                                                                           PD-0245-15
                                                         COURT OF CRIMINAL APPEALS
    August 12, 2015                                                      AUSTIN, TEXAS
                                                       Transmitted 8/12/2015 12:28:02 PM
                                                          Accepted 8/12/2015 2:07:37 PM
                                                                          ABEL ACOSTA
          IN THE COURT OF CRIMINAL APPEALS OF        TEXAS                        CLERK

JUAN BLEA,                     s
    APPELLANT                  s
                               $
    v.                         $                 No. PD-0245-15
                               $
THE STATE OF TEXAS             $
    APPE,LLEE,                 s


           FIRST AMENDED STATE'S BRIEF ON THE MERITS

     FROM THE SECOND DISTRICT OF TEXAS AT FORT WORTH
              IN CAUSE NUMBER O2-13.0022I-CR
                           AND
          FROM THE 362ND JUDICIAL DISTRICT COURT,
    THE HONORABLE BRUCE MCFARLING, JUDGE, PRESIDING;
   THE HONORABLE, SFMRRY SHIPMAN FROM TI{E 16TH JUDICIAL
             DISTRICT COURT; AS SITTING JUDGE
                   DENTON COTINTY, TEXAS
               IN CAUSE NUMBER F-2OI I-0993-D

                                   PAUL JOHNSON
                                                                I

                                   Criminal District Attorney
                                   Denton County, Texas

                                   CATHERINE LUFT
                                   Assistant Criminal District Attorney
                                   Chief, Appellate Division

                                   ANDREA R. SIMMONS
                                   Assistant Criminal District Attorney
                                   State Bar No. 24053478
                                   1450 East McKinney
                                   Denton, Texas 76209
                                   (e40) 34e-2600
                                   FAX (940) 349-27st
                                   andrea. simmons @dentoncounty. com
            IDENTITY OF PAR           AND COUNSEL

Appellant                          JUAN BLEA
                                   JOSEPH BOSWELL
                                   1504 East McKinney Street
                                   Suite 200
                                   Denton, Texas 76209
                                   APPELLATE COI-INSEL

                                   DENVER MCCARTY
                                   l5l2 East McKinney Street
                                   Suite 200
                                   Denton, Texas 76209

                                   TRTAL COUNSEL


Appellee                           THE STATE OF TEXAS
                                   PAUL JOHNSON
                                   Criminal District Attorney

                                   CATHERINE LUFT
                                   Assistant Criminal District Attorney
                                   Chief, Appellate Division

                                   ANDREA R. SIMMONS
                                   Assistant Criminal District Attomey
                                   State Bar No. 24053478
                                   1450 East McKinney
                                   Denton, Texas 76209
                                   (940) 349-2600
                                   FAX (940) 349-27 st
                                   andrea, simmons @dentoncounty. com

                                   APPELLATE COI.INSEL

                                   MICHAEL GRAVES
                                   DUSTIN GOSSAGE
                                   Assistant Criminal District Attorneys
                                   TRIAL COTINSEL
                              ll
                              TABLE O F'CONTENTS

IDENTITY OF PARTIES AND COUNSEL                                                        l1



INDEX OF AUTHORITIES                                                ..........,.....iv-vi

STATEMENT OF TFIE CASE                                                                  I

STATEMENT REGARDING ORAL ARGUMENT                                                       2


ISSUE PRESENTED                                                                         2


STATEME,NT OF FACTS                                                                     2

SUMMARY OF THE ARGUMENT                                                                 4

ARGUMENTS                                                                               4


    Applied properly, the settled principles of an evidentiary
    suffrciency analysis prevent the appellate courts from
    becoming a thirteenth     juror                                        .............4

    Bodily injury versus serious bodily injury                                          5


    The facts of this case, as supported by the evidence, are
    sufficient to support the jury's finding that the complainant
    suffered serious bodily injury                                                      6


       I   . A substantial   risk of death                                              6


       2. Protracted loss or impairment of the function of
            any bodily member or organ                                                 l0

