*1 stayed house and he in the house until police arrived. NASH, Appellant, Roderick evidence, Other admitted at tended to support Dietz’s version of the incident. Jones, couple’s
Rebecca neighbor, was The STATE of Texas. the last to party. leave the She testified No. 2-01-038-CR.
to Christine’s drinking and she said Chris- tine passed out on the table when she Texas, Court of Appeals of party. left the Shortly after Jones re- Fort Worth. home, turned to her own Christine rang doorbell, her crying saying defendant Oct. 2003. had hit her. Jones stated that Christine said she did not know what started the Rehearing Overruled Nov. fight or what happened. had Jones said it was “out of character” for defendant to be
violent. Dietz’s mother said that when she couple’s
arrived at the home after the inci-
dent, Christine told her she did not know happened.
what In Christine’s statement
to police, given incident, days two after the
Christine said she did not remember how
the fight started or got how she hit.
Although erroneously excluded evi- relevant,
dence was its exclusion did not
prevent Dietz from presenting the sub- Therefore,
stance his defense. the er-
ror was not of constitutional dimension.
“Exclusions of evidence are unconstitution- they
al if ‘significantly undermine
fundamental elements of the accused’s de- ” fense.’ “That ‘[the defendant] was un- present
able to his case to the extent and
in the form he prejudicial desired is not
where, here, as he prevented was not from
presenting the substance of his defense to
” Potier,
(cita-
jury.’
tions see also Valle v. 506-07 (Tex.Crim.App.2003) same).
(holding Because Dietz’s substan- rights affected,
tial have not been I would
affirm the trial judgment. court’s See Tex.R.App. 103(a); 44.2(b); P.
Tex.R. Evid.
Potier, 68 S.W.Sd *2 Background
II.Factual September On Nash knocked on Alexander Garza’s door. Nash and *3 Garza had been friends for about two years. Nash told Garza that he and anoth- er friend wanted to talk to Garza about business, some so Garza and Nash went outside where Nash’s companion was sit- ting in the driver’s seat of a car parked at got the curb. Garza in the car and sat in the passenger seat.
The driver stated he was “from the old school” and that he wanted to tell something. Garza pulled He then out a small grabbed revolver. Garza gun, and a struggle ensued. When the man yelled head, at Nash to hit Garza pulled Nash Garza out of the car his waist and neck and threw him to the ground. Nash “stomped” then on Garza’s ankle, left breaking the tibia and fibula. Garza went to All Hospital Saints was treated and released. Garza did not Ray, Worth, William H. ‘Bill’ Fort for surgery have evening because he did Appellant. not have pay the insurance to for the Curry, Tim Atty., Dist. Charles M. Mal- procedure. He went County’s to Tarrant lín, Section, Chief Appellate Helena F. John Peter Smith Hospital a week later Faulkner, Whelchel, Lloyd Asst. Dist. At- surgery. for A surgery second was later tys., Loftus, Kelly Atty. Asst. Dist. of Tar- required developed because Garza in- an Worth, rant County, Forth for State. fection. At Garza testified that he
had been unable to walk on his foot for over two months. The charged on both aggravated assault and assault. OPINION Jury III.Referral Selection Magistrate DAY, SAM J. Justice. In point, his first Nash contends
I.Introduction that the trial court erroneously allowed a Appellant Roderick appeals magistrate Nash from to conduct selection in vio his conviction for aggravated assault caus- lation of section 54.656 of the Texas Gov ing bodily serious In injury. points, three ernment Code. Tex. Gov’t Code Ann. 54.656(c) (Vernon 1998) (“A argues he that the trial erroneously court magistrate allowed a to conduct jury may preside merits, selec- over a trial on the tion legally and that the evidence is and whether or not jury.”). the trial is before a factually support insufficient to the verdict. previously This court has held that in twice We affirm. challenge order to trial court’s referral Taylor dire v. 93 S.W.3d magistrate, appellant of voir to a d); have error in the trial ref also preserved pet. must see App.-Texarkana court. See Lemasurier v. 73 n. Anderson 2002, pet. (Tex.App.-Fort Worth nec (Tex.Crim.App.1991) (stating it is not 'd); McKinney ref rule un specify for counsel to essary 'd). (Tex.App.