IN THE COURT OF CRIMINAL APPEALS OF TEXAS 

JUAN BLEA, § 

APPELLEE § 

§ 

v. § No. 

§ 

THE STATE OF TEXAS, § 

APPELLANT § 

STATE'S PETITION FOR DISCRETIONARY REVIEW 

FROM THE SECOND DISTRICT OF TEXAS AT FORT WORTH 

IN CAUSE NUMBER 02-13-0022 1-CR 

AND 

FROM THE 362No JUDICIAL DISTRICT COURT, 

THE HONORABLE BRUCE MCFARLING, JUDGE, PRESIDING; 

THE HONORABLE SHERRY SHIPMAN FROM THE 16TH JUDICIAL 

DISTRICT COURT, AS SITTING JUDGE 

DENTON COUNTY, TEXAS 

PAUL JOHNSON 

Criminal District Attorney 

Denton County, Texas 

CATHERINE LUFT 

Assistant Criminal District Attorney 

Chief, Appellate Division 

ANDREA R. SIMMONS 

Assistant Criminal District Attorney 

State Bar No. 24053478 

1450 East McKinney 

Denton, Texas 76209 

(940) 349-2600 

FAX (940) 349-2751 

andrea.simmons@dentoncounty.com 

PD-0245-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 3/12/2015 12:30:09 PM

Accepted 3/13/2015 9:39:39 AM

ABEL ACOSTA

CLERK
IDENTITY OF PARTIES AND COUNSEL 

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

DAWN MOORE 

1504 East McKinney Street 

Suite 200 

Denton, Texas 76209 

APPELLATE COUNSEL 

DENVER McCARTY 

1512 East McKinney Street 

Suite 200 

Denton, Texas 76209 

TRIAL COUNSEL 

Appellant ..................................................... THE STATE OF TEXAS 

PAUL JOHNSON 

Criminal District Attorney 

11 

CATHERINE LUFT 

Assistant Criminal District Attorney 

Chief, Appellate Division 

ANDREA R. SIMMONS 

Assistant Criminal District Attorney 

State Bar No. 24053478 

1450 East McKinney 

Denton, Texas 76209 

(940) 349-2600 

FAX (940) 349-2751 

APPELLATE COUNSEL 

MICHAEL GRAVES 

DUSTIN GOSSAGE 

Assistant Criminal District Attorneys 

TRIAL COUNSEL 
TABLE OF CONTENTS 

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

INDEX OF AUTHORITIES ................................................................................. v-vi 

STATEMENT REGARDING ORAL ARGUMENT ............................................ 1-2 

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

STATEMENT OF PROCEDURAL HISTORY ....................................................... 2 

GROUND FOR REVIEW ........................................................................................ 2 

ARGUMENTS ........................................................................................................... . 

Applied properly, the settled principles of an evidentiary sufficiency 

analysis prevent the appellate courts from becoming a thirteenth juror ......... .3 

Bodily injury versus serious bodily injury ..................................................... .4 

The majority opinion was wrong as the jury could have reasonably 

inferred that absent medical treatment, the injury to the complainant's 

lungs and liver could have resulted in a substantial risk of death. 

Furthermore, the evidence was sufficient to support seriously bodily 

injury where the complainant suffered from a protracted impairment 

of the functioning of her body as a result of the assault ................................. .4 

PRAYER FOR RELIEF ............................................................................................ 9 

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

111 
CERTIFICATE OF SERVICE ............................................................................... 10 

APPENDICES: 

A Blea v. State, No. 02-13-00221-CR, 2015 Tex. App. LEXIS 1137 

(Tex. App. -Fort Worth Feb. 5, 2015, pet. filed) 

IV 
INDEX OF AUTHORITIES 

Statutes, Rules and Codes Page 

Tex. Penal Code Ann. § l.07(a)(8) (Vernon 2013) .................................................. 4 

Tex. Penal Code Ann. §l.07(a)(46) (Vernon 2013) .............................................. 4-5 

Cases 

Barrera v. State 

820 S.W.2d 194 (Tex. App.- Corpus Christi 1991, pet. ref d) ............................. 7 

Blea v. State 

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

Fort Worth Feb. 5, 2015, pet. filed) ................................................................... 2, 8 

