                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS


JAIME PORRAS, JR.,                                  §
                                                                      No. 08-13-00149-CR
                                 Appellant,         §
                                                                        Appeal from the
v.                                                  §
                                                                  112th Judicial District Court
                                                    §
THE STATE OF TEXAS,                                                  of Pecos County, Texas
                                                    §
                                  Appellee.                                (TC# 3208)
                                                    §

                                              OPINION

          Jaime Porras, Jr. appeals his convictions of injury to a child (three counts). A jury found

Appellant guilty of Counts 1, 2, and 3, and assessed his punishment on each count at

imprisonment for a term of eight years and a fine of $5,000. For the reasons that follow, we

affirm.

                                      FACTUAL SUMMARY

          A Pecos County grand jury indicted Appellant for three counts of bodily injury to a child

alleged to have been committed on or about December 20, 2011. See TEX.PENAL CODE ANN.

§ 22.04(a)(3)(West Supp. 2014); TEX.PENAL CODE ANN. § 1.07(8)(West Supp. 2014)(defining

“bodily injury” as “physical pain, illness, or any impairment of physical condition”). The

indictment alleged that Appellant intentionally or knowingly caused bodily injury to a child, J.P.,

by biting the child on the face (Count 1), the arm (Count 2), and the legs (Count 3) with
Appellant’s teeth. The child named in the indictment is Appellant’s daughter, who was at the

time of the events in question less than six months old.

       Appellant’s wife, Krista Jaques, testified at trial that on the morning of December 20,

2011, she saw Appellant bite their daughter and the child reacted by screaming and crying.

Jaques looked at her daughter and saw bite marks on her face, legs, and arm. When Jaques’

mother came by the house, Jaques and J.P. left with her and they went to her mother’s house in

Fort Stockton. Her mother called the Pecos County Sheriff’s Department. After meeting with a

deputy sheriff, Jaques took J.P. to a hospital. Amanda Hayter, a registered nurse, was working in

the emergency room that day and she examined the child’s injuries. Hayter saw what she

described as “obvious” bite marks on J.P.’s cheeks, and three distinct sets of bite marks on the

child’s lips. There was a healing scab on the lip but it had been reinjured. Hayter also found bite

marks on the child’s thighs and arm. The bruise associated with the bite mark on the front of the

right thigh was a brownish purple while the one on the front of the left thigh was purple and red.

A bite mark on the back of the left thigh was purple. The bite mark on the left arm was red.

Hayter explained to the jury that bruises usually heal within seven to ten days and they change

colors during the course of the healing process. Hayter expressly testified that the bite marks

were in various stages of healing. Appellant admitted during his interview with law enforcement

officers that he had bitten the child’s face, but he initially denied biting her on the arms and legs.

At the end of the interview, however, Appellant indicated he had also bitten the child’s arm and

legs. Ricardo Carreon, an investigator for the Texas Department of Family and Protective

Services, also interviewed Appellant regarding the child’s injuries. Appellant told Carreon that

he woke up and saw J.P. kicking her legs like she was peddling a bicycle and he went over to her

and bit her on the leg. The child reacted by crying out in pain. Appellant hugged J.P. and told



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her he was sorry. Appellant told Carreon that he left the room, but he returned several times and

bit J.P. on both sides of the face, the arm, and both legs. Both his wife and aunt had asked him to

stop biting the child but he did not stop. Appellant testified at trial and denied ever biting his

daughter, and he claimed to have instead sucked on her face, arm, and legs with his mouth.

         The jury found Appellant guilty on all three counts of bodily injury to a child. After the

jury returned its verdict but before the sentencing phase, defense counsel requested that the State

choose one count on which to proceed to punishment. Appellant’s counsel argued that, by

indicting Appellant on three felony counts occurring “on or about December 20, 2011,” the State

effectively alleged all three counts had occurred during the same transaction.                           Appellant’s

counsel then asserted an objection to proceeding to the punishment phase on all three counts as a

violation of the prohibition against double jeopardy.                   The trial court effectively overruled

Appellant’s objection1 and the punishment charge included all three counts. The jury assessed

Appellant’s punishment on each count at a fine of $5,000 and imprisonment for a term of eight

years. The judgment provides that the sentences will run concurrently.

