1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sit ting by a ssignmen t. NO. 07-03-0233-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E JULY 9, 2004

______________________________ RODNEY DARNELL BROOKS, APPELLA NT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 251 ST DISTRICT COURT OF POTTER COUNTY; NO. 45,88 2-C; HONO RABLE R ICHARD DAMBOLD, J UDGE

_______________________________ Before REAVIS and CAMPBELL, JJ., and BOYD, S.J. 1 MEMORAND UM OPINION Following his plea of not guilty, appellant Rodney Darnell Brooks was convicted by a jury of aggravated assault with a deadly weapon and sentence d to six yearsconfine ment.2

Presenting two issues, appellant contends the trial court erred in deny ing his motion for directed verdict to the indicted offen se of aggr avated ro bbery wh ere the S tate fail ed to prove an es se ntial element of the offense, to-wit: theft of property. By his second issu e, he contends

the trial court erre d in den ying his motion fo r directe d verdict to the indicted offense of

aggravated robbery where the jury found him guilty of the l esser included offense of aggravated assa ult. 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 p roperty; to wit, go od and lawful United States currency, and with the intent to o btain and maintain control of said property, intentionally and knowing ly caused bodily injury to Roger Turner by

striking him about

the head. And the Defendant did then and there use and exh ibit adeadly weapon, to wit: a piece of wo od, that in the manner

and means of its use or intended usewas capable of causing death or serious b odily in jury. After the trial court overruled appellant’s motion for directed verdict and appellant rested, the court submitted the charge to the jury which i ncl uded cha rges of ag gravated robbery as alleged in the indictment and the lesse r included offenses of robbery or aggravated assault w ith a dea dly weap on. Byhis 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 fai led to3

prove an essential element of the crime and because the jury found him gu ilty of the lesser included offense of aggrava ted assau lt. We disagre e. The standard of review applicable to the deni al of a motion f or directed verdict is the same as that applied in reviewing the legal sufficiency of the evidence. Willia ms v. Sta te, 937 S.W.2d 479, 482 (Tex.Cr.App. 1996); Havard v . State, 8 00 S.W.2d 195, 199(Tex.Cr. App. 198 9). W e view all the evi dence presente d during the guil t/innoce nce phas e and if it is suf ficient to support

th e 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. 1 990), cert. denied , 499 U.S . 954, 11 1 S.Ct. 1432, 11 3 L.Ed.2d 483 (199 1). The elements of aggravated robbery are (1) a person (2) in the cou rse 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). S ee 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 . . . .” Thevictim te stified t hat at thetime of the offense he did not have any money and appellant did not

take any money fro m him. However, the State argues that the gravamen of the offense is assaultive co nductand not theft.4

In Ex Parte Hawkins, 6 S.W.3d 554, 560 (Tex .Cr.App. 1999), noting that robbery is an assaultive offense under the Pe nal 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 occursin an at

tempt t o commi t, during commissi on, or in immediate flight af ter the at tempt or co mmission of theft;

C the actual commissio n of the offense of theft is n ot a prere quisite to the commission of the offense of robbery; and

C the grava men of rob bery is th e assaul tive cond uct and n ot the theft. Fo llowing these ho ldings, the court then conc luded th at proof of completed theft is no t required to establ ish robb ery. Id. The holding in Caldwell is similar to the posture of the evidence and appellan t’ s issues. Concluding that the analysis in Caldwell applies, we hold the trial court di d not err in denyi ng appel lant’s motions for directed verdict. Appell ant’s is sues are overrule d. Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis Justice Do not publish.