Page 42 - TPA Journal May June 2022

The hospital records indicated that Sughrue was greater offense and supporting the lesser. We
in stable condition after the assault and doctors have made clear that, in determining whether a
discharged him from the hospital the same day. defendant is entitled to an instruction on a lesser-
And while Sughrue received several stitches to included offense, the issue is not whether a rational
close the wound on his ear, the only follow-up jury could have found the defendant guilty of the
medical care indicated was for the removal of the greater offense, but rather, whether a jury could
stitches. Sughrue also refused pain medications. have reasonably interpreted the record in such a
Sughrue’s testimony also demonstrated that he was way that it could find the defendant guilty only of
able to hear and respond to the questions asked by the lesser-included offense. Based on the totality
counsel without difficulty, which suggests that of the record in this case, we conclude that there
there was no loss or impairment of the function of was at least some evidence from which a jury could
the injured ear. Finally, the evidence showed that have rationally done so regardless of how
Sughrue was able to walk to the ambulance on his persuasive that evidence is. Accordingly, we agree
own, doctors determined him to be stable at the with the court of appeals that the
hospital and discharged him the same day, and trial court should have granted Appellant’s request
Sughrue was able to return to work the next day, and instructed the jury on the lesser-included
all of which support Appellant’s opinion that the offense of assault. It would then have been
injury was not serious. the jury’s duty under the proper instructions to
determine whether the testimony was persuasive,
Essentially, the State argues that the court of credible, and supported the lesser-included
appeals plucked Appellant’s testimony out of the offense.
record and examined it in a vacuum.
As discussed above, this is inaccurate. Appellant Viewing the evidence in the light most favorable
proceeded under two defensive theories at trial: to the requested charge, Appellant’s lay opinion
self-defense and lack of serious bodily injury. testimony negating the seriousness of
Though Appellant focused primarily focused on the injury, combined with other evidence
self-defense, he marshaled testimony through supporting his defensive theory, amounted to more
cross-examination that undermined the than a scintilla of evidence that could have
conclusion that the injury in this case rose to the provided the jury with a valid, rational alternative
level of serious bodily injury. This culminated in to the greater offense of aggravated assault.
Appellant’s testimony, elicited by the State, Therefore, the trial court erred in denying
that the victim had not suffered serious bodily Appellant’s requested instruction on the lesser-
injury. included offense. We affirm the judgment of the
court of appeals.
Appellant’s
opinion testimony in this regard was also the only Wade v. State, Tex. Crim. App., No. PD-0157-20,
direct evidence germane to the issue of the April 06, 2022.
seriousness of the injury. Further, it was ****************************************
bolstered by several other pieces of evidence in the *
record undermining the seriousness of the victim’s
injury.

It is the jury’s role—not ours—to determine
whether to believe the evidence negating the

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