Javier Cortez v. The State of Texas--Appeal from 243rd District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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JAVIER CORTEZ, ) No. 08-04-00098-CR

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Appellant, ) Appeal from

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v. ) 243rd District Court

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THE STATE OF TEXAS, ) of El Paso County, Texas

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Appellee. ) (TC# 20030D04201)

CORRECTED OPINION

Javier Cortez appeals his conviction for aggravated assault. Appellant was found guilty of the offense by a jury. The trial court sentenced him to sixty years in the Texas Department of Criminal Justice Institutional Division. Finding the evidence to be both legally and factually sufficient to support the conviction, we affirm.

FACTUAL SUMMARY

On November 8, 2002, Rachel Brito and her brother, Johnny Sosa, drove to Fabens to visit her father. Since he was not home, they headed back toward Socorro and stopped at a bar along the way. For three hours, they drank with some men Rachel did not know. Appellant, one of the men at the bar, accompanied Rachel and Johnny when they left. Rachel sat in the front passenger seat while Appellant sat in the back seat. En route to Rachel s mother s house in Socorro, Appellant twisted Rachel s face backward and forced her to kiss him. Rachel was holding a bottle of beer and hit Appellant on the shoulder with it. When they arrived at their destination, Johnny and Appellant began arguing. Rachel told Johnny to go inside.

Appellant asked for a ride back to Fabens, but Rachel told him to go down to the Good Times store and call someone to pick him up. The store was a block away, and Rachel stepped into the street to direct Appellant in the right direction. Appellant pulled her into a small space behind the concrete wall where Appellant tried to kiss her again. When Rachel tried to get away, Appellant started pressing her breast hard with his hands and tore her clothing off. He began sucking on her breast and then tried to push her toward his penis. Rachel tried to get back up, but Appellant pulled her legs and climbed on top of her. She was lying on the ground and trying to push Appellant off of her when Appellant twisted her over onto her stomach and got on her back. Rachel was screaming, and Appellant told her to shut up. Rachel remembered Appellant s fingers on her back and in her vagina and anus.

Rachel finally told Appellant that they could go to a hotel. She said she had money and the keys to the car and would take him back to Fabens. Rachel got up and dressed and started walking back to her mother s house with Appellant walking behind her. Once Rachel approached the front gate, she ran as fast as she could and she heard Appellant running behind her. Rachel opened the front door and yelled to her mother that someone was trying to rape her. Her torn outfit fell all the way down as she entered the house. Appellant entered the house and tried to pull Rachel outside. Her mother, Lorenza Dominguiz, called for her husband, Victor. Rachel went into the living room and sat down. The next thing she remembered was the ambulance arriving.

Lorenza testified that she was in the kitchen when Johnny arrived home. Around 10:00, Rachel came into the living room disheveled and without her clothes. She was yelling about a man when Lorenza saw him enter the house. Lorenza called out to Victor, who was in the bedroom. Victor came into the living room and saw a man he identified as Appellant. Victor told Appellant to leave and that he was going to call the police. Appellant threatened the family, saying he would kill them. Victor tried to stop Appellant from leaving since he wanted to hold him until the police arrived but Appellant grabbed him and took him outside to the porch. Appellant pounded on Victor, pulled his hair, and kicked him before Victor lost consciousness. Appellant hit Victor s head against the cement, and kicked out several of his teeth. Lorenza pushed Appellant toward the gate and told him that the police were on their way. Appellant repeated his threat that he would kill the family. He then ran across the field and disappeared. Victor then got up and went for help.

Socorro Police Officer Jesus Ramirez arrived on the scene and found Rachel shaking and crying on the couch. She was wearing black overalls, which were torn all the way down her back to her waist, and her hair was covered with grass. Officer Ramirez obtained statements from Rachel and Lorenza. Ramirez then called an ambulance that transported Rachel to Sierra Medical Center. At the hospital, a rape examination was performed on Rachel. The examination showed scratches and a bruise on Rachel s back and weeds in her hair. Victor was transported to Thomason Hospital. Socorro Police Officer Robert Wiest was dispatched to locate the suspect. Before locating the suspect, he searched approximately two blocks from the occurrence for about ten minutes. Officer Ramirez then took Appellant to a substation where he was placed in a holding cell. Ramirez noticed blood on Appellant s face and called an ambulance. Ramirez accompanied Appellant to Thomason Hospital.

Alfredo Medina of the El Paso County Sheriff s Department also responded to the scene. He and Detective Jaime Terrazas proceeded to Sierra where Terrazas took Rachel s statement. He described her as upset, crying, and intoxicated.

