NO. 07-11-00424-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 19, 2012

TERRY MICHAEL SIZEMORE, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE 

FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

NO. 63,116-D; HONORABLE DON R. EMERSON, JUDGE

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

OPINION

Appellant, Terry Michael Sizemore, appeals his conviction for aggravated 

assault1 and resulting fifteen-year sentence. He brings to this Court one issue on 

appeal: whether the evidence is sufficient to establish the element of “serious bodily 

injury.” We will affirm.

Factual and Procedural History

On February 6, 2011, complainant, Barbara Michie, was at appellant’s house 

visiting her friend, Teresa Smith, who was appellant’s girlfriend. At some point during 

 1 See TEX. PENAL CODE ANN. § 22.02(a)(1) (West 2011).
2

the night, as appellant, Smith, and Michie drank together, Smith decided she wanted 

her car keys, but appellant refused to give them to her. A physical altercation ensued 

between appellant and Smith. Michie intervened to try to pull appellant off Smith, 

apparently to no avail. Appellant and Smith carried on the fight through several rooms 

of the house. After her efforts to separate appellant and Smith were unsuccessful, 

Michie decided to call Smith’s son for assistance. As she was in the process of doing 

so, appellant leapt onto Michie and bit her. Later, it would be learned that appellant had 

bitten off a piece of Michie’s ear. 

At some point, Smith had called 911. At 1:19 a.m., Officer Joel Bullard of the 

Amarillo Police Department was dispatched to the residence where, upon his arrival one 

to two minutes later, he saw appellant screaming at a female as he pushed her inside 

the house. Bullard also noticed a vehicle backing up to pull away from the house. He 

signaled the unidentified driver to stop, and the driver complied. As Bullard approached 

the vehicle, he saw Michie in the backseat of the vehicle holding a bloody towel or cloth 

to the right side of her head. Bullard described Michie as “frantic” and “bleeding 

profusely.” After examining her injury, which involved Michie missing what Bullard 

estimated to be a two-inch by one-half-inch section of her lower right ear, he summoned 

an ambulance for Michie.

A fellow officer arrived a short time later to assist Bullard, and the two officers 

made their way to the front door where they summoned appellant to the doorway. The 

officers noted that appellant sported blood–from an unidentified source–on his face and 

lips and in his beard. “[A]gitated” and “combative,” appellant refused to comply with 
3

Bullard’s instruction to come outside. Bullard pulled appellant from the doorway to the 

outside where the officers were able to place him in handcuffs and put him in the 

backseat of a patrol car as they continued their investigation. Ultimately, appellant was 

arrested and charged with aggravated assault.

A Potter County jury found appellant guilty of aggravated assault, and the trial 

court assessed punishment at fifteen years’ imprisonment. Appellant appeals his 

conviction, seemingly conceding that there was sufficient evidence of the elements of 

simple assault but contending that the evidence was insufficient that Michie sustained a 

serious bodily injury, a required element of the offense of aggravated assault.

Standard of Review

In assessing the sufficiency of the evidence, we review all 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 offense beyond a reasonable doubt. Jackson 

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State, 

323 S.W.3d 893, 912 (Tex.Crim.App. 2010). “[O]nly that evidence which is sufficient in 

character, weight, and amount to justify a factfinder in concluding that every element of 

the offense has been proven beyond a reasonable doubt is adequate to support a 

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful 

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no 

higher standard of appellate review than the standard mandated by Jackson.” Id. 

When reviewing all of the evidence under the Jackson standard of review, the ultimate 

question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07 
4

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d 

404, 448–50 (Tex.Crim.App. 2006), as outlining the proper application of a single 

evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s 

credibility and weight determinations because the jury is the sole judge of the witnesses’ 

credibility and the weight to be given their testimony.” Id. at 899.

Applicable Law

A person commits assault if he intentionally, knowingly, or recklessly causes 

bodily injury to another. See TEX. PENAL CODE ANN. § 22.01(a)(1) (West 2011). To 

establish the offense of aggravated assault, the State must prove the defendant caused 

serious bodily injury to another. Id. § 22.02(a)(1). “Bodily injury” is defined as “physical 

pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8) (West Supp. 

2012). “Serious bodily injury” is “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.” Id. § 1.07(a)(46).

The record does not suggest that the injury to Michie’s ear created a substantial 

risk of death, and there is nothing in the record that would suggest that the injury 

caused protracted hearing loss.2 So, we will focus on the remaining aspect of the 

definition of “serious bodily injury,” namely serious permanent disfigurement.

