Jackie Gilbert Cardwell v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN







NO. 3-93-254-CR



JACKIE GILBERT CARDWELL,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT

NO. 6025, HONORABLE D.V. HAMMOND, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of aggravated robbery and assessed punishment at imprisonment for sixty years. Penal Code, 63rd Leg., R.S., ch. 399, sec. 1, § 29.03, 1973 Tex. Gen. Laws 883, 926 (Tex. Penal Code Ann. § 29.03, since amended).

In two points of error, appellant contends the evidence is legally insufficient to sustain a conviction for aggravated robbery. The State confesses error, but urges that the evidence is sufficient to sustain a conviction for the lesser included offense of robbery, which was submitted to the jury in the district court's charge. Tex. Penal Code Ann. § 29.02 (West 1989); see Bigley v. State, 831 S.W.2d 409, 415 (Tex. App.--Austin 1992), aff'd, No. 939-92 (Tex. Crim. App. June 16, 1993). In his motion to withdraw his request for oral argument, appellant concedes that the evidence is sufficient to sustain a conviction for the lesser offense.

The judgment of conviction is reformed to reflect a conviction for robbery. As reformed, the judgment is affirmed as to the adjudication of guilt. Because the punishment assessed exceeds that authorized by section 29.02, we reverse that portion of the judgment assessing punishment and remand the cause for a new trial as to punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (West Supp. 1993).

Before Justices Powers, Jones and Kidd

Reformed, and as Reformed, Affirmed in Part; Reversed and Remanded in Part

Filed: September 22, 1993

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