
 










IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0718-06 & 0719-06


GREGORY LEE VILLANUEVA, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS

BURLESON COUNTY



 Price, J., delivered the opinion of the Court in which Meyers, Keasler, Hervey,
Holcomb and Cochran, JJ., joined.  Cocrhan, J., filed a concurring opinion.  Keller,
P.J., filed a dissenting opinion.  Womack and Johnson, JJ., concurred in the result. 

O P I N I O N


	In a single proceeding, the trial court authorized the jury in this cause to convict the
appellant for both injury to a child by act and injury to the same child by omission. (1)  We
granted the appellant's petitions for discretionary review to determine whether his conviction
and punishment for both of these offenses violated the protection of the Fifth Amendment to
the United States Constitution against being twice punished for the same offense in a single
criminal proceeding.  We recently held, in Jefferson v. State, (2) that the Legislature intended
that injury to a child by act and injury to a child by omission should be treated as a different
means of committing the same offense, rather than as discrete criminal offenses.  We now
hold similarly that, on the particular facts of this case, the appellant's second conviction and
punishment violates the Double Jeopardy Clause.
FACTS AND PROCEDURAL POSTURE
	In a two count indictment, the appellant was charged with intentionally or knowingly
causing serious bodily injury to his infant son by the acts of shaking him and striking him
against an unknown object, and with intentionally or knowingly causing serious bodily injury
to his infant son by omitting to seek medical attention for him once he had thus injured him,
having a legal duty to do so.  Both counts were submitted to the jury, which convicted the
appellant of both, and eventually assessed his punishment for each conviction at 50 years'
confinement in the penitentiary and a fine of $5,000.  As the following recitation of facts will
show, the identical serious bodily injury that the evidence circumstantially shows the appellant
committed by his actions also formed the basis for his conviction for failing to seek medical
attention when he had a duty to do so. (3)
	At the time of the offense, the appellant was living with his girlfriend, Amanda Legg,
and their two-month-old son, G.V., and with Legg's aunt and several other people in a single-wide trailer in Somerville.  In the late evening of July 29, 2003, Legg was bathing G.V. in the
bathtub.  After a while, she asked the appellant come take G.V. back to the bedroom that they
shared in the trailer while she finished her own bath.  Through the wall she heard "the bed frame
squeaking, really loud."  She got out of the bathtub to investigate and found G.V. awake and
responsive at the foot of the bed.  She dressed and went out to the kitchen, leaving G.V. alone
in the bedroom with the appellant for the next 30 to 45 minutes.
	Returning to the bedroom, Legg found G.V. "limp" and making "grunting" noises, and
noticed for the first time that he had "a bruise on his inner-right ear and down the right side of
his face and on the left side of his face."  Legg told the appellant "that [she] wanted to take
[G.V.] to the hospital because something wasn't right, and [the appellant] said if we took him
to the hospital that they would see the bruises and call in CPS and they would blame us for it." 
During the argument the appellant took G.V. from Legg, and as the appellant held G.V., G.V.
experienced an episode in which "he bowed his back and put his chest out."  G.V. had
experienced a similar seizure-like episode about a week earlier, and Legg had resolved to take
G.V. to the hospital if it should ever happen again.  She "panicked and . . . ran down the hallway
to go call for help[.]"  The appellant followed her, took her by the arm, and led her back to the
bedroom.  Legg decided to wait for the appellant to fall asleep and then seek help, but she fell
asleep before the appellant did.
	The next morning when they awoke, G.V. was running a high fever, and one of his eyes
"was off to the right and it wasn't moving."  Legg's aunt called the pediatrician, who advised
that they place G.V. in a bath at room temperature to reduce the fever, and then immediately
bring him to the clinic.  Legg and the appellant followed these directions, and G.V. was taken
first to the pediatrician's clinic, then to an emergency room in Brenham, and was finally life-flighted to the Children's Hospital in Austin.  He exhibited symptoms of shaken-baby
syndrome, including retinal hemorrhaging and intracranial bleeding, and six days later, on
August 5, 2003, he died.  The jury was authorized in separate application paragraphs of the jury
charge to convict the appellant of causing serious bodily injury to G.V., by act and by omission
respectively, and, in separate verdicts, it did so. 
	The appellant appealed both convictions.  On appeal he argued, inter alia, that his
punishment for serious bodily injury of his son under both counts of the indictment violated
double jeopardy.  The court of appeals rejected this contention.  First, the court of appeals
observed that it is possible for a criminal defendant to commit two violations of the same
statute against the same victim in a single day; under those circumstances, though the
indictments might appear identical, the proof would show that two separate offenses were
committed for jeopardy purposes. (4)  The court of appeals reasoned that, similarly, the appellant
had committed separate offenses because "the record contains evidence that appellant twice
committed injury to a child: first, by shaking [his son] with his hands or striking him with an
unknown object, and then, by failing to seek medical treatment for [his son] after he had
inflicted those injuries upon him." (5)  The court of appeals placed principal reliance upon our
opinion in Vick v. State (6) in holding that the appellant suffered no jeopardy violation.  On the
particular facts of this case, we will reverse.
ANALYSIS
	In Ex parte Kopecky, we observed:
		The Fifth Amendment double jeopardy clause protects against multiple
prosecutions for the "same offense" following acquittal or conviction.  It also
protects against multiple punishments for the "same offense."  See, e.g., Ex
parte Herron, 790 S.W.2d 623, at 624 (Tex.Cr.App. 1990).  The constitutional
meaning of "same offense" "may vary" depending upon which of these
protections is at issue.  See Whalen v. United States, 445 U.S. 684, at 700, 100
S.Ct. 1432, at 1442, 63 L.Ed.2d 715, at 729 (1980) (Rehnquist, dissenting).  At
any rate, applicant here pled guilty to both offenses in a single proceeding.  We
are therefore not concerned with issues of multiple prosecutions for the "same
offense." (7)

