                                                                              PD-0245-15
                                                      COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                      Transmitted 7/23/2015 5:11:21 PM
                                                        Accepted 7/24/2015 8:16:28 AM
         IN THE COURT OF CRIMINAL APPEALS OF       TEXAS                ABEL ACOSTA
                                                                                CLERK
THE STATE OF TEXAS,          §
    APPELLANT                §
                             §
    v.                       §                  No. PD-0245-15
                             §
JUAN BLEA                    §
    APPELLEE                 §
                                                              July 24, 2015


                STATE'S BRIEF ON THE MERITS

     FROM THE SECOND DISTRICT OF TEXAS AT FORT WORTH
              IN CAUSE NUMBER 02-13-00221-CR
                            AND
          FROM THE 362No JUDICIAL DISTRICT COURT,
    THE HONORABLE BRUCE MCFARLING, JUDGE, PRESIDING;
   THE HONORABLE SHERRY SHIPMAN FROM THE 16TH JUDICIAL
             DISTRICT COURT, AS SITTING JUDGE
                   DENTON COUNTY, TEXAS
               IN CAUSE NUMBER F-2011-0993-D

                                 PAUL JOHNSON
                                 Criminal District Attorney
                                 Denton County, Texas
                                 CATHERINE LUFT
                                 Assistant Criminal District Attorney
                                 Chief, Appellate Division

                                 ANDREA R. SIMMONS
                                 Assistant Criminal District Attorney
                                 State Bar No. 24053478
                                 1450 East McKinney
                                 Denton, Texas 76209
                                 (940) 349-2600
                                 FAX (940) 349-2751
                                 andrea.simmons@dentoncounty.com
                       IDENTITY OF PARTIES AND COUNSEL

Appellant ....................... ............ .................. THE STATE OF TEXAS

                                                          PAUL JOHNSON
                                                          Criminal District Attorney

                                                          CATHERINE LUFT
                                                          Assistant Criminal District Attorney
                                                          Chief, Appellate Division

                                                          ANDREA R. SIMMONS
                                                          Assistant Criminal District Attorney
                                                          State Bar No. 24053478
                                                          1450 East McKinney
                                                          Denton, Texas 76209
                                                          (940) 349-2600
                                                          FAX (940) 349-2751
                                                          andrea.simmons@dentoncounty.com

                                                          APPELLATE COUNSEL

                                                          MICHAEL GRAVES
                                                          DUSTIN GOSSAGE
                                                          Assistant Criminal District Attorneys
                                                          TRIAL COUNSEL
Appellee ....................................................... JUAN BLEA

                                                          JOSEPH BOSWELL
                                                          1504 East McKinney Street
                                                          Suite 200
                                                          Denton, Texas 76209
                                                          APPELLATE COUNSEL

                                                          DENVER McCARTY
                                                          1512 East McKinney Street
                                                          Suite 200
                                                          Denton, Texas 76209

                                                          TRIAL COUNSEL
                                                     11
                                  INDEX OF AUTHORITIES

Statutes

Tex. Penal Code Ann. § l.07(a)(8) (West 2013) ...................................................... 5

Tex. Penal Code Ann.§ l.07(a)(46) (West 2013) .......................................... 5, 9, 11


Cases

Barrera v. State
 820 S. W.2d 194 (Tex. App.-Corpus Christi 1991, pet. ref d) ......................... 8, 9

Blea v. State
 No. 02-13-00221-CR, 2015 Tex. App. LEXIS 1137
 at *13-14 (Tex. App.-Fort Worth Feb. 5, 2015, pet. field)
 (not designated for publication) .............................................................. 8, 9, 12, 13

Brown v. State
 605 S.W.2d 572 (Tex. Crim. App. [Panel Op.] 1980) ........................................... 8

Dewberry v. State
 4 S.W.3d 735 (Tex. Crim. App. 1999) ............................................................. 5, 13

Dobbs v. State
 434 S.W.3d 166 (Tex. Crim. App. 2014) ............................................................. 14

Hernandez v. State
 161 S.W.3d 491 (Tex. Crim. App. 2005) ............................................................. 14

Hooper v. State
 214 S.W.3d 9 (Tex. Crim. App. 2007) ......................................................... 4, 5, 13

