² See Tex. Penal Code Ann. § 22.02(b)(J) JUDGES: PANEL: LIVINGSTON, C.J.; DAUPHINOT (West 2011 ). and GABRIEL, JJ . TERRIE LIVINGSTON, CHIEF 3 Id. JUSTICE. 4 See id.§ 22. 02(a)(2)-(b) . OPINION BY: LEE ANN DAUPHINOT Brief Summary of the Facts On the date of the offense, July 21, 20 I 0, the com- OPINION plainant and Appellant had a small daughter and shared a bedroom in his parents' apartment. While Appellant and MEMORANDUM OPINION 1 complainant were not married, they did marry about two years later. See Tex. R. App. P. 47.4. A couple of weeks before the assault, Appellant had A jury convicted Appellant Juan Blea of first-degree separated from the complainant and moved in with a felony aggravated assault of a family member.' The jury friend . On July 20, the complainant spent time with a assessed his punishment at five years' confinement, and the trial court sentenced him accordingly. That offense male friend from school. At trial, she did not remember Page 2 whether she returned home late that night or the next Officer Tim Adamo, who had been a police officer morning. Appellant visited the apartment that the com- for twenty-three years by the time of trial, called for an plainant shared with his parents between 10:00 a.m. and ambulance after he arrived at the apartment. He de- noon on [*3] July 21 and was in a good mood. But he scribed the complainant's injuries: saw a hickey on the complainant's neck, and when she refused to tell him "where it was from," he became an- The first time I contacted her, she had gry. When she finally told him "who [the hickey] was visible injuries. I could see scrapes, lacer- from," he hit her in the face with his hand. They were in ations on her face. She had her--under her the kitchen. At trial, she did not remember whether his left eye was bruised and had a cut on it. I hand was open or in a fist. In her testimony, the com- saw a mark on her arm, as well, like a plainant denied falling, but in her written statement, she redness and early set of bruising. 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. She was on the couch in the front room. 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 ... [. S]he was in quite a bit of pain. first hit me, she started getting fussy . I told him to leave She was, like, with one arm holding her me alone and I wanted to put her asleep (sic) because I ribs, her chest, her stomach area. didn't want her around all this and us fighting ." After the complainant gave their daughter a bottle She said she had a hard time and put her to bed in the bedroom, the couple began breathing, had a lot of pain. 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 .. . . I was trying to get a statement he might have kicked her with his foot and also testified from her, an affidavit, but she had a lot of that she had been in a lot of pain after the assault. The difficulty writing the statement. prosecutor reminded her that in her written statement, she had said that she was in a "ton" of pain. The pain was She tried to get up from the couch at in her back and her chest. The prosecutor asked, "Did one point and she fell back to the couch in you feel like something had been broken or terribly in- pain and that's when I called for a medic. jured as a result of this?" The complainant responded , "Yes." The child woke up, so Appellant stopped hitting the complainant, and she told him that either he or she Sufficiency of the Evidence needed to go buy diapers. Appellant left the apartment and returned with the diapers . The complainant did not Appellant contends that the evidence [*6] is insuf- call the police while he was gone. When the prosecutor ficient to show that (I) he caused serious bodily injury asked her why, she responded , "Because I didn't want and (2) his hand was used as a deadly weapon. In our to." She said that she had been scared and had not known due-process review of the sufficiency of the evidence to how Appellant would act, and she had not wanted any- support a conviction, we view all of the evidence in the one to know what had happened. When Appellant re- light most favorable to the verdict to determine whether turned , he and the complainant argued verbally. The any rational trier of fact could have found the essential prosecutor asked her whether it was evident that she was elements of the crime beyond a reasonable doubt. ' Sec- in pain. She testified that the pain had not set in yet and tion 22.02 of the penal code provides, that she did not tell Appellant that she was in pain . (a) A person commits an offense if the After Appellant left, the complainant lay down with person commits assault as defined in § their daughter, [*5] took a bath, cleaned up, and then 22.01 and the person: called Appellant's parents and asked them to come home from work, stating that she had fallen down the stairs. (I) causes serious bodily injury to After Appellant's parents saw her, his father called the another, including the person's spouse; or police. Page 3 (2) uses or exhibits a deadly weapon the issue must be determined on an ad hoc during the commission of the assault. basis. 