                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00285-CR

RONALD WAYNE JACKSON JR.,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



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


                         MEMORANDUM OPINION


      In this appeal, appellant, Ronald Wayne Jackson Jr., challenges his convictions

for injury to a child with a deadly weapon for which he received a fifty-year sentence

and injury to a child by omission for which he received a sixty-year sentence. See TEX.

PENAL CODE ANN. § 22.04(a)-(b) (West Supp. 2012). In three issues, appellant argues

that: (1) the evidence is insufficient to support the jury’s findings that he used or

exhibited a deadly weapon and caused “serious bodily injury”; and (2) his conviction

for injury to a child by omission should be vacated because the convictions violate the
Double Jeopardy Clause of the United States Constitution. See U.S. CONST. amend. V.

We affirm, in part, and reverse and render, in part.

                                    I.     BACKGROUND

        On May 10, 2011, Cameron Garrett, a second-grade teacher at La Vega

Elementary School, noticed that one of her students was moving slow to class and

acting unusually. The child, appellant’s nine-year-old son, told Garrett that he did not

feel well. Garrett recalled that the child had been absent from school the previous two

school days. After further observation, Garrett emailed the school’s counselor, Gordon

Heath, about the student’s condition and eventually sent the child to Heath.

        Heath noticed that the child was limping around, and he later noticed an injury

to the child’s foot. Upon questioning, the child revealed to Heath that appellant had hit

him with a club a few days prior. Heath also noticed that the child’s hand was swollen.

Heath determined that the school’s registered nurse, Patricia Lednicky, needed to

examine the child for further injuries.

        Lednicky testified that, when presented, the child was “very matter of fact. Just,

I mean, no emotion, just not crying, not upset. Just, you know, very cooperative. He

was willing to show us.” Lednicky recounted that:

        He showed us his hand first and it was bruised. The right hand was
        bruised on the palm and the top of the hand was swollen. He didn’t have
        very much motion. I asked him to try to do this, and he just could do it a
        little bit just moving his hand. Then he showed me his toe, right toe, and
        it was red and swollen and it looked kind of wet like it was draining. The
        skin was a little bit torn off on the toe. And then he showed us the
        buttocks area, and the buttocks area had several scabs on both buttocks
        areas. And on the right buttocks, there was also two areas that were, like,
        raw, fresh wounds, like—like scrapes.

Jackson v. State                                                                      Page 2
                   ....

        No. No. But the skin was, you know, gone. It was like, raw.

                   ....

        Like—and it wasn’t bleeding, but it was draining. Which on his
        underwear and his—he was wearing some light-colored pants, there was
        a stain there like it had been draining.

                   ....

        Well, then he showed us his arm, left arm, and it was bruised also. And I
        asked him what, you know, what happened. And he said that—he told
        me that on his toe and hand—on his foot and hand that his dad had hit
        him with a golf club.

With regard to his buttocks, the child told Lednicky that appellant had hit him with a

“two-by-four” board and a golf club. It was later alleged that appellant had also struck

the child with a water hose.

        In addition to Lednicky’s testimony, Sarah Hopkins McCormick, an employee of

the Texas Department of Family and Protective Services, also described the child’s

injuries as follows:

        No. [The child] had fractures in his hand. He had multiple bruises all
        over his body in various stages of healing. Some of them were raised.
        Some of them were flat. [The child] is a dark child, so bruising on darker
        children are [sic] sometimes—it’s a little bit harder to see. But they were
        so apparent on him. He had cuts and lacerations on his feet. The entire
        back side or—I say the entire. But a four-inch by two-inch section was
        completely taken off of his behind. That is not something that he could,
        number one, inflict on himself or another child would be able to inflict on
        him.

The child was subsequently taken to the hospital for treatment, and police and Child

Protective Services began investigating the incident.

Jackson v. State                                                                      Page 3
        Michael Gates, an investigator with the McLennan County Sheriff’s Office,

interviewed appellant about the incident. Gates recounted that appellant wanted “to

know what was going on” when the interview started.                            But, as the interview

progressed, appellant became “very defensive, loud, and . . . aggressive.” Gates did not

believe that appellant was genuinely concerned about the child’s well-being. Appellant

told Gates that the child’s injuries were caused by a fight that the child had with

neighborhood kids. Appellant admitted that he did not call the police or seek medical

attention for the child after the alleged fight transpired.                   Appellant denied ever

spanking the child.1 Instead, appellant stated that he disciplined the child by making

him do sit-ups and push-ups, which would help prepare the child for football.

