IN THE COURT OF CRIMINAL APPEALS OF TEXAS 

THE STATE OF TEXAS, 

APPELLANT 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

v. 

JUAN BLEA 

APPELL EE 

No. PD-0245-15 

STATE'S BRIEF ON THE MERITS 

FROM THE SECOND DISTRICT OF TEXAS AT FORT WORTH 

IN CAUSE NUMBER 02-13-00221-CR 

AND 

FROM THE 362No JUDICIAL DISTRICT COURT, 

THE HONORABLE BRUCE MCFARLING, JUDGE, PRESIDING; 

THE HONORABLE SHERRY SHIPMAN FROM THE 16TH JUDICIAL 

DISTRICT COURT, AS SITTING JUDGE 

DENTON COUNTY, TEXAS 

IN CAUSE NUMBER F-2011-0993-D 

PAUL JOHNSON 

Criminal District Attorney 

Denton County, Texas 

CATHERINE LUFT 

Assistant Criminal District Attorney 

Chief, Appellate Division 

ANDREA R. SIMMONS 

Assistant Criminal District Attorney 

State Bar No. 24053478 

1450 East McKinney 

Denton, Texas 76209 

(940) 349-2600 

FAX (940) 349-2751 

andrea.simmons@dentoncounty.com 

PD-0245-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/23/2015 5:11:21 PM

Accepted 7/24/2015 8:16:28 AM

ABEL ACOSTA

CLERK
IDENTITY OF PARTIES AND COUNSEL 

Appellant ................................... .................. THE ST ATE OF TEXAS 

PAUL JOHNSON 

Criminal District Attorney 

CATHERINE LUFT 

Assistant Criminal District Attorney 

Chief, Appellate Division 

ANDREA R. SIMMONS 

Assistant Criminal District Attorney 

State Bar No. 24053478 

1450 East McKinney 

Denton, Texas 76209 

(940) 349-2600 

FAX (940) 349-2751 

andrea.simmons@dentoncounty.com 

APPELLATE COUNSEL 

MICHAEL GRAVES 

DUSTIN GOSSAGE 

Assistant Criminal District Attorneys 

TRIAL COUNSEL 

Appellee ....................................................... JUAN BLEA 

11 

JOSEPH BOSWELL 

1504 East McKinney Street 

Suite 200 

Denton, Texas 76209 

APPELLATE COUNSEL 

DENVER McCARTY 

1512 East McKinney Street 

Suite 200 

Denton, Texas 76209 

TRIAL COUNSEL 
INDEX OF AUTHORITIES 

Statutes 

Tex. Penal Code Ann. § l.07(a)(8) (West 2013) ...................................................... 5 

Tex. Penal Code Ann.§ l.07(a)(46) (West 2013) .......................................... 5, 9, 11 

Cases 

Barrera v. State 

820 S. W.2d 194 (Tex. App.-Corpus Christi 1991, pet. ref d) ......................... 8, 9 

Blea v. State 

No. 02-13-00221-CR, 2015 Tex. App. LEXIS 1137 

at *13-14 (Tex. App.-Fort Worth Feb. 5, 2015, pet. field) 

(not designated for publication) .............................................................. 8, 9, 12, 13 

Brown v. State 

605 S.W.2d 572 (Tex. Crim. App. [Panel Op.] 1980) ........................................... 8 

Dewberry v. State 

4 S.W.3d 735 (Tex. Crim. App. 1999) ............................................................. 5, 13 

Dobbs v. State 

434 S.W.3d 166 (Tex. Crim. App. 2014) ............................................................. 14 

Hernandez v. State 

161 S.W.3d 491 (Tex. Crim. App. 2005) ............................................................. 14 

Hooper v. State 

214 S.W.3d 9 (Tex. Crim. App. 2007) ......................................................... 4, 5, 13 

Jackson v. Virginia 

443 U.S. 307, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979) ......................... 4, 5 

IV 
Johnson v. State, 

No. 05-10-00465-CR, 2011 Tex. App. LEXIS 6208, at *12 

(Tex. App.- Dallas 2011 , no pet.) (not designated for publication) ................... 12 

