                                                                              PD-0245-15
                           PD-0245-15                       COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                            Transmitted 4/16/2015 3:43:13 PM
                                                             Accepted 4/21/2015 11:26:39 AM
                                   IN THE                                     ABEL ACOSTA
                                                                                      CLERK
                     COURT OF CRIMINAL APPEALS OF TEXAS
                                AUSTIN, TEXAS

JUAN BLEA,                            §
        Appellant                     §
  v.                                  §             No. PD-0245-15
THE STATE OF TEXAS,                   §
        Appellee                      §


           APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
            AND CROSS PETITION FOR DISCRETIONARY REVIEW



   FROM THE DECISION OF THE COURT OF APPEALS FOR THE SECOND
       APPELLATE DISTRICT OF TEXAS, FORT WORTH, IN CAUSE NUMBER
           02-13-00221-CR, JUAN BLEA V. THE STATE OF TEXAS, AND
FROM THE 362ND JUDICIAL DISTRICT COURT, DENTON COUNTY, TEXAS, THE
  HONORABLE BRUCE MCFARLING, JUDGE PRESIDING, AND, AS SITTING
  JUDGE, THE HONORABLE SHERRY SHIPMAN FROM THE 16TH JUDICIAL
                    DISTRICT COURT, DENTON COUNTY, TEXAS.



                                          DAWN A. MOORE
                                          Texas State Bar No. 00788072
                                          BOSWELL & MOORE, P.C.
                                          1504 EAST MCKINNEY STREET,
          April 21, 2015                  SUITE 200
                                          DENTON, TEXAS 76209
                                          (940) 382-4711
                                          (940) 349-9922 (FAX)
                                          dawn@boswellandmoore.com
                   IDENTITY OF PARTIES AND COUNSEL


      The following is a complete list of the parties and persons interested in
the outcome of this cause:

(A)   Juan Blea, Appellant
      11700 Lebanon Drive, Apt. 1111
      Frisco, Texas 75035

(B)   Denver McCarty and Leah Harbour, counsel for Appellant at trial
      1512 East McKinney Street, Suite 200
      Denton, Texas 76209

(C)   Dawn A. Moore, counsel for Appellant on appeal
      1504 East McKinney Street, Suite 200
      Denton, Texas 76209

(D)   The State of Texas, by and through Paul Johnson, Denton County
      Criminal District Attorney; and Catherine Luft, Andrea Simmons, Dustin
      Gossage, and Michael Graves, Assistant Criminal District Attorneys
      1450 East McKinney
      Denton, Texas 76209

(E)   Lisa C. McMinn, State Prosecuting Attorney

      209 West 14th Street, Suite 203
      P.O. Box 13046
      Austin, Texas 78711-3046




                                        i
(F)   Honorable Bruce McFarling, Presiding Judge for the 362nd Court

      Denton County Courts Building
      1450 East McKinney Street, 3rd Floor
      Denton, Texas 76209-4524

(G)   Honorable Sherry Shipman, as Sitting Judge for the 362nd Court

      Denton County Courts Building
      1450 East McKinney Street, 3rd Floor
      Denton, Texas 76209-4524




                                      ii
                                                    TABLE OF CONTENTS

                                                                                                                                        PAGE

IDENTITY OF PARTIES AND COUNSEL ............................................................................ i-ii
INDEX OF AUTHORITIES ...................................................................................................... iv-v
STATEMENT REGARDING ORAL ARGUMENT ................................................................. 2
STATEMENT OF THE CASE....................................................................................................... 2
STATEMENT OF PROCEDURAL HISTORY .......................................................................... 3
QUESTION PRESENTED FOR REVIEW ................................................................................ 3
           Did the Court of Appeals perform the complete and proper
           analysis necessary to reach a conclusion on the legal sufficiency of
           whether Appellant’s hand had more than merely a hypothetical
           capability of causing death or serious bodily injury in the manner
           of its use or intended use in this assault, such that it constituted a
           deadly weapon?

ARGUMENT ..................................................................................................................................... 4
     Evidence Recited in the Court’s Opinion ...................................................................... 4
     Recited Analysis/Conclusion in the Court’s Opinion .............................................. 5
     Relevant Law and Applicable Factors ............................................................................ 5
     Missing Analysis in the Court’s Opinion ....................................................................... 7
     Conclusion ................................................................................................................................. 9
PRAYER ...........................................................................................................................................10
CERTIFICATE OF COMPLIANCE ...........................................................................................10
CERTIFICATE OF SERVICE ......................................................................................................11


APPENDIX
     Blea v. State, 2015 WL 510954, at *1 (Tex. App.—Fort Worth 2015,
     pet. filed)


                                                                        iii
                                          INDEX OF AUTHORITIES

Statutes, Codes, And Rules                                                                                             Page

Tex. Penal Code § 1.07(17)(B) ................................................................................................ 5
Cases

Bailey v. State
  46 S.W.3d 487 (Tex. App.—Corpus Christi 2001, pet. ref’d) ................................. 6

Baltazar v. State
  331 S.W.3d 6 (Tex. App.—Amarillo 2010, pet. ref’d) ............................................... 5

Blea v. State
  2015 WL 510954 (Tex. App.—Fort Worth 2015, pet. filed) ................................. 3

Brown v. State
  716 S.W.2d 939 (Tex. Crim. App. 1986) ......................................................................... 6

Dominique v. State
  598 S.W.2d 285 (Tex. Crim. App. 1980) ......................................................................... 6

Drichas v. State
  175 S.W.3d 795 (Tex. Crim. App. 2005) ......................................................................... 5

Hill v. State
  913 S.W.2d 581 (Tex. Crim. App. 1996) ......................................................................... 7