Jackson v. Virginia
443 U.S. 307, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979) ......................... 4, 5



                                                     IV
Johnson v. State,
  No. 05-10-00465-CR, 2011 Tex. App. LEXIS 6208, at *12
  (Tex. App.- Dallas 2011 , no pet.) (not designated for publication) ................... 12

Laster v. State
 275 S.W.3d 512 (Tex. Crim. App. 2009) ............................................................... 5

Madden v. State
 911 S.W.2d 236 (Tex. App.- Waco 1995, pet. refd) ......................................... 11

Moore v. State
 739 S.W.2d 347 (Tex. Crim. App. 1987) ............................................................ ... 6

Nash v. State
 123 S.W.3d 534 (Tex. App.- Fort Worth 2003, pet. ref d) ................................... 6

Patterson v. State
 No. 11-06-00209-CR, 2008 Tex. App. LEXIS 1525, at *8
 (Tex. App.-Eastland 2008, pet. ref d) (not designated
 for publication) ....................................................................................................... 9

Pedro v. State
 No. 01-88-00197-CR, 1988 WL 139708, at 82 (Tex.
 App. -Houston [1st Dist.] Dec. 22, 1988, no pet.)
 (not designated for publication) .............................................................................. 9

Sizemore v. State
  387 3d 824 (Tex. App.- Amarillo 2012, pet. refd) .............................................. 9

Thomas v. State
 444 S.W.3d 4 (Tex. Crim. App. 2014) ................................................................ 14

Tucker v. State
 No. 05-01-01899-CR, 2002 WL 32397713, at *1-2 (Tex.
 App.- Dallas Oct. 30, 2002, no pet.) (not designated for publication) ......... 11, 12

Villarreal v. State
 716 S.W.2d 651 (Tex. App.- Corpus Christi 1986, no pet.) ............................... 12



                                                            v
Whatley v. State
 445 S.W.3d 159 (Tex. Crim. App. 2014) ............................................................. 14

Williams v. State,
 575 S.W.2d 30 (Tex. Crim. App. [Panel Op.] 1979) ........................................... 11

Wilson v. State
 139 S.W.3d 104 (Tex. App.-Texarkana 2004, pet. refd) .................................... 8

Winfrey v. State
 323 S.W.3d 875 (Tex. Crim. App. 2010) ............................................................. 13




                                                  Vl
                                        TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............ ................................................ ii

INDEX OF AUTHORITIES ................................................................................ iv-vi

STATEMENT OF THE CASE ................................................................................. 1

STATEMENT REGARDING ORAL ARGUMENT ............................................... 2

ISSUE PRESENTED ................................................................................................ 2

STATEMENT OF FACTS ........................................................................................ 2

SUMMARY OF THE ARGUMENT ........................................................................ 4

ARGUMENTS ................................ ................................................... ....................... 4

         Applied properly, the settled principles of an evidentiary
         sufficiency analysis prevent the appellate courts from
         becoming a thirteenth juror ............................................................................. 4

         Bodily injury versus serious bodily injury ...................................................... 5

         The facts of this case, as supported by the evidence, are
         sufficient to support the jury's finding that the complainant
         suffered serious bodily injury ......................................................................... 6

              1. A substantial risk of death .................................................................... 6

             2. Protracted loss or impairment of the function of
                any bodily member or organ ............................................................... 10

CONCLUSION ....................................................................................................... 13

PRAYER FOR RELIEF .......................................................................................... 15

CERTIFICATE OF COMPLIANCE ...................................................................... 16

CERTIFICATE OF SERVICE ................................................................................ 16

                                                          111
           IN THE COURT OF CRIMINAL APPEALS OF TEXAS

THE STATE OF TEXAS,                      §
   APPELLANT                             §
                                         §
      v.                                 §                   No. PD-0245-15
                                         §
JUAN BLEA,                               §
   APPELLEE                              §

                     STATE'S BRIEF ON THE MERITS


TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Comes now the State, by and through its Assistant District Attorney,

and respectfully submits its brief on the merits urging that the judgment of the

Second District Court of Appeals be reversed.

