                                                                             PD-1126-15
                       PD-1126-15                          COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                           Transmitted 8/28/2015 8:52:35 PM
                                                             Accepted 9/1/2015 10:31:07 AM
                                                                             ABEL ACOSTA
                       NO. __________________                                        CLERK




                              TO THE

COURT OF CRIMINAL APPEALS
                            OF TEXAS

                           ***************

      BRENT ALLEN BENEFIELD
                                             Petitioner,
                                 v.

           THE STATE OF TEXAS
                                             Respondent.
                           ***************
 PETITION FOR DISCRETIONARY REVIEW IN CAUSE NUMBER
   02-14-00099-CR FROM THE SECOND COURT OF APPEALS
         AND IN CAUSE NUMBER 53,721-C FROM THE
         30th DISTRICT COURT OF WICHITA COUNTY
                           ***************

PETITION FOR DISCRETIONARY REVIEW
                           ***************

                                             John Bennett
                                             Post Office Box 19144
                                             Amarillo, TX 79114
                                             Telephone: (806) 282-4455
   September 1, 2015
                                             Fax: (806) 398-1988
                                             AppealsAttorney@gmail.com
                                             State Bar No. 00785691
                                             Attorney for the Petitioner

     THE PETITIONER REQUESTS ORAL ARGUMENT
       IDENTITY OF JUDGE, PARTIES AND COUNSEL

Trial Court Judge

Hon. Robert P. Brotherton

Appellant

Brent Allen Benefield

      Trial Counsel:        Jim Rasmussen (State Bar No. 16554300)
                            Wichita County Public Defender
                            Brennon Brady (State Bar No. 24038120)
                            Assistant Public Defender
                            600 Scott Avenue, Suite 204
                            Wichita Falls, Texas 76301-2531
                            Telephone: (940) 766-8199

      Appellate Counsel:    John Bennett (State Bar No. 00785691)
                            P.O. Box 19144
                            Amarillo, Texas 79114
                            Telephone: (806) 282-4455

Appellee

The State of Texas

      Trial Counsel:        John Gillespie (State Bar No. 24010053)
                            Grace Pandithurai (State Bar No. 24074849)
                            Wichita County Assistant District Attorneys
                            900 7th Street
                            Wichita Falls, Texas 76301
                            Telephone: (940) 766-8113

      Appellate Counsel:    John Brasher (State Bar No. 02907800)
                            Wichita County Assistant District Attorney
                            900 7th Street
                            Wichita Falls, Texas 76301
                            Telephone: (940) 766-8113


                                  2
                                     TABLE OF CONTENTS
Identity of Judge, Parties and Counsel..................................................................2

Index of Authorities ..............................................................................................4

Statement Regarding Oral Argument ...................................................................6

Statement of the Case............................................................................................6

Statement of Procedural History ...........................................................................6

Ground for Review ...............................................................................................7


               May proof under TEX. PEN. CODE § 6.02(e) consist of
         evidence that the jury did not believe?


Argument ..............................................................................................................7

Prayer for Relief ....................................................................................................9

Certificate of Compliance ...................................................................................10

Certificate of Service ..........................................................................................10

Court of Appeals’ Initial Opinion ............................................. following page 10

Court of Appeals’ Later Opinion ................................... following Initial Opinion




                                                           3
                              INDEX OF AUTHORITIES

Cases

Wasylina v. State, 275 S.W.3d 908 (Tex.Crim.App. 2009).............................. 7-8

Wasylina v. State, 2007 WL 677778 (Tex.App. – Tyler,

        March 7, 2007) (not designated for publication) ........................................7


Statutory Provision

TEX. PEN CODE § 6.02(e) ...............................................................................7,9




                                                    4
                         NO. __________________


                                  TO THE

COURT OF CRIMINAL APPEALS
                                OF TEXAS

                              ***************

           BRENT ALLEN BENEFIELD
                                                 Petitioner,
                                      v.

                THE STATE OF TEXAS
                                                 Respondent.
                              ***************
    PETITION FOR DISCRETIONARY REVIEW IN CAUSE NUMBER
      02-14-00099-CR FROM THE SECOND COURT OF APPEALS
            AND IN CAUSE NUMBER 53,721-C FROM THE
            30th DISTRICT COURT OF WICHITA COUNTY
                              ***************

PETITION FOR DISCRETIONARY REVIEW
                              ***************




To the Honorable Judges of the Court of Criminal Appeals:

      COMES NOW Brent Allen Benefield, petitioner in the above cause, and

submits this petition in support of his request for his appeal’s remand to the

Second Court of Appeals for new analysis.


                                      5
         STATEMENT REGARDING ORAL ARGUMENT

      Because the petitioner’s claim involves the proper review of a

constitutional issue, the petitioner requests oral argument.



                      STATEMENT OF THE CASE

      The petitioner pled not guilty to charges of injury to a child with serious

bodily injury and of continuous violence against the family. A jury convicted

him of both, but although the indictment accused the petitioner of knowing

injury to a child, the verdict was of reckless injury to a child. The jury then

returned sentencing verdicts of ten and five years’ imprisonment, respectively,

which the trial court imposed.



            STATEMENT OF PROCEDURAL HISTORY

      The court of appeals affirmed the convictions and sentences on February

26, 2015. (Court of Appeals’ Initial Opinion, attached). The petitioner filed a

motion for rehearing on March 7, 2015. And on July 30, 2015, the court of

appeals denied rehearing but withdrew its earlier opinion and issued another.

(Court of Appeals’ Later Opinion, also attached).




                                         6
                        GROUND FOR REVIEW

      May proof under TEX. PEN. CODE § 6.02(e) consist of evidence the

jury did not believe?



                               ARGUMENT

      In Wasylina v. State, 275 S.W.3d 908 (Tex.Crim.App. 2009), a

manslaughter case, the jury charge included the lesser-included criminally

negligent homicide. The verdict was criminally negligent homicide. Id. at 909.

But finding no record evidence to prompt “a rational jury to find that Appellant

is guilty of criminally negligent homicide, but not guilty of manslaughter,” the

court of appeals ordered an acquittal. Wasylina v. State, 2007 WL 677778

(Tex.App. – Tyler, March 7, 2007) (not designated for publication).

      A majority of this Court reversed, holding that “proving the greater

culpable mental state … necessarily proves the lesser culpable mental state …”

Wasylina, 275 S.W.3d at 909-10; TEX. PEN CODE § 6.02(e). But three judges

dissented, stating § 6.02(e) does not apply where the verdict shows the jury did

not believe the evidence of the greater culpable mental state: “the State did not

prove the greater culpable mental state … which is why the jury acquitted

Appellant of manslaughter.” Wasylina, 275 S.W.3d at 914 (emphasis added).




                                       7
      Here only the conviction for reckless injury to a child is at issue. The trial

court charged the jury both on knowing injury to a child, as the indictment

accused, and on the lesser-included offense of reckless injury to a child. At

closing argument the State requested conviction for “a knowing crime,” telling

the jury that “There is really not any evidence that it's reckless.” (RR, v. 20, p.

69) (emphasis added). But the jury returned a verdict of reckless injury to a

child. Its appellate brief similarly pointed only to a knowing offense.

