Opinion issued June 30, 2015




                                    In The

                            Court of Appeals
                                   For The

                        First District of Texas
                           ————————————
                            NO. 01-14-00620-CR
                          ———————————
               BRODRICK RENALDA FRENCH, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 176th District Court
                          Harris County, Texas
                      Trial Court Case No. 1394253


                        MEMORANDUM OPINION

     Brodrick French was convicted by a jury of robbery. 1 After finding two

enhancement paragraphs to be true, the trial court sentenced him to 27 years’




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     TEX. PENAL CODE ANN. § 29.02 (West 2011) (robbery).
confinement. In two issues, French contends that the evidence was legally

insufficient to support his conviction.

      We affirm.

                                    Background

      N. Rivas stopped at a local gas station and, while standing on the driver’s

side putting gas into her car, noticed that her passenger door was opening. She

walked around the back of her car and found French reaching into the car to take

her purse. She attempted to take the purse back from him, but he was able to pull it

from her grasp. According to Rivas, French threw the purse into an open window

of a white car that had pulled up next to her car. He then opened the door to the

white car, got in, and told the driver to leave. According to Rivas, the white car’s

open door struck her as the car was fleeing, and she was injured.

      French was charged with robbery, described in the indictment as

intentionally, knowingly, and recklessly causing bodily injury to Rivas by hitting

her with a car door while in the course of committing theft. He pleaded not guilty.

The jury convicted him of robbery. French pleaded guilty to two enhancement

allegations based on earlier convictions for murder and possession of a controlled

substance. The trial court found the enhancement allegations to be true and

sentenced French to 27 years’ confinement. He appealed, challenging the legal

sufficiency of the evidence to support his conviction.


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                                Standard of Review

      We review French’s challenge to the legal sufficiency of the evidence under

the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781

(1979). See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We

examine all of the evidence in the light most favorable to the verdict and determine

whether a rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2789.

Our review includes both direct and circumstantial evidence, as well as any

reasonable inferences that may be drawn from that evidence. Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007). Although we consider all evidence

presented at trial, we do not reevaluate the weight and credibility of the evidence or

substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d

742, 750 (Tex. Crim. App. 2007). Because the jury is the sole judge of the

credibility of the witnesses and of the weight given to their testimony, any conflicts

or inconsistencies in the evidence are resolved in favor of the verdict. Wesbrook v.

State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).

            Legal Sufficiency of Evidence on Causing Bodily Injury

      A person commits the offense of robbery if, “in the course of committing

theft,” with the intent to obtain or maintain control of the property, a person

“intentionally, knowingly, or recklessly causes bodily injury to another” or


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“intentionally or knowingly threatens or places another in fear of imminent bodily

injury or death.” TEX. PENAL CODE ANN. § 29.02 (West 2011). The indictment

specifically alleged that French injured Rivas by striking her with the car door.

Consistent with that allegation, Rivas testified that French opened the door of the

white car and that it hit her before she could get out of the way. She also testified

that the impact knocked her to the ground, leaving her with scrapes and bruises.

      French contends that the evidence is legally insufficient on that issue

because Rivas’s testimony that she was hit by the car door was inconsistent with

(1) her original explanation of the events, (2) the police report prepared based on

her original comments, and (3) all other evidence. According to French, the other

evidence suggests that French jumped into an open window and never opened the

white car’s door.

       During Rivas’s cross-examination, French’s attorney asked Rivas if she had

previously told the police that French jumped through an open back window in the

white car instead of opening the door as Rivas was now claiming. Rivas insisted

that she told the police the same version of events as she had just described.

Nonetheless, one of the investigating officer, Houston Police Department Sergeant

J. Beddingfield, agreed that Rivas had, at an earlier point, stated that French

jumped through an open back window. The surveillance video did not clearly show




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either to be true. The video captured an image of the white car next to Rivas’s car

and, in the next frame, the white car was no longer in view.

      “The jury is the exclusive judge of the credibility of witnesses and of the

weight to be given testimony, and it is also the exclusive province of the jury to

reconcile conflicts in the evidence.” Wesbrook, 29 S.W.3d at 111. Viewing the

evidence in the light most favorable to the jury’s verdict and deferring to the jury’s

credibility determinations, we conclude that Rivas’s testimony provided legally

sufficient evidence from which the jury could conclude that French struck Rivas

with the car door and injured her, in the course of committing theft, to find him

guilty of robbery. To the extent that other evidence contradicted Rivas’s testimony,

the jury was free to discount that evidence and believe her legally-sufficient trial

testimony instead.

      We overrule French’s first issue.

                  Legal Sufficiency of Evidence of Mental State

      In his second issue, French contends that the evidence is legally insufficient

to establish the requisite intent for conviction because the mental state alleged in

the indictment was phrased as “intentionally, knowingly, and recklessly” while the

mental state specified in the jury charge was phrased as “intentionally, knowingly,

or recklessly.” According to French, this variance is material and requires reversal.




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      When an offense can be committed in more than one way, the indictment

may allege alternative methods of committing the offense. Nickerson v. State, 782

S.W.2d 887, 891 (Tex. Crim. App. 1990); Hough v. State, 929 S.W.2d 484, 489

(Tex. App.—Texarkana 1996, pet. ref’d). The culpable mental state may be pled in

the conjunctive and submitted to the jury in the disjunctive. Cruz v. State, 838

S.W.2d 682, 684 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (“It is proper

to allege the culpable mental states in the conjunctive and to charge the jury in the

disjunctive . . . .” (citing Rogers v. State, 774 S.W.2d 247, 251 (Tex. Crim. App.

1989))); Belcher v. State, 962 S.W.2d 653, 656 n.1 (Tex. App.—Austin 1998, no

pet.); see Zanghetti v. State, 618 S.W.2d 383, 386–88 (Tex. Crim. App. 1981);

Knorpp v. State, 645 S.W.2d 892, 904 (Tex. App.—El Paso 1983, no pet.)

(“conjunctive pleading of the intentional and knowing mental states . . . will

support their disjunctive submission to the jury.”).

      French’s reliance on Planter v. State, 9 S.W.3d 156 (Tex. Crim. App. 1999),

is misplaced. In Planter, the evidence established an offense that was different

from the one alleged in the indictment and set out in the jury charge. Id. at 159.

The evidence tended to show that the defendant attempted to induce another to pay

him to kill a person, but the indictment and jury charge set forth a different

scenario in which the defendant attempted to induce another to kill the person

himself. Id. The variance resulted in a reversal. Id.


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      Unlike in Planter, the only variance between French’s indictment and jury

charge was the replacement of the conjunctive with the disjunctive with regard to

the defendant’s mental state. This form of variance is not error. Rogers, 774

S.W.2d at 251; Nickerson, 782 S.W.2d at 891; Cruz, 838 S.W.2d at 684.

      We overrule French’s second issue.

                                    Conclusion

      The judgment of the trial court is affirmed.



                                               Harvey Brown
                                               Justice

Panel consists of Justices Jennings, Bland, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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