                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-16-00067-CR


CORDRECUS DUNQUE BURTON                                             APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE


                                    ----------

     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
                   TRIAL COURT NO. 1403862D

                                    ----------

                                   OPINION

                                    ----------

      In two issues, Appellant Condrecus Dunque Burton appeals his conviction

for aggravated robbery with a deadly weapon.       See Tex. Penal Code Ann.

§ 29.03(a)(2) (West 2011). We affirm.

                                 Background

      On February 18, 2015, Brittany Darby, an Arlington resident, drove to a car

wash in Arlington to clean out her car. According to Darby, she went there alone.
When she arrived, she put her purse in the trunk of the car and then walked

around to the back passenger seat and began picking up items from the floor of

her car. According to Darby, she suddenly felt someone slap her on her rear

end. She testified that when she turned around, she was looking down the barrel

of a pistol and thought she was going to die. At trial, Darby identified the man

holding the pistol as Appellant.

      Darby testified that Appellant demanded she get into her car, so she did,

and he got into the car with her and continued to point the pistol at her. She

described Appellant as “continu[ing] to ask [her] where it’s at” and she replied

that she did not have anything, but he was adamant and dug through her glove

compartment, the middle console, and the rest of the car. Darby testified that

she did not know what Appellant was talking about or looking for. At one point,

Appellant told Darby, “B***h, I’ll blow your brains out.” Appellant continued to rifle

through the car and eventually accused Darby of hiding whatever he was looking

for on her person and felt under her jacket. Darby testified that Appellant said,

“B***h, move your hands,” when she placed them in her lap, to which she

responded that he was making a big mistake.1

      At that point, Appellant got out of the car and moved toward the trunk of

the car. When Darby followed him, Appellant told her, “B***h, get back in the

car.” Darby refused to get back in the car, and when Appellant grabbed her

      1
       At some point while they were in the car, Appellant took a cell phone
belonging to Darby.


                                          2
purse from the trunk, she told him he was not going to take it and reached for her

bag to take it back. Appellant then struck her in her face. Darby testified that

she fought back and grabbed the collar of his shirt, but Appellant pushed her

hard enough that she fell down and hit the back of her head. Appellant “took off

running” and Darby got up and ran after him, yelling and screaming for help.

Appellant ran into an apartment complex across the street and she followed him.

Other people in the apartment complex attempted to help Darby catch Appellant,

and at some point, he ran back to Darby, gave her the purse back, and said,

“B***h, take your s**t. It’s not that serious.”

      Three women who worked at a dentist’s office located across the street

from the car wash were returning from lunch when they heard somebody

screaming for help and saw a woman and a man, later identified as Appellant,

struggling at the carwash. Two of the women, Julie Zamora and Vanessa Perez,

testified at trial. Zamora testified that she saw Appellant hit the woman in the

face, grab her purse, and run across the street toward the apartment complex.

Zamora ran after Appellant and caught up to him as he reached the entrance to

the apartment complex, which was next door to the dentist’s office. Appellant ran

past her, although Zamora noted that he was not running very fast.          Perez

testified that Darby was crying hysterically and screaming for help.

      Nicholas Lewis lived in the apartment complex and was outside on

February 18 when he heard screaming and saw a man he identified as Appellant

carrying a purse run through a gate in the fence around the complex. Lewis


                                           3
testified that Appellant tried to hide between some of the cars in the complex

parking lot and that, when Lewis approached him, Appellant pulled a gun out of

the pocket of his hooded sweatshirt, pointed it at Lewis, and said, “Back up,

m*****f****r!” Lewis raised his hands and backed away, thinking that he was

about to be shot. Appellant walked away, and the police arrived soon after his

interaction with Lewis.

      Appellant’s mother, Tonya, and girlfriend, Makayla Garland, testified in his

defense.   His mother testified that she had given Appellant $1,202 on the

morning of February 18. Garland testified that she picked him up at his mother’s

house that morning and dropped him off near the carwash.         She circled the

block, and when she approached the carwash, she saw Appellant speaking to

another man by the fence of the carwash. She also recalled seeing a gray car at

the carwash. She did not stop at the carwash but continued driving, looking for a

place to get gas. When she came back to the carwash about five minutes later,

she saw that Appellant was fighting with someone. Garland drove around the

corner and called Appellant’s mother before returning to the carwash. When she

returned to the carwash, Appellant was no longer there, but several other people

were there. Appellant’s mother arrived and she and Garland looked for Appellant

for approximately 15 minutes, but Garland testified that they left as soon as they

saw the police.

      Avery Harris testified that he walked past the car wash on February 18 and

saw two men fighting, Appellant and a man Harris knew as “J Rock.” Harris also


                                        4
testified that he saw a woman standing by a black car with its trunk open. During

the fight, Harris saw that a gun fell on the ground and Appellant picked it up.

