AFFIRMED; Opinion Filed August 12, 2014.




                                           S   In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-13-00369-CR

                          JAMES EDWARD GRUMBLES, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                       On Appeal from the Criminal District Court No. 7
                                    Dallas County, Texas
                            Trial Court Cause No. F11-70745-Y

                              MEMORANDUM OPINION
                            Before Justices Fillmore, Evans, and Lewis
                                    Opinion by Justice Evans

       James Edward Grumbles pleaded guilty to failure to stop and render aid.                He was

sentenced to five years in the penitentiary and assessed a $10,000 fine. He asserts three issues on

appeal: (1) the trial court did not allow him to testify at his sentencing hearing; (2) the trial court

assessed a fine in excess of the statutory maximum fine for the offense; and (3) the record does

not support $244 in court costs. We affirm the judgment of the trial court.

                                          I. BACKGROUND

       On March 4, 2011, appellant sped away from a valet stand in his Tahoe striking Selena

Christian while she crossed the street in a crosswalk. Christian was knocked unconscious and

transported by ambulance to Baylor Hospital’s emergency room. In addition to the injury to her

head, Christian suffered multiple fractures to her spine and an injury to her elbow requiring

       stitches. Christian was admitted to the hospital overnight, released the next day, and
convalesced for two months before she returned to work.          Two years later, Christian still

experienced episodes of pain that impaired her ability to lift heavy objects and prevented her

from traveling for work and picking up her children.

       A grand jury indicted appellant for failing to stop and render aid after involvement in an

“accident resulting in injury to SELENA CHRISTIAN . . . including . . . making arrangements

for transporting [Christian] to a physician and hospital when it was apparent that treatment was

necessary, and when [Christian] requested the transportation . . . .” Without a plea bargain

agreement, appellant pleaded guilty to the offense charged in the indictment and agreed to be

sentenced by the judge without a jury. The first witness to testify at the punishment phase

described appellant’s inebriated state immediately before he received his Tahoe at the valet stand

and sped off. Christian, the only other witness, testified about crossing in the crosswalk, being

struck, going in and out of consciousness as she lay on the pavement, and about her injuries.

       Appellant met privately with his counsel after the State rested. Then this exchange

occurred:

               THE COURT: State rests, as I understand it; is that right?

               [Prosecutor]: Yes.

               THE COURT: What says the defense?

               [Defense Counsel]: Judge, at this time it’s my understanding that we have
       been notified that, in fact, there should be another attorney representing my client
       that has been hired to represent him.

               Based upon that, I have discussed with my client his rights at this point to
       testify and not to testify, what he might want to do. It is my understanding, and,
       Mr. Grumbles, correct me if I’m wrong on this, that at this time, based upon these
       developments, it is your desire not to testify and --

              THE COURT: I’m going to deny the request for a new attorney. Okay.
       Now, given that, do you still want to not testify? It’s not timely made, sir. Okay.
       You have the absolute right to testify in your own behalf, if you choose to do so.
       If you decide not to testify in your own behalf, I won’t hold that against you. Do
       you understand that?

                                               –2–
               THE DEFENDANT: I’m not -- I don’t understand.

               THE COURT: You don’t understand that?

               [Defense Counsel]: Mr. Grumbles, basically, we have been over our
       situation. You have been over your right to testify, as previously stated and what
       that would involve. Now, we have been hit with this curve ball with your new
       attorney. It’s up to you on whether you want to testify now, whatever, okay? It’s
       strictly up to you. You have visited with probation, they have information
       prepared. It’s up to you what you want to do at this time.

              THE DEFENDANT: What I don’t understand is denying the right to a
       new attorney.

             THE COURT: It’s not timely made, sir. In fact, I have heard enough from
       you. Any final arguments in this case?

After closing arguments, the trial court pronounced sentence of five years in the penitentiary and

a $10,000 fine. Appellant timely filed his notice of appeal.

                                            ANALYSIS

A. Appellant’s Constitutional Right to Testify

       In appellant’s first issue, he complains he was denied his constitutional right to testify on

his own behalf at the punishment hearing. Appellant’s complaint about his inability to testify is

directed at the trial court, not his counsel. He claims the discussion quoted above amounted to

his request to testify and the trial court’s denial of that request. He requests that we reverse the

punishment judgment and remand for a new sentencing hearing. We overrule appellant’s first

issue for the following reasons.

       A defendant has a right to testify at his own trial, and such a right is fundamental and

personal to the defendant. Johnson v. State, 169 S.W.3d 223, 236 (Tex. Crim. App. 2005) (citing

Rock v. Arkansas, 483 U.S. 44, 52 (1987)). In Rock, the Supreme Court held defendant’s right to

testify derives from the Fifth and Sixth Amendments to the United States Constitution, is

personal to the defendant, and cannot be waived by counsel. Rock, 483 U.S. at 52. A defendant



                                                –3–
may knowingly and voluntarily waive this right. See Smith v. State, 286 S.W.3d 333, 338 n.9

(Tex. Crim. App. 2009) (citing Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997)).

