             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                       NO. PD-0245-15


                                   JUAN BLEA, Appellant

                                               v.

                                  THE STATE OF TEXAS

               ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE SECOND COURT OF APPEALS
                               DENTON COUNTY

              ALCALA , J., delivered the opinion for a unanimous Court.

                                        OPINION

       In its sole ground in its petition for discretionary review, the State contends that the

court of appeals erred by reversing the conviction of Juan Blea, appellant, for first-degree

aggravated assault of a family member against his then-girlfriend, Justina Fassett. Blea v.

State, No. 02-13-00221-CR, 2015 WL 510954, at *1 (Tex. App.—Fort Worth Feb. 5, 2015,

pet. granted). The State challenges the court of appeals’s determination that the evidence

was legally insufficient to establish the element of “serious bodily injury.” T EX. P ENAL C ODE

§ 22.02(b)(1). The State asserts that, in deciding whether appellant caused serious bodily
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injury to Fassett, the court of appeals should have examined the injuries as they were inflicted

by appellant, rather than assessing the injuries in their improved or ameliorated condition

after medical treatment.1 We agree with the State. In light of the evidence showing that

appellant’s actions lacerated Fassett’s liver and collapsed her lung; that Fassett was taken to

the hospital due to her trouble breathing; that she was hospitalized for four days; that her lung

injury required a tube to permit breathing; and in light of the testimony describing her risk

of death from the type of injuries that she sustained, the jury could have rationally inferred

that Fassett’s injuries caused her a substantial risk of death. Concluding that the evidence

is legally sufficient, we reverse the judgment of the court of appeals, and we reinstate the trial

court’s judgment against appellant.

                                        I. Background

       Appellant lived with his parents and Fassett until he moved out of their shared

apartment in early July 2010. Later that month, appellant went to the apartment to visit

Fassett and their baby daughter. During the visit, appellant noticed a “hickey” on Fassett’s

neck, and he asked about it. Appellant became angry when Fassett reported getting the mark

from a man the night before, and he told her that he was going to kill her. He hit Fassett in

the face with his hand one time, using either an open or closed fist, causing her to fall down.

Fassett then went into another room to put their daughter to bed. Upon her return to the


1
  The State’s petition asks, “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?”
                                                                                            Blea - 3

living room, appellant hit Fassett’s body on her side, and he struck her more than once with

his open hand and closed fist. Fassett was unable to specifically describe how appellant hit

her, saying that he may also have kicked her. When the baby woke up, appellant left the

apartment to buy diapers. Upon his return to the apartment, the couple argued again before

he left.

           Fassett stated that, after the assault, she had been in “a lot” or “a ton” of pain in her

back and her chest. She also said that she felt like something had been broken or terribly

injured during the assault. When appellant’s parents returned to the apartment at Fassett’s

request, they observed that Fassett was “hurting.” She told them that she had fallen down

the stairs, but they did not believe her, and they called the police.

           The responding officer saw Fassett’s condition after the assault. He recalled that,

when she tried to stand up, “she fell back to the couch in pain.” The officer observed that

she had visible injuries to her face in that the area under one eye was bruised and had a cut

on it, and she had other scrapes to her face. She also had redness to her arm and early

bruising. The officer noted that Fassett had one arm holding her ribs, her chest, and her

stomach area. After hearing Fassett say that she was having a hard time breathing and was

in a lot of pain, the officer called an ambulance.

           Fassett was admitted into a hospital where she remained for four days, during which

time she was treated for a collapsed lung with the insertion of a chest tube. Her injuries

additionally included a lacerated liver, two rib fractures, and a fractured maxillary sinus bone.
                                                                                         Blea - 4

Due to these injuries, Fassett was unable to return to work for approximately a month.

Appellant was charged and convicted of first-degree aggravated assault of a family member

for causing Fassett serious bodily injury by using a deadly weapon.

       Finding that the evidence failed to establish that Fassett suffered serious bodily injury,

a majority of the court of appeals held that the evidence was legally insufficient to establish

first-degree aggravated assault against a family member, and it remanded for a new

punishment hearing on the lesser offense of second-degree aggravated assault. Blea, 2015

WL 510954, at *1. The court’s majority explained that the evidence that Fassett had a

collapsed lung and lacerated liver failed to show that she faced a substantial risk of death,

and, thus, serious bodily injury was not established on that basis. Id. at *5. Similarly, the

court’s majority found no evidence that Fassett suffered protracted loss or impairment of the

function of a bodily member or organ, which could have been an alternative basis for

upholding the jury’s finding that there was serious bodily injury. Id. The court’s majority

reasoned that, although there was testimony from a treating nurse that an injury to a person’s

liver can result in her bleeding to death and that a patient with a collapsed lung can die from

an inability to breathe, that evidence did not establish that Fassett had serious bodily injury.

Id. The Court’s majority explained that the treating nurse testified that “the complainant had

a collapsed lung, but it had already been treated when [she] met the complainant[.]” Id. at

*4. The court’s majority determined that, even though Fassett had injuries to her liver and

to her lung, and even though it is possible for someone with those injuries to die from them,
                                                                                       Blea - 5

there was no evidence that Fassett’s injuries created a substantial risk of death. Id. at *4-5.