Laster v. State 

275 S.W.3d 512 (Tex. Crim. App. 2009) ............................................................... 5 

Madden v. State 

911 S.W.2d 236 (Tex. App.- Waco 1995, pet. refd) ......................................... 11 

Moore v. State 

739 S.W.2d 347 (Tex. Crim. App. 1987) ............................................................ ... 6 

Nash v. State 

123 S.W.3d 534 (Tex. App.- Fort Worth 2003, pet. ref d) ................................... 6 

Patterson v. State 

No. 11-06-00209-CR, 2008 Tex. App. LEXIS 1525, at *8 

(Tex. App.-Eastland 2008, pet. ref d) (not designated 

for publication) ....................................................................................................... 9 

Pedro v. State 

No. 01-88-00197-CR, 1988 WL 139708, at 82 (Tex. 

App.-Houston [1st Dist.] Dec. 22, 1988, no pet.) 

(not designated for publication) .............................................................................. 9 

Sizemore v. State 

387 3d 824 (Tex. App.- Amarillo 2012, pet. refd) .............................................. 9 

Thomas v. State 

444 S.W.3d 4 (Tex. Crim. App. 2014) ................................................................ 14 

Tucker v. State 

No. 05-01-01899-CR, 2002 WL 32397713, at *1-2 (Tex. 

App.- Dallas Oct. 30, 2002, no pet.) (not designated for publication) ......... 11, 12 

Villarreal v. State 

716 S.W.2d 651 (Tex. App.- Corpus Christi 1986, no pet.) ............................... 12 

v 
Whatley v. State 

445 S.W.3d 159 (Tex. Crim. App. 2014) ............................................................. 14 

Williams v. State, 

575 S.W.2d 30 (Tex. Crim. App. [Panel Op.] 1979) ........................................... 11 

Wilson v. State 

139 S.W.3d 104 (Tex. App.-Texarkana 2004, pet. refd) .................................... 8 

Winfrey v. State 

323 S.W.3d 875 (Tex. Crim. App. 2010) ............................................................. 13 

Vl 
TABLE OF CONTENTS 

IDENTITY OF PAR TIES AND COUNSEL ............................................................ ii 

INDEX OF AUTHORITIES ................................................................................ iv-vi 

STATEMENT OF THE CASE ................................................................................. 1 

STATEMENT REGARDING ORAL ARGUMENT ............................................... 2 

ISSUE PRESENTED ................................................................................................ 2 

STATEMENT OF FACTS ........................................................................................ 2 

SUMMARY OF THE ARGUMENT ........................................................................ 4 

ARGUMENTS .......................................................................................................... 4 

Applied properly, the settled principles of an evidentiary 

sufficiency analysis prevent the appellate courts from 

becoming a thirteenth juror ............................................................................. 4 

Bodily injury versus serious bodily injury ...................................................... 5 

The facts of this case, as supported by the evidence, are 

sufficient to support the jury's finding that the complainant 

suffered serious bodily injury ......................................................................... 6 

1. A substantial risk of death .................................................................... 6 

2. Protracted loss or impairment of the function of 

any bodily member or organ ............................................................... 10 

CONCLUSION ....................................................................................................... 13 

PRAYER FOR RELIEF .......................................................................................... 15 

CERTIFICATE OF COMPLIANCE ...................................................................... 16 

CERTIFICATE OF SERVICE ................................................................................ 16 

111 
IN THE COURT OF CRIMINAL APPEALS OF TEXAS 

THE STATE OF TEXAS, 

APPELLANT 

v. 

JUAN BLEA, 

APPELLEE 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

STATE'S BRIEF ON THE MERITS 

No. PD-0245-15 

TO THE HONORABLE COURT OF CRIMINAL APPEALS: 

Comes now the State, by and through its Assistant District Attorney, 

and respectfully submits its brief on the merits urging that the judgment of the 

Second District Court of Appeals be reversed. 

STATEMENT OF THE CASE 

Appellee was charged with, and found guilty of, the first-degree felony 

offense of aggravated assault, family violence, and sentenced to five years 

imprisonment. The majority opinion released by the Second Court of Appeals held 

that the evidence supporting "serious" bodily injury was insufficient, and reversed 

and remanded the case to the trial court. The majority opinion ordered the trial 

court to (1) modify its judgment to delete the first-degree felony conviction of 

aggravated assault of a family member and to instead reflect a second-degree 

felony conviction for aggravated assault of a family member through the use of a 

1 
deadly weapon and (2) conduct a new trial on punishment. Justice Livingston filed 

a dissenting opinion. This Court granted the State's Petition for 

Discretionary Review. 