                         STATEMENT OF THE CASE

      Appellee was charged with, and found guilty of, the first-degree felony

offense of aggravated assault, family violence, and sentenced to five years

imprisonment. The majority opinion released by the Second Court of Appeals held

that the evidence supporting "serious" bodily injury was insufficient, and reversed

and remanded the case to the trial court. The majority opinion ordered the trial

court 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 famil y member through the use of a

                                         1
deadly weapon and (2) conduct a new trial on punishment. Justice Livingston filed

a   dissenting    opinion.     This   Court   granted    the   State's   Petition    for

Discretionary Review.

                 STATEMENT REGARDING ORAL ARGUMENT

      Because the issues presented to this Honorable Court for review are narrow

in scope, the State does not believe that oral argument will be helpful to the Court

in determining whether the Court of Appeals erred.

                               ISSUE PRESENTED

      Did the Second Court of Appeals improperly apply the standard for
      reviewing the sufficiency of the evidence in analyzing whether the
      complainant suffered serious bodily injury?

                             STATEMENT OF FACTS

      On July 20, 2010, Justina Fassett' was living with her young daughter and

her ex-boyfriend's parents (2 R.R. at 21-23, 75, 83). The ex-boyfriend, Appellee,

was the child's father but was living with a friend at the time (2 R.R. at 22-23).

      Appellee stopped by his parent' s home to visit but quickly observed a hickey

on Justina's neck and became upset (2 R.R. at 26-28, 118). Appellee's parents

were at work, and only Justina and the baby were home (2 R.R. at 26-27, 75-76).

Although Justina initially told Appellee that the hickey was "none of [his]

business," she finally admitted that she got the hickey from a male friend that she

      By the time of trial, the victim, Justina Fassett, had married Appellee and her
married name was Justina Blea (2 R.R. at 19, 73 , 90).
                                          2
had hung out with the previous night (2 R.R. at 28-30). Appellee hit Justina in the

face and told her that he was going to kill her (2 R.R. at 30-32). Justina asked

Appellee to stop because the baby was "fussy" (2 R.R. at 33, 125). Appellee

stopped and Justina put the baby in bed with a bottle (2 R.R. at 33, 35, 125).

       Appellee and Justina began fighting again, and Appellee hit Justina multiple

times in the face and ribs, and he continued to hit and kick her after she fell to the

ground (2 R.R. at 32-33, 35-36, 50, 125). The baby woke up and Appellee again

stopped (2 R.R. at 35, 37). Justina told Appellee they needed diapers, so Appellee

left and later returned with diapers (2 R.R. at 35, 37). The two had another verbal

argument, Appellee said that Justina was disrespectful, and then he left the home

(2 R.R. at 3 8).

       When Appellee's parents returned from work, they found Justina in a lot of

pain and having difficulty breathing (2 R.R. at 33, 36-37, 39-40, 43, 76-77, 84-85,

91, 117-18, 126).     She initially said that she had fallen down the stairs but

subsequently admitted that was not the truth (2 R.R. at 40, 77, 85-86). Appellee's

father called 9-1-1, and Justina was transported to Baylor Hospital via ambulance

(2 R.R. at 40-41, 60, 79, 86-88, 91, 96, 116). She was later transported to Parkland

Hospital, where she remained for four days for treatment and observation (2 R.R.

at 42-43, 60, 62, 67-72, 79, 97).




                                          3
      Justina suffered from a cut underneath her eye; a lacerated liver; a collapsed

lung (pneumothorax); two fractured ribs; fractures . to her maxillary sinuses;

bruising and scrapes to her ear, face, arms, legs, lower back, chest and abdomen;

and she had to have a chest tube inserted at the hospital to help her breathe (2 R.R.

at 39, 42-43, 61-69, 72, 94-95, 104-08, 117, 122, 125-26; State's Exhibits 1-17,

20-43, 46). Justina did not work for approximately one month after being released

from the hospital (2 R.R. at 44-45, 108).

                      SUMMARY OF THE ARGUMENT

      The evidence was legally sufficient to support that the complainant suffered

serious bodily injury.    The Second Court of Appeals improperly acted as a

thirteenth juror by determining that the evidence was insufficient in light of the

overwhelming evidence of the complainant's injuries and the seriousness of said

injuries prior to the effects having been ameliorated by medical treatment.

