Blea, Juan

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0245-15
JUAN BLEA, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
DENTON COUNTY
ALCALA , J., delivered the opinion for a unanimous Court.
OPINION
In its sole ground in its petition for discretionary review, the State contends that the
court of appeals erred by reversing the conviction of Juan Blea, appellant, for first-degree
aggravated assault of a family member against his then-girlfriend, Justina Fassett. Blea v.
State, No. 02-13-00221-CR, 2015 WL 510954, at *1 (Tex. App.—Fort Worth Feb. 5, 2015,
pet. granted). The State challenges the court of appeals’s determination that the evidence
was legally insufficient to establish the element of “serious bodily injury.” T EX. P ENAL C ODE
§ 22.02(b)(1). The State asserts that, in deciding whether appellant caused serious bodily
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injury to Fassett, the court of appeals should have examined the injuries as they were inflicted
by appellant, rather than assessing the injuries in their improved or ameliorated condition
after medical treatment.1 We agree with the State. In light of the evidence showing that
appellant’s actions lacerated Fassett’s liver and collapsed her lung; that Fassett was taken to
the hospital due to her trouble breathing; that she was hospitalized for four days; that her lung
injury required a tube to permit breathing; and in light of the testimony describing her risk
of death from the type of injuries that she sustained, the jury could have rationally inferred
that Fassett’s injuries caused her a substantial risk of death. Concluding that the evidence
is legally sufficient, we reverse the judgment of the court of appeals, and we reinstate the trial
court’s judgment against appellant.
I. Background
Appellant lived with his parents and Fassett until he moved out of their shared
apartment in early July 2010. Later that month, appellant went to the apartment to visit
Fassett and their baby daughter. During the visit, appellant noticed a “hickey” on Fassett’s
neck, and he asked about it. Appellant became angry when Fassett reported getting the mark
from a man the night before, and he told her that he was going to kill her. He hit Fassett in
the face with his hand one time, using either an open or closed fist, causing her to fall down.
Fassett then went into another room to put their daughter to bed. Upon her return to the
1
The State’s petition asks, “Did the Second Court of Appeals improperly apply the standard for
reviewing the sufficiency of the evidence in analyzing whether the complainant suffered serious
bodily injury?”
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living room, appellant hit Fassett’s body on her side, and he struck her more than once with
his open hand and closed fist. Fassett was unable to specifically describe how appellant hit
her, saying that he may also have kicked her. When the baby woke up, appellant left the
apartment to buy diapers. Upon his return to the apartment, the couple argued again before
he left.
Fassett stated that, after the assault, she had been in “a lot” or “a ton” of pain in her
back and her chest. She also said that she felt like something had been broken or terribly
injured during the assault. When appellant’s parents returned to the apartment at Fassett’s
request, they observed that Fassett was “hurting.” She told them that she had fallen down
the stairs, but they did not believe her, and they called the police.
The responding officer saw Fassett’s condition after the assault. He recalled that,
when she tried to stand up, “she fell back to the couch in pain.” The officer observed that
she had visible injuries to her face in that the area under one eye was bruised and had a cut
on it, and she had other scrapes to her face. She also had redness to her arm and early
bruising. The officer noted that Fassett had one arm holding her ribs, her chest, and her
stomach area. After hearing Fassett say that she was having a hard time breathing and was
in a lot of pain, the officer called an ambulance.
Fassett was admitted into a hospital where she remained for four days, during which
time she was treated for a collapsed lung with the insertion of a chest tube. Her injuries
additionally included a lacerated liver, two rib fractures, and a fractured maxillary sinus bone.
Blea - 4
Due to these injuries, Fassett was unable to return to work for approximately a month.
Appellant was charged and convicted of first-degree aggravated assault of a family member
for causing Fassett serious bodily injury by using a deadly weapon.
Finding that the evidence failed to establish that Fassett suffered serious bodily injury,
a majority of the court of appeals held that the evidence was legally insufficient to establish
first-degree aggravated assault against a family member, and it remanded for a new
punishment hearing on the lesser offense of second-degree aggravated assault. Blea, 2015
WL 510954, at *1. The court’s majority explained that the evidence that Fassett had a
collapsed lung and lacerated liver failed to show that she faced a substantial risk of death,
and, thus, serious bodily injury was not established on that basis. Id. at *5. Similarly, the
court’s majority found no evidence that Fassett suffered protracted loss or impairment of the
function of a bodily member or organ, which could have been an alternative basis for
upholding the jury’s finding that there was serious bodily injury. Id. The court’s majority
reasoned that, although there was testimony from a treating nurse that an injury to a person’s
liver can result in her bleeding to death and that a patient with a collapsed lung can die from
an inability to breathe, that evidence did not establish that Fassett had serious bodily injury.