STATEMENT REGARDING ORAL ARGUMENT 

Because the issues presented to this Honorable Court for review are narrow 

in scope, the State does not believe that oral argument will be helpful to the Court 

in determining whether the Court of Appeals erred. 

ISSUE PRESENTED 

Did the Second Court of Appeals improperly apply the standard for 

reviewing the sufficiency of the evidence in analyzing whether the 

complainant suffered serious bodily injury? 

STATEMENT OF FACTS 

On July 20, 2010, Justina Fassett' was living with her young daughter and 

her ex-boyfriend's parents (2 R.R. at 21-23, 75, 83). The ex-boyfriend, Appellee, 

was the child's father but was living with a friend at the time (2 R.R. at 22-23). 

Appellee stopped by his parent's home to visit but quickly observed a hickey 

on Justina's neck and became upset (2 R.R. at 26-28, 118). Appellee's parents 

were at work, and only Justina and the baby were home (2 R.R. at 26-27, 75-76). 

Although Justina initially told Appellee that the hickey was "none of [his] 

business," she finally admitted that she got the hickey from a male friend that she 

By the time of trial, the victim, Justina Fassett, had married Appellee and her 

married name was Justina Blea (2 R.R. at 19, 73, 90). 

2 
had hung out with the previous night (2 R.R. at 28-30). Appellee hit Justina in the 

face and told her that he was going to kill her (2 R.R. at 30-32). Justina asked 

Appellee to stop because the baby was "fussy" (2 R.R. at 33, 125). Appellee 

stopped and Justina put the baby in bed with a bottle (2 R.R. at 33, 35, 125). 

Appellee and Justina began fighting again, and Appellee hit Justina multiple 

times in the face and ribs, and he continued to hit and kick her after she fell to the 

ground (2 R.R. at 32-33, 35-36, 50, 125). The baby woke up and Appellee again 

stopped (2 R.R. at 35, 37). Justina told Appellee they needed diapers, so Appellee 

left and later returned with diapers (2 R.R. at 35, 37). The two had another verbal 

argument, Appellee said that Justina was disrespectful, and then he left the home 

(2 R.R. at 3 8). 

When Appellee's parents returned from work, they found Justina in a lot of 

pain and having difficulty breathing (2 R.R. at 33, 36-37, 39-40, 43, 76-77, 84-85, 

91, 117-18, 126). She initially said that she had fallen down the stairs but 

subsequently admitted that was not the truth (2 R.R. at 40, 77, 85-86). Appellee's 

father called 9-1-1, and Justina was transported to Baylor Hospital via ambulance 

(2 R.R. at 40-41, 60, 79, 86-88, 91, 96, 116). She was later transported to Parkland 

Hospital, where she remained for four days for treatment and observation (2 R.R. 

at 42-43, 60, 62, 67-72, 79, 97). 

3 
Justina suffered from a cut underneath her eye; a lacerated liver; a collapsed 

lung (pneumothorax); two fractured ribs; fractures. to her maxillary sinuses; 

bruising and scrapes to her ear, face, arms, legs, lower back, chest and abdomen; 

and she had to have a chest tube inserted at the hospital to help her breathe (2 R.R. 

at 39, 42-43, 61-69, 72, 94-95, 104-08, 117, 122, 125-26; State's Exhibits 1-17, 

20-43, 46). Justina did not work for approximately one month after being released 

from the hospital (2 R.R. at 44-45, 108). 

SUMMARY OF THE ARGUMENT 

The evidence was legally sufficient to support that the complainant suffered 

serious bodily injury. The Second Court of Appeals improperly acted as a 

thirteenth juror by determining that the evidence was insufficient in light of the 

overwhelming evidence of the complainant's injuries and the seriousness of said 

injuries prior to the effects having been ameliorated by medical treatment. 

