                                                                    PD-0245-15
                     PD-0245-15                        COURT OF CRIMINAL APPEALS
                                                                        AUSTIN, TEXAS
                                                    Transmitted 3/12/2015 12:30:09 PM
                                                        Accepted 3/13/2015 9:39:39 AM
         IN THE COURT OF CRIMINAL APPEALS OF        TEXAS                ABEL ACOSTA
                                                                                 CLERK

JUAN BLEA,                   §
    APPELLEE                 §
                             §
    v.                       §                   No.
                             §
THE STATE OF TEXAS,          §
   APPELLANT                 §

         STATE'S PETITION FOR DISCRETIONARY REVIEW

     FROM THE SECOND DISTRICT OF TEXAS AT FORT WORTH
              IN CAUSE NUMBER 02- 13-0022 1-CR
                            AND
          FROM THE 362No JUDICIAL DISTRICT COURT,
    THE HONORABLE BRUCE MCFARLING, JUDGE, PRESIDING;
   THE HONORABLE SHERRY SHIPMAN FROM THE 16THJUDICIAL
             DISTRICT COURT, AS SITTING JUDGE
                  DENTON COUNTY, TEXAS
                                 PAUL JOHNSON
                                 Criminal District Attorney
                                 Denton County, Texas

                                 CATHERINE LUFT
                                 Assistant Criminal District Attorney
                                 Chief, Appellate Division
                                 ANDREA R. SIMMONS
                                 Assistant Criminal District Attorney
         March 13, 2015          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

Appellee ...................................................... JUAN BLEA

                                                        DAWN MOORE
                                                        1504 East McKinney Street
                                                        Suite 200
                                                        Denton, Texas 76209
                                                        APPELLATE COUNSEL

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

                                                        TRIAL 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

                                                        APPELLATE COUNSEL

                                                        MICHAEL GRAVES
                                                        DUSTIN GOSSAGE
                                                        Assistant Criminal District Attorneys
                                                        TRIAL COUNSEL


                                                   11
                                        TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ...................................................... .ii-iv

INDEX OF AUTHORITIES ................................................................................. v-vi

STATEMENT REGARDING ORAL ARGUMENT ............................................ 1-2

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

STATEMENT OF PROCEDURAL HISTORY ....................................................... 2

GROUND FOR REVIEW ........................................................................................ 2

ARGUMENTS ........................................................................................................... .

         Applied properly, the settled principles of an evidentiary sufficiency
         analysis prevent the appellate courts from becoming a thirteenth juror......... .3

         Bodily injury versus serious bodily injury ..................................................... .4

        The majority opinion was wrong as the jury could have reasonably
        inferred that absent medical treatment, the injury to the complainant's
        lungs and liver could have resulted in a substantial risk of death.
        Furthermore, the evidence was sufficient to support seriously bodily
        injury where the complainant suffered from a protracted impairment
        of the functioning of her body as a result of the assault ................................. .4

PRAYER FOR RELIEF ............................................................................................ 9

CERTIFICATE OF COMPLIANCE ...................................................................... 10




                                                          111
CERTIFICATE OF SERVICE ............................................................................... 10

APPENDICES:

  A             Blea v. State, No. 02-13-00221-CR, 2015 Tex. App. LEXIS 1137
               (Tex. App. -Fort Worth Feb. 5, 2015, pet. filed)




                                                  IV
                                   INDEX OF AUTHORITIES


Statutes, Rules and Codes                                                                                Page

Tex. Penal Code Ann. § l.07(a)(8) (Vernon 2013) .................................................. 4

Tex. Penal Code Ann. §l.07(a)(46) (Vernon 2013) .............................................. 4-5

Cases

Barrera v. State
 820 S.W.2d 194 (Tex. App.- Corpus Christi 1991, pet. ref d) ......... .................... 7


Blea v. State
 No. 02-13-00221-CR, 2015 Tex. App. LEXIS 1137 (Tex. App. -
 Fort Worth Feb. 5, 2015, pet. filed) ....................................... ............................ 2, 8


Brown v. State
 605 S.W.2d 572 (Tex. Crim. App. [Panel Op.] 1980) .. ......................................... 7


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

Dobbs v. State
 434 S.W.3d 166 (Tex. Crim. App. 2014) ............................................................... 8


Hernandez v. State
 161 S.W.3d 491 (Tex. Crim. App. 2005) ............. ... ... ......................................... 8-9


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


Jackson v. State
  399 S.W.3d 285 (Tex. App. - Waco 2013, no pet.) (mem. op.)) ........................... 7

                                                      v
Jackson v. Virginia
  443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) ......................................... 3


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


Moore v. State
 739 S.W.2d 347 (Tex. Crim. App. 1987) ........................................................... 4, 7


Nash v. State
 123 S.W.3d 534 (Tex. App.-Fort Worth 2003, pet. ref d) .................................. 4


Patterson v. State
 No. 11-06-00209-CR, 2008 Tex. App. LEXIS 1525 (Tex. App.-
 Eastland 2008, pet. ref d) (not designated for publication) ................................... 7


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


Whatley v. State
 445 S.W.3d 159 (Tex. Crim. App. 2014) ............................................................... 8


Wilson v. State
 139 S.W.3d 104 (Tex. App.-Texarkana 2004, pet. refd) ................................... 7


Winfrey v. State
 323 S.W.3d 875 (Tex. Crim. App. 2010) ............................................................... 8




                                                   VI
           IN THE COURT OF CRIMINAL APPEALS OF TEXAS

JUAN BLEA                                 §
   APPELLANT                              §
                                          §
      v.                                  §                   No.
                                          §
THE STATE OF TEXAS,                       §
   APPELLEE                               §


           STATE'S PETITION FOR DISCRETIONARY REVIEW


TO THE HONORABLE COURT OF CRIMINAL APPEALS:

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

and respectfully urges this Court to grant discretionary review of the

above-named cause.