Id. The Court’s majority explained that the treating nurse testified that “the complainant had
a collapsed lung, but it had already been treated when [she] met the complainant[.]” Id. at
*4. The court’s majority determined that, even though Fassett had injuries to her liver and
to her lung, and even though it is possible for someone with those injuries to die from them,
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there was no evidence that Fassett’s injuries created a substantial risk of death. Id. at *4-5.
The court’s majority explained that bodily injury cannot be elevated to serious bodily injury
by postulating potential complications that are not in evidence. Id. at *3. One justice
dissented, concluding that the evidence was legally sufficient to establish serious bodily
injury because, if Fassett’s injuries had been left untreated, she would have faced a
substantial risk of death from her injuries, and she would have suffered protracted loss or
impairment of the function of a bodily member or organ. Id. at *7-8.
II. Analysis
The State challenges the reasoning of the court of appeals’s majority opinion by
asserting that Fassett had serious bodily injury based on the evidence that (1) appellant
caused Fassett to have a substantial risk of death and/or (2) he caused her protracted loss or
impairment of the function of a bodily member or organ. The State explains that the jury
could have inferred these consequences from the totality of the evidence describing Fassett’s
injuries to her liver and lung. We agree with the State as to the first alternative, and
therefore, we need not address the second alternative for upholding the jury’s finding on the
element of serious bodily injury.
A. Applicable Law for Sufficiency of the Evidence for Aggravated Assault
We review the sufficiency of the evidence under the standard set forth in Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979). We view the evidence in the light most favorable to
the verdict to determine whether any rational trier of fact could have found the elements of
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the offense beyond a reasonable doubt. Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim.
App. 2014). The “jury is the sole judge of credibility and weight to be attached to the
testimony of witnesses.” Id. “When the record supports conflicting inferences, we presume
that the jury resolved the conflicts in favor of the verdict, and we defer to that
determination.” Id.
We agree with the court of appeals’s description of the elements of first-degree
aggravated assault of a family member as requiring evidence that the actor used a deadly
weapon during the commission of the assault, and as further requiring proof that the actor
caused serious bodily injury to a family member. See T EX. P ENAL C ODE § 22.02(b)(1). We
also agree with the court of appeals’s reliance on the Penal Code’s definition for “serious
bodily injury” as being “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). We part with the court of appeals’s
majority, however, in its decision to weigh the effects of any medical treatment in its
determination that the evidence failed to establish the element of “serious bodily injury.”
B. Applicable Law for Evidence Sufficiency on Serious Bodily Injury
In deciding whether the evidence showed that there was a substantial risk of death
from an injury, the court of appeals split in its assessment of whether it was proper to
consider the effects of the medical treatment received by Fassett. The court of appeals’s
majority considered the evidence of Fassett’s injuries after medical treatment, whereas the
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dissenting opinion considered the evidence of her injuries as inflicted by appellant before her
treatment. This split in the court of appeals is understandable, perhaps, in light of a slight
inconsistency in this Court’s precedent regarding the proper analysis under these
circumstances. On the one hand, the vast majority of decisions from this Court have held that
the relevant inquiry is the degree of risk posed by the injury as it was inflicted without regard
to the positive effects of medical treatment. Brown v. State, 605 S.W.2d 572, 575 (Tex.
Crim. App. 1980). In Brown, the specific issue was whether the complainant’s broken and
deformed nose could qualify as “serious bodily injury” under either the “serious permanent
disfigurement” or the “protracted . . . impairment of the function of any bodily member or
organ” alternatives, when the bone had been successfully set through medical treatment,
thereby preventing disfigurement and impairment of function. Id. This Court held that the
Brown complainant’s broken and deformed nose could be fairly categorized as serious bodily
injury, reasoning that “[t]he relevant issue was the disfiguring and impairing quality of the
bodily injury as it was inflicted, not after the effects had been ameliorated or exacerbated by
other actions such as medical treatment.” Id. In Stuhler v. State, this Court observed that it
has “long held that in assessing the sufficiency of the evidence to establish serious bodily
injury, the question is the degree of risk of death that the injury caused, or the disfiguring or
impairing quality of the injury, ‘as it was inflicted, not after the effects had been ameliorated
or exacerbated by other actions such as medical treatment.’” 218 S.W.3d 706, 714 (Tex.
Crim. App. 2007) (quoting Fancher v. State, 659 S.W.2d 836, 838 (Tex. Crim. App. 1983));
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see also Webb v. State, 801 S.W.2d 529, 532 (Tex. Crim. App. 1990) (citing Brown for the
proposition that the relevant inquiry is the degree of risk posed by the injury as inflicted, not
after the effects have been ameliorated or exacerbated by medical treatment).2
On the other hand, in a single case, a plurality of this Court held the contrary position
that it is appropriate to consider whether a victim had a substantial risk of death after taking
into consideration the effects of medical treatment on the injury. Moore v. State, 739 S.W.2d
347, 353-54 (Tex. Crim. App. 1987). In Moore v. State, the jury found Moore guilty of
aggravated assault by causing serious bodily injury by stabbing his victim. Id. Reasoning
that “[p]rofessional medical attention and treatment is a fact of modern life,” a plurality of
this Court determined that it was appropriate to consider whether, after medical treatment,
the victim faced a substantial risk of death. Id. at 354. The plurality opinion explained, “[I]t
appears likely that the Legislature intended that bodily injuries which create a ‘substantial
risk of death’ should be understood to mean only those injuries for which a substantial risk
of death exists even if treated promptly according to accepted medical practice, when and to
the extent that medical treatment is available at the time of the injury.” Id.
