                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-13-00221-CR


JUAN BLEA                                                              APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


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          FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. F-2011-0993-D

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                DISSENTING MEMORANDUM OPINION 1

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      Because the majority’s opinion improperly applies standards for reviewing

the sufficiency of evidence to show that the victim suffered serious bodily injury, I

dissent from the decision to reverse the trial court’s judgment and to remand for

the entry of a judgment that reflects only a second-degree felony conviction. 2

      1
       See Tex. R. App. P. 47.4, 47.5.
      2
       See Tex. Penal Code Ann. § 22.02(b)(1) (West 2011).
      When deciding an evidentiary sufficiency issue in a criminal appeal, our

usual deference to a jury’s verdict requires us to weight appellate scales in favor

of affirming a judgment of conviction. See Winfrey v. State, 323 S.W.3d 875, 879

(Tex. Crim. App. 2010).      We do so by applying settled principles aimed at

preventing us from becoming a “thirteenth juror.” See Thornton v. State, 425

S.W.3d 289, 303 (Tex. Crim. App. 2014); Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010) (explaining that in reviewing the sufficiency of evidence to

support a conviction, we guard “against the rare occurrence when a factfinder

does not act rationally”).    Those principles 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 inferences therefrom) 3 and to judge the credibility of 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. 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, 161

S.W.3d 491, 500–01 (Tex. Crim. App. 2005).



      3
        The majority appears to resolve conflicts in witnesses’ testimony against
the jury’s verdict. See Majority Op. at 8–10.


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      In showing fidelity to these principles in this appeal, we should determine

that the evidence is sufficient to prove that the complainant suffered serious

bodily injury, meaning bodily injury 4 that created “a substantial risk of death . . . or

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

Tex. Penal Code Ann. § 1.07(a)(46); see id. § 22.02(a)(1), (b)(1).                  The

complainant testified that as a result of appellant’s hitting her side repeatedly,

she felt “a lot of pain” in her back and chest and could not breathe. She believed

that she had been “terribly injured.”           Appellant’s father noticed that the

complainant had difficulty walking. Hospital personnel told her that she had a

collapsed lung, among other injuries.          The complainant stayed in a hospital

several days, and a “month or so” passed before she was able to return to work.

      Kristie Brown, a nurse practitioner, confirmed that the complainant had

suffered a lung injury. Concerning that injury—a pneumothorax—Brown testified,

      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, [the complainant], can have
      trouble breathing, and it can affect blood pressure, vital signs that
      we look at.




      4
      “Bodily injury” includes pain or any impairment of physical condition. Tex.
Penal Code Ann. § 1.07(a)(8) (West Supp. 2014).


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      The complainant’s mother testified that while in the hospital, the

complainant was not able to move around the room, and treatment for her

collapsed lung required the insertion of a chest tube.              According to the

complainant’s mother, after the complainant left the hospital, she could not work

or walk without pain for some time, and when she returned to work, she was

instructed to not lift anything over twenty-five pounds.

      While it is true that the complainant’s condition improved upon medical

treatment, in determining whether evidence is sufficient to establish serious

bodily injury, the relevant issue is the impairing effect of the bodily injury as it was

inflicted, not after the effects have been ameliorated by medical treatment.

Jackson v. State, 399 S.W.3d 285, 291 (Tex. App.—Waco 2013, no pet.) (mem.

op.); see Webb v. State, 801 S.W.2d 529, 532 (Tex. Crim. App. 1990); Sizemore

v. State, 387 S.W.3d 824, 828 (Tex. App.—Amarillo 2012, pet. ref’d).               And

serious bodily injury may be established without a physician’s testimony when

the injury and its effects are obvious. Sizemore, 387 S.W.3d at 828.

      Brown testified that injuries to lungs are treated seriously because the

lungs control oxygenation and affect blood pressure and “vital signs.” Brown also

explained that improper oxygenation can cause death. Thus, the jury could have

reasonably inferred that if the complainant had not received the procedure that

Brown described (presumably, the tube that the complainant’s mother testified

about) to help with her difficulty in breathing, the complainant faced a substantial

risk of death. See id.; see also Patterson v. State, No. 11-06-00209-CR, 2008


                                           4
WL 564880, at *3 (Tex. App.—Eastland Feb. 28, 2008, pet. ref’d) (not designated

for publication) (concluding that testimony that the victim had trouble breathing

and received treatment for a pneumothorax that if left untreated, could cause

death, was sufficient to prove that the victim had a serious bodily injury); Pedro v.

State, No. 01-88-00197-CR, 1988 WL 139708, at *2 (Tex. App.—Houston [1st

Dist.] Dec. 22, 1988, no pet.) (not designated for publication) (“[T]he possibility

that [a collapsed lung] could cause death, combined with the testimony that the

complainant’s lung was punctured, does support a finding that [a knife] was

capable of causing ‘serious bodily injury.’”).

      Viewing the evidence in the light most favorable to the verdict and allowing

the jury to draw reasonable inferences from the evidence, I would hold that

based at least on the facts concerning the injury to the complainant’s lung, that

this injury required treatment through a tube, and that injuries to lungs can be life-

threatening, the evidence was sufficient for the jury to find that without treatment,

the complainant faced a substantial risk of death. See Tex. Penal Code Ann.

§ 1.07(a)(46).

      Moreover, I would also conclude that the evidence was sufficient to show

that the complainant sustained a serious bodily injury because she suffered from

a protracted impairment of the functioning of her body. See id. The complainant

testified that the injuries she suffered as a result of the assault required her to

miss a “month or so” of work. Her mother testified that during that time, the

complainant “couldn’t work” and just “[laid] around” because walking was painful.


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I would hold that these month-long effects from the assault qualify as a

“protracted” impairment of the complainant’s bodily functions. See id.; Williams

v. State, 575 S.W.2d 30, 33 (Tex. Crim. App. [Panel Op.] 1979) (holding “that the

injury which caused [the victim] to lose lifting power in his arm for three months”

constituted a protracted impairment of the function of a bodily member, so that

“the wound would be classified as serious bodily injury”); Madden v. State, 911

S.W.2d 236, 244–45 (Tex. App.—Waco 1995, pet. ref’d) (concluding that there

was serious bodily injury by protracted impairment of a bodily member when the

victim was shot in the hip, hospitalized for a day and a half, could not walk for a

month after the shooting, and had permanent scar tissue where the bullet

entered and exited his body); see also Tucker v. State, No. 05-01-01899-CR,

2002 WL 32397713, at *1–2 (Tex. App.—Dallas Oct. 30, 2002, no pet.) (not

designated for publication) (holding that there was protracted impairment when

the victim had a fractured jaw, was restricted to a liquid diet for three weeks, and

had jaw pain for a month).

      For all of these reasons, I respectfully dissent from the majority’s opinion

and judgment.


                                                   /s/ Terrie Livingston
                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 5, 2015


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