Joseph Tyrone Williams v. The State of Texas--Appeal from 230th District Court of Harris County

Opinion issued March 17, 2005

In The

Court of Appeals

For The

First District of Texas

NOS. 01-03-01295-CR

01-03-01296-CR

JOSEPH TYRONE WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause Nos. 956410 & 947331

MEMORANDUM OPINION

Appellant, Joseph Tyrone Williams, was charged in three separate indictments with the felony offenses of aggravated assault, robbery, and the unlawful possession of a controlled substance, namely Phencyclidine ( PCP ). Appellant pleaded not guilty in all three cases. The cases were tried before a single jury, which found appellant guilty of aggravated assault and robbery, but not guilty of possession of PCP. The trial court assessed punishment at 20 years in prison for the aggravated assault, and 40 years in prison for the robbery, with the sentences to run concurrently.

In his appeal of the aggravated assault conviction, appellant presents six points of error. In his first and second points of error, appellant asserts that the trial court erred by (1) denying his motion to quash the indictment because it does not set out the manner and means by which he used a motor vehicle as a deadly weapon and (2) failing to compel the State to elect one transaction on which to base a conviction for aggravated assault upon a public servant. In his third, fourth, fifth, and sixth points of error, appellant asserts that the evidence is legally and factually insufficient to prove that he threatened the complainant with imminent bodily injury as alleged, and to prove that the motor vehicle he operated constituted a deadly weapon.

In his appeal of the robbery conviction, appellant presents four points of error in which he asserts that the evidence is legally and factually insufficient to prove that he caused complainant bodily injury by pushing complainant with his hands, and to prove that he was committing a theft when the complainant was injured. We affirm.

BACKGROUND

Houston Police Department ( HPD ) officers N.R. Kuehn and W.J. Wehr testified at trial that they saw appellant sitting in a stolen car in front of a restaurant in the 9400 block of Homestead Road. When they approached the stolen car, Officer Kuehn told appellant to get out of the car. Appellant did not comply and backed the car into Kuehn s patrol car, cutting the car s steering wheel sharply to do so. Appellant then drove away at a high rate of speed. Both officers pursued appellant, but lost him in traffic.

Reginald Clark testified that he was sitting behind the wheel of his parked but running 1988 Oldsmobile, which was on the side of the road in front of the house of a friend he had been visiting. Clark stated that his 11-month-old son was buckled into a child safety seat in the back seat of the car, and his wife was standing outside the car talking with an elderly lady. Clark said he saw appellant running toward him and then jump into the passenger side of the car. Clark testified that appellant offered Clark $200 for a ride, but Clark refused. Clark told appellant, whom he did not know, that he couldn t give him a ride because my baby is in the car. Clark said his wife began ordering appellant out of the car and, when she told appellant that a police car was coming, appellant asked Clark to act like he knew him. Clark stated that he stepped partially out of the car to alert the approaching HPD patrol car by making motions toward appellant. Appellant then pushed him all the way out of the car and drove off. Clark testified that he reached back inside the car and grabbed the steering wheel but was thrown off by the acceleration of the car. Clark said his left leg was injured when he was thrown from the speeding car.

When Officer B. L. Diettrich saw appellant sitting in the car and Clark s gestures, he approached the car and ordered appellant to get out, but appellant pushed Clark from the car and sped off. Diettrich said he heard Clark s wife screaming that her baby was in the car and he returned to his patrol car to pursue appellant. The ensuing chase involved as many as ten patrol cars and ten HPD officers. During the chase, appellant attempted to ram Clark s car into Diettrich s patrol car multiple times, causing at least three collisions between the two vehicles. Diettrich said that the first time appellant rammed his patrol car was when he had gotten out in front of appellant, who started to slow down, but then he sped up and rammed the back of my patrol car. As a result of this collision, Diettrich said he hurt his knee when it was slammed into the dashboard. Diettrich testified that appellant then backed up and that his car hit me again, although he didn t think the second collision was intentional because appellant s car was pushed by Officer S. F. Casko s patrol car. Diettrich said that he continued to pursue the appellant, who ran red lights, sped the wrong way down busy streets, rammed into the back of a pickup truck, and hit some railroad ties under a bridge and slammed into the bridge wall. Shortly after his car hit the bridge wall, appellant rammed his car into Diettrich s patrol car again, running it into a ditch. Both Diettrich and Casko testified that, at this point, appellant pulled his car over because it was no longer driveable. Appellant still refused to get out of the car and had to be pulled out by officers. The officers found Clark s 11-month-old son, covered with shattered glass but appearing otherwise unharmed, still strapped into the child safety seat.

