Carlock believes the indictment to be unduly vague because the various felonies he is alleged to have committed or attempted to commit while entering the habitation without Tindell's consent were charged disjunctively. It has long been held that where there are several ways or means by which an offense may be committed set forth in the same statute, and those ways or means are subject to the same punishment, they may be charged conjunctively in one paragraph. Eastep v. State, 941 S.W.2d 130, 133 (Tex.Crim.App. 1997); Schwenk v. State, 733 S.W.2d 142, 149 (Tex.Crim.App. 1981); Sidney v. State, 560 S.W.2d 679, 681 (Tex.Crim.App. 1978); Garcia v. State, 537 S.W.2d 930, 932 (Tex.Crim.App. 1976). The alternative means may also be charged disjunctively. Hunter v. State, 576 S.W.2d 395, 399 (Tex.Crim.App. [Panel Op.] 1979); Krebsbach v. State, 962 S.W.2d 728, 731 (Tex.App.-Amarillo 1998, pet. ref'd). Under (a)(3) of the burglary statute, the indictment, although not artfully worded, charged Carlock with committing or attempting to commit one or more of five different felonies, other than felony theft, when he entered Ruben Tindell's house without permission.
When a statute provides more than one means of committing an offense and those means are subject to the same punishment, the State may plead them conjunctively. See Schwenk v. State, 733 S.W.2d 142, 149 (Tex.Crim.App. 1981); Sidney v. State, 560 S.W.2d 679, 681 (Tex.Crim.App. 1978). However, to support the conviction, the State needed to prove only one of the alleged means.
The Court observed: "It was proper for the State to charge appellant by alleging conjunctively that he intended to fraudulently obtain property and services, and proof of either would have been sufficient to convict, Sidney v. State, 560 S.W.2d 679 (Tex.Cr.App. 1978); Garcia v. State, 537 S.W.2d 930 (Tex.Cr.App. 1976); Boyd v. State, 419 S.W.2d 843 (Tex.Cr.App. 1967), and it was proper for the trial court to charge the jury that a finding of either would be sufficient to convict. However, because the charge instructed the jury that it must find both property and services before returning a guilty verdict, then it was necessary that there be sufficient proof of both means alleged. Otherwise, a guilty verdict would be deemed contrary to the law and the evidence.
It has long been held that when there are several ways or methods by which an offense may be committed set forth in the same statute, they may be alleged conjunctively. Sidney v. State, 560 S.W.2d 679 (Tex.Cr.App. 1978). Furthermore, we note that several authorities recommend placing the conjunctive term in criminal solicitation indictments.
The application portion of the charge instructed the jury, inter alia, that if they found from the evidence beyond a reasonable doubt that appellant did, "with intent to fraudulently obtain property and services, * * * * * * * * present a credit card that had not been issued to him, then they will find appellant guilty as charged." It was proper for the State to charge appellant by alleging conjunctively that he intended to fraudulently obtain property and services, and proof of either would have been sufficient to convict, Sidney v. State, 560 S.W.2d 679 (Tex.Cr.App. 1978); Garcia v. State, 537 S.W.2d 930 (Tex.Cr.App. 1976); Boyd v. State, 419 S.W.2d 843 (Tex.Cr.App. 1967), and it was proper for the trial court to charge the jury that a finding of either would be sufficient to convict. However, because the charge instructed the jury that it must find both property and services before returning a guilty verdict, then it was necessary that there be sufficient proof of both means alleged. Otherwise, a guilty verdict would be deemed contrary to the law and the evidence.
The indictment clearly does allege the two methods of committing involuntary manslaughter pursuant to Penal Code, Sec. 19.05, V.T.C.A. When an offense may be committed in two ways, however, the State may allege both ways in the conjunctive. Vaughn v. State, 634 S.W.2d 310 (Tex.Cr.App. 1982) and Sidney v. State, 560 S.W.2d 679 (Tex.Cr.App. 1978). No objection was lodged by the appellant to the court's charge to the jury.
(Emphasis Supplied). Thus, in order to prove aggravated robbery, the State had the burden of showing that serious bodily injury resulted from appellant's acts. Compare, Davis v. State, Tex.Cr.App., 557 S.W.2d 303, and Robinson v. State, Tex.Cr.App., 553 S.W.2d 371 with Sidney v. State, Tex.Cr.App., 560 S.W.2d 679. V.T.C.A. Penal Code, Sec. 29.03, Aggravated Robbery, states that a person commits an offense if he commits robbery as defined in Sec. 29.02 of the Code, and also:
When an offense may be committed in two ways the State may allege both ways in the conjunctive. Sidney v. State, 560 S.W.2d 679 (Tex.Cr.App. 1978). It was proper to allege "threaten and place." Proof of either would sustain the conviction so it was proper to instruct the jury "threaten or place.
That is, if an offense could be committed by several means, all or some of those means could be alleged conjunctively in one count and the conviction would be sustained if the evidence supported any single alleged means of commission. See Sidney v. State, 560 S.W.2d 679; Garcia v. State, 537 S.W.2d 930; and Jurek v. State, 522 S.W.2d 934. Is this indictment a "conjunctive" pleading? I believe so. See 30 Tex.Jur.2d, Indictment and Information, Section 42, Page 610, and cases there cited.
Thus, as pled, the indictment in this case effectively charges Nichols with two alternative statutory means of committing aggravated assault: (1) by causing serious bodily injury to the complainant; and (2) by using a deadly weapon—namely, a firearm—during the commission of the assault.See Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(1), (2); Sidney v. State, 560 S.W.2d 679, 680-81 (Tex. Crim. App. 1978) (concluding in aggravated robbery case that the indictment charged the defendant with two separate and alternative statutory means of aggravation, even though the indictment did not expressly use the word "and" or "or" to allege the two alternative means). The trial judge who served as the factfinder at the guilt-innocence phase, however, found Nichols guilty only of aggravated assault with a deadly weapon.