IN THE 

COURT OF CRIMINAL APPEALS OF TEXAS 

AUSTIN, TEXAS 

JUAN BLEA, § 

 Appellant § 

v. § No. PD-0245-15

THE STATE OF TEXAS, § 

 Appellee § 

 

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW 

AND CROSS PETITION FOR DISCRETIONARY REVIEW 

 

FROM THE DECISION OF THE COURT OF APPEALS FOR THE SECOND 

APPELLATE DISTRICT OF TEXAS, FORT WORTH, IN CAUSE NUMBER 

02-13-00221-CR, JUAN BLEA V. THE STATE OF TEXAS, AND 

FROM THE 362ND JUDICIAL DISTRICT COURT, DENTON COUNTY, TEXAS, THE 

HONORABLE BRUCE MCFARLING, JUDGE PRESIDING, AND, AS SITTING 

JUDGE, THE HONORABLE SHERRY SHIPMAN FROM THE 16TH JUDICIAL 

DISTRICT COURT, DENTON COUNTY, TEXAS. 

DAWN A. MOORE 

Texas State Bar No. 00788072 

BOSWELL & MOORE, P.C. 

1504 EAST MCKINNEY STREET, 

SUITE 200 

DENTON, TEXAS 76209 

(940) 382-4711 

 (940) 349-9922 (FAX) 

 dawn@boswellandmoore.com 

PD-0245-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/16/2015 3:43:13 PM

Accepted 4/21/2015 11:26:39 AM

ABEL ACOSTA

CLERK
i

IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of the parties and persons interested in 

the outcome of this cause: 

(A) Juan Blea, Appellant

11700 Lebanon Drive, Apt. 1111

Frisco, Texas 75035

(B) Denver McCarty and Leah Harbour, counsel for Appellant at trial

1512 East McKinney Street, Suite 200

Denton, Texas 76209

(C) Dawn A. Moore, counsel for Appellant on appeal

1504 East McKinney Street, Suite 200

Denton, Texas 76209

(D) The State of Texas, by and through Paul Johnson, Denton County 

Criminal District Attorney; and Catherine Luft, Andrea Simmons, Dustin 

Gossage, and Michael Graves, Assistant Criminal District Attorneys

1450 East McKinney

Denton, Texas 76209

(E) Lisa C. McMinn, State Prosecuting Attorney

209 West 14th Street, Suite 203

P.O. Box 13046

Austin, Texas 78711-3046
ii

(F) Honorable Bruce McFarling, Presiding Judge for the 362nd Court

Denton County Courts Building

1450 East McKinney Street, 3rd Floor

Denton, Texas 76209-4524

(G) Honorable Sherry Shipman, as Sitting Judge for the 362nd Court

Denton County Courts Building

1450 East McKinney Street, 3rd Floor

Denton, Texas 76209-4524
iii

TABLE OF CONTENTS

PAGE

IDENTITY OF PARTIES AND COUNSEL ............................................................................ i-ii

INDEX OF AUTHORITIES......................................................................................................iv-v

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

STATEMENT OF THE CASE....................................................................................................... 2

STATEMENT OF PROCEDURAL HISTORY.......................................................................... 3

QUESTION PRESENTED FOR REVIEW ................................................................................ 3

Did the Court of Appeals perform the complete and proper 

analysis necessary to reach a conclusion on the legal sufficiency of 

whether Appellant’s hand had more than merely a hypothetical 

capability of causing death or serious bodily injury in the manner 

of its use or intended use in this assault, such that it constituted a 

deadly weapon?

ARGUMENT ..................................................................................................................................... 4

Evidence Recited in the Court’s Opinion ...................................................................... 4

Recited Analysis/Conclusion in the Court’s Opinion .............................................. 5

Relevant Law and Applicable Factors............................................................................ 5

Missing Analysis in the Court’s Opinion ....................................................................... 7

Conclusion ................................................................................................................................. 9

PRAYER...........................................................................................................................................10

CERTIFICATE OF COMPLIANCE ...........................................................................................10

CERTIFICATE OF SERVICE......................................................................................................11

APPENDIX

Blea v. State, 2015 WL 510954, at *1 (Tex. App.—Fort Worth 2015, 

pet. filed)
iv

INDEX OF AUTHORITIES

Statutes, Codes, And Rules Page

Tex. Penal Code § 1.07(17)(B)................................................................................................5

Cases

Bailey v. State

46 S.W.3d 487 (Tex. App.—Corpus Christi 2001, pet. ref’d).................................6

Baltazar v. State

331 S.W.3d 6 (Tex. App.—Amarillo 2010, pet. ref’d)...............................................5

Blea v. State

2015 WL 510954 (Tex. App.—Fort Worth 2015, pet. filed).................................3

Brown v. State

716 S.W.2d 939 (Tex. Crim. App. 1986).........................................................................6

Dominique v. State

598 S.W.2d 285 (Tex. Crim. App. 1980).........................................................................6

Drichas v. State

175 S.W.3d 795 (Tex. Crim. App. 2005).........................................................................5

Hill v. State

913 S.W.2d 581 (Tex. Crim. App. 1996).........................................................................7

Jefferson v. State

974 S.W.2d 887 (Tex. App.—Austin 1998, no pet.)...................................................7

Johnston v. State

115 S.W.3d 761 (Tex. App.—Austin 2003), 

aff’d, 145 S.W.3d 215 (Tex. Crim. App. 2004)..............................................................7

