PD-0245-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/17/2015 8:33:15 AM
August 17, 2015
Accepted 8/17/2015 9:43:31 AM
ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS OF TEXAS CLERK
AUSTIN, TEXAS
JUAN BLEA, §
Appellant §
v. § No. PD-0245-15
THE STATE OF TEXAS, §
Appellee §
APPELLANT’S BRIEF ON THE MERITS
FROM THE DECISION OF THE COURT OF APPEALS FOR
THE SECOND DISTRICT OF TEXAS, FORT WORTH
IN CAUSE NUMBER 02-13-00221-CR,
JUAN BLEA v. THE STATE OF TEXAS, AND
FROM THE 362ND JUDICIAL DISTRICT COURT, DENTON COUNTY, TEXAS,
THE HONORABLE BRUCE MCFARLING, JUDGE, PRESIDING
AND, AS SITTING JUDGE, THE HONORABLE SHERRY SHIPMAN FROM
THE 16TH JUDICIAL DISTRICT COURT, DENTON COUNTY, TEXAS IN
CAUSE NUMBER F-2011-0993-D
JOSEPH C. BOSWELL
Texas State Bar No. 00794971
BOSWELL LEGAL GROUP, P.C.
1504 EAST MCKINNEY STREET,
SUITE 200
DENTON, TEXAS 76209
(940) 382-4711
(940) 349-9922 (FAX)
joe@boswelldefense.com
IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of the parties and persons interested in
the outcome of this cause:
(A) Juan Blea, Appellant
11700 Lebanon Drive, Apt. 1111
Frisco, Texas 75035
(B) Denver McCarty and Leah Harbour, counsel for Appellant at trial
1512 East McKinney Street, Suite 200
Denton, Texas 76209
(C) Joseph C. Boswell, counsel for Appellant on appeal
1504 East McKinney Street, Suite 200
Denton, Texas 76209
(D) The State of Texas, by and through Paul Johnson, Denton County
Criminal District Attorney; and Catherine Luft, Andrea Simmons, Dustin
Gossage, and Michael Graves, Assistant Criminal District Attorneys
1450 East McKinney
Denton, Texas 76209
(E) Lisa C. McMinn, State Prosecuting Attorney
209 West 14th Street, Suite 203
P.O. Box 13046
Austin, Texas 78711-3046
ii
(F) Honorable Bruce McFarling, Presiding Judge for the 362nd District Court
Denton County Courts Building
1450 East McKinney Street, 3rd Floor
Denton, Texas 76209-4524
(G) Honorable Sherry Shipman, as Sitting Judge for the 362nd District Court
Denton County Courts Building
1450 East McKinney Street, 3rd Floor
Denton, Texas 76209-4524
3
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL ..........................................................................ii-iii
INDEX OF AUTHORITIES ..................................................................................................... v-vii
STATEMENT REGARDING ORAL ARGUMENT ................................................................. 2
STATEMENT OF THE CASE....................................................................................................... 2
APPELLANT’S RESPONSE TO THE STATE’S
ISSUE PRESENTED FOR REVIEW........................................................................................... 3
STATEMENT OF FACTS .............................................................................................................. 3
SUMMARY OF THE ARGUMENT ............................................................................................. 8
ARGUMENT ..................................................................................................................................... 8
Legal Sufficiency Standard for Review .......................................................................... 8
Legal Authority Regarding Serious Bodily Injury ..................................................... 9
Second Court of Appeals’ Review and Application of Legal
Authority to the Facts .........................................................................................................13
Response to State’s Bare Assertions.............................................................................16
Conclusion ...............................................................................................................................17
PRAYER ...........................................................................................................................................20
CERTIFICATE OF COMPLIANCE ...........................................................................................20
CERTIFICATE OF SERVICE......................................................................................................21
