                                                                                        PD-0245-15
                                                                     COURT OF CRIMINAL APPEALS
                                                                                      AUSTIN, TEXAS
                                                                     Transmitted 8/17/2015 8:33:15 AM
August 17, 2015
                                                                       Accepted 8/17/2015 9:43:31 AM
                                                                                       ABEL ACOSTA
                        IN THE COURT OF CRIMINAL APPEALS OF      TEXAS                         CLERK
                                      AUSTIN, TEXAS

      JUAN BLEA,                               §
                  Appellant                    §
           v.                                  §             No. PD-0245-15
      THE STATE OF TEXAS,                      §
                  Appellee                     §


                              APPELLANT’S BRIEF ON THE MERITS



                       FROM THE DECISION OF THE COURT OF APPEALS FOR
                         THE SECOND DISTRICT OF TEXAS, FORT WORTH
                               IN CAUSE NUMBER 02-13-00221-CR,
                              JUAN BLEA v. THE STATE OF TEXAS, AND
          FROM THE 362ND JUDICIAL DISTRICT COURT, DENTON COUNTY, TEXAS,
                     THE HONORABLE BRUCE MCFARLING, JUDGE, PRESIDING
                AND, AS SITTING JUDGE, THE HONORABLE SHERRY SHIPMAN FROM
                  THE 16TH JUDICIAL DISTRICT COURT, DENTON COUNTY, TEXAS IN
                                 CAUSE NUMBER F-2011-0993-D

                                                   JOSEPH C. BOSWELL
                                                   Texas State Bar No. 00794971
                                                   BOSWELL LEGAL GROUP, P.C.
                                                   1504 EAST MCKINNEY STREET,
                                                   SUITE 200
                                                   DENTON, TEXAS 76209
                                                   (940) 382-4711
                                                   (940) 349-9922 (FAX)
                                                   joe@boswelldefense.com
                   IDENTITY OF PARTIES AND COUNSEL


      The following is a complete list of the parties and persons interested in
the outcome of this cause:

(A)   Juan Blea, Appellant
      11700 Lebanon Drive, Apt. 1111
      Frisco, Texas 75035

(B)   Denver McCarty and Leah Harbour, counsel for Appellant at trial
      1512 East McKinney Street, Suite 200
      Denton, Texas 76209

(C)   Joseph C. Boswell, counsel for Appellant on appeal
      1504 East McKinney Street, Suite 200
      Denton, Texas 76209

(D)   The State of Texas, by and through Paul Johnson, Denton County
      Criminal District Attorney; and Catherine Luft, Andrea Simmons, Dustin
      Gossage, and Michael Graves, Assistant Criminal District Attorneys
      1450 East McKinney
      Denton, Texas 76209

(E)   Lisa C. McMinn, State Prosecuting Attorney

      209 West 14th Street, Suite 203
      P.O. Box 13046
      Austin, Texas 78711-3046




                                        ii
(F)   Honorable Bruce McFarling, Presiding Judge for the 362nd District Court

      Denton County Courts Building
      1450 East McKinney Street, 3rd Floor
      Denton, Texas 76209-4524

(G)   Honorable Sherry Shipman, as Sitting Judge for the 362nd District Court

      Denton County Courts Building
      1450 East McKinney Street, 3rd Floor
      Denton, Texas 76209-4524




                                      3
                                                    TABLE OF CONTENTS

                                                                                                                                         PAGE

IDENTITY OF PARTIES AND COUNSEL ..........................................................................ii-iii
INDEX OF AUTHORITIES ..................................................................................................... v-vii
STATEMENT REGARDING ORAL ARGUMENT ................................................................. 2
STATEMENT OF THE CASE....................................................................................................... 2
APPELLANT’S RESPONSE TO THE STATE’S
ISSUE PRESENTED FOR REVIEW........................................................................................... 3
STATEMENT OF FACTS .............................................................................................................. 3
SUMMARY OF THE ARGUMENT ............................................................................................. 8
ARGUMENT ..................................................................................................................................... 8
     Legal Sufficiency Standard for Review .......................................................................... 8
     Legal Authority Regarding Serious Bodily Injury ..................................................... 9
     Second Court of Appeals’ Review and Application of Legal
     Authority to the Facts .........................................................................................................13
     Response to State’s Bare Assertions.............................................................................16
     Conclusion ...............................................................................................................................17
PRAYER ...........................................................................................................................................20
CERTIFICATE OF COMPLIANCE ...........................................................................................20
CERTIFICATE OF SERVICE......................................................................................................21




