1 Tex. R. A pp. P. 47.2(a). NO. 07-02-0261 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C MAY 5, 2003

______________________________ PARRIS BEN ARD GARRISON, AP PELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 25 1ST DISTRICT COURT OF POTTER COUN TY; NO. 45,006-C; H ONORAB LE PATR ICK A. PIRTLE, J UDGE

_______________________________ Before JOHNSON, C.J., and QUINN and REAVIS, JJ. MEM ORAN DUM OP INI ON 1 Following his plea of not guilty, appellant Parris Benard Garrison was convicted by a jury of aggravated robbery and punishm ent was assessed at 70 years confinem ent and2

a fine of $10,000. Presenting a sole point of error, appellant contends his conviction for aggravated ro bb er y was ob ta in ed vi a a comb in at io n o f st at ut es wh ic h are uncons titu tion ally

facially vague. Bas ed up on th e r at io na le exp re sse d h er ei n, we affi rm. Appellant does not challenge the sufficiency of the ev idence; t h us, only the facts n ecess ary to disposition of this appeal will be discussed. After engaging a street prostitute, the victim w as assaulted and robbed by appe llant when he entered an abandoned house at the direction of the prostitute. Am ong other thi ngs, according to the evidence, a ppellant brandish ed a gun and then i nfli cted a three i nch cut on the victi m’s elbow w ith a knife as the victim was at tem pting to defend hims elf. Appellant sum marizes his argum entas follows: “the statutes elevating robbery to aggravated robbery via the use or ex hibition of a ‘deadly weapon’ donot give the person of ord inar y in telligen ce suf

ficient inform ation to d eterm ine wh at the a ggravated robbe ry provision prohibits.” W e disagree. Ap pellant focuses his argum ent on section 29.03(a) of the Tex as Pen al Cod e arguing that it requires proof of robbery w hile causing ”serious bodily inj ury” usi ng or exhibiting a deadly weapon. Generally, a statute is void for vagueness if it fails to give a person of ordinary intelli gence fair notice that his contem plated conduct is fo rb idden. McM orr is v. Sta te, 516 S.W.2d 927, 929 (Tex.Cr.A pp. 1974). In overruling a challenge similar to appellant’s, the Court held that sec tion 29.03 is not unconstitutionally vague.2 SeeAct of M ay 24, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex . Gen. Laws 88 3,

926. 3 Honea v. State, 585 S .W .2d 681, 685 (Tex .Cr.App. [P anel Op.] 1989). Becaus e t h e currentversion of section 29.03(a)(1) and (2) is identical to the former version of s ection 29.03(a)(1) and (2), Honea is controlling. 2 Moreover, becaus e appellant must de mons trate that in its operation the statute is unconstitutional as applied to him under the fac ts of this case, and not others, w e are not concerned with hypothetical propositions, but instead need only to determ ine whether th e statute is u nco nst itut iona llyvague considering the record evidence. SeeBynumv. State, 767 S.W.2d 769, 774 (Tex.Cr.App. 1 989) (en banc) (holding that whe r e no First Am endme ntrigh ts a re in volved, thecou rt n eed only determ ine whet her

thesta tute is uncons titu tion ally

vague as applied to the challenging party’s conduct) . The jur y found appellant guilty of comm itting theft of propertyand in t he cour se of th e cr im e, in ten tion ally or know ingly

cau sin g bo dily in jury

to the victim by cut

ting the v ictim and the n and th ere using or exhibiting a deadly weapon, to- wit: a knife, that in the m anner of its use or intended use was

capable of causing death or serious bodily injury. Ap pellant addresses the m anner of use of the k nife and argues the victim testified he “swung” the knife trying to stab the victim, w hile anotherwitness tes tified that appellant used the knife to “jab” at the victim. Whether the thrust of the knife that caused a three inch w ound was best described as a j ab, stab, or swing of the arm and hand is not contro lli ng because the effect4

wasth e sa me. T hu s, we conclude the statuteis not unconstitutionally vague considering the evidence before us. A ppellant’s sole point of error is overruled. Accordingly, the j udgme nt of the trial court is affirmed. Don H. Rea vis Justice Do not publish.