Blea, Juan

PD-0245-15 PD-0245-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 4/16/2015 3:43:13 PM Accepted 4/21/2015 11:26:39 AM IN THE ABEL ACOSTA CLERK COURT OF CRIMINAL APPEALS OF TEXAS AUSTIN, TEXAS

JUAN BLEA, § Appellant § v. § No. PD-0245-15 THE STATE OF TEXAS, § Appellee §

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW AND CROSS PETITION FOR DISCRETIONARY REVIEW

FROM THE DECISION OF THE COURT OF APPEALS FOR THE SECOND APPELLATE DISTRICT OF TEXAS, FORT WORTH, IN CAUSE NUMBER 02-13-00221-CR, JUAN BLEA V. THE STATE OF TEXAS, AND FROM THE 362ND JUDICIAL DISTRICT COURT, DENTON COUNTY, TEXAS, THE HONORABLE BRUCE MCFARLING, JUDGE PRESIDING, AND, AS SITTING JUDGE, THE HONORABLE SHERRY SHIPMAN FROM THE 16TH JUDICIAL DISTRICT COURT, DENTON COUNTY, TEXAS.

DAWN A. MOORE Texas State Bar No. 00788072 BOSWELL & MOORE, P.C. 1504 EAST MCKINNEY STREET, April 21, 2015 SUITE 200 DENTON, TEXAS 76209 (940) 382-4711 (940) 349-9922 (FAX) dawn@boswellandmoore.com

IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of the parties and persons interested in the outcome of this cause:

(A) Juan Blea, Appellant 11700 Lebanon Drive, Apt. 1111 Frisco, Texas 75035

(B) Denver McCarty and Leah Harbour, counsel for Appellant at trial 1512 East McKinney Street, Suite 200 Denton, Texas 76209

(C) Dawn A. Moore, counsel for Appellant on appeal 1504 East McKinney Street, Suite 200 Denton, Texas 76209

(D) The State of Texas, by and through Paul Johnson, Denton County Criminal District Attorney; and Catherine Luft, Andrea Simmons, Dustin Gossage, and Michael Graves, Assistant Criminal District Attorneys 1450 East McKinney Denton, Texas 76209

(E) Lisa C. McMinn, State Prosecuting Attorney

209 West 14th Street, Suite 203 P.O. Box 13046 Austin, Texas 78711-3046

i (F) Honorable Bruce McFarling, Presiding Judge for the 362nd Court

Denton County Courts Building 1450 East McKinney Street, 3rd Floor Denton, Texas 76209-4524

(G) Honorable Sherry Shipman, as Sitting Judge for the 362nd Court

Denton County Courts Building 1450 East McKinney Street, 3rd Floor Denton, Texas 76209-4524

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TABLE OF CONTENTS

PAGE

IDENTITY OF PARTIES AND COUNSEL ............................................................................ i-ii INDEX OF AUTHORITIES ...................................................................................................... iv-v STATEMENT REGARDING ORAL ARGUMENT ................................................................. 2 STATEMENT OF THE CASE....................................................................................................... 2 STATEMENT OF PROCEDURAL HISTORY .......................................................................... 3 QUESTION PRESENTED FOR REVIEW ................................................................................ 3 Did the Court of Appeals perform the complete and proper analysis necessary to reach a conclusion on the legal sufficiency of whether Appellant’s hand had more than merely a hypothetical capability of causing death or serious bodily injury in the manner of its use or intended use in this assault, such that it constituted a deadly weapon?

ARGUMENT ..................................................................................................................................... 4 Evidence Recited in the Court’s Opinion ...................................................................... 4 Recited Analysis/Conclusion in the Court’s Opinion .............................................. 5 Relevant Law and Applicable Factors ............................................................................ 5 Missing Analysis in the Court’s Opinion ....................................................................... 7 Conclusion ................................................................................................................................. 9 PRAYER ...........................................................................................................................................10 CERTIFICATE OF COMPLIANCE ...........................................................................................10 CERTIFICATE OF SERVICE ......................................................................................................11

APPENDIX Blea v. State, 2015 WL 510954, at *1 (Tex. App.—Fort Worth 2015, pet. filed)

iii

INDEX OF AUTHORITIES

Statutes, Codes, And Rules Page

Tex. Penal Code § 1.07(17)(B) ................................................................................................ 5 Cases

Bailey v. State 46 S.W.3d 487 (Tex. App.—Corpus Christi 2001, pet. ref’d) ................................. 6

Baltazar v. State 331 S.W.3d 6 (Tex. App.—Amarillo 2010, pet. ref’d) ............................................... 5

Blea v. State 2015 WL 510954 (Tex. App.—Fort Worth 2015, pet. filed) ................................. 3

Brown v. State 716 S.W.2d 939 (Tex. Crim. App. 1986) ......................................................................... 6

Dominique v. State 598 S.W.2d 285 (Tex. Crim. App. 1980) ......................................................................... 6

Drichas v. State 175 S.W.3d 795 (Tex. Crim. App. 2005) ......................................................................... 5

Hill v. State 913 S.W.2d 581 (Tex. Crim. App. 1996) ......................................................................... 7

Jefferson v. State 974 S.W.2d 887 (Tex. App.—Austin 1998, no pet.) ................................................... 7