                                  ARGUMENTS

Applied properly, the settled principles of an evidentiary sufficiency analysis
prevent the appellate courts from becoming a thirteenth juror.

      In assessing the legal sufficiency of the evidence under Jackson v. Virginia,

a reviewing court "consider[s] all of the evidence in the light most favorable to the

verdict and determine[s] whether, based on that evidence and reasonable inferences

therefrom, a rational juror could have found the essential elements of the crime

beyond a reasonable doubt."      Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

                                            4
App. 2007 (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781,

2788-89, 61 L. Ed. 2d 560 (1979)). A reviewing court's role is not to become a

thirteenth juror, and it should not reevaluate the weight and credibility of the

record evidence and substitute its judgment for that of the fact-finder.

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).              Instead, a

reviewing court defers to "the responsibility of the trier of fact to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts." Hooper, 214 S.W.3d at 13 (quoting Jackson,

443 U.S. at 318-19). This same standard applies equally to circumstantial and

direct evidence. Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009).

A reviewing court's role on appeal is "restricted to guarding against the rare

occurrence when a factfinder does not act rationally." Id. at 518.

Bodily injury versus serious bodily injury.

      "Bodily injury" means physical pain, illness, or any impairment of physical

condition.   Tex. Penal Code Ann. § l.07(a)(8) (West 2013).          "Serious bodily

injury" means 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. Tex. Penal Code Ann. § l.07(a)( 46)

(West 2013) (emphasis added). The Texas Legislature intended that there be a

meaningful difference or distinction between the different definitions for "bodily


                                         5
injury" and "serious bodily injury," because the Penal Code provides definitions

for each. See Nash v. State, 123 S.W.3d 534, 538-39 (Tex. App.-Fort Worth

2003, pet. refd) (citing Moore v. State, 739 S.W.2d 347, 349 (Tex. Crim.

App. 1987)).

The facts of this case, as supported by the evidence, are sufficient to support
the jury's finding that the complainant suffered serious bodily injury.

               1. A substantial risk of death.

      Justina testified that her written statement, taken after the assault but prior to

being transported to the hospital, indicated that she was in "a ton of pain" after the

assault (2 R.R. at 36). She said that she had pain in her chest and back and that it

felt like something was broken or terribly injured (2 R.R. at 37).           When the

ambulance arrived, she could not breathe very well (2 R.R. at 39, 43). Likewise,

Appellee's father testified that when he first saw Justina, she looked pretty bad and

that she said her back hurt, and he noted that she couldn't walk (2 R.R. at 85, 91).

Tim Adamo, the responding officer from the Carrollton Police Department, also

testified that Justina was having a hard time breathing (2 R.R. at 118, 126).

Furthermore, he testified that Justina was in quite a bit of pain when he arrived:

she was holding her ribs, chest, and stomach area while seated on the couch

(2 R.R. at 115, 117-18). In fact, when Justina attempted to stand, she fell back on

the couch in pain (2 R.R.at 120).



                                          6
      Nurse Practitioner Kristie Brown, employed at Parkland Memorial Hospital,

testified that she came into contact with Justina on July 22, 20 I 0, and that Justina

suffered from a lacerated liver (2 R.R. at 26, 60). She explained that "the liver is a

filtering organ, a very large vascular organ that sits on the left - right side of our '

abdomen" (2 R. R.at 61 ). Nurse Brown testified that the liver plays a significant

role in one's body and is treated seriously in the medical profession (2 R.R.

at 65-66). She explained the following relating to the liver:

      "Injuries 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"

(2 R.R. at 66).

      Staff observed Justina every four to six hours, "mashed on her abdomen,"

routinely checked her liver and her reaction, and looked for signs of peritonitis

(inflammation of the abdomen from bleeding in the liver and irritation to the

abdomen) and noticed that the pain gradually progressed after twenty-four to

forty-eight hours of observation (2 R.R. at 62-63).

