PD-0245-15
PD-0245-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/12/2015 12:30:09 PM
Accepted 3/13/2015 9:39:39 AM
IN THE COURT OF CRIMINAL APPEALS OF TEXAS ABEL ACOSTA
CLERK
JUAN BLEA, §
APPELLEE §
§
v. § No.
§
THE STATE OF TEXAS, §
APPELLANT §
STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND DISTRICT OF TEXAS AT FORT WORTH
IN CAUSE NUMBER 02- 13-0022 1-CR
AND
FROM THE 362No JUDICIAL DISTRICT COURT,
THE HONORABLE BRUCE MCFARLING, JUDGE, PRESIDING;
THE HONORABLE SHERRY SHIPMAN FROM THE 16THJUDICIAL
DISTRICT COURT, AS SITTING JUDGE
DENTON COUNTY, TEXAS
PAUL JOHNSON
Criminal District Attorney
Denton County, Texas
CATHERINE LUFT
Assistant Criminal District Attorney
Chief, Appellate Division
ANDREA R. SIMMONS
Assistant Criminal District Attorney
March 13, 2015 State Bar No. 24053478
1450 East McKinney
Denton, Texas 76209
(940) 349-2600
FAX (940) 349-2751
andrea.simmons@dentoncounty.com
IDENTITY OF PARTIES AND COUNSEL
Appellee ...................................................... JUAN BLEA
DAWN MOORE
1504 East McKinney Street
Suite 200
Denton, Texas 76209
APPELLATE COUNSEL
DENVER McCARTY
1512 East McKinney Street
Suite 200
Denton, Texas 76209
TRIAL COUNSEL
Appellant ..................................................... THE STATE OF TEXAS
PAUL JOHNSON
Criminal District Attorney
CATHERINE LUFT
Assistant Criminal District Attorney
Chief, Appellate Division
ANDREA R. SIMMONS
Assistant Criminal District Attorney
State Bar No. 24053478
1450 East McKinney
Denton, Texas 76209
(940) 349-2600
FAX (940) 349-2751
APPELLATE COUNSEL
MICHAEL GRAVES
DUSTIN GOSSAGE
Assistant Criminal District Attorneys
TRIAL COUNSEL
11
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ...................................................... .ii-iv
INDEX OF AUTHORITIES ................................................................................. v-vi
STATEMENT REGARDING ORAL ARGUMENT ............................................ 1-2
STATEMENT OF THE CASE ................................................................................. 1
STATEMENT OF PROCEDURAL HISTORY ....................................................... 2
GROUND FOR REVIEW ........................................................................................ 2
ARGUMENTS ........................................................................................................... .
Applied properly, the settled principles of an evidentiary sufficiency
analysis prevent the appellate courts from becoming a thirteenth juror......... .3
Bodily injury versus serious bodily injury ..................................................... .4
The majority opinion was wrong as the jury could have reasonably
inferred that absent medical treatment, the injury to the complainant's
lungs and liver could have resulted in a substantial risk of death.
Furthermore, the evidence was sufficient to support seriously bodily
injury where the complainant suffered from a protracted impairment
of the functioning of her body as a result of the assault ................................. .4
PRAYER FOR RELIEF ............................................................................................ 9
CERTIFICATE OF COMPLIANCE ...................................................................... 10
111
CERTIFICATE OF SERVICE ............................................................................... 10
APPENDICES:
A Blea v. State, No. 02-13-00221-CR, 2015 Tex. App. LEXIS 1137
(Tex. App. -Fort Worth Feb. 5, 2015, pet. filed)
IV
INDEX OF AUTHORITIES
Statutes, Rules and Codes Page
Tex. Penal Code Ann. § l.07(a)(8) (Vernon 2013) .................................................. 4
Tex. Penal Code Ann. §l.07(a)(46) (Vernon 2013) .............................................. 4-5
Cases
Barrera v. State
820 S.W.2d 194 (Tex. App.- Corpus Christi 1991, pet. ref d) ......... .................... 7
Blea v. State
No. 02-13-00221-CR, 2015 Tex. App. LEXIS 1137 (Tex. App. -
Fort Worth Feb. 5, 2015, pet. filed) ....................................... ............................ 2, 8
Brown v. State
605 S.W.2d 572 (Tex. Crim. App. [Panel Op.] 1980) .. ......................................... 7
Dewberry v. State
4 S.W.3d 735 (Tex. Crim. App. 1999) ................................................................... 3
Dobbs v. State
434 S.W.3d 166 (Tex. Crim. App. 2014) ............................................................... 8
Hernandez v. State
161 S.W.3d 491 (Tex. Crim. App. 2005) ............. ... ... ......................................... 8-9
Hooper v. State
214 S.W.3d 9 (Tex. Crim. App. 2007) .................. .... .. ... .................... ... ................. 3
Jackson v. State
399 S.W.3d 285 (Tex. App. - Waco 2013, no pet.) (mem. op.)) ........................... 7
v
Jackson v. Virginia
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) ......................................... 3
Laster v. State
275 S.W.3d 512 (Tex. Crim. App. 2009) ............................................................... 3
Moore v. State
739 S.W.2d 347 (Tex. Crim. App. 1987) ........................................................... 4, 7
Nash v. State
123 S.W.3d 534 (Tex. App.-Fort Worth 2003, pet. ref d) .................................. 4
Patterson v. State
No. 11-06-00209-CR, 2008 Tex. App. LEXIS 1525 (Tex. App.-
Eastland 2008, pet. ref d) (not designated for publication) ................................... 7
Thomas v. State
444 S.W.3d 4 (Tex. Crim. App. 2014) ................................................................... 8
Whatley v. State
445 S.W.3d 159 (Tex. Crim. App. 2014) ............................................................... 8
Wilson v. State
139 S.W.3d 104 (Tex. App.-Texarkana 2004, pet. refd) ................................... 7
Winfrey v. State
323 S.W.3d 875 (Tex. Crim. App. 2010) ............................................................... 8
VI
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
JUAN BLEA §
APPELLANT §
§
v. § No.
