                                                                               PD-0166-15
                        PD-0166-15                            COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                            Transmitted 4/1/2015 11:24:22 AM
                                                               Accepted 4/1/2015 5:19:04 PM
                                                                                ABEL ACOSTA
                              IN THE                                                   CLERK

                TEXAS COURT OF CRIMINAL APPEALS



Bryan William Reed

            Petitioner,

vs.                                             No.________________

The State of Texas

            Respondent.

*********************************************************

              PETITION FOR DISCRETIONARY REVIEW

*********************************************************

                                          Fasoro Law, PLLC

                                          Kunle Fasoro
                                          SBN: 24086455
        April 1, 2015                     8330 LBJ Fwy, Suite 290
                                          Dallas, TX 75243
                                          214-705-3475
                                          Fax: 214-705-3472
                                          kfasoro@fasorolaw.com


PETITIONER REQUESTS ORAL ARGUMENT




                                   1
                          TABLE OF CONTENTS
Identities of Parties                                   2,3

Index of Authorities                                    3,4,5

Statement Regarding Oral Argument                       5

Statement of the Case                                   5

Statement of Procedural History                         5

Grounds for Review                                      5,6

Argument                                                7

A. Evidence was insufficient for identity               7
B. Petitioner did not act knowingly or recklessly       7
C. Dispute that Assault was Aggravated                  8
D. Review of the legal sufficiency is a matter of law   9
E. State must prove each element                        10
F. Third Party did not corroborate testimony            11
G. Court of Appeals Erred                               12


            IDENTITIES OF THE PARTIES AND COUNSEL
Bryan William Reed- Petitioner

Kunle Fasoro-            Attorney for Petitioner for PDR
                         8330 LBJ Freeway Suite 290 Dallas, TX 75243
                         PH: 214-705-3475 Fax: 214-705-3472

Philip D. Ray, Attorney for Appellant on Appeal, 3131 McKinney Avenue,
Suite 825, Dallas, Texas 75204; phone (214) 416-9100; fax (214) 416-
9107; email: PhilipDRayLaw@gmail.com.

Philip D. Ray, Attorney for Appellant at Trial




                                     2
Kristin R. Brown, Attorney for Appellant on Appeal, 3131 McKinney
Avenue, Suite 825, Dallas, Texas 75204; phone (214) 416-9100; fax
(214) 416-9107; email: kbrown@idefenddfw.com.
Kristin R. Brown, Attorney for Appellant at Trial.

Greg Willis, Collin County District Attorney, Attorney for State of Texas,
2100 Bloomdale Road, Suite 100, McKinney, Texas 75071; phone (972)
548-4323; fax (214) 491-4860.

John Rolater, Collin County Assistant District Attorney, Appellate
Section, Attorney for State of Texas on Appeal, 2100 Bloomdale Road,
Suite 100, McKinney, Texas 75071; phone (972) 548-4323; fax (214)
491-4860.

Ashley Keil, Collin County Assistant District Attorney, Attorney for State
of Texas at Trial, 2100 Bloomdale, Suite 100, McKinney, Texas 75071;
phone (972) 548-4323; fax (214) 491-4860.

Hon. Benjamin N. Smith, Presiding Judge of the 380th Judicial District
Court, 2100 Bloomdale, Suite 30132, McKinney, Texas 75071; phone
(972) 548-4762; fax (972) 547-5733.

Court of Appeals Fifth District Judges:
Justice Ada Brown
Justice Elizabeth Lang-Miers
Justice O’Neil
600 Commerce, Ste 200, Dallas 75202-4658
(214) 712-3400
Fax: (214) 745-1083


            INDEX OF AUTHORITIES
CASES

Adames v. State, 353 S.W.3d 854, 859-860 (Tex. Crim. App. 2011)

Allen v. State, 651 S.W.2d 267, 269-270 (Tex. Crim. App. 1983).

Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992)


                                     3
Brooks v. State, 323 S.W.3d at 912

Carlsen v. State, 654 S.W.2d 444, 448 (Tex. Crim. App. 1983) (opinion on

rehearing

Foster v. State, 635 S.W.2d 710, 717 (Tex. Crim. App. 1982)

Garza v. State, 715 S.W.2d 642, 645 (Tex. Crim. App. 1986)

Gold v. State, 736 S.W.2d 685 (Tex. Crim. App. 1987)

Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001)

Hudson v. United States, 522 U.S. 93, 98-99 (1997)

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979)

Jackson v. Virginia, 443 U.S. at 319

Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012)

Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009)

McFarland v. State, 930 S.W.2d 99, 100 (Tex. Crim. App. 1996)

Moore v. State, 739 S.W.2d 347. 349 (Tex.Crim. App. 1987).

Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992).

Ortiz v. State, 577 S.W.2d 246, 250 (Tex. Crim. App. 1979)

Torres v. State, 785 S.W.2d 824 (Tex. Crim. App. 1989)




STATUTES



                                       4
TEX. PENAL CODE ANN. § 22.0l(a)(l), 22.02(a)(l) (West 2011 & Supp.
2014)


U.S. Const. Amend. V & XIV

Rules

Tex. Code Crim. Proc. Art. 44.25

Tex. Rule App. Proc. 43.2(c).

             STATEMENT REGARDING ORAL ARGUMENT

Petitioner believes that oral arguments will be helpful to the court
because the facts and legal arguments have not been presented
adequately in the trial court or on appeal. Appellant also believes that
oral arguments will allow the Court to ask questions and thoroughly
discuss the facts and legal arguments

                       STATEMENT OF THE CASE

This case concerns a conviction for Aggravated Assault. At trial, the
State sought and received a conviction for Aggravated Assault and a
sentence of seven years. This Conviction was affirmed by the Court of
Appeals, holding that there was sufficient evidence to support the
conviction. This Petition challenges that holding.


                STATEMENT OF PROCEDURAL HISTORY

(1) Date of opinion from Court of Appeals:              December 5,
2014

(2)     Motion for a Rehearing                    December 19, 2014

(3)     Date Motion for Rehearing disposed        January 29, 2015




                                    5
                   GROUNDS FOR REVIEW

1.   There is insufficient evidence to support a conviction for
     aggravated assault. The State failed to prove that petitioner
     was the person who attacked the victim. Without such proof, a
     conviction is improper.

2.   The Appeals court incorrectly affirmed the finding of serious
     bodily harm. The assault would not rise to aggravated assault if
     the resulting injury did not rise to the level of serious bodily
     harm




                           Argument




                               6
This court should grant a review of the Court of Appeals decision to

affirm the Trial Courts conviction of the petitioner. We feel that that the

Appeals court decision to focus solely on the testimony of the petitioner.

The Appeals Court found that the petitioners testimony was sufficient to

satisfy the “beyond a reasonable doubt standard of evidence.

      We argue that the petitioner’s testimony alone should not have

been legally sufficient to support a conviction. The Court of Appeals

should have required more evidence to affirm the decision. For the

Court of Appeals to have affirmed the conviction in the trial court, they

must have been satisfied that the evidence at the trial court was

sufficient to prove that the petitioner intentionally, knowingly, or

recklessly caused serious bodily injury to the victim. See TEX. PENAL

CODE ANN. § 22.0l(a)(l), 22.02(a)(l) (West 2011 & Supp. 2014) we

assert that there was not enough evidence to prove beyond a reasonable

doubt that the petitioner acted intentionally, knowingly or recklessly.

Secondly, we dispute the Court of appeals opinion affirming the trial

courts conviction of Aggravated assault. We assert that there was

insufficient evidence to affirm that the assault caused serious bodily

harm; we believe that it caused just bodily injury. Serious bodily injury”

is bodily injury that “creates a substantial risk of death or that causes


                                     7
death, serious permanent disfigurement, or protracted loss or

impairment of the

function of any bodily member or organ.” Id. § l.07(a)(46). Additionally,

The difference between “bodily injury” and “serious bodily injury” is one

of degree. Moore v. State, 739 S.W.2d 347. 349 (Tex.Crim. App. 1987).

The Court of Appeals erred in affirming the trial courts findings that

there was sufficient evidence to determine that the assault rose to a

level that would constitute serious bodily injury.



1.    To determine the whether evidence is legally sufficient, the

appellate court must determine whether any trier of fact could have

found the essential elements of the crime beyond a reasonable doubt”,

and not whether the appellate court “believes that the evidence at the

trial established guilt beyond a reasonable doubt.” Laster v. State, 275

S.W.3d 512, 517 (Tex. Crim. App. 2009), quoting Jackson v. Virginia, 443

U.S. 307, 318-319 (1979); Brooks v. State, 323 S.W.3d at

912; Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992);

Carlsen v. State, 654 S.W.2d 444, 448 (Tex. Crim. App. 1983) (opinion on

rehearing). After “giving proper deference” to the role of the trier of fact,

an appellate court must “uphold the verdict unless a rational fact finder


                                      8
must have had reasonable doubt as to any essential element.” Laster v.