4
INDEX OF AUTHORITIES
Statutes, Codes, and Rules Page
Tex. Penal Code § 1.07(a)(34) .............................................................................................. 10
Tex. Penal Code § 1.07(a)(8)................................................................................................. 10
Tex. R. App. P. 69.3 ....................................................................................................................... 8
Cases
Black v. State
637 S.W.2d 923 (Tex. Crim. App. 1982) ...................................................................... 11
Blea v. State
2015 WL 510954 (Tex. App.—Fort Worth 2015) .......................................... passim
Brooks v. State
323 S.W.3d 898 (Tex. Crim. App. 2010) ......................................................................... 8
Carter v. State
678 S.W.2d 155 (Tex. App.—Beaumont 1984, no pet.) ........................................ 14
Clayton v. State
235 S.W.3d 772 (Tex. Crim. App. 2007) ......................................................................... 9
Coshatt v. State
744 S.W.2d 633 (Tex. App.—Dallas 1987, pet. ref’d) ............................................ 15
Eustis v. State
191 S.W.3d 879
(Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) .................................................. 10
Hart v. State
581 S.W.2d 675 (Tex. Crim. App. 1979) ...................................................................... 15
5
Hernandez v. State
946 S.W.2d 10 (Tex. App.—El Paso 1997, no pet.) .......................................... 10, 11
Isassi v. State
330 S.W.3d 633 (Tex. Crim. App. 2010) ......................................................................... 9
Jackson v. Virginia
443 U.S. 307 (1979) ................................................................................................................ 9
Lane v. State
111 S.W.3d 203 (Tex. App.—Eastland 2004) .................................................... 12, 13
Moore v. State
739 S.W.2d 347 (Tex. Crim. App. 1987) ................................................ 10, 11, 12, 15
Patterson v. State
No. 11-06-00209-CR, 2008 WL 564880
(Tex. App.—Eastland 2008, pet. ref’d)
(not designated for publication) ...................................................................... 16-17, 17
Pedro v. State
No. 01-88-00197-CR, 1988 WL 139708
(Tex. App.—Houston [1st Dist.] Dec. 22, 1988, no pet.)
(not designated for publication) .................................................................................... 17
Sizemore v. State
387 S.W.3d 824 (Tex. App.—Amarillo 2013, pet. ref’d) ................. 10, 11, 14, 15
Tibbs v. Florida
457 U.S. 31 (1982) ................................................................................................................... 9
Villarreal v. State
716 S.W.2d 651 (Tex. App.—Corpus Christi 1986, no pet.) ............................... 12
Webb v. State
801 S.W.2d 529 (Tex. Crim. App. 1990) (en banc) (per curiam)...................... 11
6
Williams v. State
235 S.W.3d 742 (Tex. Crim. App. 2007) ..................................................................9, 19
Williams v. State
696 S.W.2d 896 (Tex. Crim. App. 1985) ...................................................................... 10
Other Authorities
Burton, LEGAL THESAURUS 418 (1980) ......................................................................... 15
vii
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN, TEXAS
JUAN BLEA, §
Appellant §
v. § No. PD-0245-15
THE STATE OF TEXAS, §
Appellee §
APPELLANT’S BRIEF ON THE MERITS
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, JUAN BLEA, hereinafter referred to as Appellant or Juan,
by and through his attorney of record, JOSEPH C. BOSWELL, and respectfully
submits his brief on the merits urging that the judgment of the Second District
Court of Appeals be upheld.
1
STATEMENT REGARDING ORAL ARGUMENT
The State did not request oral argument, and Appellant concurs that it
is not necessary to this review. Moreover, in its June 24, 2015, notice granting
the State’s Petition for Discretionary Review, this Court announced that oral
argument would not be permitted.
