                               NUMBER 13-18-00644-CR

                                  COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI – EDINBURG


BRIAN WILLIAM STEVENS,                                                                   Appellant,

                                                   v.

THE STATE OF TEXAS,                                                                       Appellee.


                       On appeal from the 214th District Court
                             of Nueces County, Texas.


                               MEMORANDUM OPINION

                  Before Justices Hinojosa, Perkes, and Tijerina
                    Memorandum Opinion by Justice Perkes

        Appellant Brian William Stevens was convicted of aggravated assault, a first-

degree felony, and violating a bond condition in a family violence case, a third-degree

felony. 1 See TEX. PENAL CODE ANN. §§ 22.02(b)(1), 25.07. The jury sentenced Stevens to


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         Stevens pleaded not guilty to the aggravated assault charge and guilty to the charge of violating
a bond condition in a family violence case.
concurrent prison terms of life and ten years, respectively. See id. §§ 12.32(a), 12.34(a).

By two issues, Stevens contends: (1) the evidence does not support his conviction for

aggravated assault because the State failed to prove beyond a reasonable doubt that he

caused the complainant serious bodily injury; and (2) each sentence was disproportionate

to the seriousness of the offense in violation of the United States Constitution. See U.S.

CONST. amends. VIII, XIV. We affirm.

                                   I.     BACKGROUND

       It is undisputed that, on October 12, 2017, Stevens walked into a bar, grabbed his

ex-girlfriend by the hair, pulled her head back, and began stabbing her face with a large

kitchen knife. In addition to lacerations to her tongue, lip, and chin, the complainant

suffered defensive wounds to her left arm and thumb. The only contested fact issue at

trial was the seriousness of these injuries.

       One witness described the complainant’s wounds as “terrible,” saying the

complainant’s thumb was “laid open” and her chin was “sliced open” with “this huge gash

of blood just coming out.” The complainant described the injury to her thumb as “a large

gash with some skin hanging.” According to another witness, “[t]here was blood all over

the floor,” and the jury was shown photos of the complainant’s blood on various surfaces

at the scene. The jury was also shown the complainant’s blood-soaked clothes from the

night of the incident.

       At the emergency room, the complainant received stitches to her chin, thumb, and

tongue, which also required “glue.” The jury was shown pictures of the complainant’s

sutured wounds. The laceration on her chin runs in a jagged line at roughly a forty-five-

degree angle and is proportional in size to the width of the complainant’s mouth. Several



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people testified about the visible scar on the complainant’s face, and the complainant

testified that doctors advised her that she would need plastic surgery to reduce scarring.

The wound on her left thumb is J-shaped and measures approximately one inch across.

Although the complainant could not recall the exact number of stitches required for each

wound, Stevens’s counsel represented that her chin required “nine” stiches and her

thumb required “six or seven,” which appears consistent with the pictures admitted at trial.

       One witness testified that the complainant had difficulty speaking for three to four

months after the incident. The complainant testified that she has lost her sense of taste

on the injured portion of her tongue and sometimes speaks with a lisp. Her lip tingles and

hurts when she touches it. Her injured thumb has limited range of motion and the “bone

sort of sticks out and it causes pain.” Although not diagnosed by a doctor, the complainant

believes she suffered nerve damage in all three areas.

       The jury found Stevens guilty of aggravated assault with serious bodily injury, and

this appeal ensued.

                                II.    LEGAL SUFFICIENCY

       By his first issue, Stevens contends that the evidence was legally insufficient to

support his conviction because the State failed to prove beyond a reasonable doubt that

the complainant suffered a serious bodily injury.

A.     Standard of Review

       When reviewing claims of legal insufficiency, the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of

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

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Whatley v. State, 445 S.W.3d 159, 166



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(Tex. Crim. App. 2014); Martinez v. State, 527 S.W.3d 310, 320 (Tex. App.—Corpus

Christi–Edinburg 2017, pet. ref’d). The fact finder is the exclusive judge of the facts, the

credibility of the witnesses, and the weight to be given to the testimony and is presumed

to have resolved any conflicts in the evidence in favor of the verdict. See Bartlett v. State,

270 S.W.3d 147, 150 (Tex. Crim. App. 2008); see also Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007) (giving deference to the fact-finder “to fairly resolve conflicts in

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts.”).

       “Circumstantial evidence is as probative as direct evidence in establishing guilt,

and circumstantial evidence alone can be sufficient to establish guilt.” Winfrey v. State,

393 S.W.3d 763, 771 (Tex. Crim App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007)). Juries are permitted “to draw reasonable inferences as long as

each inference is supported by the evidence presented at trial. However, juries are not

permitted to come to conclusions based on mere speculation or factually unsupported

inferences or presumptions.” Hooper, 214 S.W.3d at 15.

       Sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Braughton v. State, 569 S.W.3d 592, 608 (Tex.

Crim. App. 2018) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).

