James Skyler Kerby v. State ( 2011 )

Affirmed and Memorandum Opinion filed August 23, 2011.

In The

Fourteenth Court of Appeals

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NO. 14-10-00416-CR

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James Skyler kerby, Appellant

V.

The State of Texas, Appellee

On Appeal from the 344th District Court

Chambers County, Texas

Trial Court Cause No. 15333

MEMORANDUM OPINION

            Appellant, James Skyler Kerby, was convicted by a jury of aggravated assault.  See Tex. Penal Code Ann. § 22.02(a)(1) (West 2011).  The jury assessed appellant’s punishment at two years’ confinement in the Institutional Division of the Texas Department of Criminal Justice with a finding that appellant had never before been convicted of a felony and recommended a suspended sentence.  The trial court entered a judgment of conviction and placed appellant on community supervision for a period of five years.  See Tex. Code Crim. Proc. Ann. art. 42.12 (West 2009).  We affirm.

Factual and Procedural Background

            On March 27, 2009 Robert Frazee and his wife Patty were attending the O’Reilly Spring Nationals drag races at Raceway Park in Chambers County, Texas.  About 6:00 p.m., the races were halted due to rain and many of the people attending the races were returning to their vehicles and exiting the parking lots.  The Frazees were parked in the Top Eliminator Club parking area.  Mr. Frazee was driving a 2007 Chevrolet Tahoe and his wife was riding in the front passenger seat as they made their way toward the exit from the Top Eliminator Club parking area.

            Appellant, along with his wife and several friends, also attended the O’Reilly drag races that day.  Appellant and his wife, Sandy, initially drove to the residence of their friend Steve Douget, where they met not only Douget, but also Henry and Karen Rabalais.  Once the Kerbys arrived, the friends loaded items, including a cooler of beer, for their planned tailgating activities into appellant’s four-door Ford pickup truck, and left for the track.  Appellant, along with his wife and friends, arrived at the race track at approximately noon and paid to park in the Top Eliminator Club parking area.

            After appellant had parked his truck, everyone except appellant consumed a beer.  At that point in time, they all entered the track area to watch the drag races.  A couple of hours later, they left the race area and went back to appellant’s truck where they set-up a grill and prepared food.  The friends continued to consume beer.[1] After completing their tailgating, the friends went back into the drag racing area where they remained until they decided to leave about 5:00 or 6:00 p.m. After returning to appellant’s truck, they checked to make certain their tailgating items were secured, loaded into the truck, and joined a line of traffic making its way toward the exit from the Top Eliminator Club parking.[2]

            There was a single exit from the Top Eliminator Club parking lot and Mr. Frazee was in the line of traffic leading directly to that exit.  Appellant’s vehicle was in a converging line of traffic merging into Mr. Frazee’s line of traffic.  Mr. Frazee noticed a vehicle lurch toward his Tahoe that looked like it “was trying to drive into the side of [his ] vehicle.”  The lurching vehicle stopped about twelve inches from the side of Mr. Frazee’s Tahoe.  Mr. Frazee pulled ahead in line and the lurching vehicle pulled into line behind him.  The next thing Mr. Frazee noticed was a beer can hitting the back window of his Tahoe.[3]  Both Mr. Frazee and his wife observed beer foam running down the window.

Mr. Frazee put his Tahoe into park and got out to check for damage.  Mr. Frazee saw a beer can sitting on the ground next to his Tahoe and then heard appellant, standing next to his vehicle, say, “I guess it’s a race day thing.”  Thinking appellant had seen who had thrown the beer can, an angry Mr. Frazee approached appellant and said, “What the hell is going on?”  Appellant, also angry, simultaneously moved toward Mr. Frazee and he asked, “How come you didn’t let me out?”  After a few more words were exchanged, appellant turned around as if he was going to walk away, but then he suddenly turned back around and punched Mr. Frazee in the throat with his fist.[4] Mr. Frazee fell back against his Tahoe.  Mr. Frazee testified that he immediately noticed his voice had changed and that it was difficult to breathe.  Mr. Frazee was able to tell appellant he was about to go to jail.  A second man wearing a green shirt told Mr. Frazee he was lucky, that he was going to “beat his ass;” and that if he had been the one who had hit him, he would not have stopped at one punch.  At that point, a man wearing a yellow shirt came up and was telling everyone to get back in their cars and start moving.  Mr. Frazee refused to leave until the police had arrived.

Eventually track personnel arrived and called for police and paramedics.  At that point, appellant backed his truck up and moved away from the scene.  After police officers arrived, some stayed with Mr. Frazee while others ran after and stopped appellant’s truck.   The officers who remained at the scene sought out witnesses and discovered one person who admitted seeing what had happened. Phil Schneider testified during appellant’s trial and told the jury appellant was the aggressor and hit Mr. Frazee once in the upper chest or throat.