              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.

                         STATEMENT OF THE CASE

      Appellant 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

                                         1
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 family member through the use of a

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

a dissenting opinion.

                  STATEMENT OF PROCEDURAL HISTORY

       After a jury found appellee guilty of the first-degree felony offense of

aggravated assault against a family member, the Second Court of Appeals reversed

and remanded the trial court' s judgment of conviction, specifically finding the

evidence insufficient to support "serious" bodily injury (Appendix A [Blea v. State,

No. 02-13-00221-CR, 2015 Tex. App. LEXIS 1137 (Tex. App. - Fort Worth Feb.

5, 2015, pet. filed)]).

                           GROUND FOR REVIEW

       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?




                                         2
                                   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.

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.



                                           3
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) (Vernon 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)

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

meaningful difference or distinction between the different definitions for "bodily

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. ref'd) (citing Moore v. State, 739 S.W.2d 347, 349 (Tex. Crim.

App. 1987).

The majority opinion was wrong as the jury could have reasonably inferred
that absent medical treatment, the injury to the complainant's lungs and liver
could have resulted in a substantial risk of death. Furthermore, the evidence
was sufficient to support seriously bodily injury where the complainant
suffered from a protracted impairment of the functioning of her body as a
result of the assault.

      Here, viewing the evidence in the light most favorable to the verdict and

allowing the jury to draw reasonable inferences, the facts relating to the injury to

the complainant's lungs were sufficient for the jury to find that without treatment

the complainant faced a substantial risk of death based upon her injuries to the lung

and/or liver. See Tex. Penal Code Ann. §1.07(a)(46). Furthermore, the evidence
                                         4
was sufficient to show that the complainant sustained a serious bodily injury based

upon the suffering from a protracted impairment of the functioning of her body.

See Id. Specifically, appellee hit the complainant in the face, hit and kicked her in

the side and ribs, and said he was going to kill her (2 R.R. at 30, 32-33, 50).

According to the complainant's written statement, taken after the assault by

appellee but prior to being transported to the hospital, she was in "a ton of pain"

after the assault (2 R.R. at 36). The complainant 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 33,

36-37' 39, 43).

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

testified that the complainant was having a hard time breathing when he arrived (2

R.R. at 118, 126). Officer Adamo also testified that the complainant was in quite a

bit of pain when and was holding her ribs, chest, and stomach area while seated on

the couch (2 R.R. at 115, 11 7-18). Appellee' s father testified that the complainant

looked pretty bad and could not walk (2 R.R. at 84-85).

      Kristie Brown, nurse practitioner at Parkland Memorial Hospital, testified

that the complainant suffered injuries to her liver and chest (2 R.R. at 61-62). The

complainant also had bruising to the left side of her face and abdomen, two

fractured ribs, and fractures to the maxillary sinuses (2 R.R. at 63-65). Her lung


                                         5
collapsed (this is called a pneumothorax), and when Nurse Brown met the

complainant, a procedure had already been done to help with her breathing (2 R.R.

at 64-65, 67). The complainant's mother clarified that the complainant had a chest

tube inserted to assist with her breathing but that it was removed before she was

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

testified that injuries to the lungs are treated seriously and that a person could die

from lack of oxygen (2 R.R. at 66-67). She elaborated by saying that:

      "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 further testified that mJunes to the liver are also treated

seriously (2 R.R. at 66-67). And although the complainant's liver was always

functioning, a patient could bleed to death quickly due to such an injury (2 R.R. at

65-66, 68-69). In fact, the complainant was originally not allowed to walk because

she could start bleeding (2 R.R. at 68).

      The complainant's mother testified that the complainant was in a lot of pain

and had a lot of bruising (2 R.R. at 94-95). She was hospitalized for four days, but

after she was released, she was still in a lot of pain and couldn't walk (2 R.R. at

108-09). When the complainant was able to walk again, she was still in pain ( R.R.
                                           6
at 109-10). Her job duties changed when she returned to work because she could

not lift over twenty-five pounds for at least one month after the assault per doctor's

orders. And the complainant did not work for approximately one month after the

assault (2 R.R. at 109-10).

      Whether or not an mJury constitutes senous bodily injury must be

determined on a case-by-case basis. Moore, 739 S.W.2d at 352. 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. See Jackson v. State, 399 S.W.3d

285, 291 (Tex. App. - Waco 2013, no pet.) (mem. op.)); Wilson v. State, 139

S.W.3d 104, 106 (Tex. App.-Texarkana 2004, pet. refd) (citing Brown v. State,

605 S.W.2d 572, 575 (Tex. Crim. App. [Panel Op.] 1980)); Barrera v. State, 820

S.W.2d 194, 196 (Tex. App.-Corpus Christi 1991, 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. ref d) (not designated for publication) (testimony by

emergency room physician sufficient to show that pneumothorax, common with

broken ribs, created a substantial risk of death).