Casko testified that he had joined the pursuit, had witnessed appellant s attempts to ram Diettrich s patrol car, and had witnessed the actual collisions. Casko said that, after appellant s car quit working and he had placed appellant under arrest, he found two brown bottles in the front seat of the car appellant had stolen from Clark. Casko testified that he believed that one bottle contained PCP and that the other contained marijuana. DISCUSSION

Motion to quash indictment for aggravated assault

In his first point of error, appellant asserts that the trial court erred in denying his motion to quash the indictment in the aggravated assault case because the indictment fails to set out the manner and means by which the appellant used or exhibited a motor vehicle as a deadly weapon. We review a trial court s ruling on a motion to quash an indictment under an abuse of discretion standard. State v. Goldsberry, 14 S.W.3d 770, 772 (Tex. App. Houston [1st Dist.] 2000, pet. ref d)(citing Thomas v. State, 621 S.W.2d 158, 163 (Tex. Crim. App. 1981) (op. on reh g)). Subject to rare exceptions, an indictment tracking the language of the statute will satisfy constitutional and statutory requirements, and the State need not allege facts that are merely evidentiary in nature. Murphy v. State, 95 S.W.3d 317, 321 (Tex. App. Houston [1st Dist.] 2002, pet. ref d) (citing State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998)). An indictment must convey sufficient notice to allow the accused to prepare his defense. Id. Upon review, we first determine if the notice given is sufficient and, if it is, our inquiry is ended. Crum v. State, 946 S.W.2d 349, 359 (Tex. App. Houston [14th Dist.] 1997, pet. ref d).

Here, the indictment alleges that appellant did, while in the course of committing theft of property owned by Reginald Clark and with intent to obtain and maintain control of the property, intentionally, knowingly and recklessly cause bodily injury to Reginald Clark, by pushing the Complainant from a motor vehicle with his hands. Appellant admits that the indictment tracks the language of the applicable penal code and states an offense. He asserts, however, that driving a motor vehicle is otherwise innocent conduct requiring the State to give notice of the precise acts that constituted the use of the motor vehicle as a deadly weapon, and suggests that his use of the car might not be a criminal offense at all, or might constitute the alternative offenses of reckless conduct, a terroristic threat, or disorderly conduct.

A motion to quash should be granted only when the language concerning the defendant s conduct is so vague or indefinite as to deny the defendant effective notice of the acts he allegedly committed. DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988). The indictment in appellant s aggravated assault case gives him sufficient notice of the acts he allegedly committed. See St. Clair v. State, 26 S.W.3d 89, 95-96 (Tex. App. Waco 2000, pet. ref d) (affirming denial of motion to quash both assault indictment and deadly weapon allegation despite failure to specify means and manner motor vehicle was used as deadly weapon to threaten police officer); Hare v. State, 713 S.W.2d 396, 398 (Tex. App. El Paso 1986, pet. ref d) (rejecting appellant s assertion that indictment must allege manner and means where indictment charged that motor vehicle was deadly weapon whose use was intentional or knowing assault by threat ). The precise acts appellant seeks were evidentiaryin nature and did not need to be alleged in the indictment for notice purposes. See Murphy, 95 S.W.3d at 321. We hold that the language of the indictment was not so vague or indefinite as to deny appellant effective notice of the acts he allegedly committed. We overrule appellant s first point of error.