§
THE STATE OF TEXAS, §
APPELLEE §
STATE'S PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now the State, by and through its Assistant District Attorney,
and respectfully urges this Court to grant discretionary review of the
above-named cause.
STATEMENT REGARDING ORAL ARGUMENT
Because the issues presented to this Honorable Court for review are narrow
in scope, the State does not believe that oral argument will be helpful to the Court
in determining whether the Court of Appeals erred.
STATEMENT OF THE CASE
Appellant was charged with, and found guilty of, the first-degree felony
offense of aggravated assault, family violence, and sentenced to five years
imprisonment. The majority opinion released by the Second Court of Appeals held
that the evidence supporting "serious" bodily injury was insufficient, and reversed
1
and remanded the case to the trial court. The majority opinion ordered the trial
court to (1) modify its judgment to delete the first-degree felony conviction of
aggravated assault of a family member and to instead reflect a second-degree
felony conviction for aggravated assault of a family member through the use of a
deadly weapon and (2) conduct a new trial on punishment. Justice Livingston filed
a dissenting opinion.
STATEMENT OF PROCEDURAL HISTORY
After a jury found appellee guilty of the first-degree felony offense of
aggravated assault against a family member, the Second Court of Appeals reversed
and remanded the trial court' s judgment of conviction, specifically finding the
evidence insufficient to support "serious" bodily injury (Appendix A [Blea v. State,
No. 02-13-00221-CR, 2015 Tex. App. LEXIS 1137 (Tex. App. - Fort Worth Feb.
5, 2015, pet. filed)]).
GROUND FOR REVIEW
Did the Second Court of Appeals improperly apply the standard for
reviewing the sufficiency of the evidence in analyzing whether the
complainant suffered serious bodily injury?
2
ARGUMENTS
Applied properly, the settled principles of an evidentiary sufficiency analysis
prevent the appellate courts from becoming a thirteenth juror.
In assessing the legal sufficiency of the evidence under Jackson v. Virginia,
a reviewing court "consider[ s] all of the evidence in the light most favorable to the
verdict and determine[ s] whether, based on that evidence and reasonable inferences
therefrom, a rational juror could have found the essential elements of the crime
beyond a reasonable doubt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007 (citing Jackson v. Virginia , 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-
89, 61 L. Ed. 2d 560 (1979)). A reviewing court's role is not to become a
thirteenth juror, and it should not reevaluate the weight and credibility of the
record evidence and substitute its judgment for that of the fact-finder. Dewberry v.
State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, a reviewing court
defers to "the responsibility of the trier of fact to fairly resolve conflicts in
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts." Hooper, 214 S.W.3d at 13 (quoting Jackson, 443 U.S. at
318-19). This same standard applies equally to circumstantial and direct evidence.
Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009). A reviewing
court's role on appeal is "restricted to guarding against the rare occurrence when a
factfinder does not act rationally." Id. at 518.
3
Bodily injury versus serious bodily injury.
"Bodily injury" means physical pain, illness, or any impairment of physical
condition. Tex. Penal Code Ann. § l.07(a)(8) (Vernon 2013). "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. Tex. Penal Code Ann. § l.07(a)( 46)
(Vernon 2013) (emphasis added). The Texas Legislature intended that there be a
meaningful difference or distinction between the different definitions for "bodily
injury" and "serious bodily injury," because the Penal Code provides definitions
for each. See Nash v. State, 123 S.W.3d 534, 538-39 (Tex. App.- Fort Worth
2003, pet. ref'd) (citing Moore v. State, 739 S.W.2d 347, 349 (Tex. Crim.
App. 1987).
The majority opinion was wrong as the jury could have reasonably inferred
that absent medical treatment, the injury to the complainant's lungs and liver
could have resulted in a substantial risk of death. Furthermore, the evidence
was sufficient to support seriously bodily injury where the complainant
suffered from a protracted impairment of the functioning of her body as a
result of the assault.
Here, viewing the evidence in the light most favorable to the verdict and
allowing the jury to draw reasonable inferences, the facts relating to the injury to
the complainant's lungs were sufficient for the jury to find that without treatment
the complainant faced a substantial risk of death based upon her injuries to the lung
and/or liver. See Tex. Penal Code Ann. §1.07(a)(46). Furthermore, the evidence
4
was sufficient to show that the complainant sustained a serious bodily injury based
upon the suffering from a protracted impairment of the functioning of her body.
See Id. Specifically, appellee hit the complainant in the face, hit and kicked her in
the side and ribs, and said he was going to kill her (2 R.R. at 30, 32-33, 50).
According to the complainant's written statement, taken after the assault by
appellee but prior to being transported to the hospital, she was in "a ton of pain"
after the assault (2 R.R. at 36). The complainant said that she had pain in her chest
and back and that it felt like something was broken or terribly injured (2 R.R. at
37). When the ambulance arrived, she could not breathe very well (2 R.R. at 33,
36-37' 39, 43).
Tim Adamo, the responding officer from the Carrollton Police Department,
testified that the complainant was having a hard time breathing when he arrived (2
R.R. at 118, 126). Officer Adamo also testified that the complainant was in quite a
bit of pain when and was holding her ribs, chest, and stomach area while seated on
the couch (2 R.R. at 115, 11 7-18). Appellee' s father testified that the complainant
looked pretty bad and could not walk (2 R.R. at 84-85).
