Lаwrence Jefferson PITTS, Appellant, v. The STATE of Texas, Appellee
No. 05-87-00048-CR
Court of Appeals of Texas, Dallas
Aug. 17, 1987
734 S.W.2d 117
We deny appellants’ requеst for injunctive relief. We have no reason to believe that the City will refuse to abide by our holding in this case and amend its grievance procedure accordingly. If it does, a district court of Lubbock County is the appropriate forum in which to seek, and to develop a record in support of, an injunction.
ON MOTION FOR REHEARING
We have carefully reviewed the City‘s motion for rehearing, but remain satisfied with our resolution of the issues in the case. We must respond, however, to suggestions by the City that we have misused or misunderstood сertain facts in the case.
First, the City says we should not have considered the facts surrounding the group grievance because the captains (other than Alexander) who initiated that grievance did not pursue it and are not parties to the casе. The attempt by Local 972, on behalf of four captains, to present a group grievance, and the rejection by the City of that grievance, are undisputed facts in the record. Local 972 raised the group grievance issue in the trial court аnd pursued it here. Thus, the facts were before us and the issue was before us, and we were obligated to resolve it.
Next, reurging its mootness contention, the City says a careful reading of the record will indicate that it was willing to hear Alexander‘s grievance “tо its fullest extent notwithstanding his lawsuit or the temporary agreed order.” However, the City does not give us a citation to the evidence in the record that supports its argument. We can only reiterate our prior observation that the City has vigorously resisted thе relief sought by Alexander and Local 972, and continues to do so. Thus, the issues are not moot.
Finally, apparently seeking to distance itself from its contention that Local 972 cannot represent an individual employee, the City says, “The record clеarly shows that Appellees were willing to allow union representatives to represent individual grievants.” That issue was discussed in considerable detail during oral arguments in the case. Because there was some confusion, counsel for the City was specifically asked to clarify the City‘s position. In response, counsel said the City‘s position was that Local 972 could not be the representative of an individual employee.
The motion for rehearing is overruled.
Richard Weaver, McKinney, for appellant.
Nick Warden, McKinney, for appellee.
Before STEPHENS, McCLUNG and LAGARDE, JJ.
Lawrence Jefferson Pitts was tried before a jury and convicted of аggravated assault. After having found the two enhancement allegations in the indictment were true, the jury assessed punishment at thirty-eight years imprisonment in the Texas Department of Correction. In three points of error, appellant asserts that: (1) there was insufficient evidence to prove that appellant caused serious bodily injury to the complainant, or that appellant caused serious bodily injury to complainant by striking the complainant with his hands and, (2) the verdict returned by the jury was not authorized by lаw and is void. We affirm.
Appellant insists that insufficient evidence exists to prove that appellant caused serious bodily injury to the victim. Appellant was charged with aggravated assault pursuant to Section 22.02(a)(1) of the Penal Code.
(a) A person cоmmits an offense if that person commits assault as defined in Section 22.01 of this code and the person:
(1) causes serious bodily injury to another, including the person‘s spouse;
Serious bodily injury is defined 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.”
The victim testified that he was struck about the face numerous times by the appellant. As a result of the attack on him he suffered fivе broken bones in the facial
Dr. Richard Toranto, the treating physician, testified that when the victim was brought to the hospital his orbital bones, nasal bones, cheekbone, and jawbone were fractured. Dr. Toranto further testified that if these injuries were left untreated the following would have occurred: (1) the victim‘s left eye would have been displaced; (2) he would have suffered from double vision; (3) he would not have been able to to open his jaw fully; (4) his teeth would not have aligned properly lеading to permanent joint injury for the jaw; and, (5) he would never have been able to breath normally through his nose again. Dr. Toranto testified that without proper treatment substantial disfigurement would have occurred but that even with prompt and proper medical treatment substantial disfigurement remained a distinct possibility.
