Nos. 05-10-00465-CR, 05-10-00608-CR
Opinion Filed August 10, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 363rd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F07-45866-W, F07-45867-W.
Before Justices RICHTER, LANG, and FILLMORE.
Opinion By Justice LANG.
Following a plea of not guilty, appellant Ray A. Johnson was convicted by a jury on two charges: (1) aggravated assault with a deadly weapon and serious bodily injury, with a family-violence finding; and (2) unlawful restraint with serious bodily injury. The trial court set punishment at twenty-five years' confinement on each charge, to be served concurrently. In three issues, appellant argues: (1) the evidence in the aggravated assault case was legally and factually insufficient to prove serious bodily injury, and (2) there was no plea or finding on the enhancement paragraphs, and consequently the trial court's sentence of twenty-five years imprisonment was not within the proper range for the unlawful restraint charge. We decide issues one and two against appellant. However, because we cannot determine from this record whether the trial court intended to find the enhancement paragraphs true or false, we remand this case for a new hearing on punishment for the unlawful restraint conviction. All dispositive issues are well settled in law and therefore we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. Also, because the facts and procedural history are well-known to the parties, we recite only those facts that are relevant to this appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
The complainant, Heidi Johnson, is the mother of appellant's eight-year old daughter, M. On the evening of January 26, 2007, complainant brought appellant to her home in Sachse, Texas, so he could spend time with their daughter. After arriving at her home, complainant went to her bedroom to sleep at approximately 9:00 or 9:30 that evening, leaving M. and appellant to watch television. At approximately 1:00 or 2:00 a.m., complainant awakened to discover that M. and appellant were still awake watching television. While standing in the hallway that lead to the living room where M. and appellant were sitting, complainant asked them why they were up so late. Appellant then approached complainant and hit her in the face. The force from the blow caused complainant's head to hit the corner of the hallway wall. The next thing she remembers is waking up in her bed, at which point she touched her head and saw blood on her hands. Complainant could not see clearly because one eye was swollen shut, she testified that "It felt like I didn't have an eye. My left eye was just gone." As complainant was awakening in her bed, she "felt [appellant] messing with [her] feet — with the vacuum cleaner cord." She "kicked and got up" from the bed and went to take a shower. Complainant testified that she felt pain "everywhere" but that it was primarily in her head. After her shower, complainant returned to the living room and sat on the couch with her two children. When M. saw her, she cried and screamed saying "mommy, you're scaring me." Appellant then came into the living room and told complainant to "go fix [her] face." After approximately twenty or thirty minutes, complainant called her mother. Complainant then called 911 and told the operator someone was trying to kill her. The police arrived shortly thereafter and took complainant out of the house. An ambulance arrived and took complainant to the hospital. Complainant testified that she suffered a number of injuries as result of the assault. Her eye was swollen shut for approximately three weeks and when she could actually open her eye, at first her vision was blurry. Complainant's finger was broken and she wore a splint, off and on, for a week. She also had a gash on the side of her head, which had to be stapled shut, as well as stitches below her mouth and above her eyebrow. Additionally, one of complainant's teeth was knocked out of place. At trial, complainant testified that none of her injuries were life threatening, and that she had "pretty much" recovered from all of them. A detective testified about several photos of complaint's injuries that were admitted into evidence. The detective testified that these photos showed bruising on complainant's shoulders, triceps, and leg, as well as a small laceration on her arm. The detective testified that when he saw her three days after the assault, she looked as though "somebody had beat her pretty severely" and that complainant "had to sort of talk out of the side of her mouth because it appeared she had trouble with her whole face operating as normal." The detective interviewed complainant one month after the assault and took photographs of her injuries, which were also admitted into evidence at trial. According to the detective's testimony, these photos