State, 275 S.W.3d at 518, citing Narvaiz v. State, 840 S.W.2d 415, 423

(Tex. Crim. App. 1992).

      Although based upon a review of the facts, review of the legal

sufficiency of evidence is a determination of law. Allen v. State, 651

S.W.2d 267, 269-270 (Tex. Crim. App. 1983). An appellate court must

always address challenges to the sufficiency of the evidence. Garza v.

State, 715 S.W.2d 642, 645 (Tex. Crim. App. 1986). Such a review must

be conducted when a legal sufficiency challenge is raised, even if the

conviction must be reversed on other grounds, because a finding that

the evidence is legally insufficient to support the conviction prevents a

retrial under the double jeopardy clause of the Fifth Amendment.

Hudson v. United States, 522 U.S. 93, 98-99 (1997); U.S. Const. Amend. V

& XIV; Ortiz v. State, 577 S.W.2d 246, 250 (Tex. Crim. App. 1979); Foster

v. State, 635 S.W.2d 710, 717 (Tex. Crim. App. 1982); McFarland v. State,

930 S.W.2d 99, 100 (Tex. Crim. App. 1996). And should an appellate

court find that the verdict is contrary to the evidence presented at trial,

the court is empowered to reverse the conviction and enter a judgment

of acquittal. Tex. Code Crim. Proc. Art. 44.25; Tex. Rule App. Proc.

43.2(c).


                                     9
      Evidence is legally sufficient only if the state has affirmatively

proven each of the essential elements of the offense. Gold v. State, 736

S.W.2d 685 (Tex. Crim. App. 1987), overruled on other grounds in Torres

v. State, 785 S.W.2d 824 (Tex. Crim. App. 1989); Jackson v. Virginia, 443

U.S. at 319; Adames v. State, 353 S.W.3d 854, 859-860 (Tex. Crim. App.

2011). And the State’s case falls short if there is a material variance

between the indictment allegations and the proof at trial. Gollihar v.

State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001); Johnson v. State, 364

S.W.3d 292, 294 (Tex. Crim. App. 2012). This occurs when a statute

specifies alternate methods by which an offense could be committed,

the charging instrument pleads one of those alternate methods, but the

State proves, instead, an un-pled method. Id.



Issue One-

In the Opinion, the Court of appeals states that upon a reviewing the

facts, review of the evidence is a determination of law. An appellate

court must always address challenges to the sufficiency of the evidence.

In their analysis, the Court of Appeals concluded that the trial court

could have found beyond a reasonable doubt that petitioner, and not the

other party that was present at the scene of the assault was the person


                                     10
who hit the victim. The Court of appeals, in their review, considered all

the evidence presented during the trial in the light most favorable to the

verdict. In this case, there was more than sufficient evidence to show

that there was a second person at the scene that caused the accident.

      Any third party did not corroborate the Testimony of the

petitioner at the trial that he was the person who hit the victim. The

other person at the scene, Ms. Kennard should have been required to

testify. In addition to this, the Victim, Mr. Soultaire was not aware of

who hit him. Mr. Soultaire was struck with his back to petitioner and Ms.

Kennard.



Issue 2

In Regards to the Second issue of whether the attack rose to the level of

aggravated assault, we argue that it does not. The Court of appeals

concluded that the injury Soultaire suffered to his right eye met the

definition of a “Serious bodily injury”. We argue that the Court of

appeals erred in their conclusion. In his Testimony, the eye doctor,

Teska acknowledged that he did not know whether the rapid growth of

the cataract was the “result of trauma, or a rapid increase by the trauma,

or maybe the victim was just a guy who grows cataracts quickly”.


                                     11
Teska’s inability to definitively testify that this was a direct result of the

assault, makes this evidence one that does not pass beyond a reasonable

doubt standard.

      The Court of Appeals dismisses this in their analysis. Furthermore

the court does not give enough weight in their analysis to Dr. Trans’s

testimony that she although she believed the concussions the victim

sustained created a substantial risk of death at the time she filled out

the police forms, she no longer felt that he was still at risk of dying. The

evidence also does not show that the victim’s injuries caused serious

permanent disfigurement. This is a requirement for the assault to reach

the level of “serious bodily injury”.

