they could leave. He did not mention any robbery at that time. Officer Martinez was called to the apartment complex a second time that night. Someone he thought was appellant's girlfriend or wife told him a little more about the prior disturbance. She told him that she knew the two men and had let them in and then once inside they had caused a disturbance and someone had broken a window. He saw appellant again on this second visit. Appellant did not mention any robbery on this occasion.
        The standard for appellate review of the sufficiency of the evidence is to view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Marroquin v. State, 746 S.W.2d 747, 750 (Tex. Crim. App. 1988); Garrett v. State, 682 S.W.2d 301, 304 (Tex. Crim. App. 1984), cert. denied, 471 U.S. 1009 (1985). The trial judge, when sitting as the sole trier of facts, is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987), cert. denied, 109 S. Ct. 86 (1988). He may accept or reject any or all of the testimony of the witnesses for either the State or the accused. Id.
        Appellant concedes that the trial court could believe all of the complainant's testimony and discount all of the defense evidence. He nevertheless argues that the evidence is insufficient because the evidence does not establish that appellant took the complainant's automobile. The offense of aggravated robbery does not require that the property sought actually be obtained. Johnson v. State, 541 S.W.2d 185, 187 (Tex. Crim. App. 1976). It is enough to show that the accused was acting in the course of committing theft and with intent to obtain or maintain control of the property. Id. Thus, if the evidence shows that appellant acted in the course of committing theft and with the intent to obtain or maintain control of the automobile as alleged in the indictment, then the conviction must be affirmed.
        The evidence showed that appellant pointed a gun at the complainant, hit him on the head with the gun and took his money, wallet and car keys. Intent to steal may be inferred from actions or conduct. Drew v. State, 743 S.W.2d 207, 216 (Tex. Crim. App. 1987); Johnson, 541 S.W.2d at 187. We conclude that appellant's intent to obtain or maintain control of the automobile may be inferred from his taking of the car keys. Further, the evidence showed that the automobile disappeared shortly after appellant took the keys and was recovered in close proximity to appellant's residence.
        We hold that the evidence is sufficient to support appellant's conviction. We overrule point of error one and affirm the trial court's judgment.
                 PER CURIAM
                
                
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00726.F
 
 
File Date[01-02-89]
File Name[880726F]