STATEMENT OF THE CASE
Appellant was convicted of the first-degree felony of Aggravated Assault
of a Family Member. The jury assessed his punishment at five years
confinement. On appeal Appellant challenged the legal sufficiency of evidence
regarding both the element of serious bodily injury and the element of use of a
deadly weapon. Holding that the evidence was insufficient to show that
Appellant caused serious bodily injury, but sufficient to show that he used his
hand as a deadly weapon, the Second Court of Appeals reversed and
remanded with instructions to (1) modify the judgment to reflect a
conviction for the lesser-included second-degree felony aggravated assault
and (2) conduct a new trial on punishment for the second-degree felony. The
State filed its Petition for Discretionary Review, which was granted by this
Court. Appellant filed his Petition for Discretionary Review and Cross Petition
for Discretionary Review seeking review of the portion of the Opinion
overruling Appellant’s challenge to the legal sufficiency of the deadly weapon
2
element of this offense. Appellant’s Petition and Cross Petition was denied by
this Court.
APPELLANT’S RESPONSE T O
THE
STATE ’S ISSUE PRESENTED FOR
REVIEW
Appellant urges this Court to dismiss the State’s Petition for
Review as improvidently granted since there is no support for the
speculative conclusions levied in that Petition, or the State’s
subsequent Brief on the Merits. Alternatively, Appellant asserts
that the Second Court of Appeals properly applied the correct
standard of review in performing a legal sufficiency analysis of
whether the State proved that the complainant suffered serious
bodily injury and in reaching its conclusion that she did not.
STATEMENT OF FACTS
Appellant agrees and adopts the Second Court of Appeals’ findings of
fact relating to the issue presented to this Court; however, Appellant
briefly reiterates these facts relating to the injuries suffered by the
complaining witness.
The complaining witness, Justina, was living with Juan’s parents, Cruz
and David Blea, at the time of this offense, and they both observed her injuries
shortly after the assault (2 R.R. at 25-26, 73, 81). Cruz described bruising on
Justina’s face and testified that Justina said she was hurting after the assault
(2 R.R. at 76-77). David also confirmed that there was bruising on Justina’s eye
and face but said she appeared to be breathing fine whenever he was around
3
her (2 R.R. at 85).
4
The police officer who responded to a later-placed 9-1-1 call testified
that the complaining witness had scrapes and lacerations on her face, a
bruised and cut left eye, and a red mark that indicated early bruising on her
arm (2 R.R at 117). He said she also complained of pain in her stomach and
difficulty breathing.
Justina’s treating nurse at Parkland Hospital, Kristie Brown, conceded
that the only injuries she actually documented in her own notes were
“bruising” and “fractures” (2 R.R. at 63-65). Brown testified that no surgeries
or procedures were done to treat or repair any fractures (2 R.R. at 70). She
agreed that those injuries completely healed on their own (2 R.R. at 70). She
acknowledged that the only “treatment” Justina received for her rib injuries
was pain medication and deep-breathing exercises (2 R.R. at 69).
Brown testified that she also “knew of” other injuries, including an
“injury to her lung” (2 R.R. at 63-64). However, Brown did not treat any
purported lung injury, conceding that any injury to the complaining witness’s
lungs had been treated prior to her arrival at Parkland (2 R.R. at 65). The
witness did explain the term “pneumothorax” and the kinds of problems a
person who suffered that type of injury might have (2 R.R. at 65). Ms. Brown
further conceded that Justina’s lungs were working normally and she was only
receiving oxygen (2 R.R. at 69).
4
Additionally, Brown testified that Justina had “an injury to her liver and
an injury to her chest” (2 R.R. at 52, 56, 61, 63, 68). She “observed” Justina
“every four to six hours, mashed on her abdomen, routinely checking her liver
and how she reacted each time we touched her” and “monitored and recorded
whether it got better or worse over the hospital stay” (2 R.R. at 62). While she
characterized injuries to the liver generally as being treated “seriously,”
Ms. Brown was not able to testify that Justina’s particular liver injuries were
serious (2 R.R. at 66-67). In fact, Brown explicitly agreed that Justina’s liver
enzymes were normal and that Justina did not suffer from any of the
conditions for which they had her under observation (2 R.R. at 68-69). She
conceded that at all times Justina’s liver was functioning properly and her
condition continually improved (2 R.R. at 69). She agreed that Justina was on
bed rest for 24 to 36 hours in the hospital because of the general fear that
exists with any patient that if that patient is up walking around, he or she can
start bleeding (2 R.R. at 68).