Judd v. State

923 S.W.2d 135, 14 (Tex. App.—Fort Worth 1996, pet. ref’d).............................6
v

Kennedy v. State

402 S.W.3d 796 (Tex. App.—Fort Worth 2013, no pet. h.)....................................6

Lozano v. State

860 S.W.2d 152 (Tex. App.—Austin 1993, pet. ref’d)..............................................6

Romero v. State

331 S.W.3d 82 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d)......................6

Slaton v. State

685 S.W.2d 773 (Tex. App.—Houston [1st Dist.] 1985, pet. ref’d)......................6

Williams v. State

235 S.W.3d 742 (Tex. Crim. App. 2007).........................................................................9
1

IN THE 

COURT OF CRIMINAL APPEALS OF TEXAS

AUSTIN, TEXAS

JUAN BLEA, §

Appellant §

v. § No. PD-0245-15

THE STATE OF TEXAS, §

Appellee §

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW 

AND CROSS PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW JUAN BLEA, hereinafter referred to as Appellant, by and 

through his attorney of record, DAWN A. MOORE, and pursuant to Rule 68 of 

the Texas Rules of Appellate Procedure, files this PETITON FOR 

DISCRETIONARY REVIEW AND CROSS PETITION FOR DISCRETIONARY 

REVIEW and, for such Petition, would show this Court as follows.
2

STATEMENT REGARDING ORAL ARGUMENT

The State did not request oral argument in its Petition for Discretionary 

Review. The issue presented in this Petition/Cross Petition for Review is not a 

novel one. Appellant concurs that this Court can resolve either or both 

Petitions without oral argument and does not request argument barring a 

determination by this Court that argument would be helpful.

STATEMENT OF THE CASE

Appellant was convicted of the first-degree felony of Aggravated Assault 

of a Family Member. The jury assessed his punishment at five years 

confinement. On appeal Appellant challenged the legal sufficiency of evidence 

regarding both the element of serious bodily injury and the element of use of a 

deadly weapon. Holding that the evidence was insufficient to show that 

Appellant caused serious bodily injury, but sufficient to show that he used his 

hand as a deadly weapon, the Second Court of Appeals reversed and 

remanded with instructions to (1) modify the judgment to reflect a 

conviction for the lesser-included second-degree felony aggravated assault 

and (2) conduct a new trial on punishment for the second-degree felony. This 

Petition seeks review of the portion of the opinion overruling Appellant’s 

challenge to the legal sufficiency of the deadly weapon element of this offense.
3

STATEMENT OF PROCEDURAL HISTORY

The Second Court of Appeals issued its opinion reversing and 

remanding for modification as well as a new punishment trial on a 

lesser-included offense on February 5, 2015. Blea v. State, 2015 WL 510954, 

at *1 (Tex. App.—Fort Worth 2015, pet. filed) (Appendix). Chief Justice 

Livingston issued a dissenting opinion. No motion for rehearing was filed by 

either party. The due date to file a Petition for Discretionary Review in this 

cause was March 6, 2015. The State filed its Petition for Discretionary Review 

on March 13, 2015. Appellant filed his First Motion to Extend the Time for 

Filing the Appellant’s Petition for Discretionary Review on March 19, 2015. This 

Court granted Appellant’s requested extension and ordered his Petition timely 

filed on or before April 22, 2015.

QUESTION PRESENTED FOR REVIEW

Did the Court of Appeals perform the complete and proper analysis 

necessary to reach a conclusion on the legal sufficiency of whether Appellant’s 

hand had more than merely a hypothetical capability of causing death or 

serious bodily injury in the manner of its use or intended use in this assault,

such that it constituted a deadly weapon?
4

ARGUMENT

The Second Court of Appeals devoted only two paragraphs of its 

sixteen-page opinion to addressing the deadly weapon “portion” of 

Appellant’s legal sufficiency challenge. Blea v. State, 2015 WL 510954, at *5-6

(Appendix). In undertaking its analysis, it seems the Court of Appeals 

overlooked fully considering all of the necessary factors essential to 

conducting a proper legal sufficiency review of whether Appellant’s hand was,

in the manner of its use or intended use, a deadly weapon. Appellant contends 

that a complete evaluation of those factors would have led the Court to 

correctly conclude that there was legally insufficient evidence to support 

anything beyond the “hypothetical capability” that Appellant’s hand could 

cause death or serious bodily injury. 

Evidence Recited In The Court’s Opinion

In its Opinion the Second Court of Appeals recited “testimony touching

on whether Appellant’s hand was a deadly weapon in the manner of its use or 

intended use”. Blea v. State, 2015 WL 510954, at *5 (Appendix). That recited 

evidence consisted of (1) the fact that “The complainant testified that after 

Appellant struck her with his hand, knocking her down, he said that he was 

going to kill her” (Blea v. State, 2015 WL 510954, at *5 (Appendix)) and (2) 

generic testimony by the responding police officer on direct examination 
5

agreeing with the prosecutor that “a person’s hand” can be a deadly weapon

and that “someone’s hands” are capable of causing death or serious bodily 

injury. Blea v. State, 2015 WL 510954, at *5-6 (Appendix).