ARGUMENTS 

Applied properly, the settled principles of an evidentiary sufficiency analysis 

prevent the appellate courts from becoming a thirteenth juror. 

In assessing the legal sufficiency of the evidence under Jackson v. Virginia, 

a reviewing court "consider[s] all of the evidence in the light most favorable to the 

verdict and determine[s] whether, based on that evidence and reasonable inferences 

therefrom, a rational juror could have found the essential elements of the crime 

beyond a reasonable doubt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. 

4 
App. 2007 (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 

2788-89, 61 L. Ed. 2d 560 (1979)). A reviewing court's role is not to become a 

thirteenth juror, and it should not reevaluate the weight and credibility of the 

record evidence and substitute its judgment for that of the fact-finder. 

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, a 

reviewing court defers to "the responsibility of the trier of fact to fairly resolve 

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences 

from basic facts to ultimate facts." Hooper, 214 S.W.3d at 13 (quoting Jackson, 

443 U.S. at 318-19). This same standard applies equally to circumstantial and 

direct evidence. Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009). 

A reviewing court's role on appeal is "restricted to guarding against the rare 

occurrence when a factfinder does not act rationally." Id. at 518. 

Bodily injury versus serious bodily injury. 

"Bodily injury" means physical pain, illness, or any impairment of physical 

condition. Tex. Penal Code Ann. § l.07(a)(8) (West 2013). "Serious bodily 

injury" means 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. § l.07(a)( 46) 

(West 2013) (emphasis added). The Texas Legislature intended that there be a 

meaningful difference or distinction between the different definitions for "bodily 

5 
injury" and "serious bodily injury," because the Penal Code provides definitions 

for each. See Nash v. State, 123 S.W.3d 534, 538-39 (Tex. App.-Fort Worth 

2003, pet. refd) (citing Moore v. State, 739 S.W.2d 347, 349 (Tex. Crim. 

App. 1987)). 

The facts of this case, as supported by the evidence, are sufficient to support 

the jury's finding that the complainant suffered serious bodily injury. 

1. A substantial risk of death. 

Justina testified that her written statement, taken after the assault but prior to 

being transported to the hospital, indicated that she was in "a ton of pain" after the 

assault (2 R.R. at 36). She said that she had pain in her chest and back and that it 

felt like something was broken or terribly injured (2 R.R. at 37). When the 

ambulance arrived, she could not breathe very well (2 R.R. at 39, 43). Likewise, 

Appellee's father testified that when he first saw Justina, she looked pretty bad and 

that she said her back hurt, and he noted that she couldn't walk (2 R.R. at 85, 91). 

Tim Adamo, the responding officer from the Carrollton Police Department, also 

testified that Justina was having a hard time breathing (2 R.R. at 118, 126). 

Furthermore, he testified that Justina was in quite a bit of pain when he arrived: 

she was holding her ribs, chest, and stomach area while seated on the couch 

(2 R.R. at 115, 117-18). In fact, when Justina attempted to stand, she fell back on 

the couch in pain (2 R.R.at 120). 

6 
Nurse Practitioner Kristie Brown, employed at Parkland Memorial Hospital, 

testified that she came into contact with Justina on July 22, 20 I 0, and that Justina 

suffered from a lacerated liver (2 R.R. at 26, 60). She explained that "the liver is a 

filtering organ, a very large vascular organ that sits on the left - right side of our ' 

abdomen" (2 R. R.at 61 ). Nurse Brown testified that the liver plays a significant 

role in one's body and is treated seriously in the medical profession (2 R.R. 

at 65-66). She explained the following relating to the liver: 

"Injuries to the liver can cause a patient to bleed to death very quickly. 

Knowing 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" 

(2 R.R. at 66). 

Staff observed Justina every four to six hours, "mashed on her abdomen," 

routinely checked her liver and her reaction, and looked for signs of peritonitis 

(inflammation of the abdomen from bleeding in the liver and irritation to the 

abdomen) and noticed that the pain gradually progressed after twenty-four to 

forty-eight hours of observation (2 R.R. at 62-63). 