Once paramedics arrived, they examined Mr. Frazee, determined his injury was potentially severe, and then transported him to San Jacinto Hospital, the local hospital.  Mr. Frazee was placed in a wheelchair once he arrived at the emergency room and he waited approximately four hours.  During that time, the condition of his throat worsened until he completely lost his voice.  After Mr. Frazee was moved into an examining room he was sent for x-rays and a CAT scan.  Soon after that, Mr. Frazee’s throat swelled shut and his lips turned blue.  Emergency room personnel intervened, intubated Mr. Frazee and administered licocaine with decondron through a nebulizer.  As a result of these efforts, Mr. Frazee regained his ability to breathe.  Emergency room personnel diagnosed Mr. Frazee with laryngospasm,[5] determined he needed a higher level of care than was available at San Jacinto Hospital, and transferred him by ambulance to Memorial-Hermann Hospital.[6]

For two or three weeks after he was punched in the throat, Mr. Frazee was required to take medication to prevent him from vomiting and he had difficulty speaking for a couple of months.  At trial, thirteen months after he was hit, Mr. Frazee’s voice was deeper than it had been prior to the assault.  In addition, Mr. Frazee still choked easily while eating, which requires that he chew very small bites of food and avoid salads and tart foods like salad dressing.

Discussion

            Appellant raises a single issue on appeal.  In that issue, appellant contends the evidence is insufficient to support his conviction for aggravated assault.

A.        The standard of review and applicable law.

            In his single issues on appeal, appellant contends the evidence is legally and factually insufficient to support his conviction for aggravated assault. However, a majority of the judges of the Texas Court of Criminal Appeals have determined that “the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in 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, 895 (Tex. Crim. App. 2010) (plurality op.).[7]  Therefore, in this case, we do not separately refer to legal or factual sufficiency.  See Pomier v. State, 326 S.W.3d 373, 378 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (applying a single standard of review as required by Brooks); see also Caddell v. State, 123 S.W.3d 722, 726–27 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (explaining that this court is bound to follow its own precedent).

In a sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 569 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005).  The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness’ testimony.  Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998).  The jury may reasonably infer facts from the evidence presented, credit the witnesses it chooses to, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence as it sees fit.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  Reconciliation of conflicts in the evidence is within the jury’s discretion, and such conflicts alone will not call for reversal if there is enough credible evidence to support a conviction.  Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986).  An appellate court may not re-evaluate the weight and credibility of the evidence produced at trial and in so doing substitute its judgment for that of the fact finder.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  Inconsistencies in the evidence are resolved in favor of the verdict.  Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).  We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).

B.        Analysis

A person commits aggravated assault if he commits assault and (1) causes serious bodily injury to another; or (2) uses or exhibits a deadly weapon during the commission of the assault.  Tex. Penal Code Ann. § 22.02(a)(1); Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001).  Only the first, serious bodily injury, is at issue in this appeal.

Appellant contends his conviction should be reversed because the evidence is insufficient to prove beyond a reasonable doubt that Mr. Frazee suffered serious bodily injury as a result of appellant punching him in the throat.  Initially, appellant asserts the evidence is insufficient to establish that Mr. Frazee suffered an injury with a substantial risk of death.  In support of this contention, appellant points to the testimony of his expert witness, Dr. Louis Train, who reviewed Mr. Frazee’s medical records and testified that while he believed Mr. Frazee had suffered an injury as a result of being punched in the throat, he did not think his injury created a substantial risk of death.  In addition, appellant asserts the evidence is insufficient to establish that Mr. Frazee suffered either permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ as a result of being punched in the throat.  Because it is dispositive of this appeal, we need only address the first ground, substantial risk of death, for establishing serious bodily injury.  See Banargent v. State, 228 S.W.3d 393, 399 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (“Serious bodily injury is bodily injury plus one or more of the following effects: (1) a substantial risk of death, (2) death, (3) serious permanent disfigurement, (4) protracted loss of function of any bodily member, (5) protracted impairment of the function of any bodily member, (6) protracted loss of the function of any bodily organ, or (7) protracted impairment of the function of any bodily organ.”).

“Bodily injury” means physical pain, illness, or any impairment of physical condition.  Tex. Penal Code Ann. § 1.07(a)(8); Eustis v. State, 191 S.W.3d 879, 883 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).  “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.”  Tex. Penal Code Ann. § 1.07(a)(46); Ferrel, 55 S.W.3d at 590.  Substantial risk of death “is a risk that gives rise to apprehension of danger to life.”  Moore v. State, 739 S.W.2d 347, 353 (Tex. Crim. App. 1987) (en banc).  In order to establish bodily injury that creates a substantial risk of death, the prosecution “must present relevant and probative evidence from which a rational trier of fact could infer beyond a reasonable doubt that the bodily injury the victim sustained created a substantial risk of death from the injury itself….”  Id. at 352.  A person who receives injuries is qualified to express an opinion about the seriousness of those injuries.  Hart v. State, 581 S.W.2d 675, 677 (Tex. Crim. App. 1979).  Whether an injury constitutes serious bodily injury must be determined on a case-by-case basis.  Id.; Banargent, 228 S.W.3d at 399.

