Opinion
No. 05-07-01087-CR
Opinion Filed October 21, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-80869-06.
Before Justices O'NEILL, FRANCIS, and LANG.
OPINION
Appellant Kasey Kyle Carroll appeals his conviction for robbery. After finding appellant guilty of the offense, the trial court assessed punishment at three years' confinement. In three points of error, appellant contends (1) the evidence is legally and factually insufficient to support his conviction, and (2) the trial court erred in denying his motion to quash the indictment. For the following reasons, we affirm the trial court's judgment. The grand jury indicted appellant for robbery. At trial, the State relied primarily on the testimony of Kroger store manager, William Taylor. Taylor testified that on the evening of the offense, he saw appellant in the beer and wine aisle. Taylor watched appellant because he recognized him from a previous occasion when appellant stole beer from the store. On this occasion, Taylor stopped appellant as he was exiting the store and asked if he had anything under his shirt. Appellant then took off running. As he did so, a bottle of wine fell from underneath his shirt and broke on the floor. Taylor was able to stop appellant, and they both fell to the floor. Taylor kept appellant down by getting on top of him. Appellant then bit Taylor's right arm. Taylor testified it all happened "pretty quickly." Taylor's associate manager arrived and helped him restrain appellant until police arrived a few minutes later and arrested appellant. After hearing the evidence, the trial court found appellant guilty of robbery. In his first point of error, appellant contends the evidence is legally insufficient to support his conviction. Specifically, he asserts the State failed to prove he caused bodily injury "in the course of committing theft." In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). The jury, as trier of fact, is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.). 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. See Tex. Pen. Code Ann. § 29.02(a)(1) (Vernon 2003). "In the course of committing theft" means conduct that occurs in an attempt to commit theft, during the commission, or in immediate flight after the attempt or commission of theft. Tex. Pen. Code Ann. § 29.01(1) (Vernon 2003). The element of "intent to obtain or maintain control of the property" addresses the actor's state of mind during the theft or attempted theft, not his state of mind during the assault. See White v. State, 671 S.W.2d 40, 42 (Tex. Crim. App. 1984). Thus, there is no requirement that a defendant retain the intent to control the property when the assaultive act is committed, and the required violence may occur after the offender has abandoned the theft and is escaping. See Lawton v. State, 913 S.W.2d 542, 552 (Tex. Crim. App. 1995), reversed on other grounds by Mosley v. State, 983 S.W.2d 249, 264 (Tex. Crim. App. 1998); White, 671 S.W.2d at 42; see also McCall v. State, 113 S.W.3d 479, 481 (Tex. App.-Houston [1st Dist.] 2003, no pet.). According to appellant, the evidence shows that at the time he assaulted Taylor, the theft was complete and he was no longer in "immediate flight," but rather he was being "detained." Thus, he maintains he did not cause injury "in the course of committing theft." We disagree. Appellant was stopped leaving the grocery store, a struggle ensued, appellant and Taylor fell to the ground and appellant bit Taylor. Taylor testified it all happened very quickly. We conclude the evidence is legally sufficient to show appellant caused injury in immediate flight from committing theft. We overrule appellant's first point of error. Appellant also attacks the factual sufficiency of the evidence. In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). We determine whether (1) the proof of guilt is so obviously weak as to undermine confidence in the fact finder's verdict, or (2) the proof of guilt, even if sufficient standing alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. Lancon, 253 S.W.3d at 705. To show the evidence is factually insufficient, appellant again relies on his contention the theft and his flight had ceased by the time the assault occurred. Appellant relies on Taylor's testimony that he was attempting to restrain appellant when appellant bit him. We disagree that this evidence supports appellant's contention. After reviewing all the evidence in a neutral light, we cannot conclude the trial court's finding of guilt is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule appellant's second point of error. In his third point of error, appellant contends the trial court erred in denying his motion to quash because the indictment alleged he acted recklessly, but did not allege with reasonable certainty the acts relied on to show recklessness as required by article 21.15 of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 21.15 (Vernon 2009). The indictment in this case alleged appellant acted "knowingly, intentionally, and recklessly." The court of criminal appeals has clearly held that when an indictment alleges all three mental states, the indictment need not allege the act or acts relied upon to constitute recklessness. Crqawford v. State, 646 S.W.2d 936, 937 (Tex. Crim. App. 1983). We overrule appellant's third point of error. We affirm the trial court's judgment.