Aaron Isaac FLEMING, Appellant, v. The STATE of Texas, 21 S.W.3d 275

OPINION HOLLAND, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK and JOHNSON, J.J., joined. Appellant pled not guilty to two counts of Intoxication Assault and one count of Aggravated Assault, all felonies. See Tex. Penal Code Ann. §§ 49.07(a)(1) and 22.02(a)(2). A jury convicted him of all three charges and assessed punishment. On each conviction for Intoxication Assault (committed against Clifford Howard and William Bivins, respectively), appellant was sentenced to confinement for two years and a fine of $500.

Sentence in both convictions for Intoxication Assault were suspended, and appellant was placed on community supervision. The jury assessed punishment for the conviction for Aggravated Assault (committed against William Bivins) at five years confinement, without community supervision, and made an affirmative finding of the use or exhibition of a deadly weapon by appellant. See Tex.Code CRIM. Proc. Ann. art. 42.12 § 3g(a)(2). On appeal, appellant argued that the evidence was legally insufficient to sustain the three convictions because “there was no serious bodily injury involved in” any of the three offenses.

The Beaumont Court concluded that the evidence was legally sufficient to establish that Howard suffered serious bodily injuries, as that term is defined in

Section 1.07(a)(46) of the Penal Code, and that the evidence was legally sufficient to establish that Bivins suffered bodily injuries as a result of the use of deadly weapon, to wit, the car driven by appellant. The Beaumont Court sustained appellant’s conviction for the Intoxication Assault of Howard and the Aggravated Assault of Bivins. See Fleming v. State, 987 S.W.2d 912, 914-19 (Tex.App.-Beaumont 1999).

The Beaumont Court also concluded, however, the evidence was not legally sufficient to establish that Bivins suffered serious bodily injuries, and reversed appellant’s conviction for the Intoxication Assault of Bivins. Id. We granted the State’s petition for discretionary review to determine whether the Beaumont Court erred in concluding that the State did not prove Bivins suffered serious bodily injuries.

After reviewing the petition and brief of the State, the relevant portions of the record, and the opinion of the Beaumont Court, and after hearing oral argument, we conclude that our decision to grant the State’s petition was improvident. Accordingly, we dismiss the State’s petition. See Tex.R.App. PROC. 69.3. McCORMICK, P.J., dissented with an opinion, in which MANSFIELD, KELLER, and KEASLER, J.J., joined.