                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00070-CR



       CHARLES ANTHONY NELSON, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 369th District Court
               Cherokee County, Texas
                Trial Court No. 20829




      Before Morriss, C.J., Burgess and Stevens, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                     MEMORANDUM OPINION
        Although Charles Anthony Nelson, charged with assaulting a peace officer in Cherokee

County, 1 was found not guilty by reason of insanity, the trial court found that Nelson, in the course

of the charged actions, had placed another person in imminent danger of serious bodily injury and

committed Nelson to in-patient mental health treatment for 180 days. On appeal, Nelson argues

that his act of biting the deputy’s finger had not placed the deputy in imminent danger of serious

bodily injury. 2 Because sufficient evidence supports the trial court’s finding, we affirm.

        It is undisputed that Nelson has a long history of mental illness and has been diagnosed

with schizoaffective disorder. According to psychiatrist Satayajeet Lahiri, Nelson’s “psychoses

center[] around his paranoid delusions of people in the woods trying to shoot him or persons on

the roof of his house.” It is undisputed that Nelson “becomes disconnected with reality and

becomes agitated” as a result of psychotic episodes and that the offense in this case was committed

while Nelson was in the grasp of a psychotic episode. Accordingly, Nelson was found not guilty

by reason of insanity.

        Because of the insanity finding, the trial court was required to determine “whether the

charged offense involved conduct that (1) caused serious bodily injury to another person,

(2) placed another person in imminent danger of serious bodily injury, or (3) consisted of a threat



1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We are unaware of any
conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See TEX. R.
APP. P. 41.3.
2
 This finding is appealable notwithstanding Nelson’s acquittal.         See TEX. CODE CRIM. PROC. ANN. art.
46C.270(a)(2)(B).

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of serious bodily injury to another person through the use of a deadly weapon.” See TEX. CODE

CRIM. PROC. ANN. art. 46C.157. Here, the trial court determined that Nelson placed a peace officer

in imminent danger of serious bodily injury, prompting a disposition hearing, 3 from which the

questioned commitment order resulted. On appeal, Nelson questions only whether the Article

46C.157 ruling was proper.

            Whereas Article 46C.256 determinations—not challenged in this appeal—are governed

under the clear and convincing standard of review, an Article 46C.157 determination—at issue

here—is not. Compare Truong v. State, 574 S.W.3d 511, 519 (Tex. App.—Houston [1st Dist.]

2019, no pet.), with Scott v. State, No. 10-16-00370-CR, 2017 WL 3183285, at *1 (Tex. App.—

Waco July 26, 2017, no pet.) (mem. op.). 4 An Article 46C.157 finding involves a mixed question

of law and fact. See Scott, 2017 WL 3183285, at *1.

            When reviewing a trial court’s ruling on a mixed question of law and fact, we review

de novo the application of the law to the facts, but we afford almost total deference to the trial



3
    The disposition hearing is to determine, from clear and convincing evidence, whether

                     (1)       the person has a severe mental illness or mental retardation;

                     (2)       the person, as a result of that mental illness or mental retardation, is likely to cause
            serious bodily injury to another if the person is not provided with treatment and supervision; and

                     (3)       inpatient treatment or residential care is necessary to protect the safety of others.

TEX. CODE CRIM. PROC. ANN. art. 46C.256(a). An order for commitment to inpatient treatment expires on the 181st
day after the date the order is issued, but it is subject to renewal as provided by statute. TEX. CODE CRIM. PROC. ANN.
art. 46C.256(c). As a result of the disposition hearing, the trial court found that the State met its burden under Article
46C.256. Nelson does not contest those findings.
4
 “Although unpublished opinions have no precedential value, we may take guidance from them ‘as an aid in
developing reasoning that may be employed.”‘ Fowler v. State, 553 S.W.3d 576, 582 n.6 (Tex. App.—Texarkana
2018, no pet.) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d)).
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court’s evaluation of the credibility and demeanor of witnesses. Estrada v. State, 154 S.W.3d 604,

607 (Tex. Crim. App. 2005); see Scott, 2017 WL 3183285, at *1. If the resolution of the issue

does not turn on credibility and demeanor, we review the ruling on a de novo basis. Guzman v.

