RF\ FRSF      aiid   RKN1I): Opinion Filed January 31. 2013.




                                                 In The
                                    nitrt        iii
                          ..1ift1i Jhtrict       iii (!.cxa!i at    Dz111w5
                                         No. 05-1 2-00201-CR


                                     JESUS LOPEZ, Appellant

                                                   V.

                                TH F STATE OF TEXAS, Appellee


                        On Appeal from the 292nd Judicial 1)istrict Court
                                     laI1as County, Texas
                             Trial Court Cause No. F10-63646-V


                               MEMORANDUM OPINION
                           Before Justices Lang-Miers, Myers, and Lewis
                                      Opinion By Justice Myers

        Jesus Lopez appeals his conviction for burglary of a habitation with the commission of

aggravated assault. See Tix. PEN\L CoDE ANN.        §   30.02(a)(3) (West 2011). Appellant waived his

right to a jury trial and pleaded nob contendere to the charge. After finding appellant guilty, the trial

court sentenced him to twenty years’ imprisonment.            Appellant brings one issue on appeal

contending the evidence is insufticient to support the element that appellant committed aggravated

assault. We reverse the trial court’s judgment and remand the cause for further proceedings.

       Where a defendant knowingly, intelligently, and voluntarily pleads nob           contendere to a

felony, the appellate standard of review for sufficiency of the evidence does not apply. See 0 ‘Brieii
v. Statc’. 154 S.W.3d 908, 910 (Tex. App.—Dallas 2005, no pet.). The State, however, must

introduce evidence into the record showing the defendant’s guilt. See TEX. CODE CalM. PROC. ANN.

art. 1.15 (Vernon 2005). “[un ito event shall a person charged be convicted upon his plea without

sufficient evidence to support the same.” Id. There is no requirement that the evidence prove the

defendant’s guilt beyond a reasonable doubt. See McGill v. State. 200 S.W.3d 325, 330 (Tex.

App.—Dallas 2006, no pet.). The evidence must simply embrace each essential element of the

otlense charged. Id.

        One of the essential elements in this case was that appellant committed aggravated assault.

See PENAL 30.02(aX3). To commit aggravated assault, the actor must either (I) use or exhibit a

deadly iveapon or (2) cause serious bodily injury to another. See Id.   § 22.02(a) (West 2011).   After

finding appellant guilty the court refused to make a deadly weapon finding. The State agrees with

appellant that there must be evidence showing appellant caused serious bodily injury to another.

‘Sthous bodily injury’ means 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.   §   l.07(aX46) (West Supp. 2012).

       The evidence in this case shows that on December 4, 2010, appellant and his brother,

Abraham Lopez. broke into the complainant’s house, went to the bedroom where the complainant

was sleeping, and punched and kicked the complainant repeatedly. The complainant went to the

hospital where he received stitches above his left eye at his eyebrow. At the trial on October 17.

2011, the complainant testified he does not have good vision in his left eye:

       Q.  Okay. Now, let’s talk about some of the other things. Are you able to see well
       right now?

       A. No, no, I do not. This eye Ihils me a lot. It’s not very well.




                                               —2—
        Q.   Okay. Now, which eye is that that you are pointing at?

        A. The onc on the left side.

        Q. And which eye was injured due to the actions of Abraham Lopez and die other
        person [appellant] that was with him?

        A. My eye is not well. 1 do not see tvell out of it.

        Q. Was your left or your right eye injured by Abraham Lopez and the other person
        [appellant]?

        A. Yes, sir.

        Q. Was it your left or your right?
        A. The left

The State contends this testimony constitutes evidence that appellant’s assault on the complainant

caused the complainant serious bodily injury. Appellant disagrees.

        The State cites Johnson v. Stale, No. 05-l0-00465-CV, 2011 WI 3484801 (Tex.

App.—Dallas Aug. 10, 2011. no pet.) (mem. op.) (not designated for publication)) In that case, the

complainant was beaten into unconsciousness. When she awoke, her eye was swollen shut, and she

was unable to see out of the eye for three weeks. Id. at * 1—2. We concluded the evidence was

sufficient to prove protracted loss or impairment ofthe eye from the assault. Ii at *4 in that case,

however, it was clear that the loss ofvision occurred immediately after the assault, and thejury could

conclude the vision loss was caused by the assault. See Id at *4

       The evidence in this case shows the complainant was beaten by appellant, received stitches

in his eyebrow, and, over ten months later, stated he did not see well out of that eye. The

complainant did not testify that the decreased vision was due to the beating or that it occurred




      an opinion not designated fir publication, Johnson baa no precedential value. See TaR. An. P.47.7(a).




                                                              —3—
Hnrnediately after the heating. The State did not   present   any medical or other evidence showing the

decreased vismu resulted horn the assault.        Unlike the situation in io/,nni. no evidence or

circumstances link the complainants diminished vision to the assault.

        The evidence in this case does not “embrace” the essential element that appellant committed

ai.uravatcd assault. We conclude the evidence is insufficient to meet article I 15’s requirement that
                                                                                  .




the State introduce evidence showing the guilt of the defendant for burglary of a habitation while

committing aggravated assault. The State’s thilurc to meet article I I S’s requirement to introduce
                                                                         .




evidence showing the guilt of the del mdant is non-constitutional trial error. See Mene/ee v State,

287 S.W.3d 9. 14 (Tex. Crim. App. 2009). Any non-constitutional error that does not affect

appellant’s substantial rights must be disregarded. See TEX. R. At’p. P. 44.2(b). When the record is

devoid of evidence substantiating the defendant’s guilt. the error affects appellant’s substantial right

to the protection of article I I 5 that “in no event shall a person charged he convicted upon his plea
                             .




without sufficient evidence to support the same.” See CRIM PRoc. art. 1 15; Buggeti v. State, 342
                                                                              .




S.W.3d 172, 176 (Tex. App.——Texarkana 2011, pet. ref d). We conclude the trial court’s error of

convicting appellant on his plea ofnolo contendere “without sufficient evidence to support the same”

is reversible error. We sustain appellant’s issue on appeal.

       We reverse the trial court’s judgment and remand the cause to the trial court for further

proceedings.




                                                       LANA MS ERS
                                                       JUSTICE
Do Not Publish
TE<. R. App. P. 47
12020 1F.U05




                                                 -4-
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                        ifi! Jiitrirt nf Iixu tt Ja11ai
                                       JUDGMENT
JESUS 1
      LOPF7Ap
      i eIhiiit                                     Appeal from the 292nd Judicial District Court
                                                    of Dallas County, Texas. (TrCt.No. F 10-
No. 05-12-00201-CR                                  63646-V),
                                                    Opinion delivered by .Justice Myers. Justices
THE STATE OFTEXAS, Appellee                         Lang—Miers and Lewis participating.


        Based on the Court’s opinion of this date, the judgment oftlie trial court is REVERSED and
the cause REMANDED for ftirther proceedings.



Judgment entered January 31, 2013.




                                                    LANA MYERS
                                                    JUSTICE
