COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00221-CR

JUAN BLEA APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

TRIAL COURT NO. F-2011-0993-D

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DISSENTING MEMORANDUM OPINION1

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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

 1

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

2

See Tex. Penal Code Ann. § 22.02(b)(1) (West 2011).
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)3 and 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).

 3

The majority appears to resolve conflicts in witnesses’ testimony against 

the jury’s verdict. See Majority Op. at 8–10.
3

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 injury4 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. § 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.

 4

“Bodily injury” includes pain or any impairment of physical condition. Tex. 

Penal Code Ann. § 1.07(a)(8) (West Supp. 2014).
4

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 
5

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, 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.’”).

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. See Tex. 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. 
6

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.

/s/ Terrie Livingston

TERRIE LIVINGSTON

CHIEF JUSTICE

DO NOT PUBLISH

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

DELIVERED: February 5, 2015