Nurse Brown also testified that Justina suffered from a pneumothorax and 

she said that injuries to the lungs are treated seriously in the medical field (2 R.R. 

at 64-67). To assist in understanding the diagnosis of a pneumothorax, Nurse 

7 
Brown testified to the following: 

"if you have a box and a balloon blown up inside the box and the 

balloon shrinks over time, there is air between the box and the 

balloon, that is a pneumothorax. Most of the time, the lungs should be 

expanded in our chest and touching the sides of the box, but when the 

lung collapses, it's just like a balloon that has a small leak in it and 

collapses down. When that occurs, the patient, Justina, can have 

trouble breathing and it can affect blood pressure, vital signs that we 

look at" (2 R.R. at 64-65). 

Nurse Brown testified that Justina had undergone a procedure to assist with 

breathing and that Justina's lungs subsequently provided adequate oxygen (2 R.R. 

at 65, 67, 69). Justina's mother clarified that Justina had a chest tube inserted to 

assist with her breathing but that it was removed before Justina was discharged from 

the hospital (2 R.R. at 97, 104-05, 107-08, 110). 

The majority opinion in this case on appeal held 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 v. State, No. 02-13-00221-CR, 2015 Tex. App. LEXIS 1137 at *13-14 (Tex. 

App.-Fort Worth Feb. 5, 2015, pet. field) (not designated for publication). 

However, the relevant inquiry as to this issue is the extent of the injuries as inflicted, 

not after the effects have been ameliorated by medical treatment. Wilson v. State, 

139 S.W.3d 104, 106 (Tex. App.-Texarkana 2004, pet. refd) (emphasis added) 

(citing Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App. [Panel Op.] 1980)); 

see Barrera v. State, 820 S.W.2d 194, 196 (Tex. App.- Corpus Christi 1991, 

8 
pet. ref d); see also Patterson v. State, No. 11-06-00209-CR, 2008 Tex. App. 

LEXIS 1525, at *8 (Tex. App.-Eastland 2008, pet. refd) (not designated for 

publication) (testimony by emergency room physician sufficient to show that 

pneumothorax, common with broken ribs, created a substantial risk of death). As 

Justice Livingston stated in her dissenting opinion in this case: 

[T]he jury could have reasonably inferred that if the complainant had 

not received the procedure that Brown described (presumably, the 

tube that the complainant's mother testified about) to help with her 

difficulty in breathing, the complainant faced a substantial risk of 

death. See Sizemore v. State, 387 3d 824, 828 (Tex. App.-Amarillo 

2012, pet. refd); see also Patterson v. State, No. 11-06-00209-CR, 

2008 WL 564880, at *3 (Tex. App.-Eastland Feb. 28, 2008, 

pet. ref d) (not designated for publication) (concluding that testimony 

that the victim had trouble breathing and received treatment for a 

pneumothorax that if left untreated, could cause death, was sufficient 

to prove that the victim had a serious bodily injury); Pedro v. State, 

No. 01-88-00197-CR, 1988 WL 139708, at 82 (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 findings that [a knife] was capable of 

causing 'serious bodily injury."'). 

Viewing the evidence in the light most favorable to the verdict 

and allowing the jury to draw reasonable inferences from the 

evidence, I would hold that based at least on the facts concerning the 

injury to the complainant's lung, that this injury required treatment 

through a tube, and that injuries to lungs can be life-threatening, the 

evidence was sufficient for the jury to find that without treatment, the 

complainant faced a substantial risk of death. See Tex. Penal Code 

Ann. § l.07(a)( 46). 

Blea, 2015 Tex. App. LEXIS 1137 (Dissenting Opinion at 4-5). 

9 
Thus, the evidence of the injuries to the complainant's liver and/or 

lungs was sufficient to support the jury's finding that the complainant 

suffered serious bodily injury. 

2. Protracted loss or impairment of the function of any 

bodily member or organ. 

