Page 41 - TPA Jourtnal September October 2023

thigh and that each appeared to have an entry and her vital organs, the bullets’ paths were close to her
exit wound. She received treatment for bleeding as ribs, which have “a lot of vessels right underneath .
well as occlusive dressing on the breast gunshot . . as well as [the vessels] in her thorax.” He noted
wound. Melendez was transported as a priority two that the bullets had struck in close proximity to her
emergency to the hospital, and records note that heart, lungs, aorta, vena cava, femur, femoral
her condition remained unchanged during artery, and femoral vein. Several photographs of the
transport. crime scene were also introduced at trial. Blood
can be seen on the walls, blinds, and soaked into
Once at the hospital, Melendez was treated by the carpet, as well as on a pillow and towel. No
emergency physician Dr. Jordan Smith. According photographs of Melendez’s injuries before or after
to her medical records that were admitted at trial, medical treatment were introduced. Following the
she suffered “multiple deep lacerations to the right conclusion of evidence, the jury convicted
thigh and right breast”—two entry and two exit Appellant of first-degree felony aggravated assault
wounds— which required twelve staples in total to with a deadly weapon of a family member resulting
close. The medical records further indicate that the in serious bodily injury. Appellant pleaded “true”
laceration to her right superior breast was 1.5 to an enhancement allegation of a prior felony
centimeters long and was repaired with 1 staple; conviction for indecency with a child, and the trial
the right lower breast laceration was 3 centimeters court sentenced him to 35 years’ imprisonment.
long and was repaired with 4 staples; the right
anterior thigh laceration was 4 centimeters long On direct appeal, Appellant contended that the
and was repaired with 5 staples; and the right evidence was insufficient to establish
lateral thigh laceration was 2 centimeters long and that Melendez suffered serious bodily injury or that
was repaired with 2 staples. The records state that she was Appellant’s family member. He also
Melendez was “neurovascularly intact in all four complained that the trial court erred in refusing to
extremities. Chest x-ray negative for intrathoracic submit a jury instruction on the lesser-included
injury and right femur x-ray negative for bony offense of second-degree aggravated assault. In a 2-
injury. Doubt vascular injury given the location of 1 decision, the court of appeals agreed that the
the entrance and exit wounds.” The records also evidence was insufficient to support the jury’s
indicated the presence of several small, scattered finding that Melendez suffered serious bodily
bullet fragments in the right leg. Melendez reported injury, and it reversed Appellant’s conviction.
experiencing pain measured as high as an eight out Because the court sustained Appellant’s complaint
of ten, and she was given Hydrocodone and with respect to the element of serious bodily injury,
Toradol to alleviate her discomfort. Melendez’s it did not reach his second argument pertaining to
wounds did not require surgery and she was the evidence of a family/dating relationship, nor
discharged from the hospital after a few hours. She did it reach the second point of error addressing the
still bears scars from her injuries. denial of the lesser included-offense instruction.
In his testimony at trial, Dr. Smith stated that
Melendez presented with “two gunshot wounds: In holding the evidence insufficient to support the
one through the right breast,” and one “through the jury’s finding of serious bodily injury, the court
right thigh with a retained bullet.” He cleaned and reasoned that there was no evidence that the
repaired four wounds through staple closure. Dr. bullets “hit any vital organs or caused any serious
Smith explained to the jury that a gunshot wound or lasting impairment or disfigurement.” It also
can cause serious bodily injury and even death. He noted that, although Melendez testified that she
testified that he has seen patients die from gunshot thought she was going to die, she did not explain
wounds to the chest. Dr. Smith also told the jury the basis for that belief. Additionally, the court
that, based on the location of Melendez’s wounds, gave considerable weight to the EMS records
he believed she sustained serious bodily injury. He stating that Melendez was conscious at the scene
noted that, although the bullets did not strike any of and that her condition remained unchanged during

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