        Clorice Fahie, appellant’s girlfriend, and Maurice Preston, appellant’s friend who

lived in the house and who the children referred to as uncle, both testified that

appellant spanked the child on the day of the incident. Fahie, admitting that she was

not as forthcoming with information initially, testified that appellant began hitting the

child because the child had not washed dishes correctly and had gotten in trouble at

school. Fahie recalled that appellant hit the child with a belt and a board. Preston

noted that appellant had told him the following:



        1 Evidence was presented of several other instances where the child in this case alleged that
appellant abused him. Heath noted that, in a prior incident, he noticed that the child had puncture
wounds around his waist. Heath testified that it looked like the skin had been pierced in three or four
places and that he believed the wounds were caused by appellant spanking the child with a belt with the
belt buckle causing the wounds. Appellant testified that he had never spanked the child, but he
acknowledged that the child alleged in 2010 that appellant had hit the child with a stick. Appellant also
noted that the child alleged that appellant had made him drink fish water on another occasion.
Apparently, with respect to each of these allegations, Child Protective Services closed the case due to lack
of evidence.

Jackson v. State                                                                                     Page 4
        It was like, he [appellant] whopped [the child]. I was, like, what you
        whopped [the child]. He was, like, I whopped [the child] pretty bad. I
        was, like, what you mean you whipped [the child] pretty bad. That’s
        when he told me, well, he whopped him with a two-by-four. At first he
        started with a water hose. From there, he was hitting himself so much
        with the water hose, he got tired of hitting himself with the water hose
        that he grabbed a two-by-four. He said the two-by-four eventually gave
        out and broke, so he went and grabbed a golf—and I think he went and
        grabbed a golf club and he hit [the child] with a golf club.

During the course of their investigation, law enforcement discovered that the evidence

and statements corroborated the child’s version of the events rather than appellant’s.

        Appellant was charged by indictment with one count of injury to a child with a

deadly weapon and one count of injury to a child by omission. See id. § 22.04(a)-(b).

The indictment also contained a deadly-weapon paragraph, which alleged that

appellant “used or exhibited a deadly weapon, to wit: belt or board or hose or golf club,

during the commission of or immediate flight from said offense . . . .” At the conclusion

of the evidence, the jury found appellant guilty of the charged offenses in both counts.

Moreover, a deadly weapon finding was made. The jury assessed punishment at fifty

years’ incarceration in the Institutional Division of the Texas Department of Criminal

Justice for the one count of injury to a child with a deadly weapon (Count 1) and sixty

years’ incarceration for the one count of injury to a child by omission (Count 2). The

imposed sentences were ordered to run concurrently.            The trial court certified

appellant’s right to appeal, and this appeal followed.

                              II.   EVIDENTIARY SUFFICIENCY

        In his first two issues, appellant asserts that the evidence adduced at trial is

insufficient to establish that: (1) he used or exhibited a deadly weapon during the

Jackson v. State                                                                   Page 5
commission of the charged offense of injury to a child; and (2) the alleged conduct

caused “serious bodily injury” to the child victim. We disagree.

A.      Applicable Law

        The Texas Court of Criminal Appeals, in Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010), abandoned the factual-sufficiency standard in criminal cases; thus,

we need only consider the sufficiency of the evidence under the legal-sufficiency

standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.

2d 560 (1979).

        In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct.

2712, 183 L. Ed. 2d 71 (2012), the Texas Court of Criminal Appeals expressed our

standard of review of a sufficiency issue as follows:

        In determining whether the evidence is legally sufficient to support a
        conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560
        (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This
        “familiar standard gives full play to the responsibility of the trier of fact
        fairly 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. “Each fact need not point directly and independently to the
        guilt of the appellant, as long as the cumulative force of all the
        incriminating circumstances is sufficient to support the conviction.”
        Hooper, 214 S.W.3d at 13.

Id.

        Our review of "all of the evidence" includes evidence that was properly and

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if


Jackson v. State                                                                         Page 6
the record supports conflicting inferences, we must presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that determination.

Jackson, 443 U.S. at 326; 99 S. Ct. at 2793.      Furthermore, direct and circumstantial

evidence are treated equally:       “Circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that

the factfinder is entitled to judge the credibility of the witnesses and can choose to

believe all, some, or none of the testimony presented by the parties. Chambers v. State,

805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

        The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). Here, appellant was charged with a first-degree

felony in Count 1. See TEX. PENAL CODE ANN. § 22.04(a), (e). Thus, with regard to Count

1, under a hypothetically correct jury charge, the State was required to prove beyond a

reasonable doubt that appellant intentionally or knowingly caused serious bodily injury

to a child—a person fourteen years of age or younger. See id. § 22.04(a), (c)(1).