Failure to compel election in aggravated assault case

In his second point of error, appellant asserts that the State should have been required to elect only one instance of appellant s attempts to ram Clark s car into Diettrich s patrol car. Appellant correctly states the general rule that, when an indictment alleges a single offense and the proof at trial shows the alleged offense occurred more than one time, the defendant is entitled to have the State elect the single transaction it will rely upon for conviction. O Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988). However, appellant s assertion that each time he attempted to crash into Diettrich s patrol car was a distinct and separate transaction is without merit. His flight from the police, and the incidents of his attempts to ram, and actually crashing into, Diettrich s patrol car, were part of one continuous criminal transaction. Compare Crawford v. State, 696 S.W.2d 903, 906 (Tex. Crim. App. 1985) (holding that election was necessary because alleged multiple rapes over 12-day period were not one continuous course of conduct or transaction) with Steele v. State, 523 S.W.2d 685, 687 (Tex. Crim. App. 1975) (holding that no election was required when two alleged acts were part and parcel of same criminal transaction, despite separation by time and distance, because of defendants continuing and intervening actions) and Bethune v. State, 363 S.W.2d 462, 464 (Tex. Crim. App. 1962) (holding that repeated rape of victim was one criminal transaction that required no election because acts occurred in same bed on same night). We overrule appellant s second point of error.

Factual and legal sufficiency

In his remaining points of error, appellant challenges the legal and factual sufficiency of the evidence to support the two convictions. In reviewing the evidence on legal sufficiency grounds, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 19, 99 S. Ct. 2781, 2788 89 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In a factual sufficiency review, we view all the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004), pet. for cert. filed, __ U.S.L.W. ___ (U.S. Dec. 20, 2004 (No. 04-7807) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004)). We should not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

A. Sufficiency of the evidence to prove aggravated assault

1. Threat of imminent bodily injury

In his third and fourth points of error concerning his conviction for aggravated assault, appellant alleges that there is no proof that he threatened Diettrich with imminent bodily injury. He asserts the following:

The record fails to show that the complainant [Diettrich] was threatened with imminent bodily injury by the appellant s actions [and] . . . fails to show that the complainant was ever injured. The record likewise fails to show that the vehicle collisions were of such a nature that the complainant was placed in the threat of imminent bodily injury.

Our review of the record shows it to be replete with uncontested evidence contrary to appellant s assertions. Diettrich and Casko testified that appellant was driving at a high rate of speed and accelerated toward Diettrich s patrol car before striking it the first time. Diettrich testified that his knee was injured in that collision. In the final collision, appellant swerved his car into Diettrich s patrol car running it into a ditch.

Viewing the evidence in the light most favorable to the prosecution, we hold that a rational trier of fact could have found, beyond a reasonable doubt, that appellant threatened Diettrich with imminent bodily injury. Viewing all the evidence in a neutral light, we hold that the evidence that appellant threatened Diettrich with imminent bodily injury is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the contrary evidence so strong that the standard of proof beyond a reasonable doubt could not have been met. We overrule appellant s third and fourth points of error.

2. Use of motor vehicle as a deadly weapon

In his fifth and sixth points of error, appellant alleges that the evidence is legally and factually insufficient to prove that the motor vehicle operated by the appellant constituted a deadly weapon, as defined by law. Appellant correctly notes that a motor vehicle is not a deadly weapon per se, but may be a deadly weapon if it is driven so as to endanger lives. Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003) (holding that evidence vehicle was driven in manner raising merely a hypothetical potential for danger was insufficient to support deadly weapon finding because no other persons were present on road). Appellant asserts that his case is akin to the facts in Cates because the record fails to show that the complainant or any other person were [sic] in actual, as opposed to theoretical[,] danger. Again, we disagree with appellant s reading of the facts. In this case, unlike the situation in Cates, the evidence is uncontroverted that appellant twice crashed his car into Diettrich s patrol car, and a rational jury could have found that the danger to Diettrich s life was actual, not theoretical.

