The offense is robbery by assault enhanced by a prior conviction for an offense of the same character under Art. 62, Vernon's Ann.P.C.; the punishment, life.
Officers apprehended appellant running from the complaining witness' house. He was wearing thin black leather gloves, later identified as belonging to the complaining witness, and had a long, sharp letter opener, a ladies' nylon stocking and a dollar and some change in his possession. One of the officers testified that a metal screen had been freshly torn from one of the windows in the house.
The seventy-four year old complaining witness testified she was awakened by appellant, whom she had never seen before, prowling about her bedroom. She stated that appellant demanded money and jewelry and that, after he bloodied her nose, she gave him all the money she had which amounted to one dollar and some change. She further testified that she attempted to flee the house but was overtaken by appellant and severely beaten. The attending physician at the hospital emergency room, where she was later taken, testified that she was badly beaten.
Appellant testified that he met the complaining witness approximately four weeks earlier at a discount department store where she engaged him in conversation and invited him to her home. He stated that he went to her home two or three
Appellant's first and third contentions are that the court failed to charge on the lesser included offense of simple assault and assault with the intent to rob. He claims that his testimony raised these offenses.
Appellant cites a number of cases in support of his contentions and, in part, relies upon the following exerpt from the opinion of this Court in Daywood v. State, 248 S.W.2d 479:
We observe that appellant's testimony does not raise the question of simple assault or assault with intent to rob. As an adult male, he could not be guilty of a simple assault upon this seventy-four year old female. Further, he did not testify he intended to rob the complaining witness.
We also call appellant's attention to our recent opinion in Deominguez v. State, 472 S.W.2d 268, where we had a similar contention before us and held that the trial court did not err in refusing appellant's requested charge where the charge actually given was more favorable to him than the one requested. Therein we said:
Likewise, in the case at bar the court instructed the jury to acquit appellant if they did not find him guilty of robbery by assault. Appellant's first and third grounds of error are overruled.
Appellant's second ground of error relates to the failure of the court to grant a motion for new trial based upon alleged newly discovered evidence. The trial court found that the motion was filed more than sixty days after notice of appeal had been given and was, therefore, not timely. He further found that the statements of the missing witnesses were merely cumulative and not enough to affect or alter the verdict of the jury. We are inclined to agree with the findings of the court. See Watkins v. State, Tex.Cr.App., 438 S.W.2d 819, 822.
Appellant's remaining grounds of error are not briefed nor is any argument presented. They are, therefore, not in compliance with Article 40.09, Sec. 9, Vernon's Ann.C.C.P., Rivello v. State, Tex.Cr. App., 476 S.W.2d 299.
Finding no reversible error, the judgment is affirmed.