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Click here for the full text of this decision FACTS:At the time of the offense, Gregory Lee Villaneuva was living with his girlfriend Amanda Legg, their two-month-old son, G.V., and Legg’s aunt and several other people in a single-wide trailer in Somerville. In the late evening of July 29, 2003, Legg was bathing G.V. in the bathtub. After a while, she asked Villaneuva to take G.V. back to the bedroom that they shared in the trailer while she finished her own bath. Through the wall she heard “the bed frame squeaking, really loud.” She got out of the bathtub to investigate and found G.V. awake and responsive at the foot of the bed. She dressed and went out to the kitchen, leaving G.V. alone in the bedroom with Villaneuva for the next 30 minutes to 45 minutes. Returning to the bedroom, Legg found G.V. limp and making grunting noises, and she noticed for the first time that he had “a bruise on his inner-right ear and down the right side of his face and on the left side of his face.” Legg told Villaneuva that she wanted to take G.V. to the hospital because something wasn’t right, but Villaneuva said if they took him to the hospital that they would see the bruises and “call in CPS and they would blame us for it.” During the argument Villaneuva took G.V. from Legg. As Villaneuva held G.V., G.V. experienced an episode in which “he bowed his back and put his chest out.” G.V. had experienced a similar seizure-like episode about a week earlier, and Legg had resolved to take G.V. to the hospital if it should ever happen again. She “panicked and . . . ran down the hallway to go call for help[.]” Villaneuva followed her, took her by the arm and led her back to the bedroom. Legg decided to wait for Villaneuva to fall asleep and then seek help, but she fell asleep before Villaneuva did. The next morning when they awoke, G.V. was running a high fever, and one of his eyes “was off to the right and it wasn’t moving.” Legg’s aunt called the pediatrician, who advised that they place G.V. in a bath at room temperature to reduce the fever and then immediately bring him to the clinic. Legg and Villaneuva followed these directions. Then they took G.V. to the pediatrician’s clinic and then to an emergency room in Brenham. Eventually, G.V. was life-flighted to a hospital in Austin. He exhibited symptoms of shaken-baby syndrome, including retinal hemorrhaging and intracranial bleeding. Six days later, on Aug. 5, 2003, he died. In a two count indictment, authorities charged Villanueva with: 1. intentionally or knowingly causing serious bodily injury to his infant son by the acts of shaking him and striking him against an unknown object; and 2. with intentionally or knowingly causing serious bodily injury to his infant son by omitting to seek medical attention for him once he had thus injured him, having a legal duty to do so. Both counts were submitted to the jury, which convicted Villaneuva of both and eventually assessed his punishment for each conviction at 50 years of confinement in the penitentiary and a fine of $5,000. Villaneuva appealed both convictions. On appeal he argued, inter alia, that his punishment for serious bodily injury of his son under both counts of the indictment violated double jeopardy. The 1st Court of Appeals rejected that contention. HOLDING:Affirmed in part, reversed and remanded in part. The Fifth Amendment double jeopardy clause protects against multiple prosecutions for the “same offense” following acquittal or conviction. It also protects against multiple punishments for the “same offense.” Villaneuva pleaded guilty to both offenses in a single proceeding. Because Villaneuva received two punishments in the course of a single proceeding, the CCA was only concerned with the meaning of “same offense” in that context. On the facts of the case, the CCA noted, Villaneuva prevented Legg from taking G.V. to the hospital right after he apparently engaged in the conduct that caused the injury. But by the next morning, when G.V.’s condition had obviously worsened, Villaneuva did nothing to prevent Legg from taking G.V. in for treatment indeed, he accompanied them. In finding no double-jeopardy violation on these facts, the 1st Court also relied upon the CCA’s 1973 opinion in Luna v. State, in which the CCA held it permissible to convict a defendant for two violations of the same statutory provision on the same day, so long as the state could prove that two separate and discrete incidents occurred on that day comprising two violations of the same statutorily defined offense. Had Villaneuva continued to prevent Legg from taking G.V. to the hospital on the morning of July 30, 2003, when G.V.’s condition was obviously deteriorating and it was apparent that he might suffer further serious bodily injury absent medical intervention, the CCA stated that the principle in Luna “could well apply.” Under those hypothetical circumstances, the CCA stated, it could reasonably be said that the failure to seek treatment for G.V.’s apparent injuries resulted in a separate and discrete, or at least incrementally greater, injury for which Villaneuva could also be held criminally accountable without violating double jeopardy. Thus, the CCA held that Villaneuva could not be punished for both his act and his omission. The CCA remanded the cause to the 1st Court with instructions to vacate the judgment of conviction for injury to a child by omission. OPINION:Price, J., delivered the opinion of the court in which Meyers, Keasler, Hervey, Holcomb and Cochran, JJ., joined. CONCURRENCES:Cochran, J., filed a concurring opinion. “I join the majority opinion. I agree that, as we so recently reiterated in Jefferson v. State, (1) the gravamen of the offense of injury to a child is the result of the criminal conduct � the serious bodily injury or death suffered by the victim � not whether that injury was caused by an affirmative act or a failure to act” Womack and Johnson, JJ., concurred in the result without a written opinion. DISSENT:Keller, P.J., filed a dissenting opinion. “Failure to render aid is a stand-alone offense, as is failure to report a felony and failure to stop and render aid, to mention but a few examples. These statutes reflect the legislature’s effort to encourage the amelioration of injury. The Court’s opinion thwarts this common-sense proposition. “In this sad case, appellant committed not one crime, but two.”

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