showed there was redness and marks around the lower lid of the eye, as well as a scar. A jury found appellant guilty of two charges (1) aggravated assault with a deadly weapon, serious bodily injury, with a family violence finding in trial court cause number F07-45866-W; and (2) unlawful restraint with exposure to serious bodily injury in trial court cause number F07-45867-W. The trial court sentenced appellant to twenty-five years confinement for both charges, to be served concurrently. In the trial court's written judgment for both charges, next to the space labeled "Plea to the 1st Enhancement Paragraph" is the notation "N/A." The same notation is present next to the spaces provided for "Findings on 1st Enhancement Paragraph," "Plea to 2nd Enhancement/Habitual Paragraph," and "Findings on 2nd Enhancement/Habitual Paragraph." Despite the "N/A" notations, the record indicates that enhancements for prior felony convictions were at issue in this trial. The indictments for both charges alleged appellant had been convicted of two prior felonies: (1) unlawful possession of a firearm by a felon in 2006; and (2) aggravated assault with serious bodily injury in 2002. Prior to trial, the State filed an Amended Notice of Offenses which listed thirty-three "crimes, wrongs or acts" the State said "may be introduced" at trial. Additionally, during the penalty phase of appellant's trial, the State offered into evidence, without objection, written judgments indicating appellant had previously been convicted of a number of felonies, which included, among others, those described in the enhancement paragraphs of each indictment. Furthermore, during his closing argument in the punishment phase of trial, appellant's attorney acknowledged appellant had a "prior record." Appellant's attorney also discussed an error in the unlawful restraint indictment, stating the second paragraph in the indictment was "not true because it states [appellant] was convicted of an aggravated robbery when it was actually an aggravated assault." The State's attorney responded by arguing it had filed a motion that properly corrected the indictment to properly reflect a prior conviction of aggravated assault with serious bodily injury. After his trial, appellant filed a motion for new trial on the grounds that the "verdict [was] contrary to the law and the evidence," which the trial court overruled. II. SUFFICIENCY OF THE EVIDENCE
In his first two issues, appellant challenges the legal and factual sufficiency of the evidence in the aggravated assault charge to prove he caused serious bodily injury. A. Standard of Review
In Brooks v. State, the Texas Court of Criminal Appeals held that the United States Supreme Court's Jackson v. Virgnia legal-sufficiency standard is the only standard a reviewing court is to apply when determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.) (overruling Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) (en banc)); Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Bell v. State, 326 S.W.3d 716, 720 (Tex. App.-Dallas 2010, pet. dism'd) (adopting Brooks). Under Jackson v. Virginia, we consider "all of the evidence in the light most favorable to the verdict" to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Brooks, 323 S.W.3d at 889 (quoting Jackson, 443 U.S. at 319). We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 899; King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (en banc) ("A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment."); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996) ("The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence."). All evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998). "Under the Jackson test, we permit juries to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial." Hooper v. State, 214 S.W.3d 9, 13, 15 (Tex. Crim. App. 2007). Courts of appeals should "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Id. at 16-17. B. Applicable Law
The Texas Penal Code defines "serious bodily injury" as a "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 2011). A "protracted loss or impairment" is one that is "either continuing, dragged out, drawn out, elongated, extended, lengthened, lengthy, lingering, long, long-continued, long-drawn, never-ending, ongoing, prolix, prolonged, or unending." Moore v. State, 739 S.W.2d 347, 352 (Tex. Crim. App. 1987) (plurality op.) (en banc) (describing the common meaning of the word "protracted," citing Burton, Legal Thesaurus 418 (1980 edition)). The facts that are sufficient to establish that an injury is a "serious bodily injury" "must be decided on an ad hoc basis." Id.C. Application of Law to Facts