In addition to Justina's multiple other injuries (a cut underneath her eye; 

lacerated liver; collapsed lung (pneumothorax); fractures to her maxillary sinuses; 

and bruising and scrapes to her ear, face, arms, legs, lower back, chest and 

abdomen), Nurse Brown testified that Justina suffered from two fractured ribs, 

which were treated by pain medication and incentive spirometry (deep-breathing 

exercises) (2 R.R. at 39, 42-43, 61-69, 72, 94-95, 104-08, 117, 122, 125-26; State's 

Exhibits 1-17, 20-43, 46). Justina testified that she didn't work for approximately 

one month after being discharged from the hospital and that she was prescribed 

pain medications (2 R.R. at 45). Justina testified that she rested while at home but 

also said that she was out and about (2 R.R. at 35, 48). According to Justina, when 

she returned to work where she was previously employed as a waitress, Justina 

decided to be a host in order to avoid "everybody" (2 R.R. at 45-46).2 But 

Although Justina testified that she did not suffer from serious permanent disfigurement or 

have protracted loss of the use of a bodily member or organ, she admitted on cross-examination 

that she did not know what that meant and said it was something a doctor should have told her 

about if it existed (2 R.R. at 4 7-48, 51 ). It should also be noted that Justina married Appellee after 

the assault and prior to trial and did not wish to testify against Appellee (2 R.R. at 4 7). 

10 
according to Justina's mother, Jennifer Fassett, Justina moved in with her after 

being discharged from the hospital and just "layed [sic] around" and couldn't work 

because it hurt to walk (2 R.R. at 108-10). She also testified that Justina became a 

hostess because she was unable to fulfill her previous duties as a waitress because 

she could not lift over twenty-five pounds, per her physician's advice (2 R.R. 

at 109-11 ). Furthermore, Jennifer testified that in the approximate month after 

leaving the hospital, Justina could not care for herself even though she was able to 

walk and go to the bathroom (2 R.R. at 109-10, 113-15). 

Thus, the evidence was sufficient to show that the complainant suffered a 

serious bodily injury because she suffered from a protracted impairment of the 

functioning of her body. See Tex. Penal Code Ann. §1.07(a)(46). In fact, Justice 

Livingston stated in her dissenting opinion that: 

I would hold that these month-long effects from the assault qualify as 

a "protracted" impairment of the complainant's bodily functions. 

See Tex. Penal Code Ann. § l.07(a)( 46); Williams v. State, 

575 S.W.2d 30, 33 (Tex. Crim. App. [Panel Op.] 1979) (holding "that 

the injury which caused [the victim] to lose lifting power in his arm 

for three months" constituted a protracted impairment of the function 

of a bodily member, so that "the wound would be classified as serious 

bodily injury"); Madden v. State, 911 S.W.2d 236, 244-45 (Tex. 

App.-Waco 1995, pet. ref'd) (concluding that there was serious 

bodily injury by protracted impairment of a bodily member when the 

victim was shot in the hip, hospitalized for a day and a half, could not 

walk for a month after the shooting, and had permanent scar tissue 

where the bullet entered and exited his body); see also Tucker v. State, 

No. 05-01-01899-CR, 2002 WL 32397713, at *1-2 (Tex. 

11 
App.-Dallas Oct. 30, 2002, no pet.) (not designated for publication) 

(holding that there was protracted impairment when the victim had a 

fractured jaw, was restricted to a liquid diet for three weeks, and had 

jaw pain for a month). 

Blea, 2015 Tex. App. LEXIS 1137 (Dissenting Opinion at 6). 

In contrast, the court in Villarreal found that there was no testimony that the 

fractured ribs in that case created a substantial risk of death and that the injury was 

not the type from which a trier of fact could infer a substantial risk of death from 

the Injury itself. See Villarreal v. State, 716 S.W2d 651 (Tex. 

App.-Corpus Christi 1986, no pet.). The court also held that evidence of the 

victim's inability to raise his arms for ten days and pain for two weeks caused by 

the pain of two fractured ribs, and the fractured ribs themselves, were insufficient 

to show "serious bodily injury." See Id. However, other courts have held 

otherwise based on the specific facts of their cases. The analysis is fact specific 

and must be conducted on a case-by-case basis. See Johnson v. State, 

No. 05-10-00465-CR, 2011 Tex. App. LEXIS 6208, at *12 (Tex. App.-Dallas 

201 1, no pet.) (not designated for publication) (the victim's inability to use her 

swollen eye for three weeks constituted protracted loss or impairment of that eye, 

despite being a shorter time than that found insufficient in Villarreal). 