Recited Analysis/Conclusion In The Court’s Opinion

After recounting the above testimony, and without any specific analysis 

of all the commonly considered factors set forth in relevant case law, the Court 

of Appeals summarily concluded:

“Appellant’s statement to the complainant that he was going to kill 

her was some evidence of his intent to use his hand as a deadly 

weapon. Officer Adamo’s testimony was evidence that would 

allow a rational trier of fact to conclude beyond a reasonable 

doubt that, in the manner of its intended use, Appellant’s hand 

was capable of causing death or serious bodily injury.” 

Blea v. State, 2015 WL 510954, at *5-6 (Appendix).

Relevant Law And Applicable Factors

The Texas Penal Code defines the term “deadly weapon” to include 

“anything that in the manner of its use or intended use is capable of causing 

death or serious bodily injury.” Tex. Penal Code § 1.07(17)(B); Drichas v. State, 

175 S.W.3d 795, 798 (Tex. Crim. App. 2005); Baltazar v. State, 

331 S.W.3d 6 (Tex. App.—Amarillo 2010, pet. ref’d). Under this definition, 

“[o]bjects that are not usually considered dangerous weapons may become so, 

depending on the manner in which they are used during the commission of an 
6

offense.” Drichas, 175 S.W.3d at 798. A person’s hands are not deadly weapons 

per se and can only become such depending on the manner in which they were 

used and the evidence shown. Judd v. State, 923 S.W.2d 135, 140 (Tex. App.—

Fort Worth 1996, pet. ref’d); Slaton v. State, 685 S.W.2d 773, 

775-76 (Tex. App.—Houston [1st Dist.] 1985, pet. ref’d) (holding that while 

hands could be used as deadly weapon, pushing a person over a rail with 

hands did not make hands deadly weapon). 

Several nonexclusive factors to be considered in determining whether 

an object is capable of causing death or serious bodily injury are (1) physical 

proximity between the victim and the object, (2) the threats or words used by 

the defendant, (3) the size and shape of the weapon, (4) the weapon’s ability 

to inflict death or serious injury, (5) the manner in which the defendant used 

the weapon, and (6) the nature of the wounds inflicted. Dominique v. State, 

598 S.W.2d 285, 286 (Tex. Crim. App. 1980); Kennedy v. State, 402 S.W.3d 

796, 802 (Tex. App.—Fort Worth 2013, no pet. h.); Romero v. State, 331 

S.W.3d 82, 83 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d); Bailey v. State, 

46 S.W.3d 487, 491–92 (Tex. App.—Corpus Christi 2001, pet. ref’d); Lozano v. 

State, 860 S.W.2d 152, 156 (Tex. App.—Austin 1993, pet. ref’d). No one factor 

is determinative, and each case must be examined on its own facts. Brown v. 

State, 716 S.W.2d 939, 946–47 (Tex. Crim. App. 1986).
7

Moreover, while it is true that the State need not prove that the 

complainant actually sustained serious bodily injury for Appellant’s hand to 

be a deadly weapon, it must prove that his hand was capable of causing 

serious bodily injury in the way in which it was used or intended to be used. 

Jefferson v. State, 974 S.W.2d 887, 892 (Tex. App.—Austin 1998, no pet.); Hill v. 

State, 913 S.W.2d 581, 584 (Tex. Crim. App. 1996). The State is required to 

show that the object at issue had more than a hypothetical capability of 

causing death or serious bodily injury. See Johnston v. State, 115 S.W.3d 761, 

764 (Tex. App.—Austin 2003), aff’d, 145 S.W.3d 215 (Tex. Crim. App. 2004)

(when the State offered no evidence that the appellant intended to use the 

cigarette in any other manner that would have been capable of causing 

serious bodily injury, the mere fact that appellant could have caused serious 

bodily injury if he had used, or intended to use, the cigarette in a way other 

than he actually did was not supportive of a deadly weapon finding).

Missing Analysis In The Court’s Opinion

Here, the Second Court of Appeals did not fully review or address the

above-referenced factors that have been typically considered in appellate 

evaluations of whether an object, in the manner of its use or intended use, is 

capable of causing death or serious bodily injury. 
8

The Court did not analyze or consider the complete absence of evidence 

addressing the size of the relative parties (or of Appellant’s hand).

The Court did not analyze or consider the complete absence of evidence 

as to whether Appellant’s hand had the ability to inflict death or serious injury. 

There was also no evidence that Appellant possessed any “special” fighting 

abilities, skills, or training that could make his “hand” dangerous.

The Court did not analyze or consider how (i.e., the manner in which) 

Appellant actually used his hand. The Court found that the evidence supported 

a reasonable jury concluding that he “struck her with his hand, knocking her 

down,” but this evidence, alone, does not support Appellant’s actual use of his 

hand in a manner consistent with its being a deadly weapon. 

The Court did not analyze or consider the nature of the wounds inflicted

in this specific portion of the legal sufficiency evaluation either. It neglected to 

specifically consider this fact, despite the Court’s having just found legally 

insufficient evidence to support that those injuries sustained actually 

constituted serious bodily injury. 