State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

       “Serious bodily injury” is defined as “bodily injury that . . . causes . . . serious permanent

disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

TEX. PENAL CODE ANN. § 1.07(a)(46) (Supp.). The State does not argue that Nelson caused serious

bodily injury. Instead, the issue before us is whether the trial court properly found that Nelson

placed a peace officer in imminent danger of serious bodily injury.

       Brittany Storm, a dispatcher with the Cherokee County Sheriff’s Office, testified that she

dispatched peace officers to Nelson’s home after he called to report people trespassing in his

woods. Deputy Houston Munsinger testified that he was on the way to Nelson’s home with another

officer when they both received information that Nelson’s girlfriend was being held hostage by

him. When Munsinger told Nelson he planned to detain him as a result of his girlfriend’s report,

Nelson became agitated, yelled, and resisted arrest.

       Munsinger testified that Nelson began fighting, would not allow the officers to grab his

hands, and bit Munsinger’s finger, “ripp[ing] the skin off.” Munsinger described the bite as

“[m]ore of a chomp, because [Nelson] didn’t let go,” and testified that he “yanked” his finger out

of Nelson’s mouth with difficulty. The State introduced pictures of the bite mark, showing

lacerations to both sides of Munsinger’s pointer finger at his knuckle between the middle and

proximal phalanges. Munsinger was treated by emergency medical services on the scene and went

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to a doctor two days later who, according to Munsinger, “said that [the laceration] went deep

enough to where it could get [Munsinger’s] knuckle infected.” Munsinger testified that he could

not use his finger “for a couple of days” and that the doctor prescribed antibiotics to prevent an

infection.

       When considering whether an injury constitutes serious bodily injury, we do “not consider

the amelioration or exacerbation of an injury by actions not attributable to the offender, such as

medical treatment.” Blea v. State, 483 S.W.3d 29, 35 (Tex. Crim. App. 2016). Also in determining

this question, we will not credit Nelson with defensive measures taken by Munsinger that may

have ameliorated the potential severity of the injury. See id. The trial court heard evidence that

Nelson “chomped down” on Munsinger’s finger while fighting him and would not release his bite.

The bite marks on Munsinger’s finger were deep enough to threaten infection, which was

prevented by antibiotics. In light of this testimony, the trial court could have concluded that

Munsinger’s injuries would have been worse had he not struggled to free his finger from Nelson’s

bite and could have led to the protracted loss or impairment of the function of his pointer finger.

See Henderson v. State, No. 13-14-00619-CR, 2016 WL 3962675, at *3 (Tex. App.—Corpus

Christi July 21, 2016, no pet.) (mem. op., not designated for publication) (possibility of infection

sufficient to find human bite to forehead capable of causing bodily injury or death); Jimenez v.

State, No. 07-04-0044-CR, 2005 WL 1743792, at *2 (Tex. App.—Amarillo July 25, 2005, pet.

ref’d) (mem. op., not designated for publication) (defendant’s teeth constituted deadly weapon

when used to bite officer’s finger, drawing blood, given evidence of risk of infection); Degrate v.

State, No. 05-04-00218-CR, 2005 WL 165182, at *2 (Tex. App.—Dallas Jan. 26, 2005, no pet.)

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(mem. op., not designated for publication) (human bite constituted deadly weapon when used to

bite victim’s leg, drawing blood); Castillo v. State, No. 05-01-01725-CR, 2003 WL 42405, at *2

(Tex. App.—Dallas Jan. 7, 2003, pet. ref’d) (mem. op. not designated for publication) (loss of

fingertip as result of human bite constituted serious bodily injury). Accordingly, we conclude that

the trial court’s finding was properly supported by the evidence. We overrule Nelson’s sole point

of error.

        We affirm the trial court’s judgment.



                                                Josh R. Morriss, III
                                                Chief Justice

Date Submitted:        July 17, 2019
Date Decided:          July 25, 2019

Do Not Publish




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