                                     NO. 07-03-0233-CR

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL E

                                        JULY 9, 2004

                            ______________________________


                        RODNEY DARNELL BROOKS, APPELLANT

                                              V.

                            THE STATE OF TEXAS, APPELLEE


                          _________________________________

               FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

                NO. 45,882-C; HONORABLE RICHARD DAMBOLD, JUDGE

                           _______________________________


Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1


                                 MEMORANDUM OPINION


      Following his plea of not guilty, appellant Rodney Darnell Brooks was convicted by

a jury of aggravated assault with a deadly weapon and sentenced to six years confinement.



      1
          John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Presenting two issues, appellant contends the trial court erred in denying his motion for

directed verdict to the indicted offense of aggravated robbery where the State failed to

prove an essential element of the offense, to-wit: theft of property. By his second issue,

he contends the trial court erred in denying his motion for directed verdict to the indicted

offense of aggravated robbery where the jury found him guilty of the lesser included offense

of aggravated assault. We affirm.


       Although appellant was indicted for the offense of aggravated robbery, he was found

guilty of the lesser included offense of aggravated assault with a deadly weapon. As

material here, the indictment alleged that appellant


       did then and there while in the course of committing theft of property; to wit,
       good and lawful United States currency, and with the intent to obtain and
       maintain control of said property, intentionally and knowingly caused bodily
       injury to Roger Turner by striking him about the head. And the Defendant did
       then and there use and exhibit a deadly weapon, to wit: a piece of wood, that
       in the manner and means of its use or intended use was capable of causing
       death or serious bodily injury.


After the trial court overruled appellant’s motion for directed verdict and appellant rested,

the court submitted the charge to the jury which included charges of aggravated robbery

as alleged in the indictment and the lesser included offenses of robbery or aggravated

assault with a deadly weapon.


       By his two issues, appellant contends the trial court erred in denying his motion for

directed verdict on the indicted offense of aggravated robbery because the State failed to


                                             2
prove an essential element of the crime and because the jury found him guilty of the lesser

included offense of aggravated assault. We disagree. The standard of review applicable

to the denial of a motion for directed verdict is the same as that applied in reviewing the

legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex.Cr.App.

1996); Havard v. State, 800 S.W.2d 195, 199 (Tex.Cr.App. 1989). We view all the

evidence presented during the guilt/innocence phase and if it is sufficient to support the

verdict, the trial court did not err in overruling the motion for directed verdict. Madden v.

State, 799 S.W.2d 683, 686 (Tex.Cr.App. 1990), cert. denied, 499 U.S. 954, 111 S.Ct.

1432, 113 L.Ed.2d 483 (1991).


         The elements of aggravated robbery are (1) a person (2) in the course of committing

theft (3) with intent to obtain or maintain control of property (4) intentionally, knowingly, or

recklessly (5) causes, threatens, or places another in fear of (6) imminent bodily injury, or

death, and (7) uses or exhibits (8) a deadly weapon. Tex. Pen. Code Ann. § 29.02-.03

(Vernon 1994). See Caldwell v. State, 943 S.W.2d 551, 552 (Tex.App.--Waco 1997, no

pet.).


         Appellant contends the State failed to prove that he appropriated property from the

victim, i.e. good and lawful United States currency . . . .” The victim testified that at the time

of the offense he did not have any money and appellant did not take any money from him.

However, the State argues that the gravamen of the offense is assaultive conduct and not

theft.


                                                3
       In Ex Parte Hawkins, 6 S.W.3d 554, 560 (Tex.Cr.App. 1999), noting that robbery is

an assaultive offense under the Penal Code, the Court held that robbery is a form of

assault. In Caldwell, 943 S.W.3d at 552, the court held:


       C      the phrase “in the course of committing theft,” means conduct which
              occurs in an attempt to commit, during commission, or in immediate
              flight after the attempt or commission of theft;
       C      the actual commission of the offense of theft is not a prerequisite to
              the commission of the offense of robbery; and
       C      the gravamen of robbery is the assaultive conduct and not the theft.


Following these holdings, the court then concluded that proof of completed theft is not

required to establish robbery. Id.


       The holding in Caldwell is similar to the posture of the evidence and appellant’s

issues. Concluding that the analysis in Caldwell applies, we hold the trial court did not err

in denying appellant’s motions for directed verdict. Appellant’s issues are overruled.


       Accordingly, the judgment of the trial court is affirmed.



                                                  Don H. Reavis
                                                    Justice


Do not publish.




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