Nicanor Hernandez III A/K/A \"Little Nick\" v. State ( 2011 )

MEMORANDUM OPINION
No. 04-10-00290-CR
Nicanor HERNANDEZ III a/k/a “Little Nick,”
Appellant
v.
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Menard County, Texas
Trial Court No. 2009-02165
The Honorable M. Rex Emerson, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Marialyn Barnard, Justice
Delivered and Filed: January 12, 2011
AFFIRMED
A jury convicted appellant Nicanor Hernandez III a/k/a “Little Nick” of aggravated
assault and sentenced him to five years in the Texas Department of Criminal Justice–Institutional
Division. On appeal, Hernandez contends the evidence is insufficient to prove the victim, Jimmy
Light, suffered serious bodily injury, or that Hernandez intended to cause Light serious bodily
injury. We affirm the trial court’s judgment.
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BACKGROUND
Hernandez went to visit his cousin at an apartment in Menard, Texas. As Hernandez was
knocking on the door of his cousin’s apartment, Light, who lived next door and believed drugs
were being sold from the apartment, confronted Hernandez. Light asked Hernandez if he was
selling drugs. According to Light, Hernandez “postured up,” and said it was none of Light’s
“f’ing business.” Light then threatened to call Crime Stoppers, though he testified he did not
intend to call and was simply being “a smart aleck” in response to Hernandez’s posturing. At
this, Hernandez “doubled up his fist and bowed out his chest and went to kind of hopping around
and got an attitude.” Light stated he found this comical and “was kind of laughing,” which
further infuriated Hernandez. Hernandez began to approach him, but Light held up his hand to
keep distance between them. The men pushed each other, and Hernandez stated he was going to
call his father. Though Light denied striking Hernandez, Hernandez testified Light hit him in the
throat.
After Hernandez stated he was going to call his father, Hernandez left the apartment
complex with his aunt, who had driven him. Light stated he was certain Hernandez’s father, who
is known as “Big Nick,” would come over to the apartment complex and everything would be
worked out. Light testified that although he was not close to Big Nick, they went to school
together and knew each other.
Approximately forty-five minutes after Hernandez left, he returned to the apartment
complex with Big Nick. As Light described it, Hernandez and his father attempted a stealthy
approach, but once they realized they had been spotted by Light, Big Nick came forward and he
and Light began to talk. While Light and Big Nick were, in Light’s words, resolving the
problem, he heard Hernandez say “son of a bitch,” and the next thing Light knew he was “ten
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feet farther down the sidewalk” than he had been when he was talking to Big Nick. Light saw “a
flash of light.” Light’s girlfriend, who was on the porch of their apartment, testified Hernandez
punched Light in the face. When Light looked up, he saw Hernandez’s feet, which were seven
or eight feet away. According to Light, Big Nick was next to him, preventing him from getting
up. Light’s girlfriend confirmed that Big Nick was holding Light down. While Light was being
held down, he saw another flash of light. Light’s girlfriend testified Hernandez kicked Light in
the face while Light was still down. He was ultimately able to get to his feet, but according to
Light’s girlfriend, Hernandez hit Light again. Light then saw Hernandez “dancing around telling
[him] to, come on, you know, Mother.” Hernandez was cursing at him and threatening him with
a rake. Light said he was defenseless at this point and trying to get back to his apartment.
Ultimately, Light’s girlfriend came out of the apartment, stood between Light and the
Hernandezes and helped Light inside.
Light provided extensive testimony about his injuries and the continuing effects. His
girlfriend provided similar testimony. The State introduced Light’s medical records, which
detailed his injuries.
After considering the evidence and arguments of counsel, the jury found Hernandez
guilty. Hernandez perfected this appeal.
ANALYSIS
As noted above, Hernandez brings a single issue in which he challenges the sufficiency
of the evidence. He specifically contends the evidence is insufficient to establish Light suffered
serious bodily injury, or that he intended to cause Light serious bodily injury. As to the first
contention, Hernandez argues the evidence is insufficient to show the injuries he inflicted caused
Light “serious permanent disfigurement or protracted loss or impairment of the function of any
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bodily member or organ.” 1 With regard to evidence of intent, Hernandez contends the jury
should not have been permitted to infer that he intended to cause Light serious bodily injury
simply because he struck Light in the face with his fist and then kicked him in the face.