      In response to the petitioner’s claim that insufficient evidence was

presented of recklessness, the court of appeals’ initial opinion applied the

Wasylina majority’s opinion:

      in our sufficiency review, we can consider the same evidence that [the
      petitioner] acted knowingly in determining whether the evidence is
      sufficient to show that he acted recklessly. See Tex. Penal Code Ann. §
      6.02 (West 2011) (stating that proof of a higher degree of culpability
      than that charged constitutes proof of the culpability charged); Wasylina
      v. State, 275 S.W.3d 908, 910 & n.14 (Tex. Crim. App. 2009) (holding
      that jury could properly convict defendant of criminally negligent
      homicide even though the State had charged manslaughter and proved a
      “reckless” culpability)…

(Initial Opinion, attached, p. 9). The court of appeals’ later opinion did not refer

to Wasylina but used its principle, that rejected evidence of a knowing offense

still suffices to proves recklessness. (Later Opinion, also attached, p. 13-14).

As the Wasylina dissent noted, such a conclusion does not address the fact that

the jury placed no credence in such evidence of a knowing mental state.



                                         8
      “Proof of a higher degree of culpability than that charged” unquestionably

“constitutes proof of the culpability charged” under § 6.02(e) (emphasis added).

This entails that if a defendant is charged merely with simple robbery but the

jury believes the evidence establishes aggravated robbery, then simple robbery

is clearly proven.

      But § 6.02(e) cannot render evidence legally sufficient where the greater

degree of culpability is not proven. Where the verdict reflects that jury put no

stock in the evidence of the greater culpable mental state, then evidence of the

higher offense is not proof, and § 6.02(e) does not come into play.



                           PRAYER FOR RELIEF

      The petitioner prays the Court grant discretionary review and remand the

case to the court of appeals for new analysis, or grant all appropriate relief.

                                              Respectfully submitted,

                                              /s/ JOHN BENNETT
                                              John Bennett
                                              Post Office Box 19144
                                              Amarillo, TX 79114
                                              Telephone: (806) 282-4455
                                              Fax: (806) 398-1988
                                              AppealsAttorney@gmail.com
                                              State Bar No. 00785691
                                              Attorney for the Petitioner




                                          9
                  CERTIFICATE OF COMPLIANCE

      I certify that this entire PDR contains 1,188 words.

                                            /s/ JOHN BENNETT
                                            John Bennett




                     CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the above and foregoing PDR has

been served by prepaid U.S. Mail, first class delivery prepaid, on John Gillespie,

Esq., and John Brasher, Esq., Assistant Criminal District Attorneys for Wichita

County, by United States Mail, first class delivery prepaid, to them at 900

Seventh Street, Wichita Falls, Texas 76310, and by email to them at

john.brasher@co.wichita.tx.us, and on Lisa McMinn, Esq., State Prosecuting

Attorney, by United States Mail, first class delivery prepaid, to her at P.O. Box

13046, Austin, Texas 78711, and by email to her at lisa.mcminn@spa.texas.gov,

all on August 28, 2015.

                                            /s/ JOHN BENNETT
                                            John Bennett


                                       10
COURT OF APPEALS’
 INITIAL OPINION
                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-14-00099-CR


BRENT ALLEN BENEFIELD                                              APPELLANT

                                      V.

THE STATE OF TEXAS                                                       STATE




         FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
                     TRIAL COURT NO. 53,721-A



                                  OPINION



                               I. INTRODUCTION
     A jury convicted Appellant Brent Allen Benefield of one count of injury to a

child by recklessly causing serious bodily injury and one count of continuous

violence against the family and found the deadly weapon allegation for both

counts to be true. See Tex. Penal Code Ann. §§ 22.04, 25.11 (West 2011 &

Supp. 2014). The jury assessed his punishment at ten years' confinement on
count one and five years' confinement on count two. The trial court sentenced

him accordingly, ordering that the sentences run concurrently. In three issues,

Benefield argues that the evidence is insufficient to show that he recklessly

committed injury to a child, that his convictions violate double jeopardy, and that

he is entitled to further jail-time credit toward his sentence for the continuous-

violence-against-the-family conviction. We will affirm.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

       Benefield and Sally had a son, Lane, together in 2009.1 Sally and Lane

lived with her parents after Lane's birth, but Sally and Benefield eventually

married and moved into a house together with Lane in 2010. Sally became

pregnant with their second child, Lee, in January 2011. When she was three

months pregnant with Lee, Benefield began assaulting Sally. He choked her

multiple times; in one incident when she was four months pregnant, Benefield

choked her and hit her, giving her a black eye. The assault caused her to have

contractions and start bleeding, so she went to the emergency room to make

sure that her baby had not been harmed.

      When she was six months pregnant, Benefield pushed Sally face down on

the bed after she confronted him about not having a job and about the high

electricity bill. Sally told their couples' counselor, who advised Sally to make a

       1To protect the anonymity of the children in this case, we will use aliases to
refer to all individuals named herein with the exception of the appellant. See
Tex. R. App. P. 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex.
Grim. App. [Panel Op.] 1982).
safety plan and contact a battered woman's shelter. Benefield admitted to the

counselor that he had hurt Sally.       During another joint counseling session,

Benefield became angry at Sally and yelled at her; the counselor asked him to

leave until he could act better, and Benefield did not return.

      Lee was born in October 2011.* After taking one week off, Sally resumed

college classes for her teaching degree, and Benefield took care of Lane and Lee

while Sally was gone. At Lee's one-month check-up, the pediatrician discovered

that Lee had an unexplained spiral fracture to one of his arm bones; the

pediatrician opined that "probably somebody picked him up by his arm or twisted

his arm in some way." At his two-month check-up, Sally reported that Lee had

some bruises on his ankles, and his pediatrician noted two small bruises on

Lee's wrists as well. The pediatrician tested Lee's blood for blood disorders that

could cause him to bruise easily, and the results came back normal. In January

2012, Sally began student teaching; Benefield stayed home with Lane and Lee

while Sally was at school from 7:50 a.m. until 3:00 p.m. during the week.

      On February 8, 2012, when Lee was four months old, Sally woke up late

for school at 7:30. Lee was awake, cooing and babbling, when Sally got up.

Sally woke Benefield before leaving for school and was at school at 8:00 a.m.

She received a call around lunchtime informing her that Lee had been taken to

the emergency room.

      2Lee's birth was normal; he had some trouble breathing after birth but did
not require any oxygen, and the issue quickly resolved.
      Benefield talked to the police at the hospital and again the following day.

He said that after Sally woke him, he got up, changed Lee's diaper, and made

him a bottle.   Lee drank four ounces, which was a normal amount for him.

Benefield turned on a movie for Lane, and Lee followed the movie with his eyes

and was "pretty alert." Around 11:00 a.m., Lee began fussing, so Benefield put

him down for a nap. At 11:13 a.m., a friend called Benefield, and the two talked

for approximately twenty minutes; Benefield never mentioned to the friend

anything unusual about Lee. Around 11:45, Lee started crying, so Benefield

changed his diaper. Lee squirmed around and kicked his legs during the diaper

change but suddenly went limp. Benefield called 911. He told the 911 operator

that he had observed "nothing out of the ordinary, nothing unusual" with Lee that

morning. He said that Lee had been unresponsive for two minutes.