      Nurse Brown also testified that Justina suffered from a pneumothorax and

she said that injuries to the lungs are treated seriously in the medical field (2 R.R.

at 64-67). To assist in understanding the diagnosis of a pneumothorax, Nurse




                                          7
Brown testified to the following:

      "if you have a box and a balloon blown up inside the box and the
      balloon shrinks over time, there is air between the box and the
      balloon, that is a pneumothorax. Most of the time, the lungs should be
      expanded in our chest and touching the sides of the box, but when the
      lung collapses, it's just like a balloon that has a small leak in it and
      collapses down. When that occurs, the patient, Justina, can have
      trouble breathing and it can affect blood pressure, vital signs that we
      look at" (2 R.R. at 64-65).

Nurse Brown testified that Justina had undergone a procedure to assist with

breathing and that Justina's lungs subsequently provided adequate oxygen (2 R.R.

at 65, 67, 69). Justina's mother clarified that Justina had a chest tube inserted to

assist with her breathing but that it was removed before Justina was discharged from

the hospital (2 R.R. at 97, 104-05, 107-08, 110).

      The majority opinion in this case on appeal held 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."

Blea v. State, No. 02-13-00221-CR, 2015 Tex. App. LEXIS 1137 at *13-14 (Tex.

App.-Fort Worth Feb. 5, 2015, pet. field) (not designated for publication).

However, the relevant inquiry as to this issue is the extent of the injuries as inflicted,

not after the effects have been ameliorated by medical treatment. Wilson v. State,

139 S.W.3d 104, 106 (Tex. App.-Texarkana 2004, pet. refd) (emphasis added)

(citing Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App. [Panel Op.] 1980));

see Barrera v. State, 820 S.W.2d 194, 196 (Tex. App.- Corpus Christi 1991,
                                           8
pet. ref d); see also Patterson v. State, No. 11-06-00209-CR, 2008 Tex. App.

LEXIS 1525, at *8 (Tex. App.-Eastland 2008, pet. refd) (not designated for

publication) (testimony by emergency room physician sufficient to show that

pneumothorax, common with broken ribs, created a substantial risk of death). As

Justice Livingston stated in her dissenting opinion in this case:

      [T]he jury could have reasonably inferred that if the complainant had
      not received the procedure that Brown described (presumably, the
      tube that the complainant's mother testified about) to help with her
      difficulty in breathing, the complainant faced a substantial risk of
      death. See Sizemore v. State, 387 3d 824, 828 (Tex. App.-Amarillo
      2012, pet. refd); see also Patterson v. State, No. 11-06-00209-CR,
      2008 WL 564880, at *3 (Tex. App.-Eastland Feb. 28, 2008,
      pet. ref d) (not designated for publication) (concluding that testimony
      that the victim had trouble breathing and 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,
      No. 01-88-00197-CR, 1988 WL 139708, at 82 (Tex. App.-Houston
      [1st Dist.] Dec. 22, 1988, no pet.) (not designated for publication)
      ("[T]he possibility that [a collapsed lung] could cause death,
      combined with the testimony that the complainant's lung was
      punctured, does support a findings that [a knife] was capable of
      causing 'serious bodily injury."').
             Viewing the evidence in the light most favorable to the verdict
      and allowing the jury to draw reasonable inferences from the
      evidence, I would hold that based at least on the facts concerning the
      injury to the complainant's lung, that this injury required treatment
      through a tube, and that injuries to lungs can be life-threatening, the
      evidence was sufficient for the jury to find that without treatment, the
      complainant faced a substantial risk of death. See Tex. Penal Code
      Ann. § l.07(a)( 46).

Blea, 2015 Tex. App. LEXIS 1137 (Dissenting Opinion at 4-5).




                                          9
        Thus, the evidence of the injuries to the complainant's liver and/or

lungs was sufficient to support the jury's finding that the complainant

suffered serious bodily injury.