Kristie Brown, nurse practitioner at Parkland Memorial Hospital, testified
that the complainant suffered injuries to her liver and chest (2 R.R. at 61-62). The
complainant also had bruising to the left side of her face and abdomen, two
fractured ribs, and fractures to the maxillary sinuses (2 R.R. at 63-65). Her lung
5
collapsed (this is called a pneumothorax), and when Nurse Brown met the
complainant, a procedure had already been done to help with her breathing (2 R.R.
at 64-65, 67). The complainant's mother clarified that the complainant had a chest
tube inserted to assist with her breathing but that it was removed before she was
discharged from the hospital (2 R.R. at 97, 104-05, 107-08, 110). Nurse Brown
testified that injuries to the lungs are treated seriously and that a person could die
from lack of oxygen (2 R.R. at 66-67). She elaborated by saying that:
"if you have a box and a balloon blown up inside the box and the
balloon shrinks over time, there is air between the box and the
balloon, that is a pneumothorax. Most of the time, the lungs should be
expanded in our chest and touching the sides of the box, but when the
lung collapses, it's just like a balloon that has a small leak in it and
collapses down. When that occurs, the patient, Justina, can have
trouble breathing and it can affect blood pressure, vital signs that we
look at" (2 R.R. at 64-65).
Nurse Brown further testified that mJunes to the liver are also treated
seriously (2 R.R. at 66-67). And although the complainant's liver was always
functioning, a patient could bleed to death quickly due to such an injury (2 R.R. at
65-66, 68-69). In fact, the complainant was originally not allowed to walk because
she could start bleeding (2 R.R. at 68).
The complainant's mother testified that the complainant was in a lot of pain
and had a lot of bruising (2 R.R. at 94-95). She was hospitalized for four days, but
after she was released, she was still in a lot of pain and couldn't walk (2 R.R. at
108-09). When the complainant was able to walk again, she was still in pain ( R.R.
6
at 109-10). Her job duties changed when she returned to work because she could
not lift over twenty-five pounds for at least one month after the assault per doctor's
orders. And the complainant did not work for approximately one month after the
assault (2 R.R. at 109-10).
Whether or not an mJury constitutes senous bodily injury must be
determined on a case-by-case basis. Moore, 739 S.W.2d at 352. The relevant
inquiry as to this issue is the extent of the injuries as inflicted, not after the effects
have been ameliorated by medical treatment. See Jackson v. State, 399 S.W.3d
285, 291 (Tex. App. - Waco 2013, no pet.) (mem. op.)); Wilson v. State, 139
S.W.3d 104, 106 (Tex. App.-Texarkana 2004, pet. refd) (citing Brown v. State,
605 S.W.2d 572, 575 (Tex. Crim. App. [Panel Op.] 1980)); Barrera v. State, 820
S.W.2d 194, 196 (Tex. App.-Corpus Christi 1991, pet. ref d); see also Patterson
v. State, No. 11-06-00209-CR, 2008 Tex. App. LEXIS 1525, at *8 (Tex. App.-
Eastland 2008, pet. ref d) (not designated for publication) (testimony by
emergency room physician sufficient to show that pneumothorax, common with
broken ribs, created a substantial risk of death).
Moreover, the Second Court of Appeals improperly resolved conflicts in
witnesses' testimony against the jury's verdict. For example, the majority opinion
noted contradicting testimony as to the changes in duties at the complainant' s job
and whether those changes were related to her injuries, and inconsistent testimony
7
by the complainant's mother as to how long it took before the complainant could
walk; the majority found a lack of evidence as to the complainant being unable to
control her oxygenation, and pointed out that although the complainant testified
that she suffered a lacerated liver, no other evidence of such was presented
(although there was evidence which allowed an inference of such) (Appendix A
[Blea v. State, No. 02-13-00221-CR, 2015 Tex. App. LEXIS 1137 at* 8-12 (Tex.
App. - Fort Worth Feb. 5, 2015, pet. filed)]).
A jury's verdict in evidentiary sufficiency issues are weighed in favor of
affirming a judgment of conviction. See Winfrey v. State, 323 S.W.3d 875, 879
(Tex. Crim. App. 2010). Settled principles aimed at preventing appellate courts
from becoming a thirteenth juror include: considering the evidence, along with
reasonable inferences from the evidence, in the light most favorable to the verdict;
deferring to the factfinder's exclusive role to resolve conflicts in the evidence, and
to judge the credibility of the witnesses; assessing incriminating evidence
cumulatively rather than requiring each fact to directly support guilt; allowing for
circumstantial evidence alone to support a conviction; and recognizing that a
factfinder is free to accept or reject any or all of the testimony of any witness (see
Appendix A, Livingston's Dissent, citing Whatley v. State, 445 S.W.3d 159, 166
(Tex. Crim. App. 2014); Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014);
Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014); Hernandez v. State,
8
161 S.W.3d 491, 500-01 (Tex. Crim. App. 2005)). Here, the majority improperly
acted as a thirteenth juror.
PRAYER FOR RELIEF
For the reasons stated herein, the State prays this Court will grant review in
this case in order to permit full briefing on the Court of Appeals' erroneous
application of the standard of review.
Respectfully submitted,
PAUL JOHNSON
Criminal District Attorney
Denton County, Texas
CATHERINE LUFT
Assistant Criminal District Attorney
Chief, Appellate Division
ANDREA R. SIMMONS
Assistant Criminal District Attorney
State Bar No. 24053478
1450 East McKinney
Denton, Texas 76209
(940) 349-2600
FAX (940) 349-2751
9
CERTIFICATE OF COMPLIANCE
The State certifies that the State's Petition for Discretionary Review in the
instant cause contains a word count of 1916, said count being generated by the
computer program Microsoft Word that was used to prepare the document.
