Nash v. State, 2-01-038-CR.

CourtCourt of Appeals of Texas
Citation123 S.W.3d 534
Docket NumberNo. 2-01-038-CR.,2-01-038-CR.
PartiesRoderick NASH, Appellant, v. The STATE of Texas.
Decision Date23 October 2003

William H. `Bill' Ray, Fort Worth, for Appellant.

Tim Curry, Dist. Atty., Charles M. Mallin, Chief Appellate Section, Helena F. Faulkner, Lloyd Whelchel, Asst. Dist. Attys., Kelly Loftus, Asst. Dist. Atty. of Tarrant County, Forth Worth, for State.

Before the court en banc.

OPINION

SAM J. DAY, Justice.

I. Introduction

Appellant Roderick Nash appeals from his conviction for aggravated assault causing serious bodily injury. In three points, he argues that the trial court erroneously allowed a magistrate to conduct jury selection and that the evidence is legally and factually insufficient to support the verdict. We affirm.

II. Factual Background

On September 13, 2000, Nash knocked on Alexander Garza's door. Nash and Garza had been friends for about two years. Nash told Garza that he and another friend wanted to talk to Garza about some business, so Garza and Nash went outside where Nash's companion was sitting in the driver's seat of a car parked at the curb. Garza got in the car and sat in the passenger seat.

The driver stated that he was "from the old school" and that he wanted to tell Garza something. He then pulled out a small revolver. Garza grabbed the gun, and a struggle ensued. When the man yelled at Nash to hit Garza in the head, Nash pulled Garza out of the car by his waist and neck and threw him to the ground. Nash then "stomped" on Garza's left ankle, breaking the tibia and fibula.

Garza went to All Saints Hospital and was treated and released. Garza did not have surgery that evening because he did not have the insurance to pay for the procedure. He went to Tarrant County's John Peter Smith Hospital a week later for surgery. A second surgery was later required because Garza developed an infection. At trial, Garza testified that he had been unable to walk on his foot for over two months. The jury was charged on both assault and aggravated assault.

III. Referral of Jury Selection to Magistrate

In his first point, Nash contends that the trial court erroneously allowed a magistrate to conduct jury selection in violation of section 54.656 of the Texas Government Code. Tex. Gov't Code Ann. § 54.656(c) (Vernon 1998) ("A magistrate may not preside over a trial on the merits, whether or not the trial is before a jury."). This court has twice previously held that in order to challenge the trial court's referral of voir dire to a magistrate, the appellant must have preserved error in the trial court. See Lemasurier v. State, 91 S.W.3d 897, 900 (Tex.App.-Fort Worth 2002, pet. ref'd); McKinney v. State, 880 S.W.2d 868, 870 (Tex.App.-Fort Worth 1994, pet. ref'd). Although Nash's attorney objected before voir dire began, the extent of his objection was that "the defendant objects to the magistrate conducting jury selection. He asks that Judge Wilson or another district judge sit in her place to conduct voir dire." In response, the trial court overruled the motion, stating that "[t]his case has been referred to [the] magistrate by the district judge just for jury selection only. Anything else?"

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex.R.App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim.App.1998) (op. on reh'g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). An objection is sufficient to preserve error for appellate review if the objection communicates to the trial court what the objecting party wants, why the objecting party thinks himself or herself is entitled to relief, and does so in a manner clear enough for the court to understand the objection and request at a time when the court is in a position to do something about it. See Lankston v. State, 827 S.W.2d 907, 908-09 (Tex.Crim.App.1992); Taylor v. State, 93 S.W.3d 487, 504 (Tex. App.-Texarkana 2002, pet. ref'd); see also Anderson v. State, 817 S.W.2d 69, 73 n. 4 (Tex.Crim.App.1991) (stating it is not necessary for counsel to specify the rule under which he is complaining, but only to so frame his objection so that it may be clearly understood by the trial court).

The specific grounds for Nash's complaint against the magistrate conducting voir dire are not apparent from the context of his objection. While Nash was not necessarily required to state which statute or law he was relying on in support of his objection, he was required to inform the trial court why he believed he was entitled to the ruling requested. Nash provided no basis for why he was entitled to relief. Furthermore, because section 54.656(c) of the government code does not specifically state that a magistrate cannot conduct voir dire, we cannot presume that the magistrate might have been aware of the basis for the objection from the context in which it was made.1 Thus, we hold that the objection failed to preserve error on the complaint made on appeal. We overrule Nash's first point.

IV. Sufficiency of the Evidence

In his second and third points, Nash argues that the evidence was legally and factually insufficient to support his conviction for aggravated assault because there was no evidence of serious bodily injury. In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim.App.2001). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. When performing a legal sufficiency review, we may not sit as a thirteenth juror, re-evaluating the weight and credibility of the evidence and, thus, substituting our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000).

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim.App.2000); Clewis v. State, 922 S.W.2d 126, 129, 134 (Tex.Crim.App.1996). Evidence is factually insufficient if it is so weak as to be clearly wrong and manifestly unjust or the adverse finding is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, we must determine whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the verdict or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. In performing this review, we are to give due deference to the fact finder's determinations. Id. at 8-9; Clewis, 922 S.W.2d at 136. We may not substitute our judgment for that of the fact finder's. Johnson, 23 S.W.3d at 12. Consequently, we may find the evidence factually insufficient only where necessary to prevent manifest injustice. Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997).

To make a determination of factual insufficiency, a complete and detailed examination of all the relevant evidence is required. Johnson, 23 S.W.3d at 12. A proper factual sufficiency review must include a discussion of the most important and relevant evidence that supports the appellant's complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim.App.2003).

Serious bodily injury means 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. Tex. Penal Code Ann. § 1.07(a)(46) (Vernon 2003). Bodily injury means physical pain, illness, or any impairment of physical condition. Id. § 1.07(a)(8). Because the penal code provides a different definition for "bodily injury" than for "serious bodily injury," the Texas Court of Criminal Appeals has instructed us in Moore v. State that we must presume that the Texas Legislature intended that there be a meaningful difference or distinction between the two. 739 S.W.2d 347, 349 (Tex.Crim.App.1987). Whether an injury constitutes serious bodily injury must be determined on a case-by-case basis. Id. at 352.

In examining the definition of "serious bodily injury," the Moore court explained that "protracted" means extended, lengthened, prolonged, or continued. Id. The injury in the case before us did not create a substantial risk of death or cause death or serious permanent disfigurement. Thus, for Nash's conviction of aggravated assault to stand, the record must reflect legally sufficient evidence of protracted loss or protracted impairment of the use of a bodily member or organ, as required by the statute. Tex. Penal Code Ann. § 22.02. The relevant issue is the disfiguring and impairing quality of the bodily injury as it was inflicted, not after the effects have been ameliorated or exacerbated by other actions such as medical treatment. Brown v. State, 605 S.W.2d 572, 575 (Tex.Crim.App. [Panel Op.] 1980), overruled on other grounds, Hedicke v. State, 779 S.W.2d 837 (Tex.Crim.App. 1989).

Although the State offered no expert medical testimony of causation, degree of loss or impairment of the function of the ankle, or prognosis, Garza testified without objection regarding...

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