*1 Long, supra, Having determined Y.A.C.C.P., 38.071, 2, facially un-
Art. § and under both the Federal
constitutional judg- we reverse
State Constitutions case and the Appeals
ment Court of court.3 to the trial
is remanded
TEAGUE, J., in the result. concurs 2,
CAMPBELL, J., joins Footnote 2, 38.071,
finding Art. V.A.C.C.P. § of the due as violative
unconstitutional due of law
process course
clauses. WHITE,
DAVIS, McCORMICK and
JJ., dissent. MOORE, III, Appellant,
Pamie Texas, Appellee.
The STATE of
No. 1138-85. Texas, Appeals of Criminal
Court
En Banc. 4, 1987.
Nov. Ganne, Austin, Ray, for Sally
Patrick R. appellant. Earle, Atty., Dist. and Terrence
Ronald Austin, Keel, Atty., Robert Hut- Asst. Dist. Austin, tash, Atty., for the State. State’s discovery Id., engine truth,’’’ Long, for the ever invented tution. As was said in at "Nowhere Anglo-American jurisprudence has U.S. v. Green [399 no time 'California required (1970)], ever to call as a wit- supra,— an accused been L.Ed.2d S.Ct. ” enjoy funda- accuser in order to ness the Id., p. cross-examination.’ 321. is, right un- That cross-examination. mental til Art. 38.071 illogical supra. It petition granted appellant’s also 3. We place a de- scheme to well as unconstitutional other discretionary several review consider fendant, who, again, presumed inno- must be admissibility pre- grounds relevant cent, requir- position of either in the untenable However, videotaped because interview. thereby very ing testify run the the child Long, disposition su- under case of our jury or incurring wrath real grounds. pra, reach these we need not legal greatest right forgo “‘the invoke”’ *2 Blackmon, PETITION FOR Darrel E. OPINION ON STATE’S hereinafter com- DISCRETIONARY REVIEW plainant.
TEAGUE, Judge.
pertinent part,
alleges
In
the indictment
appellant
that
“did then and there unlaw-
appeal,
Ap
of
On direct
the Third Court
fully,
intentionally
knowingly
cause
(Austin),
peals
unpublished opinion,
in an
bodily injury
serious
to Darrel E. Black-
concluding
in
after
that the evidence was
mon,
victim, by stabbing
the victim
implicit
jury’s
sufficient
with a knife.”
finding
sustained seri
court’s
bodily injury,
reversed the trial
only “application paragraph”
In the
that
judgment of conviction. See Moore v.
jury
given,
jury
was instructed
State,
3-84-336-CR,
(Tex.App.3rd, No.
as follows:
2, 1985).
October
The court overruled the
bearing
foregoing
Now
in mind the
in-
rehearing
State’s motion for
without writ
structions,
you
believe from the evi-
opinion.
ten comment or
doubt,
beyond
dence
a reasonable
petition
The State then filed its
for dis-
defendant,
Moore, III,
Pamie
on or
review,
cretionary
challenging
holding
day
July,
about the 11th
of
appeals
of
court
evidence
Travis,
Texas,
County of
and State of
as
jury’s implic-
was insufficient to sustain the
indictment,
alleged in the
did then and
had sus-
unlawfully, intentionally
and know-
which,
tained serious
after
ingly
bodily injury
serious
Dar-
because at
least
four members of this
Blackmon,
victim, by stabbing
rel E.
grant
Court did not vote to
the State’s
knife, you
find
victim with a
will
petition,
petition.
this Court refused the
aggra-
guilty
defendant
of the offense of
202(i),
Appellate
See Rule
Rules of
Proce-
say
your
vated assault and so
dure. The State then filed a motion for
believe,
you
you
but if
do
or if
not so
which,
rehearing, after
because at
least
thereof, you
have a reasonable doubt
will
five members of this
Court were
acquit
say by your
the defendant and
opinion that
the State’s motion should be
Guilty.”
verdict “Not
granted,
granted
this Court
the State’s mo-
finding appel-
returned a verdict
230(c),
rehearing.
tion for
See Rule
Rules
“guilty
aggravated
lant
of the offense of
Appellate
Procedure.
assault,
alleged
in the indictment.” The
question
“The relevant
[before
punishment,
judge
assessed his
en-
Court,
question
which was the same
before
conviction,
prior felony
hanced
one
at 15
whether,
appeals,]
court
years and one
confinement
the De-
viewing
light
most fa-
partment
No fine
of Corrections.
was as-
prosecution, any
vorable to the
rational tri-
sessed.
er of fact could have found the essential
ways
person may
com-
One of the
elements of the
beyond
crime
a reasonable
aggravated
mit the offense of
assault is if
Virginia,
doubt.” Jackson v.
