                                    NO. 07-08-0348-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                   NOVEMBER 20, 2009

                          ______________________________


                          CHRISTOPHER MILLS, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                        _________________________________

            FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

                 NO. 07-03-6403; HONORABLE PAT PHELAN, JUDGE

                          _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


              MEMORANDUM OPINION ON MOTION FOR REHEARING


       Remaining convinced that our original disposition of Appellant’s appeal is correct,

we overrule Appellant’s motion for rehearing with these additional comments. Appellant,

Christopher Mills, contends this Court erred in failing to first address his legal sufficiency

issue (Issue One) because a successful challenge would have resulted in an acquittal on
the first-degree felony offense of aggravated assault pursuant to § 22.02(b)(1) of the Texas

Penal Code.         Specifically, Appellant contends that there was no evidence that the

complainant’s injuries rose to the level of serious bodily injury, i.e., injuries creating 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.1


       A court of appeals is required to address every issue “necessary to final disposition

of the appeal.” Tex. R. App. P. 47.1. Because Appellant’s third issue (improper jury

argument committed during the guilt-innocence stage of the trial) had the effect of setting

aside his conviction, resolution of Appellant’s legal sufficiency issue was not necessary to

a final disposition of his appeal.


       Furthermore, since the trial court submitted a charge on the second-degree felony

offense of aggravated assault by the use of a deadly weapon, a finding of legal

insufficiency as to the issue of serious bodily injury would have required this Court to

reform the judgment to reflect a conviction as to that lesser included offense. Collier v.

State, 999 W.W.2d 779, 782 (Tex.Crim.App. 1999). Reversal and remand for a complete

new trial accords Appellant greater relief than a remand for purposes of punishment only.

Therefore, not only did the prior opinion of this Court address every issue necessary to final

disposition of this appeal, it also did not improperly fail to address the issue that afforded

Appellant the greater relief.


       1
           Tex. Penal Code Ann. § 1.07(a)(46) (Vernon Supp. 2009).

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       That said, even if this Court were to consider Appellant’s legal sufficiency challenge

in accordance with the standards which are well known, we find that a rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214

S.W.3d 9, 13 (Tex. 2007). Considered in the light most favorable to the verdict: (1) the

complainant suffered seven stab wounds to her head, neck, chest, hand, and back, (2) the

head wound involved temporal artery bleeding, (3) the chest wound entered her chest right

above her heart, (3) these injuries required exploratory surgery to determine whether they

were life threatening, (4) treatment required surgery, numerous stitches, a drain tube, and

the insertion of a breathing tube for five days, (5) her treating physician described the

wound by the heart, the injury to the airway requiring a breathing tube and the injury to the

head involving major blood vessels to the brain as creating a substantial risk of death, (6)

the complainant testified that, without the breathing tube down her throat, she could not

breathe, and (7) Detective Hancock testified that the five inch long, double-bladed knife

used to inflict the wounds was, in his opinion, a deadly weapon capable of causing serious

bodily injury. Appellant’s motion for rehearing is overruled.




                                                  Patrick A. Pirtle
                                                       Justice

Do not publish.




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