## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02
- 13
- 00221
- CR

JUAN BLEA APPELLANT

V.

THE STATE OF TEXAS STATE

----------
FROM THE 362ND DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. F

- 2011

- 0993

- D

---------- 

### MEMORANDUM OPINION 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. Th at offense

1 See Tex. R. App. P. 47.4.

2 See Tex. Penal Code Ann. § 22.02(b)(1) (West 2 011)

.2 requires both seriou s bodily injury and the use of a deadly weapon

. 3 In 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 reflec t a conviction

for second

- degree felony aggravated assault of a family member, based on
Appellant ’ s us e 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 , t he complainant and Appellant

had a small daughter and shared a bedroom in his parents ’ apartment. While
Appellant and complainant were not married , t hey did marry about two years

later

.

3 Id.

4 See i d. § 22.02( a)(2)

– (b).3 A couple of weeks before the assaul t, A ppellant had s eparated from the
complainant and moved in with a friend. On July 20, the complainant spent time

with a male friend from school. At trial, s he did not remember whether she

returned home late that night or the next morning. Appellant visited the
apartmen t 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, s he 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 s aid that she

had f allen

. She admitted in her testimony that in her written statement , she had
said that Appellant had told her t hat he was going to kill her.
The complainant testified that Appellant hit her only once. When the
prosecutor suggested that A ppellant had continued to hit her and had asked

where their daughter was , the complainant corrected him , stat ing , “ [A]f ter 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 an d used both his fist and
his open hand. She said that he might have kicked her with his foot and also4 testified that she had been in a lot of pain after the assaul t . 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 been broken or terribly injured as a result of this? ” The
complainant responded, “ Yes. ”

The child woke up , so Appellant stopped hitting the c omplainant , 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,

“ Becaus e I didn ’ t want to. ” She said that she had been scared and had not

known how Appellant would act, and she had not want ed 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 n o t 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 Appe llant ’ s parents and asked them to come

home from work , stating that she had fallen down the stairs. After Appellant ’ s
parents saw her , h is father called the police.
Officer Tim Adamo, who had been a police officer for twenty

- three years by

the time of tri al, called for an ambulance after he arrived at the apartment . He

described t he complainant ’ s injuries :5 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 an d 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.

. . . . . . . . S he 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 determine6 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 co mmission 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 t he person: (1) intentionally, knowingly, or recklessly causes bodily injury to another

. . . ;

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

. . . . 7

5 Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 ( 1979); Winfrey v. State , 393 S.W.3d 7 63, 768 (Tex. Crim. App. 2013).

6 Tex. Pen al Code Ann. § 22.02 (a)

– (b).

7 Id. § 22.01 (West Supp. 2014)

.7 “ Bodily injury ” is defined as “ physical pain, illness or any impairment of
physi cal condition

. ” 8 “ Serious bodily injury ” is defined as “ bodily injury t hat

creates a substantial risk of death or that causes death, serious permanent

d isfigurement, or protracted loss or impairment of the function of any bodily

member or organ. ” 9 T he Te xas Court of Criminal Appeals has explained that
[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 th at there be a meaningful 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 explai ned 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 , Je nnifer
, saw her in the ho spital. Je nnifer testified that she noticed only the bruising and redness of her daughter ’ s right

eye. At trial, Je nnifer did n o t remember whether her daughter had had any

8 Id. § 1.07(a)( 8).

9 Id. § 1.07(a)(4 6 ).

10 Moore v. State
, 739 S.W.2d 347, 349 (Tex. Crim. App. 1987).

11 Hernandez v. State , 946 S.W.2d 108, 112 (Tex. App.

— El Paso 1997 , no pet. ) (citations and internal quotation marks omitted).8 trouble breathing. Je nnifer did take photographs of the complainant over a period of time, and the photographs revealed developing bruising over her face
and body. Although Je nnifer testified on direct examination that the complainant
was unable to walk in the hospital and for a month afterward, on cross

examination, 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.