-Fort ref pet. Worth to so but complaining, which he der attorney objected before Although Nash’s clear objection may so that be frame began, objection voir dire the extent of his court). ly understood to the objects “the defendant com- specific grounds Nash’s *4 jury magistrate conducting He selection. conducting against magistrate the plaint Judge asks that Wilson or another district from apparent are the context voir dire judge sit in to voir dire.” place her conduct Nash not nec- objection. of his While court the response, In the trial overruled which or essarily required to state statute “[tjhis motion, that has been stating case of his relying support he was on law to magistrate by referred the district [the] to the objection, required he inform just Any judge jury only. for selection why he entitled trial court he believed was thing else?” no ruling provided Nash requested. to the preserve our complaint To a for why to relief. basis for he was entitled review, party presented must have to the 54.656(c) Furthermore, section because timely request, objection, trial court specifically does not government the code that specific grounds motion states the for that a cannot conduct voir state ruling they the desired if apparent are not dire, magis- that the presume we cannot request, objection, from the of the context might have been aware of the basis trate Tex.R.App. 38.1(a)(1); or motion. P. Mos objection in which the from the context for State, (Tex. 249, ley v. 265 Thus, the made.1 we hold that it was denied, Crim.App.1998) (op. reh’g), on cert. the objection on preserve failed to error 1070, 1466, 526 119 U.S. S.Ct. 143 L.Ed.2d overrule complaint appeal. made on We (1999). objection 550 An to is sufficient point. first Nash’s the preserve appellate error for review if objection communicates to trial court the Sufficiency IV. Evidence wants, why objecting party what the the points, In and third his second objecting party thinks himself or herself is argues legally that the evidence was Nash relief, to manner entitled and does so in a factually to support insufficient enough clear for the court to understand assault because aggravated conviction objection request time when at a bodily no of serious there was evidence something is to position the court in a do sufficiency State, legal In injury. reviewing about it. Lankston v. 827 See conviction, 907, we (Tex.Crim.App.1992); support of the evidence to S.W.2d 908-09 1, 1997) (Tex.App.-San 6 appeals determined S.W.2d Antonio 1. Several courts of have (holding point trial at the same that “trial on the merits” commences "commences” 'd, See, attaches), jeopardy S.W.2d 633 completed. e.g., dire is v. that 979 voir State, Thornton aff Hinojosa (Tex.Crim.App.1998); 875 (Tex.App.-Fort v. 957 156 S.W.2d 1997) (stating (Tex.App.-Corpus Christi trial S.W.2d 342 Worth is considered pet.) (holding jeopardy the merits attaches —when on commence when impaneled procedure commences point under code criminal is is at —because impaneled and “put time is to trial before at the defendant sworn, i.e., (Tex. facts”), jeopardy aff'd, the same time that 986 615 at trier S.W.2d attaches). Crim.App.1999); Carpenter 952 view all the evidence in light most judgment substitute our for that of the fact Johnson, favorable to the verdict in finder’s. order to deter at 12. S.W.3d Con mine sequently, may whether we rational trier of fact find the evidence factu ally necessary could have found insufficient where the essential elements of Johnson, prevent injustice. manifest beyond the crime reasonable doubt. 9, 12; S.W.3d at Cain Virginia, Jackson v. 443 U.S. 404, 407 (Tex.Crim.App.1997). (1979);
S.Ct.
In reviewing the factual suffi
illness,
physical pain,
any impair
means
or
ciency of
support
the evidence to
a convic
physical
ment
of
tion,
condition.
Id.
we are to view all the
evidence
1.07(a)(8).
§
penal
pro
Because the
code
light,
neutral
favoring
party.
neither
vides a
“bodily inju
different definition for
(Tex.Crim.App.2000);
Johnson v.
7
ry” than for
bodily injury,”
“serious
is
922
Clew
Texas Court of
in
Appeals
Criminal
has
S.W.2d
134 (Tex.Crim.App.1996).
structed us in Moore v.
that we
State
must
factually
Evidence is
insufficient if it is so
presume that
Legislature
the Texas
in
clearly
wéak as to be
wrong and manifest
tended that
meaningful
there be a
differ
ly unjust
finding
against
or the adverse
is
ence- or distinction
the two.
between
great weight
preponderance
of the
(Tex.Crim.App.1987).