Johnston v. State 115 S.W.3d 761 (Tex. App.—Austin 2003), aff’d, 145 S.W.3d 215 (Tex. Crim. App. 2004) .............................................................. 7

Judd v. State 923 S.W.2d 135, 14 (Tex. App.—Fort Worth 1996, pet. ref’d) ............................. 6

iv

Kennedy v. State 402 S.W.3d 796 (Tex. App.—Fort Worth 2013, no pet. h.) .................................... 6

Lozano v. State 860 S.W.2d 152 (Tex. App.—Austin 1993, pet. ref’d) .............................................. 6

Romero v. State 331 S.W.3d 82 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) ...................... 6

Slaton v. State 685 S.W.2d 773 (Tex. App.—Houston [1st Dist.] 1985, pet. ref’d) ...................... 6

Williams v. State 235 S.W.3d 742 (Tex. Crim. App. 2007) ......................................................................... 9

v

IN THE COURT OF CRIMINAL APPEALS OF TEXAS AUSTIN, TEXAS

JUAN BLEA, § Appellant § v. § No. PD-0245-15 THE STATE OF TEXAS, § Appellee §

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW AND CROSS PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW JUAN BLEA, hereinafter referred to as Appellant, by and through his attorney of record, DAWN A. MOORE, and pursuant to Rule 68 of the Texas Rules of Appellate Procedure, files this PETITON FOR

DISCRETIONARY REVIEW AND CROSS PETITION FOR DISCRETIONARY

REVIEW and, for such Petition, would show this Court as follows.

STATEMENT REGARDING ORAL ARGUMENT

The State did not request oral argument in its Petition for Discretionary Review. The issue presented in this Petition/Cross Petition for Review is not a novel one. Appellant concurs that this Court can resolve either or both Petitions without oral argument and does not request argument barring a determination by this Court that argument would be helpful.

STATEMENT OF THE CASE

Appellant was convicted of the first-degree felony of Aggravated Assault of a Family Member. The jury assessed his punishment at five years confinement. On appeal Appellant challenged the legal sufficiency of evidence regarding both the element of serious bodily injury and the element of use of a deadly weapon. Holding that the evidence was insufficient to show that Appellant caused serious bodily injury, but sufficient to show that he used his hand as a deadly weapon, the Second Court of Appeals reversed and remanded with instructions to (1) modify the judgment to reflect a conviction for the lesser-included second-degree felony aggravated assault and (2) conduct a new trial on punishment for the second-degree felony. This Petition seeks review of the portion of the opinion overruling Appellant’s challenge to the legal sufficiency of the deadly weapon element of this offense.

STATEMENT OF PROCEDURAL HISTORY

The Second Court of Appeals issued its opinion reversing and remanding for modification as well as a new punishment trial on a lesser-included offense on February 5, 2015. Blea v. State, 2015 WL 510954, at *1 (Tex. App.—Fort Worth 2015, pet. filed) (Appendix). Chief Justice Livingston issued a dissenting opinion. No motion for rehearing was filed by either party. The due date to file a Petition for Discretionary Review in this cause was March 6, 2015. The State filed its Petition for Discretionary Review on March 13, 2015. Appellant filed his First Motion to Extend the Time for Filing the Appellant’s Petition for Discretionary Review on March 19, 2015. This Court granted Appellant’s requested extension and ordered his Petition timely filed on or before April 22, 2015.

QUESTION PRESENTED FOR REVIEW

Did the Court of Appeals perform the complete and proper analysis necessary to reach a conclusion on the legal sufficiency of whether Appellant’s hand had more than merely a hypothetical capability of causing death or serious bodily injury in the manner of its use or intended use in this assault, such that it constituted a deadly weapon?

ARGUMENT

The Second Court of Appeals devoted only two paragraphs of its sixteen-page opinion to addressing the deadly weapon “portion” of Appellant’s legal sufficiency challenge. Blea v. State, 2015 WL 510954, at *5-6 (Appendix). In undertaking its analysis, it seems the Court of Appeals overlooked fully considering all of the necessary factors essential to conducting a proper legal sufficiency review of whether Appellant’s hand was, in the manner of its use or intended use, a deadly weapon. Appellant contends that a complete evaluation of those factors would have led the Court to correctly conclude that there was legally insufficient evidence to support anything beyond the “hypothetical capability” that Appellant’s hand could cause death or serious bodily injury. Evidence Recited In The Court’s Opinion

In its Opinion the Second Court of Appeals recited “testimony touching on whether Appellant’s hand was a deadly weapon in the manner of its use or intended use”. Blea v. State, 2015 WL 510954, at *5 (Appendix). That recited evidence consisted of (1) the fact that “The complainant testified that after Appellant struck her with his hand, knocking her down, he said that he was going to kill her” (Blea v. State, 2015 WL 510954, at *5 (Appendix)) and (2) generic testimony by the responding police officer on direct examination *5 agreeing with the prosecutor that “a person’s hand” can be a deadly weapon and that “someone’s hands” are capable of causing death or serious bodily injury. Blea v. State, 2015 WL 510954, at *5-6 (Appendix). Recited Analysis/Conclusion In The Court’s Opinion

After recounting the above testimony, and without any specific analysis of all the commonly considered factors set forth in relevant case law, the Court of Appeals summarily concluded:

“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 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 bodily injury.”

