Moore v. While the evidence showed that Berdeja suffered bodily injury and his jaws were wired shut for six weeks following surgery, there was no evidence that his injuries created a substantial risk of death or that he suffered serious permanent disfigurement.
There is some evidence that the function of Berjeda s jaw was impaired on the day of the injury and for six additional weeks as a result of the medical treatment, but the State did not offer any evidence that his injury would have caused protracted disfigurement or impairment had he not obtained medical treatment.
See Brown v. The jury could have rationally concluded from the evidence that Berjeda s injuries did not result in a protracted loss or impairment of the function of his jaw, and therefore, the beer can was not a deadly weapon. Accordingly, the trial court properly submitted the lesser-included offense instruction to the jury. Issues One and Two are overruled.
In Issue Three, Appellant challenges the factual sufficiency of the evidence supporting his assault conviction. He argues that Berjeda is unworthy of belief to the point that the jury s verdict is so contrary to the overwhelming weight of the evidence as to be manifestly unjust. Citing State v. Lee, S. The State relies on the rule first alluded to in Bradley v.
In Bradley, the defendant was indicted for murder but convicted by the jury of the lesser included offense of voluntary manslaughter. Bradley, S. Noting the evidence was sufficient to support a conviction for murder, the Court of Criminal Appeals nevertheless reversed and rendered a judgment of acquittal because there was no evidence of sudden passion.
The court observed that the trial court had erred in instructing the jury on the lesser-included offense but acquittal was appropriate because the defendant had vociferously objected to the inclusion of the voluntary manslaughter charge.
If the defendant had requested the instruction or had not objected, he would have been estopped from complaining on appeal that the evidence did not establish all the elements of the lesser included offense. The court had occasion to apply the latter rule in Lee. There, the defendant was indicted for murder but found guilty by the jury of voluntary manslaughter.
The defendant, who had not objected to submission of the voluntary manslaughter instruction and had actually requested such an instruction, then challenged the sufficiency of the evidence to show sudden passion. Because there was no evidence of sudden passion, the Second Court of Appeals rendered a judgment of acquittal. Lee v. The Court of Criminal Appeals reversed that decision, holding that the defendant s acquiescence to the voluntary manslaughter instruction and acceptance of the benefit of the instruction estopped him from challenging the sufficiency of the evidence.
Several courts followed Lee in cases where the defendant either requested or did not object to the voluntary manslaughter instruction. See e. But see Vann v. Lee has also been applied to bar legal and factual sufficiency review in cases involving lesser-included offenses other than voluntary manslaughter.
See Otting v. State, 8 S. But see Castillo v. State, 7 S. The Court of Criminal Appeals has granted discretionary review for the purpose of reviewing the application of this rule in a case where the defendant was convicted of the lesser-included offense of criminally negligent homicide.
See Bustillos v. State, No. Even if the Lee rule does not bar Appellant s sufficiency challenge, we find the evidence factually sufficient to support his assault conviction. When conducting a factual sufficiency review, we consider all of the evidence, both admissible and inadmissible, but we do not view it in the light most favorable to the verdict. Clewis v. We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact.
Johnson v. State, 23 S. A defendant challenging the factual sufficiency of the evidence may allege that the evidence is so weak as to be clearly wrong and manifestly unjust, or in a case where the defendant has offered contrary evidence, he may argue that the finding of guilt is against the great weight and preponderance of the evidence. See Johnson, 23 S.
Although we are authorized to set aside the fact finder s determination under either of these two circumstances, our review must employ appropriate deference and should not intrude upon the fact finder s role as the sole judge of the weight and credibility given to any evidence presented at trial. We are not free to reweigh the evidence and set aside a verdict merely because we feel that a different result is more reasonable. Cain v. Appellant vigorously challenged Berdeja s credibility at trial.
Berdeja initially did not report the assault to his mother or hospital personnel, but he explained that he gave a false story about his injuries because he did not wish to alarm his mother who was present with him at the hospital. He reported the offense to police upon leaving the hospital. That police report coincided with him filing a claim with his employer. Berdeja s testimony that the assault occurred at the baseball game was. The jury s resolution of these issues and its finding of guilt is not against the great weight and preponderance of the evidence.
Issue Three is overruled. In Issue Four, Appellant argues that the trial court improperly limited his cross-examination of Berdeja by not allowing him to show that the witness was on probation for assault on a public servant at the time of the offense and had committed probation violations by drinking beer and being out after curfew.
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