      The Court of Appeals failed to hold the trial courts decision to the

standards that have been required through precedence. The evidence

was insufficient to prove the identity of the assailant, in addition, they

evidence was insufficient to prove “Serious bodily harm. Therefore

reversal is proper in this petition.




                   PRAYER FOR RELIEF

      This Petition should be granted


                                        12
      The evidence was insufficient to prove the identity of the person

who assaulted the victim.

      Additionally, the injuries suffered by the victim did to “serious

bodily injury’”, therefore the charge and conviction should have been for

Assault and not Aggravated Assault.

      The conviction based on insufficient evidence should be

overturned.

      Petitioner also requests such other and further relief as is just.

                                      RESPECTFULLY SUBMITTED

                                      FASORO LAW, PLLC



                                      /S/ Kunle Fasoro
                                      KUNLE FASORO
                                      SBN 24086455
                                      8330 LBJ Freeway, Suite 290
                                      Dallas, Texas 74243
                                      214-705-3475
                                      Fax 214-705-3472
                                      kfasoro@fasorolaw.com




                            CERTIFICATE OF SERVICE




                                    13
            I hereby certify that on March 31, 2015, a copy of the
foregoing Petition for Discretionary Review was served on the following
by Electronic Service (E-Mail):

            John Rolater
            Collin County District Attorney
            Appellate Division
             E-Mail: jrolater@co.collin.tx.us

                                           /s/Kunle Fasoro
                                           Kunle Fasoro




                    CERTIFICATE OF COMPLIANCE

     I hereby certify that this petition conforms to the requirements of
TRAP 9 and consists of 2015 words per TRAP 9.4(i)(2)(D).


                                           /s/Kunle Fasoro
                                           Kunle Fasoro




                                 IN THE



                                    14
                TEXAS COURT OF CRIMINAL APPEALS



Bryan William Reed

            Petitioner,

vs.                                             No.________________

The State of Texas

            Respondent.

*********************************************************

            APPENDIX FOR

              PETITION FOR DISCRETIONARY REVIEW



INDEX

1-12        COURT OF APPEALS OPININON AND JUDJEMENT




                                   15
AFFIRM; Opinion Filed December 5, 2014.




                                            In The
                                Cnurt of Appeals
                       lFiftL! 3istrict of exas at aallas
                                     No. 05-13-01509-CR

                           BRYAN WILLIAM REED, Appellant
                                              V.
                             THE STATE OF TEXAS, Appellee

                     On Appeal from the 380th Judicial District Court
                                  Collin County, Texas
                         Trial Court Cause No. 380-80243-2013

                            MEMORANDUM OPINION
                       Before Justices O’Neill, Lang-Miers. and Brown
                                  Opinion by Justice Brown

       After a bench trial, the trial court convicted Bryan William Reed of the offense of

aggravated assault causing serious bodily injury and sentenced him to seven years in prison.

Appeliant raises two issues on appeal in which he challenges the sufficiency of the evidence to

support his conviction. We affirm.

                                         Background

       The complainant was Dana Soultaire. who was sixty-two years old at the time of trial.

Souhaire testified that around two o’clock or two-thirty in the morning on November 3, 2012, he

woke up to loud music coming from another apartment in his building. After determining the

source of the noise, he knocked on the door of that apartment so he could ask them to turn the

music down. Soultaire knocked on the door three times before a woman named Amber Kennard
responded. Soultaire testified that when Kennard opened the door, he was able to say only “shh,

could you please turn down your music, I’m trying to sleep” be Core Kennard “went into [a]

screaming and cussing tirade.” Soultaire recounted that as he was telling Kennard that he would

just call the police to have them take care of the noise, a man, later identified as appellant,

stepped out and confronted him by asking why Soultaire was “talking to [his] woman like that.”

Soultaire described appellant as having a hostile look on his lace, and because Soultaire sensed

that this was a situation that he “didn’t need to be in,” Soultaire started to back away from the

apartment.

        According to Soultaire. appellant approached him in a menacing manner and followed

Soultaire as he backed away; Kennard, who continued to scream and cuss, was behind appellant.

Soultaire said he tried “to talk sense to the man” and told appellant to ‘just leave him alone.”