Here, the Second Court of Appeals improperly resolved conflicts in 

witnesses' testimony against the jury's verdict. For example, the majority opinion 

noted contradicting testimony as to the changes in duties at the complainant's job 

12 
and whether those changes were related to her injuries; the court also noted 

inconsistent testimony by the complainant's mother as to how long it took before 

the complainant could walk. The majority found a lack of evidence as to the 

complainant being unable to control her oxygenation, and pointed out that although 

the complainant testified that she suffered a lacerated liver, no other evidence of 

such was presented (although there was evidence which allowed an inference of 

such). See Blea, 2015 Tex. App. LEXIS 1137 at * 8-12. But, it is the 

responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh 

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

(2 R.R. at 35, 45-46, 48, 108-11, 113-15). See Dewberry, 4 S.W.3d at 740; 

Hooper, 214 S.W.3d at 13. 

CONCLUSION 

A jury's verdict in evidentiary sufficiency issues are weighed in favor of 

affirming a judgment of conviction. See Winfrey v. State, 323 S.W.3d 875, 879 

(Tex. Crim. App. 2010). Settled principles aimed at preventing appellate courts 

from becoming a thirteenth juror include: considering the evidence, along with 

reasonable inferences from the evidence, in the light most favorable to the verdict; 

deferring to the factfinder's exclusive role to resolve conflicts in the evidence, and 

to judge the credibility of the witnesses; assessing incriminating evidence 

cumulatively rather than requiring each fact to directly support guilt; allowing for 

13 
circumstantial evidence alone to support a conviction; and recognizing that a 

factfinder is free to accept or reject any or all of the testimony of any witness (see 

Appendix A, Livingston's Dissent, citing Whatley v. State, 445 S.W.3d 159, 166 

(Tex. Crim. App. 2014); Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014); 

Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014); Hernandez v. State, 

161 S.W.3d 491, 500-01 (Tex. Crim. App. 2005). Here, the majority improperly 

acted as a thirteenth juror. 

In this case, a rational juror could have found the testimony sufficient to 

prove Appellee caused serious bodily injury to Justina, beyond a reasonable doubt. 

The testimony adduced at trial showed that Justina suffered a lacerated liver, which 

can cause bleeding and can result in death, and a lung injury (pneumothorax), 

which affects one's ability to breathe adequately (2 R.R. at 26, 60-67). Both of 

these injuries are treated seriously by medical personnel (2 R.R. at 64-67). Justina 

had difficulty breathing after the assault, but her lungs functioned normally after 

hospital staff inserted a chest tube (2 R.R. at 39, 43, 65, 67, 69, 97, 104-05, 107-08, 

110, 118, 126). Also, Justina suffered from two broken ribs, which required pain 

medications and breathing exercises to tolerate the pain and assist in healing 

(2 R.R. at 64, 69). 

14 
PRAYER FOR RELIEF 

For the reasons stated herein, the State prays this Court will reverse the 

judgment of the Second District Court of Appeals, find that the evidence is 

sufficient to uphold Appellee's conviction, and affirm the judgment of the trial 

court. 

Respectfully submitted, 

PAUL JOHNSON 

Criminal District Attorney 

Denton County, Texas 

CATHERINE LUFT 

Assistant Criminal District Attorney 

Chief, Appellate Division 

ANDREA R. SIMMONS 

Assistant Criminal District Attorney 

State Bar No. 24053478 

1450 East McKinney 

Denton, Texas 76209 

(940) 349-2600 

FAX (940) 349-2751 

andrea.simmons@dentoncounty.com 

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CERTIFICATE OF COMPLIANCE 

The State certifies that the State's Brief on Merits in the instant cause 

contains a word count of 3355, said count being generated by the computer 

program Microsoft Word that was used to prepare the document. 

La_ K- fuMmmo 

ANDREA R. SIMMONS 

CERTIFICATE OF SERVICE 

A true copy of the State's Brief on Merits has been sent by United States 

Mail, postage prepaid, to counsel for Appellee, Joseph Boswell, BOSWELL & 

MOORE, 1504 East McKinney Street, Suite 200, Denton, Texas 76209, on this, 

the 23rd day of July 2015 . 

~ .£ ffiVJ\~ ANDREA R. SIMMONS 

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