ANDREA R. SIMMONS
CERTIFICATE OF SERVICE
A true copy of the State's Petition for Discretionary Review has been sent by
United States Mail, postage prepaid, to counsel for Appellee, Dawn A. Moore,
BOSWELL & MOORE, 1504 East McKinney Street, Suite 200, Denton, Texas
76209, on this, the lih day of March 2015.
ANDREA R. SIMMONS
10
APPENDIX A
[Blea v. State, No. 02-13-00221-CR, 2015 Tex. App. LEXIS
1137 (Tex. App. - Fort Worth Feb. 5, 2015, pet. filed)]
Page I
ft" LexisNexis®
I of I DOCUMENT
JUAN BLEA, APPELLANT v. THE STATE OF TEXAS, STATE
NO. 02-13-00221-CR
COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH
2015 Tex. App. LEXIS 1/37
February S, 201 S, Delivered
February 5, 201 S, Opinion Filed
NOTICE: PLEASE CONSULT THE TEXAS requires both serious bodily lnJUry and the use of a
RULES OF APPELLATE PROCEDURE FOR CITA- deadly weapon.' In this case, the indictment alleged that
TION OF UNPUBLISHED OPINIONS. Appellant's hand was a deadly weapon. Appellant brings
a single issue on appeal, challenging the sufficiency of
PRIOR HISTORY: [•I] FROM THE 362ND the evidence that he caused the complainant serious bod-
DISTRICT COURT OF DENTON COUNTY . TRIAL ily injury rather than bodily injury as well as the suffi-
COURT NO. F-2011-0993-D. TRIAL COURT JUDGE: ciency of the evidence that he used his hand as a deadly
HON. SHERRY SHIPMAN. weapon. Because the evidence is insufficient to show
that [•2] Appellant caused serious bodily injury but
sufficient to show that he used his hand as a deadly
COUNSEL: FOR APPELLANT: DAWN A. MOORE, weapon, we reverse the trial court's judgment and re-
BOSWELL & MOORE, P.C., DENTON, TEXAS. mand this case to the trial court with instructions (I) to
modify the judgment to delete the conviction for
FOR STATE: PAUL JOHNSON, CRIMINAL DIS- first-degree felony aggravated assault of a family mem-
TRICT ATTORNEY; CATHERINE LUFT, CHIEF OF ber and to instead reflect a conviction for second-degree
THE APPELLATE SECTION; ANDREA R. SIM- felony aggravated assault of a family member, based on
MONS, MICHAEL GRAYES, DUSTIN GOSSAGE, Appellant's use of a deadly weapon, and (2) to conduct a
ASSISTANT CRIMINAL DISTRICT ATTORNEYS new trial on punishment for the second-degree felony .'
FOR DENTON COUNTY, DENTON, TEXAS.
2 See Tex. Penal Code Ann. § J2.02(b)(/J
JUDGES: PANEL: LIVINGSTON, C.J.; DAUPHINOT (West 2011).
and GABRIEL, JJ. TERRIE LIVINGSTON, CHIEF 3 Id.
JUSTICE. 4 See id. § 22.02(a){2)-(b) .
OPINION BY: LEE ANN DAUPHINOT Brief Summary of the Facts
On the date of the offense, July 21, 20 I 0, the com-
OPINION
plainant and Appellant had a small daughter and shared a
bedroom in his parents' apartment. While Appellant and
MEMORANDUM OPINION'
complainant were not married, they did marry about two
See Tex. R. App. P. 47.4.
years later.
A jury convicted Appellant Juan Blea of first-degree A couple of weeks before the assault, Appell ant had
felony aggravated assault of a family member.' The jury separated from the complainant and moved in with a
assessed his punishment at five years' confinement. and friend . On July 20, the complainant spent time with a
the trial court sentenced him accord ingly. That offense male friend from school. At trial , she did not remember
Page 2
2015 Tex. App . LEXIS 1137, •
whether she returned home late that night or the next Officer Tim Adamo, who had been a police officer
morning. Appellant visited the apartment that the com- for twenty-three years by the time of trial, called for an
plainant shared with his parents between I0:00 a.m. and ambulance after he arrived at the apartment. He de-
noon on [*3) July 21 and was in a good mood. But he scribed the complainant's injuries:
saw a hickey on the complainant's neck, and when she
refused to tell him "where it was from," he became an- The first time I contacted her, she had
gry. When she finally told him "who lthe hickey] was visible injuries. I could see scrapes, lacer-
from," he hit her in the face with his hand . They were in ations on her face . She had her--under her
the kitchen . At trial, she did not remember whether his left eye was bruised and had a cut on it. I
hand was open or in a fist. In her testimony, the com- saw a mark on her arm, as well, like a
plainant denied falling, but in her written statement, she redness and early set of bruising.
had said that she had fallen. She admitted in her testi-
mony that in her written statement, she had said that
Appellant had told her that he was going to kill her. She was on the couch in the front
room.
The complainant testified that Appellant hit her only
once. When the prosecutor suggested that Appellant had
continued to hit her and had asked where their daughter
was, the complainant corrected him, stating, "[A)fter he ... [. S)he was in quite a bit of pain.
first hit me, she started getting fussy. I told him to leave She was, like, with one arm holding her
me alone and I wanted to put her asleep (sic) because I ribs, her chest, her stomach area.
didn't want her around all this and us fighting."
