
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

 


NO. 3-92-424-CR


JOSE LUIS GONZALEZ,

	APPELLANT

vs.



THE STATE OF TEXAS,

	APPELLEE

 

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 0923149, HONORABLE CHARLES LANCE, JUDGE PRESIDING
 



PER CURIAM
	At a trial on a two-count indictment, the jury found appellant guilty of recklessly
causing serious bodily injury, serious physical impairment, or disfigurement or deformity to a
child (count one).  Tex. Penal Code Ann. § 22.04(a)(1)-(3) (West Supp. 1993).  The jury also
found appellant guilty of intentionally or knowingly causing bodily injury to a child (count two). 
Id. § 22.04(a)(4).  The district court assessed punishment for each count at imprisonment for ten
years.
	In his first point of error, appellant contends that the evidence does not support his
conviction under count one of the indictment because the State failed to prove that the injury
suffered by the child was of the sort alleged in the indictment.  "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(34) (West 1974).  The phrases "serious physical impairment" and
"disfigurement or deformity" are not defined by statute. 
	The evidence shows that appellant twisted the leg of his two-month-old son, causing
a spiral fracture of the right femur.  The child did not die and there is no suggestion that his injury
was life-threatening.  The disputed issue on appeal is whether there is evidence from which the
jury could rationally conclude that the injury disfigured or deformed the child's leg, or resulted
in a serious or protracted loss or impairment of its function.  See Jackson v. Virginia, 443 U.S.
307 (1979); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). (1)  In resolving this dispute,
this Court looks to the disfiguring and impairing quality of the injury as it was inflicted, without
regard to the ameliorating or exacerbating effects of other actions such as medical treatment. 
Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App. 1980);  but see Moore v. State, 739
S.W.2d 347, 354-55 (Tex. Crim. App. 1987) (plurality opinion) (finding of serious bodily injury
cannot be based solely on answers to hypothetical questions that assume facts not in evidence).
	The relevant testimony was that of the orthopedic surgeon who treated the child:


Q	. . . .  Could you explain to the jury a little bit more -- or describe what
type of break that was to the thigh?

A	Yes.  There's what we describe as a spiral type fracture, meaning that
there's been a twisting type injury to the bone that caused this type of break.  The
bone is completely broken in two and separated.

	. . . .

Q	. . . .  Would it cause any injury to the tissue surrounding the bone, that
type of break?

A	Yes.  There would be damage to the surrounding muscle.  Potentially, the
nerves and blood vessels, but not in this instance.

Q	So you had muscle and tissue tearing, but no nerve damage?

A	Correct.

Q	Does the tearing of the tissue and the muscles from the bone cause any kind
of problems with the movement of the leg?

A	In the short term.  Once the healing process begins, typically the motion
and strength return.

Q	Are there sometimes problems with growth in such injuries?

A	Yes.  With this type of injury, there are frequently problems with
deformity, angulation in the bone as well as leg length and quality would
be -- when the child is finished growing there are differences in the lengths
of the two legs.

Q	At this time, with [the complainant], can you determine whether or not he
is going to have any bone growth problem?

A	I cannot.  I'd have to follow him.

Q	Would a certain amount of time have to pass or could you explain to the
jury whether you will be able to determine if there's going to be problems?

A	You can have a pretty good idea within a year to two years.  But sometimes
you have to follow them all the way until they have finished growing.

Q	Is there -- is [the child] at risk that this may possibly happen in the future,
he would have growth problems?

A	Yes.

	. . . .

Q	Is there a substantial risk in this type of injury that there would be some
growth problems?

A	Yes.

Q	When you first saw [the child] do you recall whether he was able to move
the injured leg?

A	I do not recall exactly, but I would expect that he was unable to move it.

	. . . .

Q	Now with regard to the thigh injury, did you have to do anything in order
to set that leg or what sort of treatment did you do on the thigh bone?

A	You simply straighten the leg and apply a cast.

	. . . .

Q	And this spike cast, would you describe that to the jury?

A	That's a cast which goes down the entire side of one leg and comes up over
the chest and goes halfway down the other leg to immobilize the break in
the thigh.

Q	Okay.  So with that type of cast on, is the child able to move the leg that
was broken --

A	No.

Q	-- at all?  And is the child able to roll over and that sort of thing with that
type of cast on?

A	No.

	. . . .

Q	I'd like to ask you what would have been the result if the child's leg had
not been treated the way that you've just described, if it has [sic] just been
left.

A	There would have been potential for deformity.

Q	And I believe you stated earlier disfigurement.  Would it also -- could it
also cause disfigurement of the child?

A	Yes, it would.

Q	Would it be possible if not treated that the leg could have been permanently
impaired?

A	It's possible.

Q	How long did that cast stay on this child's leg; do you recall?

A	I don't have my office notes, but I would suspect around six weeks.

Q	. . . .  After the cast was removed, is the leg immediately back to normal
where the child can use it just as he had before the cast has been put on?

A	No.  There's a recovery period where the strength has to return as well as
the motion in the joints.  The recovery period is very short for a three-month-old, whereas it's longer for an adult.

Q	Can you venture an estimate about how long it would be that the recovery
period in this age child would be?

A	Probably a couple of weeks.

	. . . .

Q	So did the cast that was applied to [the child] impair his physical movement
and kind of slow down his development as far as crawling?

A	That's correct.  For the period of time that he's in the cast would set him
back that much in terms of motor development.

Q	So he wouldn't be quite as far along as other children his age after that cast
was taken off and recovery?

