Opinion
No. 07-16-00175-CR
03-13-2018
ALBERTITO MOLINAR, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 47th District Court Randall County, Texas
Trial Court No. 26,125-A, Honorable Dan L. Schaap, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
At a jury trial, appellant Albertito Molinar was found guilty of the third degree felony offense of evading arrest or detention, causing serious bodily injury to another. He was also found guilty of the state jail felony offense of theft of property in the amount of $1500 or less, enhanced by two prior final felony convictions. He was sentenced by the trial court to concurrent sentences of 25 years as punishment for the evading offense and 24 months of imprisonment for the theft. Appellant appeals, arguing the evidence was insufficient to support his conviction for evading arrest or detention, causing serious bodily injury. We will affirm.
TEX. PENAL CODE ANN. § 38.04 (b)(2)(B) (West 2018).
TEX. PENAL CODE ANN. § 31.03 (West 2018).
Background
A loss prevention officer at an Amarillo Walmart saw appellant take a DVD player and a soft drink from the store without paying for them. Officer Michael Cote of the Amarillo Police Department responded to the theft call. Appellant attempted to run from Cote and Cote followed him. Cote fell and twisted his right knee. He was unable to further pursue appellant because of the pain in his knee. Another responding officer apprehended and arrested appellant.
At trial, the State presented Cote's testimony as well as the testimony of Joseph Perry, a physician assistant, to prove Cote suffered serious bodily injury as a result of appellant's evasion. Perry testified he is employed by the surgeon who operated on Cote's knee, but was not directly involved in Cote's treatment. The State introduced Cote's medical records from his treatment by the surgeon.
Analysis
Through his sole issue on appeal, appellant contends the State failed to present sufficient evidence to prove Cote sustained a serious bodily injury. Appellant does not deny the evidence showed Cote suffered injury as a direct result of his attempt to apprehend appellant during appellant's flight. The contention relates only to the sufficiency of the evidence that Cote suffered serious bodily injury. We find the evidence sufficient.
When examining the sufficiency of the evidence, we consider the combined and cumulative force of all admitted evidence in the light most favorable to the conviction to determine whether, based on the evidence and reasonable inferences therefrom, a rational trier of fact could have found each element of the offense beyond a reasonable doubt. Ramsey v. State, 473 S.W.3d 805, 808-09 (Tex. Crim. App. 2015) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012)). The trier of fact is the exclusive judge of the credibility and weight of the evidence and is permitted to draw any reasonable inference from the evidence so long as it is supported by the record. Ramsey, 473 S.W.3d at 809 (citation omitted). Inferences based on mere speculation, however, are insufficient to support a criminal conviction. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).
A person commits the offense of evading arrest, or detention, causing serious bodily injury "if he intentionally flees from a person he knows is a peace officer . . . attempting lawfully to arrest or detain him" and "another suffers serious bodily injury as a direct result of an attempt by the officer . . . from whom the person is fleeing to apprehend the actor while the actor is in flight." TEX. PENAL CODE ANN. § 38.04(a), (b)(2)(B). "Serious bodily injury" means "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)(46) (West 2018).
When determining whether a bodily injury is serious under the statutory definition, we look to the injury "as it was inflicted" rather than considering the ameliorating effects of medical treatment. Sizemore v. State, 387 S.W.3d 824, 828 (Tex. App.—Amarillo 2012, pet. ref'd) (citations omitted). See also Blea v. State, 483 S.W.3d 29, 35 (Tex. Crim. App. 2016) (when determining whether an injury constitutes serious bodily injury, the court is to consider "the disfiguring and impairing quality of the bodily injury as it was inflicted on a complainant by an offender" and "should not consider the amelioration or exacerbation of an injury by actions not attributable to the offender, such as medical treatment," disavowing language in Moore v. State, 739 S.W.2d 347, 354 (Tex. Crim. App. 1987) to the contrary).
There are no wounds or injuries that constitute "serious bodily injury" per se. Reyes v. State, No. 03-15-00233-CR, 2017 Tex. App. LEXIS 2450, at *10-11 (Tex. App.—Austin March 23, 2017, no pet.) (mem. op., not designated for publication) (collecting cases). Consequently, we must determine whether an injury constitutes a serious bodily injury "on a case-by-case basis, evaluating each case on its own facts to determine whether the evidence was sufficient to permit the finder of fact to conclude that the injury fell within the definition of 'serious bodily injury.'" Sizemore, 387 S.W.3d at 828 (citations omitted). The "necessity of surgery alone is insufficient to establish serious bodily injury." Id. (citation omitted). But, "in evaluating the evidence supporting serious bodily injury, courts do consider as a relevant factor whether the injury would be permanently disfiguring without medical treatment. Id. (citation omitted).
"Serious bodily injury" may be established without a physician's testimony when the injury and its effects are obvious. Id. (citation omitted). The person who sustained the injury is qualified to express an opinion about its seriousness. Id. (citation omitted). In determining whether bodily injury is serious, "the jury may apply its common sense, knowledge, and experience gained in the ordinary affairs of life as it draws reasonable inferences from the evidence." Castro v. State, No. 12-14-00080-CR, 2016 Tex. App. LEXIS 2448, at *21-22 (Tex. App.—Tyler Mar. 9, 2016, pet. ref'd) (mem. op., not designated for publication).
