Affirmed and Opinion Filed June 21, 2016.




                                                     In The
                                    Court of Appeals
                             Fifth District of Texas at Dallas
                                             No. 05-15-00526-CR

                         CHRISTIAN LANE-CLEMENT COOK, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                          On Appeal from the 416th Judicial District Court
                                       Collin County, Texas
                              Trial Court Cause No. 416-81198-2013

                                  MEMORANDUM OPINION
                              Before Justices Myers, Stoddart, and Whitehill
                                       Opinion by Justice Stoddart
        A jury convicted Christian Lane-Clement Cook of aggravated assault causing serious

bodily injury and assessed punishment at fifteen years’ confinement. Appellant makes two

arguments1 on appeal: (1) the trial court abused its discretion by denying his motion for new trial

because the evidence is insufficient to support his conviction and (2) the trial court improperly

instructed the jury on the law of parties. We affirm the trial court’s judgment.

                                                  Background

        Appellant, Colby Long, and their friends met at a car wash where an altercation ensued.

Surveillance video shows an agitated Long walking toward appellant’s vehicle. Before reaching


1
  Appellant’s brief includes two distinct arguments within a single issue. Although he presented more than one legal
theory under a single heading, the arguments are sufficiently clear for this Court to review. See Thomas v. State,
723 S.W.2d 696, 697 n. 2 (Tex. Crim. App. 1986).
appellant, one of appellant’s friends approached Long from behind and struck him on the side of

the face. The blow incapacitated Long and he fell to the ground. Appellant proceeded to kick or

stomp on Long’s head multiple times. A passenger in Long’s car testified she saw someone

knock Long to the ground, but she did not see appellant kick or stomp on Long. The witness

admitted being under the influence of Xanax and marijuana at the time of the assault and she did

not see everything that occurred.

       Appellant testified he struck Long with his right hand to protect himself immediately

after the initial blow from his friend. Appellant admitted he kicked Long but denied kicking

Long while he was on the ground and unconscious.

       Long was transported to a medical facility where he was treated for injuries that included

three fractures to his jaw and significant facial swelling. Long then was transferred to the

intensive care unit at Parkland Hospital where he was treated by Dr. Patricia Bergen. Bergen

testified: “At the other facility he was intubated, meaning he had a breathing tube placed in his

trachea because - - or reported to us because of fear that he might lose his airway because of

facial trauma.” She explained that “You would have to assume that the outside facility that

intubated him were [sic] concerned that his facial injuries and swelling were significant enough

to put him at risk of being unable to breathe because of those injuries, so that would be a life-

threatening situation.”

       While at Parkland, a CT scan showed a “pulverized” spleen and a significant amount of

blood in Long’s abdomen. As a result, he underwent an emergency splenectomy.

        After the jury convicted appellant, he filed a motion for new trial, and the trial court held

a hearing. Appellant argued the evidence at trial is insufficient because new evidence, not

presented at trial, proves the assault did not injure Long’s spleen. Appellant presented two

witnesses at the hearing. Ben Hardman, a friend who accompanied Long to the car wash, said

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that Long had an altercation with his father the week before the assault and appellant did not kick

Long in the abdomen. Dr. Judy Schmidt testified the spleen was not pulverized or lacerated and

the splenectomy was unnecessary. The trial court denied the motion.

                                          Law & Analysis

1. Sufficiency of the Evidence

       Appellant contends that the trial court abused its discretion by denying his motion for

new trial because there is no evidence appellant struck Long in the abdomen and caused the

spleen injury and evidence of the spleen injury was harmful. We review a trial court’s denial of

a motion for new trial under an abuse of discretion standard. Holden v. State, 201 S.W.3d 761,

763 (Tex. Crim. App. 2006). A trial court abuses its discretion “only when no reasonable view

of the record could support the trial court’s ruling.” Id.

       We review a legal sufficiency of the evidence challenge under the standard set out in

Jackson v. Virginia, 443 U.S. 307 (1979). Acosta v. State, 429 S.W.3d 621, 624 (Tex. Crim.

App. 2014). In a sufficiency of the evidence review, “we review all of the evidence in the light

most favorable to the verdict to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” See Adames v. State, 353 S.W.3d

854, 860 (Tex. Crim. App. 2011). The factfinder has a duty to resolve conflicts in the testimony,

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

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (footnotes omitted). We presume

the factfinder resolved conflicting inferences in the State’s favor, and we defer to that

determination. Id.