Jennifer Fassett Hernandez, the complaining witness’s mother, testified
she observed Justina at the hospital; however, she could not recall Justina’s
having any trouble breathing and said Justina was not wearing an oxygen
mask (2 R.R. at 94-96). She did relay that she had to leave the room while
Justina received a chest tube. Ms. Hernandez also described bruises she
5
observed on Justina’s eye and acted as the sponsoring witness for pictures of
those injuries (2 R.R. at 97, 98-108; State’s Exhibits 20-43, 46). The witness
further testified that she was aware that the doctors suggested Justina not lift
anything over 25 pounds but admitted that she did not know whether Justina
was actually capable of lifting anything over 25 pounds. Importantly, she did
not actually attend any of the follow-up doctor appointments with Justina
where this information was allegedly relayed (2 R.R. at 110-13). Furthermore,
she disclosed that Justina could, in fact, walk and was even standing at the
hospital and had merely suffered some pain because of the assault (2 R.R.
at 109-10).
In describing her own injuries, Justina testified that she suffered a “cut”
under her eye, a collapsed lung, and a lacerated liver (2 R.R. at 39, 42, 43). She
testified she was treated at Baylor Medical Center and transported to
Parkland Hospital, where she remained three to four days for observation
(2 R.R. at 42-43). She returned to work after approximately one month and
took prescribed pain medication (2 R.R. at 44-45). She explained that she did
not return to her former position as a waitress, but took a new job as hostess
“just so I didn't have to deal with a lot of people. I didn't want to go back to
doing waitressing just yet” and because “everybody at Champps kind of knew
6
what happened, kind of the regulars. That was just kind of my way of avoiding
everybody.” (2 R.R. at 45).
Justina specifically testified that she had no permanent disfigurement or
protracted loss of a bodily member or organ as a result of the injuries (2 R.R.
at 47, 48, 51-53). She said she was able to be out and about and do things after
her release from the hospital and that she recovered fully (2 R.R. at 48). She
denied having lost the use of any part of her body for any extended time
(2 R.R. at 51-52).
The State also introduced medical records from Baylor Hospital and
Parkland Hospital (State’s Exhibits 17, 18; 2 R.R. at 54-56). While those were
initially admitted by the trial court, upon further consideration of Appellant’s
properly levied trial objections, those records were withdrawn from evidence
and were never published to the jury (3 R.R. at 26-27). The records did not,
and cannot, constitute any evidentiary support for Appellant’s conviction.1
Both parties agreed that this evidence should not have been included in the
record of this case, and the Court of Appeals recited in its majority opinion
that it concurred and did not consider those erroneously included exhibits in
1
Appellant and the State filed a motion with the Second Court of Appeals
attesting that the exhibits were not properly a part of the record despite their
inclusion by the court reporter as exhibits on appeal.
7
reaching its decision. Appellant likewise urges this Court that this withdrawn
exhibit cannot be considered in its review herein.
SUMMARY OF THE ARGUMENT
First, Appellant asserts that this Court should dismiss the State’s
Petition for Discretionary Review as improvidently granted. See Tex. R.
App. P. 69.3. The State failed to show any support for its summarily and
speculatively drawn conclusions that the Fort Worth Court applied an
incorrect standard of review and/or based its determination on “ameliorated”
injuries rather than untreated ones. The Second Court of Appeals’ majority
opinion clearly reviewed the evidence relating to “untreated” injuries suffered
by the complaining witness. Alternatively, the Second Court of Appeals
properly applied the correct standard of review in determining the sufficiency
of the evidence and concluding that it was not legally sufficient to support a
conviction for aggravated assault as alleged in the Indictment, as the injuries
sustained by the complaining witness were not proved to constitute serious
bodily injury.
