                        In the
                   Court of Appeals
           Second Appellate District of Texas
                    at Fort Worth
                  ___________________________

                       No. 02-17-00365-CR
                       No. 02-17-00366-CR
                  ___________________________

HOWARD LEWIS JONES A/K/A HOWARD LEWIS PATTERSON, Appellant

                                 V.

                      THE STATE OF TEXAS


              On Appeal from the 372nd District Court
                       Tarrant County, Texas
               Trial Court Nos. 1509581R, 1509586R


            Before Sudderth, C.J.; Birdwell and Bassel, JJ.
           Memorandum Opinion by Chief Justice Sudderth
                           MEMORANDUM OPINION

      In two issues, Appellant Howard Lewis Jones appeals his convictions for one

count of injury to an elderly person with a deadly weapon and two counts of

aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02(a),

22.04(a). We hold that the evidence is sufficient and that Appellant has not shown

that section 22.04(h) of the penal code is unconstitutional but that one judgment must

be reformed to correct clerical errors. We affirm the trial court’s judgments as

reformed.

                                     Background

      Appellant’s convictions arise from a stabbing that took place on the night of

January 3, 2017. Barbara Erickson and Henry Nelms were stabbed repeatedly in

Nelms’s apartment. Both Erickson and Nelms alleged that Appellant committed the

stabbings. The following rendition of facts is a summary of testimony provided by

Erickson, Nelms, and responding police officer Cody Slinkard.

      Erickson, Nelms, and Appellant were acquaintances that lived in the same

apartment complex in east Fort Worth. Erickson, who was 54 at the time of trial,

testified that she was a close friend of Nelms and that Nelms had a reputation for

helping people out and had helped Barbara out from time to time when she was

homeless and needed a place to stay.

      According to Erickson, she visited Nelms on the evening of January 3, and

asked if she could stay at his apartment that night. Nelms said yes, so Erickson left to

                                           2
get her purse from another apartment in the area. Erickson testified that as she was

walking back to Nelms’s apartment, she noticed that Appellant was also walking

toward Nelms’s apartment. Even though Erickson and Appellant had just ended their

own brief relationship on bad terms, Erickson was not concerned that Appellant was

going to Nelms’s apartment because according to Erickson, Appellant often visited

Nelms, sometimes to borrow money or purchase marijuana.

      Erickson reached Nelms’s house first, went inside, and told Nelms that

Appellant was on his way there. Once Appellant arrived, he said, “I told you not . . . ”

and grabbed Erickson by the throat from behind. Erickson testified that it then felt

like “he was slugging [her] in the back really hard.” But soon she realized that she had

been stabbed. As she related to the jury, “I reached around and I felt the wet [blood]

and I could feel the air coming out my back.” Erickson recalled that Nelms told

Appellant that anything Erickson could have done was not worth stabbing her over.

Then he grabbed Appellant and the two fought. Eventually, Appellant managed to

pin Nelms to the floor.

      Erickson recalled that Appellant forcibly took the phone from her when she

tried to call 9-1-1. At some point Nelms asked Appellant if he’d go away if he gave

Appellant some money. Erickson heard Appellant respond, “Yeah, give me the

money.”

      Nelms, who was 75 at the time of trial, recalled a similar series of events. He

testified that just prior to the stabbing on January 3, Erickson arrived at his apartment

                                           3
first, followed shortly thereafter by Appellant. Erickson and Appellant sat down on

the edge of Nelms’s bed across from where Nelms was sitting in a chair. According

to Nelms, Appellant said something to Erickson along the lines of, “I told you to quit

telling people . . .” and then he heard Erickson say, “I can’t breathe, I can’t breathe.”

At that point, Nelms realized that Appellant had his hand on Erickson’s neck and was

stabbing her.

      Nelms testified that he pulled Appellant off of Erickson, the two wrestled on

the ground, and then Appellant stabbed Nelms. After Appellant stabbed Nelms

several times, he hit Nelms on the head with Nelms’s cane, told Nelms to shut up,

and then took Nelms’s wallet from his pocket.

      Erickson and Nelms both recalled that at that point, someone tried to open

Nelms’s front door, which startled Appellant and he left. Erickson called 9-1-1.