       A person commits the offense of aggravated assault if he intentionally, knowingly, or

recklessly caused serious bodily injury to another. TEX. PENAL CODE ANN. § 22.02(a)(1) (West

2011). Serious bodily injury is that which creates a substantial risk of death or that causes death,

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serious permanent disfigurement, or protracted loss or impairment of the function of any bodily

member or organ. TEX. PEN. CODE ANN. § 1.07(a)(46) (West Supp. 2015). Protracted means

extended, lengthened, prolonged, or continued. Nash v. State, 123 S.W.3d 534, 538 (Tex.

App.—Fort Worth 2003, pet. ref’d). When assessing the sufficiency of the evidence to establish

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

disfiguring or impairing quality of the injury, “as it was inflicted, not after the effects had been

ameliorated or exacerbated by other actions such as medical treatment.” Stuhler v. State, 218

S.W.3d 706, 714 (Tex. Crim. App. 2007) (citations omitted). An injured party is qualified to

express an opinion about the seriousness of the injuries. Coshatt v. State, 744 S.W.2d 633, 636

(Tex. App.—Dallas 1987, pet. ref’d) (citing Hart v. State, 581 S.W.2d 675, 677 (Tex. Crim.

App. [Panel Op.] 1979)).

       Appellant argues the evidence is insufficient because there is no evidence he hit or kicked

Long in the abdomen causing the spleen injury. However, the State was not required to show

appellant caused serious bodily injury to Long by hitting or kicking Long in the abdomen. The

indictment charged appellant with serious bodily injury to Long by hitting Long with his hand or

kicking long with appellant’s foot. Appellant admitted hitting and kicking Long. Two witnesses

testified appellant kicked or stomped on Long’s head after he was on the ground and

unconscious. Bergan testified that Long’s facial injuries put him at risk of not being able to

breathe and therefore were life threatening.

       The record shows Long suffered three jaw fractures causing significant facial swelling

and requiring surgery and intubation so he did not stop breathing. Long was admitted to

Parkland Hospital’s intensive care unit where his jaw was reset and a metal plate was inserted.

Two years after the assault, he continued to suffer jaw pain. Bergen testified the jaw injury

predisposes Long to have “things like TMJ” or pain in the joint for life.

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       This evidence is sufficient to show appellant’s conduct caused serious bodily injury. See

Lee v. State, 05-13-00714-CR, 2014 WL 5475495, at *2 (Tex. App.—Dallas Oct. 30, 2014, no

pet.) (mem. op., not designated for publication) (collecting cases). Reviewing the evidence in

the light most favorable to the verdict, we conclude a reasonable jury could have found beyond a

reasonable doubt that appellant hit, kicked, or stomped on Long’s head, causing serious bodily

injury. See Adames, 353 S.W.3d at 860 (sufficiency review).

       In light of our conclusion that the evidence is sufficient to support appellant’s conviction,

we need not consider appellant’s argument that newly discovered evidence shows appellant did

not cause the injury to Long’s spleen. See TEX. R. APP. P. 47.1.

2. Jury Charge

       Appellant also argues the trial court improperly instructed the jury on the law of parties.

We review whether error exists in the jury charge and then determine whether appellant was

harmed. See TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006); Celis v. State, 416 S.W.3d

419, 423 (Tex. Crim. App. 2013). When, as here, the defendant preserves jury-charge error at

the trial court with a timely objection, we apply a “some harm” standard to determine whether

the error, if any, requires reversal. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).

Even when a proper objection is made at trial, where the evidence clearly supports a defendant’s

guilt as the primary actor, error in charging on the law of parties is harmless. Cathey v. State,

992 S.W.2d 460, 466 (Tex. Crim. App. 1999) (en banc) (citing Black v. State, 723 S.W.2d 674,

675 & 676 n.2 (Tex. Crim. App. 1986); Govan v. State, 682 S.W.2d 567, 570–571 (Tex. Crim.

App. 1985)).

       Appellant argues there is no evidence appellant or appellant’s friend kicked or hit Long in

the abdomen and, therefore, instructing the jury on law of parties was in error. As discussed

above, the evidence is sufficient to establish appellant as the primary actor. Even if we assume

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error in the jury charge, the error is harmless because the evidence supports appellant’s guilt as a

primary actor. See Cathey, 992 S.W.2d at 466.

                                               Conclusion

       We overrule appellant’s sole issue. We affirm the trial court’s judgment.




                                                      /Craig Stoddart/
                                                      CRAIG STODDART
                                                      JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
150526F.U05




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                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

CHRISTIAN LANE-CLEMENT COOK,                          On Appeal from the 416th Judicial District
Appellant                                             Court, Collin County, Texas
                                                      Trial Court Cause No. 416-81198-2013.
No. 05-15-00526-CR         V.                         Opinion delivered by Justice Stoddart.
                                                      Justices Myers and Whitehill participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 21st day of June, 2016.




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