Larry Mickey v. The State of Texas--Appeal from 217th District Court of Angelina County

NO. 12-06-00130-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LARRY MICKEY, APPEAL FROM THE 217TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

Appellant Larry Mickey was convicted of aggravated robbery, a first degree felony. In one issue, Appellant contends that the evidence was legally and factually insufficient to prove that he caused serious bodily injury to the victim. We affirm.

Background

On February 5, 2005, Dee Palmer went to the Wal Mart store in Lufkin to pick up her husband from work. As she was walking toward the entrance of the store, a man, later identified as Appellant, grabbed her purse. Ms. Palmer refused to release her purse. Appellant hit her in the arm and pulled on the purse, dragging her to the ground behind him. After Ms. Palmer had been dragged several feet, the purse strap broke, and Appellant ran away.

Appellant was arrested by the police later the same night. He was the passenger in a vehicle, and the police recovered several items of Ms. Palmer s personal property from the vehicle. Ms. Palmer was able to identify Appellant as her assailant.

Ms. Palmer went to the hospital that night. She had scrapes and bruises on her right arm and leg, a lacerated finger, and a broken right hand. Her hand was put in a cast for eight weeks, and she was told by the doctor not to use it during that time. After the cast was removed, Ms. Palmer s hand still had a bump on it.

Appellant pleaded not guilty and requested a trial by jury. The case proceeded to trial and the jury returned a verdict of guilty. Appellant waived his right to have the jury assess his sentence and pleaded true to the punishment allegation that he had twice before been convicted of felony offenses. The trial court assessed punishment at forty years of imprisonment. This appeal followed.

Sufficiency of the Evidence

Appellant challenges the legal and factual sufficiency of the evidence. Specifically, he contends that there was insufficient evidence that the complaining witness suffered serious bodily injury.

Standard of Review

Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App. San Antonio 1999, pet. ref d) (citing Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979)). In reviewing a legal sufficiency challenge, the appellate court examines the evidence in the light most favorable to the judgment to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) (citing Jackson, 443 U.S. at 319, 99 S. Ct. at 2789).

In reviewing factual sufficiency of the evidence, we must determine whether a neutral review of the evidence, both for and against the finding, demonstrates that a rational jury could find guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is not factually sufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also factually insufficient when contrary evidence is so strong that the beyond a reasonable doubt standard could not have been met. Id. at 484-85. A verdict will be set aside only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002). A clearly wrong and manifestly unjust verdict occurs where the jury s finding shocks the conscience or clearly demonstrates bias. Zuniga, 144 S.W.3d at 481.

As in legal sufficiency review, the fact finder is the sole judge of the weight and credibility of a witness s testimony. Wesbrook v. State, 29 S.W.3d 103, 111-12 (Tex. Crim. App. 2000). The jury may choose to believe all, some, or none of a witness s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

Applicable Law

A person commits aggravated robbery if he causes serious bodily injury to another while in the court of committing theft and is acting with the intent to obtain or maintain control of property. Tex. Pen. Code Ann. 29.03(a)(1) (Vernon Supp. 2006). Serious bodily injury means 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. Tex. Pen. Code Ann. 1.07(a)(46) (Vernon Supp. 2006).

The difference between bodily injury and serious bodily injury, while real and meaningful, is one of degree. Moore v. State, 739 S.W.2d 347, 349 (Tex. Crim. App. 1987). For there to be protracted impairment such that a finding of serious bodily injury is proper, the organ or body member must lose some function. Hernandez v. State, 946 S.W.2d 108, 113 (Tex. App. El Paso 1997, no pet.). That loss of function, however, need only be protracted, not permanent. See Williams v. State, 575 S.W.2d 30, 33 (Tex. Crim. App. 1979) (Loss of lifting power in arm for three months constitutes serious bodily injury.); Madden v. State, 911 S.W.2d 236, 244 (Tex. App. Waco 1995, pet. ref d) (Inability to walk for four weeks due to injured left hip constitutes serious bodily injury.); Coshatt v. State, 744 S.W.2d 633, 636 (Tex. App. Dallas 1987, pet. ref d) (Fractured vertebrae requiring six weeks of bed rest and no heavy work for three months constitutes serious bodily injury.); Allen v. State, 736 S.W.2d 225, 227 (Tex. App. Corpus Christi 1987, pet. ref d) (Broken finger that was still stiff and had some dysfunction three and a half months later constitutes serious bodily injury.); but see Moore, 739 S.W.2d at 349, 351-52 (Injured nose and back requiring a few hours in a hospital is not sufficient evidence of serious bodily injury.); Hernandez, 946 S.W.2d at 113 (Knife wound to victim s chest, including laceration of liver, without evidence offered of impairment of a body member or organ is not sufficient evidence of serious bodily injury.). The injured party is qualified to offer an opinion as to the severity of the injuries, and expert testimony is not required. See Coshatt, 744 S.W.2d at 636.

Analysis Legal Sufficiency

In this case, Appellant grabbed Ms. Palmer s purse, knocked her down, dragged her several feet, and hit her in the right arm. Photographs of the injuries to Ms. Palmer s arm and hand were introduced into evidence. Ms. Palmer went to the hospital the night of the assault, and she consulted with a physician on several occasions thereafter. Ms. Palmer s right hand was broken and in a cast for eight weeks. During those eight weeks, Ms. Palmer was unable to use her right hand. At the time of trial, her right hand still had a bump on it from the broken bone.

Viewing all of the evidence in the light most favorable to the jury s verdict, we conclude that the jury could have reasonably determined beyond a reasonable doubt that Ms. Palmer suffered serious bodily injury. Specifically, she suffered a protracted loss or impairment of the function of a bodily member, her hand. Therefore, we hold that the evidence was legally sufficient to support the jury s verdict.

Analysis Factual Sufficiency

A review of all of the evidence without the light most favorable to the judgment reveals some evidence that is contrary, or at least potentially contrary, to the verdict. Specifically, Ms. Palmer was not completely disabled by her injury, and she was able to make a nearly complete recovery. Furthermore, the record shows that she was able to continue doing housework with her left hand during the eight weeks that she was unable to use her right hand. Also, Ms. Palmer admitted that her right hand probably would not have been broken if she had simply let go of her purse.

But we must consider this evidence along with the evidence that supports the verdict. The evidence was uncontroverted that Ms. Palmer lost the use of her hand for eight weeks. The fact that Ms. Palmer was able to compensate for her injuries does not change the fact that she suffered a protracted impairment of the function of her hand. Additionally, Ms. Palmer had no duty to let go of her purse, and thus, that fact raised by Appellant is irrelevant to the issue.

Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury s finding, has not revealed any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury s verdict. Appellant s sole issue is overruled.

Conclusion

Having overruled Appellant s sole issue on appeal, the judgment of the trial court is affirmed.

Brian Hoyle

Justice

Opinion delivered September 29, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)