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Otis McBride v. State ( 2004 )


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  • TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





    NO. 03-03-00089-CR

    Otis McBride, Appellant


    v.



    The State of Texas, Appellee







    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

    NO. 9024203, HONORABLE JON N. WISSER, JUDGE PRESIDING

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


    Indicted for aggravated robbery, appellant Otis McBride was convicted by the court for the lesser included offense of aggravated assault and sentenced to ten years in prison. See Tex. Pen. Code Ann. § 22.02 (West Supp. 2004). Appellant's court-appointed attorney filed a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by advancing contentions which counsel says might arguably support the appeal. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). A copy of counsel's brief was delivered to appellant, and he was advised of his right to examine the appellate record and to file a pro se brief. No pro se brief has been filed.

    We have reviewed the record and counsel's brief and agree that the appeal is frivolous and without merit. Contrary to the argument advanced by counsel, we find the evidence sufficient to support the court's finding that a deadly weapon was used during the commission of the offense. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (elements of offense may be alleged conjunctively, proved disjunctively). Moreover, a person of ordinary intelligence would understand that a kick to the face could result in serious bodily injury. See Stanul v. State, 870 S.W.2d 329, 335 (Tex. App.--Austin 1994, pet. ref'd).

    The judgment of conviction is affirmed.





    __________________________________________

    W. Kenneth Law, Chief Justice

    Before Chief Justice Law, Justices Patterson and Puryear

    Affirmed

    Filed: April 15, 2004

    Do Not Publish