## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S
NO. PD-0157-20
ROBERT ERIC WADE, III, Appellant

v. THE STATE OF TEX AS ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS W ILLIAMSON COUNTY
K E L L E R , P.J., filed a dissenting opinion in w hich Y E A R Y , J., joined. Charged with aggravated assault by causing serious bodily i njury , Appellant sought subm ission of a lesser-included-of f ense instruction on assault with bodily injury

. T he Court holds t hat it was error to deny subm ission of the requested charge. But there was no f actual dispute in this case about what t he victim ’s injury a ctually was. That being s o, the question of whether the victim suf

f e red serious perm a nent disf igurem ent is a q

uestion of l aw, not of f act. Part o f the test f

or d eterm ining whether a def endant is entitled to a lesser-included-WADE DISSENT — 2

of f ense instruction is that there m ust b e evidence f

rom which a jury can rationally f ind the def endant guilty only of t he l esser-included of f ense. 1 T his r ationality r equirem e nt allows the roles of the court and jury

to be better understood. 2 The traditional way in which the roles of court and jury contrast is that the court decides t he law and t he jury decides the f acts. 3 The jury has som e leeway to draw conf licting inf erences f rom even undisputed f

acts, but that is only t rue when there are “two perm issible views of the evidence.” 4 “A lesser included of

f e nse instruction is only proper when the charged greater of f ense requires the jury to f

ind a disputed factual element which is not required f

or conviction in a lesser included of

f ense.” 5 In the context of reviewing the suf f i ciency of the evidence, we have said that the m eaning of

a statutory

elem ent of

a crim inal of

f e n se is an issue of

law, subject

1 Ortiz v. State , 623 S.W .3d 804, 806 (Tex

. Crim. Ap p . 2021); R o usseau v. State , 855 S.W

. 2d 666, 673 (Tex . Crim. App. 1993).

2 Rousseau , supra . 3 See T E X
. C O D E C R

I M
. P R O C
. art. 36.13 ( “Unless o therwise provided in this Code, the jury is the ex clusive judg e of the facts, but it is bound to receive the law from the court and be g overned thereby .”); Gonzalez v. State , 616 S.W .3d 585, 588 (Tex

. Crim. App. 2020) ( r e f e r r ing to jury ’s “ex clusive role as judg es o f the facts proved”); In re Allen , 4 62 S.W .3d 47, 51 ( T e x . C rim. App. 2015) (observing

that Art. 36.13 has been cited to support “the common n otion that a jury decides facts, and the court applies the law to the facts.”).

4 Evans v. State , 202 S.W

. 3d 158, 163 (Tex . Crim. App. 2006).

5 McKinney v. State , 615 S.W .2d 223, 224 (Tex

. Crim. App. 1981) ( e m p h as i s added) (rejecting c laim that lesser-included offen s e should have been submitted b ecause there was “no disputed factual element r aised by the evidence” that would have entitled the defendant to a criminal trespass instruction in a burg lary case).WADE DISSENT — 3

to de novo review. 6 And when deciding whether a def endant should r eceive an Article 38.23 jury instruction, we have exp l a i ned that an i nstruction was not required when there was no

m a terial f actual dispute in the case, but “only a dispute am o ng the witnesses with respect to the l egal signif

icance of what are, i n essence, undisputed f acts.” 7 Finally , in a recent case, we recognized that the legal m eaning of the word “operate” entitled the de f e n d a n t t o an instruction on necessity regardless o f h e r personal def inition of the word. 8 In t hat case, we held that although the def endant testif

ied that s he was not operating the v ehicle, t he f acts that she testif ied to satisf

ied the legal def

i nition of “operate.” 9 An injury constitutes “serious bodily injury ” i f i t, am ong other things, a m ounts to “serious perm anent d isf

igurem ent.” 10 There is no q uestion that t he injury to the v ictim ’s ear in t his case am ounts t o “disf igurem ent” a nd that this disf i gurem ent is “perm anent.” The only question is whether the perm anent disf igurem e nt is “serious.” It is undisputed that the victim ’s entire earlobe was am p utated by Appellant biting it of f

. The m edical testim ony

established this, the jury

had an opportunity to view the victim ,

6 Day v. State , 614 S.W .3d 121, 127 (Tex

. Crim. App. 2020) (“I n some cases, however, leg al s u f ficiency turns upon the meaning of the statute under which the defendant is being prosecut e d

. W e ask if certain conduct actually constitutes an o ffense under the s t at u t e . . . . Statutory interpretation is a question of law that we review de novo.”).