      Lee was resuscitated at the Wichita Falls hospital and then transported by

Care Flight to Cook Children's Hospital in Fort Worth. He presented with an

acute, or new, subdural hematoma and a prior subdural hematoma; retinal

hemorrhages; an acute rib fracture and two healing rib fractures; ligamentous

neck injuries, or injuries to the tissues and ligaments in his spine; corner fractures

on the bottom of both his left and right femur bones and on the top of both his left

and right humerus bones; and a torn frenulum, which was a recent injury with no

signs of healing. Based on the constellation of Lee's injuries, doctors determined

that Lee was a "severely battered baby" and diagnosed him with abusive, or non-

accidental, head trauma. Lee died in the hospital four days later. Doctors at
Cook Children's Hospital determined that the cause of Lee's death was a severe

brain injury, causing him to be "neurologically devastated." Doctors opined that

the acute subdural hematoma and retinal hemorrhaging was caused by shaking

Lee or by shaking with impact, that the ligamentous neck injuries and the

fractures to his leg and arm bones resulted from shaking Lee, that the acute rib

fracture could have been caused by grabbing Lee or from the resuscitation

efforts, and that the torn frenulum was caused by blunt impact to Lee's mouth

from an object (likely a pacifier or a bottle) being pushed under his lip.3

      The State charged Benefield with one count of injury to a child and one

count of continuous family violence.       The injury-to-a-child count alleged that

Benefield knowingly or recklessly caused serious bodily injury to Lee "by causing

blunt trauma to the head and/or brain of [Lee], to wit: by shaking [Lee] with his

hands and/or by striking [Lee] with or against a hard or soft object or surface."

The continuous-family-violence count alleged six acts of assault against Sally

based on his hitting her and choking her on six different occasions while she was

pregnant with Lee and alleged one act of assault against Lee based on Lee's

torn frenulum.




      3One  of Lee's treating doctors testified that the corner fractures to his arms
and legs were symmetrical, which could have been caused by shaking Lee such
that his arms and legs flailed at the same time.
                           III. SUFFICIENCY OF THE EVIDENCE

          In his first issue, Benefield argues that the evidence is insufficient to

support his conviction for injury to a child by recklessly causing serious bodily

injury.

          In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.Sd 166, 170

(Tex. Grim. App. 2014). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.Sd at 170.

          The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434

S.W.Sd at 170. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfmder. Isassi v. State, 330 S.W.Sd 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.Sd 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.Sd 341, 360 (Tex. Crim. App.
2013). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Dobbs, 434 S.W.Sd at 170.

         The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor. Dobbs, 434 S.W.Sd at 170; Hooper v. State, 214 S.W.Sd 9,

13 (Tex. Grim. App. 2007).

         A person commits an offense if the person intentionally, knowingly, or

recklessly causes serious bodily injury to a child.       Tex. Penal Code Ann.

§22.04(a).      When the conduct is committed intentionally or knowingly, the

offense is a first degree felony; when the conduct is committed recklessly, it is a

second-degree felony.      Id. § 22.04(e).   Injury to a child is a result-oriented

offense requiring a mental state that relates not to the specific conduct but to the

result of that conduct. Williams v. State, 235 S.W.Sd 742, 750 (Tex. Grim. App.

2007).

         A person acts recklessly, or is reckless, with respect to a result of his

conduct when he is aware of but consciously disregards a substantial and

unjustifiable risk that the result will occur. Tex. Penal Code Ann. § 6.03(c) (West

2011).     The risk must be of such a nature and degree that its disregard

constitutes a gross deviation from the standard of care that an ordinary person

would exercise under all the circumstances as viewed from the actor's

standpoint. Id.
      Here, viewing the evidence in the light most favorable to the verdict, the

evidence showed the following. Lee acted normally on the morning of February

8, 2012, from the time that Sally awoke at 7:30 a.m. until Benefield called 911

around 12:08 p.m. Benefield told the 911 operator on the phone and later told

the police that Lee had been acting normally all morning until he suddenly "went

limp" during a diaper change.

      At the hospital, Lee presented with multiple injuries evidencing that he was

a severely beaten baby.         Specifically regarding the head injuries that Lee

presented with on February 8, 2012, Dr. Jayme Coffman, the medical director of

the child abuse program at Cook Children's Hospital, testified that Lee would

have been in a serious state of distress that would have been "immediately

apparent" to a caretaker right after sustaining those head injuries.      Pediatric

radiologist Dr. Hayden Head testified that Lee's brain injuries were caused from

shaking or shaking with impact. He explained that a four-month-old baby with

Lee's brain injuries would be incapable of appearing normal for any period of

time after the brain injury was inflicted; the baby would be unable to drink four

ounces of milk or follow the lights on a TV with his eyes after sustaining that

injury. Although some of Lee's injuries could not be dated or occurred weeks

prior to the day that Benefield called 911,4 the doctors all agreed that the severe



       4For example, Dr. Head testified that the prior subdural hemorrhage in
Lee's head could have occurred two to three weeks earlier, that the rib fractures
that showed signs of healing could have occurred three to four weeks earlier, and

                                          8
brain injury that ultimately led to Lee's death must have occurred that morning

immediately prior to Benefield calling 911.

       Benefield argues on appeal that the State failed to introduce any evidence

that he acted recklessly and instead introduced evidence that either he acted

intentionally or knowingly (by shaking or by shaking with impact) or that Lee's

injuries stemmed from an internal cause for which no one was responsible. But

in our sufficiency review, we can consider the same evidence that Benefield

acted knowingly in determining whether the evidence is sufficient to show that he

acted recklessly. See Tex. Penal Code Ann. § 6.02 (West 2011) (stating that

proof of a higher degree of culpability than that charged constitutes proof of the

culpability charged); Wasylina v. State, 275 S.W.Sd 908, 910 & n.14 (Tex. Grim.

App. 2009) (holding that jury could properly convict defendant of criminally

negligent homicide even though the State had charged manslaughter and proved

a "reckless" culpability); Ledet v. State, No. 02-10-00281-CR, 2013 WL 1830801,

at *1 (Tex. App.—Fort Worth May 2, 2013, pet. refd) (mem. op., not designated

for publication) ("[BJecause sexual assault is a lesser-included offense of

aggravated sexual assault, if the complainant's testimony was sufficient to

support the greater offense, her testimony necessarily also proved the lesser

offense.").



that the corner fractures to Lee's arms could have occurred two to three weeks
earlier.
      Based on the evidence that Lee acted normally on the morning of the

incident, that Benefield was his sole caretaker from approximately 8:00 a.m. until

he called 911 at 12:08 p.m., that Lee's extensive brain injuries would have been

immediately apparent once sustained, and that Lee's injuries were consistent

with and indicative of abusive head trauma, we hold that a rational trier of fact

could have found beyond a reasonable doubt that Benefield, by causing blunt

force trauma to Lee's head (by shaking Lee or by striking him with or against a

hard or soft object or surface), was aware of but consciously disregarded a

substantial and unjustifiable risk that Lee would suffer serious bodily injury. See

Tex. Penal Code Ann. § 6.03(c). That is, sufficient evidence exists in the record

that Benefield acted recklessly in causing serious bodily injury to Lee.5 We

overrule Benefield's first issue.