Standard of Review
Hernandez contends the evidence is legally and factually insufficient to establish the
intent and serious bodily injury elements of aggravated assault. However, there is now but one
standard of review for sufficiency complaints in criminal cases. Brooks v. State, 323 S.W.3d
893, 894-95 (Tex. Crim. App. 2010); Rosales v. State, No. 04-09-00498-CR, 2010 WL 4336171,
at *2 (Tex. App.—San Antonio Nov. 3, 2010, pet. filed). In Brooks, the court of criminal
appeals adopted the Jackson v. Virginia legal sufficiency standard as the standard of review
applicable in all sufficiency challenges. Brooks, 323 S.W.3d at 895; see Jackson v. Virginia, 443
U.S. 307, 319 (1979). Accordingly, we will review “all the evidence in the light most favorable
to the verdict to determine whether any rational trier of fact could find the essential elements of
the crime beyond a reasonable doubt.” Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim.
App. 2005) (citing Jackson, 443 U.S. at 318-19; Geesa v. State, 820 S.W.2d 154, 159 (Tex.
Crim. App. 1991)). We will also defer to the jury’s credibility and weight determinations, and
after giving such deference, “will uphold the verdict unless a rational factfinder must have had
reasonable doubt as to any essential element.” Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.
App. 2009).
1
The State may also prove serious bodily injury by proving the defendant’s actions created a substantial risk of
death or caused death. See TEX. PENAL CODE ANN. § 1.07(a)(46)(West Supp. 2010). However, in this case it is
clear the State sought to prove the existence of serious bodily injury by proving not that Hernandez’s actions created
a substantial risk of death to Light, but that Hernandez’s actions caused Light serious permanent disfigurement or
protracted loss or impairment of bodily organs.
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Application
Serious Bodily Injury
A person commits the offense of aggravated assault if the person “intentionally,
knowingly, or recklessly” “causes serious bodily injury to another.” TEX. PENAL CODE ANN.
§§ 22.01(a)(1), 22.02(a)(1) (West Pamph. 2010). “Serious bodily injury” includes bodily injury
that causes “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) (West Supp. 2010). In
deciding whether a victim suffered “protracted loss or impairment of any bodily member or
organ,” the court of criminal appeals has held there must be evidence that the loss or impairment
was “either continuing, dragged out, drawn out, elongated, extended, lengthened, lengthy,
lingering, long, long-continued, long-drawn, never-ending, ongoing, prolix, prolonged, or
unending.” Moore v. State, 739 S.W.2d 347, 352 (Tex. Crim. App. 1987).
To prove Hernandez caused Light serious bodily injury, the State presented testimony
from Light, Light’s girlfriend, and introduced Light’s medical records. Light testified that after
his encounter with Hernandez, he was bleeding profusely. He stated the assault caused him more
pain than when he had been hit in the mouth with a sledge hammer while he was working on a
drilling rig. The sledge hammer incident resulted in Light having to wear dentures. After giving
police a statement, Light sought medical care at a local clinic, but was sent to Shannon Medical
Center in San Angelo. Light was given a CAT scan and pain medication and ultimately released.
Light then described his injuries and the continuing effects. He first stated that months
after the assault, he can still feel a facial bone protruding toward his left eyeball, and that when
he shifts his eyes to the left, his “eyesight screws up and [he] see[s] double-vision.” Light said
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his left eye does not work correctly and he has double vision in that eye. This defect prevents
him from operating a crane, which is the type of work he prefers.
Light testified that when he looks in the mirror, his face looks different than it did before
he was punched and kicked. He also testified that he has breathing problems every day and
night. He stated his nose becomes congested and he is unable to breathe through it, which never
happened to him before. Light said his breathing problems started immediately after he was
injured by Hernandez. Light specifically testified that even seven months after the attack he is
impaired because of Hernandez’s actions. In addition to his breathing problems, Light stated that
he is unable to sleep through the night because he wakes up three to five times and has to sit up
for ten to twenty minutes and use nasal spray to get any relief. He also uses nasal spray
throughout the day in order to breathe.