10 (b) An offense under this section is a felony of the second degree, except that And our sister court in El Paso has explained that the offense is a felony of the first degree bodily injury cannot be elevated to se- if: rious bodily injury by postulating poten- (I ) the actor uses a deadly weapon tial complications which are not in evi- during the commission of the assault and dence. The [S]tate must present evidence causes serious bodily injury to a person that the [complainant] suffered bodily in- whose relationship to or association with jury that created a substantial risk of the defendant is described by Section death. In other words, the [S]tate must 71.0021(b), 71.003 , or 71.005, Family present relevant and probative evidence Code[.] 0 from which the trier [*8] of fact could infer beyond a reasonable doubt that the injury itself created an appreciable risk of Section 22.01 provides, death.11 (a) A person commits an offense if the person : (I) intentionally, knowingly, or recklessly causes bodily injury to another ... ; 8 Id.§ J.07(a)(8). 9 Id. § l.07(a)(46). 10 Moore v. State, 739 S.W.2d 34 7, 349 (Tex. (b) An offense under Subsection Crim. App. 1987). (a)( I) is a Class A misdemeanor . [*7] 11 Hernandez v. State, 946 S. W.2d 108, 112 (Tex. App.--EI Paso 199 7, 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

⁵ Jackson v. Virginia, 443 U.S. 307, 319, 99 S. bruising and redness of her daughter's right eye. At trial , Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Winfrey Jennifer did not remember whether her daughter had had v. State, 393 S. W.3d 763, 768 (Tex. Crim. App. any trouble breathing. Jennifer did take photographs of 2013). the complainant over a period of time, and the photo-

⁶ Tex. Penal Code Ann. § 22. 02(a)-(b). graphs revealed developing bruising over her face and

⁷ Id. § 22.01 (West Supp. 2014). body. Although Jennifer testified on direct examination that the complainant was unable to walk in the hospital "Bodily injury" is defined as "physical pain, illness and for a month afterward, on cross-examination, she or any impairment of physical condition ."8 "Serious bod- admitted that the complainant could stand and walk even ily injury" is defined as "bodily injury that creates a sub- while still in the hospital. stantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of The complainant did not work at her waitressing job the function of any bodily member or organ."9 The Texas for a month after the assault. When she returned, she Court of Criminal Appeals has explained that switched from waitressing to acting as hostess. Jennifer testified that the job change occurred because the doctor [b ]y virtue of the fact that the Penal had told the complainant not to lift more than twenty-five Code provides a different definition for pounds. The complainant, however, testified, "bodily injury" from "serious bodily injury", though often a matter of degree, we Q Did you resume your duties as a must presume that the Legislature intend- waitress? ed that there be a meaningful difference or A I decided to be a host. distinction between "bodily injury" and "serious bodily injury." Understandably, Q Why is [*9] that? this means that where the issue is raised, Page 4 A Just so I didn't have to deal with a "probably would know that" and "if [she] [*IO] did lot of people. I didn't want to go back to have that, wouldn't a doctor tell [her]?" doing waitressing just yet. The trial court admitted State's Exhibits 18 and I 9, Q Because you didn't want to interact hospital records, but after reconsideration, withdrew the with people? exhibits. The court reporter erroneously included those two exhibits in the record, but both the State and Appel- A That, and everybody at Champps lant conscientiously asked this court not to consider kind of knew what