      When police arrived, they discovered Nelms and Erickson lying in pools of

blood. Officer Slinkard testified that Erickson identified Appellant as the person who

had stabbed them and directed them toward Appellant’s apartment. The police then

went to Appellant’s apartment and when Appellant answered the door, Officer

Slinkard noticed that Appellant was sweating, was not wearing a shirt, had blood on

his chest, and was wearing what appeared to be a fresh pair of pants. Another officer

noticed a bloody sock on the floor behind Appellant and when the officer questioned

Appellant about it, Appellant slammed the door shut. Believing Appellant was in the

process of destroying evidence, the officers decided to immediately enter the

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apartment and once inside the apartment, they arrested Appellant.          After police

obtained a warrant, they searched Appellant’s apartment where they discovered

bloody clothing, bloody gloves, bloody shoes, an open bottle of bleach, a knife, and

Nelms’s wallet.

      Erickson suffered stab wounds to her neck, back, abdomen, and chest and was

hospitalized for four days after the incident to receive treatment for her wounds. Her

spleen was removed because it so badly damaged. As to the lasting effects of the

incident, Erickson testified: “I’m kind of scared of people now. I’m kind of scared to

go out by myself without somebody with me. I don’t like to ride the bus. I don’t like

to be around a lot of people.”

      Nelms likewise suffered serious injuries—he had a large gash on his forehead

and stab wounds to his chest, abdomen, and lower back. He spent three days in the

hospital and testified at trial, “I’m crippled now. I can’t even walk straight. I was

walking pretty good.” He also testified, “[I]t changed my whole life. Like I said, I was

getting around and walking around, getting around and everything until that

happen[ed]. It kind of broke me down.”

      Appellant was charged with one count of injury to an elderly person (Nelms)

with a deadly weapon and two counts of aggravated assault with a deadly weapon—

one count related to his assault of Nelms and the other related to his assault of

Erickson. See Tex. Penal Code Ann. §§ 22.02, 22.04(a)(1). Each count was enhanced

by a habitual-offender notice. See id. § 12.42. The jury found Appellant guilty of all

                                           5
three counts, found that Appellant had used a deadly weapon (a knife) to commit the

crimes, found the habitual-offender allegation true, and assessed a 40-year sentence

for each conviction.

                                       Discussion

      Appellant brings two issues on appeal. In his first issue, he argues that the

evidence is insufficient to support his conviction. In his second issue, Appellant

argues that section 22.04(h) of the penal code, which allowed him to be convicted of

both injury to Nelms as an elderly person and aggravated assault of Nelms, is facially

unconstitutional because it violates the rules of double jeopardy.

I. Sufficiency of the evidence

      Federal due process requires that the State prove beyond a reasonable doubt

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.

2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary-

sufficiency review, we view all the evidence in the light most favorable to the verdict

to determine whether any rational factfinder could have found the crime’s essential

elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full

play to the factfinder’s responsibility to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts. See

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Queeman, 520 S.W.3d at 622.



                                            6
      The factfinder alone judges the evidence’s weight and credibility. See Tex. Code

Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. Thus, when performing an

evidentiary-sufficiency review, we may not re-evaluate the evidence’s weight and

credibility and substitute our judgment for the factfinder’s. Queeman, 520 S.W.3d at

622. Instead, we determine whether the necessary inferences are reasonable based on

the evidence’s cumulative force when viewed in the light most favorable to the

verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); see Villa v. State,

514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court conducting a sufficiency

review must not engage in a ‘divide and conquer’ strategy but must consider the

cumulative force of all the evidence.”). We must presume that the factfinder resolved

any conflicting inferences in favor of the verdict, and we must defer to that resolution.

Murray, 457 S.W.3d at 448–49.

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

circumstantial evidence is as probative as direct evidence in establishing guilt. Jenkins

v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).              We must scrutinize

circumstantial evidence of intent as we do other elements of an offense. Laster v. State,

275 S.W.3d 512, 519–20 (Tex. Crim. App. 2009).           But when a record supports

conflicting inferences, we “must presume—even if it does not affirmatively appear in

the record—that the trier of fact resolved any such conflict in favor of the

prosecution, and must defer to that resolution.” Matson v. State, 819 S.W.2d 839, 846

(Tex. Crim. App. 1991).

                                           7
       To show that Appellant committed aggravated assault with a deadly weapon,

the State was required to show that Appellant intentionally, knowingly, or recklessly

caused serious bodily injury to another or used a deadly weapon during the

commission of the assault. Tex. Penal Code Ann. § 22.02(a). In order to show that

Appellant committed the offense of injury to an elderly person, the State was required

to show that Appellant intentionally or knowingly caused serious bodily injury to a

person over the age of 65. Id. § 22.04(a).

