Affirmed and Opinion Filed May 28, 2015.




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-01066-CR

                          KRISTIE LYN HERMES, Appellant
                                               V.
                           THE STATE OF TEXAS, Appellee

                        On Appeal from the 416th Judicial District Court
                                     Collin County, Texas
                            Trial Court Cause No. 416-81667-2013

                                MEMORANDUM OPINION
                           Before Justices Francis, Brown, and Stoddart
                                   Opinion by Justice Stoddart

       A jury convicted Kristie Lyn Hermes of intoxication assault causing serious bodily

injury. The jury assessed punishment at four years in prison and a $1,000 fine. The jury

recommended community supervision. The trial court suspended sentence and placed her on

community supervision for five years. In three issues, Hermes contends the State failed to

corroborate her out-of-court statement that she was driving the vehicle at the time of the

accident, the evidence was insufficient to prove she was intoxicated at the time of the accident,

and the evidence was insufficient to show the complainant suffered serious bodily injury. We

affirm the trial court’s judgment.

                                         BACKGROUND

       Hermes drove her boyfriend, Cesar Franco, to a party at her friend’s apartment around

10:30 or 11:00 p.m. Franco drank heavily and blacked out. He did not remember smoking
marijuana that night, but he smoked marijuana about once a week. Franco did not remember the

drive home or who was driving, although Hermes usually drove while they were dating. Franco

did not have a driver’s license at the time of the accident.

       Holly Love was driving south on Custer Road in Frisco between 4:00 and 4:30 a.m. when

she saw Hermes in the road waving her arms. Hermes was crying and said she had been in a bad

accident. Hermes’s face was covered in blood and she was bleeding from the top of her head.

As they walked to the accident scene, Hermes told Love that she went to a party, had a few beers

and smoked marijuana. When Love saw the vehicle, it was obvious it had rolled over and was in

a one-car accident. There were no other cars around. Love saw Franco was lying in the roadway

injured. Hermes said she had been driving and Franco was ejected from the car. Love testified it

was dark and very cold that morning, but it was not raining, snowing, or windy.

       Officer Kevin Kryczkowski testified Hermes and Franco were lying in the roadway when

he arrived. Hermes was unconscious at first, but became frantic as Kryczkowski spoke to her.

Blood was running down her face from the top of her head. Hermes told Kryczkowski that she

consumed three or four beers and smoked marijuana that evening. She also said she was driving

at the time of the accident. Hermes told Kryczkowski the last thing she remembered was passing

through the intersection about a quarter or half mile north of the accident and she did not know

how she got to where they were. Franco suffered so much trauma that he did not understand

what was going on. Franco was flown to the hospital because his injuries required immediate

attention. Hermes was transported to the hospital by ambulance.

       Officer Jason Hinkel testified there were visible skid marks on the road, deep gouges in

the grass median, and debris from the vehicle along its path. These indicated the vehicle was

traveling south in the left lane when it began to drift gradually toward the right lane. It hit the

curb, ran up on the right-lane curb, headed back toward the left lane, and flipped multiple times.

The vehicle came to a stop upright on the center median. It was not entirely clear whether the

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brakes had been applied. Detailed photographs of the accident scene and the damaged vehicle

were admitted in evidence.

       Hermes’s blood was drawn at the hospital at 6:30 a.m. Based on the hospital lab report, a

forensic scientist determined Hermes had a blood-alcohol level of .091 approximately two hours

after she was found at the accident. A toxicologist testified that Hermes’s blood contained a

small amount of a muscle relaxant, which has intoxicating effects. The toxicologist also testified

that if alcohol, the muscle relaxant, and marijuana are taken together, they can produce an

additive effect, meaning the overall intoxicating effect is greater than one substance alone.

Hinkel testified he also received a lab report stating there were traces of marijuana in Hermes’s

system.

       Hinkel interviewed Hermes at the hospital around 9:00 a.m. Hermes said the car flipped

three or four times and she knew she had to get out of the vehicle. She did not know where

Franco was at first, but found him injured in the roadway. She estimated the first cars came by

three or four minutes later. Hermes admitted drinking two shots of liquor and smoking a small

bowl of marijuana. She said she did not drink any beer. When asked if she had been driving,

she said, “Yeah, it was me, definitely.” At the end of the interview, she said “I know I was in the

wrong.”

       As a result of the accident, Franco suffered several spine fractures and a brain contusion.

He was in the hospital for four days and unconscious for three days. When he was released, he

could walk, but it was very difficult. He wore a back brace for two months and could not work

during that time. At trial, two years and eight months after the accident, Franco testified his back

hurts very badly on cold days and he cannot do some things. He testified he was going to get

himself “checked out.”

       Dr. Al West testified that Franco suffered several spine fractures and a brain contusion.

The back injuries were painful, but there was no risk for paralysis. However, West testified the

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residual back pain due to fractured vertebrae constituted protracted impairment of the function of

a bodily member. West explained that a brain contusion is a bruise to the tissue of the brain,

usually bleeding into the brain tissue itself. Most of the time, a portion of the brain tissue will die

as a result of the brain contusion. West always puts a patient with a brain contusion in intensive

care for the first 24 hours “because there is a substantial chance that that gets worse and causes

death.” West testified that a portion of Franco’s brain died because of the brain contusion and

the death of a portion of the brain is a protracted loss of a bodily member.