S.W.2d
Johnson,
available evidence.
at
S.W.3d
injury
Whether an
constitutes serious bod
Therefore,
we must determine wheth
ily injury must be determined
a case-
on
evidence,
er a neutral review of all the
by-case basis. Id. at 352.
against
both for and
finding,
demon
proof
guilt
strates that the
of
is so obvious
In examining the
of
definition
“serious
ly weak
toas
undermine confidence in the
bodily injury,”
explained
the Moore court
proof
verdict or the
of guilt, although ade
that “protracted”
extended, length-
means
quate
alone,
if
greatly
taken
is
outweighed ened, prolonged, or continued.
Id. The
by contrary proof. Id. In performing this
injury in the case before us did not create
review,
give
we are to
due deference to the
a substantial risk of death or cause death
8-9;
fact finder’s determinations.
Id. at
or
permanent
disfigurement.
serious
Clewis,
Thus,
may
S.W.2d at 136. We
not
aggravated
for Nash’s conviction of
stand,
the boot
limp.
must
He still wears
to
the record
reflect will not
assault
or I
enough therapy
do
protracted
because “I don’t
legally sufficient evidence
enough therapy
to
or done
gone
of the
of haven’t
protracted impairment
loss or
use
heal,
I
would
required by
right
things
or
as
bodily
organ,
member
examination,
cross
Garza
imagine.”
On
statute.
Penal
Ann.
Tex.
Code
position
say
not in a
is the
stated that he was
disfigur
22.02. The relevant issue
injury
going
to be” be-
impairing
bodily
long
how
“the
ing
quality
that he could
inflicted, not
cause
not a doctor and
injury as it was
after the
he is
give
diagnosis regarding the
have been
or exacer
a medical
effects
ameliorated
injuries
testify
ankle or
as what
by other actions such as medical
to his
bated
him.
did to
treatment. Brown v.
doctors
1980),
Op.]
(Tex.Crim.App.
[Panel
X-rays with-
also introduced
State
other
grounds,
overruled on
Hedicke
objection
pointed
from which Garza
out
(Tex.Crim.App.
personnel dressed V. Conclusion Garza’s ankle with a half-cast and wrapped McCoy it. testified Having points overruled Nash’s on ap- “[tjhey if get surgery said he didn’t peal, affirm we the trial court’s judgment. within days, the next two it would start healing they on its own and will have to LIVINGSTON, J. a concurring filed rebreak it.” The record contains no evi- opinion. “they” dence of who are. Garza had sur- DAUPHINOT, J. a dissenting filed gery at McCoy least a week later. testi- opinion. fied that after surgery, the first Garza’s ankle became infected and a second sur- CAYCE, C.J.; GARDNER and gery required. WALKER, only. JJ. concur result injury to Garza’s ankle was not LIVINGSTON, Justice, TERRIE shown to have created a substantial risk of concurring. death or permanent serious disfigurement. I agree disposition While with the shows, however, The evidence that Garza case I majority, separately write attack; could not walk or stand after the because I believe 54.656 of he had at least section surgery one at- Texas prohibit tack Government Code does not injuries because of the he sustained in attack; rod, conducting jury from plate, he had a selec and some 54.656(c) pins implanted tion. Tex. during his ankle the first Gov’t Code Ann. 1998) (“A (Vernon surgery; magistrate may he put weight pre could not on his not merits, surgery; left foot after his first side over a trial on another whether or surgery necessary an jury.”) because infec- is before a (emphasis added). developed; tion after his second surgery, prior opinions Neither of our re he had to put have cast on and use lated to this issue have ever reached the *7 crutches to walk for an unspecified length magistrate’s conclusion that the act pro time; he could not return magistrate to work for hibits a conducting from voir two and a half months and had to use dire part because it is of the “trial on the crutches to walk State, when he returned to merits.” See Lemasurier 91 work; currently and he uses a boot to walk (Tex.App.-Fort S.W.3d 900 Worth limp. Applying ref'd); because of a proper pet. the McKinney v. 880 review, standard of we hold that the evi- (Tex.App.