IN THE COURT OF CRIMINALAPPEALS OFTEXAS THE STATE OF TEXAS, APPELLANT 

### § § § § § § § 

### v. JUAN BLEA APPELLEE No. PD-0245-15

STATE'S BRIEF ON THE MERITS FROMTHE SECOND DISTRICT OF TEXAS ATFORTWORTH IN CAUSENUMBER02-13-00221-CR AND FROMTHE 362No JUDICIAL DISTRICT COURT, THE HONORABLE BRUCE MCFARLING, JUDGE, PRESIDING; THE HONORABLE SHERRY SHIPMANFROM THE 16TH JUDICIAL DISTRICT COURT, AS SITTING JUDGE DENTON COUNTY, TEXAS IN CAUSENUMBERF-2011-0993-D PAULJOHNSON Criminal District Attorney Denton County, Texas CATHERINE LUFT Assistant Criminal DistrictAttorney Chief, Appellate Division ANDREA R. SIMMONS Assistant Criminal DistrictAttorney State BarNo. 24053478 1450EastMcKinney 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 CLERKIDENTITY 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 DistrictAttorney State BarNo. 24053478 1450 EastMcKinney Denton,Texas 76209 (940) 349-2600 FAX (940) 349-2751 andrea.simmons@dentoncounty.com APPELLATE COUNSEL MICHAEL GRAVES DUSTIN GOSSAGE Assistant Criminal DistrictAttorneys TRIAL COUNSEL Appellee
.......................................................JUANBLEA

11 JOSEPH BOSWELL 1504 EastMcKinney Street Suite 200 Denton,Texas 76209 APPELLATE COUNSEL DENVERMcCARTY 1512 EastMcKinney Street Suite 200 Denton, Texas 76209 TRIAL COUNSELINDEX OFAUTHORITIES 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 Barrerav. State 820 S.W.2d 194 (Tex. App.-Corpus Christi 1991,pet. refd)
......................... 8, 9 Bleav. State No. 02-13-00221-CR, 2015 Tex. App. LEXIS 1137 at *13-14 (Tex. App.-FortWorthFeb. 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 Dewberryv. 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

IVJohnson 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 Lasterv. 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. refd)
...................................6 Patterson v. State 

### No. 11-06

-00209-CR, 2008 Tex. App. LEXIS 1525, at *8 (Tex. App.-Eastland2008,pet. refd) (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 Si zemore 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

vWhatley 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.-Texarkana2004, pet. refd)
.................................... 8 Winfrey v. State

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

VlTABLE OF CONTENTS IDENTITY OF PAR TIES AND COUNSEL
............................................................ii INDEX OF AUTHORITIES
................................................................................iv-vi STATEMENT OF THE CASE
................................................................................. 1 STATEMENTREGARDING ORAL ARGUMENT
...............................................2 ISSUE PRESENTED
................................................................................................2 STATEMENT OF FACTS
........................................................................................ 2 SUMMARY OF THE ARGUMENT
........................................................................ 4 ARGUMENTS
..........................................................................................................4 Appliedproperly, the settledprinciples ofan evidentiary sufficiency analysis preventthe appellate courts from becoming athirteenthjuror
.............................................................................4 Bodily injury versus serious bodily injury
...................................................... 5 The facts ofthis case, as supported by the evidence, are sufficientto supportthejury's finding thatthe complainant suffered serious bodily injury
......................................................................... 6 1. A substantial risk ofdeath
.................................................................... 6 2. Protracted loss orimpairment ofthe function of any bodily memberororgan............................................................... 10 CONCLUSION
....................................................................................................... 13 PRAYERFORRELIEF
.......................................................................................... 15 CERTIFICATE OF COMPLIANCE
...................................................................... 16 CERTIFICATE OF SERVICE
................................................................................ 16

111IN THE COURT OF CRIMINALAPPEALS OFTEXAS THE STATE OF TEXAS, APPELLANT



### v. JUAN BLEA, APPELLEE 

### § § § § § § § STATE'SBRIEF ON THE MERITSNo. PD-0245-15

TOTHE HONORABLE COURT OF CRIMINALAPPEALS: 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 CourtofAppeals be reversed. STATEMENT OFTHE 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 ofAppeals 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 ofa family member through the use ofa 1deadly weapon and (2) conduct a new trial on punishment. Justice Livingston filed
a dissenting opinion
. This Court granted the State's Petition for DiscretionaryReview. 

### STATEMENTREGARDING ORALARGUMENT 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 whetherthe Court ofAppeals erred
. 

### ISSUE PRESENTED Did the Second Court ofAppeals improperly apply the standard for reviewing the sufficiency of the evidence in analyzing whether the complainant suffered serious bodily injury? 

### STATEMENT OFFACTS 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 butwas living with a friend atthe time (2 R.R. at 22-23). Appellee stopped by his parent's home to visit butquickly 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). 2had 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 Justinaputthe 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 

### 38). 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 latertransported 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).

