Affirmed and Memorandum Opinion filed January 9, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00075-CR

DONNOVON RAY ROBINSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 149th District Court

Brazoria County, Texas

Trial Court Cause No. 93011-CR

M E M O R A N D U M O P I N I O N

Donnovan Ray Robinson appeals his conviction for attempted aggravated 

assault. Tex. Penal Code Ann. §15.01(a); Tex. Penal Code Ann. § 22.02(a)(2). In 

one issue, he contends the judgment is not supported by legally sufficient evidence. 

Concluding otherwise, we overrule appellant’s issue and affirm the judgment.

Background

The charge against appellant arose from an argument at a “Take 5” auto 
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service franchise, which is a drive-through auto-service center where drivers 

remain in their vehicles. On the day in question, appellant was in his car waiting 

for service. In line ahead of him was a truck driven by complainant, Petric 

Nichols. Apparently upset that Nichols was not moving his truck forward,

appellant began honking his horn. An assistant manager, Peter Garcia, greeted 

appellant, who was cussing and yelling at Nichols. Garcia directed Nichols into 

the first bay and directed appellant into the third bay. Garcia approached 

appellant’s car, while appellant continued yelling at Nichols. Nichols rolled down 

the back window of his truck. According to Nichols, appellant said things like, 

“Don’t get out of your car. You better not get out of your car. Oh, oh, why don’t 

you get out of your car, you effing B.” Then Nichols began walking toward 

appellant’s car, while the two of them kept arguing. Appellant, still seated in his 

driver’s seat, lifted up a gun and pointed it at Nichols, who was ten to fifteen feet 

away. Nichols stopped walking but continued yelling at appellant. Nichols 

testified that he “noticed a red dot floating around [his] chest,” which he assumed 

was a laser sight coming from appellant’s gun. Appellant used slang that Nichols 

construed as a threat to shoot him. According to Garcia, however, appellant never 

threatened to use the gun. Nichols yelled back, “Well, I guess we know now who 

the real bitch is. You have a gun on me?” After these exchanges, Garcia left to 

find his supervisor. 

Appellant testified at trial. He acknowledged honking his horn at Nichols 

and that they exchanged profanities. Appellant testified that, after to being 

directed to separate service bays, and while he was speaking with Garcia about a 

vehicle inspection, Nichols began yelling at him. He said Nichols told him 

repeatedly, “[w]hy don’t you get out [sic] the car?” Appellant heard a car door 

slam and saw Nichols walking quickly toward him. Appellant panicked and pulled 
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out his gun. Appellant said he showed it to Nichols but did not point it at him. He 

testified that when Nichols saw the gun he said, “I can shoot you, too, if that’s 

what you want to do. I’ll go get my gun.” In response, appellant said he pointed 

his gun at Nichols. 

Nancy Thompson, who was having her oil changed in the service bay 

between appellant and Nichols, witnessed the commotion and called 9-1-1. She 

could not specifically identify either appellant or Nichols at trial, but she agreed 

that the “man in the Jeep” (appellant) pointed a gun at the other man who had 

exited his truck. Thompson said she could see the barrel of a gun inside 

appellant’s car. She was clear, however, that appellant did not extend any part of 

the gun outside his car window. Thompson could not say whether appellant was 

“going to fire” the gun. 

A Take 5 employee intervened and told appellant that he needed to leave, 

and appellant drove away.

A Brazoria County grand jury charged appellant with aggravated assault-bythreat. Tex. Penal Code §§ 22.01(a)(2), 22.02(a)(2). The indictment alleged that 

appellant “intentionally or knowingly threaten[ed] Petric Nichols with imminent

bodily injury and did use or exhibit a deadly weapon, namely, a firearm.” Trial 

was to a jury. The jury charge included instructions on aggravated assault and 

attempted aggravated assault, a lesser included offense.

