Page 39 - TPA Journal May June 2022

entitled to an instruction on a lesser-included significantly greater degree of bodily harm—
offense. It is not an invitation for reviewing courts serious bodily injury, rather than mere
to weigh the strength or credibility of the evidence bodily injury. “Serious bodily injury” means bodily
in the record. injury “that creates a substantial risk of death or that
causes death, serious permanent disfigurement, or
In considering whether evidence of a lesser- protracted loss or impairment of the function of any
included offense establishes a valid, rational bodily member or organ.”
alternative to the charged offense in this
case, we compare the statutory elements of the By way of contrast, “bodily injury” means
greater offense of aggravated assault and the lesser “physical pain, illness, or any impairment of
offense of assault to determine whether some physical condition.” The Legislature intended that
evidence exists in the record that could cast there be a meaningful difference or distinction
reasonable doubt upon a conviction for the greater between “bodily injury” and “serious bodily
offense of aggravated assault as charged in the injury,” and that difference is often a matter of
indictment but not the lesser offense of assault.28 degree. At trial, the State sought to prove serious
Under the Texas Penal Code, a person commits bodily injury by showing that Sughrue had suffered
assault if he intentionally, knowingly, or recklessly serious permanent disfigurement as a result of the
causes bodily injury to another. A person commits assault. Therefore, there must have been some
aggravated assault if he commits assault and either: evidence that would have permitted the jury to
(1) causes serious bodily injury to another, or (2) rationally believe that the amputation of Sughrue’s
uses or exhibits a deadly weapon during the earlobe did not constitute serious permanent
commission of the assault. In this case we disfigurement in order to support the requested
are only concerned with the evidence concerning instruction on the lesser-included offense.
the degree of the injury caused not whether a
deadly weapon was used during the assault given As mentioned above, distinguishing between
the ground for discretionary review before us. “bodily injury” and “serious bodily injury” is a
matter of degree. The relevant issue in
There are no wounds that constitute “serious bodily determining the degree of disfigurement is the
injury” per se. We have long held that it is up to a damage caused by the wound when inflicted, not
jury to determine as a matter of fact whether a the disfigurement as exacerbated or ameliorated by
particular bodily injury can be said to be “serious.” medical treatment. However, bodily injury cannot
Whether an injury constitutes serious bodily injury be elevated to serious bodily injury by postulating
is determined on a case-by-case basis. Therefore, potential complications that are not in evidence.
there must have been some evidence that would
have permitted the jury to rationally doubt that the There must be evidence of some significant
injury to Sughrue’s earlobe constituted serious cosmetic deformity caused by the injury.
bodily injury for Appellant to be entitled to the Ultimately, as intermediate courts have observed, a
requested instruction on the lesser-included jury is free to apply common sense, knowledge, and
offense. experience gained in the ordinary affairs of life in
drawing reasonable inferences from the evidence
Here, the State charged Appellant with aggravated presented to it in order to conclude that a particular
assault by causing serious bodily injury. injury constitutes “serious bodily injury.” But it is
Aggravated assault increases the penalty for simple also up to the jury to resolve conflicting inferences.
“bodily injury” assault if the victim suffers a

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