                               IV. DOUBLE JEOPARDY

      In his third issue, Benefield argues that his convictions for continuous

violence against the family and injury to a child violate double jeopardy because


       5Benefield points to the State's closing argument in support of his claim of
insufficient evidence of recklessness. The State argued, "[l]t's a knowing crime,
and I would ask each and every one of you to convict him of a knowing crime.
There is really not any evidence that it's reckless. There's no evidence that. . .
there was some sort of a risk that he perceived and proceeded anyway." But
arguments are not evidence. See Woods v. State, 301 S.W.Sd 327, 332, n.1
(Tex. App.—Houston [14th Dist] 2009, no pet.). And even if all of the evidence
pointed to a knowing culpable mental state, as we stated above, we can consider
such evidence in our sufficiency review of evidence that Benefield acted
recklessly. See Tex. Penal Code Ann. § 6.02; Wasylina, 275 S.W.Sd at 910.



                                        10
at least some of the conduct of the injury to a child offense is the same as an

element of the continuous violence offense.

      The Double Jeopardy Clause of the United States Constitution provides

that no person shall be subjected to twice having life or limb in jeopardy for the

same offense. U.S. Const, amend. V. Generally, this clause protects against

(1) a second prosecution for the same offense after acquittal, (2) a second

prosecution for the same offense after conviction, and (3) multiple punishments

for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225

(1977); Exparte Cavazos, 203 S.W.Sd 333, 336 (Tex. Crim. App. 2006).

      A potential double jeopardy violation may be forfeited by the defendant's

failure to assert it in the trial court. Langs v. State, 183 S.W.Sd 680, 686-87

(Tex. Crim. App. 2006). But a double jeopardy claim may be raised for the first

time on appeal "when the undisputed facts show the double jeopardy violation is

clearly apparent on the face of the record and when enforcement of usual rules

of procedural default serves no legitimate state interests." Gonzalez v. State, 8

S.W.Sd 640, 643 (Tex. Crim. App. 2000) (footnotes omitted).

      Here, Benefield did not raise his double jeopardy claim in the trial court.

Thus, the alleged double jeopardy violation must be clearly apparent from the

face of the record. See Langs, 183 S.W.Sd at 686-87. Benefield argues that, in

convicting him of continuous violence against the family, the jury could have

relied upon the same conduct that it relied upon in convicting him of injury to a

child because, in addition to multiple allegations of assault against Sally, the

                                       11
continuous-violence-against-the-family indictment also alleged an assault against

Lee based on the torn frenulum injury.6 But the jury returned a general verdict,

and we do not know what acts it relied upon in convicting Benefield of continuous

violence against the family. The six acts of violence against Sally and the one

act against Lee were submitted to the jury disjunctively, and the jury had to find

that Benefield committed at least two of the seven acts to convict him of

continuous violence against the family. See Tex. Penal Code Ann. § 25.11 ("A

person commits an offense if, during a period that is 12 months or less in

duration, the person two or more times engages in conduct that constitutes an

[assault against a family member]."). Because the jury could have relied on two

or more of the alleged acts of violence against Sally in convicting him of

continuous violence against the family, Benefield's double jeopoardy claim is not

clear from the face of the record. See Langs, 183 S.W.Sd at 686-87; Gonzalez,

8 S.W.Sd at 643.

      Benefield argues that the continuous-violence-against-the-family statute

imposes a double jeopardy bar that applies here to "trumpQ" the general raise-or-

waive principle set forth above. Section 25.11 provides,




      Specifically, the continuous-family-violence indictment alleged that
Benefield intentionally or recklessly caused bodily injury to Lee "by causing
[Lee's] frenulum to tear, by striking [Lee's] mouth with a bottle and/or
[Benefield's] hand, and/or by striking [Lee's] mouth with or against a hard or soft
object or surface and/or by manner and means unknown."


                                        12
            A defendant may not be convicted in the same criminal action
      of another offense the victim of which is an alleged victim of the
      offense under Subsection (a) and an element of which is any
      conduct that is alleged as an element of the offense under
      Subsection (a) unless the other offense:

             (1) is charged in the alternative;

            (2) occurred outside the period in which the offense alleged
      under Subsection (a) was committed; or

            (3) is considered by the trier of fact to be a lesser included
      offense of the offense alleged under Subsection (a).

Tex. Penal Code Ann. § 25.11(c). As applied here, Benefield argues that an

element of the injury-to-a-child offense ("striking [Lee] with or against a hard or

soft object or surface") was alleged as an element of the continuous-violence-

against-the-family offense ("striking [Lee's] mouth with or against a hard or soft

object or surface"). But even if Benefield is correct that an objection is not

required to raise a double jeopardy complaint based on section 25.11, the

allegation of assault against Lee in the continuous-violence-against-the-family

offense was the act causing injury to Lee's mouth—the frenulum tear—whereas

the allegation of assault against Lee in the injury-to-a-child count was the act

causing blunt trauma to Lee's head or brain, specifically by shaking him or by

striking him with or against an object or surface. As Dr. Coffman opined, the

injury to Lee's mouth—the frenulum tear—was caused by blunt impact to his

mouth, likely from a pacifier or a bottle being pushed under his lip. Dr. Coffman

explained that the action that caused Lee's injury to his mouth was separate and

distinct from that which caused his brain injury. Thus, the conduct alleged in the

                                         13
injury-to-a-child offense was not the same conduct alleged as part of the

continuous-violence-against-the-family offense.    See Tex. Penal Code Ann. §

25.11(c). Benefield's convictions for distinct offenses based on different conduct

do not present the double jeopardy situation prohibited under penal code section

25.11. See id.; see also Vick v. State, 991 S.W.2d 830, 833 (Tex. Grim. App.

1999) (explaining that the court's determination that violations of separate and

distinct statutory aggravated sexual assault offenses involved separate and

distinct acts ended the inquiry for double jeopardy purposes).

      For the above reasons, we overrule Benefield's third issue.

                                V. JAIL TIME CREDIT

      In his fourth issue, Benefield argues that he is entitled to further jail-time

credit toward his sentence for his continuous-violence-against-the-family

conviction.   The trial court awarded him 133 days' jail-time credit toward his

sentence for the continuous-violence-against-the-family conviction, but he argues

that he should have been given credit for the entire 653 days he spent in jail after

he was arrested for injury to a child.7


       7The State argues that direct appeal is not the proper vehicle to present
the issue of pre-sentence jail credit. We agree that typically, the correct avenue
to seek a credit is through a motion for judgment nunc pro tune, but when the
alleged failure to award jail credit involves the exercise of judicial reasoning, a
judgment nunc pro tune is not the proper remedy. See Collins v. State, 240
 S.W.Sd 925, 928 (Tex. Crim. App. 2007). Because the allegation here involves
more than an alleged miscalculation or other clerical error, we will address the
 merits of the claim. See id.; see also Blackerby v. State, No. 03-11-00272-CR,
2012 WL 6097306, at *3 (Tex. App.—Austin Dec. 5, 2012, no pet.) (mem. op.,
not designated for publication) (addressing merits of similar jail-time-credit

                                          14
      The trial court is required by law to credit the sentence of a defendant for

time the defendant spent "in jail for the case . . . from the time of his arrest and

confinement until his sentence by the trial court." Tex. Code Crim. Proc. Ann. art.

42.03, § 2(a)(1) (West Supp. 2014) (emphasis added); see a/so Tex. R. App. P.

