Lester Ray Smith v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-91-187-CR





LESTER RAY SMITH,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 0910466, HONORABLE WILFORD FLOWERS, JUDGE

PER CURIAM

The trial court found appellant guilty of aggravated robbery. Tex. Penal Code Ann. § 29.03 (Supp. 1992). After finding that appellant had been previously convicted of two felony offenses, the trial court assessed punishment at imprisonment for 30 years. We will affirm the conviction.

In his first point of error, appellant contests the sufficiency of the evidence to prove that he caused "bodily injury" to the complainant. A person commits robbery if "in the course of committing theft . . . and with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another." Tex. Penal Code Ann. § 29.02 (1989). Robbery becomes aggravated when the person causes bodily injury to someone 65 years of age or over. § 29.03 (Supp. 1992).

The complaining witness was Sue McElroy, a 76-year-old woman. McElroy testified that she was preparing to take a bus home after shopping for groceries when the offense occurred. McElroy was carrying a sack of groceries in her left arm and a purse with shoulder straps over her right shoulder. Appellant approached from McElroy's left side and, while he asked if he could help her, reached behind her back and pulled on the purse. McElroy dropped the groceries in order to hold onto her purse. She testified that as they were struggling appellant pulled her off the curb, where there was grass, onto the pavement. This caused McElroy to hurt her foot. When a man came forward to help her, appellant ran away and was shortly after arrested.

McElroy also testified that two weeks before the offense she had had surgery on her feet and that two four-inch pins had been left in each foot. She was wearing orthopedic shoes, but took no medication because as long as nothing injured her feet, they did not hurt. McElroy stated that after the scuffle with appellant, her foot was in pain. Police Officer Frisinger, who was called to the robbery scene, testified that McElroy told him that her toes hurt.

"Bodily injury" means "physical pain." Tex. Penal Code Ann. § 1.07(7) (1974). Physical pain, being a term of common usage, is construed according to its fair import. Lewis v. State, 530 S.W.2d 117 (Tex. Crim. App. 1975); Tex. Penal Code Ann. § 1.05(a) (1974). The degree of injury sustained by a robbery victim and the type of violence used by an accused are of no moment in assessing the occurrence of physical pain. Lane v. State, 763 S.W.2d 785 (Tex. Crim. App. 1989). As long as the violence is clearly perpetrated against another to prevent or overcome resistance to theft, fine distinctions as to the degree or character of physical force do not serve the purpose of the statute. Id. Here, McElroy testified that appellant's pushing her off the curb caused pain to her foot. The trial court could find that appellant violently tugged at McElroy's purse to overcome her resistance and, in so doing, caused McElroy pain. We overrule point one.

In his second point of error, appellant argues that the State failed to prove its allegation that he knowingly and intentionally caused bodily injury to McElroy. While the State alleged the culpable mental states of intent and knowledge, proof of either mental state was sufficient. Ely v. State, 582 S.W.2d 416 (Tex. Crim. App. 1979). A person acts knowingly with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Tex. Penal Code Ann. § 6.03(b) (1974). Just as proof of bodily injury does not depend on the severity of the violence used, the threshold of proof required to support a finding of awareness that bodily injury is reasonably certain to occur is low. Lane, 763 S.W.2d at 787-88.

The evidence showed that McElroy was an elderly woman who, because of recent surgery, was wearing orthopedic shoes which resembled a cast. Her toes, left uncovered by the shoes, were wrapped and looked swollen. McElroy testified that she could not walk very well, but was "scooting along." She also stated that appellant pulled her purse hard, that he kept hanging on with a "bull-dog grip," and that she really fought for her purse. The trial court could infer from the force appellant used in pulling on McElroy's purse that he was aware that his conduct was reasonably certain to cause her bodily injury. We overrule point two.

The judgment of conviction is affirmed.

[Before Justices Powers, Jones and B. A. Smith]

Affirmed

Filed: January 15, 1992

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