Brown v. State 

605 S.W.2d 572 (Tex. Crim. App. [Panel Op.] 1980) ........................................... 7 

Dewberry v. State 

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

Dobbs v. State 

434 S.W.3d 166 (Tex. Crim. App. 2014) ............................................................... 8 

Hernandez v. State 

161 S.W.3d 491 (Tex. Crim. App. 2005) ............................................................ 8-9 

Hooper v. State 

214 S.W.3d 9 (Tex. Crim. App. 2007) ................................................................... 3 

Jackson v. State 

399 S.W.3d 285 (Tex. App. - Waco 2013, no pet.) (mem. op.)) ........................... 7 

v 
Jackson v. Virginia 

443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) ......................................... 3 

Laster v. State 

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

Moore v. State 

739 S.W.2d 347 (Tex. Crim. App. 1987) ........................................................... 4, 7 

Nash v. State 

123 S.W.3d 534 (Tex. App.-Fort Worth 2003, pet. ref d) .................................. 4 

Patterson v. State 

No. 11-06-00209-CR, 2008 Tex. App. LEXIS 1525 (Tex. App.-

Eastland 2008, pet. ref d) (not designated for publication) ................................... 7 

Thomas v. State 

444 S.W.3d 4 (Tex. Crim. App. 2014) ................................................................... 8 

Whatley v. State 

445 S.W.3d 159 (Tex. Crim. App. 2014) ............................................................... 8 

Wilson v. State 

139 S.W.3d 104 (Tex. App.-Texarkana 2004, pet. refd) ................................... 7 

Winfrey v. State 

323 S.W.3d 875 (Tex. Crim. App. 2010) ............................................................... 8 

VI 
IN THE COURT OF CRIMINAL APPEALS OF TEXAS 

JUAN BLEA § 

APPELLANT § 

§ 

v. § No. 

§ 

THE STATE OF TEXAS, § 

APPELLEE § 

STATE'S PETITION FOR DISCRETIONARY REVIEW 

TO THE HONORABLE COURT OF CRIMINAL APPEALS: 

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

and respectfully urges this Court to grant discretionary review of the 

above-named cause. 

STATEMENT REGARDING ORAL ARGUMENT 

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

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

in determining whether the Court of Appeals erred. 

STATEMENT OF THE CASE 

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

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

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

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

1 
and remanded the case to the trial court. The majority opinion ordered the trial 

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

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

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

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

a dissenting opinion. 

STATEMENT OF PROCEDURAL HISTORY 

After a jury found appellee guilty of the first-degree felony offense of 

aggravated assault against a family member, the Second Court of Appeals reversed 

and remanded the trial court's judgment of conviction, specifically finding the 

evidence insufficient to support "serious" bodily injury (Appendix A [Blea v. State, 

No. 02-13-00221-CR, 2015 Tex. App. LEXIS 1137 (Tex. App. - Fort Worth Feb. 

5, 2015, pet. filed)]). 

GROUND FOR REVIEW 

Did the Second Court of Appeals improperly apply the standard for 

reviewing the sufficiency of the evidence in analyzing whether the 

complainant suffered serious bodily injury? 

2 
ARGUMENTS 

Applied properly, the settled principles of an evidentiary sufficiency analysis 

prevent the appellate courts from becoming a thirteenth juror. 

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

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

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

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

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

App. 2007 (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-

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

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

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

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

defers to "the responsibility of the trier of fact to fairly resolve conflicts in 

testimony, to weigh the evidence, and to draw reasonable inferences from basic 

facts to ultimate facts." Hooper, 214 S.W.3d at 13 (quoting Jackson, 443 U.S. at 

318-19). This same standard applies equally to circumstantial and direct evidence. 

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

court's role on appeal is "restricted to guarding against the rare occurrence when a 

factfinder does not act rationally." Id. at 518. 

3 
Bodily injury versus serious bodily injury. 

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

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

injury" means bodily injury that creates a substantial risk of death or that causes 

death, serious permanent disfigurement, or protracted loss or impairment of the 

function of any bodily member or organ. Tex. Penal Code Ann. § l.07(a)( 46) 

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

meaningful difference or distinction between the different definitions for "bodily 

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

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

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

App. 1987). 

