                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-16-00003-CR



           JOHN TURNER GRAY, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 366th District Court
                 Collin County, Texas
           Trial Court No. 366-80583-2014




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                    MEMORANDUM OPINION
        John Turner Gray punched Elisha Popplewell on the left side of her face with such force

that “part of [her] face was completely shattered.” A jury convicted Gray of aggravated assault

with a deadly weapon causing serious bodily injury, and he was sentenced to sixteen years’

imprisonment and ordered to pay a $10,000.00 fine. On appeal,1 Gray challenges the legal

sufficiency of the evidence to support the finding that Popplewell suffered serious bodily injury as

defined in the Texas Penal Code.2 Because we find the evidence legally sufficient, we affirm the

trial court’s judgment.

I.      Standard of Review

        In evaluating legal sufficiency of the evidence, we must review all the evidence in the light

most favorable to the jury’s verdict to determine whether any rational jury could have found,

beyond a reasonable doubt, that Popplewell suffered serious bodily injury. See Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)); Hollaway v. State, 446 S.W.3d 847, 851 (Tex. App.—Texarkana 2014, no pet.); Estrada

v. State, 334 S.W.3d 57, 61 (Tex. App.—Dallas 2009, no pet.).

        “In our examination, we defer to the responsibility of the jury ‘to fairly resolve conflicts in

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

facts.’” Hollaway, 446 S.W.3d at 851 (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.


1
 Originally appealed to the Fifth Court of Appeals in Dallas, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We
follow the precedent of the Fifth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2
 In companion cases 06-16-00004-CR, 06-16-00005-CR, and 06-16-00006-CR, Gray also appeals from a conviction
of criminal mischief, and two convictions of continuous violence against the family.

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App. 2007) (citing Jackson, 443 U.S. at 318–19)). “Legal sufficiency of the evidence is measured

by the elements of the offense as defined by a hypothetically correct jury charge.” Id. (citing Malik

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

          The hypothetically correct jury charge “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.” Id. (quoting Malik, 953 S.W.2d at 240); see Estrada, 334 S.W.3d at 61. The indictment

alleged that Gray caused serious bodily injury to Popplewell by striking her with his hand.

II.       Analysis

          The punch knocked Popplewell unconscious, and she was transported by an ambulance to

the hospital. CT scans revealed that her cheekbone was fractured in three places, rotated, and

displaced and that she sustained injuries to the eye socket and “the interior front wall of the sinus

on the left side.” Dr. Mark Craig, the oral and maxillofacial surgeon that performed Popplewell’s

surgery, testified that her “face was flattened,” leading to malocclusion of her teeth, and that her

eye was “entrapped,” which prevented her from looking upward. Craig testified that, without

surgical intervention, Popplewell would have been permanently disfigured and would have

suffered “protracted loss or impairment of her eye function,” including the possibility of double

vision.

          The Texas Penal Code defines serious bodily injury as “physical pain, illness, or any

impairment of physical condition” that “causes serious permanent disfigurement, or protracted

loss, or impairment of the function of any bodily member or organ.” TEX. PENAL CODE ANN.

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§ 1.07(a)(8), (46) (West Supp. 2015). “‘[T]here are no wounds that constitute ‘serious bodily

injury’’ per se.” Hollaway, 446 S.W.3d at 851 (quoting Jackson v. State, 399 S.W.3d 285, 292

(Tex. App.—Waco 2013, no pet.)).

       Here, Gray disputes neither that the attack occurred nor that Popplewell was injured.

Rather, he argues that the evidence fails to establish that the injuries suffered by Popplewell

constituted serious bodily injury because surgical intervention saved her from disfigurement or

loss of her eye function. However, our analysis is guided directly by the Texas Court of Criminal

Appeals’ opinion in Blea v. State, 483 S.W.3d 29 (Tex. Crim. App. 2016). Blea held that appellate

courts are not to consider the effect of medical treatment in assessing whether a victim’s injuries

meet the statutory definition of serious bodily injury. Id. at 32, 34.

       In light of Craig’s testimony that Popplewell would have suffered permanent disfigurement

and protracted loss of function in her eye absent surgical intervention, we find the evidence legally

sufficient for a rational jury to conclude that Popplewell suffered serious bodily injury as a result

of Gray’s assault. Accordingly, we overrule Gray’s sole point of error.

III.   Conclusion

       We affirm the trial court’s judgment.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:        June 16, 2016
Date Decided:          June 17, 2016

Do Not Publish
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