                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-373-CR


VERLEE ALBERT, JR.                                                  APPELLANT

                                              V.

THE STATE OF TEXAS                                                       STATE

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            FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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                           MEMORANDUM OPINION 1

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      Appellant Verlee Albert, Jr. appeals his conviction for aggravated robbery.

In two points, he argues that the evidence is legally and factually insufficient

to support the jury’s finding that he caused bodily injury to the complainant by

grabbing her arm. We affirm.




      1
          … See T EX. R. A PP. P. 47.4.
                                  Background

      The complainant, Vivian Pozil, is an eighty-one-year-old greeter at a Wal-

Mart store. She testified that one day while she was working as the greeter,

Appellant pushed a shopping cart of merchandise past the exit door’s theft-

detection equipment, setting off the theft-detection alarm. Pozil testified that

she approached Appellant and asked to see his receipt, as she always does

when the alarm sounds. Appellant continued to walk toward the exit. Pozil

walked beside the cart and asked to see Appellant’s receipt several more times,

but Appellant did not stop.

      Pozil testified that she “took ahold” of the cart, asked Appellant to stop,

and “hung on to [the cart] tight so he couldn’t move [it]. . . . I wasn’t about to

let it go out the door.” She said Appellant shook the cart three or four times

and then grabbed her arm. Another customer, Christopher Runge, saw what

was happening and approached to assist Pozil. Runge testified that Pozil was

“latched on to the cart” and that Appellant grabbed Pozil’s arm and “reached

across the cart and was trying to pull her hand off the cart so he could get the

cart out [the door].”

      When Runge approached, Appellant released Pozil’s arm, grabbed a bag

or two from the cart, and fled the store. Runge pursued him into the parking

lot, watched him enter a vehicle apparently waiting for him, followed

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Appellant’s vehicle with his own, and reported the vehicle’s location to police.

The police stopped the vehicle and apprehended Appellant with merchandise

from the store.

       Pozil testified that she did not initially realize that Appellant had injured

her arm, but her arm began to hurt and swell and “it wasn’t long until [it] was

red from the wrist up to the elbow.” By the time she left to go home that night

the redness was turning into black and blue. Her husband testified that her arm

was uninjured when she left for work that day, but it was bright red when she

returned home, and “[a] couple of days later it was really dark blue.”

       Appellant testified in his own defense. He admitted that he was in the

process of stealing merchandise from the Wal-Mart 2 when Pozil confronted him.

He testified that when Pozil grabbed the front of his cart—which, he said,

contained eight cases of beer, among other items—the cart started to tip

toward her, so he placed himself between her and the cart to protect her. He

testified that after righting the cart, he turned it around, gave it to Pozil, and

walked out of the store.

       The grand jury indicted Appellant for aggravated robbery, as follows:




       2
           … Appellant testified that he had stolen from other Wal-Marts that same
day.

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        [Appellant] did then and there, while in the course of committing
        theft of property and with intent to obtain or maintain control of
        said property, intentionally, knowingly, or recklessly cause bodily
        injury to Vivian Pozil, a person 65 years of age or older by shoving
        her with the defendant’s hand and grabbing her arm . . . .

See T EX. P ENAL C ODE A NN. § 29.03(a)(3)(A) (Vernon 2003). The application

paragraph of the jury charge tracked the indictment, except that it used the

disjunctive “or” instead of the conjunctive “and” between “shoving her with

[his] hand” and “grabbing her arm.” A jury found Appellant guilty, found an

enhancement allegation to be true, and assessed punishment at twenty-three

years’ confinement.

        On appeal, Appellant concedes that the evidence is sufficient to prove the

elements of aggravated robbery but argues that the evidence is legally and

factually insufficient to prove the means of commission of bodily injury alleged

in the indictment, “shoving [Pozil] with the defendant’s hand and grabbing her

arm.”

                               Standards of Review

        When reviewing the legal sufficiency of the evidence to support a

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

prosecution in order to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson




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v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the fact-finder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,

we must determine, with some objective basis in the record, that the great

weight and preponderance of all the evidence, though legally sufficient,

contradicts the verdict. Watson, 204 S.W.3d at 417.

                                  Discussion

      Appellant argues that the evidence is legally and factually insufficient to

support the jury’s verdict that he caused bodily injury to Pozil by shoving her




                                       5
with his hand or grabbing her arm.3 He also argues that while the evidence “no

doubt establishes the possibility that [Pozil’s] injury occurred when the

Appellant was grasping [her] arm,” the evidence makes it just as likely that the

injury was caused while Appellant was shaking the cart while Pozil was holding

onto it, thus creating a material variance between the means of injury alleged

in the indictment and the means proved at trial.

      There is no evidence in the record that Appellant shoved Pozil with his

hand. But Pozil and Runge both testified that Appellant grabbed her arm. Pozil

testified that her arm later hurt and turned red, and her husband testified that

it turned blue a couple of days later.

      Considering the evidence in the light most favorable to the verdict, a

rational trier of fact could have found beyond a reasonable doubt that Appellant

injured Pozil by grabbing her arm; thus, the evidence is legally sufficient. See

Clayton, 235 S.W.3d at 778.

      Considering the evidence in a neutral light, we cannot say that it is so

weak that the jury’s verdict is clearly wrong or manifestly unjust. See Watson,

204 S.W.3d at 414–15. Nor does the contrary evidence—Appellant’s own

testimony that he did not grab Pozil’s arm and instead saved her from being



      3
        … Appellant concedes that our analysis is governed by the alternative
means submitted disjunctively to the jury in the charge rather than conjunctively
as alleged in the indictment. See Lawton v. State, 913 S.W.2d 542, 551 (Tex.
Crim. App. 1995), cert. denied, 519 U.S. 826 (1996).

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crushed by the beer-laden cart—so greatly outweigh the evidence supporting

the verdict as to render it manifestly unjust.     See id. at 417.     Thus, the

evidence is factually sufficient. See id.

      As for Appellant’s material discrepancy argument, a variance occurs when

there is a discrepancy between the allegation in the charging instrument and the

proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001).

Only a material variance that prejudices a defendant’s substantial rights will

render the evidence insufficient. Id. at 257. Here, the evidence was legally and

factually sufficient to support a finding that Appellant injured Pozil by grabbing

her arm as alleged in the indictment; thus, there is no variance between the

indictment and the evidence.     The possibility that the injury occurred when

Appellant shook the cart was an evidentiary conflict for the jury to resolve. See

Sartain v. State, 228 S.W.3d 416, 424 (Tex. App.—Fort Worth 2007, pet.

ref’d). The jury resolved it against Appellant.

                                   Conclusion

      We overrule Appellant’s two points and affirm the trial court’s judgment.

                                            PER CURIAM

PANEL F:     GARDNER, HOLMAN, and WALKER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: June 5, 2008



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