Blea v. State, 2015 WL 510954, at *5-6 (Appendix). Relevant Law And Applicable Factors

The Texas Penal Code defines the term “deadly weapon” to include “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex. Penal Code § 1.07(17)(B); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005); Baltazar v. State, 331 S.W.3d 6 (Tex. App.—Amarillo 2010, pet. ref’d). Under this definition, “[o]bjects that are not usually considered dangerous weapons may become so, depending on the manner in which they are used during the commission of an *6 offense.” Drichas, 175 S.W.3d at 798. A person’s hands are not deadly weapons per se and can only become such depending on the manner in which they were used and the evidence shown. Judd v. State, 923 S.W.2d 135, 140 (Tex. App.— Fort Worth 1996, pet. ref’d); Slaton v. State, 685 S.W.2d 773, 775-76 (Tex. App.—Houston [1st Dist.] 1985, pet. ref’d) (holding that while hands could be used as deadly weapon, pushing a person over a rail with hands did not make hands deadly weapon).

Several nonexclusive factors to be considered in determining whether an object is capable of causing death or serious bodily injury are (1) physical proximity between the victim and the object, (2) the threats or words used by the defendant, (3) the size and shape of the weapon, (4) the weapon’s ability to inflict death or serious injury, (5) the manner in which the defendant used the weapon, and (6) the nature of the wounds inflicted. Dominique v. State, 598 S.W.2d 285, 286 (Tex. Crim. App. 1980); Kennedy v. State, 402 S.W.3d 796, 802 (Tex. App.—Fort Worth 2013, no pet. h.); Romero v. State, 331 S.W.3d 82, 83 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d); Bailey v. State, 46 S.W.3d 487, 491–92 (Tex. App.—Corpus Christi 2001, pet. ref’d); Lozano v. State, 860 S.W.2d 152, 156 (Tex. App.—Austin 1993, pet. ref’d). No one factor is determinative, and each case must be examined on its own facts. Brown v. State, 716 S.W.2d 939, 946–47 (Tex. Crim. App. 1986).

Moreover, while it is true that the State need not prove that the complainant actually sustained serious bodily injury for Appellant’s hand to be a deadly weapon, it must prove that his hand was capable of causing serious bodily injury in the way in which it was used or intended to be used. Jefferson v. State, 974 S.W.2d 887, 892 (Tex. App.—Austin 1998, no pet.); Hill v. State, 913 S.W.2d 581, 584 (Tex. Crim. App. 1996). The State is required to show that the object at issue had more than a hypothetical capability of causing death or serious bodily injury. See Johnston v. State, 115 S.W.3d 761, 764 (Tex. App.—Austin 2003), aff’d, 145 S.W.3d 215 (Tex. Crim. App. 2004) (when the State offered no evidence that the appellant intended to use the cigarette in any other manner that would have been capable of causing serious bodily injury, the mere fact that appellant could have caused serious bodily injury if he had used, or intended to use, the cigarette in a way other than he actually did was not supportive of a deadly weapon finding). Missing Analysis In The Court’s Opinion

Here, the Second Court of Appeals did not fully review or address the above-referenced factors that have been typically considered in appellate evaluations of whether an object, in the manner of its use or intended use, is capable of causing death or serious bodily injury.

The Court did not analyze or consider the complete absence of evidence addressing the size of the relative parties (or of Appellant’s hand).

The Court did not analyze or consider the complete absence of evidence as to whether Appellant’s hand had the ability to inflict death or serious injury. There was also no evidence that Appellant possessed any “special” fighting abilities, skills, or training that could make his “hand” dangerous.

The Court did not analyze or consider how (i.e., the manner in which) Appellant actually used his hand. The Court found that the evidence supported a reasonable jury concluding that he “struck her with his hand, knocking her down,” but this evidence, alone, does not support Appellant’s actual use of his hand in a manner consistent with its being a deadly weapon.

The Court did not analyze or consider the nature of the wounds inflicted in this specific portion of the legal sufficiency evaluation either. It neglected to specifically consider this fact, despite the Court’s having just found legally insufficient evidence to support that those injuries sustained actually constituted serious bodily injury.

The Court also did not analyze the physical proximity between the victim and the object.

The Court did recite specific evidence of one factor: the testimony concerning the threats or words used by the Appellant. However, even then, *9 the Court recounts this evidence in a perfunctory manner, failing to actually analyze that lone verbal threat, or evaluate it within the context under which it was made – considering all of the surrounding circumstances occurring immediately before, during, and after the assault. Conclusion

This Court is well aware of the standard of review when reviewing sufficiency of the evidence. Part of that review includes ensuring that the evidence presented actually supports a conclusion that the defendant committed the crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The Court erred by neglecting to conduct a proper, thorough analysis of the evidence or lack thereof. If it had conducted a full evaluation of all of the relevant factors under the proper standard of review, Appellant asserts that the Second Court would have concluded that the evidence was not legally sufficient to support that Appellant used a deadly weapon in the course of committing this assault. As a result of that conclusion the Court would have reversed and reformed Appellant’s conviction to reflect that he committed a misdemeanor assault family violence and would have remanded for a punishment hearing on that lesser-included offense.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant prays this Court will grant review of Appellant’s Petition for Discretionary Review or grant review of his Cross-Petition, in the event that this Court grants the State’s Petition for Discretionary Review, and order a full briefing on this issue(s).

