                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-16-00015-CR


MARK SORENSEN                                                          APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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           FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
                     TRIAL COURT NO. F15-2175-158

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                          MEMORANDUM OPINION1

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     Appellant Mark Sorensen appeals his first-degree-felony conviction and

fifty-year sentence for aggravated assault with a deadly weapon against a

member of his family or household.2       In three issues, he contends that the

evidence was insufficient to prove that he used a deadly weapon during the

     1
         See Tex. R. App. P. 47.4.
     2
         See Tex. Penal Code Ann. § 22.02(a)(1), (b)(1) (West 2011).
assault, that a provision in the guilt/innocence jury charge incorrectly stated the

law and egregiously harmed him, and that the trial court erred by failing to

instruct the jury to disregard parts of the State’s closing argument. We affirm.

                                  Background Facts

      Appellant lived with and dated K.J. (Kimberly).3 One day in March 2014,

appellant dropped Kimberly off near a library, but when she noticed that the

library was closed, she waited near a park, hoping that appellant would pick her

up. Eventually, when Kimberly began walking toward a dollar store to buy a

jacket, she saw one of her friends, and she spent the night at the friend’s house.

      The next morning, Kimberly’s friend took her to appellant’s house. When

Kimberly went inside the garage to see what appellant was doing, she saw him

inside the house and noticed that he was upset, so she “stood in the garage for a

while.” Appellant noticed Kimberly’s presence and told her to go to the backyard.

When she did so, he pulled her sweatshirt over her head, drug her around, and

started kicking her stomach and side. Appellant placed Kimberly in a choke hold

with his forearm. She began blacking out and “seeing spots.” When Kimberly

attempted to get away, appellant hit her with a tree branch and with his hands.

Kimberly attempted to stop the assault by grabbing appellant’s crotch area.

      During the assault, appellant’s parents arrived at the house, and he

stopped beating Kimberly.        Although she had only one shoe on, could not


      3
          To protect the victim’s anonymity, we use an alias.


                                           2
breathe well, and had pain in her ribs, she attempted to run through the house

and outside to a nearby business.4 Appellant’s parents saw her, noticed that she

was crying, and asked her if she was okay but realized that she was not.

Kimberly told them that she could not breathe, and according to her testimony,

they offered to take her to a hospital, but she declined.5 They also offered to take

her to a dollar store to get cigarettes, a drink, and shoes, and she agreed.

      Kimberly eventually went back to her friend’s house. The next day, she

went to her mother’s house.       According to her mother, Kimberly was “very

[shaken] up” and was “[h]urting”; she had scratches and bruises and “couldn’t

take a deep breath.” After speaking to her mother, Kimberly went to a police

station to report the assault and to a hospital. At the station, a police officer

noticed that Kimberly had bruising and scratches and had a hard time walking

and breathing.

      At the hospital, Kimberly learned that her lung was thirty to forty percent

collapsed and that she required emergency surgery. The surgery resulted in the

placement of a chest tube. A surgeon told Kimberly that if appellant had choked

her for ten more seconds, she could have died. Kimberly spent two days in the


      4
        While she was running through the house, Kimberly saw a man lying on
the floor. She later learned that the man, appellant’s best friend, had died that
morning.
      5
       Appellant’s mother testified that she did not offer to take Kimberly to the
hospital. Appellant’s mother also testified that Kimberly did not have trouble
breathing at that time and that she did not know that Kimberly had been injured.


                                         3
hospital. While she was there, police officers visited her and interviewed her

about what had transpired.

      A grand jury indicted appellant for aggravated assault; the indictment

alleged that he had caused serious bodily injury to Kimberly, that she was a

member of his family or household when the assault occurred, and that he had

used or exhibited a deadly weapon during the assault. Appellant filed various

pretrial motions, chose the jury to assess his punishment in the event of a

conviction, and pled not guilty.

      At trial, Dr. Lalit Mahajan, who treated Kimberly after the assault, testified

that she presented to the hospital with shortness of breath and was diagnosed as

having a pneumothorax that required treatment through a chest tube.

Dr. Mahajan described a pneumothorax as a “collapsed lung” caused by trauma,

and he stated that a pneumothorax may cause death through respiratory arrest

or cardiac arrest if it is not treated.      Dr. Mahajan also explained that a

pneumothorax impairs the function of the lungs and that Kimberly’s

pneumothorax was severe enough that it could not have healed by itself without

treatment.   He testified that Kimberly did not have “other history”—such as

chronic obsessive pulmonary disorder—to believe that something other than

appellant’s assault caused her pneumothorax.