Harris testified that J Rock left in his car and then Appellant ran across the street

while the woman was screaming, “Stop him, stop him!” Harris did not intervene,

but instead went to the nearby convenience store. When he emerged from the

store a few minutes later, the police had arrived.

        Appellant testified in his own defense that after he picked up the $1,202

from his mother, Garland took him to the car wash to purchase marijuana from J

Rock, a drug dealer. Appellant testified that J Rock was smoking marijuana with

Darby and that when he arrived, J Rock was walking away from Darby’s car, and

Darby was standing outside the car with the door open. J Rock’s car was also

parked in the carwash area. According to Appellant, he asked J Rock for two

ounces of marijuana and pulled out the $1,202 in front of J Rock. Appellant

testified, “[J Rock’s] eyes like got big when he saw the substantial amount of

money that I had.” Appellant testified that he gave J Rock $100 and that J Rock

went to the trunk of Darby’s car, purportedly to retrieve the marijuana for

Appellant, but instead J Rock grabbed a gun from the trunk, pointed it at

Appellant, and told Appellant to give him the rest of Appellant’s money. When

Appellant hesitated, J Rock put his hand in Appellant’s pocket.            Appellant

grabbed J Rock’s hand, and J Rock pulled out a gun and pointed it at him, at

which point Appellant “froze up and stopped and [J Rock] just pulled the money

out.”


                                         5
      Appellant alleged that J Rock took all of the $1,202 and then turned to walk

back to Darby’s car, so Appellant tried to grab the gun from J Rock. The two

began to wrestle over the gun. Appellant described Darby as “standing looking

like she was shocked” while he was fighting with J Rock over the gun.

      Appellant estimated that he and J Rock fought over the gun for about 45

seconds before it fell on the ground, and J Rock kicked the gun towards Darby

and told Darby to get it. Appellant testified that Darby hesitated, enabling him to

reach the gun before she did, and he picked it up. Darby screamed, and J Rock

ran to his car and drove away. Appellant then went to the trunk of Darby’s car to

look for his money and grabbed a purse that was in the trunk.           After that,

Appellant ran across the street, thinking he was running toward J Rock’s car, and

Darby was screaming that Appellant had a gun and to stop him.            Appellant

testified that he ran into the apartment complex and that J Rock also drove into

the apartment complex through a different entrance.       Appellant admitted that

Lewis had seen him hiding behind a car, where Appellant claimed he was hiding

from J Rock.

      Appellant denied slapping Darby’s rear end or hitting her in the face at any

point during the incident.

      Passion Walker testified that she purchased drugs from J Rock at his

house on the morning of February 18 and that she later saw Appellant and J

Rock arguing next to J Rock’s car, a gray Oldsmobile which according to her was

parked at the corner store near the car wash. Walker testified that J Rock ran to


                                        6
a black car at the car wash, threw something to a woman standing at the open

trunk of the black car, and ran in the opposite direction, toward the apartments

across the street from the car wash. Walker testified that Appellant ran “a whole

totally different direction” and that she did not hear anyone screaming.

      Appellant was charged by a one-count, two-paragraph indictment with

aggravated robbery. The jury found Appellant guilty of aggravated robbery with a

deadly weapon, and the trial court sentenced him to 30 years’ confinement.

                                   Discussion

      Appellant brings two issues on appeal. In his first issue, Appellant argues

that his constitutional right to a unanimous verdict was violated because the trial

court failed to instruct the jury that it must unanimously agree on which

paragraph of the indictment it found him guilty. In his second issue, Appellant

challenges the sufficiency of the evidence to support his conviction.

I. Unanimity of the verdict

      Appellant argues that his right to a unanimous verdict was violated when

the trial court submitted the charge on aggravated robbery with a deadly weapon

in the disjunctive. Appellant does not dispute that he did not object to the jury

charge at trial, but “all alleged jury-charge error must be considered on appellate

review regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d

645, 649 (Tex. Crim. App. 2012).       In our review of a jury charge, we first

determine whether error occurred; if error did not occur, our analysis ends. Id.




                                         7
      A jury must reach a unanimous verdict. Landrian v. State, 268 S.W.3d

532, 535 (Tex. Crim. App. 2008); Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim.

App. 2005). However, while the jury must agree that the defendant committed

one specific crime, this does not mean that the jury must unanimously find that

the defendant committed that crime in one specific way or even with one specific

act. Landrian, 268 S.W.3d at 535.