                                                                        4
                                               INDEX OF AUTHORITIES


Statutes, Codes, and Rules                                                                                                          Page

Tex. Penal Code § 1.07(a)(34) .............................................................................................. 10

Tex. Penal Code § 1.07(a)(8)................................................................................................. 10

Tex. R. App. P. 69.3 ....................................................................................................................... 8

Cases

Black v. State
  637 S.W.2d 923 (Tex. Crim. App. 1982) ...................................................................... 11

Blea v. State
  2015 WL 510954 (Tex. App.—Fort Worth 2015) .......................................... passim

Brooks v. State
  323 S.W.3d 898 (Tex. Crim. App. 2010) ......................................................................... 8

Carter v. State
  678 S.W.2d 155 (Tex. App.—Beaumont 1984, no pet.) ........................................ 14

Clayton v. State
  235 S.W.3d 772 (Tex. Crim. App. 2007) ......................................................................... 9

Coshatt v. State
  744 S.W.2d 633 (Tex. App.—Dallas 1987, pet. ref’d) ............................................ 15

Eustis v. State
  191 S.W.3d 879
  (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) .................................................. 10

Hart v. State
  581 S.W.2d 675 (Tex. Crim. App. 1979) ...................................................................... 15




                                                                      5
Hernandez v. State
  946 S.W.2d 10 (Tex. App.—El Paso 1997, no pet.) .......................................... 10, 11

Isassi v. State
   330 S.W.3d 633 (Tex. Crim. App. 2010) ......................................................................... 9

Jackson v. Virginia
  443 U.S. 307 (1979) ................................................................................................................ 9

Lane v. State
  111 S.W.3d 203 (Tex. App.—Eastland 2004) .................................................... 12, 13

Moore v. State
 739 S.W.2d 347 (Tex. Crim. App. 1987) ................................................ 10, 11, 12, 15

Patterson v. State
  No. 11-06-00209-CR, 2008 WL 564880
  (Tex. App.—Eastland 2008, pet. ref’d)
  (not designated for publication) ...................................................................... 16-17, 17

Pedro v. State
  No. 01-88-00197-CR, 1988 WL 139708
  (Tex. App.—Houston [1st Dist.] Dec. 22, 1988, no pet.)
  (not designated for publication) .................................................................................... 17

Sizemore v. State
   387 S.W.3d 824 (Tex. App.—Amarillo 2013, pet. ref’d) ................. 10, 11, 14, 15

Tibbs v. Florida
  457 U.S. 31 (1982) ................................................................................................................... 9

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

Webb v. State
 801 S.W.2d 529 (Tex. Crim. App. 1990) (en banc) (per curiam)...................... 11




                                                                    6
Williams v. State
 235 S.W.3d 742 (Tex. Crim. App. 2007) ..................................................................9, 19

Williams v. State
 696 S.W.2d 896 (Tex. Crim. App. 1985) ...................................................................... 10



Other Authorities

Burton, LEGAL THESAURUS 418 (1980) ......................................................................... 15




                                                      vii
                                  IN THE
                    COURT OF CRIMINAL APPEALS OF TEXAS
                               AUSTIN, TEXAS


JUAN BLEA,                             §
        Appellant                      §
   v.                                  §              No. PD-0245-15
THE STATE OF TEXAS,                    §
        Appellee                       §




                     APPELLANT’S BRIEF ON THE MERITS



TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

        COMES NOW, JUAN BLEA, hereinafter referred to as Appellant or Juan,

by and through his attorney of record, JOSEPH C. BOSWELL, and respectfully

submits his brief on the merits urging that the judgment of the Second District

Court of Appeals be upheld.