      After receiving the parties’ evidence and arguments, the jury found

appellant guilty.    The jury then received more evidence and arguments

concerning his punishment, including his prior convictions and past episodes of


                                         4
domestic violence, and assessed fifty years’ confinement.              The trial court

sentenced him accordingly, and he brought this appeal.

                              Evidentiary Sufficiency

      In his first issue, appellant contends that the evidence is insufficient to

prove that he used his foot, hand, or a branch as a deadly weapon, as the

indictment alleged.    To obtain a first-degree-felony conviction for aggravated

assault under the circumstances here, the penal code required the State to prove

that appellant (1) intentionally, knowingly, or recklessly caused serious bodily

injury to a member of his family or household, and (2) used a deadly weapon

during the commission of the assault. Tex. Penal Code Ann. §§ 22.01(a)(1)

(West Supp. 2016), .02(a)(1), (b)(1); see also Tex. Fam. Code Ann. §§ 71.003,

.005 (West 2014).

      In our due-process review of the sufficiency of the evidence to support a

conviction, 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. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); see also Drichas v. State, 175 S.W.3d

795, 798 (Tex. Crim. App. 2005) (applying the Jackson standard to review a

deadly weapon finding); McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App.

2000) (same).6 This standard gives full play to the responsibility of the trier of


      6
       Although appellant raises legal and factual sufficiency in the title of his first
issue, he recognizes that the two standards are “indistinguishable.” We review

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fact to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.),

cert. denied, 136 S. Ct. 198 (2015).

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v.

State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an

evidentiary sufficiency review, we may not reevaluate the weight and credibility of

the evidence and substitute our judgment for that of the factfinder.          See

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we

determine whether the necessary inferences are reasonable based upon the

cumulative force of the evidence when viewed in the light most favorable to the

verdict.   Murray, 457 S.W.3d at 448.       We must presume that the factfinder

resolved any conflicting inferences in favor of the verdict and defer to that

resolution. Id. at 448–49. The standard of review is the same for direct and

circumstantial evidence cases; circumstantial evidence is as probative as direct

evidence in establishing guilt. Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim.

App. 2014).




all elements that the State must prove beyond a reasonable doubt under the
single Jackson standard. See Morgan v. State, 501 S.W.3d 84, 89 n.14 (Tex.
Crim. App. 2016); Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013).


                                        6
      A deadly weapon is “anything that in the manner of its use or intended use

is capable of causing death or serious bodily injury.” Tex. Penal Code Ann.

§ 1.07(a)(17)(B) (West Supp. 2016); Daniel v. State, 478 S.W.3d 773, 780 (Tex.

App.—Fort Worth 2015, no pet.); see also Tex. Penal Code Ann. § 1.07(a)(46)

(defining “serious bodily injury” as “bodily injury that creates a substantial risk of

death or that causes death, serious permanent disfigurement, or protracted loss

or impairment of the function of any bodily member or organ”). For evidence to

be sufficient to sustain a deadly weapon finding, it must demonstrate that the

object meets the statutory definition of a deadly weapon, that the deadly weapon

was used or exhibited “during the transaction from which” the felony conviction

was obtained, and that someone was put in actual danger. Drichas, 175 S.W.3d

at 798.

      Hands and feet may qualify as deadly weapons by the way they are used.

Hopper v. State, 483 S.W.3d 235, 239 (Tex. App.—Fort Worth 2016, pet. ref’d);

Orona v. State, 341 S.W.3d 452, 460 (Tex. App.—Fort Worth 2011, pet. ref’d).

Evidence that a fact-finder may consider in determining whether an object was

used as a deadly weapon includes the physical proximity between the victim and

the object, any threats or words used by the defendant, the manner in which the

defendant used the object, testimony by the victim that she feared death or

serious bodily injury, and testimony that the object had the potential to cause

death or serious bodily injury. Hopper, 483 S.W.3d at 239.




                                          7
      Kimberly testified that during appellant’s assault of her, he kicked her

stomach and side. She also explained that after the assault, her ribs hurt, she

could not breathe, and she felt lightheaded. When Kimberly arrived at the police

station the next day, it was evident that she had a hard time walking and

breathing. Dr. Mahajan testified that Kimberly presented to the hospital that day

with chest pain and shortness of breath and was diagnosed as having a

pneumothorax—a collapsed lung—caused by forceful trauma.               Dr. Mahajan

described a pneumothorax as an “emergent condition,” testified that Kimberly’s

pneumothorax required treatment through a chest tube, stated that her injury

would not have improved on its own, explained that the pneumothorax impaired

the function of Kimberly’s lungs, and explained that she could have died without

treatment.7 Kimberly’s medical records state that “[c]ritical care was necessary to

treat or prevent imminent or life-threatening deterioration” of her conditions.