The same is true in the instant case.  Because the appellant received two punishments in the
course of a single proceeding, we are only concerned with the meaning of "same offense" in
that context.
	In that context, the classical test for determining sameness embodied in the United
States Supreme Court's opinion in Blockburger v. United States (8) operates only as a rule of
statutory construction, a mechanism for determining legislative intent.  Application of
Blockburger does not serve, however, to negate otherwise clearly expressed legislative intent. 
As we made clear in Ex parte Kopecky, "[t]he Blockburger test does not operate . . . to trump
'clearly expressed legislative intent.'" (9) And as we further clarified in Ervin v. State, "the
Blockburger test cannot authorize two punishments where the legislature clearly intended only
one." (10)  The ultimate inquiry is simply whether the Legislature intended that the defendant
suffer more than one punishment. (11)
	In Jefferson v. State, we addressed the identical penal code provision involved in this
case, inquiring about the legislative intent with respect to the issue of jury unanimity.  Relying
principally upon the United States Supreme Court's opinion in Richardson v. United States, (12)
we specifically held that the Legislature intended that the alternative ways of committing injury
to a child, viz: by act or by omission, constitute alternative means of committing the same
offense, not elements of two separate offenses.  For this reason we held that the jury need not
be unanimous as to which alternative means of committing the offense the defendant was guilty
in order to attain unanimity for Sixth Amendment purposes.  We doubt that the Legislature
would have meant for us to construe the "act or omission" alternative of Section 22.04(a) of
the Penal Code as merely alternative means of committing the same offense for jury-unanimity
purposes, but as full-blown separate offenses, authorizing multiple punishments, for purposes
of double-jeopardy analysis.
	Like the court of appeals, the State relies upon our opinion in Vick v. State to argue that
the Legislature did intend to carve out separate offenses.  In Vick we were called upon to
decide whether the Legislature intended to allow more than one prosecution from separate
instances of aggravated sexual assault of a child, all defined in the same penal statute and all
committed during the same criminal transaction. (13)  We held that the legislative intent was to
permit more than one prosecution, emphasizing, inter alia, that Section 22.021 of the Penal
Code "is a conduct-oriented offense in which the legislature criminalized very specific
conduct of several different types." (14)  The State argues that Section 22.04(a) defines a
similarly "conduct-oriented" offense.  But we expressly said otherwise in Jefferson, observing
instead that our case law "supports a decision that the essential element or focus of the statute
is the result of the defendant's conduct (in this case, serious bodily injury to a child) and not
the possible combinations of conduct that cause the result." (15)
	In Ervin, we promulgated a list of considerations relevant to the determination of
legislative intent in the multiple punishments context. (16)  Each factor we listed cuts in favor of
a conclusion that the Legislature intended that injury to a child by act or omission constitutes
the "same" offense for jeopardy purposes.  Both act and omission are contained within the
same penal section-indeed, the same penal subsection.  They are phrased in the alternative. 
The offense is called the same, whether committed by act or omission, and the punishment
range is essentially identical. (17)  As we explained in Jefferson, the "gravamen" of the offense
is the same; the statute focuses on the result caused, without criminalizing any particularized
conduct by which that result may have been caused.  Moreover, the statute employs a kind of
"imputed theory of liability," in the sense that it makes an offender equally criminally liable
whether he actually engaged in the conduct that caused the result, or alternatively, failed to take
measures to avert that result, even if he was not the actor or agent  initially responsible for
inflicting the injury.  Taken together, and in combination with our holding in Jefferson, these
factors convince us that the Legislature intended that serious bodily injury committed against
the same victim at the same time should be considered the same offense for purposes of the
double-jeopardy prohibition against multiple punishments regardless of whether that injury to
that victim resulted from the actor's act, his omission, or by a combination of his act and
omission.
	On the facts of the instant case, the appellant prevented Legg from taking G.V. to the