-Fort S.W.2d 870 Worth ref'd). legally pet. cases, dence was sufficient to demonstrate In both the appel protracted bodily impairment loss or of a lants preserve they failed to error because member; thus, legally objection, the evidence was had failed to lodge an so bodily injury. sufficient to show serious issue was not before us either case. Furthermore, Lemasurier, we do not believe 900; the evi- 91 McKinney, S.W.3d at clearly dence is so weak as to be wrong 880 majority S.W.2d 870. The here manifestly unjust or the adverse find- concludes that appellant’s objection ing against great weight is and prepon- preserve insufficient to Majority error. derance of the available Op. evidence. Conse- at 537. I believe the record shows first, Although Garza testified that Joseph's he went to All went to St. but she was "not first, McCoy positive.” Saints testified that she he thinks sworn, empaneled is clearly preserved error the time appellant 1.e., jeopardy time attaches— objection at the same timely and sufficient was—it 28.10); article see also interpreting objecting clear he was to Tex. 1.14(b), 3.04, PROC. Am arts. asking a dis Code CRiM. conducting voir dire and was (Vernon There Thus, Supp.2003). 1989 & I 28.10 judge trict to handle voir dire. fore, that voir dire is not I would hold squarely the issue is before us and believe merits” for of the “trial on the portion should be addressed. act and that magistrate’s of the purposes majority, noted several courts As allowing trial court did not err have determined that “trial on the merits” it. magistrate to conduct completed. commences voir dire is many compelling Although I can see See, Turner, e.g., State trial court prefer we would reasons (holding that if (Tex.Crim.App.1995) hear the “trial on the mer- judge who will object defendant fails to to a defect dire, during voir I do not believe its” sit on which the indictment before the date reason, requires the statute this. For this commences, trial on the merits he waives respectfully I concur. object right and forfeits the to the de 1.14(b) interpreting article fect— Justice, DAUPHINOT, procedure), code of criminal overruled on LEE ANN grounds, dissenting. other Proctor v. (Tex.Crim.App.1998);
S.W.2d
Thorn
ton v.
S.W.2d
I.
1997)
App.-Fort
(concluding
Worth
that a
majori-
I
dissent from the
respectfully
trial
jeop
is considered to commence when
ty’s holding
Appellant
pre-
failed to
attaches, i.e.,
ardy
empaneled
when
magistrate’s
to the
complaint
serve his
it is at that point
because
that defendant is
majority
As
con-
conducting voir dire.
“put to
before the trier of facts”—
cedes,
timely objection
Appellant made
3.04(a)
interpreting
penal
section
magistrate’s conducting
to the
voir dire
code,
sever),
aff'd,
when
states, squarely this “issue is before us Bail raised Prieto Bonds its Because should be addressed.”4 quali- complaint Judge about Woodard’s level, required as fications
II. under [v. Wilson years ago, Texas Two Court ], (Tex.Crim.App.1998) we need not held, Appeals Criminal question of his ac- reach the whether wholly in this case done with- tions were may jurisdiction to trial court have [a] void, authority, are or were out and thus case, authority lack to act yet act over a infirm, simply procedurally and there- manner over particular a merely fore voidable. Under either authority Lack of to act case.... analysis, we must reverse. But we feel may judg- render the particular manner the Court of bound to observe depending ment either void or voidable in a Appeals has held similar Criminal error, however. Un- type on the situation, mu- involving “alternative” an (or errors) can char- authorized acts be taken the judge who had never nicipal “illegal” “irregu- either acterized as office, taking that: oaths of “without “Illegal lar.” ... acts” are defined as by prescribed the oath the Constitu- by authorized law.” “acts that are not cannot tion of this one become hand, “irregular ... acts” On the other jure judge, or de facto either de practices that are defined as “acts or void.”6 his acts as such are an ac- vary from the normal conduct of “ merely judgment tion.” ... While ‘may particular A trial court take for irregularity,” is “void “voidable if that action is authorized action illegality.”5 or common provision, constitutional statute law, an inherent or power or the rises from court in El Paso has ad- Our sister ”7 Appel- At time of implied power.’ vs. voidable issue dressed void that a Tarrant Coun- lant’s the duties assigned visiting judge context of an whose magis- refer to a ty might properly court expired judg- oath had before he issued in section expressly were delineated trate ment nisi: code. That sec- government 54.656 of the Judge required Because Woodard provided: tion oaths, did the constitutional but take (a) to a so, judge may A refer judicial actions taken not do all involv- proceedings criminal case for were without au- him in the case below Ater, Indus., ing: Inc. thority. Star [Lone reh'g)); (Tex.Crim.App.1977) (op. on 2nd see Concurring Op. at 540-41. *9 555, State, (Tex. Davis v. 956 S.W.2d 559 also