       Appellant argues that the State did not meet these burdens because (1) Nelms

could not identify Appellant in court; (2) no fingerprint or DNA evidence was

presented linking Appellant to the stabbing or linking the knife found in his

apartment to the stabbing; (3) there was insufficient evidence that Appellant

intentionally or knowingly attacked Nelms and Erickson; and (4) there were

discrepancies in the testimony of various witnesses, including Erickson’s description

of the clothes Appellant wore the night of the stabbing.

       Appellant’s arguments fail. Nelms did identify Appellant as the assailant at

trial, albeit with some equivocation.1 Erickson, however, unequivocally identified

Appellant as their assailant.


             Q. Within those apartment complexes, have you ever met
              1

       someone named Howard Jones?

              [Nelms]. Yes, sir . . . .

              Q. Do you see that person in the courtroom today?

                                             8
      DNA and fingerprint evidence are not required to show guilt; “the State may

prove [a] defendant’s identity and criminal culpability by either direct or circumstantial

evidence, coupled with all reasonable inferences from that evidence.” See Gardner v.

State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009). Appellant’s intent is reasonably

inferred from the evidence that he stabbed both Nelms and Erickson. See Laster v.

State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009) (“Because ‘one’s acts are generally

reliable circumstantial evidence of one’s intent,’ the jury could reasonably infer that

[the defendant] intended to do exactly what he did—to inflict bodily injury on B.T.”)

(quoting Rodriguez v. State, 646 S.W.2d 524, 527 (Tex. App.—Houston [1st Dist.] 1982,

no pet.)). And finally, any discrepancies between the testimony and the evidence were

for the jury to resolve. Matson, 819 S.W.2d at 846.

             A. I don’t see him yet.

                    Is that him there?

             Q. I’m asking you.

             A. If that him, he has gained weight.

             Q. . . . if that’s him, you just have to - - you know, if you can
      identify him, then you have to identify him.

            A. Right. He gained weight then. I - - I - - I just know - - let me
      put my glasses on and see him.

                    Yeah. That look like him, yeah.

             Q. That looks like him?

             A. Yes, sir.


                                            9
      Appellant’s arguments nitpick at the evidence, but the reality is that the

following evidence was shown:

      • Appellant stabbed both Nelms and Erickson repeatedly with a knife.

      • Nelms was 74 at the time of the stabbing.

      • When officers responded to the scene, Erickson identified Appellant as the
        assailant.

      • Erickson and Nelms identified Appellant at trial as the assailant who had
        repeatedly stabbed them.

      • Soon after the stabbing and after Appellant was named as the assailant,
        police observed Appellant at his apartment with blood on his chest.

      • Thereafter, the police found bloody clothing, bloody gloves, bloody shoes,
        an open bottle of bleach, a knife, and Nelms’s wallet inside Appellant’s
        apartment.

      • Erickson and Nelms suffered serious wounds that required multi-day
        hospital stays and had lasting effects.
      Viewed in the light most favorable to the verdicts, this evidence is more than

sufficient to support the jury’s verdicts. We therefore overrule Appellant’s first issue.

II. Constitutionality of section 22.04(h)

      Section 22.04 criminalizes the intentional, knowing, reckless, or criminally

negligent act of causing injury to an elderly person. Tex. Penal Code Ann. § 22.04(a).

Section 22.04(h) provides:

      (h) A person who is subject to prosecution under both this section and
      another section of this code may be prosecuted under either or both
      sections. Section 3.04 does not apply to criminal episodes prosecuted
      under both this section and another section of this code. If a criminal
      episode is prosecuted under both this section and another section of this


                                           10
       code and sentences are assessed for convictions under both sections, the
       sentences shall run concurrently.

Id. § 22.04(h). Appellant was charged with and convicted of causing serious bodily

injury to Nelms, an elderly person, and the aggravated assault of Nelms. Id. §§

22.04(a), 22.02.

       Appellant argues that 22.04(h) is facially unconstitutional because it violates the

Double Jeopardy Clause of the Fifth Amendment, which provides: “No person shall

. . . be subject for the same offence to be twice put in jeopardy of life or limb. . . .”

U.S. Const. amend. V.

       As the U.S. Supreme Court has explained, the Double Jeopardy Clause “is cast

explicitly in terms of being ‘twice put in jeopardy.’” Missouri v. Hunter, 459 U.S. 359,

365, 103 S. Ct. 673, 678 (1983). Thus, while the Double Jeopardy Clause prohibits

multiple trials for the same offense, it does not prohibit multiple punishments for the

same offense if the legislature so intended.          Id. at 679, 103 S. Ct. at 368.

