1 John T. Boyd , Chief J ustice (re t.), Seventh Court of Appeals, sitting by assignm ent. NO. 07-01-0455 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E MARC H 3, 2003

______________________________ TED LLOYD LAW RENCE, APP ELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 108 TH DISTRICT COURT OF POTTER COUN TY; NO. 44,115-E; HONORAB LE RICHA RD DAM BOLD, JUD GE

_______________________________ Before JOHNSON, C.J., REAVIS, J. and BOYD, S.J. 1 OPINION Appellant Ted Lloyd Lawrence app eals from his co nviction by a j ury for aggravated robbery. We reverse and render judgm ent of acquittal.2 Neither o f the parties asked for a lesser-included instruction. The State and

appellant ag re e t ha t we mu st re nd er ju d gm ent of a cqu itta l if t he e vide nceis le gally insufficient to support conviction of aggravated robbery. See Collier v. State , 999 S.W.2d 779, 782 (Tex.C rim.App. 1999) (plurality opini on). 2 BACKGROUND Appellant was

indicted fo r aggra vated rob bery for causing bodily injury to B obby W eis, a perso n 65 yea rs of age or older , during th e course of comm ittin g theft of proper ty. See T EX . P EN . C ODE A NN . § 29.03 (Vernon 1994). The indictment was bas ed on an incident of July 18, 2001. The case was called for jury trial on October 8, 2001. On October 9th the evidence was concluded an d the jury was charged only on aggr avated robber y. 2 Appellant wa s convicted. Byfou r iss uesapp ellan t ch allen gesthecon viction. He first challenges the legal suffici ency of the evidence to prove t hatthevictimof t he a llege d bo dily injur y was 65 y ears of ag e o r o ld er at th e t ime of th e i nc id en t. Iss ue s two and three, respectively, challenge the factual sufficiency of the evidence to s upport finding s that bo dily inj ury to t he v icti m occurred in the course of the robbery and that appellant knowingly or intentionally caused bod ilyi nj ur y t o t he vi ct i m. Issuefour urg es char ge error b ecausethe trial co urtfailed to3

lim itthedef

in itions of “intentionall y” and “know ingly” to the conduct elem ents of the offense. ISSUE 1: Legal sufficiency of evidence to

prove t he victimwas

65 year s of ag e or older As an appe llate court

reviewing a challenge to the legal sufficiency of the evidence, we consider

all the record evidence, including dire ct a nd c ircu m sta ntia l, bo th a dm iss ible and inadmissible, in the light most f avorable to the jury ’s verdict. W e then determ ine if a rational jury could have found all the essential elements of t h e offense beyond a reasonable doubt based upon such record evidence. See Jac kso n v. Vir ginia , 443 U.S. 307, 319-20, 99 S.Ct. 278 1, 2789, 61 L.Ed.2d 560 (1979); Johnson v. State , 967 S.W.2d 410, 411 (Tex.C rim.App. 1998). If, based on all the evidence, a reasona bly-m inded j ury must necessaril y entertai n a reasonabl e doubt of the defen dant’s gu il t, we are required to reverse the conviction and order a j udgme nt of acquittal. See Clewis v. State , 922 S.W.2d 126, 133(Tex .Crim .App. 1996). The evidence at

trial on October 8, 2001, included the following testimony by the victim, B obby Wei s, as to his age:

Q: Now , Mr. Weis, how old are you? A: Six ty-five.4

Bobby’s brother, Byron, tes tified. Byron wassi xt y- two . B yr on ’s te st i mon y r ef er en ce d “ my olderbrother Bob.” Other t han the foregoing, Bobby’s age wasnotthe subject of any testimony

or evidence. Appellant urg es t hat

suc h te stim ony

is legally insuffici ent proof of Bobby ’s age on July 18, 2001. The Stat e m aintains th at the e vidence is legally sufficien t for a r ational j ury to have inferred that Bobby was 65 on July 18th. The cases cited by the S tate a re inapposite. For exam ple, in Gonzalez v. State , 966 S. W .2d 804 (Tex. App.-- Am arillo 1998), aff’d 3 S.W.3d 915 (Tex.Crim .App. 1999), a witness tes tifie d th at s he r ece ived a te leph one call o n the date of the crim e from her mot her “w ho w as o ver 65" and w ho w

as t he v icti m . A nd, in Reed v. State , 991 S.W.2d 354 (Tex.App.--C orpus Christi 1999, pet. ref’d), the victim testified as to his birthdate; the issue on appeal was w hether evidence was sufficient to prove w hether the date of the c rime w as before or after the victim ’s 14th birthday. In the case before us, there is no evidence of Bobby Weis’ birthdate or of his age on July 18, 2001. Bobby ’s testim ony that he w as 65 at the tim e of trial does notsupport an inference that he did not have a birthday between J uly 18th and October 8th . A finding thatBobby w

as 65 years old on July 18th could be based only on speculation, and thus the evidenc e is lega ll y insufficient to support such a finding. See Stewart v. State , 9335

S.W.2d 555, 556-57 (Tex.A pp.--San Antonio 1996, pet

. ref ’d) . We su sta in appell ant’s first issue. CONCLUS ION Having sus ta in ed ap pe ll an t’s fi rs t i ssu e, we reverse the j udgme nt of conviction and render judgm ent of acquittal. See Clew is , 922 S.W.2d at 133; Stew art , 933 S.W.2d at 558, 560. Our determ ination of appell ant’s first iss ue isdisp osit ive of th e ap pea l and w e w ill not address his rem aining issues. See T EX . R. A PP . P. 47.1.

Phil Johnson Chief Justi ce Publish.