4. Id. State, S.W.2d Crim.App.1997); Fain v. 986 1998, 666, pet. (Tex.App.-Austin 675-76 Seidel, 221, (Tex. 224 parte 39 S.W.3d 5. Ex ref'd). (citations omitted). Crim.App.2001) Seidel, (quoting v. State, 316, at 223 State 7. 39 S.W.3d 6. Bail Bonds v. 994 Prieto Johnson, 609, 1999, ref'd) (Tex.Crim.App. 612 (quot 821 S.W.2d pet. (Tex.App.-El Paso 321 State, 934, 1991)). ing French v. 572 S.W.2d selection, (1) jury apply to negotiated plea guilty a before Rules of Evidence part an of a jury integral that is court; selection case.11 merits in a criminal trial on the (2) forfeiture; a bond stand precedent does not This court’s (3) motion; pretrial a Proce- The Texas Code of Criminal alone. (4) postconviction a writ of habeas jury part selection is dure assumes corpus; in provides, merits when it trial on the (5) trial; examining an 33.03, felony in a article that defendant (6) license; occupational an driver’s personally present prosecution “must be trial,” although may proceed “the trial (7) judge consid- any other matter the vol- its conclusion” “when the defendant necessary proper.8 ers jury ... after the untarily absents himself further has selected.”12 Article 33.03 been provided magistrate It also that “[a] “[wjhen the record in the provides that may accept plea guilty for a misde- shows that the defendant appellate court charged meanor from defendant with commencement, present at the felony both misdemeanor and offenses.”9 presumed it portion of the shall be Finally, provided “[a] all evidence in the record to the absence of merits, may preside not over a trial on the during contrary present that he was jury.”10 trial whether or not the is before a the whole trial.”13 concurring argues The opinion Similarly, the Texas Court of Criminal there a distinction and a is between right Appeals has held that defendant’s proposition trial on the merits. This at trial is not waivable until present to be case, In may correct. one criminal there jury has been selected.14 jury competence be a trial on to stand parties when the turn jury is “selected” trial. may examining There be an trial. lists, jury indicating perempto- their their may There a trial be on the merits to day the trial on the ry strikes.15 The guilt. determine The State and the con- traditionally commences has been merits curring opinion argue also selec- day jury begins.16 selection considered part tion is not of the trial on the merits. court, however, This does held Watson v. To hold that the trial on the merits State, attaches, begin jeopardy when we determined that the until which is Texas 65, (Tex. 54.656(a) (Vernon § 8. Tex. Gov’t Code Ann. 11. v. 917 S.W.2d Watson 1996, ref'd). Supp.2003). App.-Fort pet. Worth 30, 1987, R.S., (Ver- April Leg., 9. Act of 70th ch. Code Crim. Proc. Ann. art. 33.03 12. Tex 81, 1, 188, 1989). § 1987 Tex. Gen. Laws amended non 16, 2003, R.S., May Leg., Act of 78th ch. 910, 2, 2738, § Gen. 2739. Tex. Laws 13. Id. 30, R.S., 1987, 88, April Leg., 10. Act of 70th ch. 14. Miller v. 81, 1, 188, § Crim.App.1985). 1987 Tex. Gen. Laws amended R.S., 16, 2003, May Leg., Act of 78th ch. 2, 2738, § 2739. 2003 Tex. Gen. Laws Id. at 93. R.S., May Leg., See also Act of 78th See, e.g., Sodipo Laws ch. 2003 Tex. Gen. 54.658(a)(14) (Tex.Crim.App.1990); (amending gov- 552-53 Williams section mag- (Tex.App.-Houston code to add selection to a ernment pet.). powers). [14th Dist.] istrate's *10 selection,17 grants the court one motion and denies jury deepen would the other, in quagmire already subsequently proceeding we find ourselves with with scenario, In quash. to de- swearing impaneling jury motions and of the quash fendant could hold his motion to day, granted the same motion bewill until after each side had indictment sub- timely appeal for purposes, considered jury long mitted its strike list so as motion consid- but the denied would be following on the was seated sworn I untimely ered and thus waived. do trial, if day.18 capital In a murder the trial intending not read the code as such con- begin jeopardy on the merits did not until from identical trasting stemming results attached, could a criminal defendant wait actions.19 juror had until the last and alternate been party setting is notified of the When quash urge chosen to his motion to be- merits, party date for the trial on the jury usually cause the is sworn on some jury begins. of the date selection is notified day after the end of voir dire. Texas granted a motion for new trial is When give to Legislature cannot have