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Opinion filed February 28, 2008
In The
Eleventh Court of Appeals
____________
No. 11-06-00209-CR
__________
ROYCE COLON PATTERSON, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 266th District Court
Erath County, Texas
Trial Court Cause No. CR12361
O P I N I O N
Royce Colon Patterson was indicted for aggravated assault. He pleaded not guilty and proceeded to a jury trial. The jury returned a guilty verdict. Appellant pleaded true to two enhancement paragraphs, and the jury assessed his punishment at ninety-nine years confinement in the Institutional Division of the Texas Department of Criminal Justice. We affirm.
Issues on Appeal
Appellant raises two issues on appeal. First, he asserts that the trial court erred in failing to sua sponte instruct the jury that, before it could consider extraneous offense evidence, it must find that the State had proved those offenses beyond a reasonable doubt. Next, appellant asserts that the evidence was legally and factually insufficient to show that he knowingly and intentionally caused serious bodily injury to the victim by hitting and kicking her.
Reasonable Doubt Instruction
Appellant argues that the State introduced evidence of extraneous offenses during the guilt/innocence phase of the trial. The complained of evidence consists of: (1) testimony from the victim that appellant had sexually assaulted her and kidnapped her at the same time as the charged incident; (2) testimony from the victim that appellant had assaulted her in the past; (3) testimony from Officer Larry R. Wand that appellant had removed his parole ankle monitor in an attempt to flee the jurisdiction; and (4) testimony from Kit Myers, appellant=s parole officer, that appellant had previous involvement with law enforcement officials. Appellant did not request an instruction in the charge that the State must prove any extraneous offenses beyond a reasonable doubt. However, appellant argues that the trial court should have sua sponte instructed the jury that the State must prove these extraneous offenses beyond a reasonable doubt.
When extraneous offense evidence is introduced during the guilt/innocence phase of trial and the defendant requests a reasonable doubt instruction, the trial court must provide one. Ex parte Varelas, 45 S.W.3d 627, 631 (Tex. Crim. App. 2001). When extraneous evidence is offered during the punishment phase, the trial court must sua sponte provide a reasonable doubt instruction. Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). In Huizar, the Court of Criminal Appeals noted that the reasonable-doubt-instruction requirement was based on Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a) (Vernon Supp. 2007), which was only applicable to the penalty stage of trial. Huizar, 12 S.W.3d at 484. Several intermediate appellate courts have considered the trial court=s obligation when extraneous offense evidence is offered during the guilt/innocence phase of trial but the defendant does not request an instruction.[1] This court has held that the trial court need not sua sponte instruct the jury that extraneous offenses must be proven beyond a reasonable doubt during the guilt/innocence phase of the trial. Brown v. State, No. 11-06-00218-CR, 2007 WL 2671376 (Tex. App.CEastland Sept. 13, 2007, pet. ref=d).
In Brown, we agreed with the Austin Court of Appeals=s reasoning in Wright v. State, 212 S.W.3d 768, 778-79 (Tex. App.CAustin 2006, pet. ref=d). The reasonable doubt instruction is based on Article 37.07, section 3(a) and is the statutorily prescribed law applicable to the case at the penalty stage of trial. Further, the statute=s language is restricted to the punishment phase of the trial. Brown, 2007 WL 2671376, at *7. Appellant argues that sometimes the common law serves as the basis for the law applicable to the case. Because the Court of Criminal Appeals held in Huizar that Article 37.07, section 3(a) is only applicable to the punishment phase of trial, we do not find appellant=s argument persuasive. We find no reason to differ from our holding in Brown. We overrule appellant=s first issue.
Legally and Factually Sufficient Evidence
In order to determine if the evidence is legally sufficient, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). The factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). The factfinder may choose to believe or disbelieve all or any part of any witness=s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
In order to determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.
Appellant argues that the evidence was legally and factually insufficient to show that the victim sustained serious bodily injury. A person commits an aggravated assault if the person intentionally, knowingly, or recklessly causes serious bodily injury to another person. Tex. Penal Code Ann. ' 22.02 (Vernon Supp. 2007). Serious bodily injury is defined as an injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Tex. Penal Code Ann. ' 1.07(46) (Vernon Supp. 2007). The State must present relevant and probative evidence from which a jury could infer beyond a reasonable doubt that the bodily injury sustained created a substantial risk of death from the injury itself and not from some hypothetical or mere possibility that the bodily injury created a substantial risk of death. Moore v. State, 739 S.W.2d 347, 352 (Tex. Crim. App. 1987). We look to the injury at the time it was inflicted, not after the effects have been ameliorated by medical treatment. Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App. 1980). Substantial risk of death is not limited to only those cases in which death actually results from an injury or injuries. Moore, 739 S.W.2d at 354. The legislature meant to define the relative seriousness of bodily injuries without specific reference to whether or not such injuries receive prompt and professional medical attention. Fancher v. State, 659 S.W.2d 836 (Tex. Crim. App. 1983) (holding evidence that victim sustained a five-inch skull fracture that the treating doctor described as serious was sufficient to show serious bodily injury); Boney v. State, 572 S.W.2d 529 (Tex. Crim. App. 1978) (holding that evidence showing that a laceration eight and one-half inches in length, if unattended, could cause a substantial risk of death was sufficient to show serious bodily injury even though it was treated).
In this case, Dr. Larry Mark Bragg testified that he treated the victim in the emergency room for a pneumothorax. Dr. Bragg testified that a pneumothorax is a collection of air in the chest cavity between the chest wall and the lung. He further testified that a pneumothorax left untreated causes a substantial risk of death. Dr. Bragg also testified that the victim also suffered multiple abrasions, bruises, and a broken rib. He stated that it is common for someone who has a broken rib to also have pneumothorax. The victim testified that after the assault she was having trouble breathing. She went to the hospital and was treated by a doctor there. She testified that Dr. Bragg pulled her rib out of her lung and had to cut her in order to put a tube in her lung. She further testified that she was admitted to the hospital for a few days and had some follow-up treatment.
The testimony from Dr. Bragg established that the pneumothorax suffered by the victim created a substantial risk of death. There is no evidence contradicting Dr. Bragg=s testimony. Therefore, applying the applicable standards of review, the evidence is both legally and factually sufficient to show that the victim suffered serious bodily injury. We overrule appellant=s second issue on appeal.
Conclusion
We affirm the judgment of the trial court.
RICK STRANGE
JUSTICE
February 28, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]Compare Rodgers v. State, 180 S.W.3d 716, 723-24 (Tex. App.CWaco 2005, no pet.) (Huizar applies to guilt/innocence phase of trial); with Wright v. State, 212 S.W.3d 768, 778-79 (Tex. App.CAustin 2006, pet. ref=d) (Huizar does not apply to the guilt/innocence phase of trial); Allen v. State, 180 S.W.3d 260, 266 (Tex. App.CFort Worth 2005, no pet.) (same); Rodriguez v. State, 137 S.W.3d 228, 231 (Tex. App.CHouston [1st Dist.] 2004, no pet.) (same).