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 The jury acquitted 

appellant on the charged offense of aggravated assault but found him guilty of 

attempted aggravated assault. After hearing punishment evidence, the jury

assessed appellant’s punishment at six years confinement in the penitentiary and 

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It is unclear from the record whether the State requested an instruction on attempted 

aggravated assault or whether the court included the instruction on its own. Appellant did not 

request it, as he objected to the instruction on no evidence grounds.
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recommended that appellant be granted community supervision. The court signed 

a judgment of conviction, which assessed punishment of confinement for six years

in the Texas Department of Criminal Justice—Institutional Division but suspended 

the sentence and placed appellant on community supervision for ten years. 

Appellant timely appealed to this court and raises one issue: the evidence is 

insufficient to support the conviction for attempted aggravated assault. 

Analysis

A. Standard of Review

When reviewing the sufficiency of the evidence, we view all of the evidence 

in the light most favorable to the verdict and determine, based on that evidence and 

any reasonable inferences therefrom, whether any rational factfinder could have 

found the elements of the offense beyond a reasonable doubt. Sifuentes v. State, 

494 S.W.3d 806, 810 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (citing 

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). We do not sit as a thirteenth

juror and may not substitute our judgment for that of the factfinder by reevaluating 

the weight and credibility of the evidence. Sifuentes, 494 S.W.3d at 810. Rather, 

we defer to the factfinder to fairly resolve conflicts in testimony, weigh the 

evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. 

This standard applies equally to circumstantial and direct evidence. Id. Each fact 

need not point directly and independently to the appellant’s guilt, as long as the 

cumulative effect of all incriminating facts is sufficient to support the conviction.

Id. 

B. Sufficient Evidence Supports the Conviction for Attempted Aggravated 

Assault

The jury found appellant not guilty of aggravated assault but guilty of 

attempted aggravated assault. Attempted aggravated assault is a lesser-included 
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offense of aggravated assault. Tex. Code Crim. Proc. art. 37.09(4); Dixon v. State, 

358 S.W.3d 250, 255 (Tex. App.—Houston [1st Dist.] pet. ref’d). Under the law 

of criminal attempt, a person commits an offense if, with specific intent to commit 

an offense, he does an act amounting to more than mere preparation that tends but 

fails to effect the commission of the offense intended. See Tex. Penal Code 

§ 15.01(a). A person commits an aggravated assault if the person commits assault 

as defined in section 22.01 and the person uses or exhibits a deadly weapon during 

the commission of the assault. Tex. Penal Code Ann. §22.02(a)(2). A person 

commits an assault if the person intentionally or knowingly threatens another with 

imminent bodily injury. Tex. Penal Code Ann. § 22.01(a)(2). Appellant contends 

there is no evidence that he did an act amounting to more than mere preparation to 

commit aggravated assault but failed to effect the commission of that offense. 

The statute establishing the offense of attempt draws an “imaginary line” 

between mere preparatory conduct, which is usually non-criminal, from an act 

which tends to effect the commission of the offense, which is always criminal 

conduct. Tex. Penal Code Ann. §15.01(a); Adekeye v. State, 437 S.W.3d 62, 68 

(Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). Where the imaginary line falls 

must be determined on a case-by-case basis. Adekeye, 437 S.W.3d at 68-69. A 

person may commit an attempt even if he could have taken further actions without 

actually committing the intended offense. Id. at 69. To constitute an attempt, an 

act can, but need not, be the “last proximate act” before the intended crime is 

effected. McCravy v. State, 642 S.W.2d 450, 460 (Tex. Crim. App. 1980); Cody v. 

State, 605 S.W.2d 271, 273 (Tex. Crim. App. 1980).

There was testimony that appellant was cursing and yelling at Nichols before 

they entered the service bays, that they continued yelling at each other after driving

into the bays, and that appellant shouted a warning at Nichols not to get out of his 
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car. There was evidence that appellant held up a gun and eventually pointed it at 

Nichols, though Thompson testified that appellant kept the gun inside his car and 

did not extend it. Garcia, the Take 5 employee, said that appellant never 

threatened to use the gun. The jury was free to believe or disbelieve any or all of 

the testimony. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). 