CONCLUSION                                                                             l3

PRAYER FOR RELIEF                                                                      15


CERTIFICATE OF COMPLIANCE                                                              16


CERTIFICATE OF SERVICE                                                                 t6

                                             iii
                          INDEX OF AUTHORITIES

Statutes

Tex. Penal Code Ann. $ 1.07(a)(8) (West 2013)                                          5


Tex. Penal Code Ann. $ 1.07(a)(46) (West2013)                            5,6 ,10, 1l


Cases

Barrera v. State
 820 S.W.2d 194 (Tex. App.-Corpus Christi 1991, Pet. refld)                            9


Blea v. State
  No.02-13-00221-CR,2015 Tex. App. LEXIS tl37
  at *13-14 (Tex.App.-Fort Worth Feb. 5, 2015, pet. field)
  (not designated for publication)                                    ...8, 10, 12,13

Brown v. State
 605 S.W.2d 572 (Tex. Crim. App. fPanel Op.] 1980)                                      8


Dewberry v. Stqte
 4 S.W.3d 735 (Tex. Crim. App.     1999)                               .......'.'.'.5 I J

Dobbs v. State
 434 S.W.3d 166 (Tex. Crim. App.     2014)                                ............,14

Hernandez v. State
 161 S.W.3d49l (Tex.     Crim.4pp.2005)                                   '...'......'. 14

Hooper v. State
 214 S.W.3d 9 (Tex. Crim. App. 2007)                                              5,   13


Jaclcson v. Vírginía
443 U.S. 307,99 S. Ct.   2781,2788-89,6rL.8d.2d560 (r979).........................4,5


                                          lv
Johnson v. State,
  No. 05-10-00465-CR, 2011Tex. App. LEXIS 6208, aT*12
  (Tex. App.-Dallas 201 l, no pet.) (not designated lbr publication) ..'........ ........12

Laster v. State
 275 S,W.3d 512 (Tex. Crim. App.        2009)                                  ...............'   5


Madden v. State
 911 S.W.2d236 (Tex.       App.-Waco      1995, pet.    refld)....'........      ............12

Moore v. State
 739 S.W.2d347 (Tex. Crim. App.         1987)                                   '...............6

Nash v. State
 123 S.W.3 d 534 (Tex.     App.-Fort Worth        2003, pet. ref d).                              6


Patterson v. Stqte
 No. 11-06-00209-CR, 2008 Tex. App. LEXIS 1525, at *8
 (Tex. App.-Eastland 2008, pet. ref d) (not designated
 f'or publication)                                                                                9


Pedro v. State
 No. 0l-88-00197-CR, 1988 \ryL I 39708, at 82 (Tex.
 App.-Houston [1st Dist.] Dec.22,1988, no pet.)
 (not designated for    publication)......                                              ...,....9

Sízemore v. State
  357 3d 824 (Tex.    App.-Amarillo 20t2,         pet. ref   d).............   ...'.".......... 9

 Thomas v. State
  444 S.W.3d 4 (Tex. Crim. App.        2014)                                   ...............' 14

 Tucker v. State
  No. 05-01-01899-CR, 2002 WL 32397713, at*l-2 (Tex.
  App.-Dallas oct. 30,2002, no pet.) (not designated for publication)                             t2

 Villarreal v. State
  716 S.W.2d 651 (Tex. App.-Corpus Christi 1986, no pet.)...                       ............12



                                              V
Whatley v, State
 445 S.W.3d 159 (Tex. Crim. App. 2014)                                                  t4

Wílliams v. State,
 575 S.W.2d30 (Tex. Crim. App. [Panel Op.] 1979)                                        t1

llilson v. State
 139 S.W.3d 104 (Tex. App.-Texarkana 2004, pet.    refd)..............              .,....9

Winfrey v. State
 323 S.W.3d 875 (Tex. Crim. App.   2010)                  ..'............................ l3




                                     VI
           IN THE COURT OF CRIMINAL APPEALS OF TEXAS

JUAN BLEA,                                   s
    APPELLANT                                $
                                             s
      v                                      s                    No. PD-0245-15
                                             $
THE STATE OF TEXAS                           $
      APPELLEE                               s


           FIRST AMENDED STATE'S BRIEF ON THE MERITS'


TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Comes now the State,         by and through its Assistant District Attomey,

and respectfully submits its brief on the merits urging that the judgment of the

Second District Court of Appeals be reversed.