      7
      In determining whether a bodily injury creates a substantial risk of death,
we should consider the

      impairing quality of the bodily injury as it was inflicted on a
      complainant by an offender. Accordingly, when evaluating the
      sufficiency of the evidence to determine whether there was a serious
      bodily injury, an appellate court should not consider the amelioration
      . . . of an injury . . . [through] medical treatment.

Blea v. State, 483 S.W.3d 29, 31, 34–35 (Tex. Crim. App. 2016) (citation omitted)
(holding that an injury qualified as “serious bodily injury” when the victim had a
collapsed lung, she was taken to a hospital, the lung required a tube to permit
breathing, and medical testimony described a risk of death).


                                          8
      Under the standards recited above, viewing this evidence and the

remaining evidence in the light most favorable to the verdict, we conclude that a

rational jury could have found beyond a reasonable doubt that appellant used at

least his feet as deadly weapons because they were not only capable of causing,

but did cause, serious bodily injury to Kimberly. See Tex. Penal Code Ann.

§ 1.07(a)(17)(B), (46); Blea, 483 S.W.3d at 34–35; Patterson v. State, No. 11-06-

00209-CR, 2008 WL 564880, at *3 (Tex. App.—Eastland Feb. 28, 2008, pet.

ref’d) (not designated for publication) (stating that a pneumothorax qualified as a

serious bodily injury because it created a substantial risk of death); see also

Roberts v. State, 766 S.W.2d 578, 579–80 (Tex. App.—Austin 1989, no pet.)

(holding that a pickup truck was a deadly weapon when the evidence showed

that reckless driving not only could have caused, but did cause, death or serious

bodily injury to victims). We overrule appellant’s first issue.

                                 Jury Charge Error

      In his second issue, appellant argues that the trial court’s unobjected-to

jury charge in the guilt/innocence phase contained an erroneous instruction that

caused him to suffer egregious harm. “[A]ll alleged jury-charge error must be

considered on appellate review regardless of preservation in the trial court.”

Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In our review of a

jury charge, we first determine whether error occurred; if error did not occur, our

analysis ends. Id. If error occurred, whether it was preserved determines the

degree of harm required for reversal. Id. Unpreserved charge error warrants


                                          9
reversal only when the error resulted in egregious harm. Nava v. State, 415

S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1985) (op. on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19

(West 2006). The appropriate inquiry for egregious harm is fact specific and

must be performed on a case-by-case basis. Gelinas v. State, 398 S.W.3d 703,

710 (Tex. Crim. App. 2013); Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim.

App. 2011).

      In making an egregious-harm determination, “the actual degree of harm

must be assayed in light of the entire jury charge, the state of the evidence,

including the contested issues and weight of probative evidence, the argument of

counsel and any other relevant information revealed by the record of the trial as a

whole.” Almanza, 686 S.W.2d at 171. See generally Gelinas, 398 S.W.3d at

708–10 (applying Almanza). Errors that result in egregious harm are those “that

affect the very basis of the case, deprive the defendant of a valuable right, vitally

affect the defensive theory, or make a case for conviction clearly and significantly

more persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at

172). The purpose of this review is to illuminate the actual, not just theoretical,

harm to the accused. Almanza, 686 S.W.2d at 174.

      As explained above, to convict appellant of a first-degree felony for

aggravated assault, the jury was required to find that he used a deadly weapon

during the assault. Tex. Penal Code Ann. § 22.02(b)(1). Here, however, the

charge erroneously instructed the jury that it could convict appellant of a first-


                                         10
degree felony if it found that he used “or exhibit[ed]” a deadly weapon—his hand,

foot, or a tree branch—during the assault. See id.

      The State assumes that error occurred and argues that the error was not

egregiously harmful. We agree. Here, there was no evidence that would have

led any rational jury to conclude that during the assault, appellant only exhibited

his hand, foot, or a tree branch. Rather, the State’s evidence and arguments

focused on his use of these items to seriously injure Kimberly. During the State’s

closing argument, the prosecutor said, “[Appellant] took [Kimberly] in that

backyard. He kicked her repeatedly. He punched her and he hit her with that

tree branch.”