The court’s majority explained that bodily injury cannot be elevated to serious bodily injury

by postulating potential complications that are not in evidence. Id. at *3. One justice

dissented, concluding that the evidence was legally sufficient to establish serious bodily

injury because, if Fassett’s injuries had been left untreated, she would have faced a

substantial risk of death from her injuries, and she would have suffered protracted loss or

impairment of the function of a bodily member or organ. Id. at *7-8.

                                         II. Analysis

       The State challenges the reasoning of the court of appeals’s majority opinion by

asserting that Fassett had serious bodily injury based on the evidence that (1) appellant

caused Fassett to have a substantial risk of death and/or (2) he caused her protracted loss or

impairment of the function of a bodily member or organ. The State explains that the jury

could have inferred these consequences from the totality of the evidence describing Fassett’s

injuries to her liver and lung. We agree with the State as to the first alternative, and

therefore, we need not address the second alternative for upholding the jury’s finding on the

element of serious bodily injury.

       A. Applicable Law for Sufficiency of the Evidence for Aggravated Assault

       We review the sufficiency of the evidence under the standard set forth in Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979). We view the evidence in the light most favorable to

the verdict to determine whether any rational trier of fact could have found the elements of
                                                                                      Blea - 6

the offense beyond a reasonable doubt. Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim.

App. 2014). The “jury is the sole judge of credibility and weight to be attached to the

testimony of witnesses.” Id. “When the record supports conflicting inferences, we presume

that the jury resolved the conflicts in favor of the verdict, and we defer to that

determination.” Id.

       We agree with the court of appeals’s description of the elements of first-degree

aggravated assault of a family member as requiring evidence that the actor used a deadly

weapon during the commission of the assault, and as further requiring proof that the actor

caused serious bodily injury to a family member. See T EX. P ENAL C ODE § 22.02(b)(1). We

also agree with the court of appeals’s reliance on the Penal Code’s definition for “serious

bodily injury” as being “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.” Id. § 1.07(a)(46). We part with the court of appeals’s

majority, however, in its decision to weigh the effects of any medical treatment in its

determination that the evidence failed to establish the element of “serious bodily injury.”

       B. Applicable Law for Evidence Sufficiency on Serious Bodily Injury

       In deciding whether the evidence showed that there was a substantial risk of death

from an injury, the court of appeals split in its assessment of whether it was proper to

consider the effects of the medical treatment received by Fassett. The court of appeals’s

majority considered the evidence of Fassett’s injuries after medical treatment, whereas the
                                                                                         Blea - 7

dissenting opinion considered the evidence of her injuries as inflicted by appellant before her

treatment. This split in the court of appeals is understandable, perhaps, in light of a slight

inconsistency in this Court’s precedent regarding the proper analysis under these

circumstances. On the one hand, the vast majority of decisions from this Court have held that

the relevant inquiry is the degree of risk posed by the injury as it was inflicted without regard

to the positive effects of medical treatment. Brown v. State, 605 S.W.2d 572, 575 (Tex.

Crim. App. 1980). In Brown, the specific issue was whether the complainant’s broken and

deformed nose could qualify as “serious bodily injury” under either the “serious permanent

disfigurement” or the “protracted . . . impairment of the function of any bodily member or

organ” alternatives, when the bone had been successfully set through medical treatment,

thereby preventing disfigurement and impairment of function. Id. This Court held that the

Brown complainant’s broken and deformed nose could be fairly categorized as serious bodily

injury, reasoning that “[t]he relevant issue was the disfiguring and impairing quality of the

bodily injury as it was inflicted, not after the effects had been ameliorated or exacerbated by

other actions such as medical treatment.” Id. In Stuhler v. State, this Court observed that it

has “long held that in assessing the sufficiency of the evidence to establish serious bodily

injury, the question is the degree of risk of death that the injury caused, or the disfiguring or

impairing quality of the injury, ‘as it was inflicted, not after the effects had been ameliorated

or exacerbated by other actions such as medical treatment.’” 218 S.W.3d 706, 714 (Tex.

Crim. App. 2007) (quoting Fancher v. State, 659 S.W.2d 836, 838 (Tex. Crim. App. 1983));
                                                                                         Blea - 8

see also Webb v. State, 801 S.W.2d 529, 532 (Tex. Crim. App. 1990) (citing Brown for the

proposition that the relevant inquiry is the degree of risk posed by the injury as inflicted, not

after the effects have been ameliorated or exacerbated by medical treatment).2

       On the other hand, in a single case, a plurality of this Court held the contrary position

that it is appropriate to consider whether a victim had a substantial risk of death after taking

into consideration the effects of medical treatment on the injury. Moore v. State, 739 S.W.2d

347, 353-54 (Tex. Crim. App. 1987). In Moore v. State, the jury found Moore guilty of

aggravated assault by causing serious bodily injury by stabbing his victim. Id. Reasoning

that “[p]rofessional medical attention and treatment is a fact of modern life,” a plurality of

this Court determined that it was appropriate to consider whether, after medical treatment,

the victim faced a substantial risk of death. Id. at 354. The plurality opinion explained, “[I]t

appears likely that the Legislature intended that bodily injuries which create a ‘substantial

risk of death’ should be understood to mean only those injuries for which a substantial risk

of death exists even if treated promptly according to accepted medical practice, when and to

the extent that medical treatment is available at the time of the injury.” Id.

