




COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 
2-01-038-CR
 RODERICK 
NASH                                   
APPELLANT
 
V.
 
THE STATE OF 
TEXAS                                 
STATE
 
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FROM 
CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY 
 
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OPINION
 
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I.  Introduction
        Appellant Roderick Nash appeals from his conviction for aggravated 
assault causing serious bodily injury.  In three points, he argues that the trial 
court erroneously allowed a magistrate to conduct jury selection and that the 
evidence is legally and factually insufficient to support the verdict.  We affirm.
 
 
II.  Factual Background 
        On September 13, 2000, Nash knocked on Alexander Garza’s door.  Nash 
and Garza had been friends for about two years.  Nash told Garza that he and 
another friend wanted to talk to Garza about some business, so Garza and Nash 
went outside where Nash’s companion was sitting in the driver’s seat of a car 
parked at the curb.  Garza got in the car and sat in the passenger seat. 
        The driver stated that he was “from the old school” and that he wanted 
to tell Garza something.  He then pulled out a small revolver.  Garza grabbed the 
gun, and a struggle ensued.  When the man yelled at Nash to hit Garza in the 
head, Nash pulled Garza out of the car by his waist and neck and threw him to 
the ground.  Nash then “stomped” on Garza’s left ankle, breaking the tibia and 
fibula.
        Garza went to All Saints Hospital and was treated and released.  Garza 
did not have surgery that evening because he did not have the insurance to pay 
for the procedure.  He went to Tarrant County’s John Peter Smith Hospital a 
week later for surgery.  A second surgery was later required because Garza 
developed an infection.  At trial, Garza testified that he had been unable to walk 
on his foot for over two months.  The jury was charged on both assault and 
aggravated assault. 
 