23.2(b).   In this case, Benefield essentially argues that the injury-to-a-child

charge and the subsequent continuous-violence-against-the-family charge

constitute the same "case" for purposes of pre-sentence jail-time credit because

both involve the same conduct. We have already explained above that the act

against Lee alleged in the injury-to-a-child count was separate and distinct from

the act alleged in the continuous-violence-against-the-family count.       Benefield

was originally arrested on April 17, 2012, on the sole charge of injury to a child by

causing blunt trauma to Lee's "head and/or brain." A grand jury indicted him for

continuous-violence-against-the-family on September 18, 2013. The time spent

"in jail for the [continuous-violence-against-the-family] case" ran from the date of

his indictment for that offense until the date of his sentence. Because the trial

court correctly awarded jail-time credit based on that period of time, we overrule

Benefield's fourth issue. See Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a)(1);

see a/so Collins v. State, 318 S.W.3d 471, 473 (Tex. App.—Amarillo 2010, pet.

refd) ("fT]he credit at issue relates not just to any time the defendant spent


argument because issue involved judicial reasoning such that nunc pro tune
judgment would have been inappropriate).



                                         15
incarcerated before conviction. Rather, it is the time one is incarcerated for the

case in which he is ultimately tried and convicted."); Blackerby, 2012 WL

6097306, at *3 (holding appellant not entitled to jail-time credit on intoxication

manslaughter conviction for time spent in jail after arrest for felony DWI when not

indicted for intoxication manslaughter until later date); Martinez v. State, No. 13-

04-00085-CR, 2005 WL 1805500, at *3 (Tex. App.—Corpus Christi July 28,

2005, no pet.) (mem. op., not designated for publication) ("A trial court must

award credit for time served for the same offense and not time incarcerated pre-

trial for independent offenses.").

                                     VI. CONCLUSION

      Having overruled Benefield's three issues, we affirm the trial court's

judgment.8

                                                      Is/ Sue Walker
                                                      SUE WALKER
                                                      JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.

PUBLISH

DELIVERED: February 26, 2015




      8Benefield expressly waived his second issue in a reply brief. Therefore,
we do not consider it.


                                          16
COURT OF APPEALS’
  LATER OPINION
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-14-00099-CR


BRENT ALLEN BENEFIELD                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


                                      ----------

          FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
                      TRIAL COURT NO. 53,721-A

                                      ----------

              MEMORANDUM OPINION1 ON REHEARING

                                      ----------

                                 I. INTRODUCTION

      On February 26, 2015, this court issued an opinion affirming the trial

court’s judgment. Appellant Brent Allen Benefield filed a motion for rehearing

asserting that because the jury did not find him guilty of the offense of injury to a

child with serious bodily injury committed knowingly but instead found him guilty

      1
       See Tex. R. App. P. 47.4.
only of the offense of injury to a child with serious bodily injury committed

recklessly, we erred by relying on evidence of knowing injury in performing our

sufficiency analysis of the evidence supporting reckless injury.          We deny

Benefield’s motion for rehearing but withdraw our prior opinion and judgment

dated February 26, 2015, and substitute the following opinion and judgment to

clarify our holding that the evidence is sufficient to support Benefield’s conviction

for injury to a child with serious bodily injury committed recklessly.

      A jury convicted Benefield of one count of injury to a child by recklessly

causing serious bodily injury and one count of continuous violence against the

family and found the deadly-weapon allegation for both counts to be true. See

Tex. Penal Code Ann. §§ 22.04, 25.11 (West 2011 & Supp. 2014). The jury

assessed his punishment at ten years’ confinement on count one and five years’

confinement on count two. The trial court sentenced him accordingly, ordering

that the sentences run concurrently. In three issues, Benefield argues that the

evidence is insufficient to show that he recklessly committed injury to a child, that

his convictions violate double jeopardy, and that he is entitled to further jail-time

credit toward his sentence for the continuous-violence-against-the-family

conviction. We will affirm.




                                          2
                   II. FACTUAL AND PROCEDURAL BACKGROUND

      Benefield and Sally had a son, Lane,2 together in 2009. Sally and Lane

lived with her parents after Lane’s birth, but Sally and Benefield eventually

married and moved into a house together with Lane in 2010. Sally became

pregnant with their second child, Lee, in January 2011. When she was three

months’ pregnant with Lee, Benefield began assaulting Sally. He choked her

multiple times; in one incident when she was four months’ pregnant, Benefield

choked her and hit her, giving her a black eye. The assault caused her to have

contractions and start bleeding, so she went to the emergency room to make

sure that her baby had not been harmed.

      When she was six months’ pregnant, Benefield pushed Sally face down on

the bed after she confronted him about not having a job and about the high

electricity bill. Sally told their couples’ counselor, who advised Sally to make a

safety plan and to contact a battered woman’s shelter. Benefield admitted to the

counselor that he had hurt Sally.       During another joint counseling session,

Benefield became angry at Sally and yelled at her; the counselor asked him to

leave until he could act better, and Benefield did not return.




      2
        To protect the anonymity of the children in this case, we will use aliases to
refer to all individuals named herein with the exception of the appellant. See
Tex. R. App. P. 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex.
Crim. App. [Panel Op.] 1982).


                                          3
      Lee was born in October 2011.3 After taking off one week, Sally resumed

college classes for her teaching degree, and Benefield took care of Lane and Lee

while Sally was gone. At Lee’s one-month check-up, the pediatrician discovered

that Lee had an unexplained spiral fracture to one of his arm bones; the

pediatrician opined that “probably somebody picked him up by his arm or twisted

his arm in some way.” At his two-month check-up, Sally reported that Lee had

some bruises on his ankles, and his pediatrician noted two small bruises on

Lee’s wrists as well. The pediatrician tested Lee’s blood for blood disorders that

could cause him to bruise easily, and the results came back normal. In January

2012, Sally began student teaching; Benefield stayed home with Lane and Lee

while Sally was at school from 7:50 a.m. until 3:00 p.m. during the week.

      On February 8, 2012, when Lee was four months old, Sally woke up late

for school at 7:30. Lee was awake, cooing and babbling, when Sally got up.

Sally woke Benefield before leaving for school and was at school at 8:00 a.m.

She received a call around lunchtime informing her that Lee had been taken to

the emergency room.

      Benefield talked to the police at the hospital and again the following day.

He said that after Sally woke him, he got up, changed Lee’s diaper, and made

him a bottle.   Lee drank four ounces, which was a normal amount for him.

Benefield turned on a movie for Lane, and Lee followed the movie with his eyes

      3
       Lee’s birth was normal; he had some trouble breathing after birth but did
not require any oxygen, and the issue quickly resolved.


                                        4
and was “pretty alert.” Around 11:00 a.m., Lee began fussing, so Benefield put

him down for a nap. At 11:13 a.m., a friend called Benefield, and the two talked

for approximately twenty minutes; Benefield never mentioned to the friend

anything unusual about Lee. Around 11:45 a.m., Lee started crying, so Benefield

changed his diaper. Lee squirmed around and kicked his legs during the diaper

change but suddenly went limp and started coughing up blood. Benefield called

911. He told the 911 operator that he had observed “nothing out of the ordinary,

nothing unusual” with Lee that morning.         He said that Lee had been

unresponsive for two minutes.

      The Wichita Falls Police Department, the Wichita Falls Fire Department,

and Emergency Medical Services responded to Benefield’s 911 call.        Police

Officer Brian Williams testified that Benefield admitted him to the home when he

arrived and led him to the back master bedroom where Lee was lying on the bed.

