                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-13-00221-CR


JUAN BLEA                                                       APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


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         FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
                   TRIAL COURT NO. F-2011-0993-D

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                       MEMORANDUM OPINION 1

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     A jury convicted Appellant Juan Blea of first-degree felony aggravated

assault of a family member. 2 The jury assessed his punishment at five years’

confinement, and the trial court sentenced him accordingly.     That offense


     1
      See Tex. R. App. P. 47.4.
     2
      See Tex. Penal Code Ann. § 22.02(b)(1) (West 2011).
requires both serious bodily injury and the use of a deadly weapon. 3 In this case,

the indictment alleged that Appellant’s hand was a deadly weapon. Appellant

brings a single issue on appeal, challenging the sufficiency of the evidence that

he caused the complainant serious bodily injury rather than bodily injury as well

as the sufficiency of the evidence that he used his hand as a deadly weapon.

Because the evidence is insufficient to show that Appellant caused serious bodily

injury but sufficient to show that he used his hand as a deadly weapon, we

reverse the trial court’s judgment and remand this case to the trial court with

instructions (1) to modify the judgment to delete the conviction for first-degree

felony aggravated assault of a family member and to instead reflect a conviction

for second-degree felony aggravated assault of a family member, based on

Appellant’s use of a deadly weapon, and (2) to conduct a new trial on

punishment for the second-degree felony. 4

Brief Summary of the Facts

         On the date of the offense, July 21, 2010, the complainant and Appellant

had a small daughter and shared a bedroom in his parents’ apartment. While

Appellant and complainant were not married, they did marry about two years

later.



         3
         Id.
         4
         See id. § 22.02(a)(2)–(b).



                                         2
      A couple of weeks before the assault, Appellant had separated from the

complainant and moved in with a friend. On July 20, the complainant spent time

with a male friend from school.      At trial, she did not remember whether she

returned home late that night or the next morning.            Appellant visited the

apartment that the complainant shared with his parents between 10:00 a.m. and

noon on July 21 and was in a good mood.              But he saw a hickey on the

complainant’s neck, and when she refused to tell him “where it was from,” he

became angry. When she finally told him “who [the hickey] was from,” he hit her

in the face with his hand.     They were in the kitchen.          At trial, she did not

remember whether his hand was open or in a fist.             In her testimony, the

complainant denied falling, but in her written statement, she had said that she

had fallen. She admitted in her testimony that in her written statement, she had

said that Appellant had told her that he was going to kill her.

      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 was, the complainant corrected him, stating, “[A]fter he first

hit me, she started getting fussy. I told him to leave 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 and put her to bed in the

bedroom, the couple began 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 and

his open hand. She said that he might have kicked her with his foot and also


                                          3
testified that she had been in a lot of pain after the assault. The prosecutor

reminded her that in her written statement, she had said that she was in a “ton” of

pain. The pain was in her back and her chest. The prosecutor asked, “Did you

feel like something had been broken or terribly injured 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 needed to go buy diapers.        Appellant left the

apartment and returned with the diapers. The complainant did not call the police

while he was gone.      When the prosecutor asked her why, she responded,

“Because I didn’t want to.” She said that she had been scared and had not

known how Appellant would act, and she had not wanted anyone to know what

had happened.      When Appellant returned, he and the complainant argued

verbally. The prosecutor asked her whether it was evident that she was in pain.

She testified that the pain had not set in yet and that she did not tell Appellant

that she was in pain.

      After Appellant left, the complainant lay down with their daughter, took a

bath, cleaned up, and then called Appellant’s parents and asked them to come

home from work, stating that she had fallen down the stairs. After Appellant’s

parents saw her, his father called the police.

      Officer Tim Adamo, who had been a police officer for twenty-three years by

the time of trial, called for an ambulance after he arrived at the apartment. He

described the complainant’s injuries:


                                         4
              The first time I contacted her, she had visible injuries. I could
      see scrapes, lacerations on her face. She had her—under her left
      eye was bruised and had a cut on it. I saw a mark on her arm, as
      well, like a redness and early set of bruising.

              ....

              She was on the couch in the front room.

              ....

           . . . [. S]he was in quite a bit of pain. She was, like, with one
      arm holding her ribs, her chest, her stomach area.

              ....