Je nnifer testified that the j ob 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 d eal 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 avoidi ng everybody. She also testified,
Q You don ’ t really want to be here, do you?
A No.9 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 perma nent 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 impairmen t of the function of any bodily member or organ, ” t he complainant

said that she did n ot know a specific definition, but that she “ probably would

know that ” and “if [she] did have that, wouldn ’ t a doctor tell [ her ] ? ”10 The trial court admitted State ’ s Exhibit s 18 and 19, hospital records, but after reconsideration, withdrew the exhibits. The court reporter erroneously included those two exhibits in the record, but both the State and Appellant
conscientiously asked this court not to consider those exhibits bec ause 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 kep t in the hospital for four days and then

“medic ally cleared for dis charge.” Kristi e Brown , a nurse practitioner at Parkland
Hospital, testified concerning the complainant ’ s medical treatment. Brown

testified t hat 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 t he complainant h ad 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 live r and an injury in her chest. Brown admitted that sh e 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 in struct the jury to disregard. Brown testified that she checked for
peritoniti s or other problems caused by a liver injury ; none was discovered.11 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 spirom etry, 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?

12 See id. at 11 1

– 13 (holding that a 1

- centimete r laceration of the liver was unlikely to cause death and not serious bodily injury ).12 A Ther e 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 wo uld 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 t he 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 Brow n ’ s “ profession. ” She replied that the y are treated
seriously because
[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 develo ped a blood clot to the liver makes a decision point for what the surgeons do a nd what we do for the patient.

But t here was no evidence that t he complainant suffered 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, we13 need oxygen to live, and you can die from t hat.” But Brown did not testify that

t he complainant s uffered 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 t here is no evi dence from any

source that would allow a jury to conclude or infer beyond a reasonable doubt

that t he complainant ’ s injuries created a substantial risk of death. 13

We must next consider whether t he complainant suffered permanent disfigurement or protracted loss or impairment of the use of a bodily member or

organ. 14 She testified t hat she had suffered neither. The only suggestion of such
loss or impairment is J e nnifer ’ s testimony that the doctors told t he complainant
not to lift more than twenty

- five pounds

. Je nnifer did not say how long the

limitation was to last but said that it was because of t he complainant ’ s ribs.

Je nnifer also agreed that “we don ’ t know whether or not [the complainant] was physically capable [of lifting], b ut she followed their advic e.”
The complainant testified that she was fully recovered . S he also testified

that she was able to go out and about some as soon as she was released from
the hospital.

The Moore c ourt instructs us that

13 See Tex. Penal Code Ann. § 1.07(a)(46).

14 See id

.14 given the common meaning of the word “protracted
, ” t he 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 sust ained 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 t he
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.

T estimony 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 p olice 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,
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?

15 739 S.W.2d at 352

.

16 See Tex. Penal Code Ann. § 1.07(a)(46).15 . . . . A Yes, they are very capable. Appellant ’ s statement to the complainant that he was going to kill her was

some evidenc e of his intent to use his hand as a deadly weapon. Officer

Adamo ’ s testimon y 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 b odily injury.
Accordingly, w e 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 prove d only second

- degree aggravated assault of a
family member beyond a reasonable doubt, that is, it proved that Appellant

committed an assa ult against the complainant and used a deadly weapon during
its commission, we reverse the tria l court ’ s judgment in part. We remand this

case to the trial court with instructions t o (1) modify its judgment to delete the

first

- degree felony conviction of aggravated assault of a family member and to

instead reflect a s econd

- d egree f elony conviction for aggravated assault of a16 family member through the us e of a deadly weapon and (2) conduct a new trial
on punishment. 17

/s/ Lee Ann Dauphinot LEE ANN DAUPHIN OT JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ. LIVINGSTON, C.J., filed a dissenting opinion.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: February 5, 2015

17 See Bowen v. State , 374 S.W.3d 427, 432 (Tex. Crim. App. 2 012).