The majority opinion was wrong as the jury could have reasonably inferred 

that absent medical treatment, the injury to the complainant's lungs and liver 

could have resulted in a substantial risk of death. Furthermore, the evidence 

was sufficient to support seriously bodily injury where the complainant 

suffered from a protracted impairment of the functioning of her body as a 

result of the assault. 

Here, viewing the evidence in the light most favorable to the verdict and 

allowing the jury to draw reasonable inferences, the facts relating to the injury to 

the complainant's lungs were sufficient for the jury to find that without treatment 

the complainant faced a substantial risk of death based upon her injuries to the lung 

and/or liver. See Tex. Penal Code Ann. §1.07(a)(46). Furthermore, the evidence 

4 
was sufficient to show that the complainant sustained a serious bodily injury based 

upon the suffering from a protracted impairment of the functioning of her body. 

See Id. Specifically, appellee hit the complainant in the face, hit and kicked her in 

the side and ribs, and said he was going to kill her (2 R.R. at 30, 32-33, 50). 

According to the complainant's written statement, taken after the assault by 

appellee but prior to being transported to the hospital, she was in "a ton of pain" 

after the assault (2 R.R. at 36). The complainant 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 33, 

36-37' 39, 43). 

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

testified that the complainant was having a hard time breathing when he arrived (2 

R.R. at 118, 126). Officer Adamo also testified that the complainant was in quite a 

bit of pain when and was holding her ribs, chest, and stomach area while seated on 

the couch (2 R.R. at 115, 11 7-18). Appellee' s father testified that the complainant 

looked pretty bad and could not walk (2 R.R. at 84-85). 

Kristie Brown, nurse practitioner at Parkland Memorial Hospital, testified 

that the complainant suffered injuries to her liver and chest (2 R.R. at 61-62). The 

complainant also had bruising to the left side of her face and abdomen, two 

fractured ribs, and fractures to the maxillary sinuses (2 R.R. at 63-65). Her lung 

5 
collapsed (this is called a pneumothorax), and when Nurse Brown met the 

complainant, a procedure had already been done to help with her breathing (2 R.R. 

at 64-65, 67). The complainant's mother clarified that the complainant had a chest 

tube inserted to assist with her breathing but that it was removed before she was 

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

testified that injuries to the lungs are treated seriously and that a person could die 

from lack of oxygen (2 R.R. at 66-67). She elaborated by saying that: 

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

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

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

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

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

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

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

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

Nurse Brown further testified that mJunes to the liver are also treated 

seriously (2 R.R. at 66-67). And although the complainant's liver was always 

functioning, a patient could bleed to death quickly due to such an injury (2 R.R. at 

65-66, 68-69). In fact, the complainant was originally not allowed to walk because 

she could start bleeding (2 R.R. at 68). 

The complainant's mother testified that the complainant was in a lot of pain 

and had a lot of bruising (2 R.R. at 94-95). She was hospitalized for four days, but 

after she was released, she was still in a lot of pain and couldn't walk (2 R.R. at 

108-09). When the complainant was able to walk again, she was still in pain ( R.R. 

6 
at 109-10). Her job duties changed when she returned to work because she could 

not lift over twenty-five pounds for at least one month after the assault per doctor's 

orders. And the complainant did not work for approximately one month after the 

assault (2 R.R. at 109-10). 

Whether or not an mJury constitutes senous bodily injury must be 

determined on a case-by-case basis. Moore, 739 S.W.2d at 352. The relevant 

inquiry as to this issue is the extent of the injuries as inflicted, not after the effects 

have been ameliorated by medical treatment. See Jackson v. State, 399 S.W.3d 

285, 291 (Tex. App. - Waco 2013, no pet.) (mem. op.)); Wilson v. State, 139 

S.W.3d 104, 106 (Tex. App.-Texarkana 2004, pet. refd) (citing Brown v. State, 

605 S.W.2d 572, 575 (Tex. Crim. App. [Panel Op.] 1980)); Barrera v. State, 820 

S.W.2d 194, 196 (Tex. App.-Corpus Christi 1991, pet. ref d); see also Patterson 

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

Eastland 2008, pet. ref d) (not designated for publication) (testimony by 

emergency room physician sufficient to show that pneumothorax, common with 

broken ribs, created a substantial risk of death). 