      Moreover, 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

and whether those changes were related to her injuries, and inconsistent testimony


                                            7
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) (Appendix A

[Blea v. State, No. 02-13-00221-CR, 2015 Tex. App. LEXIS 1137 at* 8-12 (Tex.

App. - Fort Worth Feb. 5, 2015, pet. filed)]).

      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

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,


                                          8
161 S.W.3d 491, 500-01 (Tex. Crim. App. 2005)). Here, the majority improperly

acted as a thirteenth juror.

                                PRAYER FOR RELIEF

      For the reasons stated herein, the State prays this Court will grant review in

this case in order to permit full briefing on the Court of Appeals' erroneous

application of the standard of review.

                                         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




                                         9
                     CERTIFICATE OF COMPLIANCE

      The State certifies that the State's Petition for Discretionary Review in the
instant cause contains a word count of 1916, said count being generated by the
computer program Microsoft Word that was used to prepare the document.



                                         ANDREA R. SIMMONS




                        CERTIFICATE OF SERVICE

      A true copy of the State's Petition for Discretionary Review has been sent by
United States Mail, postage prepaid, to counsel for Appellee, Dawn A. Moore,
BOSWELL & MOORE, 1504 East McKinney Street, Suite 200, Denton, Texas
76209, on this, the lih day of March 2015.



                                         ANDREA R. SIMMONS




                                        10
                   APPENDIX A

[Blea v. State, No. 02-13-00221-CR, 2015 Tex. App. LEXIS
  1137 (Tex. App. - Fort Worth Feb. 5, 2015, pet. filed)]
                                                                                                              Page I




ft" LexisNexis®
                                                 I of I DOCUMENT

                        JUAN BLEA, APPELLANT v. THE STATE OF TEXAS, STATE

                                                NO. 02-13-00221-CR

                   COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

                                             2015 Tex. App. LEXIS 1/37


                                            February S, 201 S, Delivered
                                          February 5, 201 S, Opinion Filed

NOTICE:      PLEASE CONSULT THE TEXAS                       requires both serious bodily lnJUry and the use of a
RULES OF APPELLATE PROCEDURE FOR CITA-                      deadly weapon.' In this case, the indictment alleged that
TION OF UNPUBLISHED OPINIONS.                               Appellant's hand was a deadly weapon. Appellant brings
                                                            a single issue on appeal, challenging the sufficiency of
PRIOR HISTORY:         [•I] FROM THE 362ND                  the evidence that he caused the complainant serious bod-
DISTRICT COURT OF DENTON COUNTY . TRIAL                     ily injury rather than bodily injury as well as the suffi-
COURT NO. F-2011-0993-D. TRIAL COURT JUDGE:                 ciency of the evidence that he used his hand as a deadly
HON. SHERRY SHIPMAN.                                        weapon. Because the evidence is insufficient to show
                                                            that [•2] Appellant caused serious bodily injury but
                                                            sufficient to show that he used his hand as a deadly
COUNSEL: FOR APPELLANT: DAWN A. MOORE,                      weapon, we reverse the trial court's judgment and re-
BOSWELL & MOORE, P.C., DENTON, TEXAS.                       mand this case to the trial court with instructions (I) to
                                                            modify the judgment to delete the conviction for
FOR STATE: PAUL JOHNSON, CRIMINAL DIS-                      first-degree felony aggravated assault of a family mem-
TRICT ATTORNEY; CATHERINE LUFT, CHIEF OF                    ber and to instead reflect a conviction for second-degree
THE APPELLATE SECTION; ANDREA R. SIM-                       felony aggravated assault of a family member, based on
MONS, MICHAEL GRAYES, DUSTIN GOSSAGE,                       Appellant's use of a deadly weapon, and (2) to conduct a
ASSISTANT CRIMINAL DISTRICT ATTORNEYS                       new trial on punishment for the second-degree felony .'
FOR DENTON COUNTY, DENTON, TEXAS.
                                                                   2   See Tex. Penal Code Ann. § J2.02(b)(/J
JUDGES: PANEL: LIVINGSTON, C.J.; DAUPHINOT                         (West 2011).
and GABRIEL, JJ. TERRIE LIVINGSTON, CHIEF                          3   Id.
JUSTICE.                                                           4   See id. § 22.02(a){2)-(b) .

OPINION BY: LEE ANN DAUPHINOT                               Brief Summary of the Facts
                                                                 On the date of the offense, July 21, 20 I 0, the com-
OPINION
                                                            plainant and Appellant had a small daughter and shared a
                                                            bedroom in his parents' apartment. While Appellant and
MEMORANDUM OPINION'
                                                            complainant were not married, they did marry about two
           See Tex. R. App. P. 47.4.
                                                            years later.