After the complainant gave their daughter a bottle She said she had a hard time
and put her to bed in the bedroom, the couple began breathing, had a lot of pain.
fighting again in the living room. Appellant hit her in the
side. She testified that he hit her more than once and
used both his fist [*4] and his open hand. She said that . .. . I was trying to get a statement
he might have kicked her with his foot and also testified from her, an affidavit, but she had a lot of
that she had been in a lot of pain after the assault. The difficulty writing the statement.
prosecutor reminded her that in her written statement,
she had said that she was in a "ton" of pain. The pain was She tried to get up from the couch at
in her back and her chest. The prosecutor asked, "Did one point and she fell back to the couch in
you feel like something had been broken or terribly in- pain and that's when I called for a medic.
jured as a result of this?" The complainant responded,
"Yes."
The child woke up, so Appella·nt stopped hitting the
complainant, and she told him that either he or she Sufficiency of the Evidence
needed to go buy diapers. Appellant left the apartment
and returned with the diapers . The complainant did not Appellant contends that the evidence [*6] is insuf-
call the police while he was gone. When the prosecutor ficient to show that (I) he caused serious bodily injury
asked her why, she responded, "Because I didn't want and (2) his hand was used as a deadly weapon. In our
to." She said that she had been scared and had not known due-process review of the sufficiency of the evidence to
how Appellant would act, and she had not wanted any- support a conviction, we view all of the evidence in the
one to know what had happened. When Appellant re- light most favorable to the verdict to determine whether
turned , he and the complainant argued verbally. The any rational trier of fact could have found the essential
prosecutor asked her whether it was evident that she was elements of the crime beyond a reasonable doubt. ' Sec-
in pain. She testified that the pain had not set in yet and tion 22.02 ofthe penal code provides,
that she did not tell Appellant that she was in pain.
(a) A person commits an offense if the
After Appellant left , the complainant lay down with person commits assault as defined in §
their daughter, [•5] took a bath, cleaned up, and then 22.01 and the person :
called Appellant's parents and asked them to come home
from work , stating that she had fallen down the stairs . (I) causes serious bodily injury to
After Appellant 's parents saw her, his father called the another, including the person's spouse; or
police.
I
Page 3
2015 Tex . App . LEXIS 1137, *
(2) uses or exhibits a deadly weapon the issue must be detennined on an ad hoc
during the commission of the assault. basis. '"
(b) An offense under this section is a
felony of the second degree. except that And our sister court in El Paso has explained that
the offense is a felony of the first degree bodily injury cannot be elevated to se-
if: rious bodily injury by postulating poten-
(I) the actor uses a deadly weapon tial complications which are not in evi-
during the commission of the assault and dence. The [S]tate must present evidence
causes serious bodily injury to a person that the [complainant] suffered bodily in-
whose relationship to or association with jury that created a substantial risk of
the defendant is described by Section death. In other words, the [S]tate must
71 .002/(b), 71.003, or 71.005, Family present relevant and probative evidence
Code[.]'' from which the trier [*8] of fact could
infer beyond a reasonable doubt that the
injury itself created an appreciable risk of
Section 22.01 provides, death."
(a) A person commits an offense if the
person:
(I) intentionally, knowingly, or reck-
lessly causes bodily injury to another ... ; 8 Id.§ l .07(a)(8).
9 Id.§ I. 07(a)(46).
10 Moore v. State, 739 S.W.2d 347. 349 (Tex.
(b) An offense under Subsection Crim. App. 1987).
(a)( I) is a Class A misdemeanor . [*7) 11 Hernandez v. State, 946 S.W.2d 108, 112
(Tex. App. --El Paso 1997, no pet.) (citations and
internal quotation marks omitted).
The complainant's mother, Jennifer, saw her in the
hospital. Jennifer testified that she noticed only the
5 Jackson v. Virginia, 443 U.S. 307, 319, 99 S. bruising and redness of her daughter's right eye. At trial,
Ct. 2781, 2789, 61l.Ed.2d560 (1979); Winfrey Jennifer did not remember whether her daughter had had
v. State, 393 S. W.3d 763, 768 (Tex. Crim. App. any trouble breathing. Jennifer did take photographs of
2013). the complainant over a period of time, and the photo-
6 Tex. Penal Code Ann.§ 22.02(a)-{b). graphs revealed developing bruising over her face and
7 Id. § 22.01 (West Supp. 2014). body. Although Jennifer testified on direct examination
that the complainant was unable to walk in the hospital
"Bodily injury" is defined as "physical pain, illness
and for a month afterward, on cross-examination, she
or any impairment of physical condition."' "Serious bod-
admitted that the complainant could stand and walk. even
ily injury" is defined as "bodily injury that creates a sub- while still in the hospital.
stantial risk of death or that causes death, serious perma-
nent disfigurement, or protracted Joss or impairment of The complainant did not work at her waitressing job
the function of any bodily member or organ."" The Texas for a month after the assault. When she returned , she
Court of Criminal Appeals has explained that switched from waitressing to acting as hostess. Jennifer
testified that the job change occurred because the doctor
[bjy virtue of the fact that the Penal had told the complainant not to lift more than twenty-five
Code provides a different definition for pounds. The complainant, however, testified ,
"bodily injury" from "serious bodily inju-
ry", though often a matter of degree, we Q Did you resume your duties as a
must presume that the Legislature intend- waitress?
ed that there be a meaningful difference or
A I decided to be a host.
distinction between "bodily injury" and
"serious bodily injury." Understandably, Q Why is (*9] that?
this means that where the issue is raised ,
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2015 Tex. App . LEXIS 1137 , *
A Just so I didn't have to deal with a "probably wou ld know that" and "if [she] [*I OJ did
lot of people. I didn't want to go back to have that, wouldn't a doctor tell [her]?"
doing waitressing just yet. The trial court admitted State's Exhibits 18 and 19.
