OPINION
Aрpellant was charged with Aggravated Robbery by assaulting his seventy year old uncle and thereafter driving off in the uncle’s truck. Appellant elected to be sentenced by the trial court which assessed punishment at confinement in the Texas Department of Criminal Justice — Institutional Division for a term of twenty-five (25) years. The lone appellate issue presented for our consideration contends the evidence wаs legally insufficient to sustain the conviction. More specifically, appellant contends that the State failed to prove that appellant had the requisite intent to deprive the owner of the property permanently, and that there was no evidence “that defendant hit the owner of the truck for the purpose of taking that truck.” We briefly recount the facts which are not in dispute.
Appellant, who had been recently paroled from prison, was living with his uncle and aunt. On the day in question, the uncle, and victim of the offense, went to his mother’s house to fix her fence. The victim took appellant along in оrder to help with the work. As the victim was about to put a fence post into the ground, appellant, who had been standing behind the victim, struck the victim from behind. There had been no warning at all and appellant seemed fine up to the time of the assault. At any rate, after the initial blow, a struggle ensued and both men fell to the ground. Appellant continued striking the victim with the victim continuing to ask appellant, “What’s the matter?” Apрellant did not reply.
When the victim released his grip on appellant, appellant stood up and went to the victim’s truck which was parked in the driveway. The next thing the victim observed was appellant driving down thе street in his truck. The victim walked about two blocks to where another nephew was working and this nephew called “911.” The police arrived and the victim explained what had happened.
Approximatеly one hour later, appellant was arrested in Lumberton on an unrelated charge of public intoxication. The vie-
In determining whether legally sufficient evidence is contained in an appellate record to support a conviction, the reviewing court must determine whether, after reviewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found all of the elements proven beyond a reаsonable doubt. Jackson v. Virginia,
Appellant’s complaint of the lack of “intent to deprive” evidence was also raised in Griffin v. State,
It must be remembered that the element which must be proved is not a deprivation, but the defendant’s intent to deprive at the time of the taking. The fact that the deprivation later became temporary does not automatically mean that there was no intent to deprive рermanently or for so long as to satisfy the statutory definition.
Id. at 159. Furthermore, as we have previously observed, proof of a completed theft is not required. Patterson v. State,
We turn now to the “nexus” issue. We first note that the Court of Criminal Appeals has held that the term “in the course of committing,” as used in the capital murder statute, has the same meaning as the term used and defined in the robbery statute. Ibanez v. State,
Generally, the offense of robbery (as charged in the instant case) requires рroof that appellant 1) assaulted the victim and 2) intended to obtain or maintain control of the victim’s property prior to or during the assault. See Zimmerman v. State,
In the instant case, the only evidence of appellant’s conduct in the record before us from which the jury could make a reasonable inference was the assault and subsequent theft of the victim’s truck. Wе have no further testimony of appellant’s conduct other than from the Lumberton police officer who believed appellant was mentally impaired in some way so that an arrest for public intоxication was justified. Appellant’s testimony at trial was completely exculpatory and self-serving and the jury was free to reject his explanation for his actions. For our purposes as the reviewing court, the question becomes whether any rational trier of fact would be justified in finding, from the evidence as a whole, that appellant intended to take the victim’s truck before, or as, he assaulted the victim.
Unfortunately, a close reading of case law regarding “nexus evidence” indicates that many cases are “proven” by vague inferences from the evidence as a whole, rather than by direct оr solid circumstantial evidence. At first blush, the Court of Criminal Appeals seemed to set out a bright-line rule when presented with such an issue as we have before us. That rule was essentially stated as: Evidence will be sufficiеnt to prove that, either before or at the time of the assault, the accused had already formed the intent to take his victim’s property if the State proves that the theft occurred immediately after the assault. See McGee v. State,
Appellant refers us to two of our recent treatments of this issue and complains that we seem to be suggesting that in all cases where there is evidеnce that a theft occurs after the victim is murdered this evidence will support a jury finding of murder in the course of a robbery. See [Huffman and McGee ]. It is true that in both of the above-cited cases we stated that the evidence will be sufficient if the State proves that a robbery of the victim occurred immediately after the murder of the victim. Huffman,746 S.W.2d at 217 , and McGee,774 S.W.2d at 234 . However, as should have been plain from our analysis of the evidence in both decisions, and, as we stated in White v. State,779 S.W.2d 809 , at 815 (Tex.Cr.App.1989):
the point at which appellant formulated his intent to take his victim’s property is critical to differentiating, in the abstract, between his commission of capital murder in the course of robbery and his commission of first degree murder, followed by theft.... Therefore, the ultimate question before us in this case is whether any rational trier of fact would be justified in finding from the evidence as a whole, that appellant intеnded to take [his victim’s] property before, or as, he murdered her.
Nelson,
In the instant case, the victim’s wife testified that appellant lived with her and the victim for “just a few days.” There is no further testimony as to appellаnt’s financial status, nor any testimony that appellant had admired the victim’s truck or coveted any of the victim’s property during that time. As we read Nelson, the immediacy of the theft following the assault is a factor to be considered, but absent other evidence from which to infer at what time appellant developed the requisite intent to take the truck, we cannot say that any rational trier of fact could
Our sustaining of appellant’s issue one results in acquittal of appellant on the robbery conviction. However, appellant requested that an instruction on the lesser included offense of misdemeanor assault be submitted to the jury. The trial court granted this request. We are, therefore, permitted to reform the judgment to reflect a сonviction for the lesser included offense of Assault (Class A). As reformed, the judgment of conviction is affirmed as to the adjudication of guilt. Tex.R.App.P. 43.2(c); Bigley v. State,
REFORMED, AND AS REFORMED, AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
Notes
. Perhaps when confronted with questionable nexus evidence, trial courts may cautiously consider additionаl instruction to minimize any "blurring effect” created by the State's failure or seeming failure to proffer satisfactory proof of intent prior to or during the as-saultive conduct. See Hall v. State,