         The record on appeal does not indicate appellant requested to testify, but instead reflects

his tacit agreement with his counsel that he did not want to testify. Appellant’s counsel asked

appellant to correct him if counsel incorrectly understood that appellant “desire[d] not to testify.”

(emphasis added). Appellant did not correct his counsel on that issue at any time during trial.

Instead, appellant re-urged his request for a change of counsel based on appellant’s

representation that his employer hired a new lawyer to represent him. Thus, when the trial court

advised appellant of his “absolute right to testify in [his] own behalf,” that if he did not testify “I

won’t hold that against you,” and asked him, “Do you understand that?” it was appellant who

interjected confusion by claiming not to understand why the trial court was denying his request

to change counsel. To appellant’s reassertion of his request to change counsel, the trial court

responded, “It’s not timely made, sir. In fact, I have heard enough from you.” Nowhere in this

exchange or anywhere else in the record did appellant request to testify or dispute his lawyer’s

statement that his lawyer understood appellant did not want to testify. Nor does the record

contain appellant’s counsel’s attempt to call appellant as a witness, appellant’s complaint about

not being called as a witness, or a ruling from the trial court denying him his right to testify.

When examined in context, the trial court’s statements clearly pertained to appellant’s request to

change counsel—about which he makes no complaint on appeal—not a denial of his right to

testify. 1 We overrule appellant’s first issue.




    1
      In a slightly different context in Rice v. State, 05-07-00704-CR, 2008 WL 3522243, at *3 (Tex. App.—Dallas
Aug. 14, 2008, pet. ref'd) (not designated for publication), we similarly concluded a trial court was not ruling on an
appellant’s request to testify but merely managing the trial properly where the trial court silenced a defendant’s
outbursts and objections during trial.


                                                        –4–
B. Statutory Fine

          Appellant complains in his second issue that the $10,000 fine imposed by the trial court

exceeds the applicable statutory fine for the offense for which he was convicted. Appellant

requests that we vacate the fine and remand for the trial court to assess a new fine. “Statutory

interpretation and application are questions of law that we review de novo.” Nichols v. State, 05-

97-00753-CR, 1999 WL 675430, at *2 n.9 (Tex. App.—Dallas Sept. 1, 1999, pet. ref’d) (not

designated for publication) (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App.

1991)).

          Appellant argues he was convicted of an offense under section 550.021(c)(2) 2 of the

transportation code for which the maximum fine is $5,000. See TEX. TRANSP. CODE ANN.

§§ 550.021(c)(2)(B) (West. Supp. 2013). The State argues that because appellant was convicted

of an offense resulting in serious bodily injury section 550.021(c)(1)(B) of the transportation

code applies and provides that the offense is a third degree felony having a $10,000 maximum

fine which was lawfully imposed on appellant by the trial court. See id. at § 550.021(c)(1)(B);

TEX. PENAL CODE ANN. § 12.34(b) (West 2011). We agree with the State for the following

reasons.

          When the Legislature enacted section 550.021(c) of the transportation code, it used some

of the punishment structure in the penal code but created a new punishment. 3 The Legislature

    2
       We reach the arguments and reasoning we reasonably discern in appellant’s argument; any argument we were
unable to understand was inadequately briefed. See TEX. R. APP. P. 38.1(i); Green v. Kaposta, 152 S.W.3d 839, 842
n.2 (Tex. App.—Dallas 2005, no pet.); Stults v. State, 23 S.W.3d 198, 205 (Tex. App.—Houston [14th Dist.] 2000,
pet. ref’d).
    3
      The penalties provisions for the offense in section 550.021(c)(1) and (2) of the transportation code are as
follows:
         (c) …. An offense under this section:

                 (1) involving an accident resulting in:

                          (A) death of a person is a felony of the second degree; or


                                                           –5–
provided in section 550.021(c)(1)(A) that second degree felony punishment would apply to

violations of section 550.021(a) that resulted in death; provided in section 550.021(c)(1)(B) that

third degree felony punishment would apply to violations of section 550.021(a) that resulted in

serious bodily injury; and created a felony that does not fit into the punishment structure of

Capital, First, Second, Third, and State Jail Felonies in sections 12.31 through 12.35 of the penal

code 4 for violations of section 550.021(a) resulting in injury to which section 550.021(c)(1) does

not apply. See TEX. TRANSP. CODE ANN. § 550.021(c). The Legislature provided in section

550.012(c)(2) that a transportation code felony would have a punishment of a maximum

imprisonment in the Texas Department of Criminal Justice of five years and a maximum fine of

$5,000. See TEX. TRANSP. CODE ANN. §§ 550.021(c)(2).

