Page 37 - TPA Journal May June 2022

serious. Sughrue further testified that he was able to assault. The trial court denied the request and
return to work the day after the assault and that he instructed the jury on only the greater offense of
continued to work each day following the assault, aggravated assault by causing serious bodily injury.
though he worked less hours each day than he did After deliberations, the jury found Appellant guilty
before the assault. of aggravated assault as charged in the indictment.

The State also introduced Sughrue’s medical The court of appeals held that the evidence was
records. The EMS records reflected that Sughrue legally sufficient to support Appellant’s conviction
sustained a “traumatic injury,” that his left earlobe for aggravated assault because the jury could have
had been amputated, that he had pain in his left ear, made reasonable inferences from the evidence
and that there was “quite a bit of blood” at the presented at trial to conclude that Sughrue suffered
scene. The hospital records described the injury as serious permanent disfigurement. Appellant does
10 cm long and a “large complex laceration to the not challenge this part of the court of
left ear externally with loss of the ear lobe.” These appeals’ opinion on discretionary review.
records indicated that the injury extended into the
cartilage and required 11 sutures. Consequently, we accept the court of appeals’
conclusion that the evidence was legally sufficient
But the hospital records also indicated that doctors toestablish that Appellant caused serious bodily
determined Sughrue to be in a stable condition and injury. The issue of the sufficiency of the evidence
discharged him from the hospital the same day as to establish serious bodily injury is not before us.
the assault. And while Sughrue received 11 stitches The court of appeals also held that the trial court
to close the wound on his ear, the only follow-up erred by denying the requested lesser-included
medical care was for the removal of the stitches. instruction because Appellant’s testimony that
Sughrue also refused pain medications. The State Sughrue did not sustain a serious bodily injury
introduced no other medical or expert testimony. provided more than a scintilla of evidence that
After the State rested, Appellant testified in his own raised the lesser offense of assault.
defense. Appellant’s primary defensive theory at
trial was that he acted in selfdefense after Sughrue After conducting a harm analysis, the court further
attacked him, but Appellant also sought to determined that Appellant had suffered some harm
undermine the conclusion that the injury in this from the error. Accordingly, the court of appeals
case amounted to serious permanent disfigurement. reversed and remanded for a new trial.
On cross examination, Appellant agreed with the The State filed a petition for discretionary review,
prosecutor that he used his teeth to bite Sughrue’s arguing that the court of appeals’ analysis of the
earlobe, which caused the earlobe to be detached. denial of the lesser-included offense instruction
Appellant also agreed that Sughrue’s ear was was incomplete. According to the State, the court of
disfigured as a result. But Appellant twice refused appeals erred in focusing solely on whether a
to agree with the prosecutor that he had caused scintilla of evidence raised the lesser offense of
“serious” bodily injury by biting off Sughrue’s assault, rather than also considering whether the
earlobe. He further stated that if he saw Sughrue on evidence provided a “valid, rational alternative” to
the street and did not know who Sughrue was, he the greater offense of aggravated assault. We
would be unable to notice any difference between granted review solely on this issue.
Sughrue’s two ears.
To determine whether a defendant is entitled to an
At the charge conference, Appellant requested the instruction on a lesser-included offense, we apply a
jury be instructed on the lesser-included offense of two-pronged test. First, a reviewing court must

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