NUMBER 13-03-110-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
___________________________________________________________________
DAVID LEE GREEN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
___________________________________________________________________
On appeal from the 329th District Court
of Wharton County, Texas.
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MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Garza
Memorandum Opinion by Justice Rodriguez
Appellant, David Lee Green, was tried and convicted of aggravated assault of a peace officer and aggravated robbery. The jury sentenced appellant to thirty years imprisonment for each crime, to be served concurrently. By two issues, appellant contends that the evidence is legally and factually insufficient to support findings that he (1) caused serious bodily injury to a police officer and (2) used a deadly weapon. The trial court has certified that this “is not a plea-bargain case, and the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2). We affirm.
I. FACTS
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4.
II. SERIOUS BODILY INJURY
By his first issue, appellant challenges the legal and factual sufficiency of the evidence to support the jury’s finding that he caused serious bodily injury to Lieutenant Terry Stanphill.
A. Standard of Review
1. Legal Sufficiency
In a legal sufficiency review, this Court must examine the evidence presented in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense present beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). In making this determination, the reviewing court considers all the evidence admitted that will sustain the conviction, including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). Evidence is not rendered insufficient when conflicting evidence is introduced. Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996). The reviewing court must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution. Id.
On appeal, we measure the legal sufficiency of the evidence in a jury trial by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Poindexter v. State, 115 S.W.3d 295, 298 (Tex. App.–Corpus Christi 2003, pet. denied). This hypothetically correct jury charge would set out the law, be authorized by the indictment, not necessarily increase the State's burden of proof or necessarily restrict the State's theories of liability, and adequately describe the particular offense for which the defendant was tried. Malik, 953 S.W.2d at 240; see Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).
2. Factual Sufficiency
We also measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet. ref'd) (discussing application of “hypothetically correct jury charge” analytical construct in context of factual sufficiency review in case tried to jury). In reviewing the factual sufficiency of the elements of the offense on which the State carries the burden of proof, we impartially examine all of the evidence and set aside the verdict only if “proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by the contrary proof.” Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). We are also required to accord due deference to the jury's determinations on the weight and credibility of the evidence and may not merely substitute our own judgment. Swearingen, 101 S.W.3d at 97; Johnson, 23 S.W.3d at 7; see Mosley v. State, 983 S.W.2d at 254 (questions concerning credibility of witnesses and weight given their testimony are resolved by trier of fact).B. Applicable Law
A person commits aggravated assault if that person “causes serious bodily injury” or “uses or exhibits a deadly weapon” while assaulting another person. Tex. Pen. Code Ann. § 22.02(a) (Vernon Supp. 2004). “Serious bodily injury” is bodily 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.” Id. § 1.07(a)(46); see Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App. 1980).
C. Legal Sufficiency Analysis
Appellant contends that the evidence is legally insufficient to establish that he caused Lieutenant Stanphill serious bodily injury. However, a review of the record shows otherwise. At trial, Lieutenant Stanphill testified that he was informed by his treating physician that he must have the leg injured by appellant either surgically repaired or wear a brace for the rest of his life. When cross-examined by appellant’s counsel, the physician testified that even after surgery, Lieutenant Stanphill could only expect up to ninety-five percent of his pre-injury functionality. The record shows that Lieutenant Stanphill was on crutches for roughly eight weeks after the operation and was required to undergo physical rehabilitation of the knee. Lieutenant Stanphill testified that during that time, he had no use of the injured leg and was unable to put any weight on it.
Reviewing the evidence in the light most favorable to the verdict, see Jackson, 443 U.S. at 319, we conclude that the jury could have found beyond a reasonable doubt that appellant caused a protracted loss or impairment of the function of a bodily member and therefore caused serious bodily injury. See Brown, 605 S.W.2d at 575 (finding defendant committed aggravated assault where evidence showed victim’s disfiguration and impairment was permanent unless medical attention was sought); Webb v. State, 801 S.W.2d 529, 533 (Tex. Crim App. 1990) (requiring evidence that the complainant’s injury, without surgery, would have caused permanent disfigurement or protected loss or impairment of function of any bodily member or organ in order to find aggravated assault). Therefore, the evidence is legally sufficient to sustain the conviction for aggravated assault.
D. Factual Sufficiency Analysis
Furthermore, based on the evidence presented above, we conclude the proof of guilt is not so obviously weak as to undermine confidence in the jury’s determination, nor is there contrary proof that would greatly outweigh the jury’s verdict. See Swearingen, 101 S.W.3d at 97. The record is devoid of any evidence contradicting the treating physician’s testimony. We also find no evidence which would discredit the physician’s testimony or qualifications. The evidence is therefore factually sufficient to uphold the verdict. Appellant’s first issue is overruled.
Because of our disposition of appellant’s first issue, we need not address appellant’s remaining issue. See Tex. R. App. P. 47.1.III. CONCLUSIONAccordingly, the judgment of the trial court is affirmed.
NELDA V. RODRIGUEZ
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and
filed this 1st day of July, 2004.