Officer Williams thought Lee was dead.     Officer Williams observed blood on

Lee’s mouth, blood on the baby blanket that he was lying on, and bloody baby

wipes in the nearby trashcan. EMS personnel arrived, provided medical attention

to Lee, and transported him to the Wichita Falls hospital. Police Patrol Sargent

Mike Younts arrived at the scene at this point; as he was asking Benefield to

leave the home with Benefield’s other two-year-old son, Benefield “came up to

[him] on his own and asked, ‘Do you think it was shaken?’”

      Lee was resuscitated at the Wichita Falls hospital and then transported by

Care Flight to Cook Children’s Hospital in Fort Worth. He presented with an


                                       5
acute, or new, subdural hematoma and a prior subdural hematoma; retinal

hemorrhages; an acute rib fracture and two healing rib fractures; ligamentous

neck injuries, or injuries to the tissues and ligaments in his spine; corner fractures

on the bottom of both his left and right femur bones and on the top of both his left

and right humerus bones; and a torn frenulum, which was a recent injury with no

signs of healing. Based on the constellation of Lee’s injuries, doctors determined

that Lee was a “severely battered baby” and diagnosed him with abusive, or non-

accidental, head trauma. But doctors agreed that no physical evidence existed

on Lee’s head indicating it had impacted a hard or soft surface. Lee died in the

hospital four days later. Doctors at Cook Children’s Hospital determined that the

cause of Lee’s death was a severe brain injury, causing him to be “neurologically

devastated.”   Doctors opined that the acute subdural hematoma and retinal

hemorrhaging was caused by shaking Lee or by shaking with impact, that the

ligamentous neck injuries and the fractures to his leg and arm bones resulted

from shaking Lee, that the acute rib fracture could have been caused by grabbing

Lee or from the resuscitation efforts, and that the torn frenulum was caused by

blunt impact to Lee’s mouth from an object (likely a pacifier or a bottle) being

pushed under his lip.4




      4
        One of Lee’s treating doctors testified that the corner fractures to his arms
and legs were symmetrical, which could have been caused by shaking Lee such
that his arms and legs flailed at the same time.


                                          6
      The State charged Benefield with one count of injury to a child and one

count of continuous family violence.      The injury-to-a-child count alleged that

Benefield knowingly or recklessly caused serious bodily injury to Lee “by causing

blunt trauma to the head and/or brain of [Lee], to wit: by shaking [Lee] with his

hands and/or by striking [Lee] with or against a hard or soft object or surface.”

The continuous-family-violence count alleged six acts of assault against Sally

based on Benefield’s hitting her and choking her on six different occasions while

she was pregnant with Lee and alleged one act of assault against Lee based on

Lee’s torn frenulum.

                         III. SUFFICIENCY OF THE EVIDENCE

      In his first issue, Benefield argues that the evidence is insufficient to

support his conviction for injury to a child by recklessly causing serious bodily

injury because the evidence does not show that he was the person who inflicted

Lee’s injuries and because the evidence supports only a finding of intentional or

knowing conduct but not reckless conduct.

                             A. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the


                                         7
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434

S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Dobbs, 434 S.W.3d at 170. The standard of review is the same

for direct and circumstantial evidence cases; circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor. Dobbs, 434

S.W.3d at 170; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

      A person commits an offense if the person intentionally, knowingly, or

recklessly causes serious bodily injury to a child.      Tex. Penal Code Ann.

§ 22.04(a).   When the conduct is committed intentionally or knowingly, the

offense is a first-degree felony; when the conduct is committed recklessly, it is a


                                        8
second-degree felony. Id. § 22.04(e). A person acts recklessly, or is reckless,

with respect to a result of his conduct when he is aware of but consciously

disregards a substantial and unjustifiable risk that the result will occur.      Id.

§ 6.03(c) (West 2011). The risk must be of such a nature and degree that its

disregard constitutes a gross deviation from the standard of care that an ordinary

person would exercise under all the circumstances as viewed from the actor’s

standpoint. Id.

      Proof of a culpable mental state almost invariably depends upon

circumstantial evidence. Morales v. State, 828 S.W.2d 261, 263 (Tex. App.—

Amarillo 1992), aff’d, 853 S.W.2d 583 (Tex. Crim. App. 1993). Ordinarily, the

culpable mental state must be inferred from the acts of the accused or the

surrounding circumstances, which include not only acts but also words and

conduct.   Ledesma v. State, 677 S.W.2d 529, 531 (Tex. Crim. App. 1984).

Injury to a child is a result-oriented offense requiring a mental state that relates

not to the specific conduct but to the result of that conduct. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). That is, the State must prove that

the defendant caused the result with the requisite criminal intent. Id.; Cook v.

State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994).




                                         9
                B. Sufficiency of the Evidence that Benefield
                 Inflicted Lee’s Injuries on February 8, 2012

      Here, viewing the evidence in the light most favorable to the verdict, the

evidence shows the following. Lee acted normally on the morning of February 8,

2012, from the time that Sally woke up at 7:30 a.m. until she left for school;

Benefield called 911 around 12:08 p.m. claiming that Lee had acted normally all

morning until Lee purportedly “went limp” and started coughing up blood two

minutes prior to Benefield’s 911 call. Dr. Jayme Coffman, the medical director of

the child-abuse program at Cook Children’s Hospital, testified that Lee would

have been in a serious state of distress that would have been “immediately

apparent” to a caretaker right after sustaining his head injuries.        Pediatric

radiologist Dr. Hayden Head also noted that Lee’s brain injuries, which Dr. Head

asserted were caused from shaking or shaking with impact, would have

prevented Lee from acting or appearing normal for any period of time after the

brain injury was inflicted. Although some of Lee’s injuries could not be dated or

occurred weeks prior to the day that Benefield had called 911,5 the doctors all

agreed that the severe brain injury that ultimately led to Lee’s death occurred that

morning immediately prior to Benefield’s calling 911. Sally was at school when

Lee sustained his injuries; Lee was in Benefield’s sole care at that time. Thus,

      5
         For example, Dr. Head testified that the prior subdural hemorrhage in
Lee’s head could have occurred two to three weeks earlier, that the rib fractures
that showed signs of healing could have occurred three to four weeks earlier, and
that the corner fractures to Lee’s arms could have occurred two to three weeks
earlier.


                                        10
although Benefield challenges the sufficiency of the evidence to show that he,

rather than Sally, had inflicted Lee’s injuries, a rational jury could have

reasonably concluded the opposite. See Jackson, 443 U.S. at 326, 99 S. Ct. at

2793.

        C. Sufficiency of the Evidence of Requisite Reckless Mens Rea

        Benefield also challenges the sufficiency of the evidence to support the

“reckless” element of his conviction for injury to a child with serious bodily injury

committed recklessly.    He argues that because the evidence established or

supported an inference only that Lee’s injuries were intentionally or knowingly

inflicted (even though the jury declined to convict him of injury to a child with

serious bodily injury committed intentionally or knowingly), no evidence exists

supporting the jury’s finding that Lee’s serious bodily injury was recklessly

inflicted.6 In support of this sufficiency challenge, Benefield points to the State’s

closing argument, wherein the State explicitly requested the jury to convict

Benefield of a knowing crime because “[t]here is really not any evidence that it’s

reckless.”




