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Fleming v. State2/17/1999
here was no evidence offered of impairment of a member or organ. Nor was there evidence that Mr. Ramirez was restricted in any particular physical activity. This period of recuperation does not elevate bodily injury to serious bodily injury but at best shows only some impairment of physical condition. See Moore, 739 S.W.2d at 356." Id. at 113.
While it is not mandatory for the State to establish serious bodily injury through an expert, i.e., a physician, we have observed it to be the better way to prove up the issue. See Carter v. State, 678 S.W.2d 155, 157 (Tex. App.--Beaumont 1984, no pet.). In Carter, we held that where the injury and its effects are obvious, proof of serious bodily injury from an expert was not indispensable. Id. Nevertheless, the State must present relevant and probative evidence from which the trier of fact could infer beyond a reasonable doubt that the injury itself resulted in "serious bodily injury." See Moore, 739 S.W.2d at 352.
In the instant case, the State argues that the evidence of the injuries to both Howard and Bivins was sufficient to prove that portion of § 1.07(a)(46) which provides that "serious bodily injury" is "protracted loss or impairment of the function of any bodily member or organ." While it is a very close call, we feel that, taken in the light most favorable to the verdict, a rational trier of fact could have found Clifford Howard sustained serious bodily injury in the collision caused by appellant. The evidence of the circumstances surrounding the collision indicate that Howard was pinned inside the vehicle and was by all accounts in poor condition. Howard sustained a broken leg, a broken hip, and a fractured pelvis. Howard's brief but graphic description of the surgical procedure is at least some evidence indicative of the seriousness of his injuries. The fact that the doctors "inserted a rod up through the bone" appears to indicate a possible compound fracture of the large bone that runs through the thigh. Also, the fact that a metal plate was attached to his pelvis with six screws appears to indicate that the fracture was significantly more than a mere "hairline." A reasonable inference could be made that, at the time of injury, both the leg and the pelvis would have been unable to support Howard's weight if he were to attempt any ambulatory movements. Howard also testified that the "injuries" resulted in "prolonged impairment" of his "ability." All of the above evidence taken together is at least some evidence of protracted loss or impairment of Howard's leg and/or pelvis so as to permit the factfinder to infer the existence of serious bodily injury. In sum, we find the above-described evidence to be legally sufficient to sustain appellant's conviction under count one of the indictment, the Intoxication Assault of Clifford Howard. Point three is therefore overruled as to count one.
The evidence as to William Randall Bivins' injuries, however, is another matter. From Bivins' own testimony of his actions immediately following the collision there is absolutely no indication of any bodily injury sustained at all, much less serious bodily injury. Bivins' testimony does not indicate that he was in any pain or discomfort at the scene of the accident or even when he consulted Dr. Redmond two days after the accident. After being told that x-rays indicated a "cartilage tear" in his knee and a "severely jammed hand" were his injuries, there is, again, no evidence that Bivins is in any discomfort or pain, nor is there any evidence that the doctor ordered immediate medical treatment or even a cessation of activities by Bivins so as to prevent worsening of his injuries. Indeed, the evidence indicates that the collision occurred on October 15, 1995,
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