¶2I dissent.
¶3Last year, the Court of Criminal Appeals reversed this Court for our opinion in Warren v. State,784 S.W.2d 56 (Tex.App. — Houston [1st Dist.] 1990) (Warren I),rev'd,810 S.W.2d 202 (Tex.Crim.App. 1991) (Warren II ). As the author of the Warren I opinion, I am painfully aware of its holding. Today, the majority repeats the error we committed in Warren I. As an intermediate court, we are obliged to follow the law as expressed by the Court of Criminal Appeals in WarrenII.
¶4In Warren II, the Court of Criminal Appeals held the State must prove all the allegations in the indictment as set forth in the trial court's charge. Id. at 203-204. In Warren II, the State alleged, in the indictment, that the defendant committed theft by appropriating a watch, a chain, money, and pants without the effective consent of the owner. 810 S.W.2d at 203. This Court found that the evidence presented at trial was insufficient to prove the defendant intended to deprive the owner of his pants, but also found the evidence was sufficient to support the conviction because appropriating any of the owner's property supported a conviction for theft. Id. On appeal, the Court of Criminal Appeals reversed, holding that the State assumed the burden of proving the appellant appropriated all the items in the trial court's charge, including the pants, when it did not object to the charge. Id. at 204.
¶5In accord with the Warren II opinion, I would find the evidence was insufficient to prove that the appellant demanded money. The only demand the appellant made of Millan was to give him "the bag." Millan testified that the only statement the appellant made was "the bag." There is no evidence in the record that the appellant demanded money. There is no evidence that the appellant saw the bank bag in the backpack or that he saw the money in the backpack. There is no evidence the appellant knew the backpack contained a bank bag that contained money. Because there was no evidence the appellant knew the bank bag was in the backpack, his demand was for the only bag he could see, that is, the backpack.
¶6The majority holds that, because the appellant demanded only the bag, and did not demand other valuable property or demand that Millan empty his pockets, the jury could have inferred the appellant knew the backpack contained money. And because the appellant knew the backpack contained money, his demand for "the bag" was in actuality a demand for money as alleged in the indictment and jury charge. I disagree.
¶7The majority incorrectly focuses on what was in the backpack, instead the appellant's demand. If the backpack had contained books, food, or hiking supplies, would the appellant's demand for "the bag" have been a demand for money?
¶8Even if the jury could have inferred that the appellant knew the backpack contained something more valuable than Millan's jewelry (if in fact Millan was wearing any jewelry) or money in his pockets or wallet, that inference does not lead to the further inference that the appellant knew the backpack contained money. The fact that the appellant did not demand certain other property does not lead to a reasonable inference that the appellant knew the backpack contained money. Perhaps the appellant intended to demand other property, but before he was able to do so, was frightened by Vasquez blowing his car horn.
¶9Because the State did not object to the jury charge, the State assumed the burden of proving that the appellant intentionally or knowingly threatened or placed Millan in fear of imminent bodily injury or death, by producing a firearmand demanding money. Warren II,810 S.W.2d at 204; Nickerson v. State,782 S.W.2d 887, 891-92 (Tex.Crim.App. 1990). Because the only verdict authorized in view of the evidence was *290 "not guilty," the evidence was insufficient as a matter of law. Warren II,810 S.W.2d at 204.
¶10I would sustain the appellant's sole point of error, reverse the judgment, and render a judgment of acquittal.