Jefferson v. State
   974 S.W.2d 887 (Tex. App.—Austin 1998, no pet.) ................................................... 7

Johnston v. State
  115 S.W.3d 761 (Tex. App.—Austin 2003),
  aff’d, 145 S.W.3d 215 (Tex. Crim. App. 2004) .............................................................. 7

Judd v. State
  923 S.W.2d 135, 14 (Tex. App.—Fort Worth 1996, pet. ref’d) ............................. 6




                                                              iv
Kennedy v. State
  402 S.W.3d 796 (Tex. App.—Fort Worth 2013, no pet. h.) .................................... 6

Lozano v. State
  860 S.W.2d 152 (Tex. App.—Austin 1993, pet. ref’d) .............................................. 6

Romero v. State
  331 S.W.3d 82 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) ...................... 6

Slaton v. State
   685 S.W.2d 773 (Tex. App.—Houston [1st Dist.] 1985, pet. ref’d) ...................... 6

Williams v. State
 235 S.W.3d 742 (Tex. Crim. App. 2007) ......................................................................... 9




                                                        v
                                 IN THE
                   COURT OF CRIMINAL APPEALS OF TEXAS
                              AUSTIN, TEXAS


JUAN BLEA,                            §
       Appellant                      §
  v.                                  §              No. PD-0245-15
THE STATE OF TEXAS,                   §
       Appellee                       §




          APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
           AND CROSS PETITION FOR DISCRETIONARY REVIEW



TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

       COMES NOW JUAN BLEA, hereinafter referred to as Appellant, by and

through his attorney of record, DAWN A. MOORE, and pursuant to Rule 68 of

the Texas Rules of Appellate Procedure, files this PETITON FOR

DISCRETIONARY REVIEW AND CROSS PETITION FOR DISCRETIONARY

REVIEW and, for such Petition, would show this Court as follows.




                                      1
                STATEMENT REGARDING ORAL ARGUMENT

      The State did not request oral argument in its Petition for Discretionary

Review. The issue presented in this Petition/Cross Petition for Review is not a

novel one. Appellant concurs that this Court can resolve either or both

Petitions without oral argument and does not request argument barring a

determination by this Court that argument would be helpful.

                         STATEMENT OF THE CASE

      Appellant was convicted of the first-degree felony of Aggravated Assault

of a Family Member. The jury assessed his punishment at five years

confinement. On appeal Appellant challenged the legal sufficiency of evidence

regarding both the element of serious bodily injury and the element of use of a

deadly weapon. Holding that the evidence was insufficient to show that

Appellant caused serious bodily injury, but sufficient to show that he used his

hand as a deadly weapon, the Second Court of Appeals reversed and

remanded with instructions to (1) modify the judgment to reflect a

conviction for the lesser-included second-degree felony aggravated assault

and (2) conduct a new trial on punishment for the second-degree felony. This

Petition seeks review of the portion of the opinion overruling Appellant’s

challenge to the legal sufficiency of the deadly weapon element of this offense.




                                       2
                  STATEMENT OF PROCEDURAL HISTORY

      The Second Court of Appeals issued its opinion reversing and

remanding for modification as well as a new punishment trial on a

lesser-included offense on February 5, 2015. Blea v. State, 2015 WL 510954,

at *1 (Tex. App.—Fort Worth 2015, pet. filed) (Appendix). Chief Justice

Livingston issued a dissenting opinion. No motion for rehearing was filed by

either party. The due date to file a Petition for Discretionary Review in this

cause was March 6, 2015. The State filed its Petition for Discretionary Review

on March 13, 2015. Appellant filed his First Motion to Extend the Time for

Filing the Appellant’s Petition for Discretionary Review on March 19, 2015. This

Court granted Appellant’s requested extension and ordered his Petition timely

filed on or before April 22, 2015.

                    QUESTION PRESENTED FOR REVIEW

      Did the Court of Appeals perform the complete and proper analysis

necessary to reach a conclusion on the legal sufficiency of whether Appellant’s

hand had more than merely a hypothetical capability of causing death or

serious bodily injury in the manner of its use or intended use in this assault,

such that it constituted a deadly weapon?




                                       3
                                 ARGUMENT

      The Second Court of Appeals devoted only two paragraphs of its

sixteen-page opinion to addressing the deadly weapon “portion” of

Appellant’s legal sufficiency challenge. Blea v. State, 2015 WL 510954, at *5-6

(Appendix). In undertaking its analysis, it seems the Court of Appeals

overlooked fully considering all of the necessary factors essential to

conducting a proper legal sufficiency review of whether Appellant’s hand was,

in the manner of its use or intended use, a deadly weapon. Appellant contends

that a complete evaluation of those factors would have led the Court to

correctly conclude that there was legally insufficient evidence to support

anything beyond the “hypothetical capability” that Appellant’s hand could

cause death or serious bodily injury.

Evidence Recited In The Court’s Opinion

      In its Opinion the Second Court of Appeals recited “testimony touching

on whether Appellant’s hand was a deadly weapon in the manner of its use or

intended use”. Blea v. State, 2015 WL 510954, at *5 (Appendix). That recited

evidence consisted of (1) the fact that “The complainant testified that after

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

going to kill her” (Blea v. State, 2015 WL 510954, at *5 (Appendix)) and (2)

generic testimony by the responding police officer on direct examination


                                        4
agreeing with the prosecutor that “a person’s hand” can be a deadly weapon

and that “someone’s hands” are capable of causing death or serious bodily

injury. Blea v. State, 2015 WL 510954, at *5-6 (Appendix).