        A person acts intentionally with respect to the result of his conduct when it is his

conscious objective or desire to cause the result. Id. § 6.03(a) (West 2011). A person acts

knowingly with respect to a result of his conduct when he is aware that his conduct is

reasonably likely to cause the result. Id. § 6.03(b). Intent can be inferred from the extent

of the injuries to the victim, the method used to produce the injuries, and the relative

size and strength of the parties. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App.

Jackson v. State                                                                        Page 7
1995). It can also be inferred from circumstantial evidence, such as acts, words, and

appellant’s conduct.       Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).

Furthermore, “serious bodily injury” is a “bodily injury that creates a substantial risk of

death or that causes death, serious permanent disfigurement, or protracted loss or

impairment of the function of any bodily member or organ.” TEX. PENAL CODE ANN. §

1.07(a)(46) (West 2011).

B.      Serious Bodily Injury

        Here, the child’s teacher and the school’s counselor testified that they saw the

child limping at school. According to Heath, the child stated that his father hit him in

the foot with a club, which, among other things, tore off some of the skin from the

child’s toes and impaired the use of his foot. Heath also noticed that the child’s right

wrist was swollen. The child told Heath that he was unable to move his fingers on his

dominant hand at least three days after the incident and for some time thereafter.

Ultimately, it was determined that the child’s hand was fractured.            In addition,

witnesses testified that a “four-inch by two-inch” section of skin was missing on the

child’s buttocks as a result of the incident. This injury was so severe that the child bled

through the underwear and jeans that he had worn to school. Patricia Lednicky, the

school’s nurse, noted that she had never seen such severe injuries on a student. When

presented to Lednicky, the injury to the child’s buttocks was untreated and not

bandaged. Lednicky opined that this injury, if left untreated, could become infected

and result in blood poisoning.       In addition, witnesses testified that the child was

lethargic and dazed at school on the first day back after the incident and that the child

Jackson v. State                                                                     Page 8
had trouble ingesting food because the pain was so severe that it caused him to vomit.

Furthermore, several witnesses opined that the injuries sustained by the child in this

case were severe enough as to constitute “serious bodily injury.”2

        In determining whether the evidence is sufficient to establish “serious bodily

injury,” the relevant issue is the disfiguring or impairing effect of the bodily injury as it

was inflicted, not after the effects have been ameliorated or exacerbated by other actions

such as medical treatment. Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App. [Panel

Op.] 1980) (citing Boney v. State, 572 S.W.2d 529 (Tex. Crim. App. 1978) (concluding that

evidence showing a wound, if unattended, could cause substantial risk of death was

sufficient even though the wound was later repaired)); see Stuhler v. State, 218 S.W.3d

706, 714 (Tex. Crim. App. 2007); Fancher v. State, 659 S.W.2d 836, 838 (Tex. Crim. App.

1983) (en banc). Instead, we must determine whether an injury constitutes a serious

bodily injury on a case-by-case basis, evaluating each case on its own facts to determine

whether the evidence was sufficient to permit the factfinder to conclude that the injury

fell within the definition of “serious bodily injury.” See Moore v. State, 739 S.W.2d 347,

352 (Tex. Crim. App. 1987) (en banc); Eustis v. State, 191 S.W.3d 879, 884 (Tex. App.—

Houston [14th Dist.] 2006, pet. ref’d).

        “Serious bodily injury” may be established without a physician’s testimony

when the injury and its effects are obvious. See Carter v. State, 678 S.W.2d 155, 157 (Tex.

App.—Beaumont 1984, no pet.); see also Sizemore v. State, No. 07-11-00424-CR, 2012 Tex.


        2 In fact, Robert Fuller, supervisor of detectives at the McLennan County Sheriff’s Office, noted
that he had never seen such severe injuries on a child before. He also testified that having a broken hand
on his dominant hand would lead to a “protracted loss.”