In his first and second issues, appellant argues the evidence in the aggravated assault case was legally and factually insufficient to prove serious bodily injury. The State contends complainant's injuries, including her eye that was swollen shut for three weeks, demonstrated a protracted loss or impairment of the function of a bodily member or organ. We agree with the State. In light of Brooks, we treat this as a single issue, challenging legal sufficiency. There was no contention at trial that complainant's injuries created a "substantial risk of death" or "serious permanent disfigurement." Tex. Penal Code Ann. § 1.07(a)(46). Consequently, the sole issue is whether complainant's injuries constituted a "protracted loss or impairment of the function of any bodily member or organ." Id. It is undisputed that after the assault, complainant's eye remained swollen shut for approximately three weeks. She also had a broken finger, for which she wore a splint for approximately one week. In his brief, appellant directs our attention to Villarreal v. State, 716 S.W.2d 651 (Tex. App.-Corpus Christi, no pet.) to support his contention that three weeks was not a long enough time to constitute a "protracted loss or impairment" of complainant's ability to use her eye. In Villarreal, the victim suffered two fractured ribs and a split lip. Villarreal, 716 S.W.2d at 652. The victim's rib injuries "prevented him from raising his arms for ten days and gave him pain for two weeks." Id. The Corpus Christi Court of Appeals concluded the evidence failed to show a "protracted impairment." Id. The State responds by arguing that the "mere fact that the Villarreal complainant's impairment was one week shorter [than complainant's] does [not] compel the conclusion that the impairment in this case was not `protracted.'" We agree. "Whether an injury constitutes a serious bodily injury must be determined on a case-by-case basis." Nash v. State, 123 S.W.3d 534, 538 (Tex. App.-Fort Worth 2003, pet. ref'd) (citing Moore, 739 S.W.2d at 352). It has been concluded in another case there was a protracted loss in circumstances similar to this one. See Madden v. State, 911 S.W.2d 236 (Tex. App.-Waco 1995, pet. ref'd) (evidence was sufficient to demonstrate a "protracted impairment of a bodily member" when complainant was shot in the hip, spent one and a half days in the hospital, and could not walk for three to four weeks). Considering the evidence in the light most favorable to the verdict, we conclude a rational jury could have concluded complainant's inability to use her eye for three weeks constituted protracted loss or impairment of that eye. See Brooks, 323 S.W.3d at 889 (quoting Jackson v. Virignia, 443 U.S. at 319). We decide appellant's first two issues against him. III. ENHANCEMENT PARAGRAPHS
In his third issue, Ray argues the trial court failed to make a finding on the enhancement paragraphs in the indictments, and that consequently his punishment of twenty-five years for the unlawful restraint case is void and should be remanded for a new punishment hearing. A. Standard of Review and Applicable Law
Generally, complaints about the court's failure to orally make findings on enhancement paragraphs must be raised at trial, in order to be preserved for appeal. See Tex. R. App. P. 33.1(a); Garner v. State, 858 S.W.2d 656, 659 (Tex. App. Fort Worth 1993, pet. ref'd). However, when a sentence is void, a defendant may complain about it at any time. See Ex parte Rich, 194 S.W.3d 508, 511 (Tex. Crim. App. 2006); see also Ex parte Pena, 71 S.W.3d 336 (Tex. Crim. App. 2002) ("A `void' or `illegal' sentence is one that is not authorized by law."). "A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal." Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (en banc); Mapes v. State, 187 S.W.3d 655, 658 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd). The punishment range for a charge of unlawful restraint with substantial risk of serious bodily injury, a third degree felony, is two to ten years confinement. Tex. Penal Code Ann. §§ 12.34(a), 20.02(c)(2)(A). However, that range increases to twenty-five to ninety-nine years or life imprisonment, if enhanced by two prior felony convictions. Id. § 12.42(d). If a judgment can be reformed, it is not void. See Bell v. State, 407 S.W.2d 225, 226 (Tex. Crim. App. 1966) ("Being subject to reformation, the judgment was not void."); McNabb v. State, 640 S.W.2d 624, 626 (Tex. App.-Houston [1st. Dist.] 1982). This court "has the power to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary data and information to do so." Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd) (citing Tex. R. App. P. 80(b), (c)), modified on other grounds, Lockett v. State, 874 S.W.2d 810, 818 (Tex. App.