I respectfully dissent. Appellant was charged with causing "serious bodily injury" to the complainant in a car accident involving two cars. The intoxicated appellant was the driver of one of the cars.

The Court of Appeals decided the evidence is legally insufficient to support the jury's finding that the complainant suffered "serious bodily injury" as defined in Section 1.07(a)(46) of the Texas Penal Code. This complainant testified that he had torn cartilage and a severely jammed hand as a result of the accident. The complainant had arthroscopic surgery on his knee to remove torn cartilage about a month after the accident. The complainant testified that he had had problems with his knee and hand since the surgery. He testified that his hand "[n]ow hurts all the way up to my elbow." This witness testified he missed six weeks of work because of the accident and his injuries.

I would decide that, under a proper application of the evidentiary sufficiency review standard, the evidence is sufficient to support a rational finding that the complainant suffered "serious bodily injury." See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On this record, it would not have been unreasonable for a factfinder to infer from the complainant's testimony that the complainant suffered "serious bodily injury" as defined in Section 1.07(a)(46). See id.

By focusing on the evidence the State did not produce, instead of the evidence the State did introduce, the Court of Appeals failed to view the evidence in the light most favorable to the prosecution, as mandated by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and many of this Court's decisions, including Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App. 1993)(opinion on rehearing), and Ransom v. State, 789 S.W.2d 572 (Tex.Cr.App. 1989), cert.denied, 497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 765 (1990).

Similarly, by focusing on the evidence the State did not produce, the Court of Appeals effectively resurrected the "weak circumstantial evidence case" standard of review discarded by this Court in Chambers v. State, 711 S.W.2d 240 (Tex.Cr.App. 1986).

And, by re-deciding the weight and credibility of the evidence, the Court of Appeals improperly assumed the role of a 13^th juror, in conflict with numerous decisions of this Court, including Hughes v. State, 897 S.W.2d 285 (Tex.Cr.App. 1994), cert.denied, 514 U.S. 1112, 115 S.Ct. 1967, 131 L.Ed.2d 857 (1995), and Moreno v. State, 755 S.W.2d 866 (Tex.Cr.App. 1988).

By relying on this Court's decision in Webb v. State, 801 S.W.2d 529 (Tex.Cr.App. 1990), to discount Bivins' surgery and its aftereffects in determining whether he suffered "serious bodily injury," the Court of Appeals has issued an opinion in conflict with V.T.C.A., Penal Code, Section 6.04(a), and the cases from this and other courts holding a person criminally responsible for his conduct if the result would not have occurred but for his conduct. See Wright v. State, 388 S.W.2d 703 (Tex.Cr.App. 1965); Franklin v. State, 128 S.W.2d 389 (Tex.Cr.App. 1939); Bell v. State, 774 S.W.2d 371 (Tex.App. --Austin 1989, pet.ref'd), cert.denied, 497 U.S. 1008, 110 S.Ct. 3248, 111 L.Ed.2d 758 (1990); Phea v. State, 767 S.W.2d 263 (Tex.App. --Amarillo 1989, pet.ref'd); More v. State, 692 S.W.2d 912 (Tex.App. --Houston [14^th Dist.] 1985, pet.ref'd). I respectfully dissent.

McCormick, Presiding Judge

(Delivered June 21, 2000)

En Banc

Publish

Mansfield, Keller and Keasler, JJ., join this dissent