     A jury convicted Appellant Juan Blea of first-degree        A couple of weeks before the assault, Appell ant had
felony aggravated assault of a family member.' The jury     separated from the complainant and moved in with a
assessed his punishment at five years' confinement. and     friend . On July 20, the complainant spent time with a
the trial court sentenced him accord ingly. That offense    male friend from school. At trial , she did not remember
                                                                                                                      Page 2
                                              2015 Tex. App . LEXIS 1137, •


whether she returned home late that night or the next               Officer Tim Adamo, who had been a police officer
morning. Appellant visited the apartment that the com-         for twenty-three years by the time of trial, called for an
plainant shared with his parents between I0:00 a.m. and        ambulance after he arrived at the apartment. He de-
noon on [*3) July 21 and was in a good mood. But he            scribed the complainant's injuries:
saw a hickey on the complainant's neck, and when she
refused to tell him "where it was from," he became an-                    The first time I contacted her, she had
gry. When she finally told him "who lthe hickey] was                  visible injuries. I could see scrapes, lacer-
from," he hit her in the face with his hand . They were in            ations on her face . She had her--under her
the kitchen . At trial, she did not remember whether his              left eye was bruised and had a cut on it. I
hand was open or in a fist. In her testimony, the com-                saw a mark on her arm, as well, like a
plainant denied falling, but in her written statement, she            redness and early set of bruising.
had said that she had fallen. She admitted in her testi-
mony that in her written statement, she had said that
Appellant had told her that he was going to kill her.                     She was on the couch in the front
                                                                      room.
      The complainant testified that Appellant hit her only
once. When the prosecutor suggested that Appellant had
continued to hit her and had asked where their daughter
was, the complainant corrected him, stating, "[A)fter he                   ... [. S)he was in quite a bit of pain.
first hit me, she started getting fussy. I told him to leave          She was, like, with one arm holding her
me alone and I wanted to put her asleep (sic) because I               ribs, her chest, her stomach area.
didn't want her around all this and us fighting."
      After the complainant gave their daughter a bottle                          She said she had a hard time
 and put her to bed in the bedroom, the couple began                  breathing, had a lot of pain.
 fighting again in the living room. Appellant hit her in the
 side. She testified that he hit her more than once and
 used both his fist [*4] and his open hand. She said that                  . .. . I was trying to get a statement
 he might have kicked her with his foot and also testified            from her, an affidavit, but she had a lot of
 that she had been in a lot of pain after the assault. The            difficulty writing the statement.
 prosecutor reminded her that in her written statement,
she had said that she was in a "ton" of pain. The pain was                 She tried to get up from the couch at
 in her back and her chest. The prosecutor asked, "Did                one point and she fell back to the couch in
you feel like something had been broken or terribly in-               pain and that's when I called for a medic.
jured as a result of this?" The complainant responded,
"Yes."
      The child woke up, so Appella·nt stopped hitting the
complainant, and she told him that either he or she            Sufficiency of the Evidence
needed to go buy diapers. Appellant left the apartment
and returned with the diapers . The complainant did not             Appellant contends that the evidence [*6] is insuf-
call the police while he was gone. When the prosecutor         ficient to show that (I) he caused serious bodily injury
asked her why, she responded, "Because I didn't want           and (2) his hand was used as a deadly weapon. In our
to." She said that she had been scared and had not known       due-process review of the sufficiency of the evidence to
how Appellant would act, and she had not wanted any-           support a conviction, we view all of the evidence in the
one to know what had happened. When Appellant re-              light most favorable to the verdict to determine whether
turned , he and the complainant argued verbally. The           any rational trier of fact could have found the essential
prosecutor asked her whether it was evident that she was       elements of the crime beyond a reasonable doubt. ' Sec-
in pain. She testified that the pain had not set in yet and    tion 22.02 ofthe penal code provides,
that she did not tell Appellant that she was in pain.
                                                                         (a) A person commits an offense if the
     After Appellant left , the complainant lay down with             person commits assault as defined in §
their daughter, [•5] took a bath, cleaned up, and then                22.01 and the person :
called Appellant's parents and asked them to come home
from work , stating that she had fallen down the stairs .                 (I) causes serious bodily injury to
After Appellant 's parents saw her, his father called the             another, including the person's spouse; or
police.
I


                                                                                                                      Page 3
                                                 2015 Tex . App . LEXIS 1137, *