III.  Referral of Jury Selection to Magistrate 
        In his first point, Nash contends that the trial court erroneously allowed 
a magistrate to conduct jury selection in violation of section 54.656 of the 
Texas Government Code.  Tex. Gov’t Code Ann. § 54.656(c) (Vernon 1998) 
(“A magistrate may not preside over a trial on the merits, whether or not the 
trial is before a jury.”).  This court has twice previously held that in order to 
challenge the trial court’s referral of voir dire to a magistrate, the appellant must 
have preserved error in the trial court.  See Lemasurier v. State, 91 S.W.3d 
897, 900 (Tex. App.—Fort Worth 2002, pet. ref’d); McKinney v. State, 880 
S.W.2d 868, 870 (Tex. App.—Fort Worth 1994, pet. ref’d).  Although Nash’s 
attorney objected before voir dire began, the extent of his objection was that 
“the defendant objects to the magistrate conducting jury selection.  He asks 
that Judge Wilson or another district judge sit in her place to conduct voir dire.” 
In response, the trial court overruled the motion, stating that “[t]his case has 
been referred to [the] magistrate by the district judge just for jury selection 
only.  Anything else?”
        To preserve a complaint for our review, a party must have presented to 
the trial court a timely request, objection, or motion that states the specific 
grounds for the desired ruling if they are not apparent from the context of the 
request, objection, or motion.  Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 
S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 
1070 (1999).  An objection is sufficient to preserve error for appellate review 
if the objection communicates to the trial court what the objecting party wants,
why the objecting party thinks himself or herself entitled to relief, and does so
in a manner clear enough for the court to understand the objection and request
at a time when the court is in a position to do something about it.  See
Lankston v. State, 827 S.W.2d 907, 908-09 (Tex. Crim. App. 1992); Taylor
v. State, 93 S.W.3d 487, 504 (Tex. App.—Texarkana 2002, pet. ref’d); see
also Anderson v. State, 817 S.W.2d 69, 73 n.4 (Tex. Crim. App. 1991)
(stating it is not necessary for counsel to specify the rule under which he is
complaining, but only to so frame his objection so that it may be clearly
understood by the trial court).
        The specific grounds for Nash’s complaint against the magistrate 
conducting voir dire are not apparent from the context of his objection.  While 
Nash was not necessarily required to state which statute or law he was relying 
on in support of his objection, he was required to inform the trial court why he 
believed he was entitled to the ruling requested.  Nash provided no basis for 
why he was entitled to relief.  Furthermore, because section 54.656(c) of the 
government code does not specifically state that a magistrate cannot conduct 
voir dire, we cannot presume that the magistrate might have been aware of the 
basis for the objection from the context in which it was made.
  Thus, we hold 
that the objection failed to preserve error on the complaint made on appeal.  We
overrule Nash’s first point.V.  Sufficiency of the Evidence
        In his second and third points, Nash argues that the evidence was legally 
and factually insufficient to support his conviction for aggravated assault 
because there was no evidence of serious bodily injury.  In reviewing the legal 
sufficiency of the evidence to support a conviction, we view all the evidence
in the light most favorable to the verdict in order to determine whether any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App.
2001).  This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.  Jackson, 443 U.S. at
319, 99 S. Ct. at 2789.  When performing a legal sufficiency review, we may
not sit as a thirteenth juror, re-evaluating the weight and credibility of the
evidence and, thus, substituting our judgment for that of the fact finder. 
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,
529 U.S. 1131 (2000).
        In reviewing the factual sufficiency of the evidence to support a 
conviction, we are to view all the evidence in a neutral light, favoring neither 
party.  Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis v. 
State, 922 S.W.2d 126, 129, 134 (Tex. Crim. App. 1996).  Evidence is 
factually insufficient if it is so weak as to be clearly wrong and manifestly 
unjust or the adverse finding is against the great weight and preponderance of 
the available evidence.  Johnson, 23 S.W.3d at 11.  Therefore, we must 
determine whether a neutral review of all the evidence, both for and against the 
finding, demonstrates that the proof of guilt is so obviously weak as to 
undermine confidence in the verdict or the proof of guilt, although adequate if 
taken alone, is greatly outweighed by contrary proof.  Id.  In performing this 
review, we are to give due deference to the fact finder’s determinations.  Id. at 
8-9; Clewis, 922 S.W.2d at 136.  We may not substitute our judgment for that 
of the fact finder’s.  Johnson, 23 S.W.3d at 12.  Consequently, we may find 
the evidence factually insufficient only where necessary to prevent manifest 
injustice.  Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d 404, 407 
(Tex. Crim. App. 1997).
        To make a determination of factual insufficiency, a complete and detailed 
examination of all the relevant evidence is required.  Johnson, 23 S.W.3d at 
12.  A proper factual sufficiency review must include a discussion of the most 
important and relevant evidence that supports the appellant’s complaint on 
appeal.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
        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. § 1.07(a)(46) (Vernon 2003).  Bodily injury means physical pain, illness, 
or any impairment of physical condition.  Id. § 1.07(a)(8).  Because the penal 
code provides a different definition for “bodily injury” than for “serious bodily 
injury,” the Texas Court of Criminal Appeals has instructed us in Moore v. State 
that we must presume that the Texas Legislature intended that there be a 
