Gilbert Fernandez v. the State of Texas

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-21-00256-CR No. 07-21-00257-CR ________________________

GILBERT FERNANDEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 100th District Court Collingsworth County, Texas Trial Court Nos. 3062 & 3063, Honorable Stuart Messer, Presiding

October 3, 2022

MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Gilbert Fernandez appeals his convictions for murder and two counts of

aggravated assault. His sole issue deals with the sufficiency of the evidence underlying

his guilt on one count of aggravated assault. Through the at-issue count, the State

charged him with “intentionally, knowingly, or recklessly, caus[ing] bodily injury to Frankie Lynn Cannon by burning the body of the said Frankie Lynn Cannon” while using or

exhibiting a deadly weapon, namely a blow torch. Allegedly, the State failed to prove that

burning the victim before death caused bodily injury. We affirm.

The standard of review is that explained in Garcia v. State, 367 S.W.3d 683 (Tex.

Crim. App. 2012). We apply it here.

The Garcia court further alluded to “bodily injury” as meaning physical pain, illness,

or any impairment of physical condition. Id. at 687-88 (quoting TEX. PENAL CODE ANN. §

1.07(a)(8)). Regarding the pain component, we were told not only that “[a]ny physical

pain, however minor” suffices to prove bodily injury but also that a fact finder may infer

the victim actually felt pain because people understand pain and some of its causes.

Garcia, 367 S.W.3d at 688. For instance, in O’Neal v. State, we held that a burn on the

child’s abdomen permitted “a rational juror to infer beyond reasonable doubt that the

infant experienced physical pain when it occurred.” O’Neal v. State, No. 07-15-00274-

CR, 2016 Tex. App. LEXIS 8927, at *5-6 (Tex. App.—Amarillo Aug.16, 2016, pet. ref’d)

(mem. op., not designated for publication).

Here, appellant admitted to the investigating officer that he and several others

struck the victim with a bat and burned him with a blow torch. Another witness described

how the victim’s hands were burned with a lighter as a prelude to transporting the

individual elsewhere to be shot in the head four times. People of common intelligence

would understand that being burned generally causes some pain. See e.g., O’Neal,

supra. So, the jury at bar was free to infer that appellant’s victim suffered some pain when

burned by the blow torch, even though no one so testified. See Wiegand v. State, No.

13-21-00157-CR, 2022 Tex. App. LEXIS 5786, at *8 (Tex. App.—Corpus Christi Aug.11,

2 2022, no pet.) (mem. op., not designated for publication) (quoting Coleman v. State, 631

S.W.3d 744, 751 (Tex. App.—Houston [14th Dist.] 2021, pet. ref’d) (stating that “‘no

witness—including the victim—need testify that the victim felt pain’”). And, this means

evidence viewed in the light most favorable to the verdict existed which permitted a

rational trier of fact to find the essential element in question beyond a reasonable doubt,

that element being bodily injury through burning.

We overrule appellant’s sole issue and affirm the judgments of the trial court.

Brian Quinn Chief Justice

Do not publish.