                (2) uses or exhibits a deadly weapon                      the issue must be detennined on an ad hoc
           during the commission of the assault.                          basis. '"
                (b) An offense under this section is a
           felony of the second degree. except that                And our sister court in El Paso has explained that
           the offense is a felony of the first degree                       bodily injury cannot be elevated to se-
           if:                                                           rious bodily injury by postulating poten-
                (I) the actor uses a deadly weapon                       tial complications which are not in evi-
           during the commission of the assault and                      dence. The [S]tate must present evidence
           causes serious bodily injury to a person                      that the [complainant] suffered bodily in-
           whose relationship to or association with                     jury that created a substantial risk of
           the defendant is described by Section                         death. In other words, the [S]tate must
           71 .002/(b), 71.003, or 71.005, Family                        present relevant and probative evidence
           Code[.]''                                                     from which the trier [*8] of fact could
                                                                         infer beyond a reasonable doubt that the
                                                                         injury itself created an appreciable risk of
    Section 22.01 provides,                                              death."
              (a) A person commits an offense if the
           person:
                 (I) intentionally, knowingly, or reck-
            lessly causes bodily injury to another ... ;                  8    Id.§ l .07(a)(8).
                                                                          9    Id.§ I. 07(a)(46).
                                                                          10 Moore v. State, 739 S.W.2d 347. 349 (Tex.
                 (b) An offense under Subsection                          Crim. App. 1987).
           (a)( I) is a Class A misdemeanor . [*7)                        11     Hernandez v. State, 946 S.W.2d 108, 112
                                                                          (Tex. App. --El Paso 1997, no pet.) (citations and
                                                                          internal quotation marks omitted).
                                                                        The complainant's mother, Jennifer, saw her in the
                                                                   hospital. Jennifer testified that she noticed only the
           5 Jackson v. Virginia, 443 U.S. 307, 319, 99 S.         bruising and redness of her daughter's right eye. At trial,
           Ct. 2781, 2789, 61l.Ed.2d560 (1979); Winfrey            Jennifer did not remember whether her daughter had had
           v. State, 393 S. W.3d 763, 768 (Tex. Crim. App.         any trouble breathing. Jennifer did take photographs of
           2013).                                                  the complainant over a period of time, and the photo-
           6 Tex. Penal Code Ann.§ 22.02(a)-{b).                   graphs revealed developing bruising over her face and
           7 Id. § 22.01 (West Supp. 2014).                        body. Although Jennifer testified on direct examination
                                                                   that the complainant was unable to walk in the hospital
         "Bodily injury" is defined as "physical pain, illness
                                                                   and for a month afterward, on cross-examination, she
    or any impairment of physical condition."' "Serious bod-
                                                                   admitted that the complainant could stand and walk. even
    ily injury" is defined as "bodily injury that creates a sub-   while still in the hospital.
    stantial risk of death or that causes death, serious perma-
    nent disfigurement, or protracted Joss or impairment of              The complainant did not work at her waitressing job
    the function of any bodily member or organ."" The Texas        for a month after the assault. When she returned , she
    Court of Criminal Appeals has explained that                   switched from waitressing to acting as hostess. Jennifer
                                                                   testified that the job change occurred because the doctor
               [bjy virtue of the fact that the Penal              had told the complainant not to lift more than twenty-five
           Code provides a different definition for                pounds. The complainant, however, testified ,
           "bodily injury" from "serious bodily inju-
           ry", though often a matter of degree, we                         Q Did you resume your duties as a
           must presume that the Legislature intend-                      waitress?
           ed that there be a meaningful difference or
                                                                               A I decided to be a host.
           distinction between "bodily injury" and
           "serious bodily injury." Understandably,                            Q Why is (*9] that?
           this means that where the issue is raised ,
                                                                                                                  Page 4
                                            2015 Tex. App . LEXIS 1137 ,   *


            A Just so I didn't have to deal with a           "probably wou ld know that" and "if [she] [*I OJ         did
       lot of people. I didn't want to go back to            have that, wouldn't a doctor tell [her]?"
       doing waitressing just yet.                                The trial court admitted State's Exhibits 18 and 19.
           Q Because you didn't want to interact             hospital records, but after reconsideration, withdrew the
       with people?                                          exhibits. The coun reporter erroneously included those
                                                             two exhibits in the record , but both the State and Appel-
           A That, and everybody at Champps                  lant conscientiously asked this court not to consider
       kind of knew what happened, kind of the               those exhibits because they were never before the jury.
       regulars. That was just kind of my way of             We granted their request and have not considered those
       avoiding everybody.                                   exhibits.
                                                                   The complainant's injuries included two fractured
She also testified,                                          ribs and a fractured maxillary sinus bone. She was kept
           Q You don't really want to be here, do            in the hospital for four days and then "medically cleared
       you?                                                  for discharge." Kristie Brown, a nurse practitioner at
                                                             Parkland Hospital, testified concerning the complainant's
            A No.                                            medical treatment. Brown testified that the complainant
           Q Now, when you were taken to the                 had a collapsed lung, but it had already been treated
       hospital, were you ever in the ICU , or do            when Brown met the complainant the morning after her
       you know?                                             admission to the hospital. Brown explained that a person
                                                             with a collapsed lung "can have trouble breathing, and it
            A Not that I know of.                            can affect blood pressure, vital signs that [medical pro-
           Q Just in a regular room?                         fessionals] look at." Although the complainant had testi-
                                                             fied that "they said my liver was lacerated, or some-
            A Yes.                                           thing," no other evidence of a lacerated [*I I] liver was
           Q Do you have any serious perma-                  presented to the jury. Brown did testify that there was an
       nent disfigurement as a result of this inci-          injury to the complainant's liver and an injury in her
       dent?                                                 chest. Brown admitted that she was repeating the radiol-
                                                             ogist's opinion, and the trial court sustained Appellant's
            A No.                                            objection to her testifying about anything somebody else
           Q As a result of this incident, did you           did . But the trial court did not instruct the jury to disre-
       have a protracted loss of the use of any              gard. Brown testified that she checked for peritonitis or
       bodily member or organ?                               other problems caused by a liver injury; none was dis-
                                                             covered . There was no evidence that any injury to the
           A No.                                             complainant's liver was a serious bodily injury.11 The
           Q Have you fully recovered?                       followin g exchange occurred:
           A Yes.                                                      Q So at all times, her liver was func -
           Q Were you able to get up and be out                     tioning and doing what it was supposed to
       and about some the week after that?                          be doing?

           A The week after the hospital?                                  A Yes, sir.

