Gilbert Fernandez v. The State of Texas Appeal from 100th District Court of Collingsworth County (memorandum opinion)
Annotate this Case
Download PDF
In The Court of Appeals Seventh District of Texas at Amarillo ________________________ No. 07-21-00256-CR No. 07-21-00257-CR ________________________ GILBERT FERNANDEZ, APPELLANT V. THE STATE OF TEXAS, APPELLEE On Appeal from the 100th District Court Collingsworth County, Texas Trial Court Nos. 3062 & 3063, Honorable Stuart Messer, Presiding October 3, 2022 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ. Gilbert Fernandez appeals his convictions for murder and two counts of aggravated assault. His sole issue deals with the sufficiency of the evidence underlying his guilt on one count of aggravated assault. Through the at-issue count, the State charged him with “intentionally, knowingly, or recklessly, caus[ing] bodily injury to Frankie Lynn Cannon by burning the body of the said Frankie Lynn Cannon” while using or exhibiting a deadly weapon, namely a blow torch. Allegedly, the State failed to prove that burning the victim before death caused bodily injury. We affirm. The standard of review is that explained in Garcia v. State, 367 S.W.3d 683 (Tex. Crim. App. 2012). We apply it here. The Garcia court further alluded to “bodily injury” as meaning physical pain, illness, or any impairment of physical condition. Id. at 687-88 (quoting TEX. PENAL CODE ANN. § 1.07(a)(8)). Regarding the pain component, we were told not only that “[a]ny physical pain, however minor” suffices to prove bodily injury but also that a fact finder may infer the victim actually felt pain because people understand pain and some of its causes. Garcia, 367 S.W.3d at 688. For instance, in O’Neal v. State, we held that a burn on the child’s abdomen permitted “a rational juror to infer beyond reasonable doubt that the infant experienced physical pain when it occurred.” O’Neal v. State, No. 07-15-00274CR, 2016 Tex. App. LEXIS 8927, at *5-6 (Tex. App.—Amarillo Aug.16, 2016, pet. ref’d) (mem. op., not designated for publication). Here, appellant admitted to the investigating officer that he and several others struck the victim with a bat and burned him with a blow torch. Another witness described how the victim’s hands were burned with a lighter as a prelude to transporting the individual elsewhere to be shot in the head four times. People of common intelligence would understand that being burned generally causes some pain. See e.g., O’Neal, supra. So, the jury at bar was free to infer that appellant’s victim suffered some pain when burned by the blow torch, even though no one so testified. See Wiegand v. State, No. 13-21-00157-CR, 2022 Tex. App. LEXIS 5786, at *8 (Tex. App.—Corpus Christi Aug.11, 2 2022, no pet.) (mem. op., not designated for publication) (quoting Coleman v. State, 631 S.W.3d 744, 751 (Tex. App.—Houston [14th Dist.] 2021, pet. ref’d) (stating that “‘no witness—including the victim—need testify that the victim felt pain’”). And, this means evidence viewed in the light most favorable to the verdict existed which permitted a rational trier of fact to find the essential element in question beyond a reasonable doubt, that element being bodily injury through burning. We overrule appellant’s sole issue and affirm the judgments of the trial court. Brian Quinn Chief Justice Do not publish. 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