               2. Protracted loss or impairment of the function of any
                  bodily member or organ.

       In addition to Justina's multiple other injuries (a cut underneath her eye;

lacerated liver; collapsed lung (pneumothorax); fractures to her maxillary sinuses;

and bruising and scrapes to her ear, face, arms, legs, lower back, chest and

abdomen), Nurse Brown testified that Justina suffered from two fractured ribs,

which were treated by pain medication and incentive spirometry (deep-breathing

exercises) (2 R.R. at 39, 42-43, 61-69, 72, 94-95, 104-08, 117, 122, 125-26; State's

Exhibits 1-17, 20-43, 46). Justina testified that she didn't work for approximately

one month after being discharged from the hospital and that she was prescribed

pain medications (2 R.R. at 45). Justina testified that she rested while at home but

also said that she was out and about (2 R.R. at 35, 48). According to Justina, when

she returned to work where she was previously employed as a waitress, Justina

decided to be a host in order to avoid "everybody" (2 R.R. at 45-46). 2                           But



        Although Justina testified that she did not suffer from serious permanent disfigurement or
have protracted loss of the use of a bodily member or organ, she admitted on cross-examination
that she did not know what that meant and said it was something a doctor should have told her
about if it existed (2 R.R. at 4 7-48, 51 ). It should also be noted that Justina married Appellee after
the assault and prior to trial and did not wish to testify against Appellee (2 R.R. at 4 7).

                                                 10
according to Justina's mother, Jennifer Fassett, Justina moved in with her after

being discharged from the hospital and just "layed [sic] around" and couldn't work

because it hurt to walk (2 R.R. at 108-10). She also testified that Justina became a

hostess because she was unable to fulfill her previous duties as a waitress because

she could not lift over twenty-five pounds, per her physician's advice (2 R.R.

at 109-11 ). Furthermore, Jennifer testified that in the approximate month after

leaving the hospital, Justina could not care for herself even though she was able to

walk and go to the bathroom (2 R.R. at 109-10, 113-15).

      Thus, the evidence was sufficient to show that the complainant suffered a

serious bodily injury because she suffered from a protracted impairment of the

functioning of her body. See Tex. Penal Code Ann. §1.07(a)(46). In fact, Justice

Livingston stated in her dissenting opinion that:

      I would hold that these month-long effects from the assault qualify as
      a "protracted" impairment of the complainant's bodily functions.
      See Tex. Penal Code Ann. § l.07(a)( 46); Williams v. State,
      575 S.W.2d 30, 33 (Tex. Crim. App. [Panel Op.] 1979) (holding "that
      the injury which caused [the victim] to lose lifting power in his arm
      for three months" constituted a protracted impairment of the function
      of a bodily member, so that "the wound would be classified as serious
      bodily injury"); Madden v. State, 911 S.W.2d 236, 244-45 (Tex.
      App.-Waco 1995, pet. ref'd) (concluding that there was serious
      bodily injury by protracted impairment of a bodily member when the
      victim was shot in the hip, hospitalized for a day and a half, could not
      walk for a month after the shooting, and had permanent scar tissue
      where the bullet entered and exited his body); see also Tucker v. State,
      No. 05-01-01899-CR, 2002 WL 32397713, at *1-2 (Tex.



                                          11
      App.-Dallas Oct. 30, 2002, no pet.) (not designated for publication)
      (holding that there was protracted impairment when the victim had a
      fractured jaw, was restricted to a liquid diet for three weeks, and had
      jaw pain for a month).

Blea, 2015 Tex. App. LEXIS 1137 (Dissenting Opinion at 6).

      In contrast, the court in Villarreal found that there was no testimony that the

fractured ribs in that case created a substantial risk of death and that the injury was

not the type from which a trier of fact could infer a substantial risk of death from

the   Injury   itself.    See   Villarreal     v.   State,   716   S.W2d    651   (Tex.

App.-Corpus Christi 1986, no pet.). The court also held that evidence of the

victim's inability to raise his arms for ten days and pain for two weeks caused by

the pain of two fractured ribs, and the fractured ribs themselves, were insufficient

to show "serious bodily injury."       See Id.      However, other courts have held

otherwise based on the specific facts of their cases. The analysis is fact specific

and must be conducted on a case-by-case basis.                 See Johnson v. State,

No. 05-10-00465-CR, 2011 Tex. App. LEXIS 6208, at *12 (Tex. App.-Dallas

201 1, no pet.) (not designated for publication) (the victim's inability to use her

swollen eye for three weeks constituted protracted loss or impairment of that eye,

despite being a shorter time than that found insufficient in Villarreal).

