                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-17-00118-CR
                            ____________________

               TERRANCE LAMICHAEL CANADY, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee


                  On Appeal from the Criminal District Court
                          Jefferson County, Texas
                         Trial Cause No. 16-26028


                          MEMORANDUM OPINION

      A jury found Terrance Lamichael Canady guilty of robbery. Canady pleaded

“true” to the enhancement paragraph in the indictment, elected to have the trial court

assess punishment, and the trial court sentenced Canady to fifteen years of

confinement. In his sole appellate issue, Canady challenges the sufficiency of the

evidence supporting the jury’s verdict. We affirm as reformed.




                                          1
                                   The Indictment

      A grand jury indicted Canady for the offense of robbery and alleged that

on or about July 15, 2016, Canady

      did then and there while in the course of committing theft of property
      owned by [K.D.],[1] hereafter styled the Complainant, and with intent
      to obtain and maintain control of the property, intentionally, knowingly
      and recklessly cause[d] bodily injury to the Complainant by dragging
      [K.D.] with a vehicle[.]

The indictment included an enhancement paragraph alleging Canady had previously

been convicted of the third-degree felony of possession of a controlled substance.

                                       Evidence

Testimony of K.D.

      K.D. testified that she met Canady online in October 2013 and that he was

living in Houston. They began dating and he “stayed [at K.D.’s house] and then he

left and then he came back and then . . . stayed for like over a year.” K.D. testified

she “started finding out lies[]” and she suspected Canady was using drugs.

According to K.D., Canady “changed[]” when he was on drugs and their relationship

was “off and on[]” until she “was trying to get out of the relationship.” K.D. testified



      1
         We use initials to refer to the alleged victim and initials or relational nouns
to refer to family members and juveniles. See Tex. Const. art. I, § 30(a)(1) (granting
crime victims “the right to be treated with fairness and with respect for the victim’s
dignity and privacy throughout the criminal justice process[]”).
                                             2
that they were involved in a physical altercation and she protected herself and hit

Canady when Canady was “beating [her] in [her] head and [her son] going back and

forth.” They stopped talking for about a month and a half, and then got back together.

K.D. testified that she found out Canady had “started seeing someone else” while he

was still in a relationship with K.D., and she confronted him. According to K.D., she

and Canady broke up in February of 2016, but Canady told her he wanted to get back

together. K.D. testified that after she left him Canady threatened suicide and K.D.

eventually changed her phone number because Canady kept on calling.

      K.D. testified that on July 15, 2016, she was playing slot machines at the

corner store on Blanchette and 4th Street in Jefferson County, and she had her

daughter, N.B., with her. According to K.D., Canady knew she went to that store

regularly and that he came in the store that day. K.D. testified that Canady “was

aggressive, started fussing[,]” and she walked out because she did not want Canady

to embarrass her in the store. K.D. testified that Canady and N.B. followed her out

of the store. According to K.D., she was behind the truck and she had her keys and

wallet in her hand and her wallet was open. K.D. testified that Canady asked if they

could get back together and she told him they would never get back together. Canady

then asked where his ID was and grabbed her keys. She asked for her keys back, and

after he did not give them back she reached to try to grab them from him. He knocked

                                          3
her hand and her wallet fell, causing her money, cards, and everything [to] spill out.

K.D. testified that as she was picking up her wallet and the items that had spilled

out, Canady took her keys and got in the truck that he had arrived in at the store and

started the vehicle. She opened the passenger-side door, reached across a male in the

passenger seat and as she attempted to grab her keys from inside the vehicle, Canady

“sped off with [K.D.] in the truck[.]”