                           STATEMENT OF THE CASE

      Appellant was charged with, and found guilty of, the first-degree felony

offense   of   aggravated assault, family violence, and sentenced           to five years
imprisonment. The majority opinion released by the Second Court of Appeals held

that the evidence supporting "serious" bodily injury was insufficient, and reversed

and remanded the case to the trial      court. The majority opinion ordered the trial

court to (1) modiff its judgment to delete the first-degree felony conviction of

I       This Amended Brief is being filed to property reflect the designation of the parties,
i.e., Appellant and Appellee. The State enoneously referred to the parties incorrectly in
its original brief on merits.
                                              t
aggtavated assault   of a family   member and    to instead reflect a second-degree

felony conviction for aggravated assault of a family member through the use of       a


deadly weapon and (2) conduct a new trial on punishment. Justice Livingston f,rled

a   dissenting opinion.     , This Court       granted   the State's Petition for
Discretionary Review.

              STATEMENT REGARI)                G ORAL ARG IIMENT

      Because the issues presented to this Honorable Court for review are narrow

in scope, the State does not believe that oral argument will be helpful to the Court

in determining whether the Court of Appeals erred.

                               ISSUE PRESENTED

      Did the Second Court of Appeals improperly apply the standard for
      reviewing the sufficiency of the evidence ln analyzing whether the
      complainant suffered serious bodily injury?

                            STATEME            OF'F'ACTS

      On July 20,20t0, Justina Fassett2 was living with her young daughter and

her ex-boyfriend's parents (2 R.R.   at2t-23,75,83), The ex-boyfriend, Appellant,

was the child's father but was living with a friend at the fime (2 R.R. at 22-23).

       Appellant stopped by his parent's home to visit but quickly observed a

hickey on Justina's neck and became upset (2 R.R. at 26-28, 118). Appellant's

parents were at work, and only Justina and the baby were home (2 R.R. at 26-27,


'      By the time of trial, the victim, Justina Fassett, had manied Appellant and her
married name was Justina Blea (2 R.R. at 19,73,90),
                                           2
75-76). Although Justina initially told Appellant that the hickey was "none of [his]

business," she finally admitted that she got the hickey from a male friend that she

had hung out with the previous night (2 R.R. at 28-30). Appellant hit Justina in the

face and told her that he was going to   kill   her (2 R.R. at 30-32). Justina asked

Appellant to stop because the baby was "fussy" (2 R.R. at 33, 125), Appellant

stopped and Justina put the baby in bed with a bottle (2 R.R. at33,35,125).

      Appellant and Justina began fighting again, and Appellant          hit   Justina

multiple times in the face and ribs, and he continued to hit and kick her after   she


fell to the ground (2 R.R. at 32-33, 35-36, 50, 125). The baby woke up and

Appellant again stopped (2 R.R. at 35,37). Justina told Appellant they needed

diapers, so Appellant left and later returned with diapers (2 R.R. at   35,37).   The

two had another verbal argument, Appellant said that Justina was disrespectful, and

then he left the home (2 R.R. at 38).

       When Appellant's parents returned from work, they found Justina in a lot     of

pain and having difficulty breathing (2 R.R. af.33,36-37,39-40, 43,76-77, 84-85,

gl, 117-18, 126). She initially said that she had fallen down the stairs but
subsequently admitted that was not the truth (2 R.R. at 40,77, 85-86). Appellant's

father called 9-l-1, and Justina was transported to Baylor Hospital via ambvlance

(2 R.R. at 40-41, 60,79,86-88, 91,96,116). She was later transported to Parkland




                                          a
                                          J
Hospital, where she remained for four days for treatment and observation (2 R.R.

at 42-43, 60, 62, 67 -72,79, 97).

      Justina suffered from a cut underneath her eye; a lacerated liver; a collapsed

lung (pneumothorax); two fractured ribs; fractures to her maxillary           sinuses;


bruising and scrapes to her ear, face, arrns, legs, lower back, chest and abdomen;

and she had to have a chest tube inserted at the hospital to help her breathe (2 R.R.

aI 39, 42-43, 6l-69, 72, g4-g1 104-08,      ll7, 122, 125-26; State's Exhibits l-17,
20-43,46). Justina did not work for approximately one month after being released

from the hospital (2 R.R. at 44-45,108).