                                      1
                STATEMENT REGARDING ORAL ARGUMENT

      The State did not request oral argument, and Appellant concurs that it

is not necessary to this review. Moreover, in its June 24, 2015, notice granting

the State’s Petition for Discretionary Review, this Court announced that oral

argument would not be permitted.

                         STATEMENT OF THE CASE

      Appellant was convicted of the first-degree felony of Aggravated Assault

of a Family Member. The jury assessed his punishment at five years

confinement. On appeal Appellant challenged the legal sufficiency of evidence

regarding both the element of serious bodily injury and the element of use of a

deadly weapon. Holding that the evidence was insufficient to show that

Appellant caused serious bodily injury, but sufficient to show that he used his

hand as a deadly weapon, the Second Court of Appeals reversed and

remanded with instructions to (1) modify the judgment to reflect a

conviction for the lesser-included second-degree felony aggravated assault

and (2) conduct a new trial on punishment for the second-degree felony. The

State filed its Petition for Discretionary Review, which was granted by this

Court. Appellant filed his Petition for Discretionary Review and Cross Petition

for Discretionary Review seeking review of the portion of the Opinion

overruling Appellant’s challenge to the legal sufficiency of the deadly weapon

                                       2
element of this offense. Appellant’s Petition and Cross Petition was denied by

this Court.

                        APPELLANT’S RESPONSE T O
                                    THE
                       STATE ’S ISSUE PRESENTED FOR
                                  REVIEW

      Appellant urges this Court to dismiss the State’s Petition for
      Review as improvidently granted since there is no support for the
      speculative conclusions levied in that Petition, or the State’s
      subsequent Brief on the Merits. Alternatively, Appellant asserts
      that the Second Court of Appeals properly applied the correct
      standard of review in performing a legal sufficiency analysis of
      whether the State proved that the complainant suffered serious
      bodily injury and in reaching its conclusion that she did not.

                           STATEMENT OF FACTS

      Appellant agrees and adopts the Second Court of Appeals’ findings of

fact relating to the issue presented to this Court; however, Appellant

briefly reiterates these facts relating to the injuries suffered by the

complaining witness.

      The complaining witness, Justina, was living with Juan’s parents, Cruz

and David Blea, at the time of this offense, and they both observed her injuries

shortly after the assault (2 R.R. at 25-26, 73, 81). Cruz described bruising on

Justina’s face and testified that Justina said she was hurting after the assault

(2 R.R. at 76-77). David also confirmed that there was bruising on Justina’s eye

and face but said she appeared to be breathing fine whenever he was around

                                       3
her (2 R.R. at 85).




                      4
      The police officer who responded to a later-placed 9-1-1 call testified

that the complaining witness had scrapes and lacerations on her face, a

bruised and cut left eye, and a red mark that indicated early bruising on her

arm (2 R.R at 117). He said she also complained of pain in her stomach and

difficulty breathing.

      Justina’s treating nurse at Parkland Hospital, Kristie Brown, conceded

that the only injuries she actually documented in her own notes were

“bruising” and “fractures” (2 R.R. at 63-65). Brown testified that no surgeries

or procedures were done to treat or repair any fractures (2 R.R. at 70). She

agreed that those injuries completely healed on their own (2 R.R. at 70). She

acknowledged that the only “treatment” Justina received for her rib injuries

was pain medication and deep-breathing exercises (2 R.R. at 69).

      Brown testified that she also “knew of” other injuries, including an

“injury to her lung” (2 R.R. at 63-64). However, Brown did not treat any

purported lung injury, conceding that any injury to the complaining witness’s

lungs had been treated prior to her arrival at Parkland (2 R.R. at 65). The

witness did explain the term “pneumothorax” and the kinds of problems a

person who suffered that type of injury might have (2 R.R. at 65). Ms. Brown

further conceded that Justina’s lungs were working normally and she was only

receiving oxygen (2 R.R. at 69).

