VITAL GARCIA, Appellant v. THE STATE OF TEXAS, Appellee
NO. 14-19-00086-CR
Fourteenth Court of Appeals
August 10, 2021
Reversed and Remanded and Majority and Dissenting Opinions filed August 10, 2021. On Appeal from the 179th District Court, Harris County, Texas, Trial Court Cause No. 1533080.
MAJORITY OPINION
Appellant Vital Garcia appeals his conviction for first degree aggravated assault on a family member resulting in serious bodily injury. A jury convicted appellant, and after he pleaded true to an enhancement allegation, the trial court assessed his punishment at 35 years in prison. In two issues, appellant contends that (1) the evidence was insufficient to establish that the complainant suffered serious bodily injury or that she was appellant‘s family member, and (2) the trial
Background
The complainant testified that she was in a dating relationship with appellant. She was 19 when they met, and appellant was “way older.” She said that they were together “[n]o more than a year” and although the relationship was “somewhat” good at the beginning, “it wasn‘t such a great relationship.” They lived in two consecutive apartments together, and when they moved to the second apartment, appellant became physically and verbally abusive.
Complainant said that appellant carried a .40 caliber gun with him “24/7” and threatened that if she cheated on him, he would kill her. On May 25, 2016, appellant left for work and complainant was alone in the apartment. She decided to call “Myrick” and ask him to come to the apartment. She described Myrick as her “weed guy” but acknowledged that they had once dated. Appellant came home from work early that day, while complainant and Myrick were smoking marijuana in the apartment. When appellant entered the apartment, he went straight to the bathroom, and complainant heard a gun being cocked. When appellant exited the bathroom, complainant tried to “get away” and moved toward the kitchen, but appellant shot her through her right thigh. Complainant remained standing after being shot. Appellant then fired shots at Myrick, who threw himself out of the balcony window. Appellant trapped complainant in the kitchen and shot her through her right breast.
Complainant grabbed her keys, phone, and wallet and went to her car, thinking that she could make it to the hospital. She said she did not call 911 because she was in shock. Appellant had also left the apartment, and complainant could hear more gunshots outside. Complainant drove about a block away when she saw police officers and asked them for help. She was bleeding and no longer thought she would make it to the hospital. She said that after she got into the ambulance, she “went out” and did not remember anything after that until she got to the hospital. She did not have to have surgery but said she still had scars on both her breast and her leg. After being shot, she thought she was going to die.
A security guard working for the apartment complex testified that on that day, he saw appellant enter his apartment and then heard multiple gunshots and a woman scream. Appellant then ran down the staircase. The guard chased appellant but eventually lost sight of him. Appellant later returned to the apartment complex during the investigation, was arrested, and showed officers where he had thrown his gun near a fence. One officer testified that Myrick had to be carried from the scene by EMS, and he was bleeding “from multiple areas on his body.” Appellant told officers that he thought the people he shot were trying to steal his property. One of the officers testified, however, that the apartment looked “pretty bare,” there was no sign of forced entry, and he could not tell if someone had tried to take any property.
Dr. Jordan Smith testified that he is the emergency physician who treated complainant when she arrived at the hospital. She suffered two gunshot wounds—one bullet passed through her right breast and the other went through her right thigh. Smith performed a thorough examination of complainant, including using ultrasound and radiology imaging to make sure that she did not have any damage to major organs, a collapsed lung, or rib or femur fractures. He also washed the
Smith also testified that a gunshot wound can cause serious bodily injury and even death, and based on the location of complainant‘s wounds, he believes she sustained serious bodily injury. He described several vital organs in the area of the wounds that if hit, could have led to complainant‘s death. On cross-examination, Smith acknowledged that none of complainant‘s vital organs appeared to have been hit by the bullets and that she was only at the hospital for less than three and a half hours before being discharged. On re-direct, Smith said that complainant was instructed to have the staples removed in ten days and that the procedure typically leaves scarring. Smith was not asked about and did not discuss whether complainant‘s injuries, if left untreated, could have created a substantial risk of death or caused death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
Photographs taken of the crime scene and introduced into evidence showed signs of blood in the apartment, but it is impossible to tell from the photographs how much blood complainant lost. An EMS report admitted into evidence states that complainant was alert and conscious at the scene and her condition did not change during transport.
Complainant‘s medical records, which were also admitted as evidence, showed that she was shot at close range with a handgun. Although the records show that appellant was in pain, they reveal no other form of distress. The laceration on the top of her right breast was 1.5 centimeters long and the laceration on the bottom of her breast was 3 centimeters long. The laceration on the top of her right leg was 4 centimeters, and the laceration on the side of the leg was 2 centimeters. The lacerations were described as “simple” and “deep,” and fragments
Sufficiency of the Evidence
Governing Law. In his first argument under his first issue, appellant contends that the evidence was insufficient to prove that complainant suffered serious bodily injury as a result of appellant shooting her. In assessing the sufficiency of the evidence to support a conviction, we must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational trier of fact could have found the challenged element or elements of the crime beyond a reasonable doubt. See Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014); see also Jackson v. Virginia, 443 U.S. 307, 318–19 (1979). In reviewing historical facts that support conflicting inferences, we presume that the jury resolved any conflicts in the State‘s favor and defer to that resolution. Whatley, 445 S.W.3d at 166. We do not sit as a thirteenth juror and may not substitute our judgment for that of the factfinder by reevaluating the weight and credibility of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). As judge of the credibility of the witnesses, a jury may choose to believe all, some, or none of the testimony presented. Cain v. State, 958 S.W.2d 404, 407 n.5 (Tex. Crim. App. 1997).