      When asked if Canady dragged her by the car, K.D. answered, “When he sped

off, you know how you just go backwards because someone take off and you don’t

expect it to happen and I just remember trying to hold on . . . and I just flew out the

car.” She remembered falling back and rolling, seeing “scars everywhere” and

screaming. She looked up and saw her daughter, picked up her money that was on

the ground, and called 911. She told 911 her location, what happened, that she “got

drug by the car” because “that’s what it felt like[,]” and how Canady took off with

her keys. K.D. testified that she was hurting, she “[f]elt like [she] was on fire[,]” and

her chest and knee were “scratched up[]” and her thigh, lip, and toes were “scraped

up.” The keys Canady took were K.D.’s house and vehicle keys, and she feared that

Canady was going to do damage to her house or vehicle. Because she did not get her

keys back that evening, K.D. had to get her car towed home and change the locks at



                                           4
her house. K.D. explained that she subsequently got her keys back after Canady

revealed that he left them in a dumpster at another location.

      A recording of K.D.’s 911 call was played for the jury and K.D. testified that

she said on the recording, “He tried to kill me” and “He drug me by the car[.]”

Photographs taken by law enforcement of her injuries were admitted into evidence.

K.D. agreed that the injuries depicted in the photographs were a result of the incident

and that they did not exist prior to “being drug by the truck[.]” She agreed that the

only reason he got away with her keys was “because he took off in that truck and

drug [her.]”

Testimony of K.D.’s Daughter

      N.B., K.D.’s ten-year-old daughter, testified that Canady is her mom’s ex-

boyfriend and she identified him in the courtroom. N.B. explained that on the day of

the incident she was at the store that is also a game room. N.B. testified that Canady

came into the store and was talking to her mother. When N.B. did not see her mother

in the store she went outside and saw her mother and Canady behind her mother’s

truck in the parking lot. According to N.B., her mother had her keys in her hand,

Canady grabbed the keys, and her mother’s wallet fell on the ground. N.B. testified

that her mother’s debit card, driver’s license, and some cash fell out of her wallet.

She saw Canady turn and run back to his truck and she heard her mother say, “Give

                                          5
me back my keys[.]” According to N.B., Canady’s brother had come into the store

with Canady and was in the driver’s-side back seat of the truck, and she did not see

if anyone was on the passenger’s side. N.B. testified she ran by the side of the truck

and saw her mother jump inside the passenger side. N.B. testified that her mother

“stepped on that thing to get in the truck and like when he sped off, like he went

really fast . . . [s]he like slipped and a little bit and she fell right when he got to the

corner of the street and she scraped herself up[.]” According to N.B., she was scared

because her mother was hurt, and it appeared she hurt her lip, elbows, knuckles,

knees, foot and breast.

Testimony of K.D.’s Sister

       K.D.’s sister testified that her sister had dated Canady for some years and the

relationship was “rocky towards the end.” K.D.’s sister testified she received a call

from K.D. on July 15, 2016. K.D.’s sister went to the store and described K.D.’s

appearance as “[d]rug, scars, mouth bleeding, breasts.” K.D.’s sister left with N.B.

and K.D. had given her sister Canady’s phone number to try to locate K.D.’s keys.

K.D.’s sister got ahold of Canady, and he told her the keys were in a dumpster “on

Washington and Goliad[,]” but K.D.’s sister only found an empty key ring. She

called Canady again and he gave her the location of the dumpster and this time K.D.

was able, with N.B.’s help, to locate the keys. According to K.D.’s sister, when she

                                            6
talked to Canady after the incident he admitted K.D. had been hurt and that he had

“messed up.”

Testimony of Officer Jessie Lisenby

      Jessie Lisenby, a police officer with the Beaumont Police Department,

testified he was on patrol on July 15, 2016, and was dispatched to a convenience

store near 4th and Blanchette regarding a “woman who had possibly been dragged

by a car[.]” Officer Lisenby arrived at the location and found a woman that “had

been roughed up[,]” was “extremely hysterical, very animated, running around the

parking lot[,]” and “was screaming, crying, hollering, pointing.” She was saying “he

took my keys, he took my keys[.]” Officer Lisenby testified EMS was called and a

report was filed. According to Officer Lisenby, the woman’s injuries appeared to be

“road rash” and were consistent with someone who had fallen on pavement and

consistent with the story the woman reported about her coming out of a vehicle.