                                      4
      Additionally, Brown testified that Justina had “an injury to her liver and

an injury to her chest” (2 R.R. at 52, 56, 61, 63, 68). She “observed” Justina

“every four to six hours, mashed on her abdomen, routinely checking her liver

and how she reacted each time we touched her” and “monitored and recorded

whether it got better or worse over the hospital stay” (2 R.R. at 62). While she

characterized injuries to the liver generally as being treated “seriously,”

Ms. Brown was not able to testify that Justina’s particular liver injuries were

serious (2 R.R. at 66-67). In fact, Brown explicitly agreed that Justina’s liver

enzymes were normal and that Justina did not suffer from any of the

conditions for which they had her under observation (2 R.R. at 68-69). She

conceded that at all times Justina’s liver was functioning properly and her

condition continually improved (2 R.R. at 69). She agreed that Justina was on

bed rest for 24 to 36 hours in the hospital because of the general fear that

exists with any patient that if that patient is up walking around, he or she can

start bleeding (2 R.R. at 68).

      Jennifer Fassett Hernandez, the complaining witness’s mother, testified

she observed Justina at the hospital; however, she could not recall Justina’s

having any trouble breathing and said Justina was not wearing an oxygen

mask (2 R.R. at 94-96). She did relay that she had to leave the room while

Justina received a chest tube. Ms. Hernandez also described bruises she

                                      5
observed on Justina’s eye and acted as the sponsoring witness for pictures of

those injuries (2 R.R. at 97, 98-108; State’s Exhibits 20-43, 46). The witness

further testified that she was aware that the doctors suggested Justina not lift

anything over 25 pounds but admitted that she did not know whether Justina

was actually capable of lifting anything over 25 pounds. Importantly, she did

not actually attend any of the follow-up doctor appointments with Justina

where this information was allegedly relayed (2 R.R. at 110-13). Furthermore,

she disclosed that Justina could, in fact, walk and was even standing at the

hospital and had merely suffered some pain because of the assault (2 R.R.

at 109-10).

      In describing her own injuries, Justina testified that she suffered a “cut”

under her eye, a collapsed lung, and a lacerated liver (2 R.R. at 39, 42, 43). She

testified she was treated at Baylor Medical Center and transported to

Parkland Hospital, where she remained three to four days for observation

(2 R.R. at 42-43). She returned to work after approximately one month and

took prescribed pain medication (2 R.R. at 44-45). She explained that she did

not return to her former position as a waitress, but took a new job as hostess

“just so I didn't have to deal with a lot of people. I didn't want to go back to

doing waitressing just yet” and because “everybody at Champps kind of knew



                                       6
what happened, kind of the regulars. That was just kind of my way of avoiding

everybody.” (2 R.R. at 45).

      Justina specifically testified that she had no permanent disfigurement or

protracted loss of a bodily member or organ as a result of the injuries (2 R.R.

at 47, 48, 51-53). She said she was able to be out and about and do things after

her release from the hospital and that she recovered fully (2 R.R. at 48). She

denied having lost the use of any part of her body for any extended time

(2 R.R. at 51-52).

      The State also introduced medical records from Baylor Hospital and

Parkland Hospital (State’s Exhibits 17, 18; 2 R.R. at 54-56). While those were

initially admitted by the trial court, upon further consideration of Appellant’s

properly levied trial objections, those records were withdrawn from evidence

and were never published to the jury (3 R.R. at 26-27). The records did not,

and cannot, constitute any evidentiary support for Appellant’s conviction.1

Both parties agreed that this evidence should not have been included in the

record of this case, and the Court of Appeals recited in its majority opinion

that it concurred and did not consider those erroneously included exhibits in



1
       Appellant and the State filed a motion with the Second Court of Appeals
attesting that the exhibits were not properly a part of the record despite their
inclusion by the court reporter as exhibits on appeal.
                                      7
reaching its decision. Appellant likewise urges this Court that this withdrawn

exhibit cannot be considered in its review herein.

                       SUMMARY OF THE ARGUMENT

      First, Appellant asserts that this Court should dismiss the State’s

Petition for Discretionary Review as improvidently granted. See Tex. R.