7 Robinson v. State , 377 S.W .3d 712, 720 (Tex . Crim. App. 2012).

8 Maciel v. State , 631 S.W .3d 720, 725 (Tex . Crim. App. 2021).

9 Id.

1 0 T E X
. P E

N A L C O D E § 1.07(a)(46).WADE DISSENT — 4

and t h e j u r y was a

ble t o v iew photos of the victim ’s ear, both bef ore and af

t er m edical
treatm ent. There was no d ispute about t he condi t i o n o f t h e victim ’s ear, bef ore or af ter
treatm ent. There were not even conf licting f actual inf e rences f or the jury to re solve. Appellant did testif

y that he thought the dam age to t he ear was n ot a n o t iceable or serious disf igurem ent, but that t estim ony created only a dispute am ong the witnesses with respect to the legal s ignif

icance of undisputed f

acts. A ppellant’s subjective i m pression of the injury was not a “shorthand rendition o f the f acts” that would c onstitute a lay opinion under R ule 701. 11
R a t h e r , it was a value j udgm ent about whether the dam age constituted a seriou s disf igurem ent. But the m eaning of the statutory term “serious perm anent disf

i gurem ent” is

a legal determ i nation that a court m ust m ake—f

irst the trial court, then a court of appeals, and ultim a tely , at som e point, this Court. 12

1 1 See Fairow v. State , 943 S.W .2d 895, 900 (Tex

. Crim. App. 1997) ( “ [ A] n opinion ma y not be helpful from a witness who is able to articulate his perceptions in g reat detail (thus increasing the likelihood that the jury could formulate its own opinion). I f the events a re difficult or impossible to describe, however, an opinion is likely to be helpful. Tex a s courts before and after promulg ation of Rule 701 have approving ly referred to such o pinion testimony a s a ‘shorthand rendition’ of the facts.”) (citations omitted).

1 2 Moreover, as the Court o b s e r v e s , disfig u rement must be measured a t the time of injury rather than after ameliorative medical treatment. See also Pruett v. State , 510 S.W .3d 9 25, 929 ( Tex

. Crim. A pp. 2017) ( “I n assessing the sufficiency of the e vidence to establish serious bodily injury , we analy z e the deg ree of risk posed by the injury as it was inflicted, not a fter the harm is ameliorated or ex acerbated by

other actions such as medical treatment.”); Blea v. State , 483 S.W

. 3d 29, 33-34 (Tex

. Crim. App. 2016) (discussing Brown v. State , 6 05 S.W .2d 572, 575 ( T ex . Crim. App. 1980), involving whether a broken and deformed nose c ould qualify as “serious p e rmanent disfig urement”). Appellant’s opinion about w h e t h e r t he victim’s injury was noticeable appears to have been based on observation of the victim after treatment. I need not address whether a factual d i s p u t e a b out a victim’s post-treatment condition could ever raise a factual d ispute about the v ictim’s p re-treatment condition because Appellant failed to raise a factual dispute about the victim’s condition before or after treatment.WADE DISSENT — 5

In t his case, I would hold as a m atter of law that the victim suf f ered s erious perm anent disf igurem ent. But even if I were not prepared to m ake such a hold i n g a t this juncture, Appellant’s lesser-included-of f ense claim would still f

ail. W hether the undisputed i njury that occurred here am ounted to serious perm anent disf igurem ent was a question of law that would be relevant to a suf

f iciency review. Appellant was f ree to, and in f

a ct d id, litigate the issue of whether the evidence was suf f icient to show that the victim suf f ered “serious” perm anent disf igurem ent. 13 W ithout a f actual dispute a b o u t t h e n ature or extent of the injury , a legal suf f iciency challenge w as his only available avenue f or relief

. The court of appeals rejected that challenge, 14 and that rejection is not at issue bef ore us. I respectf ully dissent. Filed: April 6, 2022 Publish

1 3 See W

ade v. State , 594 S.W .3d 804, 811 (Tex . App.—Austin 2020).

1 4 Id. at 813.