Case Information
*1 IN THE COURT OF CRIMINAL APPEALS OF TEXAS § 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 02-13-00221-CR AND
FROM THE 16TH JUDICIAL DISTRICT COURT DENTON COUNTY, TEXAS IN CAUSE NUMBER F-2011-0993-D 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 andrea.simmons@dentoncounty.com *2 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 ST A TE 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 *3 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ....................................................... ii-iv INDEX OF AUTHORITIES ................................................................................. v-vi ST A TEMENT 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
lll *4 CERTIFICATE OF SERVICE ................................................................................ 10 APPENDICES:
A Blea v. State, No. 02-13-00221-CR, 2015 Tex. App. LEXIS 113 7
(Tex. App. -Fort Worth Feb. 5, 2015, pet. filed) IV
INDEX OF AUTHORITIES Page Statutes, Rules and Codes Tex. Penal Code Ann. § l.07(a)(8) (Vernon 2013) ...... .. .. .... .. .. ............................... .. 4 Tex. Penal Code Ann. §1.07(a)(46) (Vernon 2013) .. .. .......................................... .4-5 Cases
Barrera v. State
820 S.W.2d 194 (Tex. App.- Corpus Christi 1991, pet. refd) ............................. 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
Vl *7 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 *8 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?
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.
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 *11 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, 117-18). 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 *12 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.
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 *14 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, *15 161 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. 240534 78 1450 East McKinney Denton, Texas 76209 (940) 349-2600 FAX (940) 349-2751 *16 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 3rd day of March 2015.
ANDREA R. SIMMONS *17 APPENDIX A
[Blea v. State, No. 02-13 -00221-CR, 2015 Tex. App. LEXIS
1137 (Tex. App. - Fort Worth Feb. 5, 2015, pet. filed)] *18 Page I Lexis Nexis®
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 1137
February 5, 2015, Delivered
February 5, 2015, Opinion Filed NOTICE: RULES OF APPELLATE PROCEDURE FOR CIT A PLEASE CONSULT THE TEXAS requires both serious bodily injury and the use of a deadly weapon. [3] 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 [*I] FROM THE 362ND the evidence that he caused the complainant serious bod PRIOR HISTORY: ily injury rather than bodily injury as well as the suffi DISTRICT COURT OF DENTON COUNTY. TRIAL COURT NO. F-2011 -0993-D. TRIAL COURT JUDGE: ciency of the evidence that he used hi s 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 ( 1) 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 fe lony aggravated assault of a fami ly 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. § 22.02(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 MEMORANDUM OPINION complainant were not married, they did marry about two bedroom in his parents' apartment. While Appellant and years later. See Tex. R. App. P. 47.4. A couple of weeks before the assault, Appellant had A jury convicted Appellant Juan Blea of first-degree separated from the complainant and moved in with a
felony aggravated assault of a family member.' The jury friend . On July 20, the complainant spent time with a assessed his punishment at five years' confinement, and male friend from school. At trial, she did not remember the trial court sentenced him accordingly. That offense *19 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 10:00 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 [the 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 ... [. S]he was in quite a bit of pain. was, the complainant corrected him, stating, "[A]fter he She was, like, with one arm holding her first hit me, she started getting fussy . I told him to leave ribs, her chest, her stomach area. me alone and I wanted to put her asleep (sic) because I 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 tried to get up from the couch at she had said that she was in a "ton" of pain. The pain was one point and she fell back to the couch in in her back and her chest. The prosecutor asked, "Did pain and that's when I called for a medic. you feel like something had been broken or terribly in jured as a result of this?" The complainant responded ,
"Yes."
The child woke up, so Appellant 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 Appellant contends that the evidence [*6] is insuf and returned with the diapers . The complainant did not ficient to show that (I) he caused serious bodily injury call the police while he was gone. When the prosecutor and (2) his hand was used as a deadly weapon. In our asked her why, she responded , "Because I didn't want due-process review of the sufficiency of the evidence to to." She said that she had been scared and had not known support a conviction, we view all of the evidence in the how Appellant would act, and she had not wanted any light most favorable to the verdict to determine whether one to know what had happened. When Appellant re any rational trier of fact could have found the essential turned , he and the complainant argued verbally. The elements of the crime beyond a reasonable doubt. ' Sec prosecutor asked her whether it was evident that she was tion 22.02 of the penal code provides, in pain. She testified that the pain had not set in yet and 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 (I) causes serious bodily injury to from work, stating that she had fallen down the stairs. another, including the person's spouse; or After Appellant's parents saw her, his father called the police. *20 Page 3
2015 Tex. App. LEXIS 1137, * (2) uses or exhibits a deadly weapon the issue must be determined on an ad hoc during the commission of the assault. basis. [10]
(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 dence. The [S]tate must present evidence during the commission of the assault and causes serious bodily injury to a person that the [complainant] suffered bodily in jury that created a substantial risk of whose relationship to or association with the defendant is described by Section death. In other words, the [S]tate must present relevant and probative evidence 71.0021(b), 71.003 , or 71.005, Family Code[.] [0] from which the trier [*8] of fact could
infer beyond a reasonable doubt that the injury itself created an appreciable risk of provides, Section 22.01 [11] death.
(a) A person commits an offense if the
person :
(I) intentionally, knowingly, or reck
lessly causes bodily injury to another ... ; 8 Id.§ J.07(a)(8).
9 Id. § l.07(a)(46). 10 Moore v. State, 739 S.W.2d 34 7, 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.--EI Paso 199 7, 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, 61 L. Ed. 2d 560 (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 Id. § 22.01 (West Supp. 2014). body. Although Jennifer testified on direct examination or any impairment of physical condition . " [8] "Serious bod stantial risk of death or that causes death, serious perma ily injury" is defined as "bodily injury that creates a sub "Bodily injury" is defined as "physical pain, illness and for a month afterward, on cross-examination, she that the complainant was unable to walk in the hospital admitted that the complainant could stand and walk even while still in the hospital. nent disfigurement, or protracted loss or impairment of The complainant did not work at her waitressing job the function of any bodily member or organ. " [9] 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 [b ]y 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, *21 Page 4
2015 Tex. App. LEXIS 1137, * A Just so I didn't have to deal with a "probably would know that" and "if [she] [*IO] 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 I 9,
Q Because you didn't want to interact hospital records, but after reconsideration, withdrew the exhibits. The court reporter erroneously included those with people? 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 admission to the hospital. Brown explained that a person you know? 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 fessionals] look at." Although the complainant had testi Q Just in a regular room? fied that "they said my liver was lacerated, or some A Yes. thing," no other evidence of a lacerated [* 11] liver was presented to the jury. Brown did testify that there was an Q Do you have any serious perma injury to the complainant's liver and an injury in her nent disfigurement as a result of this inci chest. Brown admitted that she was repeating the radiol dent? ogist's opinion, and the trial court sustained Appellant's A No. objection to her testifying about anything somebody else did . But the trial court did not instruct the jury to disre Q As a result of this incident, did you have a protracted loss of the use of any bodily member or organ? No. A other problems caused by a liver injury; none was dis gard . Brown testified that she checked for peritonitis or covered. There was no evidence that any injury to the complainant's liver was a serious bodily injury. [12] The following exchange occurred: Q Have you fully recovered?
A Yes. Q So at all times, her liver was func tioning and doing what it was supposed to Q Were you able to get up and be out be doing? and about some the week after that? A Yes, sir.
A The week after the hospital? Q And--all right. Same with her Q Yeah, after they let you go home. lungs? I mean, she could breathe, right? A Yeah. A Yes, sir, she was breathing. Q Okay. I mean, you could get up Q And I assume you tested her blood
and go do something, right? for oxygen level? A Yeah, yeah . A Yes, sir.
Q And I guess her blood was--her lungs were working like they were sup In response to the prosecutor's asking her the mean posed to? ing of "protracted loss or impairment of the function of any bodily member or organ," the complainant said that A Yes, sir. she did not know a specific definition, but that she *22 Page 5
2015 Tex. App. LEXIS 1137, * Q I mean, they were providing [i]njuries to the liver can cause a pa tient to bleed to death [* 13] very quick enough oxygen to her? ly. Knowing that there is an injury to the
A Yes, sir. liver and why it is and whether it is ac tively bleeding or has developed a blood Q Now, on the broken ribs, what clot to the liver makes a decision point for treatment was given to her for the broken what the surgeons do and what we do for ribs? 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 ously, she replied, "Because if we can't control our oxy The rib was, I guess, still intact, for genation, we need oxygen to live, and you can die from want of better words, but there was a that." But Brown did not testify that the complainant fracture in it? suffered from such a condition . No one did . Indeed, A There was a fracture in it. What Brown monitored the complainant to deterrnine 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 Okay. And would the same be true
Q A That is correct. complainant's injuries created a substantial risk of [3] death .' of the maxillary sinus? 13 See Tex. Penal Code Ann.§ l .07(a)(46) .
they saw her--we recommended that she be seen in clinic after she was discharged home from the hospital. A That's correct. Due to the swelling, impairment of the use of a bodily member or organ. suffered perrnanent disfigurement or protracted loss or [14] [*14] She testified that she had suffered neither. The We must next consider whether the complainant only suggestion of such loss or impairment is Jennifer's Q But no surgery or any procedures testimony that the doctors told the complainant not to lift were done to repair that damage? 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 of the complainant's ribs. Jennifer also agreed that "we Q It just healed on its own? 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 ered. She also testified that she was able to go out and l l l -13 (holding that a See id. at about some as soon as she was released from the hospi I-centimeter laceration of the liver was unlikely tal. to cause death and not serious bodily injury). The Moore court instructs us that
The only evidence that the complainant could have suffered serious bodily injury arose from the State's in given the common meaning of the quiry whether "any injury to the liver [is] treated seri word "protracted," the complainant's ously or minimally" by Brown's "profession." She re mother's testimony, on which the State re plied that they are treated seriously because lies, that the complainant was bedridden
and that it was at least a week "before he *23 Page 6 2015 Tex. App. LEXIS 1137, *
could really go out and see people," does finding that Appellant's hand was a deadly weapon in the manner of its intended use but that the evidence is insuf not even come close to establishing that 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. 15 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 739S.W.2dat352. 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.16 We therefore hold that the evidence is insufficient conduct a new trial on punishment. [11]
to support the element of serious bodily injury.
17 See Bowen v. State, 374 S. W.3d 42 7, 432 16 See Tex. Penal Code Ann. § l .07(a)(46) . (Tex. Crim. App. 2012) . Isl Lee Ann Dauphinot
But the evidence is sufficient to support the deadly
weapon finding . Testimony touching on whether Appel LEE ANN DAUPHINOT lant's hand was a deadly weapon in the manner of its use
or intended use included that of the complainant and that JUSTICE
of Officer Adamo, the responding police officer. The PANEL: LIVINGSTON, C.J .; DAUPHINOT and complainant testified that after Appellant struck her with GABRIEL, JJ. his hand, knocking her down, he said that he was going to kill her. Officer Adamo testified on direct examination LIVINGSTON, C.J., filed a dissenting opinion .
by the prosecutor, [*17] DO NOT PUBLISH Tex. R. App. P. 47.2(b)
Q [C]an a person's hand be a deadly weapon? DELIVERED: February 5, 2015
A Yes, it can. DISSENT BY: TERRIE LIVINGSTON DISSENT Q [D]o you feel that someone's hands
are capable of causing death or serious bodily injury? DISSENTING MEMORANDUM OPINJON [1]
See Tex. R. App. P. 4 7.4, 47. 5. A Yes, they are very capable. Because the majority's opinion improperly applies standards for reviewing the sufficiency of evidence to show that the victim suffered serious bodily injury, I going to kill her was some evidence of his intent to use his hand as a deadly weapon. Officer Adamo's testimony Appellant's statement to the complainant that he was judgment and to remand for the entry of a judgment that dissent from the decision to reverse the trial court's reflects only a second-degree felony conviction. [2] was evidence that would allow a rational trier of fact to See Tex. Penal Code Ann. § 22.02(b)(I) conclude beyond a reasonable doubt that, in the manner (West 2011 ). of[* 16] its intended use, Appellant's hand was capable of causing death or serious bodily injury. Accordingly, When deciding an evidentiary sufficiency issue in a we hold that the evidence is sufficient to support the jury criminal appeal, our usual deference to a jury's verdict *24 Page 7
2015 Tex. App. LEXIS 1137, * if you have a box and a balloon blown requires us to weight appellate scales in favor of affirm ing a judgment of conviction. See Winfrey v. State, 323 up inside the box and the balloon shrinks over time, there is air between the box and S. W.3d 875, 879 (Tex. Crim. App. 2010). We do so by app lying settled principles aimed at preventing us from the balloon, that is a pneumothorax. Most of the time, the lungs should be expanded becoming a "thirteenth juror." See Thornton v. State, 425 in our chest and touching the sides of the S.W.3d 289, 303 (Tex. Crim. App. 2014); Isassi v. State, box, but when the lung collapses, it's just 330 S. W.3d 633, 638 (Tex. Crim. App. 2010) (exp laining that in reviewing the sufficiency of evidence to support a like a balloon that has a small leak in it and collapses down. conviction, we guard "against the rare occurrence when a
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) [3] 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 co llapsed Jung 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 comp lainant 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 when she returned to work, she was instructed to not lift App. 2014); Dobbs v. State, 434 S. W.3d 166, 170 (Tex.
Crim. App. 2014); Hernandez v. State, 161 S. W 3d 491, anything over twenty-five pounds.
500-01 (Tex. Crim. App. 2005). While it is true that the [*20] comp lainant's condi tion improved upon medical treatment, in determining
3 The majority appears to resolve conflicts in whether evidence is sufficient to estab li sh 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, 801 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.--Amaril/o 2012, pet. refd) . And se of any bodily member or organ ." Tex. Penal Code Ann.§ rious bodily injury may be estab lished without a physi / .0 7(a)(46); see id.§ 22.02(a)(l), (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. W.3d at 828.
repeatedly, she felt "a lot of pain" in her back and chest Brown testified that injuries to lungs are treated se and cou ld not breathe. She believed that she had been riously because the lungs contro l 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 comp lainant's mother tes return to work. tified about) to help with her difficulty in breathing, the comp lainant faced a substantial risk of death. See id.; see "Bodily injury" inc ludes 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 (Tex. § l.07(a)(8) (West Supp. 2014). App.--Eastland Feb. 28, 2008, pet. refd) (not designated
Kristie Brown, a nurse practitioner, confirmed that for publication) (concluding that testimony that the vic the comp lainant had suffered a lung injury. Concerning tim had trouble breathing and received treatment for a that injury--a pneumothorax-- Brown testified, pneumothorax that if left untreated, could cause death,
was sufficient to prove that [*21] the victim had a seri ous bodily injury); Pedro v. State, No. 01-88-0019 7-CR, *25 Page 8 2015 Tex. App. LEXIS I 137, * injury which caused [the victim] to lose lifting power in 1988 Tex. App. LEXIS 3158, 1988 WL 139708, at *2 (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, 911 S.W.2d 236, 244-45 (Tex.
does support a finding that [a knife] was capable of App.--Waco 1995, pet. refd) (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. 05-01-01899-CR, 2002 Tex. App. LEXIS 7740, ant's lung, that this injury required treatment through a 2002 WL 323977 13, at *I-2 (Tex. App.--Dallas 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.§ /.0 7(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" DO NOT PUBLISH [*22] because walking was painful. I would hold that 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, 5 75 S. W.2d 30, 33
(Tex. Crim . App. [Panel Op.] 1979) (holding "that the
J