           Q Yeah, after they let you go home.                          Q And--all right. Same with her
                                                                    lungs? I mean, she could breathe, right?
           A Yeah.
                                                                           A Yes, sir, she was breathing.
           Q Okay. 1 mea n, you could get up
       and go do something, right?                                       Q And I assum e you tested her blood
                                                                    for oxygen leve l?
           A Yeah , yeah.
                                                                           A Yes, sir.
                                                                        Q And I guess her blood was--her
    In response to the prosecutor's asking her the mean-            lungs were working like they were sup-
ing of "protracted loss or impairment of the fun ction of           posed to?
any bodily member or organ," the complainant said that                     A Yes, sir.
she did not know a speci fie defin ition, but that she
                                                                                                                           Page 5
                                                   2015 Tex. App. LEXIS 1137.     *


                 Q I mean, they were providing                                  [i]njuries to the liver can cause a pa-
             enough oxygen to her?                                          tient to bleed to death [* 13] very quick-
                                                                            ly. Knowing that there is an injury to the
..•               A Yes, sir .                                              liver and why it is and whether it is ac-
                  Q Now, on the broken ribs, what                           tively bleeding or has developed a blood
             treatment was given to her for the broken                      clot to the liver makes a decision point for
             ribs?                                                          what the surgeons do and what we do for
                                                                            the patient.
                 A Pain medication and respiratory,
             what we call incentive spirometry, just
             deep-breathing exercises, and pain [* 12)               But there was no evidence that the complainant suffered
             medication.                                             from such a condition.
                  Q When we hear broken ribs, we                          The prosecutor then asked whether "lungs [are]
             think of something sticking through the                 treated seriously or minorly." Brown replied, "Serious-
             skin, something like that.                              ly." When asked to explain why lungs are treated seri-
                  The rib was, I guess, still intact, for            ously, she replied, "Because if we can't control our oxy-
             want of better words, but there was a                   genation, we need oxygen to live, and you can die from
             fracture in it?                                         that." But Brown did not testify that the complainant
                                                                     suffered rrom such a condition. No one did . Indeed,
                  A There was a fracture in it. What                 Brown monitored the complainant to detennine whether
             alignment it had, I would have to review                a substantial risk of death or any risk of death developed
             the chest x-ray. I don't remember.                      from any injury, and it did not.
                 Q In any event, there was nothing                       Considering all the evidence, we hold that there is
             done to tape her up or set any fractures or             no evidence from any source that would allow a jury to
             have any surgery regarding the ribs?                    conclude or infer beyond a reasonable doubt that the
                  A That is correct.                                 complainant's injuries created a substantial risk of
                                                                     death."
                  Q Okay. And would the same be true
             of the maxillary sinus?                                         I3       See Tex. Penal Code Ann. § I. 07(a}(46) .
                  A That's correct. Due to the swelling,                  We must next consider whether the complainant
             they saw her--we recommended that she                   suffered permanent disfigurement or protracted loss or
             be seen in clinic after she was discharged              impairment of the use of a bodily member or organ."
             home from the hospital.                                 [* 14] She testified that she had suffered neither. The
                 Q But no surgery or any procedures                  only suggestion of such loss or impairment is Jennifer's
             were done to repair that damage?                        testimony that the doctors told the complainant not to lift
                                                                     more than twenty-five pounds. Jennifer did not say how
                  A That's correct.                                  long the limitation was to last but said that it was because
                  Q It just healed on its own?                       of the complainant's ribs. Jennifer also agreed that "we
                                                                     don't know whether or not [the complainant] was physi-
                  A That is correct.                                 cally capable [of lifting], but she followed their advice ."

                                                                             14       See id.
                                                                          The complainant testified that she was fully recov-
              12      See id. al I 11 - 13 (holding that a           ered . She also testified that she was able to go out and
              I-centimeter laceration of the liver was unlikely      about some as soon as she was released from the hospi-
             to cause death and not serious bodily injury).          tal.
           The only evidence that the complainant cou ld have            The Moore court instructs us that
      suffered serious bodily injury arose from the State's in-
      quiry whether "any injury to the liver [i s] treated se ri -               given th e common meaning of the
      ously or minimall y" by Brown's "profession ." She re-                word "protracted," the complainant's
      plied that they are treated seriously because                         mother's testimony , on which the State re-
                                                                            li es, that the complainant was bedridden
                                                                            and that it was at least a week "before he
                                                                                                                    Page 6
                                              20 I 5 Tex . App. LEXIS 1137,   *

        could really go out and see people," does               finding that Appellant's hand was a deadly weapon in the
        not even come close to establishing that                manner of its intended use but that the evidence is insuf-
        the injury the complainant sustained to his             ficient to support the serious bodily injury finding. We
        back was either continuing, dragged out,                therefore sustain in part and overrule in part Appellant's
        drawn out, elongated , extended, length-                sole issue on appeal.
        ened,      lengthy,    lingering,     long,
        long-continued,      long-drawn,       nev-             Conclusion
        er-ending, ongoing, prolix, prolonged, or
                                                                      Because the State proved only second-degree ag-
        unending."
                                                                gravated assault of a family member beyond a reasonable
                                                                doubt, that is, it proved that Appellant committed an as-
                                                                sault against the complainant and used a deadly weapon
                                                                during its commission, we reverse the trial court's judg-
                                                                ment in part. We remand this case to the trial court with
        15    739 S. W.2d at 352.
                                                                instructions to (I) modify its judgment to delete the
     We have carefully examined the [* 15] record .             first-degree felony conviction of aggravated assault of a
There is no evidence that the complainant suffered seri-        family member and to instead reflect a second-degree
ous permanent disfigurement or protracted loss or im-           felony conviction for aggravated assault of a family
painnent of the function of any bodily member or or-            member through the use of a deadly weapon and (2)
gan.1• We therefore hold that the evidence is insufficient      conduct a new trial on punishment. 17
to support the element of serious bodily injury.
                                                                       17 See Bowen v. State, 374 S. W.3d 427, 432
        16    See Tex. Penal Code Ann. § l .07{a}(46) .                (Tex. Crim. App. 2012).
      But the evidence is sufficient to support the deadly          Isl Lee Ann Dauphinot
weapon finding . Testimony touching on whether Appel-
lant's hand was a deadly weapon in the manner of its use            LEE ANN DAUPHJNOT
or intended use included that of the complainant and that           JUSTICE
of Officer Adamo, the responding police officer. The
complainant testified that after Appellant struck her with         PANEL: LIVINGSTON, C.J .; DAUPHINOT and
his hand, knocking her down, he said that he was going          GABRIEL, JJ .
to kill her. Officer Adamo testified on direct examination          LIVINGSTON, C.J., filed a dissenting opinion.
by the prosecutor,
                                                                     (* 17] DO NOT PUBLISH
          Q [C]an a person's hand be a deadly                      Tex. R. App. P. 47.2(b)
        weapon?                                                     DELIVERED: February 5, 2015
             A Yes, it can.
                                                               DISSENT BY: TERRIE LIVINGSTON