443 U.S.
he commits the offense of assault and
(1979).
99 S.Ct.
slightly spine, underneath the towards another wound skin.” Lewis also observed presented After its case in “a appeared to be to the back chief, rested, appellant moved for an wound, superficial scraping type maybe 12 alia, instructed ground inter on the long, that ... around his to 15 inches went the State had failed to establish be- his side on the left side.” back towards yond a complain- reasonable doubt that the opinion, were inflicted Lewis’ the wounds ant had sustained bodily injury”. could “probably by single slash” that motion, expected, As arguments have been done a knife. During “Well, you, if the wound to the Lewis testified that I’ll tell judge commented: bleeding came from had *4 back where prosecutor], State’s personally that I [the carried the not been treated “it chance don’t think that on the evidence that is— becoming to drain infected.” order time, jury that is before the at this that pocket”, testi- blood from “a blind Lewis proven.” has been rubber-type drain was fied that a sterile motion, ruling the on Without pocket. Eight to ten inserted into the blind reopen. granted motion to judge the State’s stitches were used to suture wound. Although that if Lewis testified untreated tes- testify. to Lewis Lewis was recalled that the wound to the there was the chance any more injury “The is not —is not tified: complainant become in- back of the would The yesterday. I it out serious that made fected, he also testified that “I don’t think and the treat- patient received complainant] any was in risk of serious [the know, you got, that he it ment itself — However, quick damage.” Lewis was seri- it was not that way we treated “any type of point out that stab wound that the again testified ous.” Lewis potential the back carries a risk of serious cre- “did not complainant had sustained harm and death.” death”; not “did a substantial risk ate complainant’s As to the wound to the death”; a serious “did not cause cause stellate, nose, testified that “it was a Lewis and, as far as disfigurement”; permanent star-shaped type laceration to the sort impairment of the “protracted nose, going way all nares of the organ”, or any bodily member function of through ad- the nares.” Treatment was the com- that he advised Lewis testified wound, ministered to this which consisted for seven anything do plainant “not closure, two-layer of “a stitches inside and given Penal Code being days.” After outside.” “bodily injury”, Lewis testi- definition defintion as accepted “that cross-examination, fied that On Lewis reaffirmed wound, type of descriptive of the complainant being that the wounds the sustained given the he saw.” When type injuries to his were not the that for “serious injuries that would create definition Penal Code description of death. Lewis also testified that that that injury”, Lewis testified pro- the back would not cause a wound to type of wound applicable to the was tracted loss or of the function had sustained. complainant injuries Lewis, organ. any member reading previ- of Lewis’ a clear We find that however, injuries testify did that testimony on recall testimony and his his complainant sustained to back would correct: Lewis was to conclude that leads us pain. Although Lewis did significantly testimony did latter his scar that not detail the size of the would given. previously had change what he from exist on the back in the fu- testified, again ture, testify a scar would exist After Lewis he did appellant’s trial significant. after which one of but he did not think it would be rested committing aggravated as- appellant’s the offense of attorneys reurged the motion sault, alleged in the indictment.” “as for an instructed During argument on was overruled. The whether to be- decision if motion, point counsel made the appel- complainant, lieve or disbelieve the is in all cases of the issue brother, appellant, lant’s or the by speculation possibility, then governed challenged appeal. Nor by appellant on might away as well throw the distinc- “we jury, its decision that ver- bodily injury and tion between serious bodi- dict, obviously testimony of disbelieved responded: injury”. judge The trial ly appellant appellant and his did brother I Mi- say you perhaps me think not assault the “Let but chael, anyone, if very was the one who assaulted portion point Defense is well-tak- is— well-taken, complainant. en, going it’s to be Appeals something Criminal the Court of challenged appeal by appel- on What was decide, deny I’ll going to have so sufficiency was the of the evidence to lant motion for directed verdict at time.” jury’s implicit bodily inju- sustained serious ruled, judge the trial the defense After agreed ap- appeals court of with ry. put major its difference then case. pellant and ruled as a matter of law presented between what State had trier fact could not have rational presented the defense is that when what found the evidence sufficient establish Moore testi- the defense witness Michael that the com- beyond