      Aggravated robbery incorporates the elements of the lesser offense of

robbery. Tex. Penal Code Ann. § 29.03(a). A person commits robbery “if, in the

course of committing theft . . . and with intent to obtain or maintain control of the

property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to

another; or (2) intentionally or knowingly threatens or places another in fear of

imminent bodily injury or death.” Id. § 29.02(a) (West 2011). As charged in the

case at bar, the offense is elevated to aggravated robbery if the offender uses or

exhibits a deadly weapon. Id. § 29.03(a)(2).

      Appellant was charged by a one-count, two-paragraph indictment with

aggravated robbery. Paragraph one alleged that he caused bodily injury to the

complainant, and paragraph two alleged that he threatened or placed her in fear

of imminent bodily injury or death. Both paragraphs alleged that Appellant used

or exhibited a deadly weapon.        The jury charge instructed the jury in the

disjunctive, advising that if the jury found from the evidence beyond a reasonable

doubt that Appellant caused bodily injury to the complainant or threatened or

placed her in fear of imminent bodily injury or death, then it was to find Appellant


                                         8
guilty of aggravated robbery.2 The jury charge also included general unanimity

instructions. The jury found Appellant guilty of aggravated robbery with a deadly

weapon as charged in the indictment.

      “A trial court may submit a disjunctive jury charge and obtain a general

verdict where the alternate theories involve the commission of the ‘same

offense.’” Rangel v. State, 199 S.W.3d 523, 540 (Tex. App.—Fort Worth 2006,

pet. dism’d) (quoting Finster v. State, 152 S.W.3d 215, 218 (Tex. App.—Dallas

2004, no pet.)); see also Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim.

App. 1991) (holding it was proper for jury to be charged in disjunctive as to

different methods of committing capital murder). In Cooper v. State, 430 S.W.3d

      2
       The jury charge read as follows:

             Now, if you find from the evidence beyond a reasonable doubt
      that on or about the 18th day of February, 2015, in Tarrant County,
      Texas, [Appellant], did then and there intentionally or knowingly,
      while in the course of committing theft of property and with intent to
      obtain or maintain control of said property, cause bodily injury to
      another, Brittany Darby, by striking her with his fist, or by pushing
      her to the ground and the defendant used or exhibited a deadly
      weapon, to-wit: a firearm, then you will find [him] guilty of aggravated
      robbery with a deadly weapon as charged in count one, paragraph
      one of the indictment; or,

             If you find from the evidence beyond a reasonable doubt that
      on or about the 18th day of February, 2015, in Tarrant County,
      Texas, [Appellant], did then and there intentionally or knowingly,
      while in the course of committing theft of property and with intent to
      obtain or maintain control of said property, threaten or place Brittany
      Darby in fear of imminent bodily injury or death, and [he] used or
      exhibited a deadly weapon, to-wit: a firearm, then you will find [him]
      guilty of aggravated robbery with a deadly weapon as charged in
      count one, paragraph two of the indictment.


                                          9
426 (Tex. Crim. App. 2014), the court of criminal appeals held that separate

convictions for aggravated robbery based on the two underlying methods of

robbery—causing bodily injury to or threatening the same victim during a home

invasion—violated double jeopardy. Id. at 427. The two concurring opinions

issued by the court agreed that aggravated robbery causing bodily injury and

aggravated robbery by threat are alternative methods of committing the offense

of aggravated robbery. Id. at 434 (Keller, P.J., concurring), 439 (Cochran, J.,

concurring).3 We are bound by the court of criminal appeals’ holding in Cooper.

Crenshaw v. State, 424 S.W.3d 753, 755 (Tex. App.—Fort Worth 2014, no pet.).4

Reading Rangel and Cooper together leads us to conclude that it was not error

      3
       The Cooper opinion is a fractured opinion by the court of criminal appeals.
The majority of five justices issued a brief, three-paragraph opinion holding that
appellant’s separate convictions for aggravated robbery based on theories of
causing bodily injury and threat to the same victim during the same home
invasion violated double jeopardy. 430 S.W.3d at 427. Two concurring opinions
were issued, each joined by one justice. Id. at 427–35 (Keller, P.J., concurring),
435–39 (Cochran, J. concurring).
      4
        We note that our prior decision in Barrow v. State, No. 02-13-00187-CR,
2015 WL 4380866, at *4 (Tex. App.—Fort Worth July 16, 2015, no pet.) (mem.
op., not designated for publication), relied upon by Appellant, determined that the
submission of aggravated robbery in the disjunctive as to the aggravating
factors—in that case, whether the appellant committed aggravated robbery by
causing bodily injury to a person 65 years or older or by exhibiting a deadly
weapon—was error because it violated the requirement of jury unanimity. But
see Woodard v. State, 294 S.W.3d 605, 609 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d) (holding that the aggravating factors of aggravated robbery are
“simply descriptions or means by which the underlying offense of robbery
causing bodily injury can be committed”). Here, we address a different issue,
i.e., whether it was proper to charge the underlying methods of robbery in the
disjunctive. However, to the extent that our opinion in Barrow conflicts with the
court of criminal appeals’ holding in Cooper, we note that Cooper controls.