        6
       Although acknowledging that injury to a child is a result-oriented offense,
Benefield nonetheless argues that “[t]he act of shaking a baby and thereby
causing its death, particularly as the State accused here, requires a great deal of
force and many individual ‘shakes,’ and thus is most unlikely to have been a
reckless act rather than a knowing one.” But, this contention recasts the offense
as a nature-of-conduct offense. See generally Young v. State, 341 S.W.3d 417,
423 (Tex. Crim. App. 2011).


                                         11
      Closing argument is not evidence. See, e.g., Woods v. State, 301 S.W.3d

327, 332, n.1 (Tex. App.—Houston [14th Dist.] 2009, no pet.).             And our

sufficiency review is not related to, or limited by, the State’s characterization of

the evidence in closing argument; in our sufficiency review, we examine the

evidence that was admitted and view it in the light most favorable to the jury’s

verdict to determine whether any rational trier of fact could have found beyond a

reasonable doubt the reckless element of Benefield’s offense. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.

      Because the offense of injury to a child is a result-oriented offense

requiring a mental state that relates not to the defendant’s specific conduct but to

the result of that conduct, in conducting our sufficiency review, we examine

Benefield’s conduct to determine whether

            (1) the alleged act of Benefield shaking Lee with his hands
      and/or striking Lee with or against a hard or soft object or surface,
      viewed objectively at the time of its commission, created a
      “substantial and unjustifiable” risk of the type of harm that occurred;

             (2) that risk was of such a magnitude that disregard of it
      constituted a gross deviation from the standard of care that a
      reasonable person would have exercised in the same situation (i.e.,
      it involved an “extreme degree of risk, considering the probability
      and magnitude of the potential harm to others”);

            (3) Benefield was consciously aware of that “substantial and
      unjustifiable” risk at the time of the conduct; and

            (4) Benefield consciously disregarded that risk.

See Williams, 235 S.W.3d at 755–56.




                                        12
      Viewing the evidence in the light most favorable to the jury’s verdict finding

Benefield guilty of reckless injury to a child, the evidence shows that Lee suffered

severe injuries from being shaken. Dr. Coffman testified about a slide shown to

the jury demonstrating the “shaking mechanism.” She testified,

      [You see] the head going all the way back and then all the way
      forward, but it’s not just straight translation, right, so it’s not just
      straight forward and backward. A baby can’t hold their head stiff like
      that so you have some rotation as well. And so when their head is
      going forward and backward, there will be rotation in addition
      because you can see that his head’s not going just straight like a
      woodpecker, right. It’s - - those are rotations that cause additional
      forces inside the head.

Dr. Coffman explained that a reasonable adult exerting the type of severe forces

necessary to create the type of diffuse brain injury suffered by four-month-old

Lee would know that the force he was exerting was likely to harm or kill the baby.

Although Dr. Coffman’s testimony was couched in terms of Benefield’s knowing

that his conduct in shaking Lee was reasonably certain to cause the result

suffered by Lee,7 the jury was free to disbelieve that Benefield was reasonably

certain of the result to Lee of Benefield’s shaking Lee and/or striking Lee. The

jury was free to instead believe that Benefield’s shaking of Lee with his hands

and/or his striking of Lee, viewed objectively at the time Benefield did it, created

a “substantial and unjustifiable” risk of the type of harm that Lee suffered, that the

risk of harm was of a magnitude that disregarding it was a gross deviation from

      7
      See Tex. Penal Code Ann. § 6.03(b) (defining a defendant’s knowing
mental state with respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result).


                                         13
the standard of care that a reasonable person would have exercised in the same

situation, that Benefield was consciously aware of that risk when he shook Lee

and/or struck Lee, and that he consciously disregarded it. See, e.g., Cleburn v.

State, 138 S.W.3d 542, 544–45 (Tex. App.––Houston [14th Dist.] 2004, pet.

ref’d) (holding evidence sufficient to support reckless element of injury to a child

with bodily injury when defendant rammed his truck into car containing visible car

seat); Ehrhardt v. State, No. 06-02-00209-CR, 2003 WL 22004238, at *3 (Tex.

App.––Texarkana Aug. 26, 2003, no pet.) (not designated for publication)

(holding evidence sufficient to support reckless element of injury to a child with

bodily injury when defendant bit child’s arm).

      Viewing all of the evidence in the light most favorable to the jury’s verdict,

including the above evidence and the evidence that Lee had acted normally on

the morning of the incident, that Benefield was his sole caretaker from

approximately 8:00 a.m. until he called 911 at 12:08 p.m., that Lee’s extensive

brain injuries would have been immediately apparent once sustained, and that

Lee’s injuries were consistent with and indicative of abusive head trauma, we

hold that a rational trier of fact could have found beyond a reasonable doubt that

Benefield—by causing blunt force trauma to Lee’s head (by shaking Lee or by

striking him with or against a hard or soft object or surface)—was aware of but

consciously disregarded a substantial and unjustifiable risk that Lee would suffer

serious bodily injury. See Tex. Penal Code Ann. § 6.03(c); Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Cleburn, 138 S.W.3d at 544–45; Ehrhardt, 2003 WL


                                        14
22004238, at *3. That is, sufficient evidence exists in the record that Benefield

acted recklessly in causing serious bodily injury to Lee.8

      We overrule Benefield’s first issue.

                              IV. DOUBLE JEOPARDY

      In his third issue, Benefield argues that his convictions for continuous

violence against the family and injury to a child violate double jeopardy because

at least some of the conduct of the injury-to-a-child offense is the same as an

element of the continuous-violence offense.

      The Double Jeopardy Clause of the United States Constitution provides

that no person shall be subjected to twice having life or limb in jeopardy for the

same offense. U.S. Const. amend. V. Generally, this clause protects against

(1) a second prosecution for the same offense after acquittal, (2) a second

prosecution for the same offense after conviction, and (3) multiple punishments

for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225

(1977); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006).



      8
        Although Benefield cites Williams v. State in support of this sufficiency
challenge to the reckless element of his conviction, it is inapplicable to the
present facts. See 704 S.W.2d 156, 158–59 (Tex. App.—Fort Worth 1986, no
pet.). In Williams, the defendant inflicted numerous injuries on a child over a
period of time by holding a hair dryer on the child until the child suffered a burn
and by pressing a heated fork against the child until the child suffered a burn. Id.
On appeal, this court rejected the defendant’s complaint that the trial court erred
by failing to instruct the jury on recklessness. Id. at 158. We held that,
considering the result of the conduct—the nature of the child’s injuries and the
manner in which they were inflicted––no evidence existed that the defendant had
acted recklessly in causing the injuries. Id. at 158–59.

                                         15
      A potential double-jeopardy violation may be forfeited by the defendant’s

failure to assert it in the trial court. Langs v. State, 183 S.W.3d 680, 686–87

(Tex. Crim. App. 2006). But a double-jeopardy claim may be raised for the first

time on appeal “when the undisputed facts show the double jeopardy violation is

clearly apparent on the face of the record and when enforcement of usual rules

of procedural default serves no legitimate state interests.” Gonzalez v. State, 8

S.W.3d 640, 643 (Tex. Crim. App. 2000) (footnotes omitted).

      Here, Benefield did not raise his double-jeopardy claim in the trial court.