                                       STANDARD OF REVIEW

       We review a challenge to the sufficiency of the evidence on a criminal offense for which

the State has the burden of proof under the single sufficiency standard set forth in Jackson v.

Virginia, 443 U.S. 307 (1979). Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App.

2014). Under this standard, the relevant question is whether, after viewing the evidence in the

light most favorable to the verdict, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex.

Crim. App. 2011) (footnotes omitted).

       This standard accounts for the factfinder’s duty to resolve conflicts in the testimony, to

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

Therefore, in analyzing legal sufficiency, we determine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence when viewed in

the light most favorable to the verdict. Id. When the record supports conflicting inferences, we

presume that the factfinder resolved the conflicts in favor of the verdict and therefore defer to

that determination. Id. Direct and circumstantial evidence are treated equally: Circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt. Id. We measure the sufficiency of the

evidence by the elements of the offense as defined by a hypothetically correct jury charge. See


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Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d

234, 240 (Tex. Crim. App. 1997)).

       We do not engage in a divide-and-conquer analysis to explain away individual facts. See

Murray v. State, No. PD-1230-14, 2015 WL 1743419, at *4 (Tex. Crim. App. April 15, 2015).

Nor do we focus on “evidence that was not admitted at trial” or distinguish “missing” evidence

in the case on appeal from evidence present in other cases. Id. (court of appeals misapplied

standard of review for insufficient-evidence claims by engaging in divide-and-conquer analysis

and focusing on evidence that was not admitted at trial).

       As applicable here, a person commits intoxication assault if the person by accident or

mistake while operating motor vehicle in a public place while intoxicated, by reason of that

intoxication causes serious bodily injury to another. TEX. PENAL CODE ANN. § 49.07(a) (West

2011). Intoxicated means not having the normal use of mental or physical faculties by reason of

the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of

two or more of those substances, or any other substance into the body. Id. § 49.01(2)(A). It also

means having an alcohol concentration of 0.08 or more. Id.§ 49.01(2)(B). Serious bodily injury

for purposes of intoxication assault means injury that causes a substantial risk of death or that

causes serious permanent disfigurement or protracted loss or impairment of the function of any

bodily member or organ. Id. § 49.07(b).

                                            ANALYSIS

   A. Corpus Delicti

       In her first issue, Hermes argues her extrajudicial statements that she drove that night

were uncorroborated and therefore insufficient evidence under the corpus delicti rule.

       The corpus delicti rule is a rule of evidentiary sufficiency applicable to an extrajudicial

confession by the defendant. Miller v. State, No. PD-0038-14, 2015 WL 1743581, at *5 (Tex.

Crim. App. Apr. 15, 2015). Under the rule, “[w]hen the burden of proof is ‘beyond a reasonable


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doubt,’ a defendant’s extrajudicial confession does not constitute legally sufficient evidence of

guilt absent independent evidence of the corpus delicti.” Id. (quoting Hacker v. State, 389

S.W.3d 860, 865 (Tex. Crim. App. 2013)). The purpose of the rule is to ensure “that a person

would not be convicted based solely on his own false confession to a crime that never occurred.”

Carrizales v. State, 414 S.W.3d 737, 740–41 (Tex. Crim. App. 2013) (discussing 17th century

case where supposed murder victim returned whole and healthy a few years after his servant and

the servant’s brother and mother had confessed to the “murder” and been executed). The rule

protects mentally infirm persons who confess to imaginary crimes and people who confess

because of official coercion. See Bible v. State, 162 S.W.3d 234, 246–47 (Tex. Crim. App.

2005).

         The rule has been criticized in modern times for failing to protect mentally infirm persons

who falsely confess to real crimes and for protecting actual perpetrators of crimes against non-

verbal persons that suffer no tangible injury. See Miller, 2015 WL 1743581, at *5–7. The rule

has also been criticized as obsolete due to other developments in the law. Id. While “the policy

reason for the rule is narrow—to prevent convictions based on extrajudicial confessions to

imaginary crimes—we still believe the rule provides essential protection for those defendants

who would confess to an imaginary crime because of mental infirmity or for other reasons.” Id.

2015 WL 1743581, at *7–8.

         To satisfy the corpus delicti rule, there must be “evidence independent of a defendant’s

extrajudicial confession show[ing] that the ‘essential nature’ of the charged crime was committed

by someone.” Hacker, 389 S.W.3d at 866; see Salazar v. State, 86 S.W.3d 640, 644–45 (Tex.

Crim. App. 2002). This other evidence need not be sufficient by itself to prove the offense: “all

that is required is that there be some evidence which renders the commission of the offense more

probable than it would be without the evidence.” Williams v. State, 958 S.W.2d 186, 190 (Tex.