Light also testified that he has numbness in his face, and “regularly” has headaches,
which he did not have before the assault. He specifically stated the headaches have been
“persistent” since the attack, and that the pain from the headaches is an impairment he suffers
from every day. He has trouble eating because his dentures no longer fit correctly, and it is
difficult to chew because of the pain. Light said he was able to eat fine before, but since the
attack that has changed.
Light’s girlfriend also testified about Light’s injuries. After the attack, she said Light’s
face was so swollen he was unrecognizable. Light was unable to even wear his dentures for two
or three days, and his eye was swollen shut. The girlfriend confirmed that before the assault,
Light was able to eat normally, even with his dentures. However, after the attack and even now,
he cannot because his teeth do not “match up” and are not straight. The girlfriend also provided
testimony confirming Light’s continuing breathing problems, which did not exist before the
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attack. She testified that Light’s face looks different than it did before the assault. She said that
now when you look at him “straight on . . . his left eye is sunk in. His like, eye socket is sunk in.
If you look at him straight on, you can see that it’s visibly different. It’s not the same. It was not
like that before.” The girlfriend testified she has personally observed the changes in Light,
including his persistent breathing problems, constant eyesight difficulties, and unrelenting
headaches.
The State also introduced Light’s medical records from Shannon Medical Center, which
showed the injuries suffered by Light in the assault by Hernandez. According to the records,
Light suffered “numerous facial bone fractures with associated soft tissue swelling.” More
specifically, Light was observed to have the following fractures: (1) “a fracture involving the left
zygoma frontal suture”; (2) “displaced fractures . . . involving the floor of the left orbit . . a
fracture involving the inferomedial wall of the left orbit”; (3) “a fracture of the left lateral nasal
bone with associate fracture of the nasal septum”; (4) “fractures . . . involving the anterior,
medial, and lateral walls of the left maxillary sinus and right maxillary sinus”; and (5) “fractures
of the mid body of the left zygoma.” These fractures obviously account for Light’s breathing
and vision problems as all of the fractures were in the nasal and optic regions.
We hold the testimony provided by Light and his girlfriend, along with Light’s medical
records, was sufficient to establish Light suffered, at a minimum, “protracted loss or impairment
of the function of any bodily member or organ.” See TEX. PENAL CODE ANN. § 1.07(a)(46). The
evidence showed lingering, ongoing impairment of Light’s nasal passages as demonstrated by
his inability to breathe properly. There was also evidence of continuing, ongoing trouble with
his eyesight, establishing impairment of the function of his eye or eyes. And finally, there was
evidence of Light’s continuous struggle to eat, an impairment to his mouth. The testimony
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showed the impairments described by Light and his girlfriend were “either continuing, dragged
out, drawn out, elongated, extended, lengthened, lengthy, lingering, long, long-continued, long-
drawn, never-ending, ongoing, prolix, prolonged, or unending.” See Moore, 739 S.W.2d 347 at
352.
Hernandez points to two cases in support of his claim that the evidence was insufficient
to establish protracted loss or impairment. We have reviewed those cases, and find them
distinguishable. In Webb v. State, the court of criminal appeals held the evidence insufficient to
prove serious bodily injury when the victim merely testified that he required surgery to repair a
broken jaw bone after the defendant hit the victim with a rock. 801 S.W.2d 529, 530-32 (Tex.
Crim. App. 1990) (per curiam). The court reasoned the evidence was insufficient because there
was nothing to establish the victim’s injury, without surgery, would have caused permanent
disfigurement or protracted loss or impairment of the function of a bodily member or organ. Id.
at 532. Nor was the victim’s temporary loss of memory for a short time after the attack evidence
of protracted loss or impairment of the function of a bodily member or organ. Id. at 533.
We agree the evidence in Webb was insufficient. However, unlike Webb, the State in this
case, through the testimony of Light and his girlfriend, presented evidence of protracted loss and
impairment of Light’s nose, eyes, and mouth.
