Ronald Crow, Appellant v. The State of Texas, Appellee (2016)

DISSENTING OPINION

Because the record does not support the majority's conclusion that there is legally sufficient evidence to support the jury's finding that the complainant, Benjamin Vaughn, suffered bodily injury, I respectfully dissent. The only evidence presented at trial of the incident was a video with no audio and testimony from a security officer who viewed the encounter live on a monitor. It is not clear from the video that appellant did more than shove Vaughn's left hand away from his ear. Vaughn then steps out of the frame.¹

I agree with the majority that evidence of “[a]ny physical pain” will establish bodily injury. See Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012). But there must be evidence of some degree of physical pain and not just offensive touching. Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009). In the Garcia case, the Court of Criminal Appeals concluded that “[a]lthough there [was] evidence that the [complainant] child was shivering, had blue lips, and wore only a wet diaper, no evidence shows that she was experiencing physical pain.” 367 S.W.3d at 688. However, the majority holds that the jury reasonably could have concluded that Vaughn “received a blow to his head sufficient to cause physical pain” when the video is not that transparent. Here, the only witness was a security officer who observed the live monitor with no audio, the video of which was presented to the jury. The majority has failed to cite a case holding that legally sufficient evidence supported a finding of bodily injury based on evidence this scant.²

The majority further concludes that the jury reasonably could infer that Vaughn suffered bodily injury because his psychologist testified that he does not always indicate when he feels pain. However, Vaughn's failure to indicate that he felt pain is not evidence beyond a reasonable doubt that he felt pain.³ Inferences must be reasonably supported by the evidence. See Riley v. State, No. 14-12-00729-CR, 2014 WL 1481317, at *1 (Tex. App.—Houston [14th Dist.] Apr. 15, 2014, pet. ref'd) (“We draw all reasonable inferences from the evidence in favor of the verdict.”).

The parties agree that, after the incident, Vaughn acted as he typically does, which is not evidence beyond a reasonable doubt that he felt pain from the incident. The nurse who examined Vaughn soon after the incident testified that an injury can cause pain without leaving a visible mark. However, the absence of visible marks on Vaughn's body attributable to a fresh injury, as reflected in the nurse's report and her testimony, is not evidence beyond a reasonable doubt that Vaughn felt pain from a fresh injury.

It is clear that the Legislature intended to protect our most vulnerable citizens in enacting Penal Code section 22.04. However, based on this record, I cannot join the majority's conclusion that there is evidence from which a reasonable jury could infer beyond a reasonable doubt that this disabled individual suffered any degree of physical pain and thus incurred bodily injury. Garcia, 367 S.W.3d at 688. I would conclude that the jury's finding of bodily injury is not supported by legally sufficient evidence.

FOOTNOTES

1.   The majority posits that Vaughn “fell” out of frame. The video does not show that Vaughn fell.

2.   None of the cases cited by the majority involved as little information as was presented to the jury here. See Gravelle v. State, No. 07-02-0510-CR, 2003 WL 22213578, at *2 (Tex. App.—Amarillo Sept. 25, 2003, no pet.) (mem. op.) (defendant caused bruise or abrasion near complainant's eye); Feldpausch v. State, No. 09-02-299-CR, 2003 WL 253373, at *2 (Tex. App.—Beaumont Feb. 5, 2003, pet. ref'd) (mem. op.) (defendant fell down and suffered a bruise on the arm); Contreras v. State, 54 S.W.3d 898, 903–04 (Tex. App.—Corpus Christi 2001, no pet.) (witness saw defendant “strike [the complainant's] face with her fist” and three-year old child complainant “cried ‘a little bit’ ”), abrogated on other grounds as stated in Jennings v. State, 302 S.W.3d 306 (Tex. Crim. App. 2010); Zuliani v. State, 52 S.W.3d 825, 831 (Tex. App.—Austin 2001) (defendant allegedly slapped complainant twice), overruled on other grounds, 97 S.W.3d 589 (Tex. Crim. App. 2003); Wawrykow v. State, 866 S.W.2d 87, 90 (Tex. App.—Beaumont 1993, no pet.) (officer testified that defendant “gave me a pretty good push” and demonstrated for jury so jury could determine whether he suffered bodily injury). Here, the only evidence before the jury about the incident was an ambiguous video and testimony based solely on that video.

3.   Likewise, the psychologist's testimony that she was not surprised that the five potential witnesses, all disabled individuals, failed to react to the incident is not evidence of an essential element of the offense.

Martha Hill Jamison, Justice