meaningful difference or distinction between the two.  739 S.W.2d 347, 349 
(Tex. Crim. App. 1987).  Whether an injury constitutes serious bodily injury 
must be determined on a case-by-case basis.  Id. at 352. 
        In examining the definition of “serious bodily injury,” the Moore court 
explained that “protracted” means extended, lengthened, prolonged, or 
continued.  Id.  The injury in the case before us did not create a substantial risk 
of death or cause death or serious permanent disfigurement.  Thus, for Nash’s 
conviction of aggravated assault to stand, the record must reflect legally 
sufficient evidence of protracted loss or protracted impairment of the use of a 
bodily member or organ, as required by the statute.  Tex. Penal Code Ann. § 
22.02.  The relevant issue is the disfiguring and impairing quality of the bodily 
injury as it was inflicted, not after the effects have been ameliorated or 
exacerbated by other actions such as medical treatment.  Brown v. State, 605 
S.W.2d 572, 575 (Tex. Crim. App. [Panel Op.] 1980), overruled on other
grounds, Hedicke v. State, 779 S.W.2d 837 (Tex. Crim. App. 1989). 
        Although the State offered no expert medical testimony of causation, 
degree of loss or impairment of the function of the ankle, or prognosis, Garza 
testified without objection regarding his injuries and prognosis, the subsequent 
infection at the operation site and his additional surgery, and his physical 
disability and missed work.  Garza testified that after the stomping attack, he 
could not stand or walk and that both bones in his lower leg had been broken.  
At the hospital, he was told that he would need surgery and that it would take 
six months to a year for his leg to completely heal.  During surgery, a plate, a 
rod, and some pins were implanted in his ankle.  While recovering from surgery, 
Garza could not put weight on his left foot because it was too painful.  Eight 
weeks after surgery, Garza had been told that although the bone had healed, 
his doctors had discovered that his ankle had become infected.  As a result, a 
second surgery was performed, and the plate was removed.  After the second 
surgery, Garza again had to wear a cast and could only walk with crutches. 
        Two and a half months after the accident, Garza returned to work, but 
had to use crutches to walk.  Garza testified that he now wears a walking boot 
so that he will not limp.  He still wears the boot because “I don’t do enough 
therapy or I haven’t gone to enough therapy or done the right things for it to 
heal, I would imagine.”  On cross examination, Garza stated that he was not in 
a position to say how long “the injury is going to be” because he is not a doctor 
and that he could not give a medical diagnosis regarding the injuries to his ankle 
or testify as to what the doctors did to him.  
        The State also introduced X-rays without objection from which Garza 
pointed out the fractures, the subsequent surgery, and the location of metal 
plates.  Medical records from Garza’s emergency room visit to All Saints 
Hospital were admitted as Defendant’s Exhibit Two.  His injury was  described 
in the record as “a nondisplaced distal fibular fracture.  There is a minimally 
displaced medial malleolar fracture.  Ankle mortise appears intact.  There is a 
joint effusion.”  Severity of pain at the time was described as moderate.  The 
records show that Garza’s leg was splinted, he was given crutches and a drug 
prescription for pain, and he was sent home.  Although the written instructions 
from the hospital did not schedule specific follow-up visits, Garza was 
instructed to “FOLLOW-UP WITH [HIS] DOCTOR IN 2-3 DAYS.”  The 
instructions also stated that “[t]he typical broken bone requires only protection 
and sufficient time for healing. . . .  The length of time depends on the location 
and type of fracture, and on the age of the patient.  The treatment plan the 
physician has outlined for you is customized to your fracture and health 
condition.”  Garza did not return to All Saints for further treatment or surgery 
because he did not have insurance to cover the expense.  He had surgery a 
week later at Tarrant County’s John Peter Smith Hospital.
        Garza’s fiancée, Dorinda McCoy, testified that she went with Garza to St. 
Joseph’s Hospital for the initial treatment.
  He was taken in an ambulance, and 
she followed in her car.  The emergency room personnel dressed Garza’s ankle
with a half-cast and wrapped it.  McCoy testified that “[t]hey said if he didn’t
get surgery within the next two days, it would start healing on its own and they
will have to rebreak it.”  The record contains no evidence of who “they” are. 
Garza had surgery at least a week later.  McCoy testified that after the first
surgery, Garza’s ankle became infected and a second surgery was required.  
        The injury to Garza’s ankle was not shown to have created a substantial 
risk of death or serious permanent disfigurement.  The evidence shows, 
however, that Garza could not walk or stand after the attack; he had at least 
one surgery after the attack because of the injuries he sustained in the attack; 
he had a plate, a rod, and some pins implanted in his ankle during the first 
surgery; he could not put weight on his left foot after his first surgery; another 
surgery was necessary because an infection developed; after his second 
surgery, he had to have a cast put on and use crutches to walk for an 
unspecified length of time; he could not return to work for two and a half 
months and had to use crutches to walk when he returned to work; and he 
currently uses a boot to walk because of a limp.  Applying the proper standard 
of review, we hold that the evidence was legally sufficient to demonstrate a 
protracted loss or impairment of a bodily member; thus, the evidence was 
legally sufficient to show serious bodily injury.   Furthermore, we do not believe 
the evidence is so weak as to be clearly wrong and manifestly unjust or the 
adverse finding is against the great weight and preponderance of the available
evidence. Consequently, we overrule Nash’s second and third points.  
 