App. P. 69.3. The State failed to show any support for its summarily and

speculatively drawn conclusions that the Fort Worth Court applied an

incorrect standard of review and/or based its determination on “ameliorated”

injuries rather than untreated ones. The Second Court of Appeals’ majority

opinion clearly reviewed the evidence relating to “untreated” injuries suffered

by the complaining witness. Alternatively, the Second Court of Appeals

properly applied the correct standard of review in determining the sufficiency

of the evidence and concluding that it was not legally sufficient to support a

conviction for aggravated assault as alleged in the Indictment, as the injuries

sustained by the complaining witness were not proved to constitute serious

bodily injury.

                                 ARGUMENT

Legal Sufficiency Standard For Review

      The Texas Court of Criminal Appeals held in Brooks v. State,

323 S.W.3d 898, 895 (Tex. Crim. App. 2010), that there is no meaningful

                                      8
distinction between the factual and legal sufficiency standards; thus, the

appellate courts review the evidence under only the legal sufficiency standard.

When reviewing sufficiency of the evidence, the courts view all of the evidence

in the light most favorable to the verdict to determine whether a rational jury

could find the essential elements of the offense beyond a reasonable doubt.

Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007); Jackson v. Virginia, 443 U.S. 307,

319 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The

court’s duty as the reviewing court is to ensure that the evidence presented

actually supports a conclusion that the defendant committed the crime.

Williams, 235 S.W.3d at 750. If an appellate court finds the evidence

insufficient under this standard, it must reverse the judgment and enter an

order of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41 (1982).

Legal Authority Regarding Serious Bodily Injury

      The Second Court of Appeals properly found that the evidence was

insufficient to support that Juan caused “serious bodily injury” to his wife.

That court concluded that nothing in the record suggested that the injury to

the complaining witness ever created a substantial risk of death, that she

suffered any protracted loss of any bodily member or organ, or that she



                                        9
suffered any serious permanent disfigurement. Blea v. State, 2015 WL 510954,

at *1 (Tex. App.—Fort Worth 2015).

      Since there are no wounds that constitute serious bodily injury per se,2

this Court has directed the appellate courts to evaluate each case on its facts

to determine if the evidence is sufficient to allow a jury to conclude that the

injury falls within the definition of serious bodily injury. See Moore v. State,

739 S.W.2d 347, 352 (Tex. Crim. App. 1987); see also Sizemore v. State,

387 S.W.3d 824, 828 (Tex. App.—Amarillo 2013, pet. ref’d); Eustis v. State,

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

Hernandez v. State, 946 S.W.2d 10, 111 (Tex. App.—El Paso 1997, no pet.).

      This Court has also explained that there must be a meaningful

distinction between bodily injury and serious bodily injury. Moore, 739 S.W.2d

at 349, 352. “Bodily injury” is defined as “physical pain, illness or any

impairment of physical condition.” Tex. Penal Code § 1.07(a)(8). “Serious

bodily injury” is defined in the Texas Penal Code 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.” Tex. Penal Code § 1.07(a)(34). In Moore this Court further

2
       Even a knife or gunshot wound, although caused by a deadly weapon, is not
per se serious bodily injury. Williams v. State, 696 S.W.2d 896, 898 (Tex. Crim.
App. 1985).
                                      10
recited that “if an injury does not endanger life, it cannot be considered a

serious bodily injury,” as contemplated by the Penal Code. Moore at 353.

Furthermore, bodily injury cannot be elevated to serious bodily injury simply

by “postulating potential complications which are not in evidence.”

Hernandez, 946 S.W.2d at 112 (citing Moore, 739 S.W.2d at 352). The State is

required to present relevant and probative evidence from which the trier of

fact can infer beyond a reasonable doubt that the injury itself resulted in

serious bodily injury or created an appreciable risk of death. See Moore,

739 S.W.2d at 352. For example, the necessity of surgery alone has been found

to be insufficient to establish serious bodily injury. See Webb v. State,

801 S.W.2d 529, 533 (Tex. Crim. App. 1990) (en banc) (per curiam) (wherein

victim had surgery to repair a broken bone in the victim’s hairline, but

the Court found serious bodily injury was not proved); Black v. State,

637 S.W.2d 923 (Tex. Crim. App. 1982) (wherein the Court held that surgery

on a gunshot wound that resulted in a three-day hospital stay to recover and

several months to heal was insufficient to prove serious bodily injury); see

also Sizemore, 387 S.W.3d at 829.