“Such a charge would be one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily

restrict the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried.” Malik, 953 S.W.2d at 240. In this case, a hypothetically

correct charge would instruct the jury to find Stevens guilty of aggravated assault if he



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intentionally, knowingly, or recklessly used a deadly weapon to cause serious bodily injury

to the complainant by stabbing her with a knife, and Stevens and the complainant were

previously in a dating relationship. See TEX. PENAL CODE ANN. § 22.02(b)(1); TEX. FAM.

CODE ANN. § 71.0021(b).

B.     Applicable Law

       “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.” TEX. PENAL CODE ANN. § 1.07(a)(46). No

wound constitutes “serious bodily injury” per se. Williams v. State, 696 S.W.2d 896, 898

(Tex. Crim. App. 1985) (explaining that even a gunshot wound, standing alone, is not

sufficient to prove “serious bodily injury”); see also Ramirez v. State, No. 13-05-00785-

CR, 2009 WL 1567340, at *3 (Tex. App.—Corpus Christi–Edinburg Jan. 22, 2009, pet.

ref’d) (mem. op., not designated for publication) (citing Hernandez v. State, 946 S.W.2d

108, 111 (Tex. App.—El Paso 1997, no pet.)). “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.’” Sizemore

v. State, 387 S.W.3d 824, 828 (Tex. App.—Amarillo 2021, pet ref’d) (citing Moore v. State,

739 S.W.2d 347, 352 (Tex. Crim. App. 1987)); see also Ramirez, 2009 WL 1567340, at

*3 (citations omitted).

       A physician’s testimony is not necessary to establish serious bodily injury when

the injury and its effects are obvious. Sizemore, 387 S.W.3d at 828 (citing Carter v. State,

678 S.W.2d 155, 157 (Tex. App.—Beaumont 1984, no pet.)); see also Ramirez, 2009 WL



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1567340, at *3. “The person who sustained the at-issue injury is qualified to express an

opinion about the seriousness of that injury.” Sizemore, 387 S.W.3d at 828 (citing Hart v.

State, 581 S.W.2d 675, 677 (Tex. Crim. App. [Panel Op.] 1979)); see also Ramirez, 2009

WL 1567340, at *3.

C.     Analysis

       Stevens conceded at trial that he used a deadly weapon to cause bodily injury to

his ex-girlfriend, a second-degree felony. See TEX. PENAL CODE ANN. § 22.02(a)(2). His

chief contention, which he now echoes on appeal, was that the State overcharged him by

improperly alleging that the complainant suffered serious bodily injury, an enhancing

element that raised the level of the offense in this case to a first-degree felony. See id.

§ 22.02(b)(1). The State maintains that the evidence was sufficient to allow the jury to

conclude beyond a reasonable doubt that the complainant suffered (1) serious permanent

disfigurement to her face and (2) protracted impairment in the functions of her tongue and

(3) thumb, any of which met the standard of serious bodily injury. See id. § 1.07(a)(46).

We agree with the State.

       1.     Permanent Disfigurement

       As Stevens correctly notes, the fact that an injury causes scarring, without more,

is insufficient to establish serious permanent disfigurement. Sizemore, 387 S.W.3d at

828; see, e.g., 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’”); McCoy v. State, 932 S.W.2d 720, 724 (Tex. App.—Fort Worth 1996, pet.

ref’d) (concluding evidence of slight scar on lip, though permanent, was not sufficient to

show serious permanent disfigurement). Rather, to conclude that the evidence of serious



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bodily injury is sufficient, the record must support a finding of “some significant cosmetic

deformity.” Sizemore, 387 S.W.3d at 828; see also Reyes v. State, No. 03-15-00233-CR,

2017 WL 1130373, at *5 (Tex. App.—Austin Mar. 23, 2017, pet. struck) (mem. op., not

designated for publication). Importantly, the disfiguring or impairing quality of the injury is

assessed at the time “it was inflicted, not after the effects have been ameliorated or

exacerbated by other actions such as medical treatment.” Stuhler v. State, 218 S.W.3d

706, 715 (Tex. Crim. App. 2007) (quoting Fancher v. State, 659 S.W.2d 836, 838 (Tex.

Crim. App.1983)); Blea v. State, 483 S.W.3d 29, 34–35 (Tex. Crim. App. 2016) (citing

Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App. 1980)).

       In this case, despite the ameliorating effect of stitches, the complainant was

referred for scar revision plastic surgery for the laceration on her chin. A witness described

the wound as “sliced open,” a “huge gash” that required numerous stiches. Moreover, the

jury was shown photos of the sutured wound, which spans the complainant’s entire chin.

We agree with our sister court that “the location of the scarring is a relevant factor. While

a dime-size scar on the leg or torso may not be disfiguring, a jury could reasonably

determine that such a scar prominently visible on the face could be disfiguring and

constitute ‘significant cosmetic deformity.’” Reyes, 2017 WL 1130373, at *5. Given the

size and nature of the wound on the complaint’s face, we conclude that the jury could

have reasonably inferred that Stevens caused a “significant cosmetic deformity” to the

complainant at the time the injury was inflicted. See Stuhler, 218 S.W.3d at 715;

Sizemore, 387 S.W.3d at 828.