          The judgment provides that appellant was convicted of a third degree felony. A third

degree felony has a punishment range of imprisonment for two to ten years and a fine not to

exceed $10,000. See TEX. PENAL CODE ANN. § 12.34. The trial court sentenced appellant to

imprisonment for five years and a fine of $10,000 both of which are within the statutory ranges.

See id. As the fine imposed by the trial court does not exceed the statutory maximum, it is not an

illegal fine.



                          (B) serious bodily injury, as defined by Section 1.07, Penal Code, to a person is
                          a felony of the third degree; and

                  (2) involving an accident resulting in injury to which Subdivision (1) does not apply is
                  punishable by:

                          (A) imprisonment in the Texas Department of Criminal Justice for not more than
                          five years or confinement in the county jail for not more than one year;

                          (B) a fine not to exceed $5,000; or

                          (C) both the fine and the imprisonment or confinement.

TEX. TRANSP. CODE ANN. §§ 550.021(c)(1), (2).
    4
        See TEX. PENAL CODE ANN. § 12.31-12.35 (West 2011 & West Supp. 2013).


                                                       –6–
       The State’s brief treats appellant’s issue as challenging the sufficiency of the evidence

supporting the trial court’s determination that Christian suffered serious bodily injury as a result

of appellant’s conduct. We apply the appropriate legal sufficiency standard of review. See

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Adames v. State, 353 S.W.3d 854, 860 (Tex.

Crim. App. 2011), cert. denied, 132 S. Ct. 1763 (U.S. 2012). In a legal sufficiency review, “we

view 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.” Adames, 353 S.W.3d at 860. This standard “recognizes the trier of fact’s role as the sole

judge of the weight and credibility of the evidence after drawing reasonable inferences from the

evidence.” Id. We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. See id. (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)).

       We described above the serious injuries sustained by Christian whom appellant struck

with his Tahoe before he fled the scene of the accident. Christian was knocked unconscious;

transported by ambulance to Baylor Hospital’s emergency room; injured her head, suffered

multiple fractures to her spine, and injured her elbow requiring stitches; was admitted to the

hospital; and convalesced for two months before she returned to work. Two years later she

testified at the punishment hearing that she still experienced episodes of pain that impaired her

ability to lift heavy objects and prevented her from traveling for work and picking up her

children. The State argues Christian’s injuries constitute serious bodily injury. We have held

that injuries such as Christian suffered constituted serious bodily injury. See Sneed v. State, 05-

02-00757-CR, 2003 WL 681322, at *1, 3 (Tex. App.—Dallas Mar. 3, 2003, pet. ref’d) (not

designated for publication) (female complainant was hit in the back, head slammed against a

table, kicked when she fell to the floor, felt pain in her left eye, back, arms, and shoulders when

                                                –7–
she was hit and doctors had to wait more than one week to perform surgery on her eye due to the

swelling in her face and after surgery she still had numbness under her left eye and in the

cheekbone area); see also Castillo v. State, 05-01-01725-CR, 2003 WL 42405, at *1-2 (Tex.

App.—Dallas Jan. 7, 2003, pet. ref’d) (not designated for publication) (complainant had part of

left ring finger bitten off during an altercation); Willis v. State, 05-00-01378-CR, 2002 WL

1941563, at *2 (Tex. App.—Dallas Aug. 23, 2002, pet. ref’d) (not designated for publication)

(five-inch cut across the jugular vein, skin hung down three inches, loss of large amount of

blood). To the extent that appellant’s issue challenges the sufficiency of the evidence that

Christian’s injuries constituted serious bodily injuries, we agree with the State that appellant’s

conduct resulted in serious bodily injury to Christian. We overrule appellant’s second issue.

C. Costs

        Appellant challenges the sufficiency of the evidence to support the trial court’s cost

assessment of $244 in court costs. Specifically, appellant asserts that the clerk’s record does not

contain a bill of costs as required by article 103.001 of the code of criminal procedure. The

record before us does contain a bill of costs. Appellant’s complaint has been addressed and

rejected. See Johnson v. State, 423 S.W.3d 385, 391–94 (Tex. Crim. App. 2014); Coronel v.

State, 416 S.W.3d 550, 555–56 (Tex. App.—Dallas 2013, pet. ref’d). We overrule appellant’s

third issue.




                                               –8–
                                       III. CONCLUSION

       Having overruled all of appellant’s issues, we affirm the judgment of the trial court.


                                                     /David Evans/
                                                     DAVID EVANS
                                                     JUSTICE




Do Not Publish
TEX. R. APP. P. 47
130369F.U05




                                               –9–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

JAMES EDWARD GRUMBLES, Appellant                   On Appeal from the Criminal District Court
                                                   No. 7, Dallas County, Texas
No. 05-13-00369-CR        V.                       Trial Court Cause No. F11-70745-Y.
                                                   Opinion delivered by Justice Evans.
THE STATE OF TEXAS, Appellee                       Justices Fillmore and Lewis participating.

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


Judgment entered this 12th day of August, 2014.




                                            –10–