      In addition, the presence of a “period of recuperation” does not elevate

bodily injury to serious bodily injury but, at best, shows only some

impairment of physical condition. Moore, 739 S.W.2d at 356. In fact, this Court

                                      11
in Moore found that though the appellant stabbed the complainant in the back

and cut the complainant’s nose, because there was no serious risk of death

present from the stab wound, nor any evidence of protracted loss or

impairment of the function of the nose, no serious bodily injury resulted.

Id., 739 S.W.2d at 351-55.

      In another instance, following this Court’s directives, the Corpus Christi

Court of Appeals found that a victim sustaining two fractured ribs and could

not raise his arms for two weeks due to the pain from the fractures, did not

have injuries constituting serious bodily injury either. Villarreal v. State,

716 S.W.2d 651, 652 (Tex. App.—Corpus Christi 1986, no pet.).

      Similarly, in Lane v. State, the Eastland Court concluded that the

evidence at issue was also legally insufficient to prove serious bodily injury.

111 S.W.3d 203, 209 (Tex. App.—Eastland 2004). In Lane the complaining

witness originally reported that she fell down the stairs and hurt herself but

later admitted that her husband had struck her several times in the head and

forehead with a closed fist, as well as kicked her in the stomach and the back.

Id. at 204, 206. The testimony at that trial showed that the complaining

witness vomited, was nauseated, and suffered pain in the right chest and rib

region, as well as the occipital region as a result of the assault; however, she

did not have any obvious deformities and was rationally able to communicate.

                                      12
Id. at 205. The nurse who treated the Lane complainant at the hospital

testified that the complainant had contusions on the right side of her head and

old bruises on her breasts, was tender in the gastric region, and complained of

back pain in the lumbar region. Id. at 206. The nurse also agreed that the

complainant did not have any broken bones, her vital signs were stable, and

she did not have any permanent disfigurement or life-threatening injuries. Id.

Second Court Of Appeals’ Review And Application Of Legal Authority To
The Facts

      In its summary of the facts in this case, the Second Court of Appeals

specifically recited all the evidence offered as proof of the actual injuries

suffered by the complaining witness. Blea, 2015 WL 510954, at **1-2, 3-5.

Thereafter, the appellate court specifically reviewed and analyzed all of that

evidence to determine what level of injury suffered by the complainant was

actually proved. The Fort Worth Court explicitly recited that it considered “all

the evidence” in holding under a properly applied standard of review 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 at *5

      From its review under the proper standard, the Second Court of Appeals

determined that “The only evidence that the complainant could have suffered


                                         13
serious bodily injury arose from the State’s inquiry [of the treating nurse]

whether ‘any injury to the liver [is] treated seriously or minimally’ by Brown’s

‘profession.’” Blea at **4-5. Brown’s response to that inquiry was that any

injuries to the liver are treated seriously because “[i]njuries to the liver can

cause a patient to bleed to death very quickly” and “[k]nowing 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.” The Fort Worth Court stressed

that this was no evidence that the complainant actually suffered from such a

condition. In doing so, the Court emphasized:

      “But Brown did not testify that the complainant suffered from
      such a condition. No one did. Indeed, Brown monitored the
      complainant to determine whether a substantial risk of death or
      any risk of death developed from any injury, and it did not.”

Blea at *5.

      It is also correct that if the injury and its effects are obvious, serious

bodily injury can be established without a physician’s testimony. See Sizemore,

387 S.W.3d at 828; Carter v. State, 678 S.W.2d 155, 157 (Tex. App.—Beaumont

1984, no pet.). While it is not necessary for serious bodily injury to be

established through an expert, it has been deemed “the better way” to prove

up the issue. Carter, 678 S.W.2d at 157. The majority opinion in this case


                                      14
recognized that there was also no lay opinion supporting serious bodily injury

in addition to no basis for any expert opinion supporting that conclusion.