                                        10
for the charge of aggravated robbery to be submitted in the disjunctive because

causing bodily injury or threatening the victim are different methods of committing

the same offense. We overrule Appellant’s first issue.

II. Sufficiency of the evidence

      Appellant’s second issue attacks the sufficiency of the evidence to support

his conviction.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979). The trier of fact is the sole judge of the

weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04

(West 1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).

Thus, when performing an evidentiary sufficiency review, we may not re-evaluate

the weight and credibility of the evidence and substitute our judgment for that of

the factfinder. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App.

2012). Instead, we determine whether the necessary inferences are reasonable

based upon the cumulative force of the evidence when viewed in the light most

favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.

2015). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Id. at 448–49.




                                         11
      To determine whether the State has met its burden under Jackson to prove

a defendant’s guilt beyond a reasonable doubt, we compare the elements of the

crime as defined by the hypothetically correct jury charge to the evidence

adduced at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014); see

Crabtree v. State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential

elements of the crime are determined by state law.”). Such a charge is one that

accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or restrict the State’s theories

of liability, and adequately describes the particular offense for which the

defendant was tried. Thomas, 444 S.W.3d at 8. The law as authorized by the

indictment means the statutory elements of the charged offense as modified by

the factual details and legal theories contained in the charging instrument. See

id.; see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When

the State pleads a specific element of a penal offense that has statutory

alternatives for that element, the sufficiency of the evidence will be measured by

the element that was actually pleaded, and not any alternative statutory

elements.”).

      A person commits aggravated robbery if he uses or exhibits a deadly

weapon “in the course of committing theft and with intent to obtain or maintain

control of the property” and “he intentionally or knowingly causes bodily injury to

another or intentionally or knowingly threatens or places another in fear of

imminent bodily injury or death.” See Tex. Penal Code Ann. § 29.03(a)(2).


                                        12
      Appellant argues in particular that, because he returned the purse and cell

phone to Darby, the State did not meet its burden to show that he intended to

deprive the owner of the property.      However, the actual commission of the

offense of theft is not a prerequisite to the commission of the offense of robbery;

the gravamen of robbery is the assaultive conduct and not the theft. Ex parte

Denton, 399 S.W.3d 540, 546 (Tex. Crim. App. 2013). A completed theft is

therefore not required to establish a robbery. Tex. Penal Code Ann. § 29.02(a)

(requiring assaultive conduct “in the course of committing theft”); Robinson v.

State, 596 S.W.2d 130, 134 (Tex. Crim. App. 1980) (observing that prior version

of the penal code required a completed theft to prove aggravated robbery). The

testimony that Appellant took the purse and cell phone from Darby while

threatening her at gunpoint and then ran away from her is sufficient to establish

an intent to commit theft, regardless of whether he later returned the purse and

cell phone.   See Caldwell v. State, 943 S.W.2d 551, 552 (Tex. App.—Waco

1997, no pet.) (holding evidence that appellant demanded money from bank

teller at knifepoint and ran from bank with a bag matching description of bag in

which teller stated she placed the money was sufficient to show intent to obtain

and control property); Shaw v. State, 826 S.W.2d 763, 767 (Tex. App.—Fort

Worth 1992, pet. ref’d) (holding evidence that appellant took victim’s purse at

gunpoint and threw it outside the car to his accomplice was sufficient to show

control over money in the purse).




                                        13
       The jury was essentially presented with two narratives of what took place

on February 18, 2015, and Appellant argues that the jury should have believed

his story. However, it was the jury’s role to determine the credibility of all of the

witnesses, including Appellant, and to resolve conflicts between the witnesses’

testimony. Dobbs, 434 S.W.3d at 170. The jury was presented with evidence

that Appellant punched Darby in the face, pushed her to the ground, and

threatened her with a firearm before running away with her purse, and this

account was corroborated by other nearby witnesses.            This evidence was

sufficient to prove aggravated robbery. See, e.g., Shaw, 826 S.W.2d at 767;

Caldwell, 943 S.W.2d at 552–53.

       We therefore overrule Appellant’s second issue.

                                    Conclusion

       Having overruled each of Appellant’s issues, we affirm the judgment of the

trial court.


                                                    /s/ Bonnie Sudderth
                                                    BONNIE SUDDERTH
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.

PUBLISH

DELIVERED: January 5, 2017




                                         14