Respectfully submitted,

/s/ Dawn A. Moore DAWN A. MOORE BOSWELL & MOORE, P.C. 1504 EAST MCKINNEY STREET SUITE 200 DENTON, TEXAS 76209 (940) 382-4711 (940) 349-9922 (FAX)

ATTORNEY FOR APPELLANT

CERTIFICATE OF COMPLIANCE I hereby certify that the word count in the foregoing Brief is 1399, having been calculated using Microsoft Word, the program used in the preparation of this Brief.

/s/ Dawn A. Moore DAWN A. MOORE

CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Petition has been served on Catherine Luft, Attorney for Appellee, 1450 East McKinney Street, Denton, Texas 76209, and Lisa McMinn, State Prosecuting Attorney, 209 West 14th Street, Suite 203, P.O. Box 13046, Austin, Texas 78711-3046, by electronic service on this, the 16th day of April 2015.

/s/ Dawn A. Moore DAWN A. MOORE

APPENDIX

Blea v. State, 2015 WL 510954, at *1 (Tex. App.—Fort Worth 2015, pet. filed)

Blea v. State, Not Reported in S.W.3d (2015) 2015 WL 510954

judgment to delete the conviction for first-degree felony aggravated assault of a family member and to instead 2015 WL 510954 Only the Westlaw citation is currently available. reflect a conviction for second-degree felony aggravated assault of a family member, based on Appellant’s use of a SEE TX R RAP RULE 47.2 FOR DESIGNATION deadly weapon, and (2) to conduct a new trial on AND SIGNING OF OPINIONS. punishment for the second-degree felony.4 MEMORANDUM OPINION DO NOT PUBLISH TEX. R. APP. P. 47.2(B) Court of Appeals of Texas, Fort Worth. Brief Summary of the Facts On the date of the offense, July 21, 2010, the complainant Juan Blea, Appellant and Appellant had a small daughter and shared a bedroom v. in his parents’ apartment. While Appellant and The State of Texas, State complainant were not married, they did marry about two NO. 02–13–00221–CR | DELIVERED: February 5, years later. 2015 A couple of weeks before the assault, Appellant had FROM THE 362ND DISTRICT COURT OF DENTON separated from the complainant and moved in with a COUNTY, TRIAL COURT NO. F–2011–0993–D friend. On July 20, the complainant spent time with a male friend from school. At trial, she did not remember Attorneys and Law Firms whether she returned home late that night or the next Dawn A. Moore, Boswell & Moore, P.C., Denton, TX, morning. Appellant visited the apartment that the for Appellant. complainant shared with his parents between 10:00 a.m. and noon on July 21 and was in a good mood. But he saw Paul Johnson, Criminal District Attorney; Catherine Luft, a hickey on the complainant’s neck, and when she refused Chief of the Appellate Section; Andrea R. Simmons, to tell him “where it was from,” he became angry. When Michael Graves, Dustin Gossage, Assistant Criminal she finally told him “who [the hickey] was from,” he hit District Attorneys for Denton County, Denton, TX, for her in the face with his hand. They were in the kitchen. At State. trial, she did not remember whether his hand was open or in a fist. In her testimony, the complainant denied falling, PANEL: LIVINGSTON, C.J.; DAUPHINOT and but in her written statement, she had said that she had GABRIEL, JJ. 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. MEMORANDUM OPINION1 The complainant testified that Appellant hit her only once. When the prosecutor suggested that Appellant had LEE ANN DAUPHINOT, JUSTICE continued to hit her and had asked where their daughter *1 A jury convicted Appellant Juan Blea of first-degree was, the complainant corrected him, stating, “[A]fter he felony aggravated assault of a family member. 2 The jury first hit me, she started getting fussy. I told him to leave assessed his punishment at five years’ confinement, and me alone and I wanted to put her asleep (sic) because I the trial court sentenced him accordingly. That offense didn’t want her around all this and us fighting.” requires both serious bodily injury and the use of a deadly weapon.3 In this case, the indictment alleged that After the complainant gave their daughter a bottle and put Appellant’s hand was a deadly weapon. Appellant brings her to bed in the bedroom, the couple began fighting a single issue on appeal, challenging the sufficiency of the again in the living room. Appellant hit her in the side. She evidence that he caused the complainant serious bodily testified that he hit her more than once and used both his injury rather than bodily injury as well as the sufficiency fist and his open hand. She said that he might have kicked of the evidence that he used his hand as a deadly weapon. her with his foot and also testified that she had been in a Because the evidence is insufficient to show that lot of pain after the assault. The prosecutor reminded her Appellant caused serious bodily injury but sufficient to that in her written statement, she had said that she was in show that he used his hand as a deadly weapon, we a “ton” of pain. The pain was in her back and her chest. reverse the trial court’s judgment and remand this case to The prosecutor asked, “Did you feel like something had the trial court with instructions (1) to modify the

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Blea v. State, Not Reported in S.W.3d (2015) 2015 WL 510954

been broken or terribly injured as a result of this?” The complainant responded, “Yes.”