Soultaire testified that when he turned his back, appellant hit him in the back of his head.

Soultaire fell to the ground and was knocked unconscious. Soultaire remembered waking up on

the lawn with his face covered in blood. He crawled back to his apartment, and his wife called

the police. Soultaire was taken to the hospital.

        Appellant denied following Soultaire, but he admitted to hitting Soultaire in the eye and

head.   Appellant testified that he was intoxicated and did not know why he hit Soultaire.

Appellant said “it felt natural tome to duck and just hit him” because Soultaire was screaming at

Kennard and “calling her the B word.” Appellant testified that when he hit Soultaire in the eye,

Soultaire fell back to the ground. Appellant then immediately “ran right on top of him” and hit

Soultaire four times in the head. Appellant said the additional hits were his “natural response”

and that he did not think about whether Soultaire was conscious at that point. Appellant did not

remember kicking or stepping on Soultaire. Appellant agreed that he did not hit Soultaire in self-

defense; he testified that the only reason he could think of as to why he hit Soultaire was because

                                                   —7—
Soultaire was “so disrespectful with [Soultaire] culling [Kennardj a bitch” when appellant tried

to speak with him.     Appellant also agreed he was acting like a punk and admitted it was a

mistake to hit Soultaire.

       Soultaire’s injuries included a cut to the back of his head that took seven to eight staples

to close, a laceration over his eye that required stitches, a gash across his nose, and bruising on

his face, ear, neck, and chest. His medical records reflected that he also had a “large hematoma

at [the] base left neck and across left clavicle in the imprint of a shoe.”       Soultaire further

described damage to the lens of his right eye. He explained that the lens was dislodged from his

retina such that he cannot locus properly. Soultaire said that as a result of the damage, his vision

is blurry, he has a “halo effecC’ from lights at night, and he has double vision. He testified that

he also suffers severe headaches.

        Dr. Lamyen Tran, Soultaire’s family doctor, saw Soultaire three days after the assault.

Tran testified that Soultaire had “lots of facial bruising.” a blackened and swollen right eye, a

large scalp laceration that was stapled shut, a swollen left wrist and hand, a jammed index finger.

and rib bruising. He also had a hematoma on his eyeball. Tran explained that because Soultaire

exhibited concussion symptoms, blurry vision, and a headache, she took a CT scan of his head.

The CT scan was clear, so her plan was to monitor those symptoms and use medication for

Soultaire’s pain.

       Tran continued to treat Soultaire. She explained that although she had treated Soultaire

for headaches in the past, she had a tough time controlling his headaches following the assault;

the medications, which traditionally would have improved those headaches, were not helping.

She testified that Soultaire also was experiencing insomnia and that his blurry vision continued,

        The local police department asked Tran to 1111 out forms related to Soultaire’s injuries.

Tran testified that at the time she filled out the forms, she thought the bodily injury Soultaire


                                                —3—
suffered created a substantial risk of death because of the concussion.         She explained that

Soultaire continued to have blurry vision and headaches and she was worried that Soultaire

would have permanent organic brain damage or changes. She was not sure whether the damage

would heal or “go on to be chronic, potentially life-threatening problems.” She clarified that

although she did not think there was a risk of death anymore. the long-term health problems

related to the concussion were unclear.

       Tran also testified that she believed Soultaire sustained a protracted loss or impairment in

the function of his vision, adding that it was unclear whether Soultaire’s vision would go back to

normal. She further confirmed that she feared the assault on Soultaire would affect his mental

health. Tran explained that Soultaire was in “bad shape,” in pain, and suicidal at times. She said

lie also showed signs of Post-Traumatic Stress Disorder, was agoraphobic, afraid to drive, and

jumpy. She said she saw deterioration in Soultaire’s overall health as a result of the assault.

        Soultaire went to an ophthalmologist, Dr. Lyle Teska, about two weeks after the assault.

During the initial exam, Teska diagnosed Soultaire as having a condition called iritis, which is an

inflammation inside the eye that is treated with eye drops. The inflammation cleared with the

drops, but during a follow-up visit three weeks later, Teska observed “the very beginnings of a

cataract in his right eye.” At his next appointment two months later, Soultaire complained of

difficulty with his vision. Teska confirmed that Soultaire had a cataract that had progressed

faster than expected over the previous two months. Teska diagnosed Soultaire with a traumatic

cataract, explaining that a cataract “is a very common result of trauma” to the eye.

