Gray v. State , 489 S.W.2d 622 ( 1973 )

OPINION

DAVIS, Commissioner.

This is an appeal from a conviction for robbery by assault. Punishment was assessed by the jury at fifteen years.

Appellant’s sole contention is that the evidence is insufficient to support the conviction.

John McMahan testified that he was manager of a Mobil Station on Southwest Freeway in Houston on August 23, 1970, and along with an employee by the name of Jesse James was operating the station about 2:00 A.M. on that date when James advised him that they were about to be robbed. James directed McMahan’s attention to two men standing by a sign at Denny’s restaurant adjoining the service station. The two men were looking toward the service station and talking. J ames went to the restaurant to call the police and McMahan stated that he was in the process of talking to the police on the telephone at the service station when a man, identified as appellant, walked up from behind him, took the telephone away from him and hung it up. McMahan further testified that appellant pulled a gun out of his belt and said, “Do you know what this is?” and “I want your money.” McMahan opened the cash box and appellant “started stuffing money in his pocket.” McMahan then opened a vending machine and removed the money therefrom for appellant, after which appellant started going through McMahan’s wallet, when a person identified as Ridley walked up and said, “We had better get out of here. The other guy ran off.” About this time, Officer Hake of the Houston Police Department drove up and arrested Ridley but appellant escaped from the scene after an exchange of gunfire with the officer. The appellant was captured in the patio of a nearby apartment complex, but not until he had again fired at the officer. Hake testified that appellant was holding a pistol at the back of McMahan’s head when he drove into the station. James testified that, while he was at the restaurant next door getting the cashier to call the police, he could see appellant and McMahan at the cash register. Irwin Urband, who was riding with Officer Hake at the time in question, testified that when he first sighted appellant, “he had his pistol in the back of John Mc-Mahan’s head.”

McMahan testified that he was in fear of his life and bodily injury and that appellant took between two hundred and thirty and two hundred and fifty dollars in the robbery.

Clearly, the evidence is sufficient to support the conviction. See Pete v. State, Tex.Cr.App., 471 S.W.2d 841; Howard v. State, Tex.Cr.App., 453 S.W.2d 155; Henry v. State, Tex.Cr.App., 433 S.W.2d 430.

The judgment is affirmed.

Opinion approved by the Court.