              . . . . She said she had a hard time breathing, had a lot of
      pain.

              ....

            . . . . I was trying to get a statement from her, an affidavit, but
      she had a lot of difficulty writing the statement.

            She tried to get up from the couch at one point and she fell
      back to the couch in pain and that’s when I called for a medic.

Sufficiency of the Evidence

      Appellant contends that the evidence is insufficient to show that (1) he

caused serious bodily injury and (2) his hand was used as a deadly weapon. In

our due-process review of the sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the verdict to determine




                                         5
whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. 5 Section 22.02 of the penal code provides,

      (a) A person commits an offense if the person commits assault as
      defined in § 22.01 and the person:

            (1) causes serious bodily injury to another, including the
      person’s spouse; or

            (2) uses or exhibits a deadly weapon during the commission of
      the assault.

      (b) An offense under this section is a felony of the second degree,
      except that the offense is a felony of the first degree if:

             (1) the actor uses a deadly weapon during the commission of
      the assault and causes serious bodily injury to a person whose
      relationship to or association with the defendant is described by
      Section 71.0021(b), 71.003, or 71.005, Family Code[.] 6

Section 22.01 provides,

      (a) A person commits an offense if the person:

            (1) intentionally, knowingly, or recklessly causes bodily injury
      to another . . . ;

            ....

      (b) An offense under         Subsection    (a)(1)   is   a   Class   A
      misdemeanor . . . . 7




      5
      Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).
      6
       Tex. Penal Code Ann. § 22.02(a)–(b).
      7
       Id. § 22.01 (West Supp. 2014).



                                        6
       “Bodily injury” is defined as “physical pain, illness or any impairment of

physical condition.” 8     “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.” 9 The Texas Court of Criminal Appeals has explained that

       [b]y virtue of the fact that the Penal Code provides a different
       definition for “bodily injury” from “serious bodily injury”, though often
       a matter of degree, we must presume that the Legislature intended
       that there be a meaningful difference or distinction between “bodily
       injury” and “serious bodily injury.” Understandably, this means that
       where the issue is raised, the issue must be determined on an ad
       hoc basis. 10

And our sister court in El Paso has explained that

       bodily injury cannot be elevated to serious bodily injury by
       postulating potential complications which are not in evidence. The
       [S]tate must present evidence that the [complainant] suffered bodily
       injury that created a substantial risk of death. In other words, the
       [S]tate must present relevant and probative evidence from which the
       trier of fact could infer beyond a reasonable doubt that the injury
       itself created an appreciable risk of death. 11

       The complainant’s mother, Jennifer, saw her in the hospital.           Jennifer

testified that she noticed only the bruising and redness of her daughter’s right

eye.   At trial, Jennifer did not remember whether her daughter had had any
       8
       Id. § 1.07(a)(8).
       9
       Id. § 1.07(a)(46).
       10
           Moore v. State, 739 S.W.2d 347, 349 (Tex. Crim. App. 1987).
       11
          Hernandez v. State, 946 S.W.2d 108, 112 (Tex. App.—El Paso 1997, no
pet.) (citations and internal quotation marks omitted).



                                           7
trouble breathing.       Jennifer did take photographs of the complainant over a

period of time, and the photographs revealed developing bruising over her face

and body. Although Jennifer testified on direct examination that the complainant

was unable to walk in the hospital and for a month afterward, on cross-

examination, she admitted that the complainant could stand and walk even while

still in the hospital.

       The complainant did not work at her waitressing job for a month after the

assault. When she returned, she switched from waitressing to acting as hostess.

Jennifer testified that the job change occurred because the doctor had told the

complainant not to lift more than twenty-five pounds. The complainant, however,

testified,

       Q      Did you resume your duties as a waitress?

       A      I decided to be a host.

       Q      Why is that?

       A      Just so I didn’t have to deal with a lot of people. I didn’t want
              to go back to doing waitressing just yet.

       Q      Because you didn’t want to interact with people?

       A      That, and everybody at Champps kind of knew what
              happened, kind of the regulars. That was just kind of my way
              of avoiding everybody.

She also testified,

       Q      You don’t really want to be here, do you?

       A      No.




                                          8
      Q      Now, when you were taken to the hospital, were you ever in
             the ICU, or do you know?

      A      Not that I know of.