Recited Analysis/Conclusion In The Court’s Opinion

      After recounting the above testimony, and without any specific analysis

of all the commonly considered factors set forth in relevant case law, the Court

of Appeals summarily concluded:

      “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.”

Blea v. State, 2015 WL 510954, at *5-6 (Appendix).

Relevant Law And Applicable Factors

      The Texas Penal Code defines the term “deadly weapon” to include

“anything that in the manner of its use or intended use is capable of causing

death or serious bodily injury.” Tex. Penal Code § 1.07(17)(B); Drichas v. State,

175 S.W.3d 795, 798 (Tex. Crim. App. 2005); Baltazar v. State,

331 S.W.3d 6 (Tex. App.—Amarillo 2010, pet. ref’d). Under this definition,

“[o]bjects that are not usually considered dangerous weapons may become so,

depending on the manner in which they are used during the commission of an



                                       5
offense.” Drichas, 175 S.W.3d at 798. A person’s hands are not deadly weapons

per se and can only become such depending on the manner in which they were

used and the evidence shown. Judd v. State, 923 S.W.2d 135, 140 (Tex. App.—

Fort   Worth   1996,    pet.   ref’d);   Slaton   v.   State,   685   S.W.2d   773,

775-76 (Tex. App.—Houston [1st Dist.] 1985, pet. ref’d) (holding that while

hands could be used as deadly weapon, pushing a person over a rail with

hands did not make hands deadly weapon).

       Several nonexclusive factors to be considered in determining whether

an object is capable of causing death or serious bodily injury are (1) physical

proximity between the victim and the object, (2) the threats or words used by

the defendant, (3) the size and shape of the weapon, (4) the weapon’s ability

to inflict death or serious injury, (5) the manner in which the defendant used

the weapon, and (6) the nature of the wounds inflicted. Dominique v. State,

598 S.W.2d 285, 286 (Tex. Crim. App. 1980); Kennedy v. State, 402 S.W.3d

796, 802 (Tex. App.—Fort Worth 2013, no pet. h.); Romero v. State, 331

S.W.3d 82, 83 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d); Bailey v. State,

46 S.W.3d 487, 491–92 (Tex. App.—Corpus Christi 2001, pet. ref’d); Lozano v.

State, 860 S.W.2d 152, 156 (Tex. App.—Austin 1993, pet. ref’d). No one factor

is determinative, and each case must be examined on its own facts. Brown v.

State, 716 S.W.2d 939, 946–47 (Tex. Crim. App. 1986).


                                         6
      Moreover, while it is true that the State need not prove that the

complainant actually sustained serious bodily injury for Appellant’s hand to

be a deadly weapon, it must prove that his hand was capable of causing

serious bodily injury in the way in which it was used or intended to be used.

Jefferson v. State, 974 S.W.2d 887, 892 (Tex. App.—Austin 1998, no pet.); Hill v.

State, 913 S.W.2d 581, 584 (Tex. Crim. App. 1996). The State is required to

show that the object at issue had more than a hypothetical capability of

causing death or serious bodily injury. See Johnston v. State, 115 S.W.3d 761,

764 (Tex. App.—Austin 2003), aff’d, 145 S.W.3d 215 (Tex. Crim. App. 2004)

(when the State offered no evidence that the appellant intended to use the

cigarette in any other manner that would have been capable of causing

serious bodily injury, the mere fact that appellant could have caused serious

bodily injury if he had used, or intended to use, the cigarette in a way other

than he actually did was not supportive of a deadly weapon finding).

Missing Analysis In The Court’s Opinion

      Here, the Second Court of Appeals did not fully review or address the

above-referenced factors that have been typically considered in appellate

evaluations of whether an object, in the manner of its use or intended use, is

capable of causing death or serious bodily injury.




                                       7
      The Court did not analyze or consider the complete absence of evidence

addressing the size of the relative parties (or of Appellant’s hand).

      The Court did not analyze or consider the complete absence of evidence

as to whether Appellant’s hand had the ability to inflict death or serious injury.

There was also no evidence that Appellant possessed any “special” fighting

abilities, skills, or training that could make his “hand” dangerous.

      The Court did not analyze or consider how (i.e., the manner in which)

Appellant actually used his hand. The Court found that the evidence supported

a reasonable jury concluding that he “struck her with his hand, knocking her

down,” but this evidence, alone, does not support Appellant’s actual use of his

hand in a manner consistent with its being a deadly weapon.

      The Court did not analyze or consider the nature of the wounds inflicted

in this specific portion of the legal sufficiency evaluation either. It neglected to

specifically consider this fact, despite the Court’s having just found legally

insufficient evidence to support that those injuries sustained actually

constituted serious bodily injury.

      The Court also did not analyze the physical proximity between the

victim and the object.

      The Court did recite specific evidence of one factor: the testimony

concerning the threats or words used by the Appellant. However, even then,


                                         8
the Court recounts this evidence in a perfunctory manner, failing to actually

analyze that lone verbal threat, or evaluate it within the context under which

it was made – considering all of the surrounding circumstances occurring

immediately before, during, and after the assault.

Conclusion

      This Court is well aware of the standard of review when reviewing

sufficiency of the evidence. Part of that review includes ensuring that the

evidence presented actually supports a conclusion that the defendant

committed the crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.

App. 2007). The Court erred by neglecting to conduct a proper, thorough

analysis of the evidence or lack thereof. If it had conducted a full evaluation of

all of the relevant factors under the proper standard of review, Appellant

asserts that the Second Court would have concluded that the evidence was not

legally sufficient to support that Appellant used a deadly weapon in the course

of committing this assault. As a result of that conclusion the Court would have

reversed and reformed Appellant’s conviction to reflect that he committed a

misdemeanor assault family violence and would have remanded for a

punishment hearing on that lesser-included offense.