A	He would be about six weeks behind.


	We hold that the jury could rationally conclude from the doctor's testimony that
appellant caused a serious physical impairment of the child's leg.  To impair, in this context,
means to do harm to or to diminish in strength.  Webster's Third New International Dictionary
(1986).  The doctor testified that the child's femur was broken completely in two and that, as a
result, the child could not move the leg.  We believe that this constituted a serious physical
impairment, keeping in mind that it is the impairing quality of the injury as it was inflicted that
is determinative.  Because the evidence is sufficient to sustain the conviction on this basis, we
need not decide if the State proved its alternative allegations.  Vasquez v. State, 665 S.W.2d 484,
486 (Tex. Crim. App. 1984).  Point of error one is overruled.
	In point of error two, appellant complains of the district court's failure to give a
requested instruction to the jury.  In paragraph V of its charge to the jury, the court applied the
law to the facts with respect to the offense alleged in count one of the indictment, the intentional
or knowing infliction of serious bodily injury, serious physical impairment, or disfigurement or
deformity to a child.  At the conclusion of this paragraph, the court instructed the jury that if it
had a reasonable doubt as to appellant's guilt of this offense, it was to acquit him on count one
and proceed to consider the lesser included offense of reckless infliction of the alleged injuries to
the child.  In paragraph VI, the court applied the law to the facts with respect to this lesser
included offense and concluded with the instruction that if the jury had a reasonable doubt as to
appellant's guilt of this offense, it was to acquit him thereof and proceed to consider the lesser
included offense of criminally negligent infliction of the injuries.  Paragraph VII of the charge
applied the law to the facts with respect to this lesser included offense and ended with the
instruction to acquit appellant of this offense if the jury had a reasonable doubt as to his guilt. 
Paragraphs VII, IX, and X repeated this pattern with respect to count two, beginning with the
alleged offense, the intentional or knowing infliction of bodily injury to a child, followed by the
lesser included offenses of reckless and criminally negligent infliction of bodily injury.  It was at
this point in the charge that appellant asked the court to insert this instruction:  "If you have a
reasonable doubt as to whether the defendant is guilty of any offense defined hereinabove, then
you will find defendant NOT GUILTY."  
	Appellant relies on the opinion in Boyett v. State, 692 S.W.2d 512 (Tex. Crim.
App. 1985).  In Boyett, the court said that in cases in which the jury charge includes lesser
included offenses, it is the better practice to instruct the jury that if it has a reasonable doubt
whether the defendant is guilty of any offense defined in the charge, it will find the defendant not
guilty.  692 S.W.2d at 516.  The court also stated that the best location for this instruction is after
the last lesser included offense in the charge.  Id. 
 Boyett was decided before Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App.
1991).  In Geesa, the court adopted an instruction on reasonable doubt to be given in every
criminal case.  The prescribed instruction includes this paragraph:  "In the event you have a
reasonable doubt as to the defendant's guilt after considering all the evidence before you, and
these instructions, you will acquit him and say by your verdict `Not guilty.'"  820 S.W.2d at 162. 
This paragraph is substantially identical to that recommended in Boyett and requested by appellant. 
We conclude that Geesa modifies Boyett to the extent that Geesa's mandatory instruction on
reasonable doubt differs from the instruction recommended in Boyett.  We also note that the
charge contained this additional instruction:  "Now bearing in mind the foregoing instructions and
definitions, if you find the State has failed to prove each element of the offense beyond a
reasonable doubt or if you have a reasonable doubt thereof, you will acquit the defendant and say
by your verdict `Not Guilty.'"  We hold the court's failure to give the requested instruction, if
error, caused appellant no harm.  Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1985) (opinion on motion for rehearing).  The second point of error is overruled.
	After the Court of Criminal Appeals announced its opinion in Morrison v. State,
845 S.W.2d 882 (Tex. Crim. App. 1992), and before this cause was submitted for disposition,
this Court granted appellant leave to file a supplemental brief raising a third point of error.  Tex.
R. App. P. 74(o).  By this point, appellant contends that the district court erred by permitting the
jurors to question witnesses by submitting written questions to the court.  In Morrison, the court
held that such a practice is error because it encourages jurors to depart from their role as passive
listeners and assume an active adversarial or inquisitorial stance.  Id. at 887.
	We agree with the State that this point of error was not preserved for review.  The
defendant in Morrison objected at trial to the submission of questions by the jury.  845 S.W.2d
at 883 n.1.  In this cause, on the other hand, appellant voiced no trial objection to the procedure. (2) 
In order to preserve a complaint for appellate review, a party must present to the trial court a
timely request, objection, or motion stating the specific grounds for the ruling desired.  Tex. R.
App. P. 52(a).  The third point of error is overruled.
	The judgment of conviction is affirmed.


[Before Chief Justice Carroll, Justices Aboussie and Jones]
Affirmed
Filed:  April 28, 1993
[Publish]
1.        In applying the law to the facts in its charge to the jury, the district court authorized
appellant's conviction on a theory not alleged in the indictment:  that he recklessly caused a
serious mental deficiency.  Appellant does not complain of this and the State does not contend that
appellant's conviction is supportable on this theory, for which there is no evidence in the record.
2.        The only witness to whom questions were directed by the jury was appellant's wife. 
Appellant objected to the court reviewing the submitted questions with counsel at the bench
without excusing the jury from the courtroom.  He also objected to one of the submitted questions. 
Both of these objections were overruled.  Appellant does not bring forward either of these rulings
in this point of error.