Officer Lisenby did not make any inquiry whether the store had surveillance video

inside the store or outside in the parking lot.

Testimony of Detective Charla Phillips

      Charla Phillips, a detective with the City of Beaumont Family Violence Unit,

testified that on July 18, 2016, she received a case to investigate Canady for robbery

and involving family violence against K.D. According to Detective Phillips, K.D.

                                           7
initially did not want to pursue criminal charges against Canady because she was

afraid he would retaliate. Detective Phillips testified that she obtained K.D.’s

statement, and once K.D. decided to pursue criminal charges against Canady,

Detective Phillips went to the convenience store a few weeks after the incident to

inquire about any surveillance video. Detective Phillips testified that she was

informed that even if there had been video of the incident it would have been

overwritten by more video because the recording starts over after seven days and the

seven-day window had passed.

      Detective Phillips testified she contacted Canady, who voluntarily came to the

police department and gave a statement on September 14, 2016. According to

Detective Phillips, she read Canady his Miranda rights, Canady voluntarily signed

a document regarding the Miranda rights Phillips read, and the video statement

depicts her reading the Miranda rights and Canady signing the original document

stating he reviewed those rights. Canady’s video statement was then admitted into

evidence and played for the jury. Detective Phillips testified that during the video

statement, Canady admitted having an altercation with K.D. outside the store, that

K.D. chased him to the car and reached inside the vehicle to grab him, that he sped

off while K.D. was reaching in the car and K.D. was injured, and Canady told K.D.’s

sister and K.D. that the keys were “[s]omewhere on Washington Boulevard.”

                                         8
      Detective Phillips testified that every time she asked Canady about K.D.’s

keys, Canady would get nervous and avoided talking about the keys. Detective

Phillips testified she believed she had probable cause to ask for a warrant to be issued

for Canady’s arrest for robbery. In the video, Canady stated that he and K.D. had an

altercation outside, he “broke loose” and ran to the car, K.D. chased him, his brother

and a friend were in the car with him, and then when he got back into his vehicle

and drove off, K.D. fell out of the car and hit the ground while trying to open the

passenger door to “attack [him] some more.” According to Canady, she had bruises

and she later told him that she lost her keys during the struggle. He claimed in his

video statement that he told K.D.’s sister to look for the keys on Washington

Boulevard, but that he did not take anything or her keys.

                                       Analysis

      In one issue on appeal, Canady challenges the sufficiency of the evidence

supporting the jury’s verdict. Canady argues that the State failed to adduce sufficient

evidence that any bodily injury was caused by dragging K.D. with a vehicle.

According to Canady, the record is clear that K.D. fell out of the vehicle when

Canady sped off and that she received injuries from striking the pavement and not

from being dragged by a vehicle. Canady asserts that “[a]llowing the conviction to

stand in the absence of sufficient evidence that [he] dragged [K.D.] with a vehicle

                                           9
affected his substantial rights to due process[]” and he “stands convicted of

committing acts that clearly did not occur.”

      In reviewing the legal sufficiency of the evidence, we view the evidence in

the light most favorable to the verdict to determine whether any rational factfinder

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Temple v. State, 390 S.W.3d 341,

360 (Tex. Crim. App. 2013). “The jury is the sole judge of credibility and weight to

be attached to the testimony of witnesses.” Temple, 390 S.W.3d at 360. We give full

deference to the jury’s responsibility to fairly resolve conflicts in the testimony, to

weigh evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We may not substitute

our judgment for that of the factfinder concerning the weight and credibility of the

evidence. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). When faced

with conflicting evidence, we presume the trier of fact resolved conflicts in favor of

the prevailing party. See Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

      A person commits robbery if, “in the course of committing theft” and “with

intent to obtain or maintain control of the property,” he “intentionally, knowingly,

or recklessly causes bodily injury to another[.]” Tex. Penal Code Ann. § 29.02(a)(1)

(West 2011). Theft is the unlawful appropriation of property with the intent to

                                          10
deprive the owner of the property. Tex. Penal Code Ann. § 31.03(a) (West Supp.

