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finding grandmother assumed care, custody, or control because she watched the child in the absence of the child's mother and regulated the child's food consumption, medical attention, and movement
Summary of this case from Tijerina v. StateOpinion
No. 04-05-00369-CR
Delivered and Filed: June 21, 2006. DO NOT PUBLISH.
Appeal from the 379th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-2865E, Honorable Bert Richardson, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Mary DeLeon was convicted of the offenses of injury to a child, unlawful restraint, and endangering a child after her grandson, Jovonie Ochoa, died of starvation. We affirm the trial court's judgment.
Background
On December 25, 2003, emergency personnel responded to a call for medical assistance at the residence of Mary DeLeon. When emergency personnel arrived at DeLeon's residence, they found DeLeon's four-year-old grandson, Jovonie Ochoa, lying on the floor without a pulse and not breathing. Emergency personnel attempted to revive Jovonie, but the rescuers' efforts were unsuccessful. Jovonie was pronounced dead at the hospital a short while later. DeLeon was charged with the offenses of injury to a child, unlawful restraint, and endangering a child after an autopsy revealed Jovonie died of long-term starvation. A jury convicted DeLeon of the alleged offenses and assessed her punishment at life imprisonment for injury to a child, ten years confinement for unlawful restraint, and two years confinement for endangering a child. The jury also found that DeLeon used a deadly weapon during the commission of the alleged offenses. DeLeon subsequently filed this appeal, claiming: (1) the evidence is insufficient to support her conviction for injury to a child; (2) the evidence is insufficient to supportthe jury's finding that she used a deadly weapon in her commission of the alleged offenses; and (3) her convictions violate her double jeopardy rights.Sufficiency of the Evidence
DeLeon complains there is both legally and factually insufficient evidence to support either her conviction for injury to a child or the jury's finding that she used a deadly weapon during her commission of the alleged offenses. The standard for reviewing a challenge to the legal sufficiency of the evidence is the same for both direct and circumstantial evidence cases. Sutherlin v. State, 682 S.W.2d 546, 548-49 (Tex.Crim.App. 1984). When a party attacks the legal sufficiency of the evidence, we view the evidence in a light most favorable to the verdict and 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 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). Although our analysis considers all the evidence presented at trial, we may notre-evaluate the weight and credibility of the record evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); Dewberry, 4 S.W.3d at 740. If any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm the trial court's judgment. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). The standard for reviewing a challenge to the factual sufficiency of the evidence is also the same for both direct and circumstantial evidence cases. King, 29 S.W.3d at 565. When reviewing the factual sufficiency of the evidence, there is only one question to be answered: considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). There are two ways in which evidence may be factually insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. at 485. In a factual sufficiency review, we give deference to the jury's determinations, including determinations involving the credibility and demeanor of witnesses. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). We may not substitute our judgment for that of the jury. Zuniga, 144 S.W.3d at 482. Moreover, we will not set aside the judgment unless the jury's verdict was clearly wrong and manifestly unjust, i.e., where the jury's finding "shocks the conscience" or "clearly demonstrates bias." Id. at 481.A. Injury to a Child
DeLeon contends the evidence is both legally and factually insufficient to support her conviction for injury to a child. A person commits the offense of injury to a child if she intentionally or knowingly, either by act or omission, causes serious bodily injury to a child. An omission may result in criminal liability only if the actor has assumed care, custody, or control of the child. Tex. Penal Code Ann. § 22.04(b)(2) (Vernon 2003). "The actor has assumed care, custody, or control [of the child] if [s]he has by act, words, or course of conduct acted so as to cause a reasonable person to conclude that [s]he has accepted responsibility for protection, food, shelter, and medical care for [the] child." Id. § 22.04(d). DeLeon's sufficiency complaint focuses exclusively on whether there is sufficient evidence to show that she assumed care, custody, or control of Jovonie. The record shows the State presented eight witnesses at trial. The State's first witness, Craig Allen, an emergency medical technician, testified he was dispatched to DeLeon's residence on December 25, 2003 at 4:00 a.m. to respond to a cardiac arrest in progress. Upon his arrival at the scene, he observed Jovonie lying on his back on a hallway floor. Allen stated Jovonie looked like a "skeleton with skin." Allen stated the child had no pulse and was not breathing. Although he thought Jovonie was deceased, he attempted to resuscitate the child. Allen further stated he tried to secure information from DeLeon regarding Jovonie's name, age, and medical history as he tried to revive the boy. According to Allen, DeLeon told him that she did not know any of the requested information concerning the child. A second emergency medical technician, David Waterson, also testified at trial. He stated he was part of a second team of medical technicians dispatched to DeLeon's residence on December 25, 2003. After Waterson was initially dispatched to the residence, he was notified by dispatch that someone from the residence had called and canceled the request for medical assistance because everything was "ok." Before returning to his station, however, Waterson was notified that a pediatric arrest had in fact occurred at DeLeon's residence and his unit needed to respond. Waterson arrived at DeLeon's residence with his partner and began to assist the other medical technicians in their effort to resuscitate Jovonie. He testified Jovonie looked like one of the "individuals who were in the concentration camps in Germany during World War II." Waterson, like Allen, stated DeLeon would not provide technicians with any information concerning Jovonie. Finally, Waterson stated Jovonie was taken to a hospital and pronounced dead at approximately 5:00 a.m. on December 25, 2003. Bexar County Sheriff's Deputy Brian Stach testified that he was dispatched to DeLeon's residence on December 25, 2003. He stated he observed Jovonie lying on the floor and receiving aid from medical personnel when he arrived at the scene. Officer Stach testified Jovonie reminded him of the "Holocaust victims from Auschwitz and Dachau." He stated Jovonie's "legs were extremely thin . . . [t]he joints, the knees, the elbows looked to be about the size of tennis balls perched on top of toothpicks . . . [t]he head . . . looked out of proportion to the size of the body." Officer Stach testified DeLeon told him Jovonie's mother dropped the boy off at her house at approximately 7:00 p.m. on December 24, 2003. Upon seeing Jovonie's physical condition, DeLeon allegedly asked Jovonie's mother about the boy's health and was told Jovonie "was under a doctor's care and not to worry about it." DeLeon told Officer Stach that nothing unusual happened with respect