      Also, under the language in the jury charge, the jury’s finding that appellant

caused serious bodily injury to Kimberly carries an implicit finding that he used

those items to do so.     The charge instructed the jury to find appellant guilty of

the first-degree offense if it found

      from the evidence beyond a reasonable doubt that . . . [appellant]
      intentionally, knowingly, or recklessly cause[d] serious bodily injury
      to [Kimberly] by striking [Kimberly] with a tree branch or by striking
      [Kimberly] with the defendant’s hand or by striking [Kimberly] with
      the defendant’s foot, and the defendant did then and there, during
      the commission of said assault, use or exhibit a deadly weapon, to-
      wit: a tree branch or the defendant’s hand or the defendant’s foot,
      that in the manner of its use or intended use was capable of causing
      death or serious bodily injury . . . . [Emphasis added.]

      Under this language and the evidence and arguments presented to the

jury, there is no legitimate risk that the jury erroneously convicted appellant of the

first-degree felony based on his exhibition of the tree branch or his hand or foot


                                         11
rather than his use of those items. Thus, we conclude that the error in the jury

charge did not egregiously harm appellant, and we overrule his second issue.

See Nava, 415 S.W.3d at 298; Almanza, 686 S.W.2d at 171; see also Hooker v.

State, No. 12-02-00173-CR, 2003 WL 22048243, at *2–4 (Tex. App.—Tyler Aug.

29, 2003, pet. ref’d) (mem. op., not designated for publication) (holding that a trial

court’s erroneous jury charge that allowed a jury to find use or exhibition of a

deadly weapon was harmless when the evidence and arguments solely focused

on the use of a car, rather than the exhibition of the car, as a deadly weapon).

                          Closing Argument Objections

      In appellant’s third issue, he asserts that the trial court erred by failing to

instruct the jury to disregard allegedly improper arguments made by the State.

During the State’s closing argument concerning appellant’s guilt, the following

exchange occurred:

      [THE STATE:] The evidence that you have before you is that on
      March 29th of 2014, [Kimberly] came home and [appellant] was
      mad. And we don’t know why [appellant] was mad. . . . But he calls
      [Kimberly] into the backyard. And whether she came up to the fence
      and he drug her in there or whether he drug her to the backyard,
      folks, that doesn’t matter. He took her in that backyard. He kicked
      her repeatedly. He punched her and he hit her with that tree branch.

             And I want y’all to remember something when you go back
      there. This is a traumatic experience. Our bodies, our minds work
      differently when we experience a traumatic experience.

             [DEFENSE COUNSEL]: Objection. Adding facts that are not
      in the record.

             THE COURT: I’ll sustain.



                                         12
           [THE STATE]: It’s a traumatic experience. And is [Kimberly]
      supposed to remember every single detail every single time?

Later during the same argument, the following colloquy occurred:

      [THE STATE:] And something that the Defense brought up about
      [Kimberly’s friend], you-all saw her. [She] could care less about
      being here. She did not want to be here. She told the cops as soon
      as they called her, I do not want to be involved in this.

            [DEFENSE COUNSEL]: Objection. That’s a misstatement of
      the evidence.

            THE COURT: Sustained.

            [THE STATE]: You heard from the witness stand what [a
      police officer] said and that’s exactly what he said. She won’t have
      anything to do with this.

      Appellant contends that the trial court properly sustained his objections to

these arguments “but never told the jury to disregard.” The State contends that

appellant forfeited his complaint about the lack of instructions to disregard

because he did not request them and instead rested on the trial court’s rulings

that sustained his objections.

      To preserve error in prosecutorial argument, a defendant must pursue his

objection to an adverse ruling. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim.

App. 2007). Accordingly, because the trial court sustained appellant’s objections

and because he did not then pursue further rulings by requesting instructions to

disregard, he forfeited any error arising from the arguments above. See Tex. R.

App. P. 33.1(a); Archie, 221 S.W.3d at 699; Mendoza v. State, Nos. 02-10-

00047-CR, 02-10-00048-CR, 02-10-00049-CR, 2010 WL 5621447, at *6 (Tex.




                                       13
App.—Fort Worth Dec. 30, 2010, no pet.) (mem. op., not designated for

publication). We overrule appellant’s third issue.

                                   Conclusion

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

judgment.


                                                     /s/ Terrie Livingston

                                                     TERRIE LIVINGSTON
                                                     CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.

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

DELIVERED: March 30, 2017




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