The Court also did not analyze the physical proximity between the 

victim and the object.

The Court did recite specific evidence of one factor: the testimony 

concerning the threats or words used by the Appellant. However, even then,
9

the Court recounts this evidence in a perfunctory manner, failing to actually 

analyze that lone verbal threat, or evaluate it within the context under which 

it was made – considering all of the surrounding circumstances occurring 

immediately before, during, and after the assault.

Conclusion

This Court is well aware of the standard of review when reviewing 

sufficiency of the evidence. Part of that review includes ensuring that the 

evidence presented actually supports a conclusion that the defendant 

committed the crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. 

App. 2007). The Court erred by neglecting to conduct a proper, thorough 

analysis of the evidence or lack thereof. If it had conducted a full evaluation of 

all of the relevant factors under the proper standard of review, Appellant 

asserts that the Second Court would have concluded that the evidence was not 

legally sufficient to support that Appellant used a deadly weapon in the course 

of committing this assault. As a result of that conclusion the Court would have 

reversed and reformed Appellant’s conviction to reflect that he committed a

misdemeanor assault family violence and would have remanded for a 

punishment hearing on that lesser-included offense. 
10

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant prays this Court will 

grant review of Appellant’s Petition for Discretionary Review or grant review 

of his Cross-Petition, in the event that this Court grants the State’s Petition for 

Discretionary Review, and order a full briefing on this issue(s).

Respectfully submitted,

/s/ Dawn A. Moore

DAWN A. MOORE

BOSWELL & MOORE, P.C.

1504 EAST MCKINNEY STREET

SUITE 200

DENTON, TEXAS 76209

(940) 382-4711

(940) 349-9922 (FAX)

ATTORNEY FOR APPELLANT

CERTIFICATE OF COMPLIANCE

I hereby certify that the word count in the foregoing Brief is 1399,

having been calculated using Microsoft Word, the program used in the 

preparation of this Brief.

/s/ Dawn A. Moore

DAWN A. MOORE
11

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing Petition has been 

served on Catherine Luft, Attorney for Appellee, 1450 East McKinney Street, 

Denton, Texas 76209, and Lisa McMinn, State Prosecuting Attorney, 

209 West 14th Street, Suite 203, P.O. Box 13046, Austin, Texas 78711-3046, by 

electronic service on this, the 16th day of April 2015.

/s/ Dawn A. Moore 

DAWN A. MOORE
APPENDIX

Blea v. State, 2015 WL 510954, at *1 

(Tex. App.—Fort Worth 2015, pet. filed)
Blea v. State, Not Reported in S.W.3d (2015)

2015 WL 510954

© 2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 WL 510954

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR DESIGNATION 

AND SIGNING OF OPINIONS.

MEMORANDUM OPINION

DO NOT PUBLISH TEX. R. APP. P. 47.2(B)

Court of Appeals of Texas,

Fort Worth.

Juan Blea, Appellant

v.

The State of Texas, State

NO. 02–13–00221–CR | DELIVERED: February 5, 

2015

FROM THE 362ND DISTRICT COURT OF DENTON 

COUNTY, TRIAL COURT NO. F–2011–0993–D

Attorneys and Law Firms

Dawn A. Moore, Boswell & Moore, P.C., Denton, TX, 

for Appellant.

Paul Johnson, Criminal District Attorney; Catherine Luft, 

Chief of the Appellate Section; Andrea R. Simmons, 

Michael Graves, Dustin Gossage, Assistant Criminal 

District Attorneys for Denton County, Denton, TX, for 

State.

PANEL: LIVINGSTON, C.J.; DAUPHINOT and 

GABRIEL, JJ.

MEMORANDUM OPINION1

LEE ANN DAUPHINOT, JUSTICE

*1 A jury convicted Appellant Juan Blea of first-degree 

felony aggravated assault of a family member.2 The jury 

assessed his punishment at five years’ confinement, and 

the trial court sentenced him accordingly. That offense

requires both serious bodily injury and the use of a deadly 

weapon.3In this case, the indictment alleged that 

Appellant’s hand was a deadly weapon. Appellant brings 

a single issue on appeal, challenging the sufficiency of the 

evidence that he caused the complainant serious bodily 

injury rather than bodily injury as well as the sufficiency 

of the evidence that he used his hand as a deadly weapon. 

Because the evidence is insufficient to show that 

Appellant caused serious bodily injury but sufficient to 

show that he used his hand as a deadly weapon, we 

reverse the trial court’s judgment and remand this case to 

the trial court with instructions (1) to modify the 

judgment to delete the conviction for first-degree felony 

aggravated assault of a family member and to instead 

reflect a conviction for second-degree felony aggravated 

assault of a family member, based on Appellant’s use of a 

deadly weapon, and (2) to conduct a new trial on 

punishment for the second-degree felony.4

Brief Summary of the Facts

On the date of the offense, July 21, 2010, the complainant 

and Appellant had a small daughter and shared a bedroom 

in his parents’ apartment. While Appellant and 

complainant were not married, they did marry about two 

years later.

