Page 40 - TPA Jourtnal September October 2023

ELEMENTS – Family violence assault. Appellant went into the bathroom and Melendez
heard him cock his handgun. He then came out
EVIDENCE – What is a serious bodily injury from a and began shooting at Melendez and the man.
gunshot? Melendez tried to run to the kitchen, but Appellant
shot her through the back of her right thigh. She
In January 2019, a jury convicted Appellant Vital was able to remain standing and made her way to
Garcia of first-degree aggravatedassault on a family
member resulting in serious bodily injury for the kitchen.
shooting his then girlfriend with a firearm. The Appellant then fired at the man, who jumped
question we must answer is whether the court of through the second-floor balcony window to
appeals improperly acted as a thirteenth juror by escape. Appellant turned his focus back to
concluding that the evidence was insufficient for Melendez and trapped her in the kitchen. He told
the jury to find that the two gunshot wounds her he was going to kill her, and she believed that
inflicted on the victim caused serious bodily injury, he would. Appellant then shot Melendez in the
namely, because neither bullet hit a vital organ. right side of her chest from a close distance and
Here, the evidence presented to the jury fled from the apartment.
demonstrated that the victim sustained two gunshot
wounds to her thigh and chest; she suffered
significant bleeding to the point that she blacked Melendez was bleeding, but conscious. She
out and believed she would die; her injuries were testified that she did not call 911 because she was
described as “deep lacerations” which required in shock. Instead, she grabbed her keys, phone,
twelve surgical staples to close; and her treating and wallet and went to her car, thinking she could
physician believed that her wounds constituted make it to the hospital. Melendez drove one or two
“serious bodily injury.” Considering the cumulative blocks when she saw a police car on the side of the
force of the evidence and allowing the drawing of road. Realizing that she would not be able to make
reasonable inferences, we conclude that the it to the hospital on her own, she pulled over and
evidence was sufficient to support the jury’s finding asked the officer for help. The officer then called for
that the victim faced a substantial risk of death as a an ambulance. Melendez testified that the last
result of her injuries. Therefore, the court of appeals thing she remembers before blacking out is
erred by concluding that the jury acted irrationally entering the ambulance. She told the jury that she
in finding that the victim suffered serious bodily thought she was going to die. There was also
injury. We reverse the lower court’s judgment and testimony from a security guard for the apartment
remand for further proceedings. complex who saw Melendez trying to drive away
from the scene. The security guard stopped her and
Appellant and Marissa Melendez were in a told her she was “bleeding” and needed to wait for
romantic relationship and shared an apartment in him to call an ambulance. He then got into the car
Houston. At the time of the offense, they had been with her. He testified that she was “driving with one
dating for a little less than a year. The relationship hand” while applying pressure to one of her
started off fine but soon took a turn for the worse gunshot wounds with the other hand. He
when Appellant became physically and verbally eventually got out of the car when she stopped to
abusive. Appellant frequently threatened to kill seek help from a police officer on the side of the
Melendez if she ever cheated or left him. Because road.
Appellant carried a loaded .40 caliber handgun
with him “24/7,” Melendez believed his threats and The Houston Fire Department (HFD) responded to
was afraid of him. assist Melendez. HFD emergency medical records
indicate that Melendez was “ambulatory on scene”
and “conscious and alert” when HFD arrived. The
On May 25, 2016, Appellant came home early records note that Melendez appeared to have
from work to find Melendez smoking gunshot wounds to her right breast and right upper
marijuana in the living room with a male friend.

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