Moreover, the Second Court of Appeals improperly resolved conflicts in 

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

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

and whether those changes were related to her injuries, and inconsistent testimony 

7 
by the complainant's mother as to how long it took before the complainant could 

walk; the majority found a lack of evidence as to the complainant being unable to 

control her oxygenation, and pointed out that although the complainant testified 

that she suffered a lacerated liver, no other evidence of such was presented 

(although there was evidence which allowed an inference of such) (Appendix A 

[Blea v. State, No. 02-13-00221-CR, 2015 Tex. App. LEXIS 1137 at* 8-12 (Tex. 

App. - Fort Worth Feb. 5, 2015, pet. filed)]). 

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

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

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

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

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

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

to judge the credibility of the witnesses; assessing incriminating evidence 

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

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

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

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

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

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

8 
161 S.W.3d 491, 500-01 (Tex. Crim. App. 2005)). Here, the majority improperly 

acted as a thirteenth juror. 

PRAYER FOR RELIEF 

For the reasons stated herein, the State prays this Court will grant review in 

this case in order to permit full briefing on the Court of Appeals' erroneous 

application of the standard of review. 

Respectfully submitted, 

PAUL JOHNSON 

Criminal District Attorney 

Denton County, Texas 

CATHERINE LUFT 

Assistant Criminal District Attorney 

Chief, Appellate Division 

ANDREA R. SIMMONS 

Assistant Criminal District Attorney 

State Bar No. 24053478 

1450 East McKinney 

Denton, Texas 76209 

(940) 349-2600 

FAX (940) 349-2751 

9 
CERTIFICATE OF COMPLIANCE 

The State certifies that the State's Petition for Discretionary Review in the 

instant cause contains a word count of 1916, said count being generated by the 

computer program Microsoft Word that was used to prepare the document. 

ANDREA R. SIMMONS 

CERTIFICATE OF SERVICE 

A true copy of the State's Petition for Discretionary Review has been sent by 

United States Mail, postage prepaid, to counsel for Appellee, Dawn A. Moore, 

BOSWELL & MOORE, 1504 East McKinney Street, Suite 200, Denton, Texas 

76209, on this, the lih day of March 2015. 

ANDREA R. SIMMONS 

10 
APPENDIX A 

[Blea v. State, No. 02-13-00221-CR, 2015 Tex. App. LEXIS 

1137 (Tex. App. - Fort Worth Feb. 5, 2015, pet. filed)] 
Page I 

ft" LexisNexis® 

I of I DOCUMENT 

JUAN BLEA, APPELLANT v. THE STATE OF TEXAS, STATE 

NO. 02-13-00221-CR 

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH 

2015 Tex. App. LEXIS 1/37 

February S, 201 S, Delivered 

February 5, 201 S, Opinion Filed 

NOTICE: PLEASE CONSULT THE TEXAS 

RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS. 

PRIOR HISTORY: [•I] FROM THE 362ND 

DISTRICT COURT OF DENTON COUNTY. TRIAL 

COURT NO. F-2011-0993-D. TRIAL COURT JUDGE: 

HON. SHERRY SHIPMAN. 

COUNSEL: FOR APPELLANT: DAWN A. MOORE, 

BOSWELL & MOORE, P.C., DENTON, TEXAS. 

FOR STATE: PAUL JOHNSON, CRIMINAL DISTRICT ATTORNEY; CATHERINE LUFT, CHIEF OF 

THE APPELLATE SECTION; ANDREA R. SIMMONS, MICHAEL GRAYES, DUSTIN GOSSAGE, 

ASSISTANT CRIMINAL DISTRICT ATTORNEYS 

FOR DENTON COUNTY, DENTON, TEXAS. 

JUDGES: PANEL: LIVINGSTON, C.J.; DAUPHINOT 

and GABRIEL, JJ. TERRIE LIVINGSTON, CHIEF 

JUSTICE. 

OPINION BY: LEE ANN DAUPHINOT 

OPINION 

MEMORANDUM OPINION' 

See Tex. R. App. P. 47.4. 