For three reasons, we disavow this portion of Moore. First, under the plain language
2
The Brown standard has also been followed by intermediate courts of appeals in Texas. Jackson
v. State, 399 S.W.3d 285, 291 (Tex. App.—Waco 2013, no pet.); Sizemore v. State, 387 S.W.3d 824,
828 (Tex. App.—Amarillo 2012, pet. ref’d); Eustis v. State, 191 S.W.3d 879, 884 (Tex.
App.—Houston [14th Dist.] 2006, pet. ref’d); Wilson v. State, 139 S.W.3d 104, 106 (Tex.
App.—Texarkana 2004, pet ref’d); Nash v. State, 123 S.W.3d 534, 539 (Tex. App.—Fort Worth
2003, pet. ref’d); Hernandez v. State, 946 S.W.2d 108, 113 (Tex. App.—El Paso 1997, no pet.);
Barrera v. State, 820 S.W.2d 194, 196 (Tex. App.—Corpus Christi 1992, pet. ref’d).
Blea - 9
in the definition for “serious bodily injury,” the question is whether the injury “creates a
substantial risk of death.” T EX. P ENAL C ODE § 1.07(a)(46). The statute’s plain language
refers to the injury caused by the offender, and it does not require consideration of any
medical treatment that may have lessened the impact of the injury. Second, Moore is an
isolated case that is inconsistent with the numerous other holdings by this Court that consider
the risk of death as inflicted by a defendant without modification by the additional
consideration of the effects of medical treatment. Third, Moore is a plurality opinion from
1987, with six judges concurring, and it is therefore not binding precedent. See Unkart v.
State, 400 S.W.3d 94, 100 (Tex. Crim. App. 2013) (“Plurality opinions do not constitute
binding authority.”). Therefore, to the extent that Moore is in conflict with our other
precedent, we now disavow that case.
We hold that, in determining whether a bodily injury creates a substantial risk of
death, a court should apply the Brown standard that considers the disfiguring and impairing
quality of the bodily injury as it was inflicted on a complainant by an offender. Brown, 605
S.W.2d at 575. Accordingly, when evaluating the sufficiency of the evidence to determine
whether there was a serious bodily injury, an appellate court should not consider the
amelioration or exacerbation of an injury by actions not attributable to the offender, such as
medical treatment. See id.
C. Analysis
By focusing on the risk of death after medical treatment rather than as it had been
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caused by appellant, the court of appeals’s majority misapplied the law to the facts. Viewing
the evidence in a light most favorable to the jury’s implicit finding that Fassett faced a
substantial risk of death from her injuries, the evidence is legally sufficient to establish first-
degree aggravated assault.
The jury could have rationally determined that Fassett’s injuries created a substantial
risk of her death. When she had trouble breathing, Fassett was taken by ambulance to a
hospital, where a tube was inserted into her lungs in order to permit her to breathe. Fassett’s
nurse described this kind of lung injury as a serious injury because lungs control breathing,
which is necessary to sustain life, and she said that lung injuries such as these can affect a
person’s blood pressure and “vital signs.” Additionally, the State presented evidence
showing that Fassett had a lacerated liver. The nurse described a lacerated liver as a serious
injury that could cause a patient to “bleed to death very quickly.” Fassett’s injuries required
her hospitalization for multiple days and she was unable to return to her regular work for
weeks. In light of this evidence, the jury could have rationally inferred that there was a
substantial risk of Fassett’s death from the totality of her injuries. We further observe that
serious bodily injury may be established without a physician’s testimony when the injury and
its effects are obvious. See Sizemore v. State, 387 S.W.3d 824, 828 (Tex. App.—Amarillo
2012, pet. ref’d). We conclude, therefore, that the evidence was sufficient to show that the
injuries appellant inflicted upon Fassett resulted in a substantial risk of death to her, and thus,
constituted serious bodily injury. T EX. P ENAL C ODE § 1.07(a)(46). Having determined that
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appellant caused a substantial risk of death to Fassett, we need not address the other
alternative ways that serious bodily injury may be proven. See id. (serious bodily injury may
be proven by evidence of 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).
III. Conclusion
Having concluded that a jury rationally could have determined that appellant’s actions
caused injuries to Fassett’s lung and liver causing her a substantial risk of death, we reverse
the judgment of the court of appeals and reinstate the judgment of the trial court.
Delivered: February 10, 2016
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