The elements of the offense of first-degree aggravated assault on a family member require evidence that the actor used a deadly weapon during the commission of an assault and caused serious bodily injury. See
Analysis. Here, the State failed to present evidence demonstrating that appellant caused complainant to suffer “serious bodily injury,” i.e., that the injuries she sustained created “a substantial risk of death” or caused “death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”
The evidence established that appellant shot complainant twice with a .40 caliber handgun. This was undoubtedly a traumatic experience for complainant and one that caused her bodily injury; however, a gunshot wound is not per se serious bodily injury. Williams v. State, 696 S.W.2d 896, 898 (Tex. Crim. App. 1985). The State was required to present specific evidence regarding the nature of the injuries inflicted. See id. (“The shooting of an individual is a serious and grave matter. Yet, it is the burden of the State to prove that such an act created a substantial risk of death, or caused death, a serious permanent disfigurement, or protracted loss or impairment of the functions of any bodily member or organ.“).
Evidence showed that the two bullets passed through complainant‘s right
Complainant also mentioned that she had scars from the wounds, but she did not describe the scars and the scars were not shown to the jury either in person or in photographs. The simple fact that some scarring occurred is not alone sufficient to support a finding of serious bodily injury. See, e.g., Sizemore v. State, 387 S.W.3d 824, 828 (Tex. App.—Amarillo 2012, pet. ref‘d); see also Wade v. State, 594 S.W.3d 804, 811 (Tex. App.—Austin 2020, pet. granted) (“Rather, ‘[t]here must be evidence of some significant cosmetic deformity caused by the injury.‘“) (quoting Hernandez v. State, 946 S.W.2d 108, 113 (Tex. App.—El Paso 1997, no pet.)). Complainant did not mention any loss or impairment of the function of any bodily member or organ.
Smith, complainant‘s treating physician, stated that he thought her wounds constituted serious bodily injury, but he was not asked about and expressed no opinion regarding the statutory criteria for serious bodily injury. Smith was asked about and discussed the fact that the bullet wounds were close to several vital organs, and he opined that had those organs been hit, complainant could have died. But there was no evidence that any of complainant‘s vital organs were hit or otherwise impacted by the bullets. Indeed, Smith performed tests and was satisfied that no vital organs were impacted. Smith was not asked and did not indicate what would or could have happened with complainant‘s wounds had she not received medical care.
The treatment complainant received at the hospital was relatively brief and nonintrusive. Medical records showed that she was at the hospital for three hours and twenty minutes. Smith described her wounds as “simple” and “deep,” and he cleaned them and closed them with twelve staples. Although fragments of the bullet that entered complainant‘s leg remained in the leg after treatment, there was no evidence that this condition would or could cause any complications. Complainant was released from the hospital with a prescription for pain medication and instructions to have the staples removed in ten days. There was no evidence of any restrictions placed on complainant due to her wounds, much less the loss of any use or function of any bodily member or organ. Complainant was recorded as being “ambulatory” at the scene and when she left the hospital.
In short, there was insufficient evidence to support the jury‘s finding that complainant‘s injuries created “a substantial risk of death” or caused “death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”
Accordingly, the evidence was insufficient to support appellant‘s conviction for aggravated assault on a family member resulting in serious bodily injury. We therefore sustain appellant‘s first issue.
Disposition
Having determined that the evidence was legally insufficient to support appellant‘s conviction for first degree aggravated assault on a family member resulting in serious bodily injury under
When an appellate court determines the evidence is insufficient to support a conviction for a greater-inclusive offense, the court must consider the following two questions when deciding whether to reform the judgment to reflect a conviction for a lesser-included offense: (1) in the course of convicting the
As relevant to this case, a person commits the offense of aggravated assault if the person commits assault causing bodily injury and uses or exhibits a deadly weapon during the commission of the assault. See
In his briefing, appellant only challenges the sufficiency of the evidence as to the elements of serious bodily injury and that complainant was a family member of appellant. Appellant does not contest that the evidence demonstrated he assaulted complainant causing bodily injury and used a deadly weapon during the commission of the assault. See
Conclusion
Because we conclude that the evidence was insufficient to support the jury‘s finding that complainant suffered serious bodily injury but sufficient to support a finding on the elements of aggravated assault, we reverse the trial court‘s judgment and remand the case to the trial court with instructions to reform the judgment to reflect a conviction for the offense of second degree aggravated assault and to conduct a new hearing on punishment.
/s/ Frances Bourliot
Justice
Panel consists of Justices Bourliot, Hassan, and Poissant. (Poissant, J., dissenting).
Publish —