Crim. App. 1997) (quoting Chambers v. State, 866 S.W.2d 9, 15–16 (Tex. Crim. App. 1993));

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see Rocha v. State, 16 S.W.3d 1, 4 (Tex. Crim. App. 2000).

       Franco testified that Hermes drove them to the party in her car. He also testified she

normally drove when the two were out together and he did not have a driver’s license. Franco

drank so much that night that he blacked out and could not remember getting into the car. Only

Hermes and Franco were found at the scene. No other cars were on the scene. This evidence

makes it more probable that Hermes was driving and corroborates her extrajudicial statements to

Love, Kryczkowski, and Hinkel that she was driving when the accident occurred. This evidence

fulfills the purpose of the corpus delicti rule. It “assures that the very crime to which appellant

confessed, and for which [s]he was prosecuted, actually happened.” Salazar, 86 S.W.3d at 645;

see Williams, 958 S.W.2d at 190.

       Viewing all the evidence, including the corroborating evidence and Hermes’s

extrajudicial statements, in the light most favorable to the verdict, we conclude a rational jury

could find beyond a reasonable doubt that Hermes operated a motor vehicle. Miller, No. PD-

0038-14, 2015 WL 1743581, at *5. We overrule Hermes’s first issue.

   B. Intoxication and Serious Bodily Injury

       Hermes’s second and third issues challenge the sufficiency of the evidence to prove that

she was intoxicated at the time of the accident and that Franco suffered serious bodily injury.

Specifically, she contends there is no evidence of a temporal link between her intoxication and

the operation of a motor vehicle and that the evidence did not show Franco’s injuries were long-

term or serious. We discuss both issues together.

       Circumstantial evidence can provide the necessary temporal link between the defendant’s

intoxication and operating a motor vehicle. See Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.

Crim. App. 2010); McCann v. State, 433 S.W.3d 642, 648–49 (Tex. App.—Houston [1st Dist.]

2014, no pet.) (circumstantial evidence was sufficient even without knowing the exact time span

between accident and arrival of officers to support finding that appellant was intoxicated while


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driving). The record reflects Hermes drank alcohol and smoked marijuana at the party that night,

a muscle relaxant was in her system, the accident occurred shortly before Love arrived on the

scene, Hermes’s blood alcohol level was over the legal limit two hours later, Hermes did not

remember how the accident occurred, and the accident was a one-car accident on a straight

section of road in dry weather. From this evidence, viewed in the light most favorable to the

verdict, a jury could reasonably infer that Hermes was intoxicated at the time of the accident.

       Hermes argues the evidence is insufficient because Franco’s injuries were not protracted

and did not create a substantial risk of death.

       Whether an injury constitutes serious bodily injury is determined on a case by cases

basis. See Moore v. State, 739 S.W.2d 347, 352 (Tex. Crim. App. 1987) (plurality op.) (en

banc). A substantial risk of death “is a risk that gives rise to apprehension of danger to life.” Id.

at 353. A “protracted loss or impairment” is one 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.” Id. at 352. The loss of function need

only be protracted, not permanent. See Andrus v. State, No. 05-08-00703-CR, 2010 WL 797196,

at *2 (Tex. App.—Dallas Mar. 10, 2010, no pet.) (mem. op., not designated for publication)

(listing cases where serious bodily injury was found from loss of function for three months, four

weeks, six weeks, and three and a half months).

       The record shows Franco was unconscious at the scene. He was hospitalized for four

days and remained unconscious for three of those days. His suffered several fractures to his

spine and could only walk with difficulty when released from the hospital. He wore a back brace

for two months and was unable to work during that time. At trial, he still could not do some

things and his back hurt badly in cold weather. Franco also suffered a brain contusion which

caused a portion of his brain tissue to die. West testified Franco’s brain contusion initially

created a substantial risk of death and West puts patients with brain contusions in intensive care

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for 24 hours “because there is a substantial chance that that gets worse and causes death.”

       Considering all the evidence in the light most favorable to the verdict, a rational jury

could find beyond a reasonable doubt that Franco suffered serious bodily injury as a result of the

accident.

       Viewing all the evidence in the light most favorable to the verdict, a rational factfinder

could have found the essential elements of the offense beyond a reasonable doubt. See Murray,

No. PD-1230-14, 2015 WL 1743419, at *4. We overrule Hermes’s second and third issues.

                                          CONCLUSION

       We conclude the evidence is sufficient to corroborate appellant’s out-of-court statements,

to show she was intoxicated at the time of the accident, and to show the complainant suffered

serious bodily injury.

       We affirm the trial court’s judgment.



                                                     / Craig Stoddart/
                                                     CRAIG STODDART
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
141066F.U05




                                               –9–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                       JUDGMENT

KRISTIE LYN HERMES, Appellant                         On Appeal from the 416th Judicial District
                                                      Court, Collin County, Texas
No. 05-14-01066-CR        V.                          Trial Court Cause No. 416-81667-2013.
                                                      Opinion delivered by Justice Stoddart,
THE STATE OF TEXAS, Appellee                          Justices Francis and Brown participating.

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


Judgment entered this 28th day of May, 2015.




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