-Dallas 1994, pet. ref'd) (emphasis added). This includes the power to reform a judgment so it reflects an accurate finding on enhancements for prior convictions. See Almand v. State, 536 S.W.2d 377, 379 (Tex. Crim. App. 1976); Howell v. State, 563 S.W.2d 933, 936 (Tex. Crim. App. 1978). In Almand v. State, the Court of Criminal Appeals reformed a judgment and sentence to reflect the enhancement of the appellant's punishment for a prior conviction. Almand, 536 S.W.2d at 379. Despite the trial court's failure to make an explicit finding on the enhancement paragraph, the court reformed the judgment because the evidence of the prior conviction was undisputed, the appellant elected punishment under a plea agreement with the State, and the trial court explained to the appellant how the punishment would be increased if the enhancement was found true. Id. Similarly, in Howell v. State, the Court of Criminal Appeals reformed a judgment to reflect that appellant's punishment was enhanced pursuant to a prior felony conviction. Howell, 563 S.W.2d at 936. There, the appellant pled true to the enhancement, he "entered into a written stipulation that he was the same person previously convicted as alleged, and made no objection to the introduction of the convictions." Id. In contrast, the First Court of Appeals in Turk v. State, concluded it did not have enough information to reform a judgment's erroneous findings on enhancement paragraphs and instead remanded the case for a punishment hearing. Turk v. State, 867 S.W.2d 883, 887-78 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd). In Turk, the appellant entered a plea of not true to one enhancement paragraph and a plea of true to a second enhancement paragraph. Id. at 887. At trial, no fact finding was made on the enhancement paragraphs, yet the written judgment stated each was found true. Id. Despite the fact that appellant's punishment of fifty-years confinement was within the statutory range for the offenses, even without a finding of true on the enhancements, the court declined to reform the judgment and stated "We cannot assume that the trial court automatically would assess another 50-year punishment." Id. at 888. C. Application of Law to Facts
In his third issue, Ray argues there was no plea entered or finding on the enhancement paragraphs in the indictments, and consequently the court's punishment of twenty-five years confinement was not within the range of punishment for the unlawful restraint charge. Appellant asks us to remand the unlawful restraint charge for a new trial on punishment. The State asks us to abate this appeal so the trial court may correct the judgments. We agree with the result suggested by appellant. Although the trial court's written judgment indicates enhancements to Johnson's punishment were not applicable, or "N/A," this is inconsistent with the record. The indictment for both charges listed two prior felonies and during trial the State offered evidence of several prior felony convictions, including the two identified in the enhancement paragraphs of the indictment. Furthermore, defense counsel acknowledged Appellant's "prior record" during closing argument, and debated with the State whether the crime alleged in the second enhancement paragraph of the unlawful restraint indictment was accurate. There was no plea agreement involved, nor did appellant plead to the enhancements. Almond and Howell are both distinguishable from the case at bar. In Almand, the appellant's punishment was part of a plea agreement with the State and the trial court explained to the appellant the consequences of his punishment being enhanced by a prior conviction. Almand, 536 S.W.2d at 379. In the instant case, there was no plea and we have no record of the trial court discussing enhancements with appellant. Howell is likewise distinguishable because appellant did not plead true to the enhancements. Howell, 563 S.W.2d at 936. This case is more closely analogous to Turk, where the appellant plead not true to one of two enhancements, no fact finding was made on either enhancement, yet the written judgment stated both enhancement paragraphs were found to be true. Turk, 867 S.W.2d at 878-88. Similar to the court of appeals in Turk, we cannot conclude the trial court found the enhancement paragraph for the unlawful restraint charge to be true when the court made no oral pronouncement of its findings and entered "N/A" on the written judgment. We do not have the "necessary data and information" to reform the unlawful restraint judgment. See Asberry, 813 S.W.2d at 529. This error results in a void sentence for the unlawful restraint charge, as it is outside the punishment range of two to ten years confinement. See Tex. Penal Code Ann. § 20.02(c)(2)(A), 12.34(a). We decide issue three in favor of appellant. IV. CONCLUSION
We decide issues one and two against appellant and affirm the aggravated assault conviction. We decide issue three in favor of appellant. Accordingly, we reverse the sentence of twenty-five years for the unlawful restraint conviction and remand for a new trial as to punishment.