IV.  Conclusion
        Having overruled Nash’s points on appeal, we affirm the trial court’s 
judgment. 
 
 
                                                          SAM J. DAY
                                                          JUSTICE
 
EN BANC
                LIVINGSTON, J. filed a concurring opinion.
                DAUPHINOT, J. filed a dissenting opinion.
                   CAYCE, C.J.; GARDNER and WALKER, JJ. concur in result only. 
 
PUBLISH
 
DELIVERED:  October 23, 2003


 
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 2-01-038-CR
 RODERICK 
NASH                                            
APPELLANT
V.
 
THE STATE OF 
TEXAS                                            
STATE
 
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
 
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CONCURRING OPINION
 
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        While I agree with the disposition of the case by the majority, I write 
separately because I believe section 54.656 of the Texas Government Code 
does not prohibit a magistrate from conducting jury selection.  Tex. Gov't 
Code Ann. § 54.656(c) (Vernon 1998) (“A magistrate may not preside over 
a trial on the merits, whether or not the trial is before a jury.”) (emphasis 
added).  Neither of our prior opinions related to this issue have ever reached 
the conclusion that the magistrate's act prohibits a magistrate from 
conducting voir dire because it is part of the “trial on the merits.”  See 
Lemasurier v. State, 91 S.W.3d 897, 900 (Tex. App.—Fort Worth 2002, 
pet. ref'd); McKinney v. State, 880 S.W.2d 868, 870 (Tex. App.—Fort 
Worth 1994, pet. ref'd).  In both cases, the appellants failed to preserve 
error because they had failed to lodge an objection, so the issue was not 
before us in either case.  Lemasurier, 91 S.W.3d at 900; McKinney, 880 
S.W.2d at 870.  The majority here concludes that appellant's objection was 
insufficient to preserve error.  Majority Op. at 5.  I believe the record shows 
appellant clearly preserved error by his timely and sufficient objection—it 
was clear he was objecting to a magistrate conducting voir dire and was 
asking a district judge to handle voir dire.  Thus, I believe the issue is 
squarely before us and should be addressed. 
        As noted by the majority, several courts have determined that “trial on 
the merits” commences after voir dire is completed.  See, e.g., State v. 
Turner, 898 S.W.2d 303, 306 (Tex. Crim. App. 1995) (holding that if 
defendant fails to object to a defect in the indictment before the date on 
which the trial on the merits commences, he waives and forfeits the right to 
object to the defect— interpreting article 1.14(b) of the code of criminal 
procedure), overruled on other grounds, Proctor v. State, 967 S.W.2d 840 
(Tex. Crim. App. 1998); Thornton v. State, 957 S.W.2d 153, 156 (Tex. 
App.—Fort Worth 1997) (concluding that a trial is considered to commence 
when jeopardy attaches, i.e., when jury is empaneled because it is at that 
point that defendant is “put to trial before the trier of facts”—interpreting 
section 3.04(a) of the penal code, when to sever), aff'd, 986 S.W.2d 615 
(Tex. Crim. App. 1999); Carpenter v. State, 952 S.W.2d 1, 6 (Tex. 
App.—San Antonio 1997) (holding trial “commences” at the same point that 
jeopardy attaches—interpreting article 28.10 of the code of criminal 
procedure, when indictment can be amended), aff'd, 979 S.W.2d 633 (Tex. 
Crim. App. 1998); Dixon v. State, 932 S.W.2d 567, 569 (Tex. App.—Tyler 
1995, no pet.) (allowing amendment to the indictment up until the trial on 
the merits commences—interpreting article 28.10 of the code of criminal 
procedure); Hinojosa v. State, 875 S.W.2d 339, 342 (Tex. App.—Corpus 
Christi 1994, no pet.) (holding trial on the merits under code of criminal 
procedure commences at the time the jury is empaneled and sworn, i.e., at 
the same time jeopardy attaches—interpreting article 28.10); see also Tex. 
Code Crim. Proc. Ann. arts. 1.14(b), 3.04, 28.10 (Vernon 1989 & Supp. 
2003).  Therefore, I would hold  that voir dire is not a portion of the “trial on 
the merits” for purposes of the magistrate's act and that the trial court did 
not err in allowing the magistrate to conduct it.
        Although I can see many compelling reasons we would prefer the trial 
court judge who will hear the "trial on the merits" to sit during voir dire, I do 
not believe the statute requires this.  For this reason, I respectfully concur.
                                                 TERRIE 
LIVINGSTON 
                                                 JUSTICE
 
PUBLISH
 
DELIVERED:  October 23, 2003

 
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 2-01-038-CR
 
RODERICK 
NASH                                               APPELLANT
 
V.
 
THE STATE OF 
TEXAS                                              STATE
 
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
 
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DISSENTING OPINION
 
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I.
        I respectfully dissent from the majority’s holding that Appellant failed to 
preserve his complaint to the magistrate’s conducting voir dire.  As the majority 
concedes, Appellant made a timely objection to the magistrate’s conducting voir 
dire and asked that a district judge preside over voir dire.
  I cannot disagree 
more strongly with the majority’s unfounded statement that the grounds of
Appellant’s complaint “are not apparent from the context of his objection.”
  