Medina and Terrazas also went to Thomason where Appellant and Victor were being treated. Terrazas checked on Victor s condition but did not take a statement since the Socorro Police Department was handling the assault case. Appellant was treated for a laceration on his head and an injury to one of his ears and then taken to the sheriff s office for questioning.

Appellant waived his rights and gave a written statement. He told officers he had been drinking, but Officer Medina did not believe he was intoxicated. Appellant explained that he was at a bar drinking with friends when a girl named Rachel and another guy joined them. Appellant noticed they were drunk. Appellant ran out of money and asked the guy to drive him to his brother s house. Along the way, Appellant noticed the driver was very drunk and asked him to pull over. The driver finally dropped him and Rachel off in Socorro.

During the car ride, Appellant was kissing Rachel and noticed that she was wearing a black dress without a bra or panties. After being dropped off, Appellant and Rachel walked for a while and stopped to make out. Appellant admitted he kissed Rachel s mouth and breasts and digitally penetrated her, but he denied having sex with her. Rachel would allow Appellant to touch her and then tell him to stop but since she was really drunk, Appellant did not think she knew what she was doing. Rachel told him she wanted to get a room somewhere so they could have sex. She asked him to take her to her house so she could get some money.

When they got to the house, Rachel told her parents that Appellant tried to rape her but they had not actually had sex. She later changed her story. Victor accused Appellant of raping Rachel, and Appellant tried to explain what happened. Rachel s parents then assaulted him. Appellant pushed Victor down, and Lorenza tried to help her husband by beating Appellant with a pipe or bat. Appellant did not remember hitting Lorenza. Appellant was finally able to fight them off and leave the house. He then laid down in the grass in pain until officers found him.

Dr. Matthew Walsh examined Victor s injuries. Victor had a large hematoma on his forehead and a fractured collarbone. The collarbone injury caused great pain, and Victor was given narcotics. A CT scan and x-rays were performed due to the head injury and his arm was placed in a sling. Dr. Walsh diagnosed a closed-head injury with concussion. He was unable to fully examine Victor s shoulder due to the pain but recommended a followup to determine the extent of the injuries. The clavicle could take up to two months to heal and could cause disfigurement where the bones healed crooked . Victor had no injuries that would threaten the viability of his arm or the use of his hand but Dr. Walsh characterized the injury as very painful.

After the clavicle healed, Victor was still having pain in his arm. After an MRI, a tear was found in Victor s rotator cuff which caused significant pain and the inability to handle heavy lifting or significant movement. A torn rotator cuff that is not treated results in chronic pain and limited use of the arm.

Victor also had several teeth knocked out and had to undergo a medical procedure to correct the damage to his gums. Because he had diabetes, all of his teeth had to be removed. He testified that he was embarrassed, could not eat everything, and had lost weight. He also described his face as sunken due to the loss of his teeth. Although he was only forty-seven years of age, he looked like a little old man. Victor considered the injury disfiguring. By the time of trial, Victor had had surgery to repair his shoulder but he still could not lift his arm. He continued to have pain in his head and shoulder and could no longer rake or mow the lawn.

After Appellant gave his statement, he was taken to Sierra Medical Center where swabbings from his nails and saliva were taken as part of a rape kit. Terrazas witnessed the specimens being taken. The rape kits from Rachel and Appellant were submitted to the Texas Department of Public Safety crime lab. DNA was extracted from Rachel s breast swabs. Appellant s saliva was found on Rachel s breast.

SUFFICIENCY OF EVIDENCE

In two points of error, Appellant challenges the legal and factual sufficiency of the evidence to support his conviction for aggravated assault. Appellant argued that the State failed to prove that he caused serious bodily injury.

Standard of Review

In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991), overruled on other grounds by, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789, 61 L. Ed. 2d at 573. We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct and circumstantial evidence cases. Geesa, 820 S.W.2d at 158.

In reviewing factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Evidence is factually insufficient if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or the finding of guilt is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, the question we must consider in conducting a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See id. In performing this review, we are to give due deference to the fact finder s determinations. See id. at 8-9; Clewis, 922 S.W.2d at 136. The fact finder is the judge of the credibility of the witnesses and may believe all, some, or none of the testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Consequently, we may find the evidence factually insufficient only where necessary to prevent a manifest injustice from occurring. See Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).

Aggravated Assault

There are two ways in which an aggravated assault may be committed. The first occurs when the assailant commits assault in any manner proscribed by Texas Penal Code section 22.01 and in so doing causes serious bodily injury to the victim. Tex.Pen.Code Ann. 22.02(a)(1)(Vernon Supp. 2004-05). The second occurs when the assailant commits an assault in any manner proscribed by Texas Penal Code Section 22.01, and the actor uses or exhibits a deadly weapon during the commission of the offense. Tex.Pen.Code Ann. 22.02(a)(2).

