                                  NO. 07-11-00424-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                   OCTOBER 19, 2012


                       TERRY MICHAEL SIZEMORE, APPELLANT

                                            v.

                           THE STATE OF TEXAS, APPELLEE


               FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

                 NO. 63,116-D; HONORABLE DON R. EMERSON, JUDGE


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

                                        OPINION


       Appellant, Terry Michael Sizemore, appeals his conviction for aggravated

assault 1 and resulting fifteen-year sentence.   He brings to this Court one issue on

appeal: whether the evidence is sufficient to establish the element of “serious bodily

injury.” We will affirm.


                              Factual and Procedural History


       On February 6, 2011, complainant, Barbara Michie, was at appellant’s house

visiting her friend, Teresa Smith, who was appellant’s girlfriend. At some point during

       1
           See TEX. PENAL CODE ANN. § 22.02(a)(1) (West 2011).
the night, as appellant, Smith, and Michie drank together, Smith decided she wanted

her car keys, but appellant refused to give them to her. A physical altercation ensued

between appellant and Smith.          Michie intervened to try to pull appellant off Smith,

apparently to no avail. Appellant and Smith carried on the fight through several rooms

of the house. After her efforts to separate appellant and Smith were unsuccessful,

Michie decided to call Smith’s son for assistance. As she was in the process of doing

so, appellant leapt onto Michie and bit her. Later, it would be learned that appellant had

bitten off a piece of Michie’s ear.


       At some point, Smith had called 911. At 1:19 a.m., Officer Joel Bullard of the

Amarillo Police Department was dispatched to the residence where, upon his arrival one

to two minutes later, he saw appellant screaming at a female as he pushed her inside

the house. Bullard also noticed a vehicle backing up to pull away from the house. He

signaled the unidentified driver to stop, and the driver complied. As Bullard approached

the vehicle, he saw Michie in the backseat of the vehicle holding a bloody towel or cloth

to the right side of her head.        Bullard described Michie as “frantic” and “bleeding

profusely.”   After examining her injury, which involved Michie missing what Bullard

estimated to be a two-inch by one-half-inch section of her lower right ear, he summoned

an ambulance for Michie.


       A fellow officer arrived a short time later to assist Bullard, and the two officers

made their way to the front door where they summoned appellant to the doorway. The

officers noted that appellant sported blood–from an unidentified source–on his face and

lips and in his beard. “[A]gitated” and “combative,” appellant refused to comply with

                                               2
Bullard’s instruction to come outside. Bullard pulled appellant from the doorway to the

outside where the officers were able to place him in handcuffs and put him in the

backseat of a patrol car as they continued their investigation. Ultimately, appellant was

arrested and charged with aggravated assault.


      A Potter County jury found appellant guilty of aggravated assault, and the trial

court assessed punishment at fifteen years’ imprisonment.          Appellant appeals his

conviction, seemingly conceding that there was sufficient evidence of the elements of

simple assault but contending that the evidence was insufficient that Michie sustained a

serious bodily injury, a required element of the offense of aggravated assault.


                                   Standard of Review


      In assessing the sufficiency of the evidence, we review all 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 offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex.Crim.App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”             Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate

question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07

                                            3
n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d

404, 448–50 (Tex.Crim.App. 2006), as outlining the proper application of a single

evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.” Id. at 899.


                                      Applicable Law


       A person commits assault if he intentionally, knowingly, or recklessly causes

bodily injury to another. See TEX. PENAL CODE ANN. § 22.01(a)(1) (West 2011). To

establish the offense of aggravated assault, the State must prove the defendant caused

serious bodily injury to another. Id. § 22.02(a)(1). “Bodily injury” is defined as “physical

pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8) (West Supp.

2012). “Serious bodily injury” is “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.” Id. § 1.07(a)(46).


       The record does not suggest that the injury to Michie’s ear created a substantial

risk of death, and there is nothing in the record that would suggest that the injury

caused protracted hearing loss. 2 So, we will focus on the remaining aspect of the

definition of “serious bodily injury,” namely serious permanent disfigurement.




       2
         There is, though, a brief reference to Michie’s statement at the time of the injury
that she could not hear. We note first that this was the State’s attorney’s statement and
add that nothing in Michie’s testimony suggested that, even if she was not able to hear
at the time, she has suffered a protracted loss of hearing in that ear.