intended for a new trial on the a case is remanded generous criminal defendant such merits, perforce the trial on the merits sandbag to the State. opportunity jury previ- selection. As we have includes Additionally, of the timeliness of instead stated, ously jury integral selection is an quash being by determined the motion jury trial.20 In a part jury of the filed, in- it is its timeliness would when the trial on the merits commences can date thereon, by ruling determined stead be the date both sides announce be jury long as as it was filed before the was begin jury ready for trial and selection. granted quash A motion to would sworn. close of the evidence in speak We of the jury timely deemed if filed before the be Thus, the the trial on the merits.21 hear- sworn because the trial would never ing step of evidence is but one the trial action; motion commence denied on the merits. quash untimely simply deemed would be swearing jury the trial court’s rationale, on the the ver- Based above ordering plea the defendant to enter his on 54.656(c) government sion section day. the same code that force at the time of from the Dallas prohibited
As Justice James
Court
the Tarrant
Appellant’s
joined
Fitzgerald
Appeals,
County
referring Appel-
Justice
from
trial court
Richter,
slight-
has stated in a
and Justice
selec-
lant’s case to
context,
ly different
integral
selection is an
tion because
jury trial on the merits. No
part of a
in a situation
example may
An
be seen
statutory
provision
other
or constitutional
charged
under two
where a defendant
54.656(c) prohibited
allowed what section
charging instruments
and moves
time, nor
the district court have
charging instruments.
If
at that
did
quash both
05-02-717-CR,
Bretz,
28, 47,
Sanchez,
19.
No.
See Crist v.
437 U.S.
98 S.Ct.
State
17.
-
-
*10,
-,
S.W.3d
(1978);
WL
parte
Ex
57 L.Ed.2d
10, 2003, pet. granted).
(Tex.App.-Dallas Apr.
Little,
(Tex.Crim.App.1994)
(both holding
jeopardy attaches when
Watson,
546
simultaneously pre-
duly
judge
elected
and
void.32
any ensuing
should its asser-
error
serves
Seidel, Gambling
in
Like the
courts
ignored.
tion be
Dean,
Paraphernalia,
and
the district
in
case acted without au-
Appellant’s
court
in Tarrant Coun-
In a criminal case tried
magis-
in
to a
thority
referring this case
1, 2003,
governing
the
ty
September
before
jury
trate for
selection. Like those courts
magistrate
denied the
specifically
statutes
French,
in
the
municipal judge
and the
Jury
trials.35
authority
jury
to conduct
the
in
never
Appellant’s
district court
case was
jury tri-
part of a
integral
selection is an
authorized under
constitutional
jurisdiction
had
al.36
the trial court
While
it
to take the actions
statutory provision
selection,
authority to
it had no
jury
over
authorized to refer the
took—it was never
magistrate, and
jury
to the
refer
selection
duty
jury
magistrate.
of
to a
selection
authority to conduct
no
magistrate
the
had
Seidel,
Also,
magistrates
the
Gam-
like
objection, Appel-
timely
By voicing
it.
Dean,
mag-
bling Paraphernalia,
and
the
duly
to
the
right
his
have
lant asserted
quali-
was never
Appellant’s
istrate
case
jury
over the
judge preside
elected district
constitution or statutes to
fied
the
under
the trial and simulta-
portion
selection
of
took; he
never
take the actions he
was
error
the trial court’s
neously preserved
qualified
jury
to conduct
selection.
the
and
Seidel
for our review.37 Under
authority
analogous
A
magistrate’s
governing portions
clear mandate of the
in a civil
In a
visiting judge
that of a
case.
code,
arewe
government
54
chapter
case,
objection to
civil
if there is no
rul-
and
that the orders
obligated to hold
by visiting judge, the
being
case’s
heard
conducting
ings of the
visiting judge have the same
actions of the
that convict-
selection are void.38
of the elected
force and effect as those
jury,
thus a void
Appellant
ed
party lodges
timely
If
judge.33
either
void,
judg-
and
verdict it delivered is
objection
visiting judge’s hearing
to the
This
is void.
ment based on that verdict
case, however,
visiting judge is
point.
first
Appellant’s
court should sustain
automatically disqualified, and all actions
subse-
visiting judge
and orders of the
III.
objection are void.34 What
quent to the
complained
Appellant has also
visiting judge’s actions subse-
voids the
support
insufficient
legally
evidence is
objection
objection
itself.
quent is the
assault be-
aggravated
conviction
completes
Through
objection,
party
its
serious
no evidence of
to a
cause there
necessary
right
to assert its
steps
R.S.,
30, 1987,
Leg.,
ch.