A couple of weeks before the assault, Appellant had 

separated from the complainant and moved in with a 

friend. On July 20, the complainant spent time with a 

male friend from school. At trial, she did not remember 

whether she returned home late that night or the next 

morning. Appellant visited the apartment that the 

complainant shared with his parents between 10:00 a.m. 

and noon on July 21 and was in a good mood. But he saw 

a hickey on the complainant’s neck, and when she refused 

to tell him “where it was from,” he became angry. When 

she finally told him “who [the hickey] was from,” he hit 

her in the face with his hand. They were in the kitchen. At 

trial, she did not remember whether his hand was open or 

in a fist. In her testimony, the complainant denied falling, 

but in her written statement, she had said that she had 

fallen. She admitted in her testimony that in her written 

statement, she had said that Appellant had told her that he 

was going to kill her.

The complainant testified that Appellant hit her only 

once. When the prosecutor suggested that Appellant had 

continued to hit her and had asked where their daughter 

was, the complainant corrected him, stating, “[A]fter he 

first hit me, she started getting fussy. I told him to leave 

me alone and I wanted to put her asleep (sic) because I 

didn’t want her around all this and us fighting.”

After the complainant gave their daughter a bottle and put 

her to bed in the bedroom, the couple began fighting 

again in the living room. Appellant hit her in the side. She 

testified that he hit her more than once and used both his 

fist and his open hand. She said that he might have kicked 

her with his foot and also testified that she had been in a 

lot of pain after the assault. The prosecutor reminded her 

that in her written statement, she had said that she was in 

a “ton” of pain. The pain was in her back and her chest. 

The prosecutor asked, “Did you feel like something had 
Blea v. State, Not Reported in S.W.3d (2015)

2015 WL 510954

© 2015 Thomson Reuters. No claim to original U.S. Government Works.

been broken or terribly injured as a result of this?” The 

complainant responded, “Yes.”

*2 The child woke up, so Appellant stopped hitting the 

complainant, and she told him that either he or she needed 

to go buy diapers. Appellant left the apartment and 

returned with the diapers. The complainant did not call 

the police while he was gone. When the prosecutor asked 

her why, she responded, “Because I didn’t want to.” She 

said that she had been scared and had not known how 

Appellant would act, and she had not wanted anyone to 

know what had happened. When Appellant returned, he 

and the complainant argued verbally. The prosecutor 

asked her whether it was evident that she was in pain. She 

testified that the pain had not set in yet and that she did 

not tell Appellant that she was in pain.

After Appellant left, the complainant lay down with their 

daughter, took a bath, cleaned up, and then called 

Appellant’s parents and asked them to come home from 

work, stating that she had fallen down the stairs. After 

Appellant’s parents saw her, his father called the police.

Officer Tim Adamo, who had been a police officer for 

twenty-three years by the time of trial, called for an 

ambulance after he arrived at the apartment. He described 

the complainant’s injuries:

The first time I contacted her, she had visible injuries. I 

could see scrapes, lacerations on her face. She had 

her—under her left eye was bruised and had a cut on it. 

I saw a mark on her arm, as well, like a redness and 

early set of bruising.

....

She was on the couch in the front room.

....

... [. S]he was in quite a bit of pain. She was, like, with 

one arm holding her ribs, her chest, her stomach area.

....

.... She said she had a hard time breathing, had a lot of 

pain.

....

.... I was trying to get a statement from her, an affidavit, 

but she had a lot of difficulty writing the statement.

She tried to get up from the couch at one point and she 

fell back to the couch in pain and that’s when I called 

for a medic.

Sufficiency of the Evidence

Appellant contends that the evidence is insufficient to 

show that (1) he caused serious bodily injury and (2) his 

hand was used as a deadly weapon. In our due-process 

review of the sufficiency of the evidence to support a 

conviction, we view all of the evidence in the light most 

favorable to the verdict to determine whether any rational 

trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.5 Section 22.02 of the 

penal code provides,

(a) A person commits an offense if the person commits 

assault as defined in § 22.01 and the person:

(1) causes serious bodily injury to another, including 

the person’s spouse; or

(2) uses or exhibits a deadly weapon during the 

commission of the assault.

(b) An offense under this section is a felony of the 

second degree, except that the offense is a felony of the 

first degree if:

(1) the actor uses a deadly weapon during the 

commission of the assault and causes serious bodily 

injury to a person whose relationship to or association 

with the defendant is described by Section 71.0021(b), 

71.003, or 71.005, Family Code[.]6

Section 22.01 provides,

(a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes 

bodily injury to another ...;

(b) An offense under Subsection (a)(1) is a Class A 

misdemeanor ...7

“Bodily injury” is defined as “physical pain, illness or any 

impairment of physical condition.”8“Serious bodily 

injury” is defined as “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.”9 The Texas Court of Criminal Appeals has 

explained that

*3 [b]y virtue of the fact that the 

Penal Code provides a different 

definition for “bodily injury” from 

“serious bodily injury”, though 

often a matter of degree, we must 

presume that the Legislature 

intended that there be a meaningful 
Blea v. State, Not Reported in S.W.3d (2015)

2015 WL 510954

© 2015 Thomson Reuters. No claim to original U.S. Government Works.