ARGUMENT
Legal Sufficiency Standard For Review
The Texas Court of Criminal Appeals held in Brooks v. State,
323 S.W.3d 898, 895 (Tex. Crim. App. 2010), that there is no meaningful
8
distinction between the factual and legal sufficiency standards; thus, the
appellate courts review the evidence under only the legal sufficiency standard.
When reviewing sufficiency of the evidence, the courts view all of the evidence
in the light most favorable to the verdict to determine whether a rational jury
could find the essential elements of the offense beyond a reasonable doubt.
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007); Jackson v. Virginia, 443 U.S. 307,
319 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The
court’s duty as the reviewing court is to ensure that the evidence presented
actually supports a conclusion that the defendant committed the crime.
Williams, 235 S.W.3d at 750. If an appellate court finds the evidence
insufficient under this standard, it must reverse the judgment and enter an
order of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41 (1982).
Legal Authority Regarding Serious Bodily Injury
The Second Court of Appeals properly found that the evidence was
insufficient to support that Juan caused “serious bodily injury” to his wife.
That court concluded that nothing in the record suggested that the injury to
the complaining witness ever created a substantial risk of death, that she
suffered any protracted loss of any bodily member or organ, or that she
9
suffered any serious permanent disfigurement. Blea v. State, 2015 WL 510954,
at *1 (Tex. App.—Fort Worth 2015).
Since there are no wounds that constitute serious bodily injury per se,2
this Court has directed the appellate courts to evaluate each case on its facts
to determine if the evidence is sufficient to allow a jury to conclude that the
injury falls within the definition of serious bodily injury. See Moore v. State,
739 S.W.2d 347, 352 (Tex. Crim. App. 1987); see also Sizemore v. State,
387 S.W.3d 824, 828 (Tex. App.—Amarillo 2013, pet. ref’d); Eustis v. State,
191 S.W.3d 879, 884 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d);
Hernandez v. State, 946 S.W.2d 10, 111 (Tex. App.—El Paso 1997, no pet.).
This Court has also explained that there must be a meaningful
distinction between bodily injury and serious bodily injury. Moore, 739 S.W.2d
at 349, 352. “Bodily injury” is defined as “physical pain, illness or any
impairment of physical condition.” Tex. Penal Code § 1.07(a)(8). “Serious
bodily injury” is defined in the Texas Penal Code as “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 § 1.07(a)(34). In Moore this Court further
2
Even a knife or gunshot wound, although caused by a deadly weapon, is not
per se serious bodily injury. Williams v. State, 696 S.W.2d 896, 898 (Tex. Crim.
App. 1985).
10
recited that “if an injury does not endanger life, it cannot be considered a
serious bodily injury,” as contemplated by the Penal Code. Moore at 353.
Furthermore, bodily injury cannot be elevated to serious bodily injury simply
by “postulating potential complications which are not in evidence.”
Hernandez, 946 S.W.2d at 112 (citing Moore, 739 S.W.2d at 352). The State is
required to present relevant and probative evidence from which the trier of
fact can infer beyond a reasonable doubt that the injury itself resulted in
serious bodily injury or created an appreciable risk of death. See Moore,
739 S.W.2d at 352. For example, the necessity of surgery alone has been found
to be insufficient to establish serious bodily injury. See Webb v. State,
801 S.W.2d 529, 533 (Tex. Crim. App. 1990) (en banc) (per curiam) (wherein
victim had surgery to repair a broken bone in the victim’s hairline, but
the Court found serious bodily injury was not proved); Black v. State,
637 S.W.2d 923 (Tex. Crim. App. 1982) (wherein the Court held that surgery
on a gunshot wound that resulted in a three-day hospital stay to recover and
several months to heal was insufficient to prove serious bodily injury); see
also Sizemore, 387 S.W.3d at 829.