           Q [D]o you feel that someone's hands                DISSENT
       are capable of causing death or serious
       bodily injury?                                          DISSENTING MEMORANDUM OPINION'

                                                                              See Tex. R. App. P. 47.4, 47.5.
             A Yes, they are very capable.                            Because the majority's opin ion improperly applies
                                                               standard s for rev iewing the sufficiency of evidence to
                                                               show that the victim suffered serious bodily injury. I
     Appellant's statement to the complainant that he was      dissent from the decision to reverse the trial court's
going to kill her was some evidence of hi s intent to use      judgment and to remand for the entry of a judgment that
his hand as a deadly weapon . Officer Adamo's testimony        re fl ects only a second-degree felony conviction .'
was evidence that would allow a ra tional trier of fact to
conclude beyond a reasonable doubt that, in the manner                2   See Tex. Penal Code Ann. § 22.02(b)f/J
of [* 16] its intended use, Appellant 's hand was capable             (West 201 1).
of causing death or serious bodily injury. Accordingly,             When decid ing an evidentiary sufficiency issue in a
we hold that the evidence is sufficient to support the jury    crim inal appea l. our usual de ference to a jury's verdi ct
                                                                                                                      Page 7
                                              2015 Tex. App. LEXIS 1137, *


requires us to weight appellate scales in favor of affirm-                 if you have a box and a balloon blown
ing a judgment of conviction . See Winfrey v. State, 323                up inside the box and the balloon shrinks
S.W.3d 875, 879 (Tex. Crim. App. 2010) . We do so by                    over time, there is air between the box and
applying settled principles aimed at preventing us trom                 the balloon, that is a pneumothorax. Most
becoming a "thirteenth juror." See Thornton v. State, 42 5              of the time, the lungs should be expanded
S.W.3d 289, 303 (Tex. Crim. App. 2014); Isassi v. State,                in our chest and touching the sides of the
330 S. W.3d 633, 638 (Tex. Crim. App. 2010) (explaining                 box, but when the lung collapses, it's just
that in reviewing the sufficiency of evidence to support a              like a balloon that has a small leak in it
conviction, we guard "against the rare occurrence when a                and collapses down .
factfinder does not act rationally"). Those principles in-                   When that occurs, the patient. [the
clude considering the evidence, along with reasonable                   complainant], can have trouble breathing,
inferences from the evidence, in the light most favorable               and it can affect blood pressure, vital
to the verdict; deferring to the factfinder's exclusive role            signs that we look at.
to resolve conflicts in the evidence (and inferences
therefrom)' and to judge the credibility of witnesses;
["' 18] assessing incriminating evidence cumulatively
rather than requiring each fact to directly support guilt;            The complainant's mother testified that while in the
allowing for circumstantial evidence alone to support a          hospital, the complainant was not able to move around
conviction; and recognizing that a factfinder is free to         the room, and treatment for her collapsed lung required
accept or reject any or all of the testimony of any wit-         the insertion of a chest tube . According to the complain-
ness. Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim.          ant's mother, after the complainant left the hospital. she
App. 2014); Thomas v. State, 444 S. W.3d 4, 8 (Tex. Crim.        could not work or walk without pain for some time, and
App. 2014); Dobbs v. State, 434 S. W.3d 166. 170 (Tex.           when she returned to work, she was instructed to not lift
Crim. App. 2014); Hernandez v. State, 161 S.W.3d ./9/,           anything over twenty-five pounds.
500-01 (Tex. Crim. App. 2005) .
                                                                      While it is true that the ["'20) complainant's condi-
                                                                 tion improved upon medical treatment, in determining
       3 The majority appears to resolve conflicts in
                                                                 whether evidence is sufficient to establish serious bodily
       witnesses' testimony against the jury's verdict.
                                                                 injury, the relevant issue is the impairing effect of the
       See Majority Op. at 8-10.
                                                                 bodily injury as it was inflicted, not after the effects have
     In showing fidelity to these principles in this appeal,     been ameliorated by medical treatment. Jackson v. State,
we should determine that the evidence is sufficient to           399 S.W.3d 285, 291 (Tex. App.--Waco 2013, no pet.)
prove that the complainant suffered serious bodily injury,       (mem. op.); see Webb v. State, 80 I S. W.2d 529. 532
meaning bodily injury' that created "a substantial risk of       (Tex. Crim. App. 1990); Sizemore v. State, 387 S. W.3d
death ... or protracted loss or impairment of the function       824, 828 (Tex. App.--Amarillo 2012, pet. refd) . And se-
of any bodily member or organ." Tex. Penal Code Ann. §           rious bodily injury may be established without a physi-
/.07(a)(46J ; see id.§ 22.02(a)(/), (b){I) . The complain-       cian's testimony when the injury and its effects are obvi-
ant testified that as a result of appellant's hitting her side   ous. Sizemore, 38 7 S. W3d at 828.
repeatedly, she felt "a lot of pain" in her back and chest
                                                                       Brown testified that injuries to lungs are treated se-
and could not breathe. She believed that she had been
                                                                 riously because the lungs control oxygenation and affect
"terribly injured." Appellant's father noticed that the
                                                                 blood pressure and "vital signs." Brown also explained
complainant had difficulty walking. Hospital personnel
                                                                 that improper oxygenation can cause death. Thus, the
told her that she had a collapsed lung, among other inju-
                                                                 jury could have reasonably inferred that if the complain-
ries. The complainant stayed in a hospital several days,
                                                                 ant had not received the procedure that Brown described
and a "month or so" passed before she was able to[* 19]
                                                                 (presumably, the tube that the complainant's mother tes-
return to work.
                                                                 tified about) to help with her difficulty in breathing, the
                                                                 complainant faced a substantial risk of death . See id. ; see
       4 "Bodily injury" includes pain or any impair-
                                                                 also Patterson v. State, No. 11 -06-00209-CR, 2008 Tex.
       ment of physical condition . Tex. Penal Code Ann.
                                                                 App. LEXIS 1525. 2008 WL 564880, at "'3 (Ti!x.
       § l.07(a){8) (West Supp . 2014).
                                                                 App--Eastland Feb. 28, 2008, pl!!. r1tj'd) (not designated
     Kristie Brown, a nurse practitioner, con firmed that        for publication) (concludin g that testimony that the vic-
the complainant had suffered a lun g injury. Concerning          tim had trouble breathing and received treatment for a
that injury--a pneumothorax -- Brown testified,                  pneumothorax th at if left untreated , could cause death,
                                                                 was suffi cient to prove that [* 2 1] the victim had a seri -
                                                                 ous bodily injury); Pedro v. St all!, l\'o. 01-88- 00197-CR,
                                                                                                                     Page 8
                                                 2015 Tex. App. LEXIS 1137, •