Here, it was undisputed that appellant hit Mr. Frazee in the throat.  Mr. Frazee testified about the injury he sustained as a result of appellant punching him in the throat. According to Mr. Frazee, after he was hit, it was difficult to breathe and the paramedics told him his injury was potentially severe.  Mrs. Frazee testified that after Mr. Frazee was hit, he had difficulty breathing and his voice was raspy.  Mr. Frazee also explained that after he arrived at the emergency room, his throat swelled up and closed off preventing him from breathing, which made his lips turn blue.  According to Mr. Frazee, he believed he was going to die. Mr. Frazee’s condition required immediate medical intervention including intubation and medication.

The medical records also confirm this life threatening episode.  In addition, the medical records and the testimony of Jonathan Lamb, the paramedic responsible for transferring Mr. Frazee to Memorial-Hermann Hospital, establish that Mr. Frazee was transferred because his injury could have required a higher level of care than was available at San Jacinto Hospital.  That same evidence also establishes that there was a risk that during the transfer Mr. Frazee’s condition could deteriorate and death was a possible consequence if that occurred.  We conclude this evidence, when viewed in the appropriate light, is sufficient evidence to support appellant’s conviction for aggravated assault.  See Hart v. State, 581 S.W.2d 675, 676 (Tex. Crim. App. 1978) (relying on medical records to establish serious bodily injury); Banargent, 228 S.W.3d at 399-400 (relying on the complainant’s testimony to establish serious bodily injury); Coshatt v. State, 744 S.W.2d 633, 635-36 (Tex. App.—Dallas 1987, pet. ref’d) (relying on the complainant’s testimony as well as medical records to establish serious bodily injury).

We also conclude Dr. Train’s testimony does not change this result.  As the sole judge of the credibility of the witnesses, the jury could have chosen to disbelieve Dr. Train’s testimony that, after reviewing appellant’s medical records, he did not believe Mr. Frazee had suffered a life threatening injury.  Jones, 984 S.W.2d at 257.

The jury could also have rationally disbelieved Dr. Train’s conclusion that Mr. Frazee did not suffer an injury with a substantial risk of death for several reasons.  First, on cross-examination, Dr. Train testified that a patient is intubated when he cannot breathe and that his opinion might change if Mr. Frazee had been intubated at San Jacinto Hospital.  Mr. Frazee’s testimony indicates he was intubated when his throat swelled up and prevented him from breathing.  Second, Mr. Frazee’s medical records reveal that while at San Jacinto Hospital he was cyanotic.  Dr. Train explained that cyanotic means purple lips, which is a condition that results when a human body does not get enough air.  Third, the medical records indicate Mr. Frazee was transferred to Memorial-Hermann Hospital because he potentially needed a higher level of care than what was available at San Jacinto Hospital if Mr. Frazee’s condition suddenly deteriorated.  Finally, Mr. Frazee’s medical records indicate that one risk associated with transferring Mr. Frazee to Memorial-Hermann Hospital was that his condition might deteriorate while in transit which might cause his death.

Having determined the evidence recited above is sufficient evidence from which a rational jury could have concluded beyond a reasonable doubt that appellant committed aggravated assault against Mr. Frazee, we overrule appellant’s single issue on appeal.

Conclusion

            Having overruled appellant’s issue on appeal, we affirm the trial court’s judgment.

                                                                        /s/        John S. Anderson

                                                                                    Justice

Panel consists of Justices Anderson, Seymore, and McCally.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] Appellant testified that he initially did not feel well when he arrived at the race track, but felt better after eating and he admitted consuming an unspecified amount of beer at the race track.  Henry Rabalais testified during appellant’s trial and he admitted consuming six or seven beers while at the race track.  Sandy Kerby also testified and admitted each of the friends consumed an unspecified amount of beer at the race track.  In fact, Sandy Kerby testified she did not know how many beers she consumed but it was enough for her to feel “slightly buzzed.” Karen Rabalais also admitted drinking an unknown quantity of beer that day, either at Douget’s house or at the race track.  Steve Douget did not testify during appellant’s trial.

[2] Appellant was driving while Henry Rabalais occupied the front passenger seat.  Karen Rabalais was in the rear passenger seat behind her husband, appellant’s wife was in the middle, and Steve Douget was riding the rear seat behind appellant.

[3] During appellant’s trial, Karen Rabalais admitted that she leaned out of right rear passenger window and threw the beer can that hit Mr. Frazee’s window.

[4] Appellant testified during his trial and admitted hitting Mr. Frazee; however, he argued it was done in self-defense.

[5] Laryngospasms are throat spasms that can contract the throat muscles into a closed position thereby cutting off the person’s ability to breathe.

[6] The attending emergency room physician determined that even though sending Mr. Frazee to Memorial-Hermann Hospital by ambulance risked his life, the risk of keeping him at the local hospital was greater because it did not have the level of care Mr. Frazee potentially needed: an ear, nose, and throat surgeon who could perform a tracheotomy if Mr. Frazee’s condition worsened.

[7] Nonetheless, this does not alter the constitutional authority of the intermediate courts of appeal to evaluate and rule on questions of fact.  See Tex. Const. art. V, § 6(a) (“[T]he decision of [courts of appeal] shall be conclusive on all questions of fact brought before them on appeal or error.”).