                        SUMMARY OF THE ARGUMENT

       The evidence was legally sufficient to support that the complainant suffered

serious bodily   injury. The        Second Court   of   Appeals improperly acted as   a


thirteenth juror by determining that the evidence was insufficient in light of the

overwhelming evidence of the complainant's injuries and the seriousness of said

injuries prior to the effects having been ameliorated by medical treatment.

                                      ARGUMENTS

 Applied properly, the settled principles of an evidentiary sufficiency analysis
 prevent the appellate courts from becoming a thirteenth juror.

       In assessing the legal sufficiency of the evidence under Jackson v. Virginía,

 a reviewing court "considerfs] all of the evidence in the light most favorable to the

 verdict and determine[s] whether, based on that evidence and reasonable inferences

                                            4
therefrom, a rational juror could have found the essential elements of the crime

beyond a reasonable doubt." Hooper v. State,214 S.W.3d 9, 13 (Tex. Crim.

App. 2007 (citing Jackson v, Virginia,443 U.S. 307,318-19, 99 S. C|.2781,

2788-89,61 L.Ed.2d 560 (1979)). A reviewing court's role is not to become a

thirteenth juror, and   it   should not reevaluate the weight and credibility of the

record evidence and substitute          its judgment for that of the     fact-finder.

Dewberry v. State,      4 S.W.3d 735, 740 (Tex. Crim. App. 1999).         Instead,   a


reviewing court defers to "the responsibility of the trier of fact to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts." Hooper,2l4 S.W.3d aT 13 (quoting Jackson,

443 U.S. at 318-19). This same standard applies equally to circumstantial and

directevidence. Lasterv. State,275 S,W.3d 512,517-18 (Tex. Crim.App.2009).

A   reviewing court's role on appeal is "restricted to guarding against the rare

occurrence when a factfinder does not act rationally." Id. at 518.

Bodily injury versus serious bodily injury.

       "Bodily injury" means physical pain, illness, or any impairment of physical

condition. Tex. Penal Code Ann. $ 1.07(a)(8) (West 2013). "Serious bodily

injury" means bodily injury that creates a substantial risk of death or that   causes


death, serious perrnanent disfigurement, or protracted loss or impairment of the

function of any bodily member or organ. Tex. Penal Code Ann. $ 1.07(a)(a6)


                                             5
(West 2013) (emphasis added). The Texas Legislature intended that there be a

meaningful difference or distinction between the different definitions for "bodily

injury" and "serious bodily injury," because the Penal Code provides definitions

for each.   See Nash   v. State, 123 S.W.3d 534,538-39 (Tex. App.-Fort Worth

2003, pet,   refd) (citing Moore v, State, 739 S.V/.2d 347, 349 (Tex.            Crim.

App. 1e87)).

The facts of this case, as supported by the evidence' are sufficient to support
the jury's finding that the complainant suffered serious bodily injury.

               1. A substantial risk of death.

      Justina testified that her written statement, taken after the assault but prior to

being transported to the hospital, indicated that she was in "a ton of pain" after the

assault (2 R.R. at   36). She said that she had pain in her chest and back and that it

felt like something was broken or terribly injured (2 R.R. at 37). When the

ambulance arrived, she could not breathe very well (2 R.R. at       39,43). Likewise,

Appellant's father testified that when he first saw Justina, she looked pretty bad

and that she said her back hurt, and he noted that she couldn't walk (2 R.R. at 85,

91). Tim Adamo, the responding officer from the Carrollton Police Department,

 also testified that Justina was having a hard time breathlng(2 R.R. at 118, 126).

 Furthermoreo he testified that Justina was in quite a bit of pain when he arrived:

 she was holding her ribs, chest, and stomach area while seated on the couch



                                            6
(2 R.R. at 115, 117-18). In fact, when Justina attempted to stand, she fell back on

the couch in pain (2 R.R.at 120).