    1988 Tex. App. LEXIS 3158, 1988 WL 139708, at •2              injury which caused [the victim] to lose lifting power in
    (Tex. App.--Houston [/st Dist.} Dec. 22, 1988, no pet.)       his arm for three months" constituted a protracted im-
    (not designated for publication) ("[T]he possibility that     pairment of the function of a bodily member, so that "the
    [a collapsed lung] could cause death, combined with the       wound would be classified as serious bodily injury");
    testimony that the complainant's lung was punctured,          Madden v. State, 91 I S.W.2d 236, 244-45 (Tex.
    does support a finding that [a knife) was capable of          App.--Waco 1995. pet. rej'd) (concluding that there was
    causing 'serious bodily injury.'").                           serious bodily injury by protracted impairment of a bod-
                                                                  ily member when the victim was shot in the hip, hospi-
         Viewing the evidence in the light most favorable to
                                                                  talized for a day and a half, could not walk for a month
    the verdict and allowing the jury to draw reasonable in-
                                                                  after the shooting, and had permanent scar tissue where
    ferences from the evidence, I would hold that based at
                                                                  the bullet entered and exited his body); see also Tucker v.
    least on the facts concerning the injury to the complain-
                                                                  State, No. 05-0/-01899-CR, 2002 Tex. App. LEXIS 7740,
    ant's lung, that this injury required treatment through a
                                                                  2002 WL 32397713, al • 1-2 (Tex. App.--Da/las Oct. 30,
    tube, and that injuries to lungs can be life-threatening,
                                                                  2002, no pet.) (not designated for publication) (holding
    the evidence was sufficient for the jury to find that with-
                                                                  that there was protracted impairment when the victim
    out treatment, the complainant faced a substantial risk of
                                                                  had a fractured jaw, was restricted to a liquid diet for
    death. See Tex. Penal Code Ann.§ /.07(a)(46).
                                                                  three weeks, and had jaw pain for a month).
         Moreover, I would also conclude that the evidence
                                                                      For all of these reasons, I respectfully dissent from
    was sufficient to show that the complainant sustained a
                                                                  the majority's opinion and judgment.
    serious bodily injury because she suffered from a pro-
    tracted impairment of the functioning of her body. See id.        Isl Terrie Livingston
    The-complainant testified that the injuries she suffered as
                                                                      TERRIE LIVINGSTON
    a·result of the assault required her to miss a "month or
    so" of work. Her mother testified that during that time,          CHIEF JUSTICE
    the complainant "couldn't work" and just "[laid] around"
    [•22] because walking was painful. I would hold that              DO NOT PUBLISH
                                                                     Tex. R. App. P. 47.2(b)
    these month-long effects from the assault qualify as a
    "protracted" impairment of the complainant's bodily               DELIVERED: February 5, 2015
    functions. See id.; Williams v. State, 575 S. W.2d 30, 33
    (Tex. Crim. App. [Panel Op.] 1979) (holding "that the




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