Viewing all the evidence in the light most favorable to the verdict, a rational jury 

could have found beyond a reasonable doubt that appellant specifically intended to 

commit aggravated assault, and that he performed an act that was more than mere 

preparation but failed to effect the commission of aggravated assault. We hold the 

evidence is legally sufficient.

Appellant stresses that the prosecutor misstated the law of attempt during 

closing argument by commenting, “[a]nd if you think somewhere in this 

continuum of this event happening that the defendant was thinking about 

committing aggravated assault but hadn’t completed it, then you could say he was 

attempting to do it.” Appellant says this does not accurately state Texas attempt 

law, which requires an act in preparation of the offense rather than merely thinking

about committing an offense. There was no objection to this statement, however,

and assuming the prosecutor misstated Texas law, we disregard non-constitutional, 

unobjected-to error unless the defendant’s substantial rights are affected. Tex. R. 

App. P. 44.2(b). Given our holding that the evidence could have led a rational 

factfinder to convict appellant of attempted aggravated assault based on a correct 

understanding of Texas law and the jury charge as a whole, we conclude that any 

misstatement of law by the prosecutor did not affect appellant’s substantial rights.

To be sure, the evidence in this case is also legally sufficient to have 

supported a conviction on the greater offense of aggravated assault even though the 

jury acquitted appellant of that offense. For example, under Texas law, the display 
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of a deadly weapon of and within itself constitutes a threat of the required 

imminent harm. Sosa v. State, 177 S.W.3d 227, 231 (Tex. App.—Houston [1st 

Dist.] 2005, no pet.). Appellant’s acquittal on the greater offense, however, does

not mean that evidence is necessarily lacking on the offense of attempted 

aggravated assault, as appellant suggests. As the Court of Criminal Appeals has 

stated,

An offense is denominated as “lesser-included” precisely because 

proof of the lesser offense is “included” in the offense described in the 

charging instrument. If the State proves the charged offense, it 

necessarily proves all lesser-included offenses.

Wasylina v. State, 275 S.W.3d 908, 910 (Tex. Crim. App. 2009). In a prosecution 

for an offense with lesser included offenses, the jury may find the defendant not 

guilty of the greater offense, but guilty of any lesser included offense. Tex. Code 

Crim. Proc. Ann. art. 37.08. At least one reasonable view of the evidence in 

today’s case may support conviction of the lesser offense as a valid, rational 

alternative to the charged offense.

Additionally, the court or the State in this case may have desired to give the 

jury the option to be lenient and decide that a conviction on the lesser offense of 

attempted aggravated assault was more appropriate under the circumstances. 

Texas approves this type of “cautious” approach in submitting lesser-included 

offenses to juries. See Grey v. State, 298 S.W.3d 644, 651 (Tex. Crim. App. 2009). 

To the extent appellant suggests that the acquittal on aggravated assault and 

the conviction on attempted aggravated assault are inconsistent, we note that 

inconsistent verdicts in prosecutions based on the same evidence do not require a 

reversal on the ground of legal insufficiency. Blacklock v. State, 611 S.W.3d 162, 

169 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d); see Thomas v. State, 352 

S.W.3d 95, 101 (Tex. App.—Houston [14th Dist.] 2011, pet ref’d) (possibly 
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inconsistent verdicts do not necessarily imply a lack of evidence but may stem

from jury’s desire to be lenient). 

We overrule appellant’s sole issue.

Conclusion

We affirm the trial court’s judgment. 

/s/ Kevin Jewell

Justice

Panel consists of Chief Justice Christopher, and Justices Wise and Jewell.

Do Not Publish — Tex. R. App. P. 47.2(b).