Nos. 05-08-00703-CR, 05-08-00704-CR
Opinion Filed March 10, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the Criminal District Court No. 7, DALLAS County, Texas, Trial Court Cause Nos. F07-30022-Y F07-30023-Y.
Before Justices O'NEILL, LANG, and MYERS.
Opinion By Justice MYERS.
Appellant was convicted of failing to stop and render aid and intoxication assault, and sentenced to concurrent terms of ten years in prison. In five issues, he challenges the factual sufficiency of the evidence supporting the element of serious bodily injury in the offense of intoxication assault; five prior Louisiana convictions admitted during the punishment phase of the trial; the trial court's decision admitting evidence of a prior Texas conviction; and the legal and factual sufficiency of the evidence supporting the enhancement paragraphs. We affirm the trial court's judgments.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On the night of June 9, 2007, Jose Ruiz Perez's vehicle was sitting at the intersection of Pioneer Street and Belt Line Road, waiting to make a left turn onto Belt Line. Perez was in the driver's seat and his girlfriend, Maria Vasquez, was seated in the passenger seat next to him. When the light turned green, Perez's vehicle began to turn left when a car driven by appellant collided with the front passenger's side of Perez's vehicle. After the collision, appellant got out of his car and ran to the parking lot of a nearby Circle K gas station. A driver who witnessed the collision got out of his car and followed appellant around the Circle K parking lot on foot in an effort to prevent him from leaving the scene of the accident. Police and paramedics arrived at the accident scene a few minutes later. Perez and Vasquez were examined by paramedics and taken by ambulance to a hospital. Perez sustained some bruising from the pressure applied by his seatbelt at the moment of impact, but otherwise sustained no injuries. Vasquez suffered a bloody nose, scratches on her face from broken glass, a fractured clavicle bone, and was unable to move her right arm. To regain the use of her arm, she performed recommended physical therapy exercises. She was also prescribed pain medication, which she took for two weeks. Vasquez claimed she did not regain the normal use of her right arm until three months after the collision. Grand Prairie Police Officer Chasteen and another officer searched the vicinity of the accident and eventually found appellant standing in the middle of another intersection, "bleeding all over" and "sweating profusely" as he yelled at the officers. Appellant at first refused to comply with the officers' demands to get down on the ground, but he finally did so when the officers threatened to use a taser. When Chasteen got close enough to appellant to handcuff him, he smelled the odor of alcohol on appellant. The two intoxilyzer tests later administered to appellant showed his alcohol concentration was 0.147 and 0.140, which is above the legal limit. Appellant was charged, in cause number 05-08-00703-CR, with failing to stop and render aid, and in cause number 05-08-00704-CR, with intoxication assault. The State filed a notice of intent to enhance the punishment ranges in both cases. Following a jury trial, the jury found appellant guilty of both offenses. The jury also found the enhancement paragraphs to be true in each case and sentenced appellant to concurrent terms of ten years in prison. DISCUSSIONSerious Bodily Injury
In his first issue, appellant argues the evidence is factually insufficient to support the element of serious bodily injury in the offense of intoxication assault. Standard of Review In a factual sufficiency review, we consider whether, after viewing the evidence in a neutral light, a rational trier of fact was justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). We "must be cognizant of the fact that a jury has already passed on the facts and must give due deference to the determinations of the jury." Lancon v. State, 253 S.W.3d 699, 704-05 (Tex. Crim. App. 2008). "A verdict should be set aside only if the evidence supporting the verdict is so weak as to render the verdict clearly wrong or manifestly unjust." Id. at 705. Consequently, we will not reverse a judgment on a factual sufficiency challenge unless we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at 417. We cannot conclude a conviction is clearly wrong or manifestly unjust simply because we would have decided differently than the jury or because we disagree with the jury's resolution of a conflict in the evidence. Id. We may not simply substitute our judgment for the jury's. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless we conclude it is necessary to correct a manifest injustice, we must give due deference to the jury's determinations, "particularly those determinations concerning the weight and credibility of the evidence." Johnson, 23 S.W.3d at 9. Our deference in this regard safeguards the defendant's right to a trial by jury. Lancon, 253 S.W.3d at 704. Applicable Law Appellant was charged with committing intoxication assault by causing serious bodily injury to Vasquez. "Serious bodily injury" is defined as "injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ." TEX. PENAL CODE ANN. § 49.07(b) (Vernon Supp. 2009). The difference between bodily injury and serious bodily injury, while real and meaningful, is one of degree. Moore v. State, 739 S.W.2d 347, 349 (Tex. Crim. App. 1987). For there to be protracted impairment such that a finding of serious bodily injury is proper, the organ or bodily member must lose some function. Hernandez v. State, 946 S.W.2d 108, 113 (Tex. App.-El Paso 1997, no pet.). The loss of function, however, need only be protracted, not permanent. See Williams v. State, 575 S.W.2d 30, 33 (Tex. Crim. App. 1979) (loss of lifting power in arm for three months constituted serious bodily injury); Madden v. State, 911 S.W.2d 236, 244 (Tex. App.-Waco 1995, pet. ref'd) (inability to walk for four weeks because of injured left hip constituted serious bodily injury.); Coshatt v. State, 744 S.W.2d 633, 636 (Tex. App.-Dallas 1987, pet. ref'd) (fractured vertebrae requiring six weeks of bed rest and no heavy work for three months constituted serious bodily injury.); Allen v. State, 736 S.W.2d 225, 227 (Tex. App.-Corpus Christi 1987, pet. ref'd) (broken finger that was stiff and dysfunctional three and a half months later constituted serious bodily injury.); but see Moore, 739 S.W.2d at 349, 351-52 (injured nose and back requiring a few hours in a hospital was not sufficient evidence of serious bodily injury); Hernandez, 946 S.W.2d at 113 (knife wound to victim's chest, including laceration of liver, without evidence of impairment of a bodily member or organ, was not sufficient evidence of serious bodily injury). To be considered "protracted," an injury should be "continuing, dragged out, drawn out, elongated, lengthened, lengthy, lingering, long, long-continued, long-drawn, never-ending, ongoing, prolix, prolonged, or unending." Moore, 739 S.W.2d at 352. The injured party is qualified to offer an opinion as to the severity of the injuries, and expert testimony is not required. See Coshatt, 744 S.W.2d at 636. Analysis In this case, neither side claims there is evidence of a substantial risk of death or a serious disfigurement, so the only issue is whether Vasquez suffered a protracted loss or impairment of the function of a bodily member or organ. Vasquez testified, and her medical records showed, that she fractured her clavicle bone as a result of the collision. In addition, she could not move her right arm, and she was told by the hospital that there was nothing they could do for the arm. The hospital gave her pain medication and referred her to a specialist. Vasquez testified that she took the pain medication for two weeks but did not see the specialist recommended by the hospital because she did not have health insurance. She later went to Parkland Hospital, where she was told her right arm would heal on its own with physical therapy. Vasquez, who is right handed, testified she performed the physical therapy exercises for two-and-a-half months. She claimed she did not have normal use of her right arm until three months after the collision. During those three months, she was unable to "normally" perform activities such as vacuuming and "that sort of thing." Her injury also interfered with her job, which involved the assembly of plastic parts. Vasquez testified that her right arm is now "okay." There is no controverting evidence concerning her injuries. Appellant contends the evidence is factually insufficient to show a protracted impairment because Vasquez's injuries healed within weeks and required only exercise, not continuing medical treatment. Citing cases where complainants who had been shot or stabbed were found not to have sustained serious bodily injury, appellant argues Vasquez's injuries were not "serious" as defined by statute. See Williams v. State, 696 S.W.2d 896 (Tex. Crim. App. 1985); Black v. State, 637 S.W.2d 923 (Tex. Crim. App. 1982); Hernandez v. State, 946 S.W.2d 108 (Tex. App.-El Paso 1997, pet. ref'd). But appellant never explains why Vasquez's injuries were not serious under the statutory definition, nor does he attack the credibility of Vasquez's testimony regarding her injuries or direct us to any controverting evidence. Moreover, the shooting and stabbing cases cited by appellant are distinguishable. The complainant in Williams, for example, testified he was shot in the buttocks, back, and thigh. Williams, 696 S.W.2d at 897. The court concluded the State did not prove serious bodily injury because the complainant did not testify regarding the extent of his injuries, nor was there any evidence those injuries created a substantial risk of death, or caused death, permanent disfigurement, or protracted loss or impairment of the functions of any bodily member or organ. Id. at 898. In Black, the complainant sustained a gunshot wound to his thigh. Black, 637 S.W.2d 926. Although the complainant's leg took two to three months to heal, the court found no serious bodily