happened, kind of the those exhibits because they were never before the jury. regulars. That was just kind of my way of We granted their request and have not considered those avoiding everybody. exhibits. The complainant's injuries included two fractured She also testified, ribs and a fractured maxillary sinus bone. She was kept Q You don't really want to be here, do in the hospital for four days and then "medically cleared you? for discharge." Kristie Brown, a nurse practitioner at Parkland Hospital, testified concerning the complainant's A No. medical treatment. Brown testified that the complainant Q Now, when you were taken to the had a collapsed lung, but it had already been treated hospital, were you ever in the ICU, or do when Brown met the complainant the morning after her you know? admission to the hospital. Brown explained that a person with a collapsed lung "can have trouble breathing, and it A Not that I know of. can affect blood pressure, vital signs that [medical pro- Q Just in a regular room? fessionals] look at." Although the complainant had testified that "they said my liver was lacerated, or some- A Yes. thing," no other evidence of a lacerated [* 11] liver was Q Do you have any serious perma- presented to the jury. Brown did testify that there was an nent disfigurement as a result of this inci- injury to the complainant's liver and an injury in her dent? chest. Brown admitted that she was repeating the radiol- ogist's opinion, and the trial court sustained Appellant's A No. objection to her testifying about anything somebody else Q As a result of this incident, did you did . But the trial court did not instruct the jury to disre- have a protracted loss of the use of any gard . Brown testified that she checked for peritonitis or bodily member or organ? other problems caused by a liver injury; none was discovered. There was no evidence that any injury to the A No. complainant's liver was a serious bodily injury.12 The Q Have you fully recovered? following exchange occurred: A Yes. Q So at all times, her liver was func- Q Were you able to get up and be out tioning and doing what it was supposed to and about some the week after that? be doing? A The week after the hospital? A Yes, sir. Q Yeah, after they let you go home. Q And--all right. Same with her lungs? I mean, she could breathe, right? A Yeah. A Yes, sir, she was breathing. Q Okay. I mean, you could get up and go do something, right? Q And I assume you tested her blood for oxygen level? A Yeah, yeah . A Yes, sir. Q And I guess her blood was--her In response to the prosecutor's asking her the mean- lungs were working like they were sup- ing of "protracted loss or impairment of the function of posed to? any bodily member or organ," the complainant said that A Yes, sir. she did not know a specific definition, but that she Page 5 Q I mean, they were providing [i]njuries to the liver can cause a pa- enough oxygen to her? tient to bleed to death [* 13] very quickly. Knowing that there is an injury to the A Yes, sir. liver and why it is and whether it is ac- Q Now, on the broken ribs, what tively bleeding or has developed a blood treatment was given to her for the broken clot to the liver makes a decision point for ribs? what the surgeons do and what we do for the patient. A Pain medication and respiratory, what we call incentive spirometry, just deep-breathing exercises, and pain [* 12] But there was no evidence that the complainant suffered medication . from such a condition. Q When we hear broken ribs, we The prosecutor then asked whether "lungs [are] think of something sticking through the treated seriously or minorly." Brown replied, "Serious- skin, something like that. ly." When asked to explain why lungs are treated seri- The rib was, I guess, still intact, for ously, she replied, "Because if we can't control our oxy- want of better words, but there was a genation, we need oxygen to live, and you can die from fracture in it? that." But Brown did not testify that the complainant suffered from such a condition . No one did . Indeed, A There was a fracture in it. What Brown monitored the complainant to deterrnine whether alignment it had, I would have to review a substantial risk of death or any risk of death developed the chest x-ray. I don't remember. from any injury, and it did not. Q In any event, there was nothing Considering all the evidence, we hold that there is done to tape her up or set any fractures or no evidence from any source that would allow a jury to have any surgery regarding the ribs? conclude or infer beyond a reasonable doubt that the A That is correct. complainant's injuries created a substantial risk of death .'3 Q Okay. And would the same be true of the maxillary sinus? 