Cote told the jury that when he entered a parking lot adjacent to the Walmart in response to the dispatch, he saw appellant and he engaged his patrol car lights and siren, attempting to stop appellant. Appellant began to run and when Cote realized his car could not follow appellant, he got out of his car and ran after him. As he did so, he "tripped through a rut or a hole and fell on the ground." He told the jury he had "severe pain to my right knee" and described it as "a 10" on a scale of zero to ten. After a few minutes, Cote stood up but was unable to put "much weight" on his right leg.
Cote went to the hospital for evaluation of his knee. He later saw the orthopedic surgeon and, about three weeks after his injury, had surgery to repair his knee. Cote testified 18 weeks elapsed between his injury and his return to the field. During that time, he "was unable to run, pivot, bend down without pain." He testified he participated in 36 sessions of physical therapy after his surgery. During cross-examination, Cote acknowledged he suffered little pain from the time of his injury to his surgery, telling his doctor's assistant his pain level was a 0 out of 10 on one occasion and a 2 out of 10 on another. Cote also acknowledged he told his doctor's assistant that after his surgery, his pain level was a 1 out of 10 while at rest and 3 or a 4 out of 10 with some activity. He agreed he took "Tylenol 3s for a period of time."
Perry testified he had worked with Cote's knee surgeon for approximately 15 years. He also testified to his review of the medical records that were before the jury. From that review, Perry concluded Cote "had a complete tear of the anterior cruciate ligament, he had partial tears of the medial and lateral meniscus . . . as well as a grade two sprain of the medial collateral ligament." The records confirm Perry's description of Cote's injury, one stating Cote suffered from "persistent right knee pain and instability after an ACL tear" and "medial and lateral meniscus tears." Perry said that in the orthopedic field, these injuries are called "the unhappy triad" and place a patient "into a higher classification for need for surgery." The operative note stated the surgery revealed a "fully torn ACL," and explained the reconstruction of the ACL. The surgeon prepared the injured area by creating "portals" and debriding unhealthy tissue. The surgeon removed a portion of Cote's patellar tendon and grafted it "across the knee," securing it by screws placed into the femur and the tibia, and applying tension to achieve full extension and flexion of the knee.
Perry described the prognosis from Cote's knee injury without medical intervention. Without the surgery, he said, Cote would have suffered a permanent disability. He elsewhere said without the surgery, Cote's knee would have been "unstable" and would make it "very, very unlikely" that Cote would be able to perform his duties as a police officer.
The medical records reflect that, after his rehabilitation, Cote was released by the surgeon to return to normal activities without restriction about four months after his injury. The record of that last examination states Cote then was still wearing his ACL brace at work and during some activities, and still was experiencing a "popping" in his knee on occasion. He reported pain levels at that examination of "0/10 at rest and 4-5/10 during workouts."
Appellant points to two cases to support his contention the evidence presented at trial was insufficient to prove Cote sustained serious bodily injury. We find both distinguishable.
In Black v. State, 637 S.W.2d 923, 926 (Tex. Crim. App. 1982), the court found no evidence the victim had any loss of the use of his leg even though he suffered a gunshot wound to the thigh and required surgical treatment. The court noted the victim "ran 1 ½ to 2 miles after being shot." Id. He spent three days in the hospital recovering and testified it "took two to three months to heal." Id. But, the victim "did not indicate he had any loss of use of the limb." Id. The State did not offer hospital records or other evidence to show the victim "suffered permanent damage to his thigh." Id.
In Webb v. State, 801 S.W.2d 529, 530 (Tex. Crim. App. 1990) (per curiam), the Court of Criminal Appeals found the evidence insufficient to show serious bodily injury when the victim testified only that he required surgery to repair a broken jaw bone after the defendant hit him with a rock. The court found it significant that there was no evidence that the victim's injury, absent surgery, would have caused permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ. Id. (citation omitted).
We find the facts before us more closely analogous to those in Brown v. State, 605 S.W.2d 572, 574-75 (Tex. Crim. App. 1980), a case cited in Webb and cited with approval in Blea. See Webb, 801 S.W.2d at 530; Blea 483 S.W.3d at 34. In Brown, the victim's nose was broken during a sexual assault. The injury required medical treatment, including setting of the bone. The setting "prevented disfigurement and impairment of function." Id. at 575. The court found evidence that the injury would have caused disfigurement and dysfunction of the nose if the bone had not been set was sufficient to show serious bodily injury. Id.
Likewise, here, Perry testified Cote's knee would have been "unstable" and he would have suffered disability without the surgery that reconstructed his ACL and repaired the meniscus tears. Unlike the victim in Black who ran after he was injured, Cote was unable to stand for several minutes and then could bear little weight on his injured leg. And Cote testified he still had moderate pain in his knee when he engaged in activity.
Because we are tasked with determining whether the injury as it was inflicted constituted serious bodily injury, not whether the injury constituted serious bodily injury following medical intervention, we find the evidence sufficient to show beyond reasonable doubt that Cote suffered a protracted impairment of the function of his knee. See TEX. PENAL CODE ANN. § 1.07(a)(46); Blea, 483 S.W.3d at 34-35; Brown, 605 S.W.2d at 575. We resolve appellant's sole issue against him.
Conclusion
Having overruled appellant's sole issue, we affirm the judgment of the trial court.
James T. Campbell
Justice Do not publish.