ROBERT CLARENCE SMITH, Appellant v. THE STATE OF TEXAS, Appellee

Reversed, indictment Dismissed, appellant Acquitted and Opinion filed Nov. 16, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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NO. 05-88-01095-CR
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ROBERT CLARENCE SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court #3
Dallas County, Texas
Trial Court Cause No. F88-85851-PJ
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O P I N I O N
Before Justices Stewart, Lagarde and Burnett
Opinion By Justice Stewart
                 Robert Clarence Smith appeals his conviction for aggravated assault. Punishment, enhanced by a prior conviction, was assessed at fifteen years' imprisonment. In his sole point of error, appellant complains that the evidence is insufficient to prove that he caused serious bodily injury to Latonia Simone Harris. We agree. Accordingly, we reverse the judgment of the trial court and render a judgment of acquittal for aggravated assault.
        Harris, appellant's common law wife, testified that appellant had hit and choked her during the weekend beginning on Friday. The following Monday, appellant entered Harris' apartment through a bedroom window. Harris fled the apartment through the front door, but appellant caught her and dragged her on the ground back to the apartment. Appellant then pulled Harris through her bedroom window, dragged her down the street to an empty apartment, and threatened her with a brick. Harris went to the hospital and remained there for one day. Harris described the injuries that she received from appellant as follows: "I received bruises around my neck, bruises on my arms -- big bruises, they was [sic] real big -- bruises on both of my legs, at the bottom of my legs and on -- from behind on the back of my legs, and on my rear end." State's Exhibits 1 through 24 are photographs of Harris' bruises taken at Parkland Hospital on Tuesday. When Harris was discharged from the hospital, her doctor told her not to go back to work "for a while," but she could not recall the exact time specified. Harris was unable to work or to move around for about a month. Harris stayed with a neighbor because she could not take care of herself or her children. Harris did not receive follow-up care for her bruises because she was too sore to go to the doctor.
        Appellant testified in his own behalf. He agreed that he and Harris fought on Friday and Saturday; he denied that they fought on Sunday. Appellant admitted that he pulled Harris back into her apartment during an argument on Monday, but he insisted that Harris was standing at the time and was not dragged on the ground. Appellant left the apartment and did not return until Tuesday. At that time, someone told him that Harris was in the hospital. Appellant testified that Harris may have been bruised when she slipped and fell down some stairs.         
        Dallas Police Investigator Yvonne Baldwin testified that she talked to Harris at Parkland Hospital on Tuesday. Baldwin saw Harris' bruises and observed that Harris was in pain. Investigator Baldwin testified that Harris had to use a wheelchair to go to the hospital lobby because she could barely move when she got out of bed. It took two people to move Harris from the wheelchair because she could barely put one foot in front of the other.
        In a single point, appellant complains that the evidence is insufficient to prove that he caused serious bodily injury to Harris. In determining the sufficiency of the evidence, this Court's inquiry is limited to determining whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Moreno v. State, 755 S.W.2d 866 (Tex. Crim. App. 1988). Appellant was indicted under section 22.02 of the Texas Penal Code which provides in pertinent part:
 
AGGRAVATED ASSAULT
        (a) A person commits an offense if he commits assault as defined in section 22.01 of this code and he:
                
        (1) causes serious bodily injury to another.
 
