Terry Michael Sizemore v. State ( 2012 )

NO. 07-11-00424-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 19, 2012
TERRY MICHAEL SIZEMORE, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 63,116-D; HONORABLE DON R. EMERSON, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION
Appellant, Terry Michael Sizemore, appeals his conviction for aggravated
assault 1 and resulting fifteen-year sentence. He brings to this Court one issue on
appeal: whether the evidence is sufficient to establish the element of “serious bodily
injury.” We will affirm.
Factual and Procedural History
On February 6, 2011, complainant, Barbara Michie, was at appellant’s house
visiting her friend, Teresa Smith, who was appellant’s girlfriend. At some point during
1
See TEX. PENAL CODE ANN. § 22.02(a)(1) (West 2011).
the night, as appellant, Smith, and Michie drank together, Smith decided she wanted
her car keys, but appellant refused to give them to her. A physical altercation ensued
between appellant and Smith. Michie intervened to try to pull appellant off Smith,
apparently to no avail. Appellant and Smith carried on the fight through several rooms
of the house. After her efforts to separate appellant and Smith were unsuccessful,
Michie decided to call Smith’s son for assistance. As she was in the process of doing
so, appellant leapt onto Michie and bit her. Later, it would be learned that appellant had
bitten off a piece of Michie’s ear.
At some point, Smith had called 911. At 1:19 a.m., Officer Joel Bullard of the
Amarillo Police Department was dispatched to the residence where, upon his arrival one
to two minutes later, he saw appellant screaming at a female as he pushed her inside
the house. Bullard also noticed a vehicle backing up to pull away from the house. He
signaled the unidentified driver to stop, and the driver complied. As Bullard approached
the vehicle, he saw Michie in the backseat of the vehicle holding a bloody towel or cloth
to the right side of her head. Bullard described Michie as “frantic” and “bleeding
profusely.” After examining her injury, which involved Michie missing what Bullard
estimated to be a two-inch by one-half-inch section of her lower right ear, he summoned
an ambulance for Michie.
A fellow officer arrived a short time later to assist Bullard, and the two officers
made their way to the front door where they summoned appellant to the doorway. The
officers noted that appellant sported blood–from an unidentified source–on his face and
lips and in his beard. “[A]gitated” and “combative,” appellant refused to comply with
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Bullard’s instruction to come outside. Bullard pulled appellant from the doorway to the
outside where the officers were able to place him in handcuffs and put him in the
backseat of a patrol car as they continued their investigation. Ultimately, appellant was
arrested and charged with aggravated assault.
A Potter County jury found appellant guilty of aggravated assault, and the trial
court assessed punishment at fifteen years’ imprisonment. Appellant appeals his
conviction, seemingly conceding that there was sufficient evidence of the elements of
simple assault but contending that the evidence was insufficient that Michie sustained a
serious bodily injury, a required element of the offense of aggravated assault.
Standard of Review
In assessing the sufficiency of the evidence, we review all the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,
323 S.W.3d 893, 912 (Tex.Crim.App. 2010). “[O]nly that evidence which is sufficient in
character, weight, and amount to justify a factfinder in concluding that every element of
the offense has been proven beyond a reasonable doubt is adequate to support a
conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful
that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no
higher standard of appellate review than the standard mandated by Jackson.” Id.
When reviewing all of the evidence under the Jackson standard of review, the ultimate
question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07
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n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d
404, 448–50 (Tex.Crim.App. 2006), as outlining the proper application of a single
evidentiary standard of review). “[T]he reviewing court is 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.” Id. at 899.
Applicable Law
A person commits assault if he intentionally, knowingly, or recklessly causes
bodily injury to another. See TEX. PENAL CODE ANN. § 22.01(a)(1) (West 2011). To
establish the offense of aggravated assault, the State must prove the defendant caused
serious bodily injury to another. Id. § 22.02(a)(1). “Bodily injury” is defined as “physical
pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8) (West Supp.
2012). “Serious bodily injury” is “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.” Id. § 1.07(a)(46).
The record does not suggest that the injury to Michie’s ear created a substantial
risk of death, and there is nothing in the record that would suggest that the injury
caused protracted hearing loss. 2 So, we will focus on the remaining aspect of the
definition of “serious bodily injury,” namely serious permanent disfigurement.
