
                                          NO. 07-11-0237-CR

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL C

                                          NOVEMBER 26, 2012
                                 ___________________________________

                                          JOE ARIEL TORRES,

                                              Appellant

                                                  V.

                                         THE STATE OF TEXAS,

                                                                Appellee
                                 ___________________________________

                          FROM THE 100TH DISTRICT COURT OF CHIDRESS COUNTY;

                               NO. 5321; HON. STUART MESSER, PRESIDING
                                  __________________________________

                                          Memorandum Opinion
                                  __________________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
      Appellant, Joe Ariel Torres, appeals his conviction of injury to a  child,  enhanced.   He  now
contends that the evidence is insufficient to support the conviction because it fails  to  show  that
1) he used his “fist” to strike the child as alleged in the indictment, and  2)  the  child  suffered
injury.  We affirm.
                                              Background
      Laura Saucedo, the mother of the victim, testified at trial that appellant, the father  of  the
victim, had both the victim and the victim’s twin brother with him all day on August 3,  2010.   Upon
appellant’s return, she noticed appellant with glassy, red eyes and the smell of  alcohol.   He  also
had a beer container in the vehicle.  Saucedo attempted  to  take  the  keys  from  the  ignition  so
appellant would be unable to leave with the boy and planned on everyone going inside  the  house  and
getting ready for bed.  However, appellant began to drive away with Saucedo standing on the  driver’s
side door.  As appellant was driving, Saucedo attempted to put the vehicle out of gear  so  he  would
have to stop.  Appellant appeared angry and upset and told Saucedo that this  was  her  day  to  die.
Appellant also kept hitting Saucedo on her side and face in an effort to remove her from  the  truck.
At one point, she was able to get the truck into park, and one of the kids in it succeeded in  taking
the keys out of the ignition.
      The children were trying to stop appellant from hitting their mother.   As  they  did  so,  the
victim struck at appellant saying, “Don't hit  my  mother.   Don't  hit  my  mom.”   At  that  point,
appellant reached over and hit the child.  When asked if appellant  used  his  fist,  Saucedo  stated
that she could not remember.  Later, the child appellant struck received medical treatment,  but  was
not hospitalized.  According to Saucedo, the victim had a bruise on his face that lasted a couple  of
weeks.
      The victim testified that as his mom held onto the truck, appellant started hitting  her.   The
victim then hit appellant to get him to stop and appellant “pushed [him] back with his  forearm”  and
slapped him in the face.  The victim further stated that he hit appellant again and  did  so  because
appellant was hitting his mother.  After his mother fell off of the vehicle, his father  drove  away.
 While they were driving around, the victim testified that appellant threatened  to  cut  his  throat
and leave him out in the country.
      Officer Leroy Rodriguez with the Childress Police Department testified that he  was  dispatched
on August 3, 2010, to investigate a case of injury to a child.   He  contacted  Saucedo  and  noticed
that she was visibly upset and crying.  He also spoke with the victim’s brother who was also  crying,
upset, and angry.   Saucedo had bruises on her person, and the officer called for EMS to examine  her
injuries.  After appellant was caught and the child taken to the police  station,  the  officer  also
noticed that the victim was scared and had  “some  redness  to  the  right  side  of  his  face”  and
swelling.  The jury found appellant guilty of the charged offense.
                                        Insufficient Evidence
      Use of Appellant’s Fist
      Regarding the contention that the State failed to show that a fist was used to strike the  boy,
we note that appellant was charged with “. . . intentionally or knowingly caus[ing] bodily injury  to
[the victim], a child 14 years of age or younger, by striking [the  victim]  in  the  face  with  his
fist.”  While there is ample evidence that the boy was struck in the face, nothing  illustrates  that
a fist was used.  But, that does not warrant reversal.
       In Carroll v. State, 698 S.W.2d 278 (Tex. App.–Fort Worth 1985,  pet.  ref’d),  the  appellant
was charged with injury to a child, the indictment alleging that appellant hit “said child  with  his
fists.”  The appellant there, like the one here, argued that the State failed to prove  he  used  his
“fists” to hit the child, even  though  evidence  did  show  that  the  hand  was  used.   The  court
nonetheless refused to find that the allegation describing the configuration of the appellant's  hand
was an essential element.  It considered the argument “hypertechnical.”  Id. at 279; see also  Taylor
v. State, Nos. 08-97-0461 & 0462-CR, 1999 Tex. App. Lexis 4021, at *6-7 (Tex. App.–Amarillo  May  25,
1999, pet. ref’d) (not designated for  publication).  We  agree  with  the  Carroll  decision.   That
appellant utilized an open hand or the like, rather than a fist, to  hit  the  boy  is  no  basis  to
reverse the conviction as being insufficiently  supported  by  the  evidence,  and  we  overrule  the
contention.[1]
      Bodily Injury
      As for the contention about deficient evidence showing bodily injury, we note that  the  latter
is defined as “physical pain, illness, or any impairment of  physical  condition.”  Tex.  Penal  Code
Ann. § 1.07(a)(8) (West Supp. 2012).  Furthermore, the  definition  is  broad  and  encompasses  even
relatively minor physical contact as long as it is more  than  mere  offensive  touching.   Reyes  v.
State, 83 S.W.3d 237, 239 (Tex. App.–Corpus Christi 2002, no pet.); Arnold v. State, 36  S.W.3d  542,
545 (Tex. App.–Tyler 2000, pet. ref’d); see also Lane v. State, 763 S.W.2d 785, 787 (Tex. Crim.  App.
1989) (holding that a red and purple bruise on the victim’s wrist from  twisting  was  sufficient  to
show bodily injury).  Additionally, evidence of a cut, scrape, or bruise on the body is  sufficiently
indicative of physical pain to establish bodily injury even if there is no testimony the victim  felt
pain.  Arzaga v. State, 86 S.W.3d 767, 778 (Tex. App.–El Paso 2002, no pet.).
      Here, there is evidence that the victim suffered redness and swelling to the side of his  face.
His mother also testified that the area changed to a bruise  that  lasted  approximately  two  weeks.
That is some evidence upon which a rational jury could conclude, beyond reasonable  doubt,  that  the
child suffered bodily injury.  So, we overrule this issue as well.
      Accordingly, we affirm the judgment of the trial court.


                                   Per Curiam


Do not publish.




      -----------------------
      [1]The long and short of it is that  it  matters  not  whether  the  evidence  established  the
particular manner or means by which the  child  was  struck,  as  alleged  in  the  indictment.   Any
variance between  the  evidence  proffered  at  trial  and  the  allegation  in  the  indictment  was
immaterial.  And, if the variance was immaterial, as noted  in  the  Carroll  opinion,  the  evidence
presented is sufficient to support conviction.