      Serious bodily injury can also be proved simply by the person who

sustained the injury at issue expressing an opinion about the seriousness of

that injury. Hart v. State, 581 S.W.2d 675, 677 (Tex. Crim. App. 1979);

Sizemore, 387 S.W.3d at 828; Coshatt v. State, 744 S.W.2d 633, 636 (Tex.

App.—Dallas 1987, pet. ref’d). However, in the instant case the Second Court

of Appeals recognized that the complaining witness in this case actually

testified in opposition to that proposition, stating that she did not sustain any

serious permanent disfigurement or protracted loss of the use of any bodily

member. Blea at *3.

      In order to prove serious bodily injury by “protracted loss,” the State

must show that injuries are “either continuing, dragged out, drawn out,

elongated, extended, lengthened, lengthy, lingering, long, long-continued,

long-drawn, never-ending, ongoing, prolix, prolonged, or unending.” Moore,

739 S.W.2d at 352 (citing Burton, LEGAL THESAURUS 418 (1980)). In the

instant case the Second Court of Appeals also recited that it carefully

examined    the   record    for   evidence   supporting    serious   permanent

disfigurement or protracted loss or impairment of any bodily member or

organ and concluded that there was none. Blea at *5.

                                      15
      In its evaluation of protracted loss in this case, the Fort Worth Court

recited the following as support:

            “She testified that she had suffered neither. The only
      suggestion of such loss or impairment is Jennifer’s testimony that
      the doctors told the complainant not to lift more than twenty-five
      pounds. Jennifer did not say how long the limitation was to last
      but said that it was because of the complainant’s ribs. Jennifer also
      agreed that ‘we don’t know whether or not [the complainant] was
      physically capable [of lifting], but she followed their advice’.

            The complainant testified that she was fully recovered. She
      also testified that she was able to go out and about some as soon
      as she was released from the hospital.”

Blea at *5.

Response To State’s Bare Assertions

      The State alleges in its Brief that the Second Court failed to consider the

“extent of the injuries as inflicted” rather than the extent of the injuries “after

the effects” of those injuries “had been ameliorated by medical treatment”

(State’s Brief at 8). However, there is no support for the State’s conclusion.

Moreover, the State does not point to any specific place in the Second Court’s

majority opinion that supports its contentions. Moreover, a review of the

Court of Appeals’ analysis in this case indicates that the contrary is true.

      As authority for its contentions, the State references a case also cited

by Chief Justice Livingston in her dissenting opinion in this case, that of

Patterson v. State, No. 11-06-00209-CR, 2008 WL 564880, at *3 (Tex.

                                        16
App.—Eastland 2008, pet. ref’d) (not designated for publication). However,

the Patterson case is distinguishable from the evidence offered at trial in

support of the conviction here. In Patterson an emergency room physician

specifically testified that he treated the victim who had suffered a

pneumothorax, which, if left untreated could cause death. There was no such

corollary testimony in Appellant’s case.

      Justice Livingston also referred to Pedro v. State, No. 01-88-00197-CR,

1988 WL 139708, at *2 (Tex. App.—Houston [1st Dist.] Dec. 22, 1988, no pet.)

(not designated for publication) (“[T]he possibility that [a collapsed lung]

could cause death, combined with the testimony that the complainant’s lung

was punctured, does support a finding that [a knife] was capable of causing

‘serious bodily injury.’”), as authority. However, the sole point of error in

Pedro related to whether there was insufficient evidence to support the

finding that a deadly weapon was utilized in the commission of the offense. Id.

Thus the inquiry in Pedro, whether a deadly weapon was used, is not relevant

to the inquiry at hand in the instant case, whether actual serious bodily injury

was proved.