*2 The child woke up, so Appellant stopped hitting the Sufficiency of the Evidence complainant, and she told him that either he or she needed Appellant contends that the evidence is insufficient to to go buy diapers. Appellant left the apartment and show that (1) he caused serious bodily injury and (2) his returned with the diapers. The complainant did not call hand was used as a deadly weapon. In our due-process the police while he was gone. When the prosecutor asked review of the sufficiency of the evidence to support a her why, she responded, “Because I didn’t want to.” She conviction, we view all of the evidence in the light most said that she had been scared and had not known how favorable to the verdict to determine whether any rational Appellant would act, and she had not wanted anyone to trier of fact could have found the essential elements of the know what had happened. When Appellant returned, he crime beyond a reasonable doubt.5 Section 22.02 of the and the complainant argued verbally. The prosecutor penal code provides, 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 (a) A person commits an offense if the person commits not tell Appellant that she was in pain. assault as defined in § 22.01 and the person:

After Appellant left, the complainant lay down with their (1) causes serious bodily injury to another, including daughter, took a bath, cleaned up, and then called the person’s spouse; or Appellant’s parents and asked them to come home from (2) uses or exhibits a deadly weapon during the work, stating that she had fallen down the stairs. After commission of the assault. Appellant’s parents saw her, his father called the police. (b) An offense under this section is a felony of the Officer Tim Adamo, who had been a police officer for second degree, except that the offense is a felony of the twenty-three years by the time of trial, called for an first degree if: ambulance after he arrived at the apartment. He described (1) the actor uses a deadly weapon during the the complainant’s injuries: commission of the assault and causes serious bodily injury to a person whose relationship to or association The first time I contacted her, she had visible injuries. I with the defendant is described by Section 71.0021(b), could see scrapes, lacerations on her face. She had 71.003, or 71.005, Family Code[.]6 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 Section 22.01 provides, early set of bruising. (a) A person commits an offense if the person: .... (1) intentionally, knowingly, or recklessly causes She was on the couch in the front room. bodily injury to another ...; (b) An offense under Subsection (a)(1) is a Class A .... misdemeanor ...7 ... [. S]he was in quite a bit of pain. She was, like, with one arm holding her ribs, her chest, her stomach area. “Bodily injury” is defined as “physical pain, illness or any impairment of physical condition.”8 “Serious bodily .... injury” is defined as “bodily injury that creates a substantial risk of death or that causes death, serious .... She said she had a hard time breathing, had a lot of permanent disfigurement, or protracted loss or pain. impairment of the function of any bodily member or organ.”9 The Texas Court of Criminal Appeals has .... explained that *3 [b]y virtue of the fact that the .... I was trying to get a statement from her, an affidavit, Penal Code provides a different but she had a lot of difficulty writing the statement. definition for “bodily injury” from “serious bodily injury”, though She tried to get up from the couch at one point and she often a matter of degree, we must fell back to the couch in pain and that’s when I called presume that the Legislature for a medic. intended that there be a meaningful © 2015 Thomson Reuters. No claim to original U.S. Government Works.

Blea v. State, Not Reported in S.W.3d (2015) 2015 WL 510954

difference or distinction between what happened, kind of the regulars. That was just “bodily injury” and “serious bodily kind of my way of avoiding everybody. injury.” Understandably, this means that where the issue is She also testified, raised, the issue must be determined on an ad hoc basis.10 Q You don’t really want to be here, do you?

And our sister court in El Paso has explained that A No. bodily injury cannot be elevated to serious bodily injury by postulating Q Now, when you were taken to the hospital, were potential complications which are you ever in the ICU, or do you know? not in evidence. The [S]tate must A Not that I know of. present evidence that the [complainant] suffered bodily Q Just in a regular room? injury that created a substantial risk of death. In other words, the [S]tate A Yes. must present relevant and probative evidence from which the trier of Q Do you have any serious permanent disfigurement fact could infer beyond a as a result of this incident? reasonable doubt that the injury itself created an appreciable risk of A No. death.11 Q As a result of this incident, did you have a The complainant’s mother, Jennifer, saw her in the protracted loss of the use of any bodily member or hospital. Jennifer testified that she noticed only the organ? bruising and redness of her daughter’s right eye. At trial, Jennifer did not remember whether her daughter had had A No. any trouble breathing. Jennifer did take photographs of the complainant over a period of time, and the Q Have you fully recovered? photographs revealed developing bruising over her face A Yes. and body. Although Jennifer testified on direct examination that the complainant was unable to walk in Q Were you able to get up and be out and about the hospital and for a month afterward, on cross- some the week after that? examination, she admitted that the complainant could stand and walk even while still in the hospital. A The week after the hospital?

The complainant did not work at her waitressing job for a Q Yeah, after they let you go home. month after the assault. When she returned, she switched from waitressing to acting as hostess. Jennifer testified A Yeah. that the job change occurred because the doctor had told the complainant not to lift more than twenty-five pounds. Q Okay. I mean, you could get up and go do The complainant, however, testified, something, right?

Q Did you resume your duties as a waitress? A Yeah, yeah.