70th
April
35. Act of
Id. at 687.
188, 189,
81,
1,§
Laws
1987 Tex. Gen.
Chandler,
367,
33. See Chandler v.
991 S.W.2d
2003,
16,
Leg.,
May
78th
by Act of
amended
1999,
denied),
pet.
(Tex.App.-El
cert.
383
Paso
R.S.,
910,
Gen. Laws
§§
2003 Tex.
ch.
1557,
denied,
S.Ct.
146
529 U.S.
120
(to
at Tex.
be codified
Gov’t Code
(2000); Holstein v. Fed. Debt
L.Ed.2d 462
54.658(a)(14)).
54.656(c)
§§
Ann.
Inc.,
(Tex.App.
Mgmt.,
902 S.W.2d
1995, writ).
[1st Dist.]
Houston
Watson,
at 67.
917 S.W.2d
(Vernon
74.053
34. Tex. Gov’t
Code Ann.
Canales,
1998);
In re
37. See
33.1(a).
Tex.R.App.
P.
McNeal,
(Tex.2001);
Golden
(Tex.App.-Houston
Dist.]
[14th
Seidel,
S.W.3d at 225.
38. See
Cuban,
denied);
pet.
In re
2000, orig. proceeding).
(Tex.App.-Dallas
is the
The relevant
issue
bodily injury.39
bodily injury
Serious
statute.45
impairing quality
disfiguring
bodily injury that creates a sub-
means
inflicted,
bodily injury as was
death,
or that causes
stantial risk
death
*13
or exac-
the effects have been ameliorated
disfigurement,
pro-
or
permanent
serious
actions such as medical
erbated
other
impairment
tracted loss or
function
treatment.46
bodily
Bodily
any
organ.40
of
member or
illness,
injury
physical pain,
or
means
for an in-
Appellant
At
moved
impairment
physical
condition.41 Be-
that
structed verdict on the basis
the State
provides
different
penal
cause the
code
bodily injury.
prove
had failed to
serious
“bodily injury”
definition for
than for “seri-
court’s
Appellant pointed to the Moore
“protracted.”47
of the term
bodily injury,”
explanation
ous
the Texas Court of
expert
medical testi-
The State offered
Appeals has instructed us in
Criminal
causation,
im-
degree of loss or
mony of
presume
Moore v. State that we must
ankle,
the function of the
or
pairment of
Legislature
the Texas
that there
intended
prognosis. Medical records admitted as
meaningful difference
be a
or distinction
exclu-
Defendant’s Exhibit Two consisted
injury
between the two.42
an
Whether
The
sively
emergency
reports.
room
bodily injury
constitutes serious
must be
injury
nondisplaced
was described as “a
a case-by-case
determined on
basis.43
mini-
distal fibular fracture. There is a
In examining the definition of “serious
mally displaced medial malleolar fracture.
bodily injury,”
explained
the Moore court
appears
Ankle mortise
intact. There is
extended,
“protracted”
length-
means
joint
Severity
pain
effusion.”
was de-
ened, prolonged,
inju-
or continued.44 The
as moderate.
scribed
ry in the case before
us did not create
testimony concerning the ex-
only
The
substantial risk of death or
cause death
injuries
prognosis
tent of Garza’s
or his
Thus,
permanent
serious
disfigurement.
testified:
was that of Garza himself. Garza
Appellant’s
aggravated
conviction of
(cid:127)
leg
were
both bones
his lower
stand,
assault to
the record
reflect
must
attack;
stomping
broken
legally sufficient
protracted
evidence of
(cid:127)
protracted
loss or
impairment of the use of
subsequent
about the
infection
bodily
organ,
surgery;
member or
required
operation
as
site and his additional
347,
(Tex.
(Vernon
349
Proc. Ann. art. 1.11
42. Moore v.
739
39. Tex.Code Crim.
1977);
558,
v.