The grounds are abundantly apparent.  The majority’s guess that the magistrate
may not have been sufficiently familiar with the law to understand that the
prohibition against conducting a trial on the merits might include jury voir dire
insults both the magistrate and the intelligence of this state’s bench and bar.
        The State nowhere claims that Appellant did not preserve his complaint.  
I join the concurring opinion of Justice Livingston in concluding that Appellant 
“clearly preserved error by his timely and sufficient objection.”
  As the 
concurring opinion states, this “issue is squarely before us and should be
addressed.”
 
II.
        Two years ago, the Texas Court of Criminal Appeals held, 
[a] trial court may have jurisdiction to act over a case, yet lack
authority to act in a particular manner over that case. . . . Lack of
authority to act in a particular manner may render the judgment
either void or voidable depending on the type of the error, however. 
Unauthorized acts (or errors) can be characterized as either “illegal”
or “irregular.” . . . “Illegal acts” are defined as “acts that are not
authorized by law.” . . . On the other hand, “irregular acts” are
defined as “acts or practices that vary from the normal conduct of
an action.” . . . While a judgment is merely “voidable for
irregularity,” it is “void for illegality.”


        Our sister court in El Paso has addressed the void vs. voidable issue in the 
context of an assigned visiting judge whose oath had expired before he issued 
a judgment nisi:
Because Judge Woodard was required to take the
constitutional oaths, but did not do so, all judicial actions taken by
him in the case below were without authority. [Lone Star Indus.,
Inc. v. Ater, 845 S.W.2d 334, 337 (Tex. App.—El Paso 1992, no
writ).]  The Judgment Nisi therefore is without effect.
 
. . . .
 
Because Prieto Bail Bonds raised its complaint about Judge 
Woodard's qualifications at the trial level, as required under Wilson 
[v. State, 977 S.W.2d 379 (Tex. Crim. App. 1998)], we need not 
reach the question of whether his actions in this case were done 
wholly without authority, and thus are void, or were simply 
procedurally infirm, and therefore merely voidable.  Under either 
analysis, we must reverse.  But we feel bound to observe that the 
Court of Criminal Appeals has held in a similar situation, involving 
an "alternative" municipal judge who had never taken the oaths of 
office, that:  "without the taking of the oath prescribed by the 
Constitution of this State, one cannot become either a de jure or de 
facto judge, and his acts as such are void."


        A trial court “‘may take a particular action only if that action is authorized 
by constitutional provision, statute or common law, or the power rises from an 
inherent or implied power.’”
 At the time of Appellant’s trial, the duties that a 
Tarrant County court might properly refer to a magistrate were expressly
delineated in section 54.656 of the government code.  That section provided:
(a) A judge may refer to a magistrate any criminal case for
proceedings involving: 
 
(1)a negotiated plea of guilty before the court;
(2)a bond forfeiture;
(3)a pretrial motion;
(4)a postconviction writ of habeas corpus;
(5)an examining trial;
(6)an occupational driver’s license; and
(7)any other matter the judge considers necessary
and proper.


        It also provided that “[a] magistrate may accept a plea of guilty for a 
misdemeanor from a defendant charged with both misdemeanor and felony 
offenses.”
  Finally, it provided that “[a] magistrate may not preside over a trial 
on the merits, whether or not the trial is before a jury.”

        The concurring opinion argues that there is a distinction between a trial 
and a trial on the merits.  This proposition is correct.  In one criminal case, there 
may be a jury trial on competence to stand trial.  There may be an examining 
trial.  There may be a trial on the merits to determine guilt.  The State and the 
concurring opinion also argue that jury selection is not part of the trial on the 
merits.  This court, however, held in Watson v. State, when we determined that 
the Texas Rules of Evidence apply to jury selection, that jury selection is an 
integral part of a trial on the merits in a criminal case.
 
        This court’s precedent does not stand alone.  The Texas Code of Criminal 
Procedure assumes jury selection is part of the trial on the merits when it 
provides, in article 33.03, that a defendant in a felony prosecution “must be
personally present at the trial,” although “the trial may proceed to its
conclusion” “when the defendant voluntarily absents himself . . . after the jury
has been selected.”
  Article 33.03 further provides that “[w]hen the record
in the appellate court shows that the defendant was present at the
commencement, or any portion of the trial, it shall be presumed in the absence
of all evidence in the record to the contrary that he was present during the
whole trial.”
 