A I decided to be a host. In response to the prosecutor’s asking her the meaning of “protracted loss or impairment of the function of any Q Why is that? bodily member or organ,” the complainant said that she did not know a specific definition, but that she “probably A Just so I didn’t have to deal with a lot of people. I would know that” and “if [she] did have that, wouldn’t a didn’t want to go back to doing waitressing just yet. doctor tell [her]?” Q Because you didn’t want to interact with people? *4 The trial court admitted State’s Exhibits 18 and 19, hospital records, but after reconsideration, withdrew the A That, and everybody at Champps kind of knew exhibits. The court reporter erroneously included those

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Blea v. State, Not Reported in S.W.3d (2015) 2015 WL 510954

two exhibits in the record, but both the State and Q Now, on the broken ribs, what treatment was Appellant conscientiously asked this court not to consider given to her for the broken ribs? those exhibits because they were never before the jury. We granted their request and have not considered those A Pain medication and respiratory, what we call exhibits. incentive spirometry, just deep-breathing exercises, and pain medication. The complainant’s injuries included two fractured ribs and a fractured maxillary sinus bone. She was kept in the Q When we hear broken ribs, we think of something hospital for four days and then “medically cleared for sticking through the skin, something like that. discharge.” Kristie Brown, a nurse practitioner at Parkland Hospital, testified concerning the complainant’s The rib was, I guess, still intact, for want of better medical treatment. Brown testified that the complainant words, but there was a fracture in it? had a collapsed lung, but it had already been treated when A There was a fracture in it. What alignment it had, I Brown met the complainant the morning after her would have to review the chest x-ray. I don’t admission to the hospital. Brown explained that a person remember. with a collapsed lung “can have trouble breathing, and it can affect blood pressure, vital signs that [medical Q In any event, there was nothing done to tape her professionals] look at.” Although the complainant had up or set any fractures or have any surgery regarding testified that “they said my liver was lacerated, or the ribs? something,” no other evidence of a lacerated liver was presented to the jury. Brown did testify that there was an A That is correct. injury to the complainant’s liver and an injury in her chest. Brown admitted that she was repeating the Q Okay. And would the same be true of the radiologist’s opinion, and the trial court sustained maxillary sinus? Appellant’s objection to her testifying about anything somebody else did. But the trial court did not instruct the A That’s correct. Due to the swelling, they saw jury to disregard. Brown testified that she checked for her—we recommended that she be seen in clinic peritonitis or other problems caused by a liver injury; after she was discharged home from the hospital. none was discovered. There was no evidence that any injury to the complainant’s liver was a serious bodily Q But no surgery or any procedures were done to injury.12 The following exchange occurred: repair that damage?

Q So at all times, her liver was functioning and A That’s correct. doing what it was supposed to be doing? Q It just healed on its own? A Yes, sir. A That is correct. Q And—all right. Same with her lungs? I mean, she could breathe, right? The only evidence that the complainant could have suffered serious bodily injury arose from the State’s A Yes, sir, she was breathing. inquiry whether “any injury to the liver [is] treated seriously or minimally” by Brown’s “profession.” She Q And I assume you tested her blood for oxygen replied that they are treated seriously because level? *5 [i]njuries to the liver can cause a A Yes, sir. patient to bleed to death very quickly. Knowing that there is an Q And I guess her blood was—her lungs were injury to the liver and why it is and working like they were supposed to? whether it is actively bleeding or has developed a blood clot to the A Yes, sir. liver makes a decision point for Q I mean, they were providing enough oxygen to what the surgeons do and what we her? do for the patient.

A Yes, sir. But there was no evidence that the complainant suffered

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Blea v. State, Not Reported in S.W.3d (2015) 2015 WL 510954

from such a condition. weapon finding. Testimony touching on whether Appellant’s hand was a deadly weapon in the manner of The prosecutor then asked whether “lungs [are] treated its use or intended use included that of the complainant seriously or minorly.” Brown replied, “Seriously.” When and that of Officer Adamo, the responding police officer. asked to explain why lungs are treated seriously, she The complainant testified that after Appellant struck her replied, “Because if we can’t control our oxygenation, we with his hand, knocking her down, he said that he was need oxygen to live, and you can die from that.” But going to kill her. Officer Adamo testified on direct Brown did not testify that the complainant suffered from examination by the prosecutor, such a condition. No one did. Indeed, Brown monitored the complainant to determine whether a substantial risk of *6 Q [C]an a person’s hand be a deadly weapon? death or any risk of death developed from any injury, and it did not. A Yes, it can.