                                        9
                                    PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays this Court will

grant review of Appellant’s Petition for Discretionary Review or grant review

of his Cross-Petition, in the event that this Court grants the State’s Petition for

Discretionary Review, and order a full briefing on this issue(s).

                                         Respectfully submitted,


                                         /s/ Dawn A. Moore
                                         DAWN A. MOORE
                                         BOSWELL & MOORE, P.C.
                                         1504 EAST MCKINNEY STREET
                                         SUITE 200
                                         DENTON, TEXAS 76209
                                         (940) 382-4711
                                         (940) 349-9922 (FAX)

                                         ATTORNEY FOR APPELLANT




                        CERTIFICATE OF COMPLIANCE
      I hereby certify that the word count in the foregoing Brief is 1399,
having been calculated using Microsoft Word, the program used in the
preparation of this Brief.

                                             /s/ Dawn A. Moore
                                             DAWN A. MOORE




                                        10
                          CERTIFICATE OF SERVICE
      I hereby certify that a true copy of the foregoing Petition has been
served on Catherine Luft, Attorney for Appellee, 1450 East McKinney Street,
Denton, Texas 76209, and Lisa McMinn, State Prosecuting Attorney,
209 West 14th Street, Suite 203, P.O. Box 13046, Austin, Texas 78711-3046, by
electronic service on this, the 16th day of April 2015.


                                             /s/ Dawn A. Moore
                                             DAWN A. MOORE




                                        11
             APPENDIX


  Blea v. State, 2015 WL 510954, at *1
(Tex. App.—Fort Worth 2015, pet. filed)
Blea v. State, Not Reported in S.W.3d (2015)
2015 WL 510954



                                                               judgment to delete the conviction for first-degree felony
                                                               aggravated assault of a family member and to instead
                 2015 WL 510954
  Only the Westlaw citation is currently available.            reflect a conviction for second-degree felony aggravated
                                                               assault of a family member, based on Appellant’s use of a
  SEE TX R RAP RULE 47.2 FOR DESIGNATION                       deadly weapon, and (2) to conduct a new trial on
         AND SIGNING OF OPINIONS.                              punishment for the second-degree felony.4
          MEMORANDUM OPINION
    DO NOT PUBLISH TEX. R. APP. P. 47.2(B)
           Court of Appeals of Texas,
                  Fort Worth.                                  Brief Summary of the Facts
                                                               On the date of the offense, July 21, 2010, the complainant
             Juan Blea, Appellant                              and Appellant had a small daughter and shared a bedroom
                       v.                                      in his parents’ apartment. While Appellant and
            The State of Texas, State                          complainant were not married, they did marry about two
 NO. 02–13–00221–CR | DELIVERED: February 5,                   years later.
                      2015
                                                               A couple of weeks before the assault, Appellant had
FROM THE 362ND DISTRICT COURT OF DENTON                        separated from the complainant and moved in with a
COUNTY, TRIAL COURT NO. F–2011–0993–D                          friend. On July 20, the complainant spent time with a
                                                               male friend from school. At trial, she did not remember
Attorneys and Law Firms                                        whether she returned home late that night or the next
Dawn A. Moore, Boswell & Moore, P.C., Denton, TX,              morning. Appellant visited the apartment that the
for Appellant.                                                 complainant shared with his parents between 10:00 a.m.
                                                               and noon on July 21 and was in a good mood. But he saw
Paul Johnson, Criminal District Attorney; Catherine Luft,      a hickey on the complainant’s neck, and when she refused
Chief of the Appellate Section; Andrea R. Simmons,             to tell him “where it was from,” he became angry. When
Michael Graves, Dustin Gossage, Assistant Criminal             she finally told him “who [the hickey] was from,” he hit
District Attorneys for Denton County, Denton, TX, for          her in the face with his hand. They were in the kitchen. At
State.                                                         trial, she did not remember whether his hand was open or
                                                               in a fist. In her testimony, the complainant denied falling,
PANEL: LIVINGSTON,            C.J.;   DAUPHINOT         and    but in her written statement, she had said that she had
GABRIEL, JJ.                                                   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.
             MEMORANDUM OPINION1
                                                               The complainant testified that Appellant hit her only
                                                               once. When the prosecutor suggested that Appellant had
LEE ANN DAUPHINOT, JUSTICE
                                                               continued to hit her and had asked where their daughter
*1 A jury convicted Appellant Juan Blea of first-degree
                                                               was, the complainant corrected him, stating, “[A]fter he
felony aggravated assault of a family member. 2 The jury
                                                               first hit me, she started getting fussy. I told him to leave
assessed his punishment at five years’ confinement, and
                                                               me alone and I wanted to put her asleep (sic) because I
the trial court sentenced him accordingly. That offense
                                                               didn’t want her around all this and us fighting.”
requires both serious bodily injury and the use of a deadly
weapon.3 In this case, the indictment alleged that
                                                               After the complainant gave their daughter a bottle and put
Appellant’s hand was a deadly weapon. Appellant brings
                                                               her to bed in the bedroom, the couple began fighting
a single issue on appeal, challenging the sufficiency of the
                                                               again in the living room. Appellant hit her in the side. She
evidence that he caused the complainant serious bodily
                                                               testified that he hit her more than once and used both his
injury rather than bodily injury as well as the sufficiency
                                                               fist and his open hand. She said that he might have kicked
of the evidence that he used his hand as a deadly weapon.
                                                               her with his foot and also testified that she had been in a
Because the evidence is insufficient to show that
                                                               lot of pain after the assault. The prosecutor reminded her
Appellant caused serious bodily injury but sufficient to
                                                               that in her written statement, she had said that she was in
show that he used his hand as a deadly weapon, we
                                                               a “ton” of pain. The pain was in her back and her chest.
reverse the trial court’s judgment and remand this case to
                                                               The prosecutor asked, “Did you feel like something had
the trial court with instructions (1) to modify the

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Blea v. State, Not Reported in S.W.3d (2015)
2015 WL 510954

been broken or terribly injured as a result of this?” The
complainant responded, “Yes.”