difference or distinction between 

“bodily injury” and “serious bodily 

injury.” Understandably, this 

means that where the issue is 

raised, the issue must be 

determined on an ad hoc basis.10

And our sister court in El Paso has explained that

bodily injury cannot be elevated to 

serious bodily injury by postulating 

potential complications which are 

not in evidence. The [S]tate must 

present evidence that the 

[complainant] suffered bodily 

injury that created a substantial risk 

of death. In other words, the [S]tate 

must present relevant and probative 

evidence from which the trier of 

fact could infer beyond a 

reasonable doubt that the injury 

itself created an appreciable risk of 

death.11

The complainant’s mother, Jennifer, saw her in the 

hospital. Jennifer testified that she noticed only the 

bruising and redness of her daughter’s right eye. At trial, 

Jennifer did not remember whether her daughter had had 

any trouble breathing. Jennifer did take photographs of 

the complainant over a period of time, and the 

photographs revealed developing bruising over her face 

and body. Although Jennifer testified on direct 

examination that the complainant was unable to walk in 

the hospital and for a month afterward, on crossexamination, she admitted that the complainant could 

stand and walk even while still in the hospital.

The complainant did not work at her waitressing job for a 

month after the assault. When she returned, she switched 

from waitressing to acting as hostess. Jennifer testified 

that the job change occurred because the doctor had told 

the complainant not to lift more than twenty-five pounds. 

The complainant, however, testified,

Q Did you resume your duties as a waitress?

A I decided to be a host.

Q Why is that?

A Just so I didn’t have to deal with a lot of people. I 

didn’t want to go back to doing waitressing just yet.

Q Because you didn’t want to interact with people?

A That, and everybody at Champps kind of knew 

what happened, kind of the regulars. That was just 

kind of my way of avoiding everybody.

She also testified,

Q You don’t really want to be here, do you?

A No.

Q Now, when you were taken to the hospital, were 

you ever in the ICU, or do you know?

A Not that I know of.

Q Just in a regular room?

A Yes.

Q Do you have any serious permanent disfigurement 

as a result of this incident?

A No.

Q As a result of this incident, did you have a 

protracted loss of the use of any bodily member or 

organ?

A No.

Q Have you fully recovered?

A Yes.

Q Were you able to get up and be out and about 

some the week after that?

A The week after the hospital?

Q Yeah, after they let you go home.

A Yeah.

Q Okay. I mean, you could get up and go do 

something, right?

A Yeah, yeah.

In response to the prosecutor’s asking her the meaning of 

“protracted loss or impairment of the function of any 

bodily member or organ,” the complainant said that she 

did not know a specific definition, but that she “probably 

would know that” and “if [she] did have that, wouldn’t a 

doctor tell [her]?”

*4 The trial court admitted State’s Exhibits 18 and 19, 

hospital records, but after reconsideration, withdrew the 

exhibits. The court reporter erroneously included those 
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two exhibits in the record, but both the State and 

Appellant conscientiously asked this court not to consider 

those exhibits because they were never before the jury. 

We granted their request and have not considered those 

exhibits.

The complainant’s injuries included two fractured ribs

and a fractured maxillary sinus bone. She was kept in the 

hospital for four days and then “medically cleared for 

discharge.” Kristie Brown, a nurse practitioner at 

Parkland Hospital, testified concerning the complainant’s 

medical treatment. Brown testified that the complainant 

had a collapsed lung, but it had already been treated when 

Brown met the complainant the morning after her 

admission to the hospital. Brown explained that a person 

with a collapsed lung “can have trouble breathing, and it 

can affect blood pressure, vital signs that [medical 

professionals] look at.” Although the complainant had 

testified that “they said my liver was lacerated, or 

something,” no other evidence of a lacerated liver was 

presented to the jury. Brown did testify that there was an 

injury to the complainant’s liver and an injury in her 

chest. Brown admitted that she was repeating the 

radiologist’s opinion, and the trial court sustained 

Appellant’s objection to her testifying about anything 

somebody else did. But the trial court did not instruct the 

jury to disregard. Brown testified that she checked for 

peritonitis or other problems caused by a liver injury; 

none was discovered. There was no evidence that any 

injury to the complainant’s liver was a serious bodily 

injury.12 The following exchange occurred:

Q So at all times, her liver was functioning and 

doing what it was supposed to be doing?

A Yes, sir.

Q And—all right. Same with her lungs? I mean, she 

could breathe, right?

A Yes, sir, she was breathing.

Q And I assume you tested her blood for oxygen 

level?

A Yes, sir.

Q And I guess her blood was—her lungs were 

working like they were supposed to?

A Yes, sir.

Q I mean, they were providing enough oxygen to 

her?

A Yes, sir.

Q Now, on the broken ribs, what treatment was 

given to her for the broken ribs?

A Pain medication and respiratory, what we call 

incentive spirometry, just deep-breathing exercises, 

and pain medication.

Q When we hear broken ribs, we think of something 

sticking through the skin, something like that.

The rib was, I guess, still intact, for want of better 

words, but there was a fracture in it?

A There was a fracture in it. What alignment it had, I 

would have to review the chest x-ray. I don’t 

remember.

Q In any event, there was nothing done to tape her 

up or set any fractures or have any surgery regarding 

the ribs?

A That is correct.

Q Okay. And would the same be true of the 

maxillary sinus?