Considering all the evidence, we hold that there is no .... evidence from any source that would allow a jury to Q [D]o you feel that someone’s hands are capable of conclude or infer beyond a reasonable doubt that the causing death or serious bodily injury? complainant’s injuries created a substantial risk of death.13 .... We must next consider whether the complainant suffered permanent disfigurement or protracted loss or impairment A Yes, they are very capable. of the use of a bodily member or organ.14 She testified that she had suffered neither. The only suggestion of such loss Appellant’s statement to the complainant that he was or impairment is Jennifer’s testimony that the doctors told going to kill her was some evidence of his intent to use the complainant not to lift more than twenty-five pounds. his hand as a deadly weapon. Officer Adamo’s testimony Jennifer did not say how long the limitation was to last was evidence that would allow a rational trier of fact to but said that it was because of the complainant’s ribs. conclude beyond a reasonable doubt that, in the manner of Jennifer also agreed that “we don’t know whether or not its intended use, Appellant’s hand was capable of causing [the complainant] was physically capable [of lifting], but death or serious bodily injury. Accordingly, we hold that she followed their advice.” the evidence is sufficient to support the jury finding that Appellant’s hand was a deadly weapon in the manner of The complainant testified that she was fully recovered. its intended use but that the evidence is insufficient to She also testified that she was able to go out and about support the serious bodily injury finding. We therefore some as soon as she was released from the hospital. sustain in part and overrule in part Appellant’s sole issue on appeal. The Moore court instructs us that given the common meaning of the word “protracted,” the complainant’s mother’s testimony, on which the State relies, that the complainant was bedridden and Conclusion that it was at least a week “before he could really go Because the State proved only second-degree aggravated out and see people,” does not even come close to assault of a family member beyond a reasonable doubt, establishing that the injury the complainant sustained to that is, it proved that Appellant committed an assault his back was either continuing, dragged out, drawn out, against the complainant and used a deadly weapon during elongated, extended, lengthened, lengthy, lingering, its commission, we reverse the trial court’s judgment in long, long-continued, long-drawn, never-ending, part. We remand this case to the trial court with ongoing, prolix, prolonged, or unending.15 instructions to (1) modify its judgment to delete the first- degree felony conviction of aggravated assault of a family We have carefully examined the record. There is no member and to instead reflect a second-degree felony evidence that the complainant suffered serious permanent conviction for aggravated assault of a family member disfigurement or protracted loss or impairment of the through the use of a deadly weapon and (2) conduct a new function of any bodily member or organ.16 We therefore trial on punishment.17 hold that the evidence is insufficient to support the element of serious bodily injury.

But the evidence is sufficient to support the deadly LIVINGSTON, C.J., filed a dissenting opinion. © 2015 Thomson Reuters. No claim to original U.S. Government Works.

Blea v. State, Not Reported in S.W.3d (2015) 2015 WL 510954

TERRIE LIVINGSTON, CHIEF JUSTICE, dissenting.1 Kristie Brown, a nurse practitioner, confirmed that the complainant had suffered a lung injury. Concerning that Because the majority’s opinion improperly applies injury—a pneumothorax—Brown testified, standards for reviewing the sufficiency of evidence to show that the victim suffered serious bodily injury, I if you have a box and a balloon blown up inside the dissent from the decision to reverse the trial court’s box and the balloon shrinks over time, there is air judgment and to remand for the entry of a judgment that between the box and the balloon, that is a reflects only a second-degree felony conviction.2 pneumothorax. Most of the time, the lungs should be expanded in our chest and touching the sides of the When deciding an evidentiary sufficiency issue in a box, but when the lung collapses, it’s just like a balloon criminal appeal, our usual deference to a jury’s verdict that has a small leak in it and collapses down. requires us to weight appellate scales in favor of affirming a judgment of conviction. See Winfrey v. State, 323 When that occurs, the patient, [the complainant], can S.W.3d 875, 879 (Tex.Crim.App.2010). We do so by have trouble breathing, and it can affect blood pressure, applying settled principles aimed at preventing us from vital signs that we look at. becoming a “thirteenth juror.” See Thornton v. State, 425 S.W.3d 289, 303 (Tex.Crim.App.2014); Isassi v. State, The complainant’s mother testified that while in the 330 S.W.3d 633, 638 (Tex.Crim.App.2010) (explaining hospital, the complainant was not able to move around the that in reviewing the sufficiency of evidence to support a room, and treatment for her collapsed lung required the conviction, we guard “against the rare occurrence when a insertion of a chest tube. According to the complainant’s factfinder does not act rationally”). Those principles mother, after the complainant left the hospital, she could include considering the evidence, along with reasonable not work or walk without pain for some time, and when inferences from the evidence, in the light most favorable she returned to work, she was instructed to not lift to the verdict; deferring to the factfinder’s exclusive role anything over twenty-five pounds. to resolve conflicts in the evidence (and inferences therefrom)3 and to judge the credibility of witnesses; While it is true that the complainant’s condition improved assessing incriminating evidence cumulatively rather than upon medical treatment, in determining whether evidence requiring each fact to directly support guilt; allowing for is sufficient to establish serious bodily injury, the relevant circumstantial evidence alone to support a conviction; and issue is the impairing effect of the bodily injury as it was recognizing that a factfinder is free to accept or reject any inflicted, not after the effects have been ameliorated by or all of the testimony of any witness. Whatley v. State, medical treatment. Jackson v. State, 399 S.W.3d 285, 291 445 S.W.3d 159, 166 (Tex.Crim.App.2014); Thomas v. (Tex.App.–Waco 2013, no pet.)(mem.op.); see Webb v. State, 444 S.W.3d 4, 8 (Tex.Crim.App.2014); Dobbs v. State, 801 S.W.2d 529, 532 (Tex.Crim.App.1990); State, 434 S.W.3d 166, 170 (Tex.Crim.App.2014); Sizemore v. State, 387 S.W.3d 824, 828 (Tex.App.– Hernandez v. State, 161 S.W.3d 491, 500–01 Amarillo 2012, pet. ref’d). And serious bodily injury may (Tex.Crim.App.2005). be established without a physician’s testimony when the injury and its effects are obvious. Sizemore, 387 S.W.3d *7 In showing fidelity to these principles in this appeal, at 828. we should determine that the evidence is sufficient to prove that the complainant suffered serious bodily injury, Brown testified that injuries to lungs are treated seriously meaning bodily injury4 that created “a substantial risk of because the lungs control oxygenation and affect blood death ... or protracted loss or impairment of the function pressure and “vital signs.” Brown also explained that of any bodily member or organ.” Tex. Penal Code Ann. § improper oxygenation can cause death. Thus, the jury 1.07(a)(46); see id. § 22.02(a)(1), (b)(1). The complainant could have reasonably inferred that if the complainant had testified that as a result of appellant’s hitting her side not received the procedure that Brown described repeatedly, she felt “a lot of pain” in her back and chest (presumably, the tube that the complainant’s mother and could not breathe. She believed that she had been testified about) to help with her difficulty in breathing, the “terribly injured.” Appellant’s father noticed that the complainant faced a substantial risk of death. See id.; see complainant had difficulty walking. Hospital personnel also Patterson v. State, No. 11–06–00209–CR, 2008 WL told her that she had a collapsed lung, among other 564880, at *3 (Tex. App–Eastland Feb. 28, 2008, pet. injuries. The complainant stayed in a hospital several ref’d) (not designated for publication) (concluding that days, and a “month or so” passed before she was able to testimony that the victim had trouble breathing and return to work. 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, © 2015 Thomson Reuters. No claim to original U.S. Government Works.