A jury convicted Appellant Juan Blea of first-degree 

felony aggravated assault of a family member.' The jury 

assessed his punishment at five years' confinement. and 

the trial court sentenced him accordingly. That offense 

requires both serious bodily lnJUry and the use of a 

deadly weapon.' 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 [•2] 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 (I) 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.' 

2 See Tex. Penal Code Ann. § J2.02(b)(/J 

(West 2011). 

3 Id. 

4 See id. § 22.02(a){2)-(b). 

Brief Summary of the Facts 

On the date of the offense, July 21, 20 I 0, 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, Appell ant 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 
Page 2 

2015 Tex. App. LEXIS 1137, • 

whether she returned home late that night or the next 

morning. Appellant visited the apartment that the complainant shared with his parents between I 0:00 a.m. and 

noon on [*3) 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 lthe 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 [*4] 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 been broken or terribly injured as a result of this?" The complainant responded, 

"Yes." 

The child woke up, so Appella·nt 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, [•5] 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 [*6] is insufficient to show that (I) 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.' 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: 

(I) causes serious bodily injury to 

another, including the person's spouse; or 
I 

Page 3 

2015 Tex. App. LEXIS 1137, * 

(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: 

(I) 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 .002/(b), 71.003, or 71.005, Family 

Code[.]'' 

Section 22.01 provides, 

(a) A person commits an offense if the 

person: 

(I) intentionally, knowingly, or recklessly causes bodily injury to another ... ; 

(b) An offense under Subsection 

(a)( I) is a Class A misdemeanor . [*7) 

5 Jackson v. Virginia, 443 U.S. 307, 319, 99 S. 

Ct. 2781, 2789, 61l.Ed.2d560 (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). 

"Bodily injury" is defined as "physical pain, illness 

or any impairment of physical condition."' "Serious bodily injury" is defined as "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted Joss or impairment of 

the function of any bodily member or organ."" The Texas 

Court of Criminal Appeals has explained that 

[bjy 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 difference or 

distinction between "bodily injury" and 

"serious bodily injury." Understandably, 

this means that where the issue is raised, 

the issue must be detennined on an ad hoc 

basis. '" 

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 [*8] of fact could 

infer beyond a reasonable doubt that the 

injury itself created an appreciable risk of 

death." 

8 Id.§ l .07(a)(8). 

9 Id.§ I. 07(a)(46). 

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). 

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 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. 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 (*9] that? 
Page 4 

2015 Tex. App. LEXIS 1137, * 

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. 1 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 fun ction of 

any bodily member or organ," the complainant said that 

she did not know a speci fie defin ition, but that she 

"probably wou ld know that" and "if [she] [*I OJ did 

have that, wouldn't a doctor tell [her]?" 

The trial court admitted State's Exhibits 18 and 19. 

hospital records, but after reconsideration, withdrew the 

exhibits. The coun reporter erroneously included those 

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 [*I I] 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.

11 The 

followin g exchange occurred: 

Q So at all times, her liver was func -

tioning 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 leve l? 

A Yes, sir. 

Q And I guess her blood was--her 

lungs were working like they were supposed to? 

A Yes, sir. 
. . •

Page 5 

2015 Tex. App. LEXIS 1137. * 

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 [* 12) 

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. 

12 See id. al I 11-13 (holding that a 

I-centimeter laceration of the liver was unlikely 

to cause death and not serious bodily injury). 

The only evidence that the complainant cou ld have 

suffered serious bodily injury arose from the State's inquiry whether "any injury to the liver [is] treated se riously or minimally" by Brown's "profession ." She replied that they are treated seriously because 

[i]njuries to the liver can cause a patient to bleed to death [* 13] 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 

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 rrom such a condition. No one did. Indeed, 

Brown monitored the complainant to detennine 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." 

I 3 See Tex. Penal Code Ann. § I. 07(a}(46). 

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." 

14 See id. 

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 reli es, that the complainant was bedridden 

and that it was at least a week "before he 
Page 6 

20 I 5 Tex. App. LEXIS 1137, * 

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 7 39 S. W.2d at 352. 

We have carefully examined the [* 15] record. 