In addition, the presence of a “period of recuperation” does not elevate
bodily injury to serious bodily injury but, at best, shows only some
impairment of physical condition. Moore, 739 S.W.2d at 356. In fact, this Court
11
in Moore found that though the appellant stabbed the complainant in the back
and cut the complainant’s nose, because there was no serious risk of death
present from the stab wound, nor any evidence of protracted loss or
impairment of the function of the nose, no serious bodily injury resulted.
Id., 739 S.W.2d at 351-55.
In another instance, following this Court’s directives, the Corpus Christi
Court of Appeals found that a victim sustaining two fractured ribs and could
not raise his arms for two weeks due to the pain from the fractures, did not
have injuries constituting serious bodily injury either. Villarreal v. State,
716 S.W.2d 651, 652 (Tex. App.—Corpus Christi 1986, no pet.).
Similarly, in Lane v. State, the Eastland Court concluded that the
evidence at issue was also legally insufficient to prove serious bodily injury.
111 S.W.3d 203, 209 (Tex. App.—Eastland 2004). In Lane the complaining
witness originally reported that she fell down the stairs and hurt herself but
later admitted that her husband had struck her several times in the head and
forehead with a closed fist, as well as kicked her in the stomach and the back.
Id. at 204, 206. The testimony at that trial showed that the complaining
witness vomited, was nauseated, and suffered pain in the right chest and rib
region, as well as the occipital region as a result of the assault; however, she
did not have any obvious deformities and was rationally able to communicate.
12
Id. at 205. The nurse who treated the Lane complainant at the hospital
testified that the complainant had contusions on the right side of her head and
old bruises on her breasts, was tender in the gastric region, and complained of
back pain in the lumbar region. Id. at 206. The nurse also agreed that the
complainant did not have any broken bones, her vital signs were stable, and
she did not have any permanent disfigurement or life-threatening injuries. Id.
Second Court Of Appeals’ Review And Application Of Legal Authority To
The Facts
In its summary of the facts in this case, the Second Court of Appeals
specifically recited all the evidence offered as proof of the actual injuries
suffered by the complaining witness. Blea, 2015 WL 510954, at **1-2, 3-5.
Thereafter, the appellate court specifically reviewed and analyzed all of that
evidence to determine what level of injury suffered by the complainant was
actually proved. The Fort Worth Court explicitly recited that it considered “all
the evidence” in holding under a properly applied standard of review that
“there is no evidence from any source that would allow a jury to conclude or
infer beyond a reasonable doubt that the complainant’s injuries created a
substantial risk of death.” Blea at *5
From its review under the proper standard, the Second Court of Appeals
determined that “The only evidence that the complainant could have suffered
13
serious bodily injury arose from the State’s inquiry [of the treating nurse]
whether ‘any injury to the liver [is] treated seriously or minimally’ by Brown’s
‘profession.’” Blea at **4-5. Brown’s response to that inquiry was that any
injuries to the liver are treated seriously because “[i]njuries to the liver can
cause a patient to bleed to death very quickly” and “[k]nowing that there is an
injury to the liver and why it is and whether it is actively bleeding or has
developed a blood clot to the liver makes a decision point for what the
surgeons do and what we do for the patient.” The Fort Worth Court stressed
that this was no evidence that the complainant actually suffered from such a
condition. In doing so, the Court emphasized:
“But Brown did not testify that the complainant suffered from
such a condition. No one did. Indeed, Brown monitored the
complainant to determine whether a substantial risk of death or
any risk of death developed from any injury, and it did not.”
Blea at *5.