Thus, the alleged double-jeopardy violation must be clearly apparent from the

face of the record. See Langs, 183 S.W.3d at 686–87. Benefield argues that, in

convicting him of continuous violence against the family, the jury could have

relied upon the same conduct that it relied upon in convicting him of injury to a

child because, in addition to multiple allegations of assault against Sally, the

continuous-violence-against-the-family indictment also alleged an assault against

Lee based on the torn frenulum injury.9 But the jury returned a general verdict,

and we do not know what acts it relied upon in convicting Benefield of continuous

violence against the family. The six acts of violence against Sally and the one

act against Lee were submitted to the jury disjunctively, and the jury had to find


      9
       Specifically, the continuous-family-violence indictment alleged that
Benefield had intentionally or recklessly caused bodily injury to Lee “by causing
[Lee’s] frenulum to tear, by striking [Lee’s] mouth with a bottle and/or
[Benefield’s] hand, and/or by striking [Lee’s] mouth with or against a hard or soft
object or surface and/or by manner and means unknown.”


                                        16
that Benefield committed at least two of the seven acts to convict him of

continuous violence against the family. See Tex. Penal Code Ann. § 25.11 (“A

person commits an offense if, during a period that is 12 months or less in

duration, the person two or more times engages in conduct that constitutes an

[assault against a family member].”). Because the jury could have relied on two

or more of the alleged acts of violence against Sally in convicting him of

continuous violence against the family, Benefield’s double-jeopardy claim is not

clear from the face of the record. See Langs, 183 S.W.3d at 686–87; Gonzalez,

8 S.W.3d at 643.

      Benefield argues that the continuous-violence-against-the-family statute

imposes a double-jeopardy bar that applies here to “trump[]” the general raise-or-

waive principle set forth above. Section 25.11 provides,

            A defendant may not be convicted in the same criminal action
      of another offense the victim of which is an alleged victim of the
      offense under Subsection (a) and an element of which is any
      conduct that is alleged as an element of the offense under
      Subsection (a) unless the other offense:

            (1) is charged in the alternative;

            (2) occurred outside the period in which the offense alleged
      under Subsection (a) was committed; or

            (3) is considered by the trier of fact to be a lesser included
      offense of the offense alleged under Subsection (a).

Tex. Penal Code Ann. § 25.11(c). As applied here, Benefield argues that an

element of the injury-to-a-child offense (“striking [Lee] with or against a hard or

soft object or surface”) was alleged as an element of the continuous-violence-


                                        17
against-the-family offense (“striking [Lee’s] mouth with or against a hard or soft

object or surface”).   But even if Benefield is correct that an objection is not

required to raise a double-jeopardy complaint based on section 25.11, the

allegation of assault against Lee in the continuous-violence-against-the-family

offense was the act causing injury to Lee’s mouth—the frenulum tear—whereas

the allegation of assault against Lee in the injury-to-a-child count was the act

causing blunt trauma to Lee’s head or brain, specifically by shaking him or by

striking him with or against an object or surface. As Dr. Coffman opined, the

injury to Lee’s mouth—the frenulum tear—was caused by blunt impact to his

mouth, likely from a pacifier or a bottle being pushed under his lip. Dr. Coffman

explained that the action that caused Lee’s injury to his mouth was separate and

distinct from that which caused his brain injury. Thus, the conduct alleged in the

injury-to-a-child offense was not the same conduct alleged as part of the

continuous-violence-against-the-family offense.    See Tex. Penal Code Ann.

§ 25.11(c).   Benefield’s convictions for distinct offenses based on different

conduct do not present the double-jeopardy situation prohibited under penal code

section 25.11. See id.; see also Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim.

App. 1999) (explaining that the court’s determination that violations of separate

and distinct statutory aggravated sexual assault offenses involved separate and

distinct acts ended the inquiry for double-jeopardy purposes).

      For the above reasons, we overrule Benefield’s third issue.




                                       18
                                V. JAIL-TIME CREDIT

      In his fourth issue, Benefield argues that he is entitled to further jail-time

credit toward his sentence for his continuous-violence-against-the-family

conviction.   The trial court awarded him 133 days’ jail-time credit toward his

sentence for the continuous-violence-against-the-family conviction, but he argues

that he should have been given credit for the entire 653 days he spent in jail after

he was arrested for injury to a child.10

      The trial court is required by law to credit the sentence of a defendant for

time the defendant spent “in jail for the case . . . from the time of his arrest and

confinement until his sentence by the trial court.” Tex. Code Crim. Proc. Ann. art.

42.03, § 2(a)(1) (West Supp. 2014) (emphasis added); see also Tex. R. App. P.

23.2(b).   In this case, Benefield essentially argues that the injury-to-a-child

charge and the subsequent continuous-violence-against-the-family charge

constitute the same “case” for purposes of presentence jail-time credit because


      10
        The State argues that direct appeal is not the proper vehicle to present
the issue of presentence jail credit. We agree that typically the correct avenue to
seek a credit is through a motion for judgment nunc pro tunc, but when the
alleged failure to award jail credit involves the exercise of judicial reasoning, a
judgment nunc pro tunc is not the proper remedy. See Collins v. State, 240
S.W.3d 925, 928 (Tex. Crim. App. 2007). Because the allegation here involves
more than an alleged miscalculation or other clerical error, we will address the
merits of the claim. See id.; see also Blackerby v. State, No. 03-11-00272-CR,
2012 WL 6097306, at *3 (Tex. App.—Austin Dec. 5, 2012, no pet.) (mem. op.,
not designated for publication) (addressing merits of similar jail-time-credit
argument because issue involved judicial reasoning such that nunc pro tunc
judgment would have been inappropriate).




                                           19
both involve the same conduct. We have already explained above that the act

against Lee alleged in the injury-to-a-child count was separate and distinct from

the act alleged in the continuous-violence-against-the-family count. Benefield

was originally arrested on April 17, 2012, on the sole charge of injury to a child by

causing blunt trauma to Lee’s “head and/or brain.” A grand jury indicted him for

continuous-violence-against-the-family on September 18, 2013. The time spent

“in jail for the [continuous-violence-against-the-family] case” ran from the date of

his indictment for that offense until the date of his sentence. Because the trial

court correctly awarded jail-time credit based on that period of time, we overrule

Benefield’s fourth issue. See Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a)(1);

see also Collins v. State, 318 S.W.3d 471, 473 (Tex. App.—Amarillo 2010, pet.

ref’d) (“[T]he credit at issue relates not just to any time the defendant spent

incarcerated before conviction. Rather, it is the time one is incarcerated for the

case in which he is ultimately tried and convicted.”); Blackerby, 2012 WL

6097306, at *3 (holding appellant not entitled to jail-time credit on intoxication

manslaughter conviction for time spent in jail after arrest for felony DWI when not

indicted for intoxication manslaughter until later date); Martinez v. State, No. 13-

04-00085-CR, 2005 WL 1805500, at *3 (Tex. App.—Corpus Christi July 28,

2005, no pet.) (mem. op., not designated for publication) (“A trial court must

award credit for time served for the same offense and not time incarcerated pre-

trial for independent offenses.”).




                                         20
                               VI. CONCLUSION

      Having overruled Benefield’s three issues,11 we affirm the trial court’s

judgment.

                                                /s/ Sue Walker
                                                SUE WALKER
                                                JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 30, 2015




      11
       Benefield expressly waived his second issue in a reply brief. Therefore,
we do not consider it.


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