The indictment charged Appellant with intentionally, knowingly, and recklessly causing serious bodily injury to Victor by striking Victor s body with his hand, striking Victor s head against the ground with his hand, and kicking Victor s body with his foot. The jury was charged that a person commits an assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Aggravated assault was defined as committing assault and causing serious bodily injury to another. Serious bodily injury is 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. Bodily injury means physical pain, illness, or any impairment of physical condition. Tex.Pen.Code Ann. 1.07(a)(8), (46)(Vernon Supp. 2004-05).

Serious Bodily Injury

Though often a matter of degree, there must be a meaningful distinction between bodily injury and serious bodily injury. Hernandez v. State, 946 S.W.2d 108, 111 (Tex.App.--El Paso 1997, no pet.), citing Moore v. State, 739 S.W.2d 347, 349, 352 (Tex.Crim.App. 1987). The determination that an injury qualifies as serious bodily injury must be made on a case-by-case basis. Id. There are no wounds that constitute serious bodily injury per se. Id.; see e.g. Moore, 739 S.W.2d at 352 (a knife wound, even though it may be caused by a deadly weapon, is not per se serious bodily injury); Webb v. State, 801 S.W.2d 529, 533 (Tex.Crim.App. 1990)(the necessity of surgery, alone, is insufficient to establish serious bodily injury). Serious bodily injury does not depend upon whether the victim received medical treatment. Moore, 739 S.W.2d at 354. A person who receives injuries is qualified to express an opinion as to the severity of those injuries. Coshatt v. State, 744 S.W.2d 633, 636 (Tex.App.--Dallas 1987, pet. ref d), citing Hart v. State, 581 S.W.2d 675, 677 (Tex.Crim.App. 1979).

Serious Permanent Disfigurement

An injury which leaves a scar is insufficient to establish serious permanent disfigurement. Hernandez, 946 S.W.2d at 113; see McCoy v. State, 932 S.W.2d 720, 724 (Tex.App.--Fort Worth 1996, pet. ref d)(slight scar on the lip, though permanent, was not sufficient to show serious permanent disfigurement). Instead, there must be evidence of some significant cosmetic deformity. Id.; Moore v. State, 802 S.W.2d 367, 369 (Tex.App.--Dallas 1990, pet. ref d)(sufficient evidence of serious bodily injury where victim s cheekbone was fractured in three places; surgery necessary to prevent significant cosmetic deformity); Pitts v. State, 742 S.W.2d 420, 421-22 (Tex.App.--Dallas 1987, no pet.)(evidence of significant disfigurement where victim suffered five fractures in the facial area necessitating several surgeries to repair the damage). The relevant issue in determining the degree of disfigurement is the damage caused by the wound when inflicted, not disfigurement as exacerbated or ameliorated by medical treatment. Id., citing Brown v. State, 605 S.W.2d 572, 574-75 (Tex.Crim.App. 1980); Moore, 802 S.W.2d at 370; Goodman v. State, 710 S.W.2d 169, 170 (Tex.App.--Houston [14th Dist.] 1986, no pet.).

Protracted Loss or Impairment of Any Body Organ or Member

Protracted impairment means that some function of either an organ or body member is impaired. Hernandez, 946 S.W.2d at 113. The Penal Code does not define the phrase bodily member or organ but the back is a separate definable part of the body sufficient to bring it within the statutory term. Coshatt, 744 S.W.2d at 635. Teeth also fall within the definition. Lenzy v. State, 689 S.W.2d 305, 310 (Tex.App.--Amarillo 1985, no pet.). Absent a statutory definition, a term must be taken and understood in its usual acceptation in common language. Thus, a bodily member may be construed as [a] part or organ of the body; especially a limb or other separate part. Id. at 310.

Application

The jury can apply common sense, knowledge, and experience gained in the ordinary affairs of life in drawing reasonable inferences from the evidence. No dental testimony was needed for the jury to recognize the serious disfigurement resulting from Victor s loss of his teeth. The jury could have rationally determined that Victor suffered serious permanent disfigurement simply by viewing the photographs of his injuries at the time of the assault, the resulting sunken nature of his face at trial, and Victor s description of the injury. The jury could have rationally determined that Victor suffered serious protracted impairment of his shoulder due to the rotator cuff injury. At the time of trial, Victor still suffered from pain of his shoulder and could no longer perform tasks. We conclude the evidence is both legally and factually sufficient to support the conviction. We overrule both points of error and affirm the judgment of the trial court.

August 4, 2005

ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)