Opinion
NO. 14-16-00365-CR
06-08-2017
TYRONE MONTGOMERY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court Harris County, Texas
Trial Court Cause No. 1476841
MEMORANDUM OPINION
Tyrone Montgomery was convicted of aggravated assault of a family member. See Tex. Penal Code Ann. § 22.02(a)(1) (West 2011). On appeal, he contends the evidence was legally insufficient to support the verdict because there was no evidence that the complainant, April, suffered serious bodily injury. We affirm.
FACTUAL BACKGROUND
April had been dating appellant for about eight months when he approached her sitting outside a church late one Wednesday evening and began punching her in the face. When April fell down, appellant kicked her repeatedly in the ribs.
The facts of the assault come from the testimony of police officers who spoke with April at or near the time of the assault. April recanted at trial, testifying appellant did not assault her. However, she did not recant statements she made soon after she was assaulted concerning her injuries.
A police officer located April at a nearby gas station about an hour after the assault. April had no visible bruises but was holding her ribs and seemed upset to the officer. April told the officer she had been assaulted about an hour earlier. Though she appeared to be in pain, April refused the officer's offers to call the paramedics and to take her home, saying she would go to a friend's house and seek medical treatment on her own.
On Friday morning, April arrived at the emergency department of a hospital complaining of chest pain. According to hospital records admitted into evidence, April said she was experiencing sharp pain:
Patient presented to the ED in pain from the right left chest. Patient reports being physically abused by her ex-boyfriend and that is how she obtained her rib fractures. This occurred 2 days ago. Patient reported feeling pain in her ribs when she would sit down. Patient reports pain as sharp and 8/10. Norco makes the pain better. Breathing makes it worse.X-rays revealed three broken ribs on her left side as well as a small pneumothorax (also called a punctured lung) on her left lung. Doctors told her the broken ribs caused the pneumothorax. April was admitted to the hospital on Friday and discharged on Tuesday. Multiple chest x-rays were performed over the course of her stay so doctors could monitor the pneumothorax.
Trial was held nine months later. April testified she still had rib pain. She said, "I'm always going to suffer pain from it because it don't let my ribs heal."
ANALYSIS
I. Standard of Review: Legal Sufficiency
When reviewing the sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences therefrom, whether a rational jury could have found the elements of the offense beyond a reasonable doubt. See Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). We consider all evidence in the record, whether it was admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013). We also consider both direct and circumstantial evidence, as well as any reasonable inferences that may be drawn from the evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Although we consider everything presented at trial, we do not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Because the jury is the sole judge of the credibility of witnesses and of the weight given to their testimony, any conflicts or inconsistencies in the evidence are resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
II. Serious Bodily Injury
The indictment alleged that appellant intentionally and knowingly caused serious bodily injury to April, a person with whom he had a dating relationship, by kicking her with his foot. See Tex. Penal Code Ann. § 22.02(a)(1). Appellant does not contest that he had a dating relationship with April, that he intentionally and knowingly kicked her, or even that he caused April's injuries. He challenges only the sufficiency of the evidence that April's injuries constituted "serious bodily injury."
A. Definition
"Serious bodily injury" means "bodily injury that creates a substantial risk of death or that causes death, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Tex. Penal Code Ann. § 1.07(46) (West 2011 & Supp. 2016). "Bodily injury," in turn, means "physical pain, illness, or any impairment of physical condition." Id. § 1.07(8). Though often a matter of degree, there must be a meaningful distinction between "bodily injury" and "serious bodily injury." Eustis v. State, 191 S.W.3d 879, 883 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd). Whether an injury qualifies as a serious bodily injury must be determined on a case-by-case basis. Id. at 884.
In determining whether a bodily injury creates a substantial risk of death, a court should consider the injury at the time it was inflicted. The court should not consider the amelioration or exacerbation of an injury by actions not attributable to the offender, such as medical treatment. Blea v. State, 483 S.W.3d 29, 34-35 (Tex. Crim. App. 2016).
B. Proof
Serious bodily injury may be established without a physician's testimony when the injury and its effects are obvious. Id. Testimony from the injured person may be sufficient to prove he or she suffered serious bodily injury. See id. at 31-32, 35 (concluding non-physician statements regarding assault, pain, and injuries were sufficient evidence of serious bodily injury). A jury is free to "apply common sense, knowledge, and experience gained in the ordinary affairs of life in drawing reasonable inferences from the evidence." Eustis, 191 S.W.3d at 884.
The defendant in Blea was charged with aggravated assault of a family member for repeatedly hitting and possibly kicking his girlfriend, Justina. See 483 S.W.3d at 31. The testimony regarding Justina's serious bodily injury came from the responding police officer, a nurse, and Justina herself.
Blea struck Justina once on her face and multiple times on her side. See id. Justina said that after the assault, she was in "a ton" or "a lot" of pain in her back and her chest, and she felt as if something was "broken or terribly injured" during the assault. Id. The responding police officer saw Justina attempt to stand up only to fall back to the couch in pain. He also saw Justina was holding her ribs, chest, and abdomen and was having a hard time breathing. See id. at 32. Justina was admitted to the hospital for four days. Her injuries included a collapsed lung, a lacerated liver, two rib fractures, and a fractured maxillary sinus bone. See id. Her nurse testified that her lung injury was serious because "lungs control breathing, which is necessary to sustain life." Id. at 35. Additionally, the lacerated liver was a serious injury that could cause a person to "bleed to death very quickly." Id.