13 See Tex. Penal Code Ann.§ l .07(a)(46) . A That's correct. Due to the swelling, We must next consider whether the complainant they saw her--we recommended that she suffered perrnanent disfigurement or protracted loss or be seen in clinic after she was discharged impairment of the use of a bodily member or organ.14 home from the hospital. [*14] She testified that she had suffered neither. The Q But no surgery or any procedures only suggestion of such loss or impairment is Jennifer's were done to repair that damage? testimony that the doctors told the complainant not to lift more than twenty-five pounds. Jennifer did not say how A That's correct. long the limitation was to last but said that it was because Q It just healed on its own? of the complainant's ribs. Jennifer also agreed that "we don't know whether or not [the complainant] was physi- A That is correct. cally capable [of lifting], but she followed their advice." 14 See id. The complainant testified that she was fully recov- 12 See id. at l l l -13 (holding that a ered. She also testified that she was able to go out and I-centimeter laceration of the liver was unlikely about some as soon as she was released from the hospi- to cause death and not serious bodily injury). tal. The only evidence that the complainant could have The Moore court instructs us that suffered serious bodily injury arose from the State's inquiry whether "any injury to the liver [is] treated seri- given the common meaning of the ously or minimally" by Brown's "profession." She re- word "protracted," the complainant's plied that they are treated seriously because mother's testimony, on which the State re- lies, that the complainant was bedridden and that it was at least a week "before he Page 6 could really go out and see people," does finding that Appellant's hand was a deadly weapon in the not even come close to establishing that manner of its intended use but that the evidence is insuf- the injury the complainant sustained to his ficient to support the serious bodily injury finding. We back was either continuing, dragged out, therefore sustain in part and overrule in part Appellant's drawn out, elongated, extended, length- sole issue on appeal. ened, lengthy, lingering, long, long-continued, long-drawn, nev- Conclusion er-ending, ongoing, prolix, prolonged, or Because the State proved only second-degree ag- unending. 15 gravated 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 15 739S.W.2dat352. instructions to (I) modify its judgment to delete the We have carefully examined the [* 15] record. first-degree felony conviction of aggravated assault of a There is no evidence that the complainant suffered seri- family member and to instead reflect a second-degree ous permanent disfigurement or protracted loss or im- felony conviction for aggravated assault of a family painnent of the function of any bodily member or or- member through the use of a deadly weapon and (2) gan.16 We therefore hold that the evidence is insufficient conduct a new trial on punishment. 11 to support the element of serious bodily injury. 17 See Bowen v. State, 374 S. W.3d 42 7, 432 16 See Tex. Penal Code Ann. § l .07(a)(46) . (Tex. Crim. App. 2012) . But the evidence is sufficient to support the deadly Isl Lee Ann Dauphinot weapon finding . Testimony touching on whether Appel- LEE ANN DAUPHINOT lant's hand was a deadly weapon in the manner of its use or intended use included that of the complainant and that JUSTICE of Officer Adamo, the responding police officer. The complainant testified that after Appellant struck her with PANEL: LIVINGSTON, C.J .; DAUPHINOT and GABRIEL, JJ. his hand, knocking her down, he said that he was going to kill her. Officer Adamo testified on direct examination LIVINGSTON, C.J., filed a dissenting opinion . by the prosecutor, [*17] DO NOT PUBLISH Q [C]an a person's hand be a deadly Tex. R. App. P. 47.2(b) weapon? DELIVERED: February 5, 2015 A Yes, it can. DISSENT BY: TERRIE LIVINGSTON Q [D]o you feel that someone's hands DISSENT are capable of causing death or serious bodily injury? DISSENTING MEMORANDUM OPINJON 1 See Tex. R. App. P. 4 7.4, 47. 