Jackson v. State                                                                                   Page 9
App. LEXIS 8743, at *7 (Tex. App.—Amarillo Oct. 19, 2012, no pet.). The person who

sustained the injury at issue is qualified to express an opinion about the seriousness of

that injury. See Hart v. State, 581 S.W.2d 675, 677 (Tex. Crim. App. [Panel Op.] 1979);

Coshatt v. State, 744 S.W.2d 633, 636 (Tex. App.—Dallas 1987, pet. ref’d); see also Sizemore,

2012 Tex. App. LEXIS 8743, at *7. Moreover, there are no wounds that constitute

“serious bodily injury” per se. Hernandez v. State, 946 S.W.2d 108, 111 (Tex. App.—El

Paso 1997, no pet.).

        The jury was free to apply common sense, knowledge, and experience gained in

the ordinary affairs of life in drawing reasonable inferences from the evidence

presented to it. Eustis, 191 S.W.3d at 884. And based on the evidence presented of the

child’s injuries, we conclude that the jury could have rationally concluded that the child

suffered serious bodily injuries at the hands of appellant. See, e.g., Brown, 605 S.W.2d at

575 (holding that the evidence was sufficient to prove “serious bodily injury” where the

victim’s nose was broken and deformed on the day of the offense but was later set to

prevent disfigurement and impairment of function); Eustis, 191 S.W.3d at 884 (finding

evidence that the victim was treated for two broken arms, two broken legs, and

multiple contusions and bruises at various stages of healing as a result of a beating by a

baseball bat was sufficient to demonstrate serious bodily injury); Moore v. State, 802

S.W.2d 367, 369-70 (Tex. App.—Dallas 1990, pet. ref’d) (finding sufficient evidence of

serious bodily injury where the victim’s cheekbone was fractured in three places and

surgery was needed to prevent significant cosmetic deformity); Pitts v. State, 742 S.W.2d

420, 421-22 (Tex. App.—Dallas 1987, pet. ref’d) (concluding that evidence of significant

Jackson v. State                                                                      Page 10
disfigurement was sufficient where the victim suffered five facial fractures).

Accordingly, we hold that the evidence is sufficient to support the jury’s finding that

the child victim sustained serious bodily injuries due to appellant’s actions. See Jackson,

443 U.S. at 319, 99 S. Ct. at 2789; Hooper, 214 S.W.3d at 13; see also TEX. PENAL CODE ANN.

§ 1.07(a)(46). Appellant’s second issue is overruled.

C.      Deadly Weapon

        In his first issue, appellant argues that the evidence is insufficient to show that he

used or exhibited a deadly weapon in the commission of the charged offense. A deadly

weapon is “anything that in the manner of its use or intended use is capable of causing

death or serious bodily injury.” TEX. PENAL CODE ANN. § 1.07(a)(17)(B). This definition

does not require the State to prove that anyone actually died or suffered serious bodily

injury or that the accused intended to cause serious bodily injury. Quincy v. State, 304

S.W.3d 489, 500 (Tex. App.—Amarillo 2009, no pet.); see Lane v. State, 151 S.W.3d 188,

191 (Tex. Crim. App. 2004) (stating that wounds are not a necessary prerequisite for an

object to be considered a deadly weapon; but, injuries, if any, inflicted on the victim are

factors to be considered in determining whether the object was used as a deadly

weapon); Baltazar v. State, 331 S.W.3d 6, 8 (Tex. App.—Amarillo 2010, pet. ref’d).

Rather, it need only prove that the weapon in question was capable of causing serious

bodily injury in the way it was used or intended to be used. Baltazar, 331 S.W.3d at 8.

        In the instant case, the child victim testified that appellant beat him with a water

hose, a two-by-four board, and a golf club. Clorice stated that she observed appellant

beating the child victim with the board and golf club, and Maurice noted that appellant

Jackson v. State                                                                       Page 11
admitted to “whopping” the child victim with the items referenced in the child victim’s

testimony. Further, we have previously concluded that the jury was rationally justified

in concluding that the injuries sustained by the child victim at the hands of appellant

constituted serious bodily injuries. Thus, we conclude that the jury was rationally

justified in concluding that the implements used by appellant—the water hose, two-by-

four board, and golf club—caused or were intended to cause serious bodily injury to the

child, as defined in section 1.07(a)(17)(B) of the Texas Penal Code. See Lane, 151 S.W.3d

at 191; Baltazar, 331 S.W.3d at 8; Quincy, 304 S.W.3d at 500; Eustis, 191 S.W.3d at 884; see

also TEX. PENAL CODE ANN. § 1.07(a)(17)(B). Accordingly, we hold that the evidence is

sufficient to support the jury’s deadly-weapon finding. See Jackson, 443 U.S. at 319, 99 S.