A That’s correct. Due to the swelling, they saw 

her—we recommended that she be seen in clinic 

after she was discharged home from the hospital.

Q But no surgery or any procedures were done to 

repair that damage?

A That’s correct.

Q It just healed on its own?

A That is correct.

The only evidence that the complainant could have 

suffered serious bodily injury arose from the State’s 

inquiry whether “any injury to the liver [is] treated 

seriously or minimally” by Brown’s “profession.” She 

replied that they are treated seriously because

*5 [i]njuries 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.

But there was no evidence that the complainant suffered 
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from such a condition.

The prosecutor then asked whether “lungs [are] treated 

seriously or minorly.” Brown replied, “Seriously.” When 

asked to explain why lungs are treated seriously, she 

replied, “Because if we can’t control our oxygenation, we 

need oxygen to live, and you can die from that.” But 

Brown did not testify that the complainant suffered from 

such a condition. No one did. Indeed, Brown monitored 

the complainant to determine whether a substantial risk of 

death or any risk of death developed from any injury, and 

it did not.

Considering all the evidence, we hold 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.13

We must next consider whether the complainant suffered 

permanent disfigurement or protracted loss or impairment 

of the use of a bodily member or organ.14 She testified that 

she had suffered neither. The only suggestion of such loss 

or impairment is Jennifer’s testimony that the doctors told 

the complainant not to lift more than twenty-five pounds. 

Jennifer did not say how long the limitation was to last 

but said that it was because of the complainant’s ribs. 

Jennifer also agreed that “we don’t know whether or not 

[the complainant] was physically capable [of lifting], but 

she followed their advice.”

The complainant testified that she was fully recovered. 

She also testified that she was able to go out and about 

some as soon as she was released from the hospital.

The Moore court instructs us that

given the common meaning of the word “protracted,” 

the complainant’s mother’s testimony, on which the 

State relies, that the complainant was bedridden and 

that it was at least a week “before he could really go 

out and see people,” does not even come close to 

establishing that the injury the complainant sustained to 

his back was either continuing, dragged out, drawn out, 

elongated, extended, lengthened, lengthy, lingering, 

long, long-continued, long-drawn, never-ending, 

ongoing, prolix, prolonged, or unending.15

We have carefully examined the record. There is no 

evidence that the complainant suffered serious permanent 

disfigurement or protracted loss or impairment of the 

function of any bodily member or organ.16 We therefore 

hold that the evidence is insufficient to support the 

element of serious bodily injury.

But the evidence is sufficient to support the deadly 

weapon finding. Testimony touching on whether 

Appellant’s hand was a deadly weapon in the manner of 

its use or intended use included that of the complainant 

and that of Officer Adamo, the responding police officer. 

The complainant testified that after Appellant struck her 

with his hand, knocking her down, he said that he was 

going to kill her. Officer Adamo testified on direct 

examination by the prosecutor,

*6 Q [C]an a person’s hand be a deadly weapon?

A Yes, it can.

....

Q [D]o you feel that someone’s hands are capable of 

causing death or serious bodily injury?

....

A Yes, they are very capable.

Appellant’s statement to the complainant that he was 

going to kill her was some evidence of his intent to use 

his hand as a deadly weapon. Officer Adamo’s testimony 

was evidence that would allow a rational trier of fact to 

conclude beyond a reasonable doubt that, in the manner of 

its intended use, Appellant’s hand was capable of causing 

death or serious bodily injury. Accordingly, we hold that 

the evidence is sufficient to support the jury finding that 

Appellant’s hand was a deadly weapon in the manner of 

its intended use but that the evidence is insufficient to 

support the serious bodily injury finding. We therefore 

sustain in part and overrule in part Appellant’s sole issue 

on appeal.

Conclusion

Because the State proved only second-degree aggravated 

assault of a family member beyond a reasonable doubt, 

that is, it proved that Appellant committed an assault 

against the complainant and used a deadly weapon during 

its commission, we reverse the trial court’s judgment in 

part. We remand this case to the trial court with 

instructions to (1) modify its judgment to delete the firstdegree 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 deadly weapon and (2) conduct a new 

trial on punishment.17

LIVINGSTON, C.J., filed a dissenting opinion.
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TERRIE LIVINGSTON, CHIEF JUSTICE, dissenting.1

Because the majority’s opinion improperly applies 

standards for reviewing the sufficiency of evidence to 

show that the victim suffered serious bodily injury, I 

dissent from the decision to reverse the trial court’s 

judgment and to remand for the entry of a judgment that 

reflects only a second-degree felony conviction.2

When deciding an evidentiary sufficiency issue in a 

criminal appeal, our usual deference to a jury’s verdict 

requires us to weight appellate scales in favor of affirming 

a judgment of conviction. See Winfrey v. State, 323 

S.W.3d 875, 879 (Tex.Crim.App.2010). We do so by 

applying settled principles aimed at preventing us from 

becoming a “thirteenth juror.” See Thornton v. State, 425 

S.W.3d 289, 303 (Tex.Crim.App.2014); Isassi v. State,

330 S.W.3d 633, 638 (Tex.Crim.App.2010) (explaining 

that in reviewing the sufficiency of evidence to support a 

conviction, we guard “against the rare occurrence when a 

factfinder does not act rationally”). Those principles 

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 inferences 

therefrom)3and to judge the credibility of witnesses; 

assessing incriminating evidence cumulatively rather than 

requiring each fact to directly support guilt; allowing for 

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. 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).