      Here, the Second Court of Appeals improperly resolved conflicts in

witnesses' testimony against the jury's verdict. For example, the majority opinion

noted contradicting testimony as to the changes in duties at the complainant's job
                                          12
and whether those changes were related to her injuries; the court also noted

inconsistent testimony by the complainant's mother as to how long it took before

the complainant could walk.      The majority found a lack of evidence as to the

complainant being unable to control her oxygenation, and pointed out that although

the complainant testified that she suffered a lacerated liver, no other evidence of

such was presented (although there was evidence which allowed an inference of

such).     See Blea, 2015 Tex. App. LEXIS 1137 at          *   8-12.   But, it is the

responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts

(2 R.R. at 35, 45-46, 48, 108-11, 113-15).       See Dewberry, 4 S.W.3d at 740;

Hooper, 214 S.W.3d at 13.

                                  CONCLUSION

         A jury's verdict in evidentiary sufficiency issues are weighed in favor of

affirming a judgment of conviction. See Winfrey v. State, 323 S.W.3d 875, 879

(Tex. Crim. App. 2010). Settled principles aimed at preventing appellate courts

from becoming a thirteenth juror include: considering the evidence, along with

reasonable inferences from the evidence, in the light most favorable to the verdict;

deferring to the factfinder's exclusive role to resolve conflicts in the evidence, and

to judge the credibility of the witnesses; assessing incriminating evidence

cumulatively rather than requiring each fact to directly support guilt; allowing for


                                          13
circumstantial evidence alone to support a conviction; and recognizing that a

factfinder is free to accept or reject any or all of the testimony of any witness (see

Appendix A, Livingston's Dissent, citing Whatley v. State, 445 S.W.3d 159, 166

(Tex. Crim. App. 2014); Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014);

Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014); Hernandez v. State,

161 S.W.3d 491, 500-01 (Tex. Crim. App. 2005). Here, the majority improperly

acted as a thirteenth juror.

      In this case, a rational juror could have found the testimony sufficient to

prove Appellee caused serious bodily injury to Justina, beyond a reasonable doubt.

The testimony adduced at trial showed that Justina suffered a lacerated liver, which

can cause bleeding and can result in death, and a lung injury (pneumothorax),

which affects one's ability to breathe adequately (2 R.R. at 26, 60-67). Both of

these injuries are treated seriously by medical personnel (2 R.R. at 64-67). Justina

had difficulty breathing after the assault, but her lungs functioned normally after

hospital staff inserted a chest tube (2 R.R. at 39, 43 , 65 , 67, 69, 97, 104-05, 107-08,

110, 118, 126). Also, Justina suffered from two broken ribs, which required pain

medications and breathing exercises to tolerate the pain and assist in healing

(2 R.R. at 64, 69).




                                           14
                              PRAYER FOR RELIEF

         For the reasons stated herein, the State prays this Court will reverse the

judgment of the Second District Court of Appeals, find that the evidence is

sufficient to uphold Appellee's conviction, and affirm the judgment of the trial

court.

                                          Respectfully submitted,

                                          PAUL JOHNSON
                                          Criminal District Attorney
                                          Denton County, Texas

                                          CATHERINE LUFT
                                          Assistant Criminal District Attorney
                                          Chief, Appellate Division



                                          ANDREA R. SIMMONS
                                          Assistant Criminal District Attorney
                                          State Bar No. 24053478
                                          1450 East McKinney
                                          Denton, Texas 76209
                                          (940) 349-2600
                                          FAX (940) 349-2751
                                          andrea.simmons@dentoncounty.com




                                          15
                       CERTIFICATE OF COMPLIANCE

      The State certifies that the State ' s Brief on Merits in the instant cause
contains a word count of 3355, said count being generated by the computer
program Microsoft Word that was used to prepare the document.


                                            ~La_
                                        ANDREA R. SIMMONS
                                                          K- fuMmmo

                          CERTIFICATE OF SERVICE

      A true copy of the State's Brief on Merits has been sent by United States
Mail, postage prepaid, to counsel for Appellee, Joseph Boswell, BOSWELL &
MOORE, 1504 East McKinney Street, Suite 200, Denton, Texas 76209, on this,
the 23rd day of July 2015 .


                                            ~ .£ ~'ffiVJ\~
                                        ANDREA R. SIMMONS




                                       16