Conclusion

      Appellant’s situation is not one where an appellate court acted as a

thirteenth juror and rejected evidence that serious bodily injury occurred;

                                      17
rather, it is one where the State failed to offer evidence at trial sufficient to

prove that serious bodily injury occurred. The Second Court of Appeals

determined that Nurse Brown’s testimony could not legally support serious

bodily injury. While she may have testified “generally” that certain injuries

could be deemed “serious,” she was unable to testify that Justina’s specific

injuries were serious (2 R.R. at 66). Justina’s liver enzymes were normal, and

she did not suffer from any of the conditions they were observing her for, like

peritonitis (2 R.R. at 68-69). Brown confessed that at all times Justina’s liver

was functioning properly and her condition continually improved (2 R.R.

at 69). She further conceded that Justina’s lungs were working normally

(2 R.R. at 69). She agreed that the only “treatment” for Justina’s rib injuries

was pain medication and deep-breathing exercises (2 R.R. at 69). Brown

testified that no surgeries or procedures were done to treat or repair either

the rib fractures or maxillary fractures (2 R.R. at 70).

      The State argued at trial that a “lacerated liver” or “collapsed lung” “in

and of itself is a lengthened-in-time impairment,” essentially asserting these

injuries are “per se” serious bodily injury and/or “protracted” impairment

(3 R.R. at 10). However, there was no testimony or evidence offered to

support that assertion, and that assertion is not supported by legal authority.



                                        18
Moreover, as trial counsel for Appellant pointed out, there was no evidence

that Justina couldn't breathe or that her lungs weren't operating correctly.

      None of the testimonies from any lay witnesses supported the allegation

of serious bodily injury under any part of the definition either. While Justina’s

mother testified to observing Justina at the hospital, she also said she could

not recall Justina having any trouble breathing and did not recall Justina

wearing an oxygen mask (2 R.R. at 94-96). Likewise, no other lay witness

testimony was offered to support legally sufficient evidence of serious bodily

injury either.

      This Court is well aware of the standard when reviewing sufficiency of

the evidence. Part of that review includes ensuring that the evidence

presented actually supports a conclusion that the defendant committed the

crime. Williams, 235 S.W.3d at 750. Perhaps the medical records or testimony

from a treating physician might have supported the verdict; however, it is not

the job of the appellate courts to speculate and infer that evidence when it

does not plainly exist in the record. Reversing the Second Court of Appeals’

determination in this case would essentially relieve the State of its obligations

under the law and encourage other appellate courts to infer what the evidence

does not prove whenever the State fails to meet its burden of proof. The

Second Court of Appeals did not sit as a thirteenth juror; it merely held the

                                       19
State to its burden of proof. This Court should uphold the Court of Appeals’

decision and deny the State’s requested relief.

                                   PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays this Court will

either dismiss this appeal as improvidently granted or affirm the holding of

the Second Court of Appeals.

                                        Respectfully submitted,


                                        /s/ Joseph C. Boswell
                                        JOSEPH C. BOSWELL
                                        BOSWELL LEGAL GROUP, P.C.
                                        1504 EAST MCKINNEY STREET
                                        SUITE 200
                                        DENTON, TEXAS 76209
                                        (940) 382-4711
                                        (940) 349-9922 (FAX)

                                        ATTORNEY FOR APPELLANT




                        CERTIFICATE OF COMPLIANCE
      I hereby certify that the word count in the foregoing Brief is 4235,
having been calculated using Microsoft Word, the program used in the
preparation of this Brief.

                                            /s/ Joseph C. Boswell
                                            JOSEPH C. BOSWELL

                                       20
                          CERTIFICATE OF SERVICE
      I hereby certify that a true copy of the foregoing Petition has been
served on Andrea Simmons, Attorney for Appellee, 1450 East McKinney
Street, Denton, Texas 76209; and Lisa McMinn, State Prosecuting Attorney,
209 West 14th Street, Suite 203, P. O. Box 13046, Austin, Texas 78711-3046,
by electronic service on this, the 17th day of August 2015.


                                           /s/ Joseph C. Boswell
                                           JOSEPH C. BOSWE




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