       For three reasons, we disavow this portion of Moore. First, under the plain language



2
 The Brown standard has also been followed by intermediate courts of appeals in Texas. Jackson
v. State, 399 S.W.3d 285, 291 (Tex. App.—Waco 2013, no pet.); Sizemore v. State, 387 S.W.3d 824,
828 (Tex. App.—Amarillo 2012, pet. ref’d); Eustis v. State, 191 S.W.3d 879, 884 (Tex.
App.—Houston [14th Dist.] 2006, pet. ref’d); Wilson v. State, 139 S.W.3d 104, 106 (Tex.
App.—Texarkana 2004, pet ref’d); Nash v. State, 123 S.W.3d 534, 539 (Tex. App.—Fort Worth
2003, pet. ref’d); Hernandez v. State, 946 S.W.2d 108, 113 (Tex. App.—El Paso 1997, no pet.);
Barrera v. State, 820 S.W.2d 194, 196 (Tex. App.—Corpus Christi 1992, pet. ref’d).
                                                                                       Blea - 9

in the definition for “serious bodily injury,” the question is whether the injury “creates a

substantial risk of death.” T EX. P ENAL C ODE § 1.07(a)(46). The statute’s plain language

refers to the injury caused by the offender, and it does not require consideration of any

medical treatment that may have lessened the impact of the injury. Second, Moore is an

isolated case that is inconsistent with the numerous other holdings by this Court that consider

the risk of death as inflicted by a defendant without modification by the additional

consideration of the effects of medical treatment. Third, Moore is a plurality opinion from

1987, with six judges concurring, and it is therefore not binding precedent. See Unkart v.

State, 400 S.W.3d 94, 100 (Tex. Crim. App. 2013) (“Plurality opinions do not constitute

binding authority.”). Therefore, to the extent that Moore is in conflict with our other

precedent, we now disavow that case.

       We hold that, in determining whether a bodily injury creates a substantial risk of

death, a court should apply the Brown standard that considers the disfiguring and impairing

quality of the bodily injury as it was inflicted on a complainant by an offender. Brown, 605

S.W.2d at 575. Accordingly, when evaluating the sufficiency of the evidence to determine

whether there was a serious bodily injury, an appellate court should not consider the

amelioration or exacerbation of an injury by actions not attributable to the offender, such as

medical treatment. See id.

       C. Analysis

       By focusing on the risk of death after medical treatment rather than as it had been
                                                                                         Blea - 10

caused by appellant, the court of appeals’s majority misapplied the law to the facts. Viewing

the evidence in a light most favorable to the jury’s implicit finding that Fassett faced a

substantial risk of death from her injuries, the evidence is legally sufficient to establish first-

degree aggravated assault.

       The jury could have rationally determined that Fassett’s injuries created a substantial

risk of her death. When she had trouble breathing, Fassett was taken by ambulance to a

hospital, where a tube was inserted into her lungs in order to permit her to breathe. Fassett’s

nurse described this kind of lung injury as a serious injury because lungs control breathing,

which is necessary to sustain life, and she said that lung injuries such as these can affect a

person’s blood pressure and “vital signs.” Additionally, the State presented evidence

showing that Fassett had a lacerated liver. The nurse described a lacerated liver as a serious

injury that could cause a patient to “bleed to death very quickly.” Fassett’s injuries required

her hospitalization for multiple days and she was unable to return to her regular work for

weeks. In light of this evidence, the jury could have rationally inferred that there was a

substantial risk of Fassett’s death from the totality of her injuries. We further observe that

serious bodily injury may be established without a physician’s testimony when the injury and

its effects are obvious. See Sizemore v. State, 387 S.W.3d 824, 828 (Tex. App.—Amarillo

2012, pet. ref’d). We conclude, therefore, that the evidence was sufficient to show that the

injuries appellant inflicted upon Fassett resulted in a substantial risk of death to her, and thus,

constituted serious bodily injury. T EX. P ENAL C ODE § 1.07(a)(46). Having determined that
                                                                                      Blea - 11

appellant caused a substantial risk of death to Fassett, we need not address the other

alternative ways that serious bodily injury may be proven. See id. (serious bodily injury may

be proven by evidence of 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).

                                      III. Conclusion

       Having concluded that a jury rationally could have determined that appellant’s actions

caused injuries to Fassett’s lung and liver causing her a substantial risk of death, we reverse

the judgment of the court of appeals and reinstate the judgment of the trial court.




Delivered: February 10, 2016

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