It is also correct that if the injury and its effects are obvious, serious
bodily injury can be established without a physician’s testimony. See Sizemore,
387 S.W.3d at 828; Carter v. State, 678 S.W.2d 155, 157 (Tex. App.—Beaumont
1984, no pet.). While it is not necessary for serious bodily injury to be
established through an expert, it has been deemed “the better way” to prove
up the issue. Carter, 678 S.W.2d at 157. The majority opinion in this case
14
recognized that there was also no lay opinion supporting serious bodily injury
in addition to no basis for any expert opinion supporting that conclusion.
Serious bodily injury can also be proved simply by the person who
sustained the injury at issue expressing an opinion about the seriousness of
that injury. Hart v. State, 581 S.W.2d 675, 677 (Tex. Crim. App. 1979);
Sizemore, 387 S.W.3d at 828; Coshatt v. State, 744 S.W.2d 633, 636 (Tex.
App.—Dallas 1987, pet. ref’d). However, in the instant case the Second Court
of Appeals recognized that the complaining witness in this case actually
testified in opposition to that proposition, stating that she did not sustain any
serious permanent disfigurement or protracted loss of the use of any bodily
member. Blea at *3.
In order to prove serious bodily injury by “protracted loss,” the State
must show that injuries are “either continuing, dragged out, drawn out,
elongated, extended, lengthened, lengthy, lingering, long, long-continued,
long-drawn, never-ending, ongoing, prolix, prolonged, or unending.” Moore,
739 S.W.2d at 352 (citing Burton, LEGAL THESAURUS 418 (1980)). In the
instant case the Second Court of Appeals also recited that it carefully
examined the record for evidence supporting serious permanent
disfigurement or protracted loss or impairment of any bodily member or
organ and concluded that there was none. Blea at *5.
15
In its evaluation of protracted loss in this case, the Fort Worth Court
recited the following as support:
“She testified that she had suffered neither. The only
suggestion of such loss or impairment is Jennifer’s testimony that
the doctors told the complainant not to lift more than twenty-five
pounds. Jennifer did not say how long the limitation was to last
but said that it was because of the complainant’s ribs. Jennifer also
agreed that ‘we don’t know whether or not [the complainant] was
physically capable [of lifting], but she followed their advice’.
The complainant testified that she was fully recovered. She
also testified that she was able to go out and about some as soon
as she was released from the hospital.”
Blea at *5.
Response To State’s Bare Assertions
The State alleges in its Brief that the Second Court failed to consider the
“extent of the injuries as inflicted” rather than the extent of the injuries “after
the effects” of those injuries “had been ameliorated by medical treatment”
(State’s Brief at 8). However, there is no support for the State’s conclusion.
Moreover, the State does not point to any specific place in the Second Court’s
majority opinion that supports its contentions. Moreover, a review of the
Court of Appeals’ analysis in this case indicates that the contrary is true.
As authority for its contentions, the State references a case also cited
by Chief Justice Livingston in her dissenting opinion in this case, that of
Patterson v. State, No. 11-06-00209-CR, 2008 WL 564880, at *3 (Tex.
16
App.—Eastland 2008, pet. ref’d) (not designated for publication). However,
the Patterson case is distinguishable from the evidence offered at trial in
support of the conviction here. In Patterson an emergency room physician
specifically testified that he treated the victim who had suffered a
pneumothorax, which, if left untreated could cause death. There was no such
corollary testimony in Appellant’s case.
Justice Livingston also referred to Pedro v. State, No. 01-88-00197-CR,
1988 WL 139708, at *2 (Tex. App.—Houston [1st Dist.] Dec. 22, 1988, no pet.)
(not designated for publication) (“[T]he possibility that [a collapsed lung]
could cause death, combined with the testimony that the complainant’s lung
was punctured, does support a finding that [a knife] was capable of causing
‘serious bodily injury.’”), as authority. However, the sole point of error in
Pedro related to whether there was insufficient evidence to support the
finding that a deadly weapon was utilized in the commission of the offense. Id.
Thus the inquiry in Pedro, whether a deadly weapon was used, is not relevant
to the inquiry at hand in the instant case, whether actual serious bodily injury
was proved.