a reasonable doubt judicial guilt fied he made a confession of plainant sustained serious *5 he he had that and alone committed the and reversed. of on the com- offense assault us, com- Given the record before we are stabbing plainant by hitting and the com- agree appeals’ the pelled to with court knife”, “a the plainant with little because irrational, implicit finding only that complainant previously up” had to “set rational, a of fact could have trier killed he be shot and fact shot was seri- complainant found that the sustained place by at an time and unknown some injury, that is defined in bodily as term person. unknown the Penal Code. Appellant Appellant himself testified. the Penal Code definition for Given the complainant testified that at the time the bodily be- injury”, term “serious was stabbed was mobile because complainant in this cause did not cause the just recently play- had fractured an ankle inflicted, and die from the wounds because ing “splint” football and the ankle had a might support the is no evidence that Appellant assaulting it. denied com- finding the inflicted either that wounds plainant anyone as- and testified that complain- the nose caused the or complainant it saulted the must have been permanent disfigurement or ant serious his brother Michael. func- impairment loss or protracted The that Michael Moore record indicates organ, the any bodily member or tion during the arrested noon hour after question is wheth- only left to be answered prosecuting appellant testified. The attor- a sub- complainant’s er the wounds created nothing ney testified that he had whatsoev- no there is stantial risk of death. Because er to do with the arrest. might support in this record that evidence nose finding wound to the time, Appel- sides At both rested. death, we will created a substantial attorney lant’s trial renewed his motion limit our concerns to the stab wound alia, inter that the evi- instructed minor complainant’s back that necessitated finding dence was insufficient to sustain a surgery. complainant had sustained serious statements, bodily injury. judge The trial do not over- By denied our above we Thereafter, arguing also motion. returned a State is look fact general finding appellant is sufficient guilty verdict jury’s gunshot wound, implicit although the com- or a caused plainant suffered deadly weapon “serious gun, such as a knife or a through “protracted not, impairment se, loss or per bodily injury. organ.” the function of a member or shooting stabbing] of an individual [or haveWe considered the State’s contention Yet, grave serious and matter. it is the wholly and find that it is without merit. prove burden of the State to that such an that, given meaning findWe the common death, act created a substantial risk of “protracted”, of the word death, permanent disfig- caused a serious testimony, mother’s on which the re- urement, lies, was bedridden any bodily functions of member or and that it was at least a week “before he organ. See V.T.C.A. Penal Sec. go really people”, could out and see does 1.07(a)(34).” (898). words, In other where establishing not even come close to the issue is whether the victim sustained sustained to his bodily injury that created a substantial risk out, continuing, dragged back was either death, in prosecution order for the out, extended, elongated, length- drawn establish that the injury was in fact ened, lengthy, lingering, long, long-contin- a serious it is incumbent ued, long-drawn, never-ending, ongoing, upon prosecution present prolix, prolonged, unending. See Bur- evidence that the victim sustained ton, (1980 edition). Legal Thesaurus injury, upon prose- it is also incumbent totally mother’s insuffi- by competent cution to establish and rele- cient to establish that her son suffered beyond vant evidence a reasonable doubt bodily injury by protracted impair- i.e., threatening; was life compare ment.” See and Black v. grave that it was so or serious that it must (Held, (Tex.Cr.App.1982) kind, regarded differing and not evidence insufficient to establish serious degree, merely from other harm. bodily injury by protracted impairment Thus, in order to establish thigh by where the victim was shot in the that creates a substantial risk of it is defendant, hospital- which necessitated prosecution present incumbent ization days surgery for three to re- evidence, competent to the fact addition *6 move the bullet and it took two or three that the victim sustained heal.) leg months for the Also see Vil- consequence injury of the is it created a larreal v. (Tex.App.