      Q      Just in a regular room?

      A      Yes.

      Q      Do you have any serious permanent disfigurement as a result
             of this incident?

      A      No.

      Q      As a result of this incident, did you have a protracted loss of
             the use of any bodily member or organ?

      A      No.

      Q      Have you fully recovered?

      A      Yes.

      Q      Were you able to get up and be out and about some the week
             after that?

      A      The week after the hospital?

      Q      Yeah, after they let you go home.

      A      Yeah.

      Q      Okay. I mean, you could get up and go do something, right?

      A      Yeah, yeah.

      In response to the prosecutor’s asking her the meaning of “protracted loss

or impairment of the function of any bodily member or organ,” the complainant

said that she did not know a specific definition, but that she “probably would

know that” and “if [she] did have that, wouldn’t a doctor tell [her]?”




                                          9
      The trial court admitted State’s Exhibits 18 and 19, hospital records, but

after reconsideration, withdrew the exhibits.    The court reporter erroneously

included those two exhibits in the record, but both the State and Appellant

conscientiously asked this court not to consider those exhibits because they were

never before the jury. We granted their request and have not considered those

exhibits.

      The complainant’s injuries included two fractured ribs and a fractured

maxillary sinus bone.    She was kept in the hospital for four days and then

“medically cleared for discharge.” Kristie Brown, a nurse practitioner at Parkland

Hospital, testified concerning the complainant’s medical treatment.        Brown

testified that the complainant had a collapsed lung, but it had already been

treated when Brown met the complainant the morning after her admission to the

hospital. Brown explained that a person with a collapsed lung “can have trouble

breathing, and it can affect blood pressure, vital signs that [medical

professionals] look at.” Although the complainant had testified that “they said my

liver was lacerated, or something,” no other evidence of a lacerated liver was

presented to the jury.    Brown did testify that there was an injury to the

complainant’s liver and an injury in her chest. Brown admitted that she was

repeating the radiologist’s opinion, and the trial court sustained Appellant’s

objection to her testifying about anything somebody else did. But the trial court

did not instruct the jury to disregard.     Brown testified that she checked for

peritonitis or other problems caused by a liver injury; none was discovered.


                                       10
There was no evidence that any injury to the complainant’s liver was a serious

bodily injury. 12 The following exchange occurred:

      Q     So at all times, her liver was functioning and doing what it was
            supposed to be doing?

      A     Yes, sir.

      Q     And—all right.    Same with her lungs?        I mean, she could
            breathe, right?

      A     Yes, sir, she was breathing.

      Q     And I assume you tested her blood for oxygen level?

      A     Yes, sir.

      Q     And I guess her blood was—her lungs were working like they
            were supposed to?

      A     Yes, sir.

      Q     I mean, they were providing enough oxygen to her?

      A     Yes, sir.

      Q     Now, on the broken ribs, what treatment was given to her for
            the broken ribs?

      A     Pain medication and respiratory, what we call incentive
            spirometry, just deep-breathing exercises, and pain
            medication.

      Q     When we hear broken ribs, we think of something sticking
            through the skin, something like that.

                  The rib was, I guess, still intact, for want of better words,
            but there was a fracture in it?



      12
         See id. at 111–13 (holding that a 1-centimeter laceration of the liver was
unlikely to cause death and not serious bodily injury).



                                        11
      A      There was a fracture in it. What alignment it had, I would have
             to review the chest x-ray. I don’t remember.

      Q      In any event, there was nothing done to tape her up or set any
             fractures or have any surgery regarding the ribs?

      A      That is correct.

      Q      Okay. And would the same be true of the maxillary sinus?

      A      That’s correct. Due to the swelling, they saw her—we
             recommended that she be seen in clinic after she was
             discharged home from the hospital.

      Q      But no surgery or any procedures were done to repair that
             damage?

      A      That’s correct.

      Q      It just healed on its own?

      A      That is correct.

      The only evidence that the complainant could have suffered serious bodily

injury arose from the State’s inquiry whether “any injury to the liver [is] treated

seriously or minimally” by Brown’s “profession.” She replied that they are treated

seriously because

      [i]njuries to the liver can cause a patient to bleed to death very
      quickly. Knowing that there is an injury to the liver and why it is and
      whether it is actively bleeding or has developed a blood clot to the
      liver makes a decision point for what the surgeons do and what we
      do for the patient.

