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Fleming v. State2/17/1999
ort a jury's implicit finding of "serious bodily injury" in an aggravated assault conviction. After defining the terms "serious bodily injury" and "bodily injury," the Court expressed the following:
By virtue of the fact that the Penal Code provides a different definition for "bodily injury" from "serious bodily injury", though often a matter of degree, we must presume that the Legislature intended that there be a meaningful difference or distinction between "bodily injury" and "serious bodily injury." Understandably, this means that where the issue is raised, the issue must be determined on an ad hoc basis.
Id. at 349. The Court continued this line of contrasting "bodily injury" with "serious bodily injury" when it later observed:
Given the fact that the Legislature placed into the Penal Code separate definitions for "bodily injury" and "serious bodily injury", it is obvious that its intent was not to make the term "bodily injury" the equivalent of the term "serious bodily injury". By what the Legislature has done, it is also obvious that it did not intend for the prosecution, in establishing its case against the accused, to be able to elevate through hypothetical questions a "bodily injury" to a "serious bodily injury".
Id. at 354. Having provided the above salient legal points of reference, we turn to the evidence contained in the record before us.
Recall the fact that there were two victims in the instant prosecution: Clifford Howard, and William Bivins. During direct examination by the State, Howard testified as follows concerning the injuries he sustained in the collision:
Q.[State] "And what type of injuries did you suffer?"
A.[Howard] "A broke leg, a broke hip and a fractured pelvis."
Q. "Would you consider those injuries serious?"
A. "Yes, ma'am."
Q. "Did you have to have surgery because of your injuries?"
A. "Yes, ma'am."
Q. "How many surgeries have you had?"
A. "Just the one."
Q. "In that one surgery, what was done? What operation or what procedure was performed?"
A. "They cut my kneecap open and moved it out of the way and inserted a rod up through the bone and cut me from my kneecap all the way up to my hip where they inserted a plate and six screws."
Q. "So, how long was the surgery?"
A. "I would have no idea. I was out."
Q. "I understand that. But do you have any idea about what time you went in and about what time you came out of surgery?"
A. "No, ma'am. I was in so much pain, I couldn't recall."
Q. "So, you would consider - - would you consider your injuries to have some prolonged impairment on your ability?"
A. "Yes, ma'am."
On cross-examination, Howard's injuries were briefly touched upon: Q.[Trial counsel] You said that you had a broken leg and a broken hip; is that correct?
A.[Howard] "Yes."
Q. "Would you consider those injuries to be life-threatening?"
A. "No, sir."
Q. "Are you impaired in any way? Are you drawing any kind of disability because of this?"
A. "No, sir."
Q. "Do you feel that you're impaired?"
A. "I'm not in the same physical condition I was. That's all I can say about it."
Trooper Jeff Johnson of the Texas Department of Public Safety was called to the scene of the collision. Trooper Johnson testified that when he arrived at the scene, Howard was pinned inside appellant's vehicle, and the fire department was trying to extract him from the vehicle. Because
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