*2 The child woke up, so Appellant stopped hitting the           Sufficiency of the Evidence
complainant, and she told him that either he or she needed       Appellant contends that the evidence is insufficient to
to go buy diapers. Appellant left the apartment and              show that (1) he caused serious bodily injury and (2) his
returned with the diapers. The complainant did not call          hand was used as a deadly weapon. In our due-process
the police while he was gone. When the prosecutor asked          review of the sufficiency of the evidence to support a
her why, she responded, “Because I didn’t want to.” She          conviction, we view all of the evidence in the light most
said that she had been scared and had not known how              favorable to the verdict to determine whether any rational
Appellant would act, and she had not wanted anyone to            trier of fact could have found the essential elements of the
know what had happened. When Appellant returned, he              crime beyond a reasonable doubt.5 Section 22.02 of the
and the complainant argued verbally. The prosecutor              penal code provides,
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        (a) A person commits an offense if the person commits
not tell Appellant that she was in pain.                           assault as defined in § 22.01 and the person:

After Appellant left, the complainant lay down with their          (1) causes serious bodily injury to another, including
daughter, took a bath, cleaned up, and then called                 the person’s spouse; or
Appellant’s parents and asked them to come home from
                                                                   (2) uses or exhibits a deadly weapon during the
work, stating that she had fallen down the stairs. After
                                                                   commission of the assault.
Appellant’s parents saw her, his father called the police.
                                                                   (b) An offense under this section is a felony of the
Officer Tim Adamo, who had been a police officer for               second degree, except that the offense is a felony of the
twenty-three years by the time of trial, called for an             first degree if:
ambulance after he arrived at the apartment. He described          (1) the actor uses a deadly weapon during the
the complainant’s injuries:                                        commission of the assault and causes serious bodily
                                                                   injury to a person whose relationship to or association
  The first time I contacted her, she had visible injuries. I
                                                                   with the defendant is described by Section 71.0021(b),
  could see scrapes, lacerations on her face. She had
                                                                   71.003, or 71.005, Family Code[.]6
  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           Section 22.01 provides,
  early set of bruising.
                                                                   (a) A person commits an offense if the person:
  ....
                                                                   (1) intentionally, knowingly, or recklessly causes
  She was on the couch in the front room.                          bodily injury to another ...;
                                                                   (b) An offense under Subsection (a)(1) is a Class A
  ....
                                                                   misdemeanor ...7
  ... [. S]he was in quite a bit of pain. She was, like, with
  one arm holding her ribs, her chest, her stomach area.         “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
  .... She said she had a hard time breathing, had a lot of      permanent disfigurement, or protracted loss or
  pain.                                                          impairment of the function of any bodily member or
                                                                 organ.”9 The Texas Court of Criminal Appeals has
  ....                                                           explained that
                                                                              *3 [b]y virtue of the fact that the
  .... I was trying to get a statement from her, an affidavit,                Penal Code provides a different
  but she had a lot of difficulty writing the statement.                      definition for “bodily injury” from
                                                                              “serious bodily injury”, though
  She tried to get up from the couch at one point and she                     often a matter of degree, we must
  fell back to the couch in pain and that’s when I called                     presume that the Legislature
  for a medic.                                                                intended that there be a meaningful
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Blea v. State, Not Reported in S.W.3d (2015)
2015 WL 510954

            difference or distinction between                       what happened, kind of the regulars. That was just
            “bodily injury” and “serious bodily                     kind of my way of avoiding everybody.
            injury.”    Understandably,      this
            means that where the issue is                      She also testified,
            raised, the issue must be
            determined on an ad hoc basis.10                        Q You don’t really want to be here, do you?

And our sister court in El Paso has explained that                  A No.
            bodily injury cannot be elevated to
            serious bodily injury by postulating                    Q Now, when you were taken to the hospital, were
            potential complications which are                       you ever in the ICU, or do you know?
            not in evidence. The [S]tate must
                                                                    A Not that I know of.
            present      evidence     that     the
            [complainant] suffered bodily                           Q Just in a regular room?
            injury that created a substantial risk
            of death. In other words, the [S]tate                   A Yes.
            must present relevant and probative
            evidence from which the trier of                        Q Do you have any serious permanent disfigurement
            fact could infer beyond a                               as a result of this incident?
            reasonable doubt that the injury
            itself created an appreciable risk of                   A No.
            death.11
                                                                    Q As a result of this incident, did you have a
The complainant’s mother, Jennifer, saw her in the                  protracted loss of the use of any bodily member or
hospital. Jennifer testified that she noticed only the              organ?
bruising and redness of her daughter’s right eye. At trial,
Jennifer did not remember whether her daughter had had              A No.
any trouble breathing. Jennifer did take photographs of
the complainant over a period of time, and the                      Q Have you fully recovered?
photographs revealed developing bruising over her face
                                                                    A Yes.
and body. Although Jennifer testified on direct
examination that the complainant was unable to walk in              Q Were you able to get up and be out and about
the hospital and for a month afterward, on cross-                   some the week after that?
examination, she admitted that the complainant could
stand and walk even while still in the hospital.                    A The week after the hospital?

