JOHNNY RAY MUMPHREY, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed November 15, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01165-CR
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JOHNNY RAY MUMPHREY, Appellant
V.
THE STATE OF TEXAS, Appellee
 
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On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F88-83304-QK
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OPINION PER CURIAM
Before Justices McClung, Lagarde and Ovard
        Johnny Ray Mumphrey appeals his conviction for robbery. Punishment was assessed at thirty-five years' confinement.
        Appellant's attorney has filed a brief in which appellant's attorney has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no meritorious grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). A copy of counsel's brief has been delivered to appellant and appellant has been advised that he would be given the opportunity to examine the appellate record and that he had a right to file a pro se brief. No pro se brief has been filed. Counsel has raised two arguable points: 1) the evidence is insufficient to support the conviction; and 2) the prosecutor engaged in inproper jury argument. Finding no merit in these claims, we affirm.
        In his first arguable point, appellant contends that the evidence, although sufficient to show him guilty of theft, is insufficient to show appellant guilty of robbery. Appellant testified that he walked into the Kroger store and noticed a woman counting money. As she turned away from the money, he grabbed it and ran out of the store. He denied making any threatening statements to the woman. The woman, cashier Debra Punch, testified that appellant walked behind her and to the side of her as she was standing at the cash register with the drawer open. He told her, "I am robbing you and you better not say nothing because I'll blow your brains out." She said okay and of stood back while he took the money. She did not see a gun, but she only saw one of appellant's hands and thought he had a gun in the other hand. She feared imminent bodily injury, was scared, and her life flashed before her. She never realized that appellant did not have a gun.
        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 jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony and may accept or reject any or all of the testimony of the witnesses of either the State or the accused. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985).
        The complainant testified that appellant threatened to blow her brains out and that she believed he had a gun. She was scared and her life flashed before her. She feared serious bodily injury. Viewed in the light most favorable to the verdict, this testimony amply establishes that appellant threatened and placed complainant in fear of serious bodily injury. Compare Patterson v. State, 639 S.W.2d 695, 696-97 (Tex. Crim. App. [Panel Op.] 1982) (evidence sufficient where robber threatened complainant with physical harm, complainant thought robber had a gun, and complainant testified that she was in fear of imminent bodily injury). Arguable point of error one is overruled.
        In his second arguable point, appellant contends that the prosecutor engaged in improper jury argument. He objected at trial and, in response, the trial court stated, "rephrase your argument, sir." In order to preserve error for appeal, a party must procure an adverse ruling to his objection. Tex. R. App. P. 52(a). The trial court's statement did not consitute an adverse ruling. Compare Graham v. State, 566 S.W.2d 941, 954 (Tex. Crim. App. 1978) (admonition to stay within record not an adverse ruling); Mayberry v. State, 532 S.W.2d 80, 84 (Tex. Crim. App. 1975) (statement that jury will recall the evidence not adverse ruling); cf. Reed v. State, 762 S.W.2d 640, 646 (Tex. App. -- Texarkana 1988, pet. ref'd) (error not preserved where, in response to trial court's instruction, prosecutor rephrased question). By failing to obtain an adverse ruling, appellant has not preserved any error for appellate review. We overrule arguable point of error two.
        We have carefully reviewed the record and counsel's brief and agree that the appeal is wholly frivolous and without merit. Further, we find nothing in the record that might arguably support the appeal.
        The judgment is affirmed.
 
                                                          PER CURIAM
 
Do Not Publish
Tex. R. App. P. 90
 
 
File Date[11-15-89]
File Name[881165F]