Q Because you didn't want to interact hospital records, but after reconsideration, withdrew the
with people? exhibits. The coun reporter erroneously included those
two exhibits in the record , but both the State and Appel-
A That, and everybody at Champps lant conscientiously asked this court not to consider
kind of knew what happened, kind of the those exhibits because they were never before the jury.
regulars. That was just kind of my way of We granted their request and have not considered those
avoiding everybody. exhibits.
The complainant's injuries included two fractured
She also testified, ribs and a fractured maxillary sinus bone. She was kept
Q You don't really want to be here, do in the hospital for four days and then "medically cleared
you? for discharge." Kristie Brown, a nurse practitioner at
Parkland Hospital, testified concerning the complainant's
A No. medical treatment. Brown testified that the complainant
Q Now, when you were taken to the had a collapsed lung, but it had already been treated
hospital, were you ever in the ICU , or do when Brown met the complainant the morning after her
you know? admission to the hospital. Brown explained that a person
with a collapsed lung "can have trouble breathing, and it
A Not that I know of. can affect blood pressure, vital signs that [medical pro-
Q Just in a regular room? fessionals] look at." Although the complainant had testi-
fied that "they said my liver was lacerated, or some-
A Yes. thing," no other evidence of a lacerated [*I I] liver was
Q Do you have any serious perma- presented to the jury. Brown did testify that there was an
nent disfigurement as a result of this inci- injury to the complainant's liver and an injury in her
dent? chest. Brown admitted that she was repeating the radiol-
ogist's opinion, and the trial court sustained Appellant's
A No. objection to her testifying about anything somebody else
Q As a result of this incident, did you did . But the trial court did not instruct the jury to disre-
have a protracted loss of the use of any gard. Brown testified that she checked for peritonitis or
bodily member or organ? other problems caused by a liver injury; none was dis-
covered . There was no evidence that any injury to the
A No. complainant's liver was a serious bodily injury.11 The
Q Have you fully recovered? followin g exchange occurred:
A Yes. Q So at all times, her liver was func -
Q Were you able to get up and be out tioning and doing what it was supposed to
and about some the week after that? be doing?
A The week after the hospital? A Yes, sir.
Q Yeah, after they let you go home. Q And--all right. Same with her
lungs? I mean, she could breathe, right?
A Yeah.
A Yes, sir, she was breathing.
Q Okay. 1 mea n, you could get up
and go do something, right? Q And I assum e you tested her blood
for oxygen leve l?
A Yeah , yeah.
A Yes, sir.
Q And I guess her blood was--her
In response to the prosecutor's asking her the mean- lungs were working like they were sup-
ing of "protracted loss or impairment of the fun ction of posed to?
any bodily member or organ," the complainant said that A Yes, sir.
she did not know a speci fie defin ition, but that she
Page 5
2015 Tex. App. LEXIS 1137. *
Q I mean, they were providing [i]njuries to the liver can cause a pa-
enough oxygen to her? tient to bleed to death [* 13] very quick-
ly. Knowing that there is an injury to the
..• A Yes, sir . liver and why it is and whether it is ac-
Q Now, on the broken ribs, what tively bleeding or has developed a blood
treatment was given to her for the broken clot to the liver makes a decision point for
ribs? what the surgeons do and what we do for
the patient.
A Pain medication and respiratory,
what we call incentive spirometry, just
deep-breathing exercises, and pain [* 12) But there was no evidence that the complainant suffered
medication. from such a condition.
Q When we hear broken ribs, we The prosecutor then asked whether "lungs [are]
think of something sticking through the treated seriously or minorly." Brown replied, "Serious-
skin, something like that. ly." When asked to explain why lungs are treated seri-
The rib was, I guess, still intact, for ously, she replied, "Because if we can't control our oxy-
want of better words, but there was a genation, we need oxygen to live, and you can die from
fracture in it? that." But Brown did not testify that the complainant
suffered rrom such a condition. No one did . Indeed,
A There was a fracture in it. What Brown monitored the complainant to detennine whether
alignment it had, I would have to review a substantial risk of death or any risk of death developed
the chest x-ray. I don't remember. from any injury, and it did not.
Q In any event, there was nothing Considering all the evidence, we hold that there is
done to tape her up or set any fractures or no evidence from any source that would allow a jury to
have any surgery regarding the ribs? conclude or infer beyond a reasonable doubt that the
A That is correct. complainant's injuries created a substantial risk of
death."
Q Okay. And would the same be true
of the maxillary sinus? I3 See Tex. Penal Code Ann. § I. 07(a}(46) .
A That's correct. Due to the swelling, We must next consider whether the complainant
they saw her--we recommended that she suffered permanent disfigurement or protracted loss or
be seen in clinic after she was discharged impairment of the use of a bodily member or organ."
home from the hospital. [* 14] She testified that she had suffered neither. The
Q But no surgery or any procedures only suggestion of such loss or impairment is Jennifer's
were done to repair that damage? testimony that the doctors told the complainant not to lift
more than twenty-five pounds. Jennifer did not say how
A That's correct. long the limitation was to last but said that it was because
Q It just healed on its own? of the complainant's ribs. Jennifer also agreed that "we
don't know whether or not [the complainant] was physi-
A That is correct. cally capable [of lifting], but she followed their advice ."
14 See id.
The complainant testified that she was fully recov-
12 See id. al I 11 - 13 (holding that a ered . She also testified that she was able to go out and
I-centimeter laceration of the liver was unlikely about some as soon as she was released from the hospi-
to cause death and not serious bodily injury). tal.