        Teska testified that at the next appointment three months later, Soultaire’s vision had

declined, and the cataract had “significantly worsened.” Teska said that this was “rapid growth”

for a cataract and if left untreated, Soultaire’s vision would likely continue to get worse and

would result in a protracted loss or impairment in the function of Soultaire’s eye.           Teska
recommended that the cataract be surgically removed and referred Soultaire to a specialist for the

surgery.     Teska explained that with an eye that has been traumatized, the surgery is “more

demanding” and Soultaire faced a higher risk of complications. Teska agreed that he did not

know whether the rapid growth of the cataract was the “result of the trauma, or, rapid increase by

the trauma, or maybe [Soultaire’s] just a guy who grows cataracts quickly.” But Soultaire had

reported being hit in the head and eye several times, and Teska had objectively observed the

decline in Soultaire’s vision and the rapid growth of the cataract.

                                     Sufficiency of the Evidence

        On appeal, appellant challenges the sufficiency of the evidence to support his conviction

for aggravated assault causing serious bodily injury. Specifically, he contends that the evidence

is insufficient because the State failed to prove that (1) appellant was the person who struck

Soultaire (Issue One) and (2) Soultaire suffered serious bodily injury caused by appellant (Issue

Two).

        Legal Standards and Applicable Law

           We review appellant’s sufficiency challenge by considering all the evidence in the light

most favorable to the verdict; based on that evidence and any reasonable inferences, we must

determine whether a rational fact finder could have found the essential elements of the offense

beyond a reasonable doubt. Jackson       i.   Virginia, 443 U.S. 307, 319 (1979); Thornton v. State,

425 S.W.3d 289, 303 (Tex. Crim. App. 2014).              Under this standard, the fact finder has full

responsibility for resolving conflicts in the testimony, weighing the evidence, and drawing

reasonable inferences from basic facts to ultimate facts. j(lLksoii, 443 U.S. at 319. We presume

the fact finder resolved any conflicts in the evidence in favor of the verdict and defer to that

determination. See Id. at 326. We do not reassess witness credibility. Thornton, 425 S.W.3d at

303.


                                                   —5—
       To obtain a conviction for aggravated assault as charged in this case, the State was

required to prove beyond a reasonable doubt that appellant intentionally, knowingly, or

recklessly caused serious bodily injury to Soultaire by striking Soultaire on the head with

appellant’s hand and by knocking Soultaire to the ground and kicking him in the torso. See TEx.

PENAL CODE ANN.      § 22.0l(a)(l), 22.02(a)(l) (West 2011 & Supp. 2014). “Bodily injury”

means “physical pain, illness, or any impairment of physical condition.” Id. § l.07(a)(8) (West

Supp. 2014). “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.” Id. § l.07(a)(46). The difference between “bodily

injury” and “serious bodily injun” is one of degree. Moore v. State, 739 S.W.2d 347. 349 (Tex.

Crim. App. 1987). To determine whether an injury constitutes a “serious bodily injury,” we

assess the facts on a case-by-case basis; we evaluate “each case on its own facts” to resolve

whether the evidence was sufficient to permit the fact finder to conclude that the injury fell

within that definition. Sizeniore v. State, 387 S.W.3d 824. 828 Rex. App.—Amariillo 2012, pet.

ref’d) (citing Moore, 739 S.W.2d at 352); Eustis v. State, 191 S.W.3d 879, 884 (Tex. App.—

Houston [14th Dist.] 2006, pet. ref d).

       “For there to be protracted [loss or] impairment such that a finding of serious bodily

injury is proper, the organ or bodily member must lose some function.” Andrus v. State, Nos.

05-08-00703-CR, 05-08-00704-CR, 2010 WL 797196. at *2 (Tex. App.—DaIlas Mar. 10,2010,

no pet.) (citing I-fernandez   i’.   State, 946 S.W.2d 108, 113 (Tex. App.—El Paso 1997, no pet.)).