 2 There is, though, a brief reference to Michie’s statement at the time of the injury 

that she could not hear. We note first that this was the State’s attorney’s statement and 

add that nothing in Michie’s testimony suggested that, even if she was not able to hear 

at the time, she has suffered a protracted loss of hearing in that ear.
5

We begin by noting the well-established rule that the relevant issue is the 

disfiguring effect of the bodily injury as it was inflicted, not after the effects had been 

ameliorated or exacerbated by other actions such as medical treatment. See Stuhler v. 

State, 218 S.W.3d 706, 714 (Tex.Crim.App. 2007); Fancher v. State, 659 S.W.2d 836, 

838 (Tex.Crim.App. 1983) (en banc); Brown v. State, 605 S.W.2d 572, 575 

(Tex.Crim.App. [Panel Op.] 1980). There are no wounds that constitute “serious bodily 

injury” per se. Hernandez v. State, 946 S.W.2d 108, 111 (Tex.App.—El Paso 1997, no 

pet.) (citing as examples Webb v. State, 801 S.W.2d 529, 533 (Tex.Crim.App. 1990) (en 

banc) (per curiam), and Moore v. State, 739 S.W.2d 347, 352 (Tex.Crim.App. 1987) (en 

banc)). Instead, we must determine whether an injury constitutes a serious bodily injury 

on a case-by-case basis, evaluating each case on its own facts to determine whether 

the evidence was sufficient to permit the finder of fact to conclude that the injury fell 

within the definition of “serious bodily injury.” See Moore, 739 S.W.2d at 352; Eustis v. 

State, 191 S.W.3d 879, 884 (Tex.App.—Houston [14th Dist.] 2006, pet. ref’d).

“Serious bodily injury” may be established without a physician’s testimony when 

the injury and its effects are obvious. See Carter v. State, 678 S.W.2d 155, 157 

(Tex.App.—Beaumont 1984, no pet.). The person who sustained the at-issue injury is 

qualified to express an opinion about the seriousness of that injury. Hart v. State, 581 

S.W.2d 675, 677 (Tex.Crim.App. [Panel Op.] 1979); Coshatt v. State, 744 S.W.2d 633, 

636 (Tex.App.—Dallas 1987, pet. ref’d).

 

We note, however, that the record does contain evidence that would suggest 

some degree of impairment of Michie’s ear as a result of the injury. She testified that 

she still experienced pain in her right ear resulting from the injury and that the pain 

increased whenever she lays in such a way to put pressure on that ear.
6

Simply that an injury causes scarring is not sufficient, on its own, to establish 

serious permanent disfigurement. Hernandez, 946 S.W.2d at 113; see McCoy v. State, 

932 S.W.2d 720, 724 (Tex.App.—Fort Worth 1996, pet. ref’d). A reviewing court must 

find more than mere scarring alone; instead, it must find in the record evidence of “some 

significant cosmetic deformity” in order to conclude that the evidence of serious bodily 

injury was sufficient. Compare Hernandez, 946 S.W.2d at 113 (finding evidence of oneinch scar from stab wound in addition to a surgical scar insufficient to “elevate ‘bodily 

injury’ to ‘serious bodily injury’”), and McCoy, 932 S.W.2d at 724 (concluding evidence 

of slight scar on lip, though permanent, was not sufficient to show serious permanent 

disfigurement), with Moore v. State, 802 S.W.2d 367, 369–70 (Tex.App.—Dallas 1990, 

pet. ref’d) (finding sufficient evidence of serious bodily injury where victim’s cheekbone 

was fractured in three places and surgery needed to prevent significant cosmetic 

deformity), and Pitts v. State, 742 S.W.2d 420, 421–22 (Tex.App.—Dallas 1987, pet. 

ref’d) (concluding evidence of significant disfigurement was sufficient where victim 

suffered five facial fractures necessitating several surgeries to repair damage). 