2017).2

      “[S]ufficiency of the evidence should be measured by the elements of the

offense as defined by the hypothetically correct jury charge for the case.” Malik v.

State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Johnson v. State, 364

S.W.3d 292, 294 (Tex. Crim. App. 2012). The Texas Court of Criminal Appeals has

described the law as “authorized by the indictment” to be “the statutory elements of

the offense . . . as modified by the charging instrument.” Curry v. State, 30 S.W.3d

394, 404 (Tex. Crim. App. 2000). However, the hypothetically correct jury charge

does not necessarily have to track exactly the charging instrument’s allegations and

“need not incorporate allegations that give rise to immaterial variances.” See

Johnson, 364 S.W.3d at 294 (quoting Gollihar v. State, 46 S.W.3d 243, 253, 256

(Tex. Crim. App. 2001)).

      In Johnson, the appellant was charged with aggravated assault by causing

serious bodily injury. See Johnson, 364 S.W.3d at 298. On appeal, the appellant

claimed that a variance between the charging instrument and proof rendered the

evidence legally insufficient to support his conviction. See id. at 293. The variance



      2
        We cite to the current version of the statute because subsequent amendments
do not affect our disposition.
                                           11
in that case involved the charged acts of “hitting the victim with his hand” and

“twisting the victim’s arm with his hand” versus the proved act of “throwing the

victim against the wall.” See id. at 293, 298. The Texas Court of Criminal Appeals

explained the offense of aggravated assault is a result-of-conduct crime with the

focus being on the victim and the bodily injury inflicted, not what caused the victim’s

injury. See id. at 298. The Court reasoned that the description of the act that caused

the serious bodily injury does not “define or help define the allowable unit of

prosecution for this type of aggravated-assault offense, so the variance at issue

cannot be material.” See id. The Court concluded that the variance involved

immaterial non-statutory allegations, and therefore, the variance did not render the

evidence legally insufficient. See id. at 299.

      In the present case, Canady was charged with robbery, or theft causing bodily

injury. Canady does not argue that the victim did not receive bodily injuries, but he

argues the variance in this case involves whether the bodily injury to K.D. was

caused “by dragging her with a vehicle[]” versus what Canady describes as K.D.

falling out of the vehicle.

      The offense of robbery involves a theft and bodily injury and it is a result-

oriented offense. See Garfias v. State, 424 S.W.3d 54, 60-61 (Tex. Crim. App. 2014).

As such, the focus is on the bodily injury inflicted on K.D. during the theft and not

                                          12
what caused her injuries. The alleged variance here, like in Johnson, involved

immaterial non-statutory allegations and would not render the evidence legally

insufficient. See Johnson, 364 S.W.3d at 298-99.

      Furthermore, even if the State was required to prove that K.D.’s bodily injury

was caused by Canady dragging K.D. with a vehicle, we conclude that, considering

the evidence in the light most favorable to the verdict, a rational jury could have

found Canady guilty of robbery as alleged in the indictment. Based on K.D.’s

testimony, the wording on the 911 call where she describes being dragged by the

car, and pictures of her injuries, the jury could have found that she was dragged by

the car. We overrule Canady’s sole appellate issue.

      We note that the section of the judgment entitled “Punishment Assessed by[]”

recites “Jury,” whereas the appellate record indicates Canady elected to have the trial

court assess punishment and the trial court assessed punishment. This Court has the

authority to reform the trial court’s judgment to correct clerical errors. See Tex. R.

App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993). We

therefore reform the judgment to reflect that the trial court assessed Canady’s

punishment. See id.




                                          13
      Having overruled Canady’s issue, we affirm the judgment of the trial court as

reformed.

      AFFIRMED AS REFORMED.

                                                  _________________________
                                                     LEANNE JOHNSON
                                                           Justice


Submitted on January 4, 2018
Opinion Delivered August 29, 2018
Do Not Publish

Before Kreger, Horton, and Johnson, JJ.




                                          14