“Protracted” loss of function need not be permanent loss; rather, a “protracted” loss or

impairment is an injury that is “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 (describing the common meaning of the


                                                    —6—
word “protracted”); see aLvo Nash v. State, 123 S.W.3d 534, 538 (Tex. Crim. App. 2003)

(explaining that in Moore, the court of criminal appeals said “protracted” means “extended,

lengthened, prolonged, or continued”). The relevant issue is the “impairing quality of the bodily

injury as it was inflicted, not after the effects have been ameliorated or exacerbated by other

actions such as medical treatment.” Nash, 123 S.W.3d at 539 (citing Brown v. State, 605 S.W.2d

572, 575 (Tex. Crim. App. [Panel   op.] 1980), overruled on other grounds by Kedicke v. State,
779 S.W.2d 837 (Tex. Crim. App. 1989)). The person who sustained the injuries is qualified to

offer an opinion about the seriousness of the injuries. See Han v. State, 581 S.W.2d 675, 677

(Tex. Crim. App. [Panel Op.] 1979).

       Analysis

       Appellant argues in his first issue that the evidence is insufficient to support his

conviction because the State did not prove that it was appellant who struck Soultaire on the head

with a hand, knocked Soultaire to the ground, or kicked SouLtaire in the torso. He claims that

based on Soultaire’s testimony that Kennard was “with” appellant when Soultaire backed away

and that Soultaire had turned his back to appellant so he did not see appellant hit him, the

evidence does not exclude the possibility that Kennard was the offending party. We disagree.

       Appellant admitted that he was the person who hit Soultaire, testifying that “1

intentionally hit him with my fist.   That was me.”      Appellant specifically described hitting

Soultaire one time in the face in response to Soultaire’s “disrespect” to Kennard and then hitting

Soultaire four more times in the head after Soultaire fell to the ground. Appellant hit Soultaire

additional times without considering whether Soultaire was unconscious at the time, and he

acknowledged that Soultaire’s injuries to the back of his head probably “came from” when

Soultaire fell back after appellant hit him. Although appellant claimed he did not recall stomping

on or kicking Soultaire, he admitted he saw the pictures showing Soultaire’s injuries, and


                                               —7—
Soultaire’s medical records confirmed Soultaire had injuries on his torso “in the imprint of a

shoe.”    Appellant also testified that when he “got off’ of Soultaire after hitting him four

additional times, Kennard was “gone.”          And when appellant “tried to walk back in” the

apartment, Kennard had locked the door. Appellant said he was intoxicated that night, acted like

a “punk,” and he “want[edj to take full responsibility” for what he did.

         In arguing that the evidence does not exclude Kennard as the person who hit Soultaire,

appellant emphasizes that his testimony—during which he admitted that he was the person who

hit Soultaire—came after the trial court denied his motion for directed verdict. After the State

rested, appellant moved for directed verdict, arguing that “there were two people there,” both of

whom were described as aggressive, and the State did not prove who caused the injury.

Appellant contends that “[wlhen—during a trial before the court—the Court denies a motion for

directed verdict, the Court is, in essence, issuing a verdict of guilt” such that his testimony

becomes nothing more than punishment testimony. As support, he cites Ledav                   t’.       State, 983

S.W.2d 713. 725—26 (Tex. Crim. App. 1998), in which the Texas Court of Criminal Appeals held

that a defendant’s admission of guilt at the punishment stage of trial does not result in waiver of

alleged error during the guilt phase of a trial. Appellant claims that the court’s denial of the

direct verdict was a comment on the weight of the evidence and at that point, the court

essentially has “found the defendant guilty of the crime charged.”

         Nothing in this record shows that the trial court “believe[d] the State [hadi   .    .    .   proved all

the elements of the case beyond a reasonable doubt” at the time it denied appellant’s motion for

directed verdict as appellant contends. Evidence is considered punishment evidence only after a

guilty verdict is rendered. Here, appellant testified twice—during the guilt-innocence phase and

the punishment phase of trial. During the guilt-innocence phase of trial, he testified that he was

the person who hit Soultaire, that he was “wrong” for doing so, and that he would take “full


                                                 —8—
responsibility” for what he did. Appellant also confirmed in his testimony that Kennard had

returned to the apartment.     In our sufficiency review, we consider all the evidence presented

during trial in the light most favorable to the verdict. Jackson, 443 U.S. at 319. Based on the

evidence discussed above, we conclude the trial court could have ibund beyond a reasonable

doubt that appellant, not Kennard, was the person who hit Soultaire, knocked him down, and

kicked him. We resolve appellant’s first issue against him.