3Justina 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 chesttube inserted atthe 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 OFTHEARGUMENT The evidence was legally sufficient to support that the complainant suffered serious bodily injury. The Second Court of Appeals improperly acted as a thirteenthjuror by determining that the evidence was insufficient in light of the overwhelming evidence ofthe complainant's injuries and the seriousness of said injuriespriorto the effects having been ameliorated by medical treatment. ARGUMENTS Applied properly, the settled principles ofan evidentiary sufficiency analysis prevent the appellate courts from becoming a thirteenthjuror. In assessing the legal sufficiency ofthe evidence under

### Jackson v. Virginia,
a reviewing court "consider[s] all ofthe 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. 4App. 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 ofthe 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 versusserious bodily injury. "Bodily injury" means physical pain, illness, or any impairment ofphysical condition. Tex. Penal Code Ann. § l.07(a)(8) (West 2013). "Serious bodily injury" means bodily injury that creates a substantial risk ofdeath 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
5injury" 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 ofthis case, as supported by the evidence, are sufficient to support thejury'sfinding thatthe complainantsuffered serious bodily injury. 1. 

### A substantial riskofdeath. Justinatestified that her written statement, taken after the assault but priorto being transported to the hospital, indicated that she was in "aton ofpain" 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 ofpain 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).

6Nurse Practitioner Kristie Brown, employed at Parkland Memorial Hospital, testified that she came into contact with Justina on July 22, 20I0, 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 ofour ' 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 explainedthe following relating to the liver: "Injuriesto the liver can cause a patientto bleedto 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 clotto the liver makes a decision point for what the surgeons do and what we do for the patient" (2 R.R. at 66). Staffobserved 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 ofobservation (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 understandingthe diagnosis ofa pneumothorax, Nurse

7Browntestified 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 apneumothorax. Most ofthe time, the lungs should be expanded in our chest and touching the sides ofthe box, but when the lung collapses, it'sjust 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 Justinawas 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 ajury 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 ofthe 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. refd); 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 ofdeath). As Justice Livingston stated in her dissenting opinion in this case: [T]hejury could have reasonably inferred that ifthe 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. refd) (not designated for publication) (concluding that testimony that the victim had trouble breathing and received treatment for a pneumothorax that ifleft 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 'seriousbodily 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 thejuryto find that without treatment, the complainant faced a substantial risk ofdeath. See Tex. Penal Code Ann. §

### l.07(a)(46). Blea, 2015 Tex. App. LEXIS 1137 (Dissenting Opinion at 4-5).

9Thus, 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 ororgan. 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 ofthe use ofa 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 ifit existed (2 R.R
. at 47-48, 51). It should also be noted that Justina married Appellee after the assault and priorto trial and did not wish to testify against Appellee (2 R.R.at 47)
. 10according to Justina's mother, Jennifer Fassett, Justina moved in with her after being discharged from the hospital andjust "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 herselfeven 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 ofher body. 

### See Tex. Penal Code Ann. §1.07(a)(46). In fact, Justice Livingston stated in her dissenting opinionthat: 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 ofthe function ofa 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 ofa 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.

11App.-Dallas Oct. 30, 2002, no pet.) (not designated for publication) (holding that there was protracted impairment when the victim had a fracturedjaw, was restricted to a liquid diet for three weeks, and had jawpainfor 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 ofdeath and that the injury was not the type from which a trier offact could infer a substantial risk ofdeath 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 oftwo 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 oftheir 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 ofthat eye, despite being a shortertime than that found insufficient in 

### Villarreal). Here, the Second Court of Appeals improperly resolved conflicts in witnesses' testimony against thejury's verdict. For example, the majority opinion noted contradicting testimony as to the changes in duties at the complainant'sjob 12and 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 outthat 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 ofthe trier offact 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 ajudgment ofconviction. 

### 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
13circumstantial evidence alone to support a conviction; and recognizing that a factfinder is free to accept or reject any or all ofthe testimony ofany 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 athirteenthjuror. 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 attrial showedthat 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 staffinserted a chesttube (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).

14PRAYER FORRELIEF 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 DistrictAttorney Denton County,Texas CATHERINE LUFT Assistant Criminal DistrictAttorney Chief ,Appellate Division

ANDREA R. SIMMONS Assistant Criminal DistrictAttorney State BarNo. 24053478 1450 EastMcKinney Denton,Texas 76209 (940) 349-2600 FAX (940) 349-2751 andrea.simmons@dentoncounty.com

15CERTIFICATE 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 programMicrosoft Wordthat was usedto preparethe document.

# La_ 

# K- fuMmmo ANDREA R. SIMMONS

CERTIFICATE OF SERVICE A true copy ofthe State's Briefon 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 ofJuly 2015
.

# ~ 

# .£**ffiVJ\~** ANDREA R. SIMMONS

16