injury because he did not claim he suffered any loss of the use of the limb. See id. Likewise, the complainant in Hernandez sustained a stab wound to his right chest. Hernandez, 946 S.W.2d at 110. He had been ordered by his doctor not to work for six weeks, but there was no evidence of any organ or bodily member that was impaired. Id. at 113. Nor was there evidence the complainant was restricted in any particular physical activity. Id. The court noted the period of recuperation did not elevate bodily injury to serious bodily injury but at best showed only some impairment of physical condition. Id. In contrast to the complainants in Williams, Black and Hernandez, Vasquez, who is right-handed, testified she lost the normal use of her right arm for three months, and that this loss of use interfered with her ability to work, vacuum, and "that sort of thing." The fact that her injuries required physical therapy as opposed to continuing medical treatment did not alter the fact that she lost the normal use of her arm for three months. See Taylor v. State, 71 S.W.3d 792, 794 (Tex. App.-Texarkana 2002, pet. ref'd) ("The disfiguring and impairing quality of the injury is determined as the injury is inflicted, not taking into account the ameliorative effects of medical treatment."). None of the cases cited by appellant support his assertion that Vasquez did not suffer a serious bodily injury. Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury's finding, has not revealed any evidence that causes us to conclude the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render appellant's conviction for intoxication assault clearly wrong or manifestly unjust. Therefore, we conclude the evidence is factually sufficient to support the jury's verdict. Appellant's first issue is overruled. The Louisiana Convictions
In his second issue, appellant argues the trial court improperly allowed the State to present, during the punishment phase of the trial, evidence regarding five extraneous offenses committed in Louisiana. Background The complained-of punishment evidence was introduced during the State's direct examination of Deputy Richard Hamb, an officer in the Intake Identification Section of the Dallas County Sheriff's Office. Hamb identified State's exhibits 21, 22, and 23 as certified copies of judgments and sentences against "Isaac Andrus." Exhibit 21 was offered as evidence of appellant's five prior Louisiana felony convictions. Exhibit 22 included evidence of dismissed charges against appellant in Texas for assault (family violence) and interfering with an emergency telephone call, while exhibit 23 included an order of deferred adjudication for the Texas offense of retaliation. Hamb identified exhibit 24 as the fingerprints that he took from appellant earlier that day. Hamb testified that exhibits 21 and 23 included fingerprints but exhibit 22 did not. Hamb also testified that he compared the fingerprints he took from appellant earlier that day with the fingerprints in exhibits 21 and 23, and confirmed that the fingerprints in exhibits 21 and 23 belonged to appellant. The State then offered exhibits 21, 22, 23, and 24 into evidence. Defense counsel objected to all of these exhibits because they were not properly authenticated. The trial court sustained the objection concerning exhibit 22, and the State subsequently elicited further testimony from Hamb regarding exhibit 22, then reoffered it into evidence. At that point, the trial court admitted exhibit 22 over defense counsel's renewed objection. Standard of Review and Applicable Law When, as in this case, the State offers an out-of-state pen packet to prove the existence of a criminal record during the punishment phase of a trial, it has the burden of either offering proof of the other state's evidentiary requirements or asking the trial court to take judicial notice of those requirements. Martin v. State, 227 S.W.3d 335, 337 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (citing Langston v. State, 776 S.W.2d 586, 587-88 (Tex. Crim. App. 1989)). In the absence of such proof or request, we will presume the law of the other state is the same as the law of Texas. Id. Here, the State offered Louisiana documents to prove appellant's out-of-state convictions without offering proof of Louisiana's evidentiary requirements for proof of a final conviction. The State did not ask the trial court to take judicial notice of those evidentiary requirements. Therefore, Texas law applies. Our standard of review for the trial court's decision to admit evidence is abuse of discretion. See Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001); see also Elliott v. State, 858 S.W.2d 478, 488 (Tex. Crim. App. 1993). We will reverse only if the trial court's decision to admit the evidence was "outside the zone of reasonable disagreement." Salazar, 38 S.W.3d at 151; Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). Under Texas law, in order to establish that a defendant has been convicted of an enhancement offense, the State must prove (1) the existence of the prior conviction and (2) the defendant's identity as the person previously convicted. Martin, 227 S.W.3d at 337 (citing Beck v. State, 719 S.W.2d 205, 209-210 (Tex. Crim. App. 1986)). No specific document or mode of proof is required to prove these elements. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). The State may prove the existence of a prior conviction with a certified judgment and sentence or any document that is the functional equivalent of the judgment and sentence. See Martin, 227 S.W.3d at 337 (citing Langston, 776 S.W.2d at 588); see also Flowers, 220 S.W.3d 925. The State must then link the prior conviction to the defendant with independent evidence, such as expert testimony identifying the fingerprints from the documentary evidence of the prior conviction with the known fingerprints of the defendant. See Banks v. State, 158 S.W.3d 649, 652 (Tex. App.-Houston [14thDist.] 2005, pet. ref'd); Fontenot v. State, 704 S.W.2d 126, 127 (Tex. App.-Houston [1st Dist.] 1986 no pet.) (listing four methods of proving a defendant is the same person previously convicted). Analysis The Louisiana packet that included the documentation of the five felony convictions was accompanied by an affidavit from the custodian of records of the office of probation and parole at the Louisiana Department of Public Safety and Corrections. This affidavit authenticated the documents regarding "Isaac Andrus" and referenced the document number applicable to the conviction records — 119485. Also included in the packet was a "Certificate of Release Completion of Sentence," which referenced document number 119485 and certified that "Issac Andrus" completed the hard labor custody requirements of cases CLC 1198985, CLC 519787, CLC 891197, CLC 891297, and CLC 953090. The certificate also showed personal information such as Andrus's race, sex, and date of birth. In addition, the packet included a fingerprint card that showed the name "Isaac Andrus" and referenced document number 119485. The various documents in the Louisiana packet therefore referenced each other and showed that the same "Isaac Andrus" was convicted in all five cases, and that the fingerprints included in the packet belonged to "Isaac Andrus." Hamb testified that he compared the fingerprints he took from appellant with the fingerprints in the Louisiana packet, and concluded the fingerprints in the Louisiana packet belonged to appellant. Hamb's testimony, in other words, showed that appellant was the "Isaac Andrus" who was convicted of five offenses in Louisiana. Appellant argues the records of the Louisiana convictions should not have been admitted into evidence because the State failed to show he was the same "Isaac Andrus" named in those records. He claims the "Louisiana `pen packet' did not contain a picture of [a]ppellant or a set of fingerprints for each cause, but merely one fingerprint card for the entire packet." He also complains that the fingerprint card did not list the offenses and "did not even appear to be properly dated." However, using a photograph is not the only way to connect a defendant to a prior conviction. A photograph is not required if, for example, expert testimony has established that the fingerprints accompanying the prior conviction belonged to the defendant. See Fontenot, 704 S.W.2d at 127. Furthermore, the incorrect date on the Louisiana fingerprint card noted by appellant actually appears to be a reference to document number 119485. This is the same document that was referenced in the "Certificate of Release Completion of Sentence," which specifically listed each of the five convictions by cause number, and in the custodian of records affidavit that authenticated the records of the five Louisiana convictions. The Louisiana fingerprint card therefore referenced all five Louisiana convictions. Accordingly, the record shows that the State proved the existence of the prior Louisiana convictions and linked each of those convictions to appellant. We overrule appellant's second issue. State's Exhibit 22
In his third issue, appellant argues the trial court erroneously admitted the pen packet that was marked as State's exhibit 22 because the State failed to link him to the family violence "conviction." The State argues appellant failed to preserve this issue for review. We agree. Background When the State offered exhibit 22 and the other exhibits into evidence, the defense objected that the exhibits were not properly authenticated, and the trial court sustained the objection concerning exhibit 22. When the State again offered exhibit 22 into evidence, the defense stated, "Renew our objections, Your Honor." Analysis As with any other form of documentary evidence, the State must authenticate the documentation of a prior conviction as a prerequisite to its admissibility. See TEX. R. EVID. 901(a); Banks, 158 S.W.3d at 652. But authentication is different from linking the prior conviction to the defendant. See Martin, 227 S.W.3d at 337-38 (discussing the authentication requirement for a pen packet offered to prove a prior conviction). Appellant's complaint on appeal is that the State failed to link him to the prior family violence "conviction" that was admitted as State's exhibit 22. This argument does not comport with the argument at trial, which concerned lack of authentication. Thus, appellant is procedurally barred from raising this issue for the first time on appeal. See TEX. R. APP. P. 33.1(a); Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003) (argument on appeal must comport with the argument at trial in order to preserve error). We overrule appellant's third issue. Enhancement Paragraphs