hospital right after he apparently engaged in the conduct that caused the injury.  But by the next
morning, when G.V.'s condition had obviously worsened, the appellant did nothing to prevent
Legg from taking G.V. in for treatment-indeed, he accompanied them.  In finding no double-jeopardy violation on these facts, the court of appeals also relied upon this Court's opinion in
Luna v. State, (18) in which we held it permissible to convict a defendant for two violations of the
same statutory provision on the same day, so long as the State can prove that two separate and
discrete incidents occurred on that day comprising two violations of the same statutorily
defined offense.  Had the appellant continued to prevent Legg from taking G.V. to the hospital
on the morning of July 30th, when G.V.'s condition was obviously deteriorating and it was
apparent that he might suffer further serious bodily injury absent medical intervention, we think
that the principle in Luna could well apply.  Under those hypothetical circumstances, it could
reasonably be said that the failure to seek treatment for G.V.'s apparent injuries resulted in a
separate and discrete, or at least incrementally greater, injury for which the appellant could
also be held criminally accountable without violating double jeopardy.  But here we can point
to no omission that caused any injury beyond that which the appellant had caused by his act. 
Consistent with our holding in Jefferson and application of the Ervin analysis for determining
legislative intent, we hold that, on the particular facts of this case, the appellant cannot be
punished for both his act and his omission.  The act and omission were simply two means of
alleging and/or proving the same offense for double-jeopardy purposes.
DISPOSITION
	We hold that punishing the appellant in the same proceeding for injury to a child by act
and injury to a child by omission violated his double-jeopardy protection.  The remedy is to
retain the "most serious" offense-that is to say, the offense for which the sentencing entity
assessed the highest punishment-and set aside the other. (19)  In the instant case, the jury assessed
an identical term of years and fine for each conviction.  No restitution was assessed for either
conviction.  However, the trial court entered an affirmative finding of use of a deadly weapon
in the judgment of conviction for injury to a child by act, but not for the judgment of
conviction for injury to a child by omission.  Under these circumstances, we hold that the
conviction for injury to a child by omission should be vacated.
	Accordingly, in our cause number PD-718-06, we affirm the judgment of the court of
appeals in its cause number 01-04-01070-CR, which affirmed the trial court's judgment of
conviction for injury to a child by act.  However, in our cause number PD-719-06, we reverse
the judgment of the court of appeals in its cause number 01-04-01072-CR, which affirmed the
trial court's judgment for injury to a child by omission.  We remand the cause to the court of
appeals with instructions to vacate the judgment of conviction for injury to a child by omission.
Delivered:	June 27, 2007
Publish
1. 	 See Tex. Penal Code §22.04(a)(1) ("A person commits an offense if he intentionally, knowingly,
recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes
to a child . . . serious bodily injury[.]").
2. 	 189 S.W.3d 305 (Tex. Crim. App. 2006).
3. 	 A detailed recitation of the facts may be found in the court of appeals's opinion.  Villareal v.
State, 194 S.W.3d 146, 150-51 (Tex. App.--Houston [1st] 2006).
4. 	 194 S.W.3d at 151-52.  For this proposition the court of appeals relied upon Luna v. State, 493
S.W.2d 854, 855 (Tex. Crim. App. 1973).
5. 	 Id. at 152.
6. 	 991 S.W.2d 830 (Tex. Crim. App. 1999).
7. 	 821 S.W.2d 957, 958 (Tex. Crim. App. 1992).
8. 	 284 U.S. 299 (1932).
9. 	 821 S.W.2d at 959, citing Missouri v. Hunter, 459 U.S. 359, 368 (1983).  See also Garza v.
State, 213 S.W.3d 338, 351-52 (Tex. Crim. App. 2007).
10. 	 991 S.W.2d 804, 807 (Tex. Crim. App. 1999).
11. 	 Id. at 814.
12. 	 526 U.S. 813 (1999).
13. 	 991 S.W.2d at 832.
14. 	 Id.
15. 	 189 S.W.3d at 312.
16. 	 991 S.W.2d at 814.
17. 	 See Tex. Penal Code § 22.04(e), (f) & (g).  Serious bodily injury to a child, whether by act or
omission, is a first degree felony if committed intentionally or knowingly, and a second degree felony if
committed recklessly.  The only difference is that it is not an offense at all to commit injury to a child by
omission with criminal negligence, while criminally negligent injury to a child by act is defined as a state jail
felony.
18. 	 493 S.W.2d 854, 855 (Tex. Crim. App. 1973).
19. 	 Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006).
