Gilbert Fernandez v. the State of Texas ( 2022 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-21-00256-CR
No. 07-21-00257-CR
________________________
GILBERT FERNANDEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 100th District Court
Collingsworth County, Texas
Trial Court Nos. 3062 & 3063, Honorable Stuart Messer, Presiding
October 3, 2022
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
Gilbert Fernandez appeals his convictions for murder and two counts of
aggravated assault. His sole issue deals with the sufficiency of the evidence underlying
his guilt on one count of aggravated assault. Through the at-issue count, the State
charged him with “intentionally, knowingly, or recklessly, caus[ing] bodily injury to Frankie
Lynn Cannon by burning the body of the said Frankie Lynn Cannon” while using or
exhibiting a deadly weapon, namely a blow torch. Allegedly, the State failed to prove that
burning the victim before death caused bodily injury. We affirm.
The standard of review is that explained in Garcia v. State, 367 S.W.3d 683 (Tex.
Crim. App. 2012). We apply it here.
The Garcia court further alluded to “bodily injury” as meaning physical pain, illness,
or any impairment of physical condition. Id. at 687-88 (quoting TEX. PENAL CODE ANN. §
1.07(a)(8)). Regarding the pain component, we were told not only that “[a]ny physical
pain, however minor” suffices to prove bodily injury but also that a fact finder may infer
the victim actually felt pain because people understand pain and some of its causes.
Garcia, 367 S.W.3d at 688. For instance, in O’Neal v. State, we held that a burn on the
child’s abdomen permitted “a rational juror to infer beyond reasonable doubt that the
infant experienced physical pain when it occurred.” O’Neal v. State, No. 07-15-00274-
CR, 2016 Tex. App. LEXIS 8927, at *5-6 (Tex. App.—Amarillo Aug.16, 2016, pet. ref’d)
(mem. op., not designated for publication).
Here, appellant admitted to the investigating officer that he and several others
struck the victim with a bat and burned him with a blow torch. Another witness described
how the victim’s hands were burned with a lighter as a prelude to transporting the
individual elsewhere to be shot in the head four times. People of common intelligence
would understand that being burned generally causes some pain. See e.g., O’Neal,
supra. So, the jury at bar was free to infer that appellant’s victim suffered some pain when
burned by the blow torch, even though no one so testified. See Wiegand v. State, No.
13-21-00157-CR, 2022 Tex. App. LEXIS 5786, at *8 (Tex. App.—Corpus Christi Aug.11,
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2022, no pet.) (mem. op., not designated for publication) (quoting Coleman v. State, 631
S.W.3d 744, 751 (Tex. App.—Houston [14th Dist.] 2021, pet. ref’d) (stating that “‘no
witness—including the victim—need testify that the victim felt pain’”). And, this means
evidence viewed in the light most favorable to the verdict existed which permitted a
rational trier of fact to find the essential element in question beyond a reasonable doubt,
that element being bodily injury through burning.
We overrule appellant’s sole issue and affirm the judgments of the trial court.
Brian Quinn
Chief Justice
Do not publish.
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