Ct. at 2789; Hooper, 214 S.W.3d at 13; see also TEX. PENAL CODE ANN. § 1.07(a)(17)(B).

Appellant’s first issue is overruled.

                                   III.   DOUBLE JEOPARDY

        In his third issue, appellant contends that his conviction as to Count 2—for injury

to a child by omission—should be vacated because it is the same offense for which the

judgment was entered as to Count 1, violating the double-jeopardy protection against

double punishment. The State concedes this issue.

        In Jefferson v. State, the Texas Court of Criminal Appeals noted that “the essential

element of focus of the statute [section 22.04 of the penal code] is the result of the

defendant’s conduct . . . and not the possible combinations of conduct that cause the

result.” 189 S.W.3d 305, 312 (Tex. Crim. App. 2006). Whether an individual acted to

injure a child or injured a child by omission are simply different manner and means for

Jackson v. State                                                                     Page 12
causing the same result. See id. Thus, the “unit of prosecution” for injury to a child is

the resulting injuries, not the act or omission which caused them. See id.

        The Fifth Amendment to the United States Constitution provides that no person

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

U.S. CONST. amend. V; see McCrary v. State, 327 S.W.3d 165, 176 (Tex. App.—Texarkana

2010, no pet.) (recognizing that: (1) we examine the allowable unit of prosecution,

which is defined by the Legislature and determines if one course of conduct results in

more than one offense; and (2) usually analysis of an allowable unit of prosecution

involves a situation in which two offenses from the same statutory section are charged)

(citing Bigon v. State, 252 S.W.3d 360, 371-72 (Tex. Crim. App. 2008); Ex parte Cavazos,

203 S.W.3d 333, 337 (Tex. Crim. App. 2006)); see also Johnson v. State, 364 S.W.3d 292, 298

(Tex. Crim. App. 2012) (noting that double-jeopardy jurisprudence requires the

determination of the “allowable unit of prosecution,” which constitutes the focus or

gravamen of the offense, and that “[t]he aggravated assault offense at issue is a result-

of-conduct crime with the focus or gravamen being the victim and the bodily injury that

was inflicted.”). Moreover, “[i]n the case of a double-jeopardy violation, the issue may

be addressed as an unassigned error when the violation is apparent from the face of the

record.” Bigon, 252 S.W.3d at 369; see Rangel v. State, 179 S.W.3d 64, 70 (Tex. App.—San

Antonio 2005, pet. ref’d) (“However, an appellant may raise a double jeopardy claim for

the first time on appeal (1) when the undisputed facts show the double jeopardy claim

violation is clearly apparent from the face of the record, and (2) when the enforcement

of the usual rules of procedural default serve no legitimate state purpose.”).

Jackson v. State                                                                          Page 13
        Here, it is undisputed that the error appellant complains about is apparent from

the face of the record. See Bigon, 252 S.W.3d at 369; see also Rangel, 179 S.W.3d at 70.

Therefore, because appellant was convicted in two counts for the same resulting

injuries, we agree that appellant’s convictions violated the Double Jeopardy Clause of

the United States Constitution. See U.S. CONST. amend V; see also Jefferson, 189 S.W.3d at

312. Accordingly, appellant’s third issue is sustained.

                                    IV.    CONCLUSION

        Having concluded that appellant’s convictions violate the Double Jeopardy

Clause, we reverse and render a judgment of acquittal as to Count 1. See Bigon, 252

S.W.3d at 372 (“When a defendant is subjected to multiple punishments for the same

conduct, the remedy is to affirm the conviction for the most serious offense and vacate

the other convictions.”) (citing Ex parte Cavazos, 203 S.W.3d at 337; Landers v. State, 957

S.W.2d 558, 559-60 (Tex. Crim. App. 1997)). We reverse appellant’s conviction in Count

1 because he received a lesser sentence in Count 1—fifty years—as opposed to Count

2—sixty years. See id. at 373 (noting that the most serious offense is the offense in which

the greatest sentence was assessed). Appellant has not challenged his conviction as to

Count 2. Accordingly, we affirm appellant’s conviction in Count 2.




                                                 AL SCOGGINS
                                                 Justice




Jackson v. State                                                                    Page 14
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray dissenting)
Affirmed, in part, and reversed and rendered, in part
Opinion delivered and filed February 14, 2013
Publish
[CRPM]




Jackson v. State                                        Page 15