5. A Yes, they are very capable. Because the majority's opinion improperly applies standards for reviewing the sufficiency of evidence to show that the victim suffered serious bodily injury, I Appellant's statement to the complainant that he was dissent from the decision to reverse the trial court's going to kill her was some evidence of his intent to use judgment and to remand for the entry of a judgment that his hand as a deadly weapon. Officer Adamo's testimony reflects only a second-degree felony conviction. 2 was evidence that would allow a rational trier of fact to 2 See Tex. Penal Code Ann. § 22.02(b)(I) conclude beyond a reasonable doubt that, in the manner (West 2011 ). of[* 16] its intended use, Appellant's hand was capable of causing death or serious bodily injury. Accordingly, When deciding an evidentiary sufficiency issue in a we hold that the evidence is sufficient to support the jury criminal appeal, our usual deference to a jury's verdict Page 7 requires us to weight appellate scales in favor of affirm- if you have a box and a balloon blown ing a judgment of conviction. See Winfrey v. State, 323 up inside the box and the balloon shrinks S. W.3d 875, 879 (Tex. Crim. App. 2010). We do so by over time, there is air between the box and app lying settled principles aimed at preventing us from the balloon, that is a pneumothorax. Most becoming a "thirteenth juror." See Thornton v. State, 425 of the time, the lungs should be expanded S.W.3d 289, 303 (Tex. Crim. App. 2014); Isassi v. State, in our chest and touching the sides of the 330 S. W.3d 633, 638 (Tex. Crim. App. 2010) (exp laining box, but when the lung collapses, it's just that in reviewing the sufficiency of evidence to support a like a balloon that has a small leak in it conviction, we guard "against the rare occurrence when a and collapses down. factfinder does not act rationally"). Those principles in- When that occurs, the patient, [the clude considering the evidence, along with reasonable complainant], can have trouble breathing, inferences from the evidence, in the light most favorable and it can affect blood pressure, vital to the verdict; deferring to the factfinder's exclusive role signs that we look at. to resolve conflicts in the evidence (and inferences therefrom) 3 and to judge the credibility of witnesses; [* 18] assessing incriminating evidence cumulatively rather than requiring each fact to directly support guilt; The complainant's mother testified that while in the allowing for circumstantial evidence alone to support a hospital, the complainant was not able to move around conviction; and recognizing that a factfinder is free to the room, and treatment for her co llapsed Jung required accept or reject any or all of the testimony of any wit- the insertion of a chest tube. According to the complain- ness. Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. ant's mother, after the comp lainant left the hospital, she App. 2014); Thomas v. State, 444 S. W.3d 4, 8 (Tex. Crim. could not work or walk without pain for some time, and App. 2014); Dobbs v. State, 434 S. W.3d 166, 170 (Tex. when she returned to work, she was instructed to not lift Crim. App. 2014); Hernandez v. State, 161 S. W 3d 491, anything over twenty-five pounds. 500-01 (Tex. Crim. App. 2005). While it is true that the [*20] comp lainant's condition improved upon medical treatment, in determining 3 The majority appears to resolve conflicts in whether evidence is sufficient to estab li sh serious bodily witnesses' testimony against the jury's verdict. injury, the relevant issue is the impairing effect of the See Majority Op. at 8-10. bodily injury as it was inflicted, not after the effects have In showing fidelity to these principles in this appeal, been ameliorated by medical treatment. Jackson v. State, we should determine that the evidence is sufficient to 399 S. W.3d 285, 291 (Tex. App.--Waco 2013, no pet.) prove that the complainant suffered serious bodily injury, (mem. op.); see Webb v. State, 801 S. W.2d 529, 532 meaning bodily injury• that created "a substantial risk of (Tex. Crim. App. 1990); Sizemore v. State, 387 S. W.3d death ... or protracted loss or impairment of the function 824, 828 (Tex. App.--Amaril/o 2012, pet. refd) . And se- of any bodily member or organ ." Tex. Penal Code Ann.§ rious bodily injury may be estab lished without a physi- / .0 7(a)(46); see id.