      Nurse Practitioner Kristie Brown, employed at Parkland Memorial Hospital,

testified that she came into contact with Justina on July 22,2010, and that Justina

suffered from a lacerated liver (2 R.R. at 26,60). She explained that "the liver is a

filtering organ, a very large vascular organ that sits on the left   -   right side of our

abdomen" (2 R. R.at 61). Nurse Brown testified that the liver plays a significant

role in one's body and is treated seriously in the medical profession (2             R.R.

at 65-66). She explained the following relating to the liver:

      "Injuries to the liver can cause a patient to bleed to death very quickly.
      Knowing that there is an injury to the liver and why it is and whether
      it is actively bleeding or has developed a blood clot to the liver makes
      a decision point for what the surgeons do and what we do for the
      patient"

(2 R.R. at 66).

       Staff observed Justina every four to six hours, "mashed on her abdomen,"

routinely checked her liver and her reaction, and looked for signs of peritonitis

(inflammation of the abdomen from bleeding in the liver and initation to the

abdomen) and noticed that the pain gradually progressed after twenty-four to

forty-eight hours of observation (2 R.R. at 62-63).




                                           7
      Nurse Brown also testified that Justina suffered from a pneumothorax and

she said that injuries to the lungs are treated seriously in the medical field (2 R.R.

at 64-67). To assist in understanding the diagnosis of a pneumothorax, Nurse


Brown testified to the following:

      "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, Justina, can have
      trouble breathing and it can affect blood pressure, vital signs that we
      look at" (2 R.R. at 64-65).

Nurse Brown testified that Justina had undergone a procedure              to   assist with

breathing and that Justina's lungs subsequently provided adequate oxygen (2 R.R.

at 65,67,69). Justina's mother clarified that Justina had a chest tube inserted to

assist with her breathing but that it was removed before Justina was discharged from

the hospital (2 R.R. at 97,104-05, 107-08, 110).

       The majority opinion in this case on appeal held that, "there is no evidence

from any source that would allow a jury to conclude or infer beyond a reasonable

doubt that the complainant's injuries created a substantial risk               of   death."

Blea v. State, No. 02-13-00221-CR, 2015 Tex. App. LEXIS            ll37   at tl3-14 (Tex.

App.-Fort Worth Feb. 5, 2015, pet. field) (not designated for                publication).

However, the relevant inquiry as to this issue is the extent of the injuries as inflicted,


                                            8
not after the effects have been ameliorated by medical treatment. Wilson v. State,

139 S.W.3d 104, 106 (Tex. App.-Texarkana 2004, pet. ref d) (emphasis added)

(citing Brown v. State,605 S.W.2d 572,575 (Tex. Crim. App. fPanel Op.] 1980));

see Baruerq v. State, 820 S.W.2d 194, 196 (Tex. App.-Corpus Christi 1991,

pet. ref d); see also Patterson v. ,S/a/ø, No, 1l-06-00209-CR, 2008 Tex, App

LEXIS 1525, at *8 (Tex. App.-Eastland 2008, pet. refd) (not designated for

publication) (testimony by emergency room physician sufficient         to show that
pneumothorax, comrìon with broken ribs, created a substantial risk of death). As

Justice Livingston stated in her dissenting opinion in this case:

      [T]he 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 testif,red about) to help with her
      difficulty in breathing, the complainant faced a substantial risk of
      death. See Sizemore v, State,387 3d 824,828 (Tex. App.-Amarillo
      2012, pet. refld); see also Patterson v. State, No. I l-06-00209-CR,
      2008 WL 564880, at t€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. 0l -88-00197-CR, 1988 WL 1 39708, at 82 (Tex. App.-Houston
       flst Dist.] Dec. 22, 1988, no pet.) (not designated for publication)
       ("[T]he possibility Íhat [a collapsed lung] could cause death,
       combined with the testimony that the complainant's lung was
       punctured, does support a findings that [a knife] was capable of
       causing'serious bodily injury. "').
             Viewing the evidence in the light most favorable to the verdict
       and allowing the jrry 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
                                           9
      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)(a6).

Blea, 2015 Tex. App. LEXIS tI37 (Dissenting Opinion aI 4-5).

      Thus, the evidence of the injuries to the complainant's liver and/or

lungs was sufficient   to   support the jury's finding that the complainant

suffered serious bodily injury.

