Stuhler, Martina

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 1723-05

MARTINA VANSICE STUHLER, Appellant

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

DENTON COUNTY

Keller, P.J., filed a dissenting opinion in which WOMACK, KEASLER,

and HERVEY, JJ., joined.

I disagree with the Court's conclusion that the evidence was insufficient to show "serious

bodily injury." Serious bodily injury includes, among other things, "any impairment of a physical

condition (1) . . . that creates a substantial risk of death." (2) Appellant restrained the three-year-old

victim by duct-taping him to a toilet seat. As a result of this restraint, the victim suffered from

"moderate to severe" constipation, causing his abdomen to become distended and hard. The

pediatrician who treated the victim at the hospital testified that he suffered "serious bodily injury"

from an injury that created a substantial risk of death. She further testified that the child was just

lucky that his liver and spleen had remained undamaged. Had the spleen been injured, the child

could have died very quickly. This evidence alone was sufficient to support a jury finding that

appellant inflicted serious bodily injury.

In holding to the contrary, the Court cites the pediatrician's admission that, at the time she

treated the child, the child was not in danger of dying. But that does not mean the child had suffered

no risk of death in the meantime. At the time the child's intestinal system was impaired, there

existed a substantial risk that the spleen or the liver could become damaged, which could in turn

cause death. As it turned out, the child was fortunate: the constipation had not yet produced the

injuries that could have occurred, and his body happened to be in good enough shape that it could

probably have avoided those injuries for another twenty-four to forty-eight hours. But the child's

good fortune simply means that the substantial risk of death was not realized. Moreover, the doctor

emphasized that her assessment was based on the fact that "there was intervention." In the context

of impairment, we have held 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." (3) The pediatrician testified that if the child's condition were left

untreated, he could have died in two days. The child was removed from danger because he was

treated , and his bowels were evacuated, relieving the constipation.

I also disagree with the Court's conclusion that appellant was harmed by the alleged violation

of jury unanimity. Aside from the fact that evidence was sufficient to show "serious bodily injury,"

I believe appellant was not harmed because the evidence of "serious mental . . . injury" (4) was virtually

conclusive. There was evidence that it was the trauma from being taped to the toilet for long periods

of time that caused the child's constipation in the first place. And common sense suggests that any

three-year-old child undergoing the experience that occurred here would be additionally traumatized

by having to remain on the toilet while suffering from constipation. A therapist testified that the

trauma of the experience caused the victim to suffer from Post-Traumatic Stress Disorder. Although

the child had previously been happy and toilet trained, after the incident he had nightmares,

developed a problem with stuttering, suffered periods of uncontrolled defecation, reverted to wearing

diapers, hoarded food, and was afraid of bathrooms. Given the overwhelming nature of the mental

injury evidence, including the traumatic nature of the crime itself and the vulnerable age of the

victim, I conclude beyond a reasonable doubt that any juror who found appellant guilty would find,

at the very least, that "serious mental injury" was inflicted.

I respectfully dissent.

Filed: January 24, 2007

Publish

1. Tex. Pen. Code §1.07(a)(8)(definition of "bodily injury")

2. Tex. Pen. Code §1.07(a)(46)(definition of "serious bodily injury," which incorporates

"bodily injury").

3. Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App. 1980)(broken nose that was

reset).

4. Tex. Pen. Code §22.04(a)(2). The term is not defined in the Penal Code.