        Similarly, the Texas Court of Criminal Appeals has held that a defendant’s 
right to be present at trial is not waivable until after the jury has been 
selected.
  The jury is “selected” when the parties turn in their jury lists, 
indicating their peremptory strikes.
  The day the trial on the merits 
commences has traditionally been considered the day jury selection begins.

        To hold that the trial on the merits does not begin until jeopardy attaches, 
which is after jury selection,
 would deepen the quagmire we already find 
ourselves in with motions to quash.  In that scenario, a defendant could hold
his motion to quash the indictment until after each side had submitted its strike
list so long as the jury was seated and sworn on the following day.
  In a 
capital murder trial, if the trial on the merits did not begin until jeopardy
attached, a criminal defendant could wait until the last juror and alternate had
been chosen to urge his motion to quash because the jury is usually sworn on
some day after the end of voir dire.  The Texas Legislature cannot have
intended to give the criminal defendant such a generous opportunity to sandbag
the State.
        Additionally, instead of the timeliness of the motion to quash being 
determined by when it is filed, its timeliness would instead be determined by 
the ruling thereon, as long as it was filed before the jury was sworn.  A granted 
motion to quash would be deemed timely if filed before the jury was sworn 
because the trial would never commence in that action; a denied motion to 
quash would be deemed untimely simply by the trial court’s swearing the jury 
and ordering the defendant to enter his plea on the same day.  
        As Justice James from the Dallas Court of Appeals, joined by Justice 
Fitzgerald and Justice Richter, has stated in a slightly different context, 
                An example may be seen in a situation where a 
defendant is charged under two charging instruments 
and moves to quash both charging instruments.  If the 
court grants one motion and denies the other, 
subsequently proceeding with the swearing and 
impaneling of the jury the same day, the granted 
motion will be considered timely for appeal purposes, 
but the denied motion would be considered untimely 
and thus waived.  I do not read the code as intending 
such contrasting results stemming from identical 
actions.


        When a party is notified of the setting date for the trial on the merits, the 
party is notified of the date jury selection begins.  When a motion for new trial 
is granted or a case is remanded for a new trial on the merits, the trial on the 
merits perforce includes jury selection.  As we have previously stated, jury 
selection is an integral part of the jury trial.
  In a jury trial, the date the trial on 
the merits commences can only be the date both sides announce ready for trial
and begin jury selection.  We speak of the close of the evidence in the trial on
the merits.
  Thus, the hearing of evidence is but one step in the trial on the 
merits.
        Based on the above rationale, the version of section 54.656(c) of the 
government code that was in force at the time of Appellant’s trial prohibited the 
Tarrant County trial court from referring Appellant’s case to a magistrate for 
jury selection because jury selection is an integral part of a jury trial on the 
merits.  No other statutory or constitutional provision allowed what section 
54.656(c) prohibited at that time, nor did the district court have inherent power 
to do what the governing statute prohibited.
 
        Additionally, the Texas Legislature recognized this prohibition when it 
amended sections 54.656(c) and 54.658 to allow the magistrate to conduct the 
voir dire portion of a jury trial, effective September 1, 2003.
  Senate bill 922, 
allowing a Tarrant County magistrate to select a jury, was presented to the
judicial committee by Senator Chris Harris.  During his presentation, he stated
that it was important to pass the legislation because in Tarrant County the
magistrates were already sitting-in on jury selections on a temporary basis. 
While perhaps not dispositive of the issue, Senator Harris’s comments are an
indication of the Texas Legislature’s original intent in passing the legislation
authorizing magistrates in Tarrant County, as well as the legislature’s intent in
amending the applicable statutes.
        Just as a district court cannot act outside its authority, neither can a 
magistrate.  When a “district judge has authority over the case, the magistrate 
is qualified to be a magistrate, and he performs an act authorized . . . [by] 
Section 54.656, his acts are not void.”
  Implicitly, then, if the magistrate 
performs an act not authorized by section 54.656, his act is void.

        In Davis, the trial court was authorized to refer the case to the 
magistrate, and the magistrate was authorized to perform the acts he 
performed, but the order referring the case to him was signed too late.  The 
error was thus procedural and irregular, not illegal.  Consequently, the 
conviction was not void, but voidable.