                                             4
      We begin by noting the well-established rule that the relevant issue is the

disfiguring effect of the bodily injury as it was inflicted, not after the effects had been

ameliorated or exacerbated by other actions such as medical treatment. See Stuhler v.

State, 218 S.W.3d 706, 714 (Tex.Crim.App. 2007); Fancher v. State, 659 S.W.2d 836,

838 (Tex.Crim.App. 1983) (en banc); Brown v. State, 605 S.W.2d 572, 575

(Tex.Crim.App. [Panel Op.] 1980). There are no wounds that constitute “serious bodily

injury” per se. Hernandez v. State, 946 S.W.2d 108, 111 (Tex.App.—El Paso 1997, no

pet.) (citing as examples Webb v. State, 801 S.W.2d 529, 533 (Tex.Crim.App. 1990) (en

banc) (per curiam), and Moore v. State, 739 S.W.2d 347, 352 (Tex.Crim.App. 1987) (en

banc)). Instead, we must determine whether an injury constitutes a serious bodily injury

on a case-by-case basis, evaluating each case on its own facts to determine whether

the evidence was sufficient to permit the finder of fact to conclude that the injury fell

within the definition of “serious bodily injury.” See Moore, 739 S.W.2d at 352; Eustis v.

State, 191 S.W.3d 879, 884 (Tex.App.—Houston [14th Dist.] 2006, pet. ref’d).


      “Serious bodily injury” may be established without a physician’s testimony when

the injury and its effects are obvious.    See Carter v. State, 678 S.W.2d 155, 157

(Tex.App.—Beaumont 1984, no pet.). The person who sustained the at-issue injury is

qualified to express an opinion about the seriousness of that injury. Hart v. State, 581

S.W.2d 675, 677 (Tex.Crim.App. [Panel Op.] 1979); Coshatt v. State, 744 S.W.2d 633,

636 (Tex.App.—Dallas 1987, pet. ref’d).


       We note, however, that the record does contain evidence that would suggest
some degree of impairment of Michie’s ear as a result of the injury. She testified that
she still experienced pain in her right ear resulting from the injury and that the pain
increased whenever she lays in such a way to put pressure on that ear.
                                            5
       Simply that an injury causes scarring is not sufficient, on its own, to establish

serious permanent disfigurement. Hernandez, 946 S.W.2d at 113; see McCoy v. State,

932 S.W.2d 720, 724 (Tex.App.—Fort Worth 1996, pet. ref’d). A reviewing court must

find more than mere scarring alone; instead, it must find in the record evidence of “some

significant cosmetic deformity” in order to conclude that the evidence of serious bodily

injury was sufficient. Compare Hernandez, 946 S.W.2d at 113 (finding evidence of one-

inch scar from stab wound in addition to a surgical scar insufficient to “elevate ‘bodily

injury’ to ‘serious bodily injury’”), and McCoy, 932 S.W.2d at 724 (concluding evidence

of slight scar on lip, though permanent, was not sufficient to show serious permanent

disfigurement), with Moore v. State, 802 S.W.2d 367, 369–70 (Tex.App.—Dallas 1990,

pet. ref’d) (finding sufficient evidence of serious bodily injury where victim’s cheekbone

was fractured in three places and surgery needed to prevent significant cosmetic

deformity), and Pitts v. State, 742 S.W.2d 420, 421–22 (Tex.App.—Dallas 1987, pet.

ref’d) (concluding evidence of significant disfigurement was sufficient where victim

suffered five facial fractures necessitating several surgeries to repair damage).