In Villarreal v. State, the court held there was insufficient evidence of serious bodily
injury because the evidence showed only that the victim’s injuries, two fractured ribs and a split
lip, prevented him from raising his arms for ten days, and he suffered pain for two weeks. 716
S.W.2d 651, 651-52 (Tex. App.—Corpus Christi 1986, no pet.). Here, there was testimony that
Light has suffered breathing, vision, and eating problems for approximately seven months, and
that these impairments persist. This is far beyond the two weeks found insufficient in Villarreal.
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Accordingly, we hold the evidence is sufficient to establish Light suffered serious bodily
injury. We overrule this portion of Hernandez’s sufficiency complaint.
Intent
Hernandez contends the State did not produce sufficient evidence to establish he “had the
specific intent to cause the results that were inflicted.” Hernandez argues that simply proving
Hernandez hit and kicked Light in the face is insufficient, and that the jury could not infer intent
to cause serious bodily injury simply from those actions.
As previously noted, a person commits an aggravated assault if he intentionally,
knowingly, or recklessly commits an assault that causes serious bodily injury.” TEX. PENAL
CODE ANN. §§ 22.01(a)(1), 22.02(a)(1). In this case, the jury was charged in accordance with the
Penal Code with regard to the applicable mental states. Thus, as to Hernandez’s mental
culpability, the State could prove he acted intentionally, knowingly, or recklessly. See id. A
person acts intentionally with respect to a result of his conduct when it is his conscious objective
or desire to cause the result. TEX. PENAL CODE ANN. § 6.03(a) (West 2003). A person acts
knowingly with respect to a result of his conduct when he is aware that it is reasonably certain to
cause the result. Id. § 6.03(b). A person acts recklessly with respect to a result of his conduct
when he is aware of, but consciously disregards, a substantial and unjustifiable risk that the result
will occur. Id. § 6.03(c).
Intent is a fact issue for the jury. Barcenes v. State, 940 S.W.2d 739, 744 (Tex. App.—
San Antonio 1997, pet. ref’d). Proof of a culpable mental state generally relies upon
circumstantial evidence. Id. Intent can be inferred from the acts, words, and conduct of the
defendant, and is an issue to be resolved by the trier of fact based on all of the facts and
surrounding circumstances. Id. at 744-45. The trier of fact may consider the acts and words of
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the defendant, the manner in which the offense was committed, the nature of the wounds
inflicted, and the relative size and strength of the parties. Nickerson v. State, 69 S.W.3d 661, 667
(Tex. App.—Waco 2002, pet. ref’d).
Hernandez’s claim that he did not intend to cause serious bodily injury to Light, or that
he was not reasonably certain his actions would cause Light serious bodily injury, or that he did
not consciously disregard a substantial and unjustifiable risk that Light would suffer serious
bodily injury is inconsistent with his conduct. The evidence, when considered in the light most
favorable to the jury’s verdict, shows that after his initial confrontation with Light, during which
Hernandez became enraged, Hernandez left and returned with his father. Based on Light’s
testimony, the jury could have believed the men were attempting to sneak up on Light when they
returned, and only approached in the open when they were spotted by Light. While Hernandez’s
father was engaging Light in conversation, Hernandez blindsided Light with a fist to the face,
knocking Light ten feet down the sidewalk. Thereafter, before Light was able to regain his
footing, and with Big Nick preventing Light from getting up, Hernandez kicked Light in the face.
In fact, according to Light’s girlfriend, Hernandez stepped back as if he was going to “kick a
football” before he kicked Light in the face. After these two blows, Hernandez wanted to
continue the fight, and it was only the intervention of Light’s girlfriend that stopped the attack.
Light suffered multiple fractures and continues to suffer the effects of the assault. Threatening
Light, attempting to sneak up on Light, blindsiding Light with a fist to the face, and kicking
Light in the face as if he were a football while Light was completely defenseless and being held
down is sufficient evidence to allow the jury to infer Hernandez acted intentionally, knowingly,
or recklessly with respect to causing Light serious bodily injury. We therefore overrule this
portion of Hernandez’s sufficiency challenge.
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CONCLUSION
Based on the foregoing, we overrule Hernandez’s challenge to the sufficiency of the
evidence, and we affirm the trial court’s judgment.
Marialyn Barnard, Justice
Do Not Publish
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