       In his second issue, appellant argues the evidence is insufficient to support his conviction

because the State did not prove that Soultaire suffered from a permanent disfigurement or

protracted loss or impairment caused by appellant.        He contends that Soultaire’s primary

complaints after the incident were headaches, blurry vision, migraines, and discomfort and that

the “vision impairment symptoms were effects Soultaire was experiencing prior to the incident.”

Appellant also contends that Teska’s testimony did not establish with any medical certainty

whether the traumatic cataract was caused by appellant’s actions or affected by his actions.

       The evidence does not show that the injuries sustained by Soultaire created a substantial

risk of death or cause death. TEX. PENAL CODE ANN. § l.07(a)(46). Tran testified that although

she believed the concussion Soultaire sustained created a substantial risk of death at the time she

filled out the police forms, she no longer thought he still was “in risk of death” because of the

concussion.   Nor does the evidence show that Soultaire’s injuries caused serious permanent

disfigurement. Id. So, for appellant’s conviction for aggravated assault to stand, the record must

reflect legally sufficient evidence that Soultaire suffered a protracted loss or protracted

impairment ofa bodily member or organ. See Nash, 123 S.W.3d at 538—39. We conclude that it

does. Specifically, we conclude that the record reflects Soultaire suffered protracted impairment

in the function of his right eye.




                                               —9—
       Soultaire testified, and his medical records showed, that he suffered trauma to his right

eye after appellant hit him in the face and head. Teska saw Soultaire two weeks after the assault

at which time Soultaire complained of blurred vision and informed Teska he was having trouble

with bright lights.   Soultaire also reported repeated problems with his vision at subsequent

appointments over a period of six months after the assault. Soultaire’s vision prevented him

from driving at night, and he had difficulty reading or watching television.      He also said his

vision problems forced him to retire.

       Teska testified that after some inflammation had cleared in Soultaire’s eye, he noticed the

beginnings of a cataract.   In subsequent visits, Teska observed that Soultaire’s cataract had

progressed faster than expected and testified that this was “a very common result of trauma”

such that he diagnosed Soultaire with a traumatic cataract. Within six months after the assault,

Soultaire’s vision declined further and the cataract had significantly worsened. Teska said if left

untreated, Soultaire’s vision would likely continue to get worse.      And Teska agreed that this

would be a protracted loss or impairment in the function of Soultaire’s eye.

       Although Teska acknowledged on cross examination that he did not know whether the

rapid growth of the cataract was the “result of the trauma, or, rapid increase by the trauma, or

maybe [Soultaire’s] just a guy who grows cataracts quickly,” he testified that Soultaire had

reported being hit in the head and eye several times, and Teska had objectively observed the

decline in Soultaire’s vision and the rapid growth of the cataract, which was commonly the result

of trauma. Appellant testified he hit Soultaire multiple times in the face and head, and Soultaire

said that the damage to his eye was caused by trauma. There is no dispute that the eye with the

vision problems is the same eye that was injured during the assault.

       The evidence also shows that Soultaire’s problems with his vision came after the assault,

and he testified to the continuing effects he suffered. He testified that before the assault his


                                              —   ID—
vision was “excellent,” but after the assault, his eye was damaged such that he cannot focus

properLy, he had a halo effect from nighttime lights, and he has double vision. These effects

were present at the time he testified at trial, which was almost a year after the assault. Soultaire

said that he was told that surgery was required to prevent him from going blind in that eye.

       When we consider the evidence in the light most favorable to the verdict, we conclude

that a rational fact finder could have concluded that the injury Soultaire suffered to his right eye

met the dernition of a “serious bodily injury” and this injury was caused by appellant’s actions.

We resolve appellant’s second issue against him.

       Having resolved both of appellant’s sufficiency challenges against him, we affirm the

trial court’s judgment.




                                                      /Ada Brown!
                                                      ADA BROWN
                                                      JUSTICE


Do Not Publish
TEx. R. App. P. 47

131 509F.U05




                                               —   I 1—
                                  ((ourt of Appeals
                       ififtl! District of cxas at DaUas
                                      JUDGMENT

BRYAN WILLIAM REED, Appellant                      On Appeal from the 380th Judicial District
                                                   Court, Collin County, Texas
No. 05-13-01509-CR        V.                       Trial Court Cause No. 380-80243-20 13.
                                                   Opinion delivered by Justice Brown. Justices
THE STATE OF TEXAS, Appellee                       O’Neill and Lang-Miers participating.


       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 5th day of December, 2014.




                                            —12—