Viewing the evidence in the light most favorable to the prosecution, we hold that a rational trier of fact could have found, beyond a reasonable doubt, that appellant used and exhibited the car as a deadly weapon. Viewing all the evidence in a neutral light, we hold that the evidence that appellant used and exhibited the car as a deadly weapon is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the contrary evidence so strong that the standard of proof beyond a reasonable doubt could not have been met. We overrule appellant s fifth and sixth points of error.

B. Sufficiency of the evidence to prove robbery

A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of the property. Tex. Pen. Code Ann. 31.03(a) (Vernon Supp. 2004-2005). A person commits robbery if, in the course of committing a theft, and with intent to obtain or maintain control of the property, he causes bodily injury to another. Id. 29.02(a)(1) (Vernon 2003).

In his first and second points of error regarding his conviction for robbery, appellant asserts that the evidence was legally and factually insufficient to prove that Reginald Clark, the complainant, was injured in the manner alleged when appellant stole his car. Specifically, appellant contends that the State failed to prove that appellant used his hands when he pushed Clark from the car and also failed to prove that the push was the cause of Clark s injuries. The indictment alleges that appellant did, in the course of committing a theft, intentionally, knowingly and recklessly cause bodily injury to Reginald Clark, by pushing the Complainant from a motor vehicle with his hands. (Emphasis added). Appellant s complaints center on the emphasized words.

1. Pushing with his hands

We note that it was unnecessary for the State to allege in the indictment how appellant caused Clark s injury because it is an evidentiary matter and not an essential element of the offense of robbery. See Tex. Pen. Code Ann. 29.02(a)(1); Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim. App. 2000) (noting that matters not necessary to be proved are sometimes unnecessarily alleged in indictments). As a general rule such surplusage may be entirely disregarded. Curry, 30 S.W.3d at 399; Burrell v. State, 526 S.W.2d 799, 802 (Tex. Crim. App. 1975). However, under the Burrell exception this general rule does not apply when the unnecessary matter is descriptive of that which is legally essential to charge a crime and the State must prove the surplus allegation. Curry, 30 S.W.3d at 399; Burrell, 526 S.W.2d at 802. An unnecessary matter is descriptive of an element of the offense if it define[s] the offense more narrowly, place[s] it in a specific setting, or describe[s] the method by which it was committed. Curry, 30 S.W.3d at 399 (quoting Upchurch v. State, 703 S.W.2d 638, 641 (Tex. Crim. App. 1985)) (alterations in original). When the unnecessary allegation is descriptive and explanatory of the offense charged, the State must prove the allegation even though it was needlessly pleaded. Burrell, 526 S.W.2d at 802.

In this case, the indictment s allegation that appellant caused Clark s injury by pushing Clark with his hands is descriptive of an essential element of robbery, bodily injury. See Curry, 30 S.W.3d at 403 (holding that phrase by using and threatening to use deadly force namely, a firearm was descriptive of an essential element of abduction in aggravated kidnaping and must, therefore, be proven). See also Rogers v. State, 756 S.W.2d 332, 335-36 (Tex. App. Houston [14th Dist.] 1988, pet. ref d) (holding that State was required to prove unnecessary allegation that appellant placed his hands in his pocket as if he had gun). Additionally, the allegation that appellant caused Clark s injury by pushing him with his hands is more than descriptive of an element; it was a manner or means of committing an element of robbery. See Curry, 30 S.W.3d. at 403 (declining to consider overruling exception to surplusage rule because unnecessary descriptive phase was also manner or means of committing essential element of abduction). We conclude that the unnecessary allegation must be proved, and we must, therefore, test the evidence to see if it was sufficient to prove that appellant pushed Clark with his hands.

The sufficiency of the evidence is measured against a hypothetically correct jury charge. Id. at 404 (citing Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997)). A hypothetically correct jury charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State s burden of proof or unnecessarily restrict the State s theories of liability, and adequately describes the particular offense for which the defendant is tried. Id. In this case the jury charge given corresponded with the Malik hypothetically correct jury charge and included the phrase pushed . . . with his hands. See id. at 404-05 (analyzing indictment s unnecessary allegation under Malik and holding that it must be repeated in charge).