       2.     Protracted Impairment

       We also conclude that the evidence was sufficient to show the complainant



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suffered protracted impairment to the function of her tongue and thumb. One witness

testified that the complainant had trouble speaking for three to four months after the

incident. Although the trial occurred approximately a year after the incident, the

complainant testified that she still had no sense of taste on the injured portion of her

tongue and sometimes spoke with a lisp. Further, the complainant testified that she has

lost range of motion in her injured thumb and that it remains painful. This evidence, viewed

in the light most favorable to the prosecution, was sufficient to support a finding that the

complainant suffered a protracted impairment to the function of her tongue and thumb.

Compare Williams v. State, 575 S.W.2d 30, 33 (Tex. Crim. App. 1979) (“We hold that the

injury which caused Puckett to lose lifting power in his arm for three months constitutes a

‘protracted impairment . . . of the function of any bodily member,’ so that the wound would

be classified as serious bodily injury.”); and Allen v. State, 736 S.W.3d 225, 227 (Tex.

App.—Corpus Christi–Edinburg 1987, pet ref’d) (holding that evidence that a broken

finger caused disfunction more than three months after the injury constituted a protracted

impairment); with Villarreal v. State, 716 S.W.2d 651, 652 (Tex. App.—Corpus Christi–

Edinburg 1986, no pet.) (holding that “[e]vidence of the victim’s inability to raise his arms

for two weeks caused by the pain of two fractured ribs, and the fractured ribs themselves,

are insufficient to show that appellant caused ‘serious bodily injury’”). We overrule

Stevens’s first issue.

                          III.   DISPROPORTIONATE SENTENCES

       By his second issue, Stevens contends that his sentences were excessive and in

violation of the Eighth and Fourteenth Amendments. See U.S. CONST. amends. VIII, XIV.




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       An allegation of excessive or disproportionate punishment is a legal claim

“embodied in the Constitution’s ban on cruel and unusual punishment” and based on a

“narrow principle that does not require strict proportionality between the crime and the

sentence.” State v. Simpson, 488 S.W.3d 318, 322–24 (Tex. Crim. App. 2016) (citing

Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)); see U.S.

CONST. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed,

nor cruel and unusual punishments inflicted.”); see also Meadoux v. State, 325 S.W.3d

189, 193 (Tex. Crim. App. 2010) (acknowledging that the Eighth Amendment is applicable

to the states by virtue of the Fourteenth Amendment (citing Robinson v. California, 370

U.S. 660, 666–67 (1962))). A successful challenge to proportionality is exceedingly rare

and requires a finding of “gross disproportionality.” Simpson, 488 S.W.3d at 322–23

(citing Lockyer v. Andrade, 538 U.S. 63, 73 (2003)); Trevino v. State, 174 S.W.3d 925,

928 (Tex. App.—Corpus Christi–Edinburg 2005, pet. ref’d) (providing that a sentence

assessed within the legislatively determined range is unlikely be disturbed on appeal).

       However, in order to preserve for appellate review a complaint that a sentence is

grossly disproportionate or constitutes cruel and unusual punishment, a defendant must

present to the trial court a timely request, objection, or motion stating the specific grounds

for the ruling desired. See TEX. R. APP. P. 33.1(a); Smith v. State, 721 S.W.2d 844, 855

(Tex. Crim. App. 1986); Trevino, 174 S.W.3d at 928 (holding that to preserve a

disproportionate-sentencing complaint, the defendant must make a timely, specific

objection in trial court or raise the issue in a motion for new trial); Navarro v. State, 588

S.W.3d 689, 690 (Tex. App.—Texarkana 2019, no pet.) (same); Toledo v. State, 519




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S.W.3d 273, 284 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (same); Pantoja v.

State, 496 S.W.3d 186, 193 (Tex. App.—Fort Worth 2016, pet. ref’d) (same).

       At no time prior to this appeal did Stevens argue that the sentences imposed were

disproportionate to the offenses charged or in violation of his constitutional rights. See

U.S. CONST. amends. VIII, XIV. Accordingly, we hold that Stevens failed to preserve his

complaint for review. See Smith, 721 S.W.2d at 855; Trevino, 174 S.W.3d at 927–28

(“Because the sentence imposed is within the punishment range and is not illegal, we

conclude that the rights [appellant] asserts for the first time on appeal are not so

fundamental as to have relieved him of the necessity of a timely, specific trial objection.”).

We overrule Stevens’s second issue.

                                    IV.     CONCLUSION

       We affirm the trial court’s judgment.

                                                                 GREGORY T. PERKES
                                                                 Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
20th day of August, 2020.




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