2
There is, though, a brief reference to Michie’s statement at the time of the injury
that she could not hear. We note first that this was the State’s attorney’s statement and
add that nothing in Michie’s testimony suggested that, even if she was not able to hear
at the time, she has suffered a protracted loss of hearing in that ear.
4
We begin by noting the well-established rule that the relevant issue is the
disfiguring effect of the bodily injury as it was inflicted, not after the effects had been
ameliorated or exacerbated by other actions such as medical treatment. See Stuhler v.
State, 218 S.W.3d 706, 714 (Tex.Crim.App. 2007); Fancher v. State, 659 S.W.2d 836,
838 (Tex.Crim.App. 1983) (en banc); Brown v. State, 605 S.W.2d 572, 575
(Tex.Crim.App. [Panel Op.] 1980). There are no wounds that constitute “serious bodily
injury” per se. Hernandez v. State, 946 S.W.2d 108, 111 (Tex.App.—El Paso 1997, no
pet.) (citing as examples Webb v. State, 801 S.W.2d 529, 533 (Tex.Crim.App. 1990) (en
banc) (per curiam), and Moore v. State, 739 S.W.2d 347, 352 (Tex.Crim.App. 1987) (en
banc)). Instead, we must determine whether an injury constitutes a serious bodily injury
on a case-by-case basis, evaluating each case on its own facts to determine whether
the evidence was sufficient to permit the finder of fact to conclude that the injury fell
within the definition of “serious bodily injury.” See Moore, 739 S.W.2d at 352; Eustis v.
State, 191 S.W.3d 879, 884 (Tex.App.—Houston [14th Dist.] 2006, pet. ref’d).
“Serious bodily injury” may be established without a physician’s testimony when
the injury and its effects are obvious. See Carter v. State, 678 S.W.2d 155, 157
(Tex.App.—Beaumont 1984, no pet.). The person who sustained the at-issue injury is
qualified to express an opinion about the seriousness of that injury. Hart v. State, 581
S.W.2d 675, 677 (Tex.Crim.App. [Panel Op.] 1979); Coshatt v. State, 744 S.W.2d 633,
636 (Tex.App.—Dallas 1987, pet. ref’d).
We note, however, that the record does contain evidence that would suggest
some degree of impairment of Michie’s ear as a result of the injury. She testified that
she still experienced pain in her right ear resulting from the injury and that the pain
increased whenever she lays in such a way to put pressure on that ear.
5
Simply that an injury causes scarring is not sufficient, on its own, to establish
serious permanent disfigurement. Hernandez, 946 S.W.2d at 113; see McCoy v. State,
932 S.W.2d 720, 724 (Tex.App.—Fort Worth 1996, pet. ref’d). A reviewing court must
find more than mere scarring alone; instead, it must find in the record evidence of “some
significant cosmetic deformity” in order to conclude that the evidence of serious bodily
injury was sufficient. Compare Hernandez, 946 S.W.2d at 113 (finding evidence of one-
inch scar from stab wound in addition to a surgical scar insufficient to “elevate ‘bodily
injury’ to ‘serious bodily injury’”), and McCoy, 932 S.W.2d at 724 (concluding evidence
of slight scar on lip, though permanent, was not sufficient to show serious permanent
disfigurement), with Moore v. State, 802 S.W.2d 367, 369–70 (Tex.App.—Dallas 1990,
pet. ref’d) (finding sufficient evidence of serious bodily injury where victim’s cheekbone
was fractured in three places and surgery needed to prevent significant cosmetic
deformity), and Pitts v. State, 742 S.W.2d 420, 421–22 (Tex.App.—Dallas 1987, pet.
ref’d) (concluding evidence of significant disfigurement was sufficient where victim
suffered five facial fractures necessitating several surgeries to repair damage).
