Weaver v. State

OPINION

GREEN, Commissioner.

In a trial before a jury appellant was convicted of aggravated assault, a felony of the third degree. V.T.C.A. Penal Code, Sec. 22.02(a)(3). Punishment was assessed at ten years.

In his sole ground of error, appellant argues that the court erred in failing to grant his motion for an instructed verdict, since there was a fatal variance between the allegations of the indictment and the proof.

The indictment charged that on or about April 29, 1974, in Coleman County, appellant

“did then and there intentionally and knowingly use a deadly weapon, to-wit: 22 caliber Ruger…