Moore v. State

CLINTON, Judge,

concurring.

Bodily injury means “physical pain, illness or any impairment of physical condition.” V.T.C.A. Penal Code, § 1.07(a)(7).

Serious bodily injury means bodily injury —pain, illness or impairment of physical condition of the body — “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)(34). 1

Dissecting its definition, we find that “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 the 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;

7. protracted impairment of the function of any bodily organ.

Rather than examine an alleged serious bodily injury in light of those specific aspects, some cases reflect a tendency to fuse or mix one or more of them. In this cause the Austin Court of Appeals found that unlike Brown v. State, 605 S.W.2d 572 (Tex.Cr.App.1980), State’s evidence here "requires the occurrence of at least two contingencies before substantial risk of death would exist,” and concluded the evidence is insufficient to show serious bodily injury because:

“The risk of death experienced by Black-mon was too speculative and removed from the circumstances that existed at the time the injury was inflicted to be characterized as ‘substantial.’ Brown v. State, supra. See also Sanchez v. State, 543 S.W.2d 132 (Tex.Cr.App.1976). Nor does the evidence reasonably support the conclusion that Blackmon suffered serious permanent disfigurement or protracted loss or impairment of bodily function.”

Moore v. State (Tex.App. — Austin No, 3-84-336-CR, delivered October 2, 1985). 2

The State contends the Austin Court is wrong for two reasons: it “misapplied the proper standard for review” in rejecting *356 risk of death being “substantial,” and it failed to consider evidence showing “a protracted loss and impairment of the function of bodily members.” State’s Brief, at 4. The opinion of this Court adequately answers the first contention. My purpose is to discuss applicability of the second one to the testimony set out in its brief and relied on by the State.

First the State charges that the Austin Court did not address or consider “key testimony ... that supported a finding that the victim suffered a protracted impairment of bodily function.” The testimony referred to is an isolated question to and answer by Dr. Lewis and certain testimony of victim’s mother.

Dr. Lewis:

Q. Did he have a degree of protracted impairment, even after the treatment you gave him?

A. I’d say yes.

Mrs. Blackmon:

Q. All right. Was [your son] bedridden for awhile at home, ma’am?

A. He were.

Q. Okay. How long was it before he started getting up around, moving around again?

A. Well, he would move every day because we had to take him backwards and forwards to the doctor every day, but as far as him going out, it was a week before he could really go out and see people.

That testimony does not prove impairment of “the function of any bodily member or organ,’’ as required by two alternate types of serious bodily injury. Black v. State, 637 S.W.2d 923, at 925-926 (Tex.Cr. App.1982) (testimony gunshot wound to thigh took two to three months to heal without indicating any loss of use of limb insufficient to prove serious bodily injury). At best it shows “impairment of physical condition” — mere bodily injury — through a brief period of recuperation with visits to a doctor for checkups. That kind of “impairment” is functionally equivalent to a “six-day stay in the hospital ... for observation and to insure that he did not have any other complications,” Sanchez v. State, 543 S.W.2d 132, at 134 (Tex.Cr.App.1976); see Gonzalez v. State 146 Tex.Cr.R. 108 , 172 S.W.2d 97 (1943), and Fierro v. State, 626 S.W.2d 597, at 599 (Tex.App. — El Paso 1981) PDR refused.

The State relies on a single judge opinion from a panel of two judges in Williams v. State, 575 S.W.2d 30 (Tex.Cr.App.1979) (Douglas, J., with T. Davis, J., concurring in the result). The question being decided was whether a knife used to stab a robbery victim was properly found to be a deadly weapon. One wound was a gash in his left shoulder that allowed the muscle to distend such that it had to be placed back in his shoulder, and the wound closed and sutured, causing him to “lose the lifting power in his arm for three months.” Id., at 32-33 . Judge Douglas found in those circumstances the injury caused “protracted impairment ... of the function of any bodily member,” and thus would be classified as serious bodily injury, citing only his own unpublished opinion concurring in part and dissenting in part, in Calvin v. State, 574 S.W.2d 775 (Table) (Tex.Cr.App. No. 53,829, delivered December 13, 1978). Id., at 33.

To the extent Williams constitutes authority for any proposition, actually it is against the State in this cause. Judge Douglas recognized that “protracted impairment” must be of “the function” of a bodily member, in that case an arm. Here the victim suffered a stab wound in his back that in no way implicated either bodily member or bodily organ.

The victim suffered only “bodily injury” in that there was physical pain at the outset followed by some “impairment of [his] physical condition” during recuperation.

With those observations, I join the opinion of the Court.

. All emphasis is mine throughout unless otherwise noted.

. In Brown v. State, supra, the offense was aggravated rape, and victim’s nose was broken and deformed on the day of that offense; there was evidence that such an injury would cause disfigurement and dysfunction of the nose if the bone were not set. The Court found evidence sufficient to show serious permanent disfigurement, as well as protracted impairment of function of a bodily organ, the nose, before it was treated medically. Id., at 574-575.