Likewise, the necessity of surgery alone is insufficient to establish serious bodily
injury. See Webb, 801 S.W.2d at 533. Whether a “bodily injury” is “serious,” in terms of
the Texas Penal Code, does not depend solely upon whether the victim received
medical treatment. See Moore, 739 S.W.2d at 354. However, in evaluating the
evidence supporting serious bodily injury, courts do consider as a relevant factor
whether the injury would be permanently disfiguring without medical treatment. See
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Brown, 605 S.W.2d at 575 (concluding evidence that a broken nose would cause
disfigurement and dysfunction if untreated sufficient to establish serious bodily injury). 3
Analysis
Photographs of Michie’s injuries as she waited at the scene for an ambulance
were admitted into evidence without objection. These photographs show a significant
amount of blood in and around the area surrounding Michie’s ear, and they clearly
depict that a piece of her ear is missing. Photographs of Michie’s right ear taken one or
two days after the assault and after she had gotten medical treatment were also
admitted without objection. These photographs depict the sutures used to close and
repair the wound to some degree and confirm that part of her lower ear remained
missing, causing her ear to be misshapen.
Michie testified that, as appellant punched, kicked, slapped, and dragged Smith
throughout the house, she attempted to call Smith’s son for assistance in breaking up
the fight. Appellant leapt onto her, punched her, and bit her. She described the injury
and the surgical procedure to repair it, adding that the missing portion of her ear was
never found. Michie testified that, seven months after the injury, she still experienced
3
In a case bearing the same name, the Dallas court reconciled Moore with
Brown:
We interpret Moore as prohibiting the prosecution’s attempts to transform
a minor injury into a serious bodily injury through the use of speculative
testimony about what might have occurred had the minor injury not been
medically treated.
Moore, 802 S.W.2d at 370 (discussing Moore, 739 S.W.2d at 354, and Brown, 605
S.W.2d at 575).
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pain in her ear. This pain increased if she happened to lay in such a way that she put
pressure on her right ear. She explained that she had not yet undergone the
reconstruction procedure and, at the prosecutor’s request, showed her ear to the jury,
enabling it to assess the degree of disfigurement. Appellant testified at trial and denied
having committed an assault against Michie. He explained, though, that had he known
she was as severely injured as she was, he would have rendered aid at the time
because “it look[ed] bad.”
Medical records from Michie’s two-day hospital stay describe Michie’s wound
upon her arrival at the emergency room as a “traumatic injury” to her right ear. Michie’s
“traumatic injury” is more than one resulting in mere scarring; her medical records
describe a “loss of significant section of the lower ear,” more technically a “gross
avulsion of the helix and lobule area of the right ear.” Her preoperative diagnosis
described her injury as an open wound to the right ear with “underlying cartilage
exposed and desiccated.” The treating physician described the injury in more detail:
Her right ear shows a significant degree of avulsion going from around the
mid aspect of the helix all the way down involving the lobule. The entire
segment measures approximately 6 cm in length about a centimeter and a
half in width [and is] simply gone. The underlying cartilage itself appears
to be broken and desiccated. There appears to be no actual broken
segments, but there appears to be almost nibbled off section[s] of the
edges of the cartilage.
Based on his assessment of the injury, including the exposed, desiccated cartilage, the
treating physician advised surgical intervention to cleanse the wound, repair and
remove tissue in the area of the wound, and cover the remaining cartilage, a procedure
the medical records describe as a “complex repair.” Records indicated that the surgical
8
intervention was successful in cleansing and closing the wound, but did not result in a
full reconstruction of the ear; this initial surgical procedure, it appears, was not intended
to accomplish such. Ultimately, the doctor noted, the injury will require a two- to three-
stage reconstruction using rib cartilage to reconstruct her ear.
The jury was free to apply common sense, knowledge, and experience gained in
the ordinary affairs of life in drawing reasonable inferences from the evidence presented
to it. Eustis, 191 S.W.3d at 884. That said, the jury could have rationally concluded that
Michie suffered serious permanent disfigurement from the photographs of her injury at
the time of the assault, Michie’s testimony describing the injury and complications
associated with it, the in-court demonstration of the resulting misshapen form of her
lower right ear, and the extensive medical records describing the details of her injury.
We conclude the evidence is sufficient to establish the requisite elements of aggravated
assault, including the jury’s finding that appellant caused Michie serious bodily injury.
Accordingly, we overrule appellant’s sole point of error.
Conclusion
Having overruled appellant’s sole point of error, we affirm the trial court’s
judgment of conviction. See TEX. R. APP. P. 43.2(a).
Mackey K. Hancock
Justice
Publish.
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