Paul Charro v. State

CHARRO V. STATE IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-90-143-CR PAUL CHARRO, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT NO. 100,666, HONORABLE TOM BLACKWELL, JUDGE PRESIDING A jury convicted appellant, Paul Charro, of recklessly causing serious injury to a child, a third-degree felony. See Tex. Penal Code Ann. § 22.04(a)(1), (2), and (3) (1989). The jury also found that appellant had used a deadly weapon during the commission of the offense. The trial court assessed punishment at twenty years' confinement in the Texas Department of Criminal Justice, Institutional Division. (1) On appeal, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. We will affirm. BACKGROUND On the evening of June 5, 1989, Austin police officers received an assist-EMS call to a residence on Lyons Street. On arriving at the residence, the officers found the appellant, his wife, and two small children, ages three and one. The officers noticed that the three-year-old child had his hand wrapped in a cloth. After further investigation, the officers found that the child's hand was severely burned. In a written statement, the appellant admitted that he had burned the child's hand. He said he had held the child's hand over the flame on the cooking stove in order to teach the child a lesson. He claimed, however, that he never intended to burn the child. STANDARD OF REVIEW As stated above, the appellant challenges both the legal and factual sufficiency of the evidence to support his conviction. In reviewing the legal sufficiency of the evidence, the standard is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Webb v. State, 801 S.W.2d 529, 530 (Tex. Crim. App. 1990). As for the factual sufficiency of the evidence, this Court recently determined that it had the power to conduct such a review in Stone v. State, No. 3-90-149-CR (Tex. App.--Austin, January 8, 1992, no pet.). In that opinion, we also discussed the factual-sufficiency standard of review: When the court of appeals conducts a factual-sufficiency review, the court does not ask if any rational jury, after viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime beyond a reasonable doubt. . . . Rather, the court views all the evidence without the prism of "in the light most favorable to the prosecution." Because the court is not bound to view the evidence in the light most favorable to the prosecution, it may consider the testimony of defense witnesses and the existence of alternative hypotheses. The court should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id., slip opinion at 10. SERIOUS BODILY INJURY Section 22.04 of the Texas Penal Code provides the following: A person commits an offense if he . . . recklessly, . . . by act or omission, engages in conduct that causes to a child who is 14 years of age or younger . . . : (1) serious bodily injury; (2) serious physical or mental deficiency or impairment; (3) disfigurement or deformity; . . . . Tex. Penal Code Ann. § 22.04(a)(1), (2), and (3) (1989). In his first and third points of error, the appellant argues that the evidence is legally and factually insufficient to support a jury finding that the child's burned hand was (1) a serious bodily injury; (2) a serious physical or mental deficiency or impairment; or (3) a disfigurement or deformity. 1. Evidence At trial the State introduced the testimony of several physicians and physical therapists who were involved in the treatment of the child's hand in the present case. Their testimony, and evidence introduced through them, showed the following: (1) The child was in the hospital for approximately three weeks receiving treatment for his burned hand. (2) The child's hand suffered from severe second degree burns that resulted in swelling of the hand, loss of fingernails, and severe blistering of the skin. (3) While in the hospital, the child naturally held his hand in the most comfortable position, thereby becoming susceptible to developing a "claw hand" from a shortening of tendons and the formation of scar tissue. The attending physicians and therapists prescribed various treatments (such as a splint for the child's hand) and occupational therapy to prevent the development of such a condition. (4) The physicians also prescribed physical and occupational therapy to help the child increase the range of motion and strength in his burned hand. (5) As of three months after the child's hand was burned, the child still did not have the full range of motion in his hand, and on the strength scale the child could not move the needle when fifteen to twenty pounds of force would have been normal. (6) The child's hand has permanent scars resulting from the burn, and the hand suffers from hot and cold insensitivity. Further, without the treatment and therapy described above, the child would have developed a claw-hand condition and, thus, the use of his hand would have been seriously restricted. 