Kenneth Cunningham v. State

Citation: Not availableDocket: 08-03-00363-CR

Court: Court of Appeals of Texas; December 15, 2004; Texas; State Appellate Court

Original Court Document: View Document

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Kenneth Cunningham was convicted of aggravated assault and sentenced to twenty years of confinement and a $10,000 fine. The incident occurred on September 11, 2002, when Robert Scarpa visited Cunningham’s apartment. After Scarpa admitted to calling Cunningham a derogatory name, he was assaulted by Cunningham and another man. Scarpa was held down and burned with a red-hot screwdriver on his forehead, chest, and neck. After being released, Scarpa sought help but was initially denied access to a phone. He eventually walked home and called 911. Upon police arrival, Scarpa was found with severe injuries, including burns and bruises. Officers observed the conditions of the apartment, which had surveillance cameras. Scarpa later went to the hospital but did not receive immediate medical attention. His injuries were documented with photographs, and his recovery was prolonged, with visible scars remaining. Officers described Scarpa's injuries as serious. The court affirmed Cunningham's conviction.

Appellant contests the legal sufficiency of the evidence supporting the jury's finding of 'serious bodily injury' to the victim, Scarpa, arguing that the State failed to provide lay or expert testimony regarding the extent or permanence of Scarpa's scarring. The State contends that evidence of serious permanent disfigurement or protracted loss of bodily function was sufficient, likening Appellant's actions to branding cattle with a hot iron.

In reviewing the legal sufficiency of evidence for a criminal conviction, all evidence must be evaluated favorably to the verdict to determine if a rational juror could find the essential elements of the offense beyond a reasonable doubt, as established in Jackson v. Virginia. The court does not resolve factual conflicts or witness credibility, which are the responsibilities of the jury. Instead, the court assesses whether the jury's findings are rational based on the evidence presented.

Aggravated assault can occur in two forms: (1) causing serious bodily injury while committing an assault, and (2) using or exhibiting a deadly weapon during an assault. The indictment charged Appellant with causing serious bodily injury to Scarpa by burning him with a hot screwdriver and another object. The jury was instructed that an assault occurs when a person intentionally, knowingly, or recklessly causes bodily injury, and aggravated assault is defined as causing serious bodily injury through that assault.

'Serious bodily injury' is defined as injury that poses a substantial risk of death or results in serious permanent disfigurement or protracted loss of bodily function. There is a necessary distinction between 'bodily injury' and 'serious bodily injury,' which must be assessed on a case-by-case basis.

No specific wounds are classified as 'serious bodily injury' by definition. Case law establishes that a knife wound, even from a deadly weapon, does not automatically qualify as serious bodily injury (Moore, 739 S.W.2d at 352). The mere necessity of surgery does not suffice (Webb v. State, 801 S.W.2d 529, 533), and the victim's medical treatment is irrelevant to determining serious bodily injury (Moore, 739 S.W.2d at 354). A victim can provide an opinion on the severity of their injuries (Coshatt v. State, 744 S.W.2d 633, 636).

Regarding serious permanent disfigurement, a scar alone does not establish this condition (Hernandez, 946 S.W.2d at 113; McCoy v. State, 932 S.W.2d 720, 724). Significant cosmetic deformity must be evidenced (Brown v. State, 605 S.W.2d 572, 575), and serious bodily injury can be established if the injury necessitates surgery to prevent substantial disfigurement (Moore, 802 S.W.2d at 369; Pitts v. State, 742 S.W.2d 420, 421-22). The evaluation of disfigurement focuses on the initial damage from the injury rather than any changes from medical treatment (Brown, 605 S.W.2d at 575; Moore, 802 S.W.2d at 370).

Protracted loss or impairment of any body organ or member indicates that the function of that organ or body part is impaired (Hernandez, 946 S.W.2d at 113). Although 'bodily member or organ' is not statutorily defined, Texas courts have recognized the back and teeth as distinct parts of the body (Colshatt v. State, 744 S.W.2d 633, 635; Lenzy v. State, 689 S.W.2d 305, 310).

The analysis of Scarpa’s injuries reveals multiple burns and bruises, including a significant ten-inch burn across the collarbone and chest, additional burns on the neck, arms, and forehead, and various bruises on the face and shoulders. These injuries are documented with specific measurements, indicating their extent and potential impact on bodily function.

The jury reviewed photographs and observed Scarpa's scars ten months post-injury. Scarpa testified that his burns on the chest and neck healed around Christmas, with noticeable scars that drew public attention. Both Scarpa and Officer Arrieta expressed shock at the severity of the injuries, while Officer Amato noted he had never seen worse injuries. The jury was instructed to use common sense and personal experience to draw reasonable inferences from the evidence. Medical testimony was deemed unnecessary for the jury to recognize the serious disfigurement caused by the burns, particularly the facial scars. The jury could rationally conclude that Scarpa experienced serious permanent disfigurement based solely on the photographs and testimonies regarding the injuries' severity. Consequently, the trial court's judgment was affirmed.