Conclusion
Appellant’s situation is not one where an appellate court acted as a
thirteenth juror and rejected evidence that serious bodily injury occurred;
17
rather, it is one where the State failed to offer evidence at trial sufficient to
prove that serious bodily injury occurred. The Second Court of Appeals
determined that Nurse Brown’s testimony could not legally support serious
bodily injury. While she may have testified “generally” that certain injuries
could be deemed “serious,” she was unable to testify that Justina’s specific
injuries were serious (2 R.R. at 66). Justina’s liver enzymes were normal, and
she did not suffer from any of the conditions they were observing her for, like
peritonitis (2 R.R. at 68-69). Brown confessed that at all times Justina’s liver
was functioning properly and her condition continually improved (2 R.R.
at 69). She further conceded that Justina’s lungs were working normally
(2 R.R. at 69). She agreed that the only “treatment” for Justina’s rib injuries
was pain medication and deep-breathing exercises (2 R.R. at 69). Brown
testified that no surgeries or procedures were done to treat or repair either
the rib fractures or maxillary fractures (2 R.R. at 70).
The State argued at trial that a “lacerated liver” or “collapsed lung” “in
and of itself is a lengthened-in-time impairment,” essentially asserting these
injuries are “per se” serious bodily injury and/or “protracted” impairment
(3 R.R. at 10). However, there was no testimony or evidence offered to
support that assertion, and that assertion is not supported by legal authority.
18
Moreover, as trial counsel for Appellant pointed out, there was no evidence
that Justina couldn't breathe or that her lungs weren't operating correctly.
None of the testimonies from any lay witnesses supported the allegation
of serious bodily injury under any part of the definition either. While Justina’s
mother testified to observing Justina at the hospital, she also said she could
not recall Justina having any trouble breathing and did not recall Justina
wearing an oxygen mask (2 R.R. at 94-96). Likewise, no other lay witness
testimony was offered to support legally sufficient evidence of serious bodily
injury either.
This Court is well aware of the standard when reviewing sufficiency of
the evidence. Part of that review includes ensuring that the evidence
presented actually supports a conclusion that the defendant committed the
crime. Williams, 235 S.W.3d at 750. Perhaps the medical records or testimony
from a treating physician might have supported the verdict; however, it is not
the job of the appellate courts to speculate and infer that evidence when it
does not plainly exist in the record. Reversing the Second Court of Appeals’
determination in this case would essentially relieve the State of its obligations
under the law and encourage other appellate courts to infer what the evidence
does not prove whenever the State fails to meet its burden of proof. The
Second Court of Appeals did not sit as a thirteenth juror; it merely held the
19
State to its burden of proof. This Court should uphold the Court of Appeals’
decision and deny the State’s requested relief.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays this Court will
either dismiss this appeal as improvidently granted or affirm the holding of
the Second Court of Appeals.
Respectfully submitted,
/s/ Joseph C. Boswell
JOSEPH C. BOSWELL
BOSWELL LEGAL GROUP, P.C.
1504 EAST MCKINNEY STREET
SUITE 200
DENTON, TEXAS 76209
(940) 382-4711
(940) 349-9922 (FAX)
ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
I hereby certify that the word count in the foregoing Brief is 4235,
having been calculated using Microsoft Word, the program used in the
preparation of this Brief.
/s/ Joseph C. Boswell
JOSEPH C. BOSWELL
20
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing Petition has been
served on Andrea Simmons, Attorney for Appellee, 1450 East McKinney
Street, Denton, Texas 76209; and Lisa McMinn, State Prosecuting Attorney,
209 West 14th Street, Suite 203, P. O. Box 13046, Austin, Texas 78711-3046,
by electronic service on this, the 17th day of August 2015.
/s/ Joseph C. Boswell
JOSEPH C. BOSWE
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Blea, Juan
Combined Opinion