                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00285-CR

RONALD WAYNE JACKSON, JR.,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2011-1626-C2


                            DISSENTING OPINION


      If a parent punishes a child so severely that flesh is removed from the child’s

buttocks, causing open oozing wounds, and also in the course of punishing the child

strikes the child with enough force to break bones in the child’s hands and then keeps

the child at home for the next four days, the first and last of which are school days,

withholding medical treatment while the child is obviously in pain and the use of his

hand is substantially impaired, has the parent committed one crime of injury to a child,

or two? The appellant, the State, and the Court find only one. I believe there are two.
        I am not unmindful of the case the appellant, the State, and the Court reply upon.

See Jefferson v. State, 189 S.W.3d 305 (Tex. Crim. App. 2006). Nor am I unmindful of the

more recent case of Villanueva, or a long line of cases that have held that injury to a child

is a result oriented crime. See Villanueva v. State, 227 S.W.3d 744 (Tex. Crim. App. 2007).

        But what strikes me in this case, as hard as Jackson struck his son, is that at least

as charged and tried in this case, there were two results sufficiently distinct to charge

and prosecute as separate violations of the same penal code provision – the violation of

the same statute but not with the same result; therefore, two separate crimes. This case

presents the narrow hypothetical as recognized and discussed in Villanueva. Id. at 748-

749. At the very least, the evidence of the impaired use of his hand and the untreated

pain over the four day time period before school personnel intervened on the fifth day

negates the conclusion that the double jeopardy violation was apparent on the face of

the record and, thus, did not require preservation. See Ramirez v. State, 36 S.W.3d 660

(Tex. App.—Waco 2001, pet. ref’d). Had there been an objection and it was decided at

the trial level that there would be a double jeopardy violation, a distinct possibility

since the State now attempts to concede error, there would have been a single count

presented to the jury with alternative manner and means upon which unanimity would

not have been required. Thus, if this is a double jeopardy violation, I do not believe it is

immune to the preservation requirement. See id.




Jackson v. State                                                                       Page 2
        And if I am wrong on the double jeopardy question, I note that all that is

necessary for the disposition of this proceeding is section III of the Court’s opinion and

there is no need to discuss anything with regard to Count I. Thus, the entire discussion

and analysis in section II of the opinion is unnecessary dicta. Indeed, even the factual

background is largely irrelevant.

                                             CONCLUSION

        In summary, I understand that Count II was not argued as distinctly as it might

have been, but, nevertheless, I believe the injuries inflicted by omission by failing to

seek medical attention are sufficiently distinct so as to make Jackson’s conduct after

initially inflicting the injuries a separate and distinct violation of the same provision of

the penal code – injury to a child. Accordingly, I respectfully dissent to the Court’s

judgment acquitting Jackson of Count I – injury to a child.1




                                                TOM GRAY
                                                Chief Justice

Dissenting opinion delivered and filed on February 14, 2013




1
 I also note the judgment erroneously recites that the defendant pled guilty and would reform it to recite
that Jackson pled NOT guilty.

Jackson v. State                                                                                   Page 3