In his fourth and fifth issues, appellant argues the evidence is legally and factually insufficient to support the enhancement paragraphs. Standards of Review In determining the legal sufficiency of the evidence to support proof of punishment enhancement, we determine whether a rational trier of fact could have found beyond a reasonable doubt that the enhancement provision is true. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim. App. 2004). In conducting a factual sufficiency review, we review the evidence in a neutral light and reverse only if we conclude, from some objective basis in the record, that the great weight and preponderance of the evidence contradicts the fact finder's determination. Watson v. State, 204 S.W.3d 404, 414, 417 (Tex. Crim. App. 2006). Applicable Law Failing to stop and render aid, which is governed by section 550.021 of the Texas Transportation Code, is classified as a third degree felony for enhancement purposes. See Childress v. State, 784 S.W.2d 361, 365 (Tex. Crim. App. 1990); see also TEX. PENAL CODE ANN. § 12.41 (Vernon Supp. 2009) (classifying an offense as a third degree felony if imprisonment in a penitentiary is affixed as a possible punishment). Intoxication assault, which is governed by section 49.07 of the penal code, is also a third degree felony. See TEX. PENAL CODE ANN. § 49.07(c) (Vernon Supp. 2009). Section 12.42 of the penal code provides that if it is shown on the trial of a state jail or a third degree felony that the defendant has been previously convicted of a felony offense, his punishment shall be that of a second degree felony, i.e., imprisonment for any term of not more than twenty years or less than two years and, in addition to imprisonment, an optional fine not to exceed $10,000. See id. §§ 12.33(a), 12.42(a)(3). In this case, the State's notice of intent to enhance punishment range relied on five prior Louisiana felony convictions. But just before the commencement of the punishment hearing, the trial court noted it was unclear whether each of the five enhancement offenses was final before the next occurred. The jury was therefore instructed, pursuant to section 12.42(a)(3), on the punishment range for a state jail or third degree felony that is enhanced by one prior felony offense. As a result, although there were multiple felony enhancement allegations in this case, the State only needed to prove one in order to enhance appellant's punishment range. Legal Sufficiency Turning to appellant's legal sufficiency complaint, the evidence presented by the State showed that a person by the name of "Isaac Andrus" was convicted of five felony offenses in Louisiana. The authenticating affidavit that accompanied the conviction records referenced "Isaac Andrus" and document number 119485. The Certificate of Release that accompanied the conviction records referenced, among other information, "Isaac Andrus," document number 119485, and the cause number of each of the five Louisiana convictions. The fingerprint card that accompanied the conviction records also referenced "Isaac Andrus" and document number 119485. Deputy Hamb compared the fingerprints that accompanied the Louisiana conviction records with the fingerprints he took from appellant earlier that day and found that the fingerprints matched. Viewing the evidence in this case in the light most favorable to the verdict, we believe a rational trier of fact could have found the enhancement allegation true beyond a reasonable doubt. Accordingly, the evidence is legally sufficient to support the enhancement allegation. Factual Sufficiency Appellant contends the evidence is factually insufficient to establish his identity as the defendant in any of the alleged Louisiana convictions because, according to appellant, "[t]he only evidence offered was that [a]ppellant's name appeared on the documents and a fingerprint card was included in the packet that appeared to contain [a]ppellant's fingerprints." However, as discussed previously, the Louisiana pen packet contained more than simply the conviction records and a fingerprint card. A review of the evidence in this case in a neutral light does not suggest it is so weak as to render the jury's finding factually insufficient, nor does such a review reveal any contrary evidence that would render the jury's finding factually insufficient. The evidence, in other words, is factually sufficient to support the enhancement allegation. We therefore overrule appellant's fourth and fifth issues. We affirm the trial court's judgments.