In evaluating the sufficiency of the evidence for a criminal conviction, the standard is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational triеr of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). A rational trier of fact could readily have found from the evidence that appellant‘s attack caused the victim serious bodily injury. Brown v. State, 605 S.W.2d 572, 574-75 (Tex.Crim.App.1980); Rollins v. State, 542 S.W.2d 163, 164 (Tex. Crim.App.1976).
Appellant also complains of the sufficiency of the evidence to prove that the victim‘s serious bodily injury was caused by appellant striking the victim with his hands.
The victim testified that he could not determine what he was struck with but that he saw nothing in appellant‘s hands. Dr. Torаnto testified that he had the expertise to determine how certain injuries occurred. Dr. Toranto stated that based on reasonable medical certainty, the injuries to the victim were caused by a fist. Indeed, appellant‘s attorney during cross-еxamination of Dr. Toranto elicited testimony from him that he did not believe, based on the injuries suffered, the victim could have been struck with anything besides a fist. We hold a rational trier of fact could have found from the evidence that appellant cаused serious bodily injury by striking the victim with his hands.
Appellant‘s last contention is that the jury verdict returned did not support the punishment assessed. The indictment included three enhancement paragraphs designated as Counts A, B, and C.1
Enhancement paragraph A alleged that prior to the commission of the present offense appellant had been convicted of rape. Enhancement paragraph B alleged that prior to the commission of the present offense appellant had been сonvicted of perjury. Enhancement paragraph C alleged that appellant‘s final conviction for perjury occurred before appellant committed the rape offense and that the final convictions for perjury and rape occurred before appellant committed the present offense.
(d) If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life, or for any term of not more thаn 99 years or less than 25 years.
The jury verdict on punishment read:
We, the Jury, having found the defendant guilty of Aggrаvated Assault, as charged in the indictment, further find from the evidence beyond a reasonable doubt that he was, prior to the commission of the aforesaid offense of Aggravated Assault, two times duly and legally convicted of a felony less than capital, as charged in the indictment in this case, and, therefore, that the allegations with respect to the prior convictions, as alleged in Count A and Count B of the indictment, are “True“, and we assess his punishment at 38 years confinement in the Texas Department of Corrections.
Appellant argues that
- The Defendant has previously been convicted of two felony offenses;
- The second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final.
It is the appellant‘s position that the jury, by finding “Count A and Count B” of the indictment as true, only found that appellant had been previously convicted of two felony offenses, and did not find that the first previous conviction became final before the commission of the second felony. We agree with appellant that
A verdict should receive a liberal construction, and it is sufficient if the jury‘s intention can be ascertained from the verdict itself, or in connection with the court‘s charge. Ex Parte Brown, 145 Tex. Crim. 39, 165 S.W.2d 718, 720 (1942); Smart v. State, 144 Tex.Crim. 93, 161 S.W. 2d 97, 99 (1942). It is true that the jury verdict read literally only finds that the appellant had been previously convicted of two felonies. However, the charge to the jury stated that if, and only if, the jury found the following facts could the jury assess punishment pursuant to
If we were to agree with appellant‘s contention, then the jury would have been prohibited from assessing punishment under
The judgment is affirmed.
LAGARDE, Justice, concurring.
I wholeheartedly concur in the result reached by the majority. I disagree only with that portion of the majority which states “[i]t is true that the jury verdict read literally only finds that the appellant had been previously convicted of two felonies.” I read the parenthetical “as alleged in Count A and Count B of the indictment” to refer to prior convictions, not allegations. Therefore, leaving out such parenthetical, I read the jury verdict to say “that the allegations with respect to the prior convictions ... are ‘True.‘” Inasmuch as the allegations contained in paragraph C were “with respect to the prior convictions,” I read the verdict to be a finding that all allegations with respect to the prior convictions were found by the jury to be true, including those in paragraph C.
In any event, when the jury verdict is read in light of the charge as a whole, there is no doubt the jury found as true all of the elements required under