The complainant did not work at her waitressing job for a           Q Yeah, after they let you go home.
month after the assault. When she returned, she switched
from waitressing to acting as hostess. Jennifer testified           A Yeah.
that the job change occurred because the doctor had told
the complainant not to lift more than twenty-five pounds.           Q Okay. I mean, you could get up and go do
The complainant, however, testified,                                something, right?

     Q Did you resume your duties as a waitress?                    A Yeah, yeah.

     A I decided to be a host.                                 In response to the prosecutor’s asking her the meaning of
                                                               “protracted loss or impairment of the function of any
     Q Why is that?                                            bodily member or organ,” the complainant said that she
                                                               did not know a specific definition, but that she “probably
     A Just so I didn’t have to deal with a lot of people. I   would know that” and “if [she] did have that, wouldn’t a
     didn’t want to go back to doing waitressing just yet.     doctor tell [her]?”
     Q Because you didn’t want to interact with people?        *4 The trial court admitted State’s Exhibits 18 and 19,
                                                               hospital records, but after reconsideration, withdrew the
     A That, and everybody at Champps kind of knew             exhibits. The court reporter erroneously included those

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Blea v. State, Not Reported in S.W.3d (2015)
2015 WL 510954

two exhibits in the record, but both the State and                Q Now, on the broken ribs, what treatment was
Appellant conscientiously asked this court not to consider        given to her for the broken ribs?
those exhibits because they were never before the jury.
We granted their request and have not considered those            A Pain medication and respiratory, what we call
exhibits.                                                         incentive spirometry, just deep-breathing exercises,
                                                                  and pain medication.
The complainant’s injuries included two fractured ribs
and a fractured maxillary sinus bone. She was kept in the         Q When we hear broken ribs, we think of something
hospital for four days and then “medically cleared for            sticking through the skin, something like that.
discharge.” Kristie Brown, a nurse practitioner at
Parkland Hospital, testified concerning the complainant’s         The rib was, I guess, still intact, for want of better
medical treatment. Brown testified that the complainant           words, but there was a fracture in it?
had a collapsed lung, but it had already been treated when
                                                                  A There was a fracture in it. What alignment it had, I
Brown met the complainant the morning after her
                                                                  would have to review the chest x-ray. I don’t
admission to the hospital. Brown explained that a person
                                                                  remember.
with a collapsed lung “can have trouble breathing, and it
can affect blood pressure, vital signs that [medical              Q In any event, there was nothing done to tape her
professionals] look at.” Although the complainant had             up or set any fractures or have any surgery regarding
testified that “they said my liver was lacerated, or              the ribs?
something,” no other evidence of a lacerated liver was
presented to the jury. Brown did testify that there was an        A That is correct.
injury to the complainant’s liver and an injury in her
chest. Brown admitted that she was repeating the                  Q Okay. And would the same be true of the
radiologist’s opinion, and the trial court sustained              maxillary sinus?
Appellant’s objection to her testifying about anything
somebody else did. But the trial court did not instruct the       A That’s correct. Due to the swelling, they saw
jury to disregard. Brown testified that she checked for           her—we recommended that she be seen in clinic
peritonitis or other problems caused by a liver injury;           after she was discharged home from the hospital.
none was discovered. There was no evidence that any
injury to the complainant’s liver was a serious bodily            Q But no surgery or any procedures were done to
injury.12 The following exchange occurred:                        repair that damage?

     Q So at all times, her liver was functioning and             A That’s correct.
     doing what it was supposed to be doing?
                                                                  Q It just healed on its own?
     A Yes, sir.
                                                                  A That is correct.
     Q And—all right. Same with her lungs? I mean, she
     could breathe, right?                                    The only evidence that the complainant could have
                                                              suffered serious bodily injury arose from the State’s
     A Yes, sir, she was breathing.                           inquiry whether “any injury to the liver [is] treated
                                                              seriously or minimally” by Brown’s “profession.” She
     Q And I assume you tested her blood for oxygen           replied that they are treated seriously because
     level?
                                                                         *5 [i]njuries to the liver can cause a
     A Yes, sir.                                                         patient to bleed to death very
                                                                         quickly. Knowing that there is an
     Q And I guess her blood was—her lungs were
                                                                         injury to the liver and why it is and
     working like they were supposed to?                                 whether it is actively bleeding or
                                                                         has developed a blood clot to the
     A Yes, sir.
                                                                         liver makes a decision point for
     Q I mean, they were providing enough oxygen to                      what the surgeons do and what we
     her?                                                                do for the patient.

     A Yes, sir.                                              But there was no evidence that the complainant suffered

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Blea v. State, Not Reported in S.W.3d (2015)
2015 WL 510954

from such a condition.                                          weapon finding. Testimony touching on whether
                                                                Appellant’s hand was a deadly weapon in the manner of
The prosecutor then asked whether “lungs [are] treated          its use or intended use included that of the complainant
seriously or minorly.” Brown replied, “Seriously.” When         and that of Officer Adamo, the responding police officer.
asked to explain why lungs are treated seriously, she           The complainant testified that after Appellant struck her
replied, “Because if we can’t control our oxygenation, we       with his hand, knocking her down, he said that he was
need oxygen to live, and you can die from that.” But            going to kill her. Officer Adamo testified on direct
Brown did not testify that the complainant suffered from        examination by the prosecutor,
such a condition. No one did. Indeed, Brown monitored
the complainant to determine whether a substantial risk of               *6 Q [C]an a person’s hand be a deadly weapon?
death or any risk of death developed from any injury, and
it did not.                                                              A Yes, it can.