                                                 DOUBLE JEOPARDY

         In his sole issue, Appellant asserts that his conduct constituted a single offense and his

conviction of and punishment for three separate counts violated the prohibition against double

jeopardy under both the Texas and United States constitutions.

                                      Waiver of Separate Analysis of
                                Federal and State Constitutional Provisions

         It is well established that an appellant waives separate analysis of his federal and state

constitutional rights when he fails to point out any meaningful distinctions between the two. See

Barley v. State, 906 S.W.2d 27, 36 (Tex.Crim.App. 1995); Heitman v. State, 815 S.W.2d 681,

1
  The trial court stated that the objection was sustained, but announced that the case would proceed to the jury on all
three counts. The punishment charge included all three counts.

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690 n.23 (Tex.Crim.App. 1991). The Court of Criminal Appeals has held that the double

jeopardy protection provided by Article I, Section 10 of the Texas Constitution is conceptually

identical to that provided by the Fifth Amendment. Phillips v. State, 787 S.W.2d 391, 393 n.2

(Tex.Crim.App. 1990).      Appellant does not distinguish the federal and state constitutional

protections against double jeopardy or explain how the Texas Constitution provides different

protection. Accordingly, we will restrict our review to the federal double jeopardy provision.

See Heitman, 815 S.W.2d at 690 n.23.

                          The Fifth Amendment Double Jeopardy Claim

       The Double Jeopardy Clause of the United States Constitution 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. United States v.

Dixon, 509 U.S. 688, 695-96, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 (1993); Langs v. State, 183

S.W.3d 680, 685 (Tex.Crim.App. 2006). Appellant asserts that he has been improperly subjected

to multiple punishments for the same offense.

       As a general rule, a party must preserve an appellate complaint by making a timely and

specific objection, motion, or request in the trial court. See TEX.R.APP.P. 33.1. The Court of

Criminal Appeals has held that a potential multiple-punishment double-jeopardy claim may be

forfeited if the defendant does not properly preserve the claim by raising it in the trial court at or

before the time the charge is submitted to the jury. Langs, 183 S.W.3d at 686 & n.22; Gonzalez

v. State, 8 S.W.3d 640, 642-43 (Tex.Crim.App. 2000). Requiring the defendant to preserve his

multiple punishments claim serves legitimate state interests and is consistent with the underlying

policies of the general rules of procedural default because the trial court and the prosecution has




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an opportunity to remove the basis of the objection and avoid the risk of an unnecessary retrial.

Langs, 183 S.W.3d at 686 n.22, citing Gonzalez, 8 S.W.3d at 645-46.

       The record before us does not reflect that Appellant objected to the indictment on double

jeopardy grounds.    Further, he did not raise a double-jeopardy objection before the guilt-

innocence charge was submitted to the jury. Appellant instead waited until after the jury had

returned guilty verdicts on all three counts to object. This objection was untimely, but the Court

of Criminal Appeals has recognized a limited exception to the preservation requirement. A

defendant is permitted to raise a double-jeopardy claim 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.

Langs, 183 S.W.3d at 686 n.22; Gonzalez, 8 S.W.3d at 642-43. A double-jeopardy claim is

apparent on the face of the trial record if resolution of the claim does not require further

proceedings for the purpose of introducing additional evidence in support of the double-jeopardy

claim. Ex parte Denton, 399 S.W.3d 540, 544 (Tex.Crim.App. 2013); Ex parte Knipp, 236

S.W.3d 214, 216, n.3 (Tex.Crim.App. 2007); Gonzalez, 8 S.W.3d at 643.