Likewise, the necessity of surgery alone is insufficient to establish serious bodily 

injury. See Webb, 801 S.W.2d at 533. Whether a “bodily injury” is “serious,” in terms of 

the Texas Penal Code, does not depend solely upon whether the victim received 

medical treatment. See Moore, 739 S.W.2d at 354. However, in evaluating the 

evidence supporting serious bodily injury, courts do consider as a relevant factor 

whether the injury would be permanently disfiguring without medical treatment. See
7

Brown, 605 S.W.2d at 575 (concluding evidence that a broken nose would cause 

disfigurement and dysfunction if untreated sufficient to establish serious bodily injury).3

Analysis

Photographs of Michie’s injuries as she waited at the scene for an ambulance 

were admitted into evidence without objection. These photographs show a significant 

amount of blood in and around the area surrounding Michie’s ear, and they clearly 

depict that a piece of her ear is missing. Photographs of Michie’s right ear taken one or 

two days after the assault and after she had gotten medical treatment were also 

admitted without objection. These photographs depict the sutures used to close and 

repair the wound to some degree and confirm that part of her lower ear remained 

missing, causing her ear to be misshapen. 

Michie testified that, as appellant punched, kicked, slapped, and dragged Smith 

throughout the house, she attempted to call Smith’s son for assistance in breaking up 

the fight. Appellant leapt onto her, punched her, and bit her. She described the injury 

and the surgical procedure to repair it, adding that the missing portion of her ear was 

never found. Michie testified that, seven months after the injury, she still experienced 

 3 In a case bearing the same name, the Dallas court reconciled Moore with 

Brown:

We interpret Moore as prohibiting the prosecution’s attempts to transform 

a minor injury into a serious bodily injury through the use of speculative 

testimony about what might have occurred had the minor injury not been 

medically treated.

Moore, 802 S.W.2d at 370 (discussing Moore, 739 S.W.2d at 354, and Brown, 605 

S.W.2d at 575).
8

pain in her ear. This pain increased if she happened to lay in such a way that she put 

pressure on her right ear. She explained that she had not yet undergone the 

reconstruction procedure and, at the prosecutor’s request, showed her ear to the jury, 

enabling it to assess the degree of disfigurement. Appellant testified at trial and denied 

having committed an assault against Michie. He explained, though, that had he known 

she was as severely injured as she was, he would have rendered aid at the time 

because “it look[ed] bad.”

Medical records from Michie’s two-day hospital stay describe Michie’s wound 

upon her arrival at the emergency room as a “traumatic injury” to her right ear. Michie’s 

“traumatic injury” is more than one resulting in mere scarring; her medical records 

describe a “loss of significant section of the lower ear,” more technically a “gross 

avulsion of the helix and lobule area of the right ear.” Her preoperative diagnosis 

described her injury as an open wound to the right ear with “underlying cartilage 

exposed and desiccated.” The treating physician described the injury in more detail:

Her right ear shows a significant degree of avulsion going from around the 

mid aspect of the helix all the way down involving the lobule. The entire 

segment measures approximately 6 cm in length about a centimeter and a 

half in width [and is] simply gone. The underlying cartilage itself appears 

to be broken and desiccated. There appears to be no actual broken 

segments, but there appears to be almost nibbled off section[s] of the 

edges of the cartilage.

Based on his assessment of the injury, including the exposed, desiccated cartilage, the 

treating physician advised surgical intervention to cleanse the wound, repair and 

remove tissue in the area of the wound, and cover the remaining cartilage, a procedure 

the medical records describe as a “complex repair.” Records indicated that the surgical 
9

intervention was successful in cleansing and closing the wound, but did not result in a 

full reconstruction of the ear; this initial surgical procedure, it appears, was not intended 

to accomplish such. Ultimately, the doctor noted, the injury will require a two- to threestage reconstruction using rib cartilage to reconstruct her ear.

The jury was free to apply common sense, knowledge, and experience gained in 

the ordinary affairs of life in drawing reasonable inferences from the evidence presented 

to it. Eustis, 191 S.W.3d at 884. That said, the jury could have rationally concluded that 

Michie suffered serious permanent disfigurement from the photographs of her injury at 

the time of the assault, Michie’s testimony describing the injury and complications 

associated with it, the in-court demonstration of the resulting misshapen form of her 

lower right ear, and the extensive medical records describing the details of her injury. 

We conclude the evidence is sufficient to establish the requisite elements of aggravated 

assault, including the jury’s finding that appellant caused Michie serious bodily injury. 

Accordingly, we overrule appellant’s sole point of error.

Conclusion

Having overruled appellant’s sole point of error, we affirm the trial court’s 

judgment of conviction. See TEX. R. APP. P. 43.2(a).

Mackey K. Hancock

 Justice

Publish.