Considering all the evidence, we hold that there is no            ....
evidence from any source that would allow a jury to
                                                                         Q [D]o you feel that someone’s hands are capable of
conclude or infer beyond a reasonable doubt that the
                                                                         causing death or serious bodily injury?
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                 A Yes, they are very capable.
of the use of a bodily member or organ.14 She testified that
she had suffered neither. The only suggestion of such loss      Appellant’s statement to the complainant that he was
or impairment is Jennifer’s testimony that the doctors told     going to kill her was some evidence of his intent to use
the complainant not to lift more than twenty-five pounds.       his hand as a deadly weapon. Officer Adamo’s testimony
Jennifer did not say how long the limitation was to last        was evidence that would allow a rational trier of fact to
but said that it was because of the complainant’s ribs.         conclude beyond a reasonable doubt that, in the manner of
Jennifer also agreed that “we don’t know whether or not         its intended use, Appellant’s hand was capable of causing
[the complainant] was physically capable [of lifting], but      death or serious bodily injury. Accordingly, we hold that
she followed their advice.”                                     the evidence is sufficient to support the jury finding that
                                                                Appellant’s hand was a deadly weapon in the manner of
The complainant testified that she was fully recovered.         its intended use but that the evidence is insufficient to
She also testified that she was able to go out and about        support the serious bodily injury finding. We therefore
some as soon as she was released from the hospital.             sustain in part and overrule in part Appellant’s sole issue
                                                                on appeal.
The Moore court instructs us that
  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          Conclusion
  that it was at least a week “before he could really go        Because the State proved only second-degree aggravated
  out and see people,” does not even come close to              assault of a family member beyond a reasonable doubt,
  establishing that the injury the complainant sustained to     that is, it proved that Appellant committed an assault
  his back was either continuing, dragged out, drawn out,       against the complainant and used a deadly weapon during
  elongated, extended, lengthened, lengthy, lingering,          its commission, we reverse the trial court’s judgment in
  long, long-continued, long-drawn, never-ending,               part. We remand this case to the trial court with
  ongoing, prolix, prolonged, or unending.15                    instructions to (1) modify its judgment to delete the first-
                                                                degree felony conviction of aggravated assault of a family
We have carefully examined the record. There is no              member and to instead reflect a second-degree felony
evidence that the complainant suffered serious permanent        conviction for aggravated assault of a family member
disfigurement or protracted loss or impairment of the           through the use of a deadly weapon and (2) conduct a new
function of any bodily member or organ.16 We therefore          trial on punishment.17
hold that the evidence is insufficient to support the
element of serious bodily injury.

But the evidence is sufficient to support the deadly
                                                                LIVINGSTON, C.J., filed a dissenting opinion.
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Blea v. State, Not Reported in S.W.3d (2015)
2015 WL 510954

TERRIE LIVINGSTON, CHIEF JUSTICE, dissenting.1                  Kristie Brown, a nurse practitioner, confirmed that the
                                                                complainant had suffered a lung injury. Concerning that
Because the majority’s opinion improperly applies               injury—a pneumothorax—Brown testified,
standards for reviewing the sufficiency of evidence to
show that the victim suffered serious bodily injury, I            if you have a box and a balloon blown up inside the
dissent from the decision to reverse the trial court’s            box and the balloon shrinks over time, there is air
judgment and to remand for the entry of a judgment that           between the box and the balloon, that is a
reflects only a second-degree felony conviction.2                 pneumothorax. Most of the time, the lungs should be
                                                                  expanded in our chest and touching the sides of the
When deciding an evidentiary sufficiency issue in a               box, but when the lung collapses, it’s just like a balloon
criminal appeal, our usual deference to a jury’s verdict          that has a small leak in it and collapses down.
requires us to weight appellate scales in favor of affirming
a judgment of conviction. See Winfrey v. State, 323               When that occurs, the patient, [the complainant], can
S.W.3d 875, 879 (Tex.Crim.App.2010). We do so by                  have trouble breathing, and it can affect blood pressure,
applying settled principles aimed at preventing us from           vital signs that we look at.
becoming a “thirteenth juror.” See Thornton v. State, 425
S.W.3d 289, 303 (Tex.Crim.App.2014); Isassi v. State,           The complainant’s mother testified that while in the
330 S.W.3d 633, 638 (Tex.Crim.App.2010) (explaining             hospital, the complainant was not able to move around the
that in reviewing the sufficiency of evidence to support a      room, and treatment for her collapsed lung required the
conviction, we guard “against the rare occurrence when a        insertion of a chest tube. According to the complainant’s
factfinder does not act rationally”). Those principles          mother, after the complainant left the hospital, she could
include considering the evidence, along with reasonable         not work or walk without pain for some time, and when
inferences from the evidence, in the light most favorable       she returned to work, she was instructed to not lift
to the verdict; deferring to the factfinder’s exclusive role    anything over twenty-five pounds.
to resolve conflicts in the evidence (and inferences
therefrom)3 and to judge the credibility of witnesses;          While it is true that the complainant’s condition improved
assessing incriminating evidence cumulatively rather than       upon medical treatment, in determining whether evidence
requiring each fact to directly support guilt; allowing for     is sufficient to establish serious bodily injury, the relevant
circumstantial evidence alone to support a conviction; and      issue is the impairing effect of the bodily injury as it was
recognizing that a factfinder is free to accept or reject any   inflicted, not after the effects have been ameliorated by
or all of the testimony of any witness. Whatley v. State,       medical treatment. Jackson v. State, 399 S.W.3d 285, 291
445 S.W.3d 159, 166 (Tex.Crim.App.2014); Thomas v.              (Tex.App.–Waco 2013, no pet.)(mem.op.); see Webb v.
State, 444 S.W.3d 4, 8 (Tex.Crim.App.2014); Dobbs v.            State, 801 S.W.2d 529, 532 (Tex.Crim.App.1990);
State, 434 S.W.3d 166, 170 (Tex.Crim.App.2014);                 Sizemore v. State, 387 S.W.3d 824, 828 (Tex.App.–
Hernandez v. State,          161 S.W.3d 491, 500–01             Amarillo 2012, pet. ref’d). And serious bodily injury may
(Tex.Crim.App.2005).                                            be established without a physician’s testimony when the
                                                                injury and its effects are obvious. Sizemore, 387 S.W.3d
*7 In showing fidelity to these principles in this appeal,      at 828.
we should determine that the evidence is sufficient to
prove that the complainant suffered serious bodily injury,      Brown testified that injuries to lungs are treated seriously
meaning bodily injury4 that created “a substantial risk of      because the lungs control oxygenation and affect blood
death ... or protracted loss or impairment of the function      pressure and “vital signs.” Brown also explained that
of any bodily member or organ.” Tex. Penal Code Ann. §          improper oxygenation can cause death. Thus, the jury
1.07(a)(46); see id. § 22.02(a)(1), (b)(1). The complainant     could have reasonably inferred that if the complainant had
testified that as a result of appellant’s hitting her side      not received the procedure that Brown described
repeatedly, she felt “a lot of pain” in her back and chest      (presumably, the tube that the complainant’s mother
and could not breathe. She believed that she had been           testified about) to help with her difficulty in breathing, the
“terribly injured.” Appellant’s father noticed that the         complainant faced a substantial risk of death. See id.; see
complainant had difficulty walking. Hospital personnel          also Patterson v. State, No. 11–06–00209–CR, 2008 WL
told her that she had a collapsed lung, among other             564880, at *3 (Tex. App–Eastland Feb. 28, 2008, pet.
injuries. The complainant stayed in a hospital several          ref’d) (not designated for publication) (concluding that
days, and a “month or so” passed before she was able to         testimony that the victim had trouble breathing and
return to work.                                                 received treatment for a pneumothorax that if left
                                                                untreated, could cause death, was sufficient to prove that
                                                                the victim had a serious bodily injury); Pedro v. State,
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Blea v. State, Not Reported in S.W.3d (2015)
2015 WL 510954