The only evidence that the complainant cou ld have The Moore court instructs us that
suffered serious bodily injury arose from the State's in-
quiry whether "any injury to the liver [i s] treated se ri - given th e common meaning of the
ously or minimall y" by Brown's "profession ." She re- word "protracted," the complainant's
plied that they are treated seriously because mother's testimony , on which the State re-
li es, that the complainant was bedridden
and that it was at least a week "before he
Page 6
20 I 5 Tex . App. LEXIS 1137, *
could really go out and see people," does finding that Appellant's hand was a deadly weapon in the
not even come close to establishing that manner of its intended use but that the evidence is insuf-
the injury the complainant sustained to his ficient to support the serious bodily injury finding. We
back was either continuing, dragged out, therefore sustain in part and overrule in part Appellant's
drawn out, elongated , extended, length- sole issue on appeal.
ened, lengthy, lingering, long,
long-continued, long-drawn, nev- Conclusion
er-ending, ongoing, prolix, prolonged, or
Because the State proved only second-degree ag-
unending."
gravated assault of a family member beyond a reasonable
doubt, that is, it proved that Appellant committed an as-
sault against the complainant and used a deadly weapon
during its commission, we reverse the trial court's judg-
ment in part. We remand this case to the trial court with
15 739 S. W.2d at 352.
instructions to (I) modify its judgment to delete the
We have carefully examined the [* 15] record . first-degree felony conviction of aggravated assault of a
There is no evidence that the complainant suffered seri- family member and to instead reflect a second-degree
ous permanent disfigurement or protracted loss or im- felony conviction for aggravated assault of a family
painnent of the function of any bodily member or or- member through the use of a deadly weapon and (2)
gan.1• We therefore hold that the evidence is insufficient conduct a new trial on punishment. 17
to support the element of serious bodily injury.
17 See Bowen v. State, 374 S. W.3d 427, 432
16 See Tex. Penal Code Ann. § l .07{a}(46) . (Tex. Crim. App. 2012).
But the evidence is sufficient to support the deadly Isl Lee Ann Dauphinot
weapon finding . Testimony touching on whether Appel-
lant's hand was a deadly weapon in the manner of its use LEE ANN DAUPHJNOT
or intended use included that of the complainant and that JUSTICE
of Officer Adamo, the responding police officer. The
complainant testified that after Appellant struck her with PANEL: LIVINGSTON, C.J .; DAUPHINOT and
his hand, knocking her down, he said that he was going GABRIEL, JJ .
to kill her. Officer Adamo testified on direct examination LIVINGSTON, C.J., filed a dissenting opinion.
by the prosecutor,
(* 17] DO NOT PUBLISH
Q [C]an a person's hand be a deadly Tex. R. App. P. 47.2(b)
weapon? DELIVERED: February 5, 2015
A Yes, it can.
DISSENT BY: TERRIE LIVINGSTON
Q [D]o you feel that someone's hands DISSENT
are capable of causing death or serious
bodily injury? DISSENTING MEMORANDUM OPINION'
See Tex. R. App. P. 47.4, 47.5.
A Yes, they are very capable. Because the majority's opin ion improperly applies
standard s for rev iewing the sufficiency of evidence to
show that the victim suffered serious bodily injury. I
Appellant's statement to the complainant that he was dissent from the decision to reverse the trial court's
going to kill her was some evidence of hi s intent to use judgment and to remand for the entry of a judgment that
his hand as a deadly weapon . Officer Adamo's testimony re fl ects only a second-degree felony conviction .'
was evidence that would allow a ra tional trier of fact to
conclude beyond a reasonable doubt that, in the manner 2 See Tex. Penal Code Ann. § 22.02(b)f/J
of [* 16] its intended use, Appellant 's hand was capable (West 201 1).
of causing death or serious bodily injury. Accordingly, When decid ing an evidentiary sufficiency issue in a
we hold that the evidence is sufficient to support the jury crim inal appea l. our usual de ference to a jury's verdi ct
Page 7
2015 Tex. App. LEXIS 1137, *
requires us to weight appellate scales in favor of affirm- if you have a box and a balloon blown
ing a judgment of conviction . See Winfrey v. State, 323 up inside the box and the balloon shrinks
S.W.3d 875, 879 (Tex. Crim. App. 2010) . We do so by over time, there is air between the box and
applying settled principles aimed at preventing us trom the balloon, that is a pneumothorax. Most
becoming a "thirteenth juror." See Thornton v. State, 42 5 of the time, the lungs should be expanded
S.W.3d 289, 303 (Tex. Crim. App. 2014); Isassi v. State, in our chest and touching the sides of the
330 S. W.3d 633, 638 (Tex. Crim. App. 2010) (explaining box, but when the lung collapses, it's just
that in reviewing the sufficiency of evidence to support a like a balloon that has a small leak in it
conviction, we guard "against the rare occurrence when a and collapses down .
factfinder does not act rationally"). Those principles in- When that occurs, the patient. [the
clude considering the evidence, along with reasonable complainant], can have trouble breathing,
inferences from the evidence, in the light most favorable and it can affect blood pressure, vital
to the verdict; deferring to the factfinder's exclusive role signs that we look at.
to resolve conflicts in the evidence (and inferences
therefrom)' and to judge the credibility of witnesses;
["' 18] assessing incriminating evidence cumulatively
rather than requiring each fact to directly support guilt; The complainant's mother testified that while in the
allowing for circumstantial evidence alone to support a hospital, the complainant was not able to move around
conviction; and recognizing that a factfinder is free to the room, and treatment for her collapsed lung required
accept or reject any or all of the testimony of any wit- the insertion of a chest tube . According to the complain-
ness. Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. ant's mother, after the complainant left the hospital. she
App. 2014); Thomas v. State, 444 S. W.3d 4, 8 (Tex. Crim. could not work or walk without pain for some time, and
App. 2014); Dobbs v. State, 434 S. W.3d 166. 170 (Tex. when she returned to work, she was instructed to not lift
Crim. App. 2014); Hernandez v. State, 161 S.W.3d ./9/, anything over twenty-five pounds.