There is no evidence that the complainant suffered serious permanent disfigurement or protracted loss or impainnent of the function of any bodily member or organ.1• We therefore hold that the evidence is insufficient 

to support the element of serious bodily injury. 

16 See Tex. Penal Code Ann. § l.07{a}(46). 

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, 

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 ra tional trier of fact to 

conclude beyond a reasonable doubt that, in the manner 

of [* 16] 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 (I) modify its judgment to delete the 

first-degree felony conviction of aggravated assault of a 

family member and to instead reflect a second-degree 

felony conviction for aggravated assault of a family 

member through the use of a deadly weapon and (2) 

conduct a new trial on punishment. 17 

17 See Bowen v. State, 374 S. W.3d 427, 432 

(Tex. Crim. App. 2012). 

Isl Lee Ann Dauphinot 

LEE ANN DAUPHJNOT 

JUSTICE 

PANEL: LIVINGSTON, C.J.; DAUPHINOT and 

GABRIEL, JJ. 

LIVINGSTON, C.J., filed a dissenting opinion. 

(* 17] DO NOT PUBLISH 

Tex. R. App. P. 47.2(b) 

DELIVERED: February 5, 2015 

DISSENT BY: TERRIE LIVINGSTON 

DISSENT 

DISSENTING MEMORANDUM OPINION' 

See Tex. R. App. P. 47.4, 47.5. 

Because the majority's opin ion improperly applies 

standards for rev iewing 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 

re fl ects only a second-degree felony conviction.' 

2 See Tex. Penal Code Ann. § 22.02(b)f/J 

(West 201 1). 

When decid ing an evidentiary sufficiency issue in a 

criminal appea l. our usual de ference to a jury's verdi ct 
Page 7 

2015 Tex. App. LEXIS 1137, * 

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 trom 

becoming a "thirteenth juror." See Thornton v. State, 42 5 

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)' and to judge the credibility of witnesses; 

["' 18] 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 ./9/, 

500-01 (Tex. Crim. App. 2005). 

3 The majority appears to resolve conflicts in 

witnesses' testimony against the jury's verdict. 

See Majority Op. at 8-10. 

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 injury' that created "a substantial risk of 

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

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

/.07(a)(46J ; see id.§ 22.02(a)(/), (b){I). 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[* 19] 

return to work. 

4 "Bodily injury" includes pain or any impairment of physical condition. Tex. Penal Code Ann. 

§ l.07(a){8) (West Supp. 2014). 

Kristie Brown, a nurse practitioner, con firmed 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 [ "'20) 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, 80 I S. W.2d 529. 532 

(Tex. Crim. App. 1990); Sizemore v. State, 387 S. W.3d 

824, 828 (Tex. App.--Amarillo 2012, pet. refd). And serious bodily injury may be established without a physician's testimony when the injury and its effects are obvious. Sizemore, 387 S. W3d 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 Tex. 

App. LEXIS 1525. 2008 WL 564880, at "'3 (Ti!x. 

App--Eastland Feb. 28, 2008, pl!!. r1tj'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 suffi cient to prove that [* 21] the victim had a serious bodily injury); Pedro v. Stall!, l\'o. 01-88-00197-CR, 
I 

I 

Page 8 

2015 Tex. App. LEXIS 1137, • 

1988 Tex. App. LEXIS 3158, 1988 WL 139708, at •2 

(Tex. App.--Houston [/st 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.'"). 

Viewing the evidence in the light most favorable to 

the verdict and allowing the jury to draw reasonable inferences from the evidence, I would hold that based at 

least on the facts concerning the injury to the complainant's lung, that this injury required treatment through a 

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

the evidence was sufficient for the jury to find that without treatment, the complainant faced a substantial risk of 

death. See Tex. Penal Code Ann.§ /.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" 

[•22] 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, 91 I S.W.2d 236, 244-45 (Tex. 

App.--Waco 1995. pet. rej'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. 05-0/-01899-CR, 2002 Tex. App. LEXIS 7740, 

2002 WL 32397713, al • 1-2 (Tex. App.--Da/las 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. 

Isl Terrie Livingston 

TERRIE LIVINGSTON 

CHIEF JUSTICE 

DO NOT PUBLISH 

Tex. R. App. P. 47.2(b) 

DELIVERED: February 5, 2015