No. 01–88–00197–CR, 1988 WL 139708, at *2                              month-long effects from the assault qualify as a
(Tex.App.–Houston [1st Dist.] Dec. 22, 1988, no pet.)(not              “protracted” impairment of the complainant’s bodily
designated for publication) (“[T]he possibility that [a                functions. See id.; Williams v. State, 575 S.W.2d 30, 33
collapsed lung] could cause death, combined with the                   (Tex.Crim.App. [Panel Op.] 1979) (holding “that the
testimony that the complainant’s lung was punctured,                   injury which caused [the victim] to lose lifting power in
does support a finding that [a knife] was capable of                   his arm for three months” constituted a protracted
causing ‘serious bodily injury.’ ”).                                   impairment of the function of a bodily member, so that
                                                                       “the wound would be classified as serious bodily injury”);
*8 Viewing the evidence in the light most favorable to the             Madden v. State, 911 S.W.2d 236, 244–45 (Tex.App.–
verdict and allowing the jury to draw reasonable                       Waco 1995, pet. ref’d) (concluding that there was serious
inferences from the evidence, I would hold that based at               bodily injury by protracted impairment of a bodily
least on the facts concerning the injury to the                        member when the victim was shot in the hip, hospitalized
complainant’s lung, that this injury required treatment                for a day and a half, could not walk for a month after the
through a tube, and that injuries to lungs can be life-                shooting, and had permanent scar tissue where the bullet
threatening, the evidence was sufficient for the jury to               entered and exited his body); see also Tucker v. State, No.
find that without treatment, the complainant faced a                   05–01–01899–CR, 2002 WL 32397713, at *1–2
substantial risk of death. SeeTex. Penal Code Ann. §                   (Tex.App.–Dallas Oct. 30, 2002, no pet.)(not designated
1.07(a)(46).                                                           for publication) (holding that there was protracted
                                                                       impairment when the victim had a fractured jaw, was
Moreover, I would also conclude that the evidence was                  restricted to a liquid diet for three weeks, and had jaw
sufficient to show that the complainant sustained a serious            pain for a month).
bodily injury because she suffered from a protracted
impairment of the functioning of her body. See id. The                 For all of these reasons, I respectfully dissent from the
complainant testified that the injuries she suffered as a              majority’s opinion and judgment.
result of the assault required her to miss a “month or so”
of work. Her mother testified that during that time, the
complainant “couldn’t work” and just “[laid] around”
because walking was painful. I would hold that these

Footnotes
1      SeeTex.R.App. P. 47.4.

2      SeeTex. Penal Code Ann. § 22.02(b)(1) (West 2011).

3      Id.

4      See id. § 22.02(a)(2)-(b).

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).

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).


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Blea v. State, Not Reported in S.W.3d (2015)
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11       Hernandez v. State, 946 S.W.2d 108, 112 (Tex.App.—El Paso 1997, no pet.)(citations and internal quotation marks omitted).

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).

13       SeeTex. Penal Code Ann. § 1.07(a)(46).

14       See id.

15       739 S.W.2d at 352.

16       SeeTex. Penal Code Ann. § 1.07(a)(46).

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


         SeeTex.R.App. P. 47.4, 47.5.
2        SeeTex. Penal Code Ann. § 22.02(b)(1) (West 2011).

3        The majority appears to resolve conflicts in witnesses’ testimony against the jury’s verdict. See Majority Op. at 8–10.

4        “Bodily injury” includes pain or any impairment of physical condition. Tex. Penal Code Ann. § 1.07(a)(8) (West Supp.2014).




    End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.
