Opinion
NO. WR-87,518-01
01-24-2018
EX PARTE DWIGHT HAMPTON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2012CR6905-W1 IN THE 186TH DISTRICT COURT FROM BEXAR COUNTY
ORDER
PER CURIAM. RICHARDSON and YEARY, JJ., not participating.
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Applicant was convicted of aggravated assault and sentenced to thirty years' imprisonment. The Fourth Court of Appeals modified the judgment to delete a 3g offense finding and otherwise affirmed the conviction.
Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967).
Hampton v. State, No. 04-13-00262-CR, 2014 Tex. App. LEXIS 5646 (Tex. App.—San Antonio May 28, 2014) (not designated for publication).
Applicant alleges that the victim did not suffer "serious bodily injury"—as required for the charged aggravated assault offense— and that counsel was ineffective for failing to research the law on serious bodily injury and to advise him about that law. The State and the habeas court agree, and the habeas court recommends granting relief. We disagree.
In January of 2012, Applicant punched the victim in the face and caused a fractured eye socket, lacerated brow, closed-head injury, and a concussion. At trial over a year later—in April of 2013—the victim's focus was primarily on the emotional effects of the attack—having to change jobs, her daily fear of another attack, and still coming home from work crying. As to the physical injuries, when asked about her eye, she said she was "doing fine," but she also said that she was still feeling pain "here and there" every now and then as a result of the attack. In reply to a question from the San Antonio Police Department about whether the victim's injuries constituted serious bodily injury, the victim's doctor furnished a written reply, saying, "I consider facial fractures/orbit fracture to be serious bodily injury."
"Serious bodily injury" is defined as "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." Given the evidence and the doctor's statement, counsel was not deficient for believing that a broken eye socket and the resulting pain, still experienced over a year later, would constitute serious bodily injury. We conclude that Applicant has not carried his burden to show ineffective assistance of counsel.
We also note that there is nothing in the record to suggest that the victim was given a chance to say anything about her injuries in response to the claims made in the habeas application.
See Strickland v. Washington, 466 U.S. 668 (Tex. Crim. App. 1984).
We deny relief. Filed: January 24, 2018
Do not publish