       Likewise, the necessity of surgery alone is insufficient to establish serious bodily

injury. See Webb, 801 S.W.2d at 533. Whether a “bodily injury” is “serious,” in terms of

the Texas Penal Code, does not depend solely upon whether the victim received

medical treatment.    See Moore, 739 S.W.2d at 354.          However, in evaluating the

evidence supporting serious bodily injury, courts do consider as a relevant factor

whether the injury would be permanently disfiguring without medical treatment. See




                                            6
Brown, 605 S.W.2d at 575 (concluding evidence that a broken nose would cause

disfigurement and dysfunction if untreated sufficient to establish serious bodily injury). 3


                                          Analysis


       Photographs of Michie’s injuries as she waited at the scene for an ambulance

were admitted into evidence without objection. These photographs show a significant

amount of blood in and around the area surrounding Michie’s ear, and they clearly

depict that a piece of her ear is missing. Photographs of Michie’s right ear taken one or

two days after the assault and after she had gotten medical treatment were also

admitted without objection. These photographs depict the sutures used to close and

repair the wound to some degree and confirm that part of her lower ear remained

missing, causing her ear to be misshapen.


       Michie testified that, as appellant punched, kicked, slapped, and dragged Smith

throughout the house, she attempted to call Smith’s son for assistance in breaking up

the fight. Appellant leapt onto her, punched her, and bit her. She described the injury

and the surgical procedure to repair it, adding that the missing portion of her ear was

never found. Michie testified that, seven months after the injury, she still experienced


       3
           In a case bearing the same name, the Dallas court reconciled Moore with
Brown:
       We interpret Moore as prohibiting the prosecution’s attempts to transform
       a minor injury into a serious bodily injury through the use of speculative
       testimony about what might have occurred had the minor injury not been
       medically treated.
Moore, 802 S.W.2d at 370 (discussing Moore, 739 S.W.2d at 354, and Brown, 605
S.W.2d at 575).
                                              7
pain in her ear. This pain increased if she happened to lay in such a way that she put

pressure on her right ear.      She explained that she had not yet undergone the

reconstruction procedure and, at the prosecutor’s request, showed her ear to the jury,

enabling it to assess the degree of disfigurement. Appellant testified at trial and denied

having committed an assault against Michie. He explained, though, that had he known

she was as severely injured as she was, he would have rendered aid at the time

because “it look[ed] bad.”


      Medical records from Michie’s two-day hospital stay describe Michie’s wound

upon her arrival at the emergency room as a “traumatic injury” to her right ear. Michie’s

“traumatic injury” is more than one resulting in mere scarring; her medical records

describe a “loss of significant section of the lower ear,” more technically a “gross

avulsion of the helix and lobule area of the right ear.”     Her preoperative diagnosis

described her injury as an open wound to the right ear with “underlying cartilage

exposed and desiccated.” The treating physician described the injury in more detail:


      Her right ear shows a significant degree of avulsion going from around the
      mid aspect of the helix all the way down involving the lobule. The entire
      segment measures approximately 6 cm in length about a centimeter and a
      half in width [and is] simply gone. The underlying cartilage itself appears
      to be broken and desiccated. There appears to be no actual broken
      segments, but there appears to be almost nibbled off section[s] of the
      edges of the cartilage.
Based on his assessment of the injury, including the exposed, desiccated cartilage, the

treating physician advised surgical intervention to cleanse the wound, repair and

remove tissue in the area of the wound, and cover the remaining cartilage, a procedure

the medical records describe as a “complex repair.” Records indicated that the surgical


                                            8
intervention was successful in cleansing and closing the wound, but did not result in a

full reconstruction of the ear; this initial surgical procedure, it appears, was not intended

to accomplish such. Ultimately, the doctor noted, the injury will require a two- to three-

stage reconstruction using rib cartilage to reconstruct her ear.


       The jury was free to apply common sense, knowledge, and experience gained in

the ordinary affairs of life in drawing reasonable inferences from the evidence presented

to it. Eustis, 191 S.W.3d at 884. That said, the jury could have rationally concluded that

Michie suffered serious permanent disfigurement from the photographs of her injury at

the time of the assault, Michie’s testimony describing the injury and complications

associated with it, the in-court demonstration of the resulting misshapen form of her

lower right ear, and the extensive medical records describing the details of her injury.

We conclude the evidence is sufficient to establish the requisite elements of aggravated

assault, including the jury’s finding that appellant caused Michie serious bodily injury.

Accordingly, we overrule appellant’s sole point of error.


                                        Conclusion


       Having overruled appellant’s sole point of error, we affirm the trial court’s

judgment of conviction. See TEX. R. APP. P. 43.2(a).




                                                  Mackey K. Hancock
                                                      Justice


Publish.

                                             9