§ 22.02(a)(l), (b)(I). The complain- cian's testimony when the injury and its effects are obvi- ant testified that as a result of appellant's hitting her side ous. Sizemore, 38 7 S. W.3d at 828. repeatedly, she felt "a lot of pain" in her back and chest Brown testified that injuries to lungs are treated se- and cou ld not breathe. She believed that she had been "terribly injured." Appellant's father noticed that the riously because the lungs contro l oxygenation and affect blood pressure and "vital signs." Brown also explained complainant had difficulty walking. Hospital personnel that improper oxygenation can cause death. Thus, the told her that she had a collapsed lung, among other inju- jury could have reasonably inferred that if the complain- ries. The complainant stayed in a hospital several days, ant had not received the procedure that Brown described and a "month or so" passed before she was able to [* 19] (presumably, the tube that the comp lainant's mother tes- return to work. tified about) to help with her difficulty in breathing, the 4 "Bodily injury" inc ludes pain or any impair- comp lainant faced a substantial risk of death. See id.; see ment of physical condition. Tex. Penal Code Ann. also Patterson v. State, No. 11-06-00209-CR, 2008 Tex. § l.07(a)(8) (West Supp. 2014). App. LEXIS 1525, 2008 WL 564880, at *3 (Tex. App.--Eastland Feb. 28, 2008, pet. refd) (not designated Kristie Brown, a nurse practitioner, confirmed that for publication) (concluding that testimony that the vic- the comp lainant had suffered a lung injury. Concerning tim had trouble breathing and received treatment for a that injury--a pneumothorax-- Brown testified, pneumothorax that if left untreated, could cause death, was sufficient to prove that [*21] the victim had a serious bodily injury); Pedro v. State, No. 01-88-0019 7-CR, Page 8 2015 Tex. App. LEXIS I 137, * 1988 Tex. App. LEXIS 3158, 1988 WL 139708, at *2 injury which caused [the victim] to lose lifting power in (Tex. App.--Houston [/st Dist.] Dec. 22, 1988, no pet.) his arm for three months" constituted a protracted im- (not designated for publication) ("[T]he possibility that pairment of the function of a bodily member, so that "the [a collapsed lung] could cause death, combined with the wound would be classified as serious bodily injury"); testimony that the complainant's lung was punctured, Madden v. State, 911 S.W.2d 236, 244-45 (Tex. does support a finding that [a knife] was capable of App.--Waco 1995, pet. refd) (concluding that there was causing 'serious bodily injury.'"). serious bodily injury by protracted impairment of a bodily member when the victim was shot in the hip, hospi- Viewing the evidence in the light most favorable to talized for a day and a half, could not walk for a month the verdict and allowing the jury to draw reasonable in- after the shooting, and had permanent scar tissue where ferences from the evidence, I would hold that based at the bullet entered and exited his body); see also Tucker v. least on the facts concerning the injury to the complain- State, No. 05-01-01899-CR, 2002 Tex. App. LEXIS 7740, ant's lung, that this injury required treatment through a 2002 WL 323977 13, at *I-2 (Tex. App.--Dallas Oct. 30, tube, and that injuries to lungs can be life-threatening, 2002, no pet.) (not designated for publication) (holding the evidence was sufficient for the jury to find that with- that there was protracted impairment when the victim out treatment, the complainant faced a substantial risk of had a fractured jaw, was restricted to a liquid diet for death. See Tex. Penal Code Ann.§ /.0 7(a)(46). three weeks, and had jaw pain for a month) . Moreover, I would also conclude that the evidence For all of these reasons, I respectfully dissent from was sufficient to show that the complainant sustained a the majority's opinion and judgment. serious bodily injury because she suffered from a protracted impairment of the functioning of her body. See id. Isl Terrie Livingston The complainant testified that the injuries she suffered as TERRIE LIVINGSTON a result of the assault required her to miss a "month or so" of work. Her mother testified that during that time, CHIEF JUSTICE the complainant "couldn't work" and just "[laid] around" DO NOT PUBLISH [*22] because walking was painful. I would hold that Tex. R. App. P. 47. 2(b) these month-long effects from the assault qualify as a "protracted" impairment of the complainant's bodily DELIVERED: February 5, 2015 functions . See id.; Williams v. State, 5 75 S. W.2d 30, 33 (Tex. Crim . App. [Panel Op.] 1979) (holding "that the J