Blea v. State, Not Reported in S.W.3d (2015) 2015 WL 510954

No. 01–88–00197–CR, 1988 WL 139708, at *2 month-long effects from the assault qualify as a (Tex.App.–Houston [1st Dist.] Dec. 22, 1988, no pet.)(not “protracted” impairment of the complainant’s bodily designated for publication) (“[T]he possibility that [a functions. See id.; Williams v. State, 575 S.W.2d 30, 33 collapsed lung] could cause death, combined with the (Tex.Crim.App. [Panel Op.] 1979) (holding “that the testimony that the complainant’s lung was punctured, injury which caused [the victim] to lose lifting power in does support a finding that [a knife] was capable of his arm for three months” constituted a protracted causing ‘serious bodily injury.’ ”). impairment of the function of a bodily member, so that “the wound would be classified as serious bodily injury”); *8 Viewing the evidence in the light most favorable to the Madden v. State, 911 S.W.2d 236, 244–45 (Tex.App.– verdict and allowing the jury to draw reasonable Waco 1995, pet. ref’d) (concluding that there was serious inferences from the evidence, I would hold that based at bodily injury by protracted impairment of a bodily least on the facts concerning the injury to the member when the victim was shot in the hip, hospitalized complainant’s lung, that this injury required treatment for a day and a half, could not walk for a month after the through a tube, and that injuries to lungs can be life- shooting, and had permanent scar tissue where the bullet threatening, the evidence was sufficient for the jury to entered and exited his body); see also Tucker v. State, No. find that without treatment, the complainant faced a 05–01–01899–CR, 2002 WL 32397713, at *1–2 substantial risk of death. SeeTex. Penal Code Ann. § (Tex.App.–Dallas Oct. 30, 2002, no pet.)(not designated 1.07(a)(46). for publication) (holding that there was protracted impairment when the victim had a fractured jaw, was Moreover, I would also conclude that the evidence was restricted to a liquid diet for three weeks, and had jaw sufficient to show that the complainant sustained a serious pain for a month). bodily injury because she suffered from a protracted impairment of the functioning of her body. See id. The For all of these reasons, I respectfully dissent from the complainant testified that the injuries she suffered as a majority’s opinion and judgment. 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. I would hold that these

Footnotes 1 SeeTex.R.App. P. 47.4.

2 SeeTex. Penal Code Ann. § 22.02(b)(1) (West 2011). 3 Id. 4 See id. § 22.02(a)(2)-(b). 5 Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (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). 8 Id. § 1.07(a)(8). 9 Id. § 1.07(a)(46). 10 Moore v. State, 739 S.W.2d 347, 349 (Tex.Crim.App.1987).

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Blea v. State, Not Reported in S.W.3d (2015) 2015 WL 510954

11 Hernandez v. State, 946 S.W.2d 108, 112 (Tex.App.—El Paso 1997, no pet.)(citations and internal quotation marks omitted). 12 See id. at 111–13 (holding that a 1–centimeter laceration of the liver was unlikely to cause death and not serious bodily injury). 13 SeeTex. Penal Code Ann. § 1.07(a)(46). 14 See id. 15 739 S.W.2d at 352. 16 SeeTex. Penal Code Ann. § 1.07(a)(46). 17 See Bowen v. State, 374 S.W.3d 427, 432 (Tex.Crim.App.2012).

SeeTex.R.App. P. 47.4, 47.5. 2 SeeTex. Penal Code Ann. § 22.02(b)(1) (West 2011).

3 The majority appears to resolve conflicts in witnesses’ testimony against the jury’s verdict. See Majority Op. at 8–10. 4 “Bodily injury” includes pain or any impairment of physical condition. Tex. Penal Code Ann. § 1.07(a)(8) (West Supp.2014).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works.