             2. Protracted loss or impairment of the function of           any
                bodily member or organ.

      In addition to Justina's multiple other injuries (a cut underneath her        eye;


lacerated liver; collapsed lung (pneumothorax); fractures to her maxillary sinuses;

and bruising and scrapes to her ear, face, arrns, legs, lower back, chest and

abdomen), Nurse Brown testified that Justina suffered from two fractured ribs,

which were treated by pain medication and incentive spirometry (deep-breathing

exercises) (2 R.R. at 39, 42-43, 6l-69, 72, 94-95, 104-08,   ll7 , 122, 125-26;   State's

Exhibits I-17,20-43, 46). Justina testified that she didn't work for approximately

one month after being discharged from the hospital and that she was prescribed

pain medications (2 R,R. at 45). Justina testified that she rested while at home but

also said that she was out and about (2 R.R. at 35, 48). According to Justina, when

 she returned to work where she was previously employed as a waitress, Justina




                                          10
decided to be a host       in order to avoid "everybody" (2 R.R. at 45-46).3 But

according to Justina's mother, Jennifer Fassett, Justina moved in with her after

being discharged from the hospital and just "layed [sic] around" and couldn't work

because   it hurt to walk (2 R.R. at 108-10). She also testified that Justina became         a


hostess because she was unable to      fuIfilI her previous duties as a waitress   because


she could not    lift   over twenty-five pounds, per her physician's advice (2 R.R.

at 109-11). Furthermore, Jennifer testified that in the approximate month               after

leaving the hospital, Justina could not care for herself even though she was able to

walk and go to the bathroom (2 R.R, at 109-10, 113-15).

      Thus, the evidence was sufficient to show that the complainant suffered a

serious bodily injury because she suffered from a protracted impairment                of   the

functioning of her body. SeeTex. Penal Code Ann. $1.07(a)(a6). In fact, Justice

Livingston stated in her dissenting opinion that:

      I would hold that   these month-long effects from the assault qualifu as
       a   "protracted" impairment of the complainant's bodily functions.
      See Tex. Penal Code Ann. $ 1.07(a)(a6); lhlliams                     v. State,
      575 S.W.2d30,33 (Tex. Crim. App. fPanel 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
3      Although Justina testified that she did not suffer from serious permanent
disfigurement or have protracted loss of the use of a bodily member or organ, she admitted
on cross-examination that she did not know what that meant and said it was something a
doctor should have told her about if it existed (2 R.R. at47-48,51), It should also be noted
that Justina married Appellant after the assault and prior to trial and did not wish to testiff
against Appellant (2 R.R.at 47).

                                              1l
      bodily injury"); Madden v. State, 911 S.W.2d 236, 244-45 (Tex.
      App.-Waco 1995, pet. refd) (concluding that there was serious
      bodily injury by protracted impairment of a bodily member when the
      victim was shot in the hip, hospltalized for a day and a halt could not
      walk for a month after the shooting, and had perlnanent scar tissue
      where the bullet entered and exited his body); see also Tucker v. State,
      No. 05-01-01899-CR, 2002 \ /L 32397713, at *I-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).

Blea,2015 Tex. App. LEXIS ll37 (Dissenting Opinion at 6)'

      In contrast, the court în Vil.larreql found that there was no testimony that the

fractured ribs in that case created a substantial risk of death and that the injury was

not the type from which a trier of fact could infer a substantial risk of death from

the injury itself. See Villarreal v. State, 716 S.W.2d 651                       (Tex.

App.-Corpus Christi 1986, no pet.). The court also held that evidence of            the


victim's inability to raise his arms for ten days and pain for two weeks caused by

the pain of two fractured ribs, and the fractured ribs themselves, were insufficient

to show "serious bodily injury."       See   Id.   However, other courts have held

otherwise based on the specific fbcts of their eases. The analysis is fact specific

and must be conducted on          a   case-by-case   basis. See Johnson v.       State,


No. 05-10-00465-CR,      20ll   Tex. App. LEXIS 6208, at *12 (Tex. App.-Dallas

2011, no pet.) (not designated for publication) (the victim's inability to use her




                                           t2
swollen eye for three weeks constituted protracted loss or impairment of that eye,

despite being a shorter time than that found insuf'frcientin Villarreal).