- words, In substantial risk of death. other P.D.R.) (Held, 13th No evidence in- prosecution present must relevant and sufficient to bodily injury sustain serious probative evidence from which a rational by impairment notwithstanding beyond trier of fact could infer a reason- fact that defendant his beat victim on the bodily injury the victim able doubt that the face, laceration, which caused a bruise and sustained created a substantial risk of and kicked in cage his victim the rib area of itself, death from the and not from body, which caused two of the victim’s hypothetical possibility or mere some fractured, ribs to be which in turn caused created a substantial risk the victim not to be able raise his arms of death. anything or lift days.) for at least ten course, Of as to what facts will be suffi- appellant’s As to contention that the evi- bodily injury cient to establish dence is beyond insufficient to establish in a serious bodi- victim sustained was fact reasonable doubt that the in ly say, is- injury, we cannot because such bodily injury this cause suffered serious sue must be decided on an ad hoc basis. death, which created a risk of See, Black, Villarreal, however, supra, su- find opinion by Judge we this Court’s W.C. Williams, pra, supra. Davis in Williams (Tex.Cr.App.1985), In to establish “serious highly instructive. doubt, There, Davis, Court, through beyond Judge a reasonable emphasized wound, following: put complainant, “A knife but we on the complainant. Lewis into the back of very few he made in his find whether, hypothetically testi- asked and never was also to his wounds references complainant’s back had of them. to the to the seriousness the wound fied at all infected, came, only relate to became he which would untreated and closest been left ante, “serious see and not “bodily injury”, risk of create a substantial this would he testi- was when bodily injury”, “If left untreat- responded: death. Lewis pain he discovered fied that infected, ed and it was wound] [the short, “The stabbed. that he had been to a proceeding possiblity carries to the testified complaining never witness be fatal.” septicemia, which could injuries created a substan- that his extent complainant’s had the We find that permanent or caused tial risk untreated, gone these to his back impair- protracted loss disfigurement, or questions and answers would hypothetical mem- the functions of ment of probative certainly relevant and have been Williams, supra, at 898. organ.” ber or issue whether the to the However, Appellant’s mother testified. complainant’s back created a substan- interrogated, nor did she she was never However, because the of death. tial risk whether, opinion, testify, her untreated, was not complainant’s wound her back created a substan- injury to son’s successfully treated in fact was him. tial risk of death to questions and the Lewis, hypothetical given as- were asked and answers that treating physician testified. Lewis did not exist this cause. sumed facts that testimony, In his both before and after he testify, was recalled the State to Lewis first pause point out that We suggested never that when he treated the knowledge personal about spoke from complain- complainant had bodily injuries that ant had sustained created a substantial risk he, Lewis, first saw when sustained true, however, of death. It is that Lewis him; personal spoke with and treated prosecutor speculate, was asked he ad- knowledge the treatment as to through hypothetical questions, about sustained; and to the wounds ministered complainant’s untreated stab wound concluded therefrom back. they then cre- such that injuries were not risk of death. ated a substantial It hypothetical ques- is axiomatic that a tion need not be based all the facts of “substantial”, is in which The word case, may, phrasing and counsel (a) (34) Penal 1.07 hypothetical question, assume the facts in bodily injury”, is defines the term theory accordance with his or her Therefore, in the Penal Code. not defined Thus, propounding ques- case. counsel ordinarily given to meaning that is *7 opinion upon tion is entitled to the witness’ 3.01, Art. applied here. See must be word combination the facts which were 311.011 of the Govern- Also see C.C.P. § might adduced that be from inferable those The word “substantial” ment Code. Practice, Texas Ray, facts. See 1402 § following: “Of usually to mean defined and 1403. Also see Holloway v. importance; considerable real worth and 497, 602, S.W.2d fn. 14 (Tex.Cr.App.1981); Belonging to sub- value; ... valuable v. 596 S.W.2d 877-888 Barefoot real; seeing existing; not stance; actually (Tex.Cr.App.1980); Atkinson v. solid; true; illusive; ver- imaginary; not S.W.2d (Tex.Cr.App.1974). Dictionary 1280. Law itable.” Black’s risk is a Thus, risk of death a “substantial” hypothetically, whether When asked danger apprehension gives rise to on the com- type he had observed wound course, defi- Penal Code to life. Of to susceptible more plainant’s back was ante, injury”, see nition for “serious wounds, Lewis testi- than other infection life, it can- endanger not if an does was, pock- “blind it because of a fied that bodily injury. a serious considered be resulted from the stab et” that had Legislature say grave, to that the risk of death must be Given the fact placed separate defini- likely into the Penal Code or that more not to “bodily injury” tions for and “serious bodi- Rather, produce death even if treated. ly injury”, it is obvious that its intent was injury presents appreciable