But there was no evidence that the complainant suffered from such a condition.

      The prosecutor then asked whether “lungs [are] treated seriously or

minorly.”   Brown replied, “Seriously.”    When asked to explain why lungs are

treated seriously, she replied, “Because if we can’t control our oxygenation, we



                                          12
need oxygen to live, and you can die from that.” But Brown did not testify that

the complainant suffered from such a condition. No one did. Indeed, Brown

monitored the complainant to determine whether a substantial risk of death or

any risk of death developed from any injury, and it did not.

      Considering all the evidence, we hold that there is no evidence from any

source that would allow a jury to conclude or infer beyond a reasonable doubt

that the complainant’s injuries created a substantial risk of death. 13

      We must next consider whether the complainant suffered permanent

disfigurement or protracted loss or impairment of the use of a bodily member or

organ. 14 She testified that she had suffered neither. The only suggestion of such

loss or impairment is Jennifer’s testimony that the doctors told the complainant

not to lift more than twenty-five pounds.       Jennifer did not say how long the

limitation was to last but said that it was because of the complainant’s ribs.

Jennifer also agreed that “we don’t know whether or not [the complainant] was

physically capable [of lifting], but she followed their advice.”

      The complainant testified that she was fully recovered. She also testified

that she was able to go out and about some as soon as she was released from

the hospital.

      The Moore court instructs us that

      13
        See Tex. Penal Code Ann. § 1.07(a)(46).
      14
        See id.



                                          13
      given the common meaning of the word “protracted,” the
      complainant’s mother’s testimony, on which the State relies, that the
      complainant was bedridden and that it was at least a week “before
      he could really go out and see people,” does not even come close to
      establishing that the injury the complainant sustained to his back
      was either continuing, dragged out, drawn out, elongated, extended,
      lengthened, lengthy, lingering, long, long-continued, long-drawn,
      never-ending, ongoing, prolix, prolonged, or unending. 15

      We have carefully examined the record. There is no evidence that the

complainant suffered serious permanent disfigurement or protracted loss or

impairment of the function of any bodily member or organ. 16 We therefore hold

that the evidence is insufficient to support the element of serious bodily injury.

      But the evidence is sufficient to support the deadly weapon finding.

Testimony touching on whether Appellant’s hand was a deadly weapon in the

manner of its use or intended use included that of the complainant and that of

Officer Adamo, the responding police officer. The complainant testified that after

Appellant struck her with his hand, knocking her down, he said that he was going

to kill her. Officer Adamo testified on direct examination by the prosecutor,

      Q       [C]an a person’s hand be a deadly weapon?

      A       Yes, it can.

      ....

      Q       [D]o you feel that someone’s hands are capable of causing
              death or serious bodily injury?


      15
          739 S.W.2d at 352.
      16
          See Tex. Penal Code Ann. § 1.07(a)(46).



                                         14
      ....

      A      Yes, they are very capable.

      Appellant’s statement to the complainant that he was going to kill her was

some evidence of his intent to use his hand as a deadly weapon.               Officer

Adamo’s testimony was evidence that would allow a rational trier of fact to

conclude beyond a reasonable doubt that, in the manner of its intended use,

Appellant’s hand was capable of causing death or serious bodily injury.

Accordingly, we hold that the evidence is sufficient to support the jury finding that

Appellant’s hand was a deadly weapon in the manner of its intended use but that

the evidence is insufficient to support the serious bodily injury finding.         We

therefore sustain in part and overrule in part Appellant’s sole issue on appeal.

Conclusion

      Because the State proved only second-degree aggravated assault of a

family member beyond a reasonable doubt, that is, it proved that Appellant

committed an assault against the complainant and used a deadly weapon during

its commission, we reverse the trial court’s judgment in part. We remand this

case to the trial court with instructions 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




                                         15
family member through the use of a deadly weapon and (2) conduct a new trial

on punishment. 17




                                                /s/ Lee Ann Dauphinot
                                                LEE ANN DAUPHINOT
                                                JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

LIVINGSTON, C.J., filed a dissenting opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 5, 2015




      17
       See Bowen v. State, 374 S.W.3d 427, 432 (Tex. Crim. App. 2012).



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