Crim.App.1987).
560
Munoz
States,
(Tex.Crim.App.1993); Burks v. United
1, 16-18,
2141, 2150-51,
437 U.S.
98 S.Ct.
43.
Id. at 352.
(1978);
Massey,
L.Ed.2d 1
Greene v.
437 U.S.
19, 24-25,
2151, 2154-55,
98 S.Ct.
44.
Id.
(1978);
L.Ed.2d 15
see
North Carolina
Pearce,
395 U.S.
89 S.Ct.
(Vernon
§
45. Tex. Penal Code Ann.
22.02
(1969) (holding
work; months. (cid:127) emergency room record indicates a nurse hospital that at the he talked to leg minor fractures. Garza’s “they”
and that told him it would take six given drug crutches and a splinted, he was year leg complete- months for his pain for the moderate he suf- prescription heal; ly fered, and he was sent home. The written (cid:127) position say that he was not in a how hospital specifically from the instructions long injury going “the to be” because had follow-up state that no definite visits doctor; *14 he is not a instructions, which been scheduled. The (cid:127) any questions that he could not answer sign, typi- did also that “[t]he Garza state the doc- about his ankle or about what requires only protection cal broken bone him; tors did healing.... The and sufficient time (cid:127) rod, plate, pins that a and some had depends time on the location and length of implanted during been in his ankle fracture, age type of and on surgery; plan physician patient. The treatment your customized to you has outlined for (cid:127) is removed; plate that the had been and health condition.” Whatever fracture (cid:127) had that he had been told the bone was, plan it did the customized treatment using that be healed and he would a return specific not include a date for crutches; walking boot without that no follow- visit. Garza was instructed (cid:127) that walking that he wore a boot so he that he had been scheduled but up visits limp; not and would DOC- WITH [HIS] should “FOLLOW-UP (cid:127) “I that he still wore the boot because hospi- left the TOR IN 2-3 DAYS.” Garza I haven’t enough therapy don’t do or remaining emergen- signing tal before gone enough therapy right or done the room cy documents. heal, I things imagine.” for it to would had a Although Garza testified he still X-rays from which The State introduced no evidence limp, little bit of a there was fractures, the subse- pointed Garza out the was the limp the cause of the whether surgery, the location of metal quent and ankle, his the infection minor fracture of plates. something surgery, that resulted Nothing in the record totally different. fiancée, McCoy, testified Garza’s Glenda surgery the first shows whether Joseph’s that to St. she went with Garza delay in seek- injury, Garza’s result of the for the initial treatment. He was Hospital treatment, and or some other new ing ambulance, in an and she followed taken was able independent cause. Garza emergency personnel room her car. The work, there was evidence a half-cast and dressed Garza’s ankle with restricted, no medi- were his activities McCoy “[t]hey it. testified that wrapped or medical records indicated testimony cal if within the get surgery said that he didn’t of the use impairment loss or protracted on its days, healing next two it would start out, ankle. judge pointed As the trial it.” they have to rebreak w[ould] own into the courtroom. Garza walked of who The record contains no evidence injury ankle was to Garza’s surgery had at least “they” were. Garza risk of to have created substantial McCoy that after the shown later. testified week disfigurement. permanent infect- death or serious surgery, first Garza’s ankle became Moore, can find evidence we required. As surgery and a second ed jury’s implicit in the record to support
finding Appellant caused the com-
plainant bodily injury serious is Garza’s testimony,
speculative with no medical ba-
sis, emergency and the room record that only bodily injury.
described Because the legally support
evidence is insufficient to
finding bodily injury, of serious we should judgment
reform the to reflect a conviction
for the included lesser offense assault.48 majority
Because fails to address the
merits of Appellant’s complaint
magistrate conducted voir dire and be- majority
cause the holds that the evidence legally support Appellant’s sufficient to *15 assault, aggravated
conviction for I re-
spectfully dissent.
In re MERRILL LYNCH TRUST FSB, Henry Medina,
COMPANY Group.
and Medina & Medina
No. 04-03-00424-CV. Texas, Appeals
Court of
San Antonio.
Oct. 2002); slip op.
48. Herrín v. No. at 14— Collier v. *5-6,-S.W.3d 1999). 2002 WL (Tex.Crim.App. ---- -, (Tex.Crim.App. Dec.