In order to prove aggravated assault, the State has the burden of showing that serious bodily injury resulted from appellant's acts. See Black v. State, 637 S.W.2d 923, 925 (Tex. Crim. App. 1982). The Texas Penal Code defines serious bodily injury as "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. Penal Code Ann. § 1.07(a)(34) (Vernon 1974). Bodily injury means "physical pain, illness, or any impairment of physical condition." Tex. Penal Code Ann. § 1.07(a)(7) (Vernon 1974). By virtue of the fact that the Penal Code provides a different definition for "bodily injury" and "serious bodily injury," we must presume that the Legislature intended that there be a meaningful distinction between the terms. Moore v. State, 739 S.W.2d 347, 349 (Tex. Crim. App. 1987). The State conceded at trial that the evidence did not show that the injuries suffered by Harris created a "substantial risk of death" or caused "serious permanent disfigurement." The State made the following response to appellant's motion for instructed verdict: "Judge, I key in there on the phrase protracted loss or impairment of the function of any bodily member. I think that's what's been shown by the complainant's testimony." It is undisputed that Harris suffered some degree of impairment. The question for this Court is whether or not Harris' impairment was "protracted." The Court of Criminal Appeals has defined protracted as "continuing, dragged out, drawn out, elongated, extended, lengthened, lengthy, lingering, long, long-continued, long-drawn, never-ending, on-going, prolix, prolonged, or unending." Id. at 352 (citing Burton, Legal Thesaurus 418 (1980 edition)).
        Appellant cites three cases to support his argument that the State's evidence is insufficient to prove that Harris suffered "protracted" impairment. As the State points out, those cases are distinguishable from the present case. In Black, 637 S.W.2d at 923, the appellant shot the complainant in the thigh. The court held that the evidence was insufficient to establish serious bodily injury by protracted impairment even though the complainant underwent surgery for removal of the bullet and the leg took two or three months to heal. The court based its decision on the absence of evidence of any loss of use of the limb or inability to walk. Id. Testimony in this case showed that Harris was unable to move around for one month. In Villarreal v. State, 716 S.W.2d 651 (Tex. App. -- Corpus Christi 1986, no pet.), the defendant beat and kicked the complainant on the face and torso, causing two fractured ribs and a split lip. Evidence that the complainant was unable to raise his arms for ten days was insufficient to show protracted impairment. In the instant case, Harris' impairment lasted for a month, significantly longer than in Villarreal. Finally, in Moore, the defendant stabbed the complainant in the back with a knife. In that case, the court held that the testimony of the complainant's mother that it was at least a week before the complainant could go out and see people was totally insufficient to established serious bodily injury by protracted impairment. Moore, 739 S.W.2d at 352. In addition, the doctor who had treated the complainant actually testified that the wound did not constitute a serious bodily injury as defined in the Penal Code. Id. at 350. There was no medical testimony in this case.
        The State relies on the testimony of Harris to show protracted impairment to her legs. At trial, Harris testified that she was unable to move around or to work for one month because of the injuries to her legs. Harris had to keep returning to the hospital for false labor. Harris could not cook or clean her house; a friend took care of her. Harris further testified that her injuries substantially impaired her from doing the things that she had done prior to her injuries. The State claims that this evidence was sufficient to prove that "serious bodily injury" occurred. See Hatfield v. State, 377 S.W.2d 647 (Tex. Crim. App. 1964).
        In Hatfield v. State, 377 S.W.2d at 649, the Court of Criminal Appeals sustained the appellant's conviction for aggravated assault when the evidence showed that the complainant received a cut lip, lost some teeth, was hospitalized for about a week, and, at the time of trial still had a stiff neck and hurt back, and was unable to work. The court approved the trial court's definition of "serious bodily injury" as "grave, not trivial -- such an injury as gives rise to apprehension of danger to life, health or limb." Id. at 648. This definition did not require a finding of protracted loss or impairment of function, which the state relies on under the current definition of "serious bodily injury." Thus, since the definition of "serious bodily injury" used in Hatfield was broader than the current definition, see Tex. Penal Code Ann. § 1.07(a)(34), that case is not determinative of our decision in the present case.
        The evidence adduced at trial showed that appellant caused Harris to sustain bruises on her legs and arms. Harris was hospitalized for one day, and she could not move around or work for one month; a neighbor had to take care of Harris and her children during that time. We note that no medical testimony regarding the extent or effect of Harris' injuries was introduced at trial. Although Harris still had a bruise on her leg at the time of trial, there was no showing that Harris suffered impairment of function of her legs beyond one month. Under the definition enunciated in Moore, we hold that one month's impairment of function of Harris' legs is not "protracted" impairment. Accordingly, the evidence is insufficient in this case to prove appellant caused serious bodily injury to Harris. Appellant's point is sustained.
 
        The judgment of the trial court is reversed and a judgment of acquittal for aggravated assault is rendered. See Tex. R. App. P. 80(b)(3).
 
                                                          
                                                          ANNETTE STEWART
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
881095F
 
 
 
File Date[11-15-89]
File Name[881095F]