*7 In showing fidelity to these principles in this appeal, 

we should determine that the evidence is sufficient to 

prove that the complainant suffered serious bodily injury, 

meaning bodily injury4that created “a substantial risk of 

death ... or protracted loss or impairment of the function 

of any bodily member or organ.” Tex. Penal Code Ann. § 

1.07(a)(46); see id. § 22.02(a)(1), (b)(1). The complainant 

testified that as a result of appellant’s hitting her side 

repeatedly, she felt “a lot of pain” in her back and chest 

and could not breathe. She believed that she had been 

“terribly injured.” Appellant’s father noticed that the 

complainant had difficulty walking. Hospital personnel 

told her that she had a collapsed lung, among other 

injuries. The complainant stayed in a hospital several 

days, and a “month or so” passed before she was able to 

return to work.

Kristie Brown, a nurse practitioner, confirmed that the 

complainant had suffered a lung injury. Concerning that 

injury—a pneumothorax—Brown testified,

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, [the complainant], can 

have trouble breathing, and it can affect blood pressure, 

vital signs that we look at.

The complainant’s mother testified that while in the 

hospital, the complainant was not able to move around the 

room, and treatment for her collapsed lung required the 

insertion of a chest tube. According to the complainant’s 

mother, after the complainant left the hospital, she could 

not work or walk without pain for some time, and when 

she returned to work, she was instructed to not lift 

anything over twenty-five pounds.

While it is true that the complainant’s condition improved 

upon medical treatment, in determining whether evidence 

is sufficient to establish serious bodily injury, the relevant 

issue is the impairing effect of the bodily injury as it was 

inflicted, not after the effects have been ameliorated by 

medical treatment. Jackson v. State, 399 S.W.3d 285, 291 

(Tex.App.–Waco 2013, no pet.)(mem.op.); see Webb v. 

State, 801 S.W.2d 529, 532 (Tex.Crim.App.1990); 

Sizemore v. State, 387 S.W.3d 824, 828 (Tex.App.–

Amarillo 2012, pet. ref’d). And serious bodily injury may 

be established without a physician’s testimony when the 

injury and its effects are obvious. Sizemore, 387 S.W.3d 

at 828.

Brown testified that injuries to lungs are treated seriously 

because the lungs control oxygenation and affect blood 

pressure and “vital signs.” Brown also explained that 

improper oxygenation can cause death. Thus, the 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 id.; 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,
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No. 01–88–00197–CR, 1988 WL 139708, at *2 

(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 finding that [a knife] was capable of 

causing ‘serious bodily injury.’ ”).

*8 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 lifethreatening, the evidence was sufficient for the jury to 

find that without treatment, the complainant faced a 

substantial risk of death. SeeTex. Penal Code Ann. § 

1.07(a)(46).

Moreover, I would also conclude that the evidence was 

sufficient to show that the complainant sustained a serious 

bodily injury because she suffered from a protracted 

impairment of the functioning of her body. See id. The 

complainant testified that the injuries she suffered as a 

result of the assault required her to miss a “month or so” 

of work. Her mother testified that during that time, the 

complainant “couldn’t work” and just “[laid] around” 

because walking was painful. I would hold that these 

month-long effects from the assault qualify as a 

“protracted” impairment of the complainant’s bodily 

functions. See id.; 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.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).

For all of these reasons, I respectfully dissent from the 

majority’s opinion and judgment.

Footnotes

1 SeeTex.R.App. P. 47.4.

2 SeeTex. Penal Code Ann. § 22.02(b)(1) (West 2011).

3 Id.

4 See id. § 22.02(a)(2)-(b).

5 Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768 (Tex.Crim.App.2013).

6 Tex. Penal Code Ann. § 22.02(a)-(b).

7 Id. § 22.01 (West Supp.2014).

8 Id. § 1.07(a)(8).

9 Id. § 1.07(a)(46).

10 Moore v. State, 739 S.W.2d 347, 349 (Tex.Crim.App.1987).
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11 Hernandez v. State, 946 S.W.2d 108, 112 (Tex.App.—El Paso 1997, no pet.)(citations and internal quotation marks omitted).

12 See id. at 111–13 (holding that a 1–centimeter laceration of the liver was unlikely to cause death and not serious bodily injury).

13 SeeTex. Penal Code Ann. § 1.07(a)(46).

14 See id.

15 739 S.W.2d at 352.

16 SeeTex. Penal Code Ann. § 1.07(a)(46).

17 See Bowen v. State, 374 S.W.3d 427, 432 (Tex.Crim.App.2012).

SeeTex.R.App. P. 47.4, 47.5.

2 SeeTex. Penal Code Ann. § 22.02(b)(1) (West 2011).

3 The majority appears to resolve conflicts in witnesses’ testimony against the jury’s verdict. See Majority Op. at 8–10.

4 “Bodily injury” includes pain or any impairment of physical condition. Tex. Penal Code Ann. § 1.07(a)(8) (West Supp.2014).

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