The Court of Criminal Appeals concluded the jury could have rationally inferred from the totality of Justina's injuries that she suffered a substantial risk of death. See id. at 35. Therefore, the evidence was legally sufficient to prove Blea injured Justina in a manner that created a substantial risk of death. See id.
The court did not address the two other forms of serious bodily injury: permanent disfigurement and protracted loss or impairment of the function of any bodily member or organ. Blea, 483 S.W.3d at 35.
C. Application
The jury received evidence of the following facts through April, the responding police officer, and more than 550 pages of hospital records:
Appellant kicked April repeatedly in the ribs. April met with a police officer and said appellant had assaulted her about an hour earlier. April was holding her ribs, seemed upset, and appeared to be in pain. Less than 36 hours later, April went to an emergency room complaining of sharp chest pain she described as 8 out of 10. Norco, which contains hydrocodone, relieved her pain. Breathing worsened it. X-rays revealed April suffered three broken ribs and a small pneumothorax, which doctors told her was likely caused by a broken rib. She stayed in the hospital for four days and had multiple chest x-rays so doctors could monitor the pneumothorax. Nine months after the assault, April still felt rib pain.
The jury was free to apply its common sense, knowledge, and experience to draw reasonable inferences from those facts. See Eustis, 191 S.W.3d at 884. As discussed below, those facts support inferences that April's injuries posed a substantial risk of death and caused protracted loss or impairment of the function of a bodily member.
Substantial risk of death. The jury reasonably could have inferred that April's broken ribs caused her to suffer a punctured lung and that such a lung injury carried a substantial risk of death. See Patterson v. State, No. 11-06-00209-CR, 2008 WL 564880, *3 (Tex. App.—Eastland 2008, pet. ref'd) (not designated for publication) (stating that a pneumothorax left untreated poses a substantial risk of death); Johnson v. State, No. 07-02-00440-CV, 2003 WL 22332274, *1 (Tex. App.—Amarillo 2003, no pet.) (not designated for publication) (stating that broken ribs can be life threatening because they may result in punctured lungs or a lacerated liver). Cf. Harper v. State, No. 14-07-00422-CR, 2008 WL 4657731, *2 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (mem. op.) (not designated for publication) (in testifying about a baby's pre-mortem injuries, medical examiner stated that the baby's three rib fractures would not constitute serious bodily injury "in and of themselves," but the resulting lacerated liver was a serious bodily injury). The seriousness of the injury is further supported by the fact that April was hospitalized for four days. See Blea, 483 S.W.3d at 35 (noting that evidence that Justina was hospitalized for multiple days supported finding that she suffered serious bodily injury).
Appellant contends April suffered "only" a "minor pneumothorax," not a punctured lung. He offers no authority, however, to suggest a "minor" pneumothorax does not carry a substantial risk of death. Appellant also asserts April was not treated for a collapsed lung by chest tube or intubation but rather received only "comfort care." Again, he cites no authority supporting his implication that the fact that a particular medical procedure was not performed means the injury was not serious. Further, the fact that April's condition improved in the hospital may not be considered when determining if she suffered serious bodily injury. See Blea, 483 S.W.3d at 34-35 (relevant question is the nature of the injury at the time it was inflicted, not the amelioration or exacerbation of an injury by actions not attributable to the offender, such as medical treatment).
Protracted impairment of a bodily member. The jury was also free to infer that April's rib pain nine months after the assault was evidence of protracted impairment of function of a bodily member. See Bittner v. State, No. 03-09-00275-CR, 2010 WL 2540608, *3 (Tex. App.—Austin June 25, 2010, pet. ref'd) (mem. op.) (not designated for publication) (holding that evidence showing infant's ribs had been broken for four of her six weeks of life was sufficient to show she suffered protracted impairment of function of a bodily member); Peek v. State, No. 08-00-00158-CR, 2001 WL 1169922, *7 (Tex. App.—El Paso Oct. 4, 2001) (not designated for publication), aff'd, 106 S.W.3d 72 (Tex. Crim. App. 2003) (evidence that baby's fractured ribs would hurt when she tried to roll over and could impair her breathing was sufficient to show she suffered protracted impairment of function of a bodily member). Cf. Villarreal v. State, 716 S.W.2d 651, 652 (Tex. App.—Corpus Christi 1986, no pet.) (holding evidence of victim's inability to raise his arms for two weeks due to fractured ribs was insufficient to establish protracted impairment of function of bodily member).
Viewing the evidence in the light most favorable to the verdict, we conclude a rational jury could have found beyond a reasonable doubt that April suffered serious bodily injury. See Jackson, 443 U.S. at 318-19; Gear, 340 S.W.3d at 746.
CONCLUSION
We overrule appellant's sole issue and affirm the judgment of the trial court.
/s/ William J. Boyce
Justice Panel consists of Justices Boyce, Donovan, and Jewell.
Do Not Publish — TEX. R. APP. P. 47.2(b).