Texas Stamp


PD-0679-21 11/10/2021

“Whether the Fourteenth Court of Appeals improperly acted as a ‘thirteenth juror’ by re-evaluating the weight and credibility of the evidence showing that the complainant’s gunshot wounds constituted serious bodily injury?”

Garcia arrived home to find his girlfriend smoking a joint with another man. He shot her through her thigh and then through her right breast. Despite the bleeding, she attempted to drive herself to the hospital but stopped after less than a block to get help from a security guard. According to her account, she lost consciousness soon after EMS arrived and thought she would die. Medics controlled the bleeding, and the emergency room doctor used twelve staples to close both ends of the holes through her thigh and breast. These wounds ranged from 1 to 4 cm across. When she was released about 3½ hours later, she was stable and “ambulatory.”

Garcia was charged with aggravated assault of a family member causing serious bodily injury, a first-degree felony. See Tex. Penal Code § 22.02(b)(1). At trial, the victim testified that she had scars on her breast and thigh. The treating physician opined that her wounds constituted serious bodily injury and that getting shot in the thigh or chest (because of the proximity of vital organs and arteries) can cause death. He was not asked whether the injuries actually inflicted would have constituted serious bodily injury if left untreated. The jury convicted.

On appeal, Garcia argued the State failed to prove serious bodily injury. A majority on the court of appeals agreed. While acknowledging that getting shot twice was “undoubtedly… traumatic,” the majority found no evidence of any serious or lasting disfigurement since the victim did not describe the scars or show them to the jury. It noted she was able to walk to her car and drive a short distance and did not receive a blood transfusion at the hospital. Although the victim testified she thought she would die, she did not explain whether that was “just a fear” or “an assessment of her physical condition.” Likewise, the treating physician did not specify the basis, using terms from the statutory definition, for his opinion that she sustained serious bodily injury. The majority reformed the verdict to second-degree aggravated assault.  The dissent recounted the testimony and came to the opposite conclusion.

The State argues the majority failed to view the evidence in the light most favorable to the verdict and substituted its own judgment for the jury’s. Among other examples, it cites (1) the majority’s rejection of the treating physician’s expert testimony for failing to use the statutory language, and (2) the majority’s crediting an EMT report that the victim’s condition remained unchanged over the victim’s testimony that she lost consciousness.


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