 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Fleming v. State2/17/1999
In a single indictment, appellant was charged with three separate offenses arising out of the same incident involving the collision of two motor vehicles. In count one, appellant was charged with the felony offense of Intoxication Assault, the victim being Clifford Howard. Howard was the passenger in the vehicle appellant was operating at the time of the collision. The second count again charged appellant with Intoxication Assault, the victim being William Randall Bivins, the driver of the other vehicle involved in the collision. The third count charged appellant with having committed the felony offense of Aggravated Assault. Count three was divided into two separate paragraphs. The first paragraph alleged that appellant intentionally, knowingly, and recklessly caused "serious bodily injury to William Randall Bivins by driving a motor vehicle into a motor vehicle occupied by the said William Randall Bivins[.]" The second paragraph of count three alleged that appellant intentionally, knowingly, and recklessly caused "bodily injury to William Randall Bivins by driving a motor vehicle into a motor vehicle occupied by the said William Randall Bivins, and the defendant did then and there use and exhibit a deadly weapon, to-wit: a motor vehicle[.]" A jury convicted appellant on all three counts and assessed punishment. In counts one and two, the punishments were assessed at confinement in the Texas Department of Criminal Justice - Institutional Division for a term of two (2) years and a fine of $500. Incarceration of appellant in counts one and two was suspended and appellant was placed on community supervision. However, in count three, the jury assessed punishment at confinement in the Texas Department of Criminal Justice - Institutional Division for a term of five (5) years. No community supervision was recommended by the jury for count three. The jury also made, with regard to count three, an affirmative finding of the use or exhibition of a deadly weapon by appellant.
Appellant raises
six appellate issues for our consideration.
Points three and four complain of the sufficiency of the evidence to sustain certain jury findings. We will address these appellate issues first. The scope of review for points three and four will be for legally sufficient evidence and not factually sufficient evidence as appellant has not properly raised or briefed the issue of factual insufficiency. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996); and Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995).
Point three contends a lack of sufficient evidence to sustain appellant's convictions because "there was no serious bodily injury involved in any of the three charges against him." In reviewing a record for legal sufficiency, we view the evidence in the light most favorable to the verdict, and then determine whether any rational trier of fact could have found all of the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979); Santellan v. State, 939 S.W.2d 155, 160 (Tex. Crim. App. 1997). "Serious bodily injury" is defined in Tex. Pen. Code Ann. § 1.07(a)(46) (Vernon 1994), 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." The term "bodily injury" is also defined in § 1.07(a)(8) of the Penal Code as "physical pain, illness, or any impairment of physical condition." The Court of Criminal Appeals in Moore v. State, 739 S.W.2d 347 (Tex. Crim. App. 1987), carefully examined the issue as to what constituted legally sufficient evidence to supp
Page 1 2 3 4 5 6 7 8 9 10 Texas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|