        In French v. State, a temporary appointed municipal judge's actions were 
held void because he had not taken the oath of office required for elected 
judges and appointed officers by Article 16, section 1 of the Texas 
Constitution.
 
         In Gambling Paraphernalia v. State, the Dallas Court of Appeals held that 
a criminal district court reversibly erred by referring a forfeiture matter to a 
magistrate because, although it related to a criminal matter, it was not in and 
of itself a criminal case.
  The matter was thus beyond the district court’s 
powers and “outside the magistrate’s statutory authority.”

        The Dallas court based its decision, in part, on Dean v. State.
  In that 
case, a Dallas County criminal district court had referred a case to a magistrate
for expunction.  The Dallas Court of Appeals held that an expunction was not
a criminal case and that under the statute in existence at the time, a criminal
district court could not properly refer the case to a magistrate, and a magistrate
could not properly hear it.
  The Dallas Court of Appeals therefore concluded 
that the expunction was void.

        Like the trial courts in Seidel, Gambling Paraphernalia, and Dean, the 
district court in Appellant’s case acted without authority in referring this case 
to a magistrate for jury selection.  Like those courts and the municipal judge in 
French, the district court in Appellant’s case was never authorized under any 
constitutional or statutory provision to take the actions it took—it was never 
authorized to refer the duty of jury selection to a magistrate.  Also, like the 
magistrates in Seidel, Gambling Paraphernalia, and Dean, the magistrate in 
Appellant’s case was never qualified under the constitution or statutes to take 
the actions he took; he was never qualified to conduct jury selection.  
        A magistrate’s authority is analogous to that of a visiting judge in a civil 
case.  In a civil case, if there is no objection to the case’s being heard by a 
visiting judge, the actions of the visiting judge have the same force and effect 
as those of the elected judge.
  If either party lodges a timely objection to the 
visiting judge’s hearing the case, however, the visiting judge is automatically
disqualified, and all actions and orders of the visiting judge subsequent to the
objection are void.
  What voids the visiting judge’s actions subsequent to 
objection is the objection itself.  Through its objection, the party completes the
steps necessary to assert its right to a duly elected judge and simultaneously
preserves any ensuing error should its assertion be ignored.
        In a criminal case tried in Tarrant County before September 1, 2003, the 
governing statutes specifically denied the magistrate the authority to conduct 
jury trials.
  Jury selection is an integral part of a jury trial.
  While the trial 
court had jurisdiction over jury selection, it had no authority to refer jury
selection to the magistrate, and the magistrate had no authority to conduct it.
By voicing a timely objection, Appellant asserted his right to have the duly
elected district judge preside over the jury selection portion of the trial and
simultaneously preserved the trial court’s error for our review.
  Under Seidel 
and the clear mandate of the governing portions of chapter 54 of the
government code, we are obligated to hold that the orders and rulings of the
magistrate in conducting jury selection are void.
  The jury that convicted 
Appellant was thus a void jury, the verdict it delivered is void, and the judgment
based on that verdict is void.  This court should sustain Appellant’s first point.
 
III.
        Appellant has also complained that the evidence is legally insufficient to 
support his conviction for aggravated assault because there was no evidence 
of serious bodily injury.
  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.
  Bodily injury means physical pain, illness, or any 
impairment of physical condition.
  Because the penal code provides a different 
definition for “bodily injury” than for “serious bodily injury,” the Texas Court of
Criminal Appeals has instructed us in Moore v. State that we must presume
that the Texas Legislature intended that there be a meaningful difference or
distinction between the two.
  Whether an injury constitutes serious bodily 
injury must be determined on a case-by-case basis.
 
        In examining the definition of “serious bodily injury,” the Moore court 
explained that “protracted” means extended, lengthened, prolonged, or 
continued.
  The injury in the case before us did not create a substantial risk 
of death or cause death or serious permanent disfigurement.  Thus, for
Appellant’s conviction of aggravated assault to stand, the record must reflect
legally sufficient evidence of protracted loss or protracted impairment of the use
of a bodily member or organ, as required by the statute.
  The relevant issue 
is the disfiguring and impairing quality of the bodily injury as it was inflicted, not
after the effects have been ameliorated or exacerbated by other actions such
as medical treatment.
 