       In Huffman v. State, 267 S.W.3d 902, 907 (Tex.Crim.App. 2008), the Court of Criminal

Appeals examined several cases addressing what constitutes the “same offense” in the context of

double-jeopardy and jury-unanimity issues, including injury to a child cases, and it reached the

following conclusion:

       The common thread in all of these cases seems to be ‘focus.’ We use grammar
       and we look to other factors bearing on whether different legal theories constitute
       the ‘same’ offense or ‘different’ offenses, but those tools seem useful mainly as
       an aid to determining focus. The focus or ‘gravamen’ of the offense seems to be
       one of the best indicators of the allowable unit of prosecution prescribed by the
       legislature. If the focus of the offense is the result—that is, the offense is a ‘result
       of conduct’ crime—then different types of results are considered to be separate
       offenses, but different types of conduct are not. On the other hand, if the focus of

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       the offense is the conduct—that is, the offense is a ‘nature of conduct’ crime—
       then different types of conduct are considered to be separate offenses.

Huffman, 267 S.W.3d at 907.

       Injury to a child is a result-oriented offense. See Williams v. State, 235 S.W.3d 742, 750

(Tex.Crim.App. 2007); Villanueva v. State, 227 S.W.3d 744, 748-49 (Tex.Crim.App. 2007). In a

result-oriented offense, the focus or gravamen of the offense is the result of the criminal conduct

and the bodily injury suffered by the victim. See Villanueva, 227 S.W.3d at 748. Consequently,

whether separate legal theories comprise separate offenses depends upon whether the theories

differ with respect to the result of the defendant’s conduct. Huffman, 267 S.W.3d at 905.

       The indictment charged Appellant with violating the injury to a child statute by biting his

daughter on three different parts of her body on the same on-or-about date. Appellant argued in

the trial court that this amounted to an allegation that he committed the acts on the same date,

and therefore, it is a single offense. We disagree. An indictment may allege any date that is

within the statute of limitations for the charged offense and before the date of the presentment of

the indictment. Ex parte Goodman, 152 S.W.3d 67, 71 (Tex.Crim.App. 2004); Sledge v. State,

953 S.W.2d 253, 255-56 (Tex.Crim.App. 1997). When an indictment alleges that an offense

occurred on or about a particular date, the accused is put on notice to prepare for proof that the

offense happened at any time within the statutory period of limitations. Thomas v. State, 444

S.W.3d 4, 9 (Tex.Crim.App. 2014). Consequently, the conduct that formed the basis of each

count could have taken place on different dates rather than on the same date as claimed by

Appellant.

       There is no undisputed evidence in the record showing that all of the biting injuries

occurred at the same time during a single biting incident. J.P.’s mother observed Appellant bite

the child on the morning of December 20, 2011, and she also observed other bite marks on the

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child’s face, arm, and legs. The nurse who examined J.P. later that same morning testified that

the bite marks were in different stages of healing. Thus, the evidence supports a conclusion that

the visible biting injuries to J.P.’s face, arm, and legs were inflicted on different dates and are

discrete injuries.   To present his double jeopardy claim, additional proceedings would be

required for Appellant to establish that the biting injuries which are the subject of the indictment

were inflicted at the same time in a single assaultive event. We conclude that Appellant is not

permitted to raise his double jeopardy claim in this appeal because he failed to show that the

undisputed facts establish that a double jeopardy violation is apparent on the face of the record.

It is unnecessary to analyze the second prong of the test.

       Even if Appellant had preserved his double jeopardy claim, we would conclude based on

the record before us that the biting injuries to the child’s face, arm, and legs are separate and

discrete injuries resulting from different assaults on the child, and therefore, they are not the

same injury to a child offense for purposes of a double jeopardy analysis. We overrule the sole

issue presented and affirm the judgment of the trial court.



September 2, 2015
                                              ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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