Fleming v. State2/17/1999
, is whether the evidence is legally sufficient to prove "serious bodily injury." Such an issue was raised in Webb v. State, 801 S.W.2d 529 (Tex. Crim. App. 1990). In Webb, an aggravated robbery case, the victim was alleged to have sustained "serious bodily injury" by having been struck on the head with a rock. Id. at 530. At trial, the victim testified that as a result of the blow from the defendant, he lost consciousness. Id. The victim was taken to the hospital for observation, and later had surgery in which doctors "made an incision up in my hair line, and came down and put the bone that was broken in three places back together, and put a pin just on the inside to give it support." Id. at 531. A photograph was also introduced into evidence showing a laceration on the left side of the victim's face as a result of the blow by the defendant. Id. Police officers further testified that in talking to the victim at the scene of the robbery, he seemed "dazed," "disoriented," and had blood on his face. Id. On appeal, the State argued that the victim's testimony about the surgery was by itself sufficient evidence of serious bodily injury. In affirming the Court of Appeals' reversal of Webb's conviction, the Court of Criminal Appeals stated the following:
In Brown v. State, 605 S.W.2d 572 (Tex.Cr.App.1980), an aggravated rape case, the victim's nose was broken. The injury was medically treated and the bone was set. We held that the setting of the bone did not make the evidence insufficient. There was evidence that the injury would cause disfigurement and dysfunction of the nose if the bone had not been set. Since the issue was the disfiguring and impairing quality of the injury as it was inflicted, and not after the effects had been ameliorated or exacerbated by medical treatment, we found the evidence was sufficient to show serious bodily injury. Id. at 575.
In the present case, unlike in Brown, there was no evidence that the complainant's injury, without the surgery, would have caused permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ. See Moore, 739 S.W.2d at 351.
As for surgery itself as proof of serious bodily injury we stated in Williams v. State, 696 S.W.2d 896, 898 (Tex.Cr.App. 1985), that a knife or gunshot wound, although caused by a deadly weapon, is not, per se, serious bodily injury. We recognized that while such an occurrence was a serious and grave matter, the State was nevertheless required to prove serious bodily injury under § 1.07(a)( ).
Similarly, surgery is not evidence of serious bodily injury, per se. In Black v. State, 637 S.W.2d 923 (Tex.Cr.App. 1982), an aggravated robbery case, a doctor performed surgery on the complainant's gunshot wound in the thigh. He spent three days in the hospital recovering from the surgery, and the leg took two to three months to heal. There was no evidence, however, that he had any loss of use of the leg. We held that the evidence was insufficient to prove serious bodily injury. Id. at 926.
Id. at 532-33. In Hernandez v. State, 946 S.W.2d 108 (Tex. App.--El Paso 1997, no pet.), another aggravated robbery in which the victim was stabbed with a knife, the State contended, among other things, that because the victim's physician had ordered him not to work for six weeks following surgery which treated the stab wound, evidence was legally sufficient to prove serious bodily injury through protracted impairment. In finding the evidence insufficient, the El Paso Court observed the following:
"Protracted impairment means that some function of either an organ or body member must be impaired. Moore, 739 S.W.2d at 356 (Clinton, J. Concurring). But, again, t
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