(“Legislatures, not courts, prescribe the scope of punishments.”).

       Here, Appellant complains not of being subjected to multiple trials but to

cumulative punishment under two statutes that proscribe the same conduct. Where,

as here, a legislature “specifically authorizes cumulative punishment under two

statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under




                                           11
Blockburger2,” and the prosecution in a single trial seeks to impose cumulative

punishment under such statutes, the Double Jeopardy Clause does not bar a trial court

or jury from imposing cumulative punishments. Id. at 675, 103 S. Ct. at 359–369

(“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy

Clause does no more than prevent the sentencing court from prescribing greater

punishment than the legislature intended.”).

      For our analysis, the ultimate question is whether the legislature intended to

allow for multiple punishments in this circumstance. Langs v. State, 183 S.W.3d 680,

688 (Tex. Crim. App. 2006). Here, legislative intent is clear in section 22.04(h). The

legislature expressly provided for the prosecution of an offender who injures an

elderly person under section 22.04 and under another section of the code, such as

aggravated assault. See Tex. Penal Code Ann. §§ 22.02, 22.04(h). “[T]he Double

Jeopardy Clause does not prohibit a legislature from authorizing cumulative

punishments under two statutes that proscribe the same conduct[.]” Mauro v. State,

221 S.W.3d 896, 903 (Tex. App.—Beaumont 2007, no pet.). If the legislature has

specifically authorized cumulative punishment under two statutes, regardless of

whether those statutes proscribe the same offensive conduct, “a court’s task of


      2
       See Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932)
(“The applicable rule is that where the same act or transaction constitutes a violation
of two distinct statutory provisions, the test to be applied to determine whether there
are two offenses or only one, is whether each provision requires proof of a fact which
the other does not.”).


                                          12
statutory construction is at an end and the prosecutor may seek and the trial court or

jury may impose cumulative punishment under such statutes in a single trial.” Hunter,

459 U.S. at 368–69, 103 S. Ct. at 679; see also Aekins v. State, 447 S.W.3d 270, 277 (Tex.

Crim. App. 2014) (“Sometimes two offenses that are the ‘same’ may both be punished;

sometimes two ‘different’ offenses may not both be punished. It all depends on the

legislature’s intent.”) (citing, among others, Hunter, 459 U.S. at 368, 103 S. Ct. at 679).

       Because the legislature is permitted to expressly provide for prosecution of the

same conduct as multiple offenses, see Hunter, 459 U.S. at 366, 103 S. Ct. at 678, and

the legislature’s intent to do so here is clear in section 22.04(h), the application of that

section cannot violate double jeopardy concerns.              Accordingly, we overrule

Appellant’s second issue.

III. Clerical error

       While reviewing the record, we noted a clerical error in the judgment for count

two of the indictment for Appellant’s aggravated assault against Nelms. Although the

indictment and jury verdict clearly state that Appellant was charged and convicted of

causing bodily injury to an elderly person (count one of the indictment) and

aggravated assault (count two of the indictment), the judgment for count two

incorrectly states that it is also for injury to an elderly person. The parties do not

address this on appeal but we may sua sponte reform an incorrect judgment to

properly reflect the jury’s verdict. See Asberry v. State, 813 S.W.2d 526, 529–30 (Tex.

App.—Dallas 1991, pet. ref’d) (explaining the power of the appellate courts to reform

                                            13
incorrect judgments sua sponte to reflect the findings of the jury). Because the jury

convicted Appellant under count two for the aggravated assault of Nelms, we delete

the portion of the judgment for count two that provides, “INJURY TO A

ELDERLY INDIVIDUAL – INTENTIONALLY AND KNOWINGLY CAUSE

SERIOUS BODILY INJURY THAT IN THE MANNER OF ITS USE OR

INTENDED USE WAS CAPABLE OF CAUSING DEATH OR SERIOUS

BODILY INJURY” and reform the judgment to provide in its place, “Aggravated

Assault with a deadly weapon.” We further delete the portion of the judgment for

count two that provides, “22.04(e) PC,” and reform the judgment to provide in its

place, “22.02(a)(2).” See Tex. Penal Code Ann. § 22.02(a)(2).

                                      Conclusion

      Having overruled both of Appellant’s issues and having reformed the judgment

to correct clerical errors, we affirm the trial court’s judgments as modified.



                                                       /s/ Bonnie Sudderth
                                                       Bonnie Sudderth
                                                       Chief Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: February 21, 2019




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