500-01 (Tex. Crim. App. 2005) .
While it is true that the ["'20) complainant's condi-
tion improved upon medical treatment, in determining
3 The majority appears to resolve conflicts in
whether evidence is sufficient to establish serious bodily
witnesses' testimony against the jury's verdict.
injury, the relevant issue is the impairing effect of the
See Majority Op. at 8-10.
bodily injury as it was inflicted, not after the effects have
In showing fidelity to these principles in this appeal, been ameliorated by medical treatment. Jackson v. State,
we should determine that the evidence is sufficient to 399 S.W.3d 285, 291 (Tex. App.--Waco 2013, no pet.)
prove that the complainant suffered serious bodily injury, (mem. op.); see Webb v. State, 80 I S. W.2d 529. 532
meaning bodily injury' that created "a substantial risk of (Tex. Crim. App. 1990); Sizemore v. State, 387 S. W.3d
death ... or protracted loss or impairment of the function 824, 828 (Tex. App.--Amarillo 2012, pet. refd) . And se-
of any bodily member or organ." Tex. Penal Code Ann. § rious bodily injury may be established without a physi-
/.07(a)(46J ; see id.§ 22.02(a)(/), (b){I) . The complain- cian's testimony when the injury and its effects are obvi-
ant testified that as a result of appellant's hitting her side ous. Sizemore, 38 7 S. W3d at 828.
repeatedly, she felt "a lot of pain" in her back and chest
Brown testified that injuries to lungs are treated se-
and could not breathe. She believed that she had been
riously because the lungs control oxygenation and affect
"terribly injured." Appellant's father noticed that the
blood pressure and "vital signs." Brown also explained
complainant had difficulty walking. Hospital personnel
that improper oxygenation can cause death. Thus, the
told her that she had a collapsed lung, among other inju-
jury could have reasonably inferred that if the complain-
ries. The complainant stayed in a hospital several days,
ant had not received the procedure that Brown described
and a "month or so" passed before she was able to[* 19]
(presumably, the tube that the complainant's mother tes-
return to work.
tified about) to help with her difficulty in breathing, the
complainant faced a substantial risk of death . See id. ; see
4 "Bodily injury" includes pain or any impair-
also Patterson v. State, No. 11 -06-00209-CR, 2008 Tex.
ment of physical condition . Tex. Penal Code Ann.
App. LEXIS 1525. 2008 WL 564880, at "'3 (Ti!x.
§ l.07(a){8) (West Supp . 2014).
App--Eastland Feb. 28, 2008, pl!!. r1tj'd) (not designated
Kristie Brown, a nurse practitioner, con firmed that for publication) (concludin g that testimony that the vic-
the complainant had suffered a lun g injury. Concerning tim had trouble breathing and received treatment for a
that injury--a pneumothorax -- Brown testified, pneumothorax th at if left untreated , could cause death,
was suffi cient to prove that [* 2 1] the victim had a seri -
ous bodily injury); Pedro v. St all!, l\'o. 01-88- 00197-CR,
Page 8
2015 Tex. App. LEXIS 1137, •
1988 Tex. App. LEXIS 3158, 1988 WL 139708, at •2 injury which caused [the victim] to lose lifting power in
(Tex. App.--Houston [/st Dist.} Dec. 22, 1988, no pet.) his arm for three months" constituted a protracted im-
(not designated for publication) ("[T]he possibility that pairment of the function of a bodily member, so that "the
[a collapsed lung] could cause death, combined with the wound would be classified as serious bodily injury");
testimony that the complainant's lung was punctured, Madden v. State, 91 I S.W.2d 236, 244-45 (Tex.
does support a finding that [a knife) was capable of App.--Waco 1995. pet. rej'd) (concluding that there was
causing 'serious bodily injury.'"). serious bodily injury by protracted impairment of a bod-
ily member when the victim was shot in the hip, hospi-
Viewing the evidence in the light most favorable to
talized for a day and a half, could not walk for a month
the verdict and allowing the jury to draw reasonable in-
after the shooting, and had permanent scar tissue where
ferences from the evidence, I would hold that based at
the bullet entered and exited his body); see also Tucker v.
least on the facts concerning the injury to the complain-
State, No. 05-0/-01899-CR, 2002 Tex. App. LEXIS 7740,
ant's lung, that this injury required treatment through a
2002 WL 32397713, al • 1-2 (Tex. App.--Da/las Oct. 30,
tube, and that injuries to lungs can be life-threatening,
2002, no pet.) (not designated for publication) (holding
the evidence was sufficient for the jury to find that with-
that there was protracted impairment when the victim
out treatment, the complainant faced a substantial risk of
had a fractured jaw, was restricted to a liquid diet for
death. See Tex. Penal Code Ann.§ /.07(a)(46).
three weeks, and had jaw pain for a month).
Moreover, I would also conclude that the evidence
For all of these reasons, I respectfully dissent from
was sufficient to show that the complainant sustained a
the majority's opinion and judgment.
serious bodily injury because she suffered from a pro-
tracted impairment of the functioning of her body. See id. Isl Terrie Livingston
The-complainant testified that the injuries she suffered as
TERRIE LIVINGSTON
a·result of the assault required her to miss a "month or
so" of work. Her mother testified that during that time, CHIEF JUSTICE
the complainant "couldn't work" and just "[laid] around"
[•22] because walking was painful. I would hold that DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
these month-long effects from the assault qualify as a
"protracted" impairment of the complainant's bodily DELIVERED: February 5, 2015
functions. See id.; Williams v. State, 575 S. W.2d 30, 33
(Tex. Crim. App. [Panel Op.] 1979) (holding "that the
I
I