        At trial, Appellant moved for an instructed verdict on the basis that the 
State had failed to prove serious bodily injury.  Appellant pointed to the Moore 
court’s explanation of the term “protracted.”
  The State offered no expert 
medical testimony of causation, degree of loss or impairment of the function of
the ankle, or prognosis.  Medical records admitted as Defendant’s Exhibit Two
consisted exclusively of emergency room reports.  The injury was described as
“a nondisplaced distal fibular fracture.  There is a minimally displaced medial
malleolar fracture.  Ankle mortise appears intact.  There is a joint effusion.” 
Severity of pain was described as moderate.  
         The only testimony concerning the extent of Garza’s injuries or his 
prognosis was that of Garza himself.  Garza testified:
•      that both bones in his lower leg were broken in the stomping attack;
•      about the subsequent infection at the operation site and his additional 
surgery;
•      about his physical disability and missed work;
•      that at the hospital he talked to a nurse and that “they” told him it would 
take six months to a year for his leg to completely heal; 
•      that he was not in a position to say how long “the injury is going to be” 
because he is not a doctor;  
•      that he could not answer any questions about his ankle or about what the 
doctors did to him;  
•      that a plate, a rod, and some pins had been implanted in his ankle during 
the surgery;
•      that the plate had been removed;   
•      that he had been told the bone had healed and that he would be using a 
walking boot without crutches; 
•      that he wore a walking boot so that he would not limp; and  
•      that he still wore the boot because “I don’t do enough therapy or I 
haven’t gone to enough therapy or done the right things for it to heal, I 
would imagine.”   
The State introduced X-rays from which Garza pointed out the fractures, the
subsequent surgery, and the location of metal plates.   
        Garza’s fiancée, Glenda McCoy, testified that she went with Garza to St. 
Joseph’s Hospital for the initial treatment.  He was taken in an ambulance, and 
she followed in her car.  The emergency room personnel dressed Garza’s ankle 
with a half-cast and wrapped it.  McCoy testified that “[t]hey said that if he 
didn’t get surgery within the next two days, it would start healing on its own 
and they w[ould] have to rebreak it.”  The record contains no evidence of who 
“they” were.  Garza had surgery at least a week later.  McCoy testified that 
after the first surgery, Garza’s ankle became infected and a second surgery was 
required.  He was off work for two and a half months.    
        The emergency room record indicates only minor fractures.  Garza’s leg 
was splinted, he was given crutches and a drug prescription for the moderate 
pain he suffered, and he was sent home.  The written instructions from the 
hospital specifically state that no definite follow-up visits had been scheduled.  
The instructions, which Garza did sign, also state that “[t]he typical broken 
bone requires only protection and sufficient time for healing . . . .  The length 
of time depends on the location and type of fracture, and on the age of the 
patient.  The treatment plan the physician has outlined for you is customized 
to your fracture and health condition.”  Whatever the customized treatment 
plan was, it did not include a specific date for a return visit.  Garza was 
instructed that no follow-up visits had been scheduled but that he should 
“FOLLOW-UP WITH [HIS] DOCTOR IN 2-3 DAYS.”  Garza left the hospital 
before signing the remaining emergency room documents. 
        Although Garza testified he still had a little bit of a limp, there was no 
evidence whether the cause of the limp was the minor fracture of his ankle, the 
infection that resulted after surgery, or something totally different.  Nothing in 
the record shows whether the first surgery was the result of the injury, Garza’s 
delay in seeking treatment, or some other new and independent cause.  Garza 
was able to work, there was no evidence that any of his activities were 
restricted, and no medical testimony or medical records indicated protracted 
loss or impairment of the use of his ankle.  As the trial judge pointed out, Garza 
walked into the courtroom.  
        The injury to Garza’s ankle was not shown to have created substantial 
risk of death or serious permanent disfigurement.  As in Moore, the only 
evidence we can find in the record to support the jury’s implicit finding that 
Appellant caused the complainant serious bodily injury is Garza’s speculative 
testimony, with no medical basis, and the emergency room record that 
described only bodily injury.  Because the evidence is legally insufficient to 
support a finding of serious bodily injury, we should reform the judgment to 
reflect a conviction for the lesser included offense of assault.

        Because the majority fails to address the merits of Appellant’s complaint 
that the magistrate conducted voir dire and because the majority holds that the 
evidence is legally sufficient to support Appellant’s conviction for aggravated 
assault, I respectfully dissent.
 
 
                                                  LEE ANN DAUPHINOT
                                                  JUSTICE
 
PUBLISH
 
DELIVERED:  October 23, 2003