      Here, the Second Court        of Appeals improperly       resolved conflicts in

witnesses' testimony against the jury's verdict. For example, the majority opinion

noted contradicting testimony as to the changes in duties at the complainant's job

and whether those changes were related          to her injuries; the court also   noted

inconsistent testimony by the complainant's mother as to how long it took before

the complainant could walk. The majority found a lack of evidence as to the

complainant being unable to control her oxygenation, and pointed out that although

the complainant testified that she suffered a lacerated liver, no other evidence of

such was presented (although there was evidence which allowed an inference           of

such).   See Blea, 2015 Tex. App. LEXIS 1137             at * 8-12. But, it is      the

responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts

(2 R.R. at 35, 45-46, 48, 108-11, 113-15). See Dewberrl,4 S.W.3d at 740;

Hooper,214 S.W.3d at     13.


                                   CONCLUSION

       A jury's verdict in evidentiary sufflrciency issues are weighed in favor of

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

(Tex. Crim. App. 2010). Settled principles aimed at preventing appellate courts


                                           13
from becoming a thirteenth juror include: considering the evidence, along with

reasonable inferences from the evidence, in the light most favorable to the verdict;

defening to the factfinder's exclusive role to resolve conflicts in the evidence, and

to judge the credibility of the 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 fhal      a


factfinder is free to accept or reject any or all of the testimony of any witness (see

Appendix A, Livingston's Dissent, citing 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. 201Ð;

Dobbs v. State,434 S.W.3d t66,170 (Tex. Crim. App. 2014); Hernandez v. State,

161 S.W.3d 491, 500-01 (Tex. Crim. App. 2005). Here, the majority improperly

acted as a thirteenth juror.

       In this case, a rational juror could have found the testimony sufficient     to

prove Appellant caused serious bodily injury to Justina, beyond a reasonable

doubt. The testimony adduced at trial showed that Justina suffered a lacerated

liver, which can cause bleeding and can result in death, and a lung injury

(pneumothorax), which affects one's ability to breathe adequalely (2 R.R. at 26,

 60-67). Both of these injuries are treated seriously by medical personnel (2 R.R. at

 64-67). Justina had diffrculty breathing after the assault, but her lungs functioned

normally after hospital staff inserted a chest tube (2 R.R. at 39, 43, 65, 67, 69,97,


                                           4
104-05, 107-08, 110,     ll8,   126). Also, Justina suffered from two broken      ribs,

which required pain medications and breathing exercises to tolerate the pain and

assist in healing (2 R.R. at 64,69).




                                PRAYER FOR RELIEF

         For the reasons stated herein, the State prays this Court will reverse the

judgment of the Second District Court           of Appeals, find that the evidence is
sufficient to uphold Appellant's conviction, and affirm the judgment of'the trial

court.

                                           Respectfully submitted,

                                           PAUL JOHNSON
                                           Criminal District Attorney
                                           Denton County, Texas

                                           CATHERINE LUFT
                                           Assistant Criminal District Attorney
                                           Chief, Appellate Division




                                           ANDREA R.              ONS
                                           Assistant Criminal District Attorney
                                           State Bar No. 24053478
                                           1450 East McKinney
                                           Denton, Texas 76209
                                           (e40) 34e-2600
                                           FAX (e40) 34e-27sr
                                           andrea. s immons @dentoncounty. com

                                           l5
                       CERTIFICATE OF COMPLIANCE

      The State certifies that the First Amended State's Brief on Merits in the
instant cause contains a word count of 3355, said count being generated by the
computer program Microsoft Word that was used to prepare the document.




                                             ANDREA R. SIMMONS




                             CERTIF'ICATE OF SERVICE

      A true copy of the First Amended State's Brief on Merits has been   sent by

United States Mail, postage prepaid, to counsel for Appellant, Joseph Boswell,
BOSWELL     & MOORE,          1504 East McKinney Street, Suite 200, Denton, Texas
76209,on this, the   12th   day of August, 2015.
                                                                    (


                                             ANDREA R. SIMM NS




                                            16
