      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-03-00089-CR




                                     Otis McBride, Appellant

                                                 v.

                                  The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
           NO. 9024203, HONORABLE JON N. WISSER, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Indicted for aggravated robbery, appellant Otis McBride was convicted by the court

for the lesser included offense of aggravated assault and sentenced to ten years in prison. See Tex.

Pen. Code Ann. § 22.02 (West Supp. 2004). Appellant’s court-appointed attorney filed a brief

concluding that the appeal is frivolous and without merit. The brief meets the requirements of

Anders v. California, 386 U.S. 738 (1967), by advancing contentions which counsel says might

arguably support the appeal. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573

S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974);

Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex.

Crim. App. 1969). A copy of counsel’s brief was delivered to appellant, and he was advised of his

right to examine the appellate record and to file a pro se brief. No pro se brief has been filed.
               We have reviewed the record and counsel’s brief and agree that the appeal is frivolous

and without merit. Contrary to the argument advanced by counsel, we find the evidence sufficient

to support the court’s finding that a deadly weapon was used during the commission of the offense.

See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (elements of offense may be

alleged conjunctively, proved disjunctively). Moreover, a person of ordinary intelligence would

understand that a kick to the face could result in serious bodily injury. See Stanul v. State, 870

S.W.2d 329, 335 (Tex. App.—Austin 1994, pet. ref’d).

               The judgment of conviction is affirmed.




                                              __________________________________________

                                              W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: April 15, 2004

Do Not Publish




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