Although no evidence contained in the record contests the fact that appellant pushed Clark from the car, Clark did not expressly testify that appellant pushed him with his hands. While the State argues that the conclusion that appellant used his hands to push Clark is nearly inescapable, we need only be persuaded that the jury could have drawn a reasonably inference from the evidence that appellant used his hands to push Clark. See Moon v. State, 44 S.W.3d 589 (Tex. App. Fort Worth 2001, pet. ref d) (holding evidence legally sufficient to prove defendant used his hands to injure his wife, as alleged in indictment, despite lack of direct testimony because jury could infer use of hands to beat, grab, and throw her); Wawrykow v. State, 866 S.W.2d 87, 88-89 (Tex. App. Beaumont 1993, pet. ref d) (holding that rational jury could find essential elements of crime because juries are free to use their common sense and apply common knowledge, observation, and experience gained in ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence. ). Clark s testimony shows that he was partially occupying the driver s side of the car when appellant jumped over from the passenger side and pushed him out, then got behind the wheel and drove off.

Viewing the evidence in the light most favorable to the prosecution, we hold that a rational trier of fact could have found, beyond a reasonable doubt, that appellant pushed Clark with his hands. Viewing all the evidence in a neutral light, we hold that the evidence that appellant pushed Clark with his hands is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the contrary evidence so strong that the standard of proof beyond a reasonable doubt could not have been met.

2. Causing bodily injury

Appellant also argues that the evidence did not establish that Clark suffered a bodily injury as a result of the push because Clark testified only to injuries he suffered as a result of letting go of the car s steering wheel as appellant speed away.

Bodily injury is defined as physical pain, illness, or any impairment of physical condition. Tex. Pen. Code Ann. 1.07(a)(8) (Vernon 2003). This definition appears to be purposely broad and seems to encompass even relatively minor physical contacts so long as they constitute more than mere offensive touching. Lane v. State, 763 S.W.2d 785, 786-87 (Tex. Crim. App. 1989); Lewis v. State, 530 S.W.2d 117, 118 (Tex. Crim. App. 1975); Reyes v. State, 83 S.W.3d 237, 239 (Tex. App. Corpus Christi 2002, no pet.); Arnold v. State, 36 S.W.3d 542, 546 (Tex. App. Tyler, 2000, pet. ref d). Moreover, a jury may infer that a victim suffered pain from, for example, the existence of a cut, bruise, or scrape on the victim s body. Arzaga v. State, 86 S.W.3d 767, 778 (Tex. App. El Paso 2002, no pet.). See also Bolton v. State, 619 S.W.2d 166, 167 (Tex. Crim. App. 1981) (holding evidence of small cut on arm sufficient to show bodily injury); Goodin v. State, 750 S.W.2d 857, 859 (Tex. App. Corpus Christi 1988, pet. ref d) (holding evidence of bruises and muscle strain sufficient to show bodily injury by inference, and rejecting contention that any direct or express evidence that victim suffered pain was necessary).

Even without direct evidence of pain, or a bruise or other observable physical manifestation of an injury, a jury may still infer pain from circumstantial evidence.

In Wawrykow v. State, a case decided by the Beaumont Court of Appeals, the defendant was indicted for misdemeanor assault for causing bodily injury to a police officer by pushing on or about his chest with his hands. 866 S.W.2d 87, 88 (Tex. App. Beaumont 1993, pet. ref d). The evidence did not show that the officer was bruised or had any observable injury, and the Beaumont court stated that it agreed with appellant that direct evidence of pain . . . or . . . hurt by appellant s push to his chest is lacking. Id. at 88. Nevertheless, the court held that the evidence was legally sufficient to satisfy the bodily injury element of assault because the force of the push, which was demonstrated for the jury but not ascertainable from the record, could have been sufficient for the jury to infer that it caused the officer pain. Id. at 90. Thus, a lack of observable physical injury does not bar an inference that the physical contact caused pain. Arzanga, 86 S.W.3d at 778-79; see also, e.g., Zuliani v. State, 52 S.W.3d 825, 831 (Tex. App. Austin 2001), rev d on other grounds, 97 S.W.3d 589 (Tex. Crim. App. 2003) (stating that no rational jury could believe that wife slapped, hit, or pushed husband down, without also believing acts caused him physical pain beyond low threshold needed for bodily injury element of self-defense); Gordon v. State, 681 S.W.2d 629, 631 (Tex. App. Houston [14 Dist.] 1984), rev d in part on other grounds, 707 S.W.2d 626 (Tex. Crim. App. 1986) (holding bodily injury element in civil rights case was satisfied by evidence deputy sheriff grabbed suspect s hair and jerked his head back during questioning because deputy pulled hard enough to have caused physical pain).

In this case the evidence indicates that appellant pushed Clark with sufficient force to expel him from the car and cause him to stumble back from the car. When violence is used against victims to overcome their resistance to theft, we do not engage in fine distinctions as to the degree or character of the physical force exerted. Lane, 763 S.W.2d at 786 ( In fact, the degree of injury sustained by a victim and the type of violence utilized by an accused appear to be of no moment. ).

Viewing the evidence in the light most favorable to the prosecution, we hold that a rational trier of fact could have found, beyond a reasonable doubt, that appellant did cause bodily injury to Clark by pushing him. Viewing all the evidence in a neutral light, we hold that the evidence that appellant did cause bodily injury to Clark by pushing him is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the contrary evidence so strong that the standard of proof beyond a reasonable doubt could not have been met. We overrule appellant s first and second points of error.

3. In the course of committing a theft

In his third and fourth points of error regarding his conviction for robbery, appellant asserts that the evidence was legally and factually insufficient to prove that he was in the course of committing theft at the time Clark was injured. Specifically, appellant contends that the State did not prove that he intended to deprive Clark of his car permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner. // Appellant asserts that, because his apparent motive was to evade arrest, he intended only a temporary deprivation.

The record contains no evidence to support appellant s implied assertion that he only intended to temporarily deprive Clark of his car. Cf. Flores v. State, 888 S.W.2d 187, 190-91 (Tex. App. Houston [1st Dist.] 1994, pet. ref d) (noting that intent to deprive element of auto theft is not proved when all evidence presented indicates it was taken for temporary use). Juries may infer intent from the defendant s conduct and surrounding circumstances. LaPoint v. State, 750 S.W.2d 180, 182 (Tex. Crim. App. 1986); Washington v. State, 127 S.W.3d 111, 117, (Tex. App. Houston [1st Dist.] 2003, no pet.).Based on appellant s actions and conduct at the time, including his use of physical force, the jury would have had ample evidence from which to infer that appellant intended to permanently deprive Clark of his car. See Flores, 888 S.W.2d at191; Baum v. State, 848 S.W.2d 808, 809 (Tex. App. Houston [14th Dist.] 1993, no pet.); see also Rowland v. State, 744 S.W.2d 610, 613 (Tex. Crim. App. 1988) (noting intent to permanently deprive can be inferred from manner in which property is taken); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981) (holding evidence sufficient to prove intent to permanently deprive, where defendant stole taxicab at gunpoint, despite fact that defendant only drove a few miles).

Viewing the evidence in the light most favorable to the prosecution, we hold that a rational trier of fact could have found, beyond a reasonable doubt, that appellant was in the course of committing a theft when he caused Clark bodily injury. Viewing all the evidence in a neutral light, we hold that the evidence that appellant was in the course of committing a theft when he caused Clark bodily injury is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the contrary evidence so strong that the standard of proof beyond a reasonable doubt could not have been met. We overrule appellant s third and fourth points of error regarding his conviction for robbery.

CONCLUSION

We affirm the judgments of the trial court as to both the aggravated assault conviction and the robbery conviction.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Jennings, and Alcala.

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