2. Discussion Viewing this evidence in the light most favorable to the prosection, we conclude that it is legally sufficient to support the jury's verdict. The Texas Penal Code defines "serious bodily injury" as a "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. § 1.07(a)(34) (1974). In the present case, the child had very restricted use, if any, of his hand for several weeks after it was burned. Indeed, for at least three months after it was burned, the range of motion in the hand was very restricted and the strength of the hand was severely diminished. Further, the child's hand is permanently scarred and suffers from decreased sensitivity. Based on this evidence of protracted loss or impairment of the function of a bodily member or organ, we conclude that a rational jury could find beyond a reasonable doubt that the child's burned hand was a serious bodily injury as that term is defined in the statute. See Brown v. State, 605 S.W.2d 572 (Tex. Crim. App. 1980); Williams v. State, 575 S.W.2d 30 (Tex. Crim. App. 1979); Kenney v. State, 750 S.W.2d 10 (Tex. App. 1988, pet. ref'd); Allen v. State, 736 S.W.2d 225 (Tex. App. 1987, pet. ref'd); Botello v. State, 693 S.W.2d 528 (Tex. App. 1985, pet. ref'd). Citing Webb, 801 S.W.2d at 529, the appellant seems to argue that the child's burned hand was not a serious bodily injury because it has healed with only slight scarring. As stated above, however, the child's hand is not only scarred, but suffers from a loss of sensitivity. Further, appellant will not be allowed to inflict serious bodily injury on a child and then benefit from the positive efforts of the medical profession. The relevant issue is the extent of the bodily injury as inflicted, not after the effects have been ameliorated (or exacerbated) by medical treatment. Brown, 605 S.W.2d at 575; Barrera v. State, 820 S.W.2d 194, 196 (Tex. App. 1991, pet. ref'd). In Webb there was no evidence that the complainant's injury, without the surgery, would have caused permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ. Webb, 801 S.W.2d at 532. In the present case, however, there is evidence that without expert medical treatment the child would have developed a claw-hand condition, permanently impairing his use of that hand. The child enjoys greater use of the hand now than he would have without treatment and therapy. Based on our discussion above, we conclude that there is legally sufficient evidence to support the jury's verdict. Further, having considered and weighed all the evidence, we cannot conclude that the jury's verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. DEADLY WEAPON In his second and third points of error, the appellant argues that the evidence is legally and factually insufficient to support the jury's finding that he committed the offense with a deadly weapon. The Texas Penal Code defines "deadly weapon" to mean "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Penal Code Ann. § 1.07(a)(11)(B) (1974). In the present case, appellant used an open flame originating from a stovetop to inflict a serious bodily injury. If something actually causes serious bodily injury due to the manner in which it is used, then that is necessarily evidence that it is capable of causing serious bodily injury. See Bosier v. State, 771 S.W.2d 221, 224 (Tex. App. 1989, pet. ref'd); see also Taylor v. State, 735 S.W.2d 930, 948-49 (Tex. App. 1987), aff'd after remand on other grounds, 786 S.W.2d 295 (Tex. Crim. App. 1990), cert. denied, 111 S. Ct. 110 (1990) (holding that fire as used in that case was a deadly weapon within the meaning of the statute). Further, there is expert testimony in the record that an open flame on a stovetop is capable of causing serious bodily injury if a person's hand is subjected to the flame. Therefore, we conclude that the evidence is both legally and factually sufficient to support the jury's finding that appellant used a deadly weapon to commit the offense. CONCLUSION Based on our foregoing discussion, we conclude that the evidence is both legally and factually sufficient to support the jury's verdict. We overrule appellant's three points of error and affirm the conviction. J. Woodfin Jones, Justice [Before Justices Powers, Jones and Kidd] Affirmed Filed: April 8, 1992 [Do Not Publish] 1. Appellant's punishment was enhanced pursuant to the habitual-offender provision in Tex. Penal Code Ann. § 12.42(a) (1974).