Affirmed and Memorandum Opinion filed November 18, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-01085-CR
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MARVIN LEONEL ROMERO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 914,134
M E M O R A N D U M O P I N I O N
A jury convicted appellant of aggravated robbery and assessed punishment at thirty-five years confinement in the Texas Department of Criminal Justice, Institutional Division, and fined him $5,000. Appellant brings four issues on appeal: (1) whether he was entitled to a jury instruction on robbery, a lesser included offense, because the complainant allegedly did not suffer serious bodily injury; (2) whether appellant received adequate notice that the State would seek a deadly weapon finding; (3) whether the evidence was legally sufficient to support a finding of serious bodily injury; and (4) whether the evidence was factually sufficient to support a finding of serious bodily injury. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 14, 2002, complainant was driving out of a parking lot near Harris County Criminal Court No. 2 after having finished translating for that court. Appellant walked toward her, asking what time it was. Complainant attempted to lock her car door but appellant was able to open it. Appellant punched complainant in the face and forced his way into her car. Appellant demanded complainant=s car keys and purse. Appellant attempted to lock the passenger=s door but complainant escaped through it. As complainant ran away, she heard a crash. After calling the police, complainant returned to the parking lot where she found her car crashed and appellant gone.
Complainant was taken to Methodist Hospital where she was examined by Dr. Charles Soparker, an ocular plastic surgeon. Dr. Soparker determined that complainant had suffered a significant fracture of bones around her eye. A few days later, Dr. Soparker and a general plastic surgeon operated to remove bone fragments from complainant=s sinus cavity and replace her orbital floor with a synthetic bone in order to prevent her eye from sinking into her sinus cavity. Complainant was able to recover without losing use of her eye.
At trial, appellant requested an instruction on the lesser included offense of robbery, arguing that there was no evidence that he had caused Aserious bodily injury.@ The trial court denied the request. The jury subsequently found appellant guilty of aggravated robbery.
ANALYSIS
In four points of error, appellant contends the following: (1) he was entitled to a jury instruction on a lesser included offense, robbery, because the complainant did not suffer serious bodily injury; (2) he did not receive adequate notice that the State would seek a deadly weapon finding; (3) the evidence was legally insufficient to support a finding of serious bodily injury; and (4) the evidence was factually insufficient to support a finding of serious bodily injury.
I. Requested Instruction on a Lesser Offense
In his first point of error, appellant contends the trial court erred in failing to give a requested jury instruction on the lesser included offense of robbery. Appellant argues that the jury could have found him guilty of only robbery because complainant did not suffer a substantial risk of death or protracted loss or impairment of any bodily organ.
A defendant is entitled to an instruction on a lesser included offense only if both prongs of a two-prong test are met. Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). First, the requested offense must be a lesser included offense of the charged offense. Id. Second, there must be some evidence that establishes that if the defendant is guilty, he is guilty of only the lesser offense. Id.
Appellant meets the first prong of the test because robbery is a lesser included offense of aggravated robbery. See Tex. Penal Code '' 29.02(a), 29.03(a).
In order for appellant to meet the second prong of the test, there must be some evidence that any bodily injury he inflicted was not Aserious bodily injury.@ See id. A>Serious bodily injury= means 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). Whether a bodily injury is Aserious@ is determined at the time of the injury, without taking into account any ameliorative effects of medical treatment. Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App. 1980).
The uncontested evidence indicated that the orbital floor of complainant=s left eye socket was fractured in the attack. The treating physician testified that because of the fracture, the eye would begin to sink into the sinus. The fracture also pinched one of the muscles that move the eye, which would have resulted in double vision and an inability to move the eye properly if untreated, and the fracture pinched the nerve that gives sensation to the face, which would have resulted in numbness of her face down to her teeth if untreated.
Because we find no evidence that complainant=s injuries would not have resulted in protracted loss or impairment if untreated, appellant was not entitled to an instruction on the lesser included offense of robbery. We overrule appellant=s first point of error.
II. Notice of Intent to Seek a Deadly Weapon Finding
In his second point of error, appellant contends he was denied his right to receive notice of the State=s intent to seek a deadly weapon finding. Appellant appears to have overlooked the language in the State=s AAmended Notice Pursuant to TRE 404/609 and Art. 37.07,@ filed eleven days before trial, which reads:
The State of Texas intends to seek the affirmative finding in cause #914134, that the defendant used and exhibited a deadly weapon, namely, his hand, during the course of the commission of that offense and during the immediate flight therefrom.
We overrule appellant=s second point of error.
III. Legal and Factual Sufficiency of the Evidence
In his third and fourth points of error, appellant contends the evidence was legally and factually insufficient to support a conviction for aggravated robbery. Appellant argues that the evidence does not support a finding of Aserious bodily injury@ because complainant did not suffer a substantial risk of death or protracted loss or impairment of any bodily organ.
In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (TEx. Crim. App. 1991).
In reviewing a factual sufficiency challenge, we view all of the evidence in a neutral light, and will reverse a conviction only if the evidence supporting guilt is so obviously weak as to render the conviction clearly wrong and manifestly unjust, or if that evidence, altough adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).
As already discussed in regard to appellant=s first point of error, the uncontested evidence indicated that complainant=s injuries would have resulted in protracted loss or impairment if untreated. This evidence was both legally and factually sufficient to support the jury=s finding that appellant caused Aserious bodily harm.@ See Tex. Penal Code ' 1.07(a)(46). We overrule appellant=s third and fourth points of error.
The judgment of the trial court is affirmed.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed November 18, 2003.
Panel consists of Justices Yates, Hudson, and Fowler.
Do Not Publish C Tex. R. App. P. 47.2(b).