an “bodily injury” not to make the term not, whether treated or that risk is equivalent bodily inju- of the term “serious enough for a rational trier of done, Legislature ry”. By has it what fact to conclude or infer that “serious bodi- is also obvious that it did not intend for the ly injury” has been sustained the victim. prosecution, establishing against its case Moreover, if medical is un- treatment accused, through to be able to elevate place inju- available at the time and hypothetical questions “bodily injury” a to ry, the risk of death must be assessed bodily injury”. If a “serious this were Indeed, light of these circumstances. a true, simple it would be a matter for a temporarily debilitating injury, inflicted un- convert, prosecutor type “what if” possibili- der conditions which foreclose the hypothetical questions that related attention, ty prompt may medical create treatment, “bodily of medical absence threatening injured a life situation for the scratches, bruises, injury”, such as minor party possible under a varied of circum- abrasions, that had not been success- stances. treated, fully bodily injury”, into a “serious i.e., Or, threatening. put one that is life are, therefore, unwilling We to hold that way, permit through it another it would may finding an accused avoid a of “serious hypothetical questions on assumed facts bodily injury” by postulating a different evidence the offense of assault to state of affairs than that in he left easily become the offense of victim, any can more than assault. of “serious equally also find that it is
We obvious by postulating similarly nonextant sce- our did not to limit lawmakers intend nario, such as occurred in this cause. only risk of death” to those “substantial judging sufficiency of the evi- actually cases which death results from offense, here dence as to an element injuries. whether, bodily injury”, the test is Professional attention medical and treat- light viewing most the evidence may ment is a fact of modern life. We prosecution, any rational favorable to safely presume from this circumstance that trier of found the essential fact could have Legislature took it into account when “beyond the crime a reason- elements of drafting (a) (1) provisions 22.02 Virginia, supra. able doubt.” Jackson statute, predecessor and its and meant to applied This standard must be define the relative seriousness of also to a correct admitted injuries specific reference without charge corresponds allegation injuries prompt whether or not such receive State, supra. of the indictment. Benson v. It, professional medical attention. instructed in In this therefore, highly unlikely seems “bodily on the definitions for the abstract Legislature intended to make “serious bodi- bodily injury”, injury” and “serious ly injury” depend whether the instructed that if it also Instead, injury was or was not treated. ap- beyond a reasonable doubt that found appears likely Legislature intended bodily injury to the pellant caused serious bodily injuries which create a “sub- *8 guilty complainant it was to find stantial risk of under- death” should be offense of assault. only injuries stood to mean those for which legal or tech- “The word ‘rational’ has no risk of death exists even if substantial meaning, by Webster nical and is defined promptly according accepted treated reason, reasoning, having faculty of en- practice, as medical when and to the extent understanding, medical is available at the dowed with reason treatment absurd, reason; prepos- agreeable injury. time of the We do not mean
355 Id., organ. or member foolish, fanciful, any bodily terous, or of extravagant, 1.07(a)(34).1 likewise; con- judicious rational —as Bottom, v. man.” Bottom duct; a rational definition, Dissecting we find that its (Ky.1907). 217 S.W. plus bodily injury is following or effects: one more evidence we In this find in the record that will death; of risk 1. implicit finding appellant caused jury’s death; 2. bodily injury is complainant serious permanent disfigurement; 3. serious an- solely that which was based any of protracted 4. loss of the function gave prosecutor’s swers Lewis member; bodily hypothetical assumed questions, which protracted impairment of the func- 5. the fact that Given facts evidence. member; any bodily tion of successfully treated protracted of the function of 6. loss Lewis, who testified that organ; back did create protracted impairment 7. of the func- death, substantial risk of Court organ. any bodily tion of implicit finding seri- uphold jury’s alleged examine an serious Rather than bodily injury beyond a ous was established light specific those of as- a mis- reasonable doubt would amount to tendency to pects, some cases reflect a fuse carriage justice. of In mix one or more of them. this cause or above, we find that we are Given Appeals of found that the Austin Court agreement holding, implicit, with the albeit State, v. Brown unlike appeals, jury’s of the court of (Tex.Cr.App.1980), State’s evidence here implicit finding sus- "requires the occurrence at least two bodily injury” was irration- tained “serious contingencies risk before substantial al, i.e., lacking logical support in sufficient exist,” death would and concluded evi- E.g. in the evidence. Schuessler v. is dence insufficient to show serious (Tex.Cr.App.1986) S.W.2d injury because: (Opinion Rehearing.) on State’s Motion for experienced “The death Black- risk of judgment appeals of the court of speculative and removed mon was too affirmed. that existed at from the circumstances was inflicted the time ONION, DAVIS, P.J., and W.C. Brown v. as ‘substantial.’ characterized McCORMICK, CAMPBELL v. supra. See also Sanchez DUNCAN, JJ., concur in the result. (Tex.Cr.App.1976). Nor 543 S.W.2d CLINTON, Judge, concurring. reasonably support the does the evidence seri- that Blackmon suffered conclusion Bodily injury “physical pain, means ill- pro- disfigurement or permanent any impairment physical ness or condi- impairment func- tracted loss 1.07(a)(7). Penal tion.” V.T.C.A. tion.” bodily injury Serious means No, Moore (Tex.App. 3- —pain, impairment —Austin illness or 1985).2 84-336-CR, delivered October creates a sub- body condition —“that the Austin Court is stantial of death that causes The State contends pro- wrong “misapplied it permanent disfigurement, for two reasons: rejecting of review” in tracted impairment proper standard for function disfigurement dysfunction emphasis throughout of the nose 1. mine other- All unless wise noted. not set. The Court found bone were disfigure- permanent sufficient to show serious ment, State, supra, ag- 2. Brown v. the offense was of func- aswell gravated rape, and victim’s nose was broken nose, bodily organ, before was of a tion offense; and deformed on the of that Id., medically. at 574-575. treated such was evidence that would *9 356 “substantial,” 132, (Tex.Cr.App.1976); 134 being and it S.W.2d at see
risk of death showing pro- Gonzalez v. State “a 146 failed to consider evidence Tex.Cr.R. State, impairment (1943), of the function and Fierro v. tracted loss and Brief, at 4. members.” State’s (Tex.App. S.W.2d at 599 Paso —El adequately an- opinion 1981) of this Court PDR refused. My purpose is the first contention. swers single judge opinion The State relies on a applicability discuss of the second one v. panel Williams judges from a of two in testimony set out in its brief and relied State, (Tex.Cr.App.1979) S.W.2d by the State. J., Davis, J., (Douglas, concurring with T. charges that the Austin First result). question being decided “key or consider Court did not address robbery was whether a knife used to stab a supported finding that testimony ... deadly properly victim was found to be a protracted impair- the victim suffered a gash weapon. One was a in his left testimony bodily function.” The ment of shoulder that allowed the muscle to distend question to and referred to is an isolated placed such that back in his it had testimony and certain answer Dr. Lewis shoulder, and the wound closed and su- of victim’s mother. tured, causing lifting pow- him to “lose the Dr. Lewis: Id., his arm for three months.” in at er Q. degree Did he have a Judge Douglas 32-33. found in those cir- after the treatment impairment, even “protracted cumstances the caused you gave him? any ... of the function of bodi- say yes. A. I’d member,” ly and thus would be classified bodily injury, citing only his own Mrs. Blackmon: as serious unpublished opinion concurring part Q. right. [your All bedridden Was son] Calvin dissenting part, home, ma’am? for awhile at (Table) (Tex.Cr.App. No. A. He were. 13, 1978). Id., 53,829, delivered December Q. Okay. long was it before he How at 33. around, getting up moving started again? around au- Williams To the extent constitutes Well, every day A. he would move be- any proposition, actually it is thority for to take him cause we had backwards Judge against in this cause. every day, doctor and forwards to the im- Douglas recognized “protracted out, going as far as him it was a of a pairment” must be of “the function” really go week before he could out and member, in that case an arm. Here people. in his the victim suffered a stab wound way implicated either that in no prove impair- That does not bodily organ. member or any bodily mem- ment of “the function of organ,’’ required ber two alternate “bodily injury” The victim suffered Black v. bodily injury. types of serious pain out- physical in that at the there was (Tex.Cr. 637 S.W.2d at 925-926 “impairment of set followed some [his] gunshot App.1982) (testimony wound to recuperation. during physical condition” thigh three to heal took two to months observations, opin- join I With those indicating any loss of use of limb without ion of the Court. prove bodily injury). insufficient to “impairment At best it shows bodily injury through condition” —mere — period recuperation
brief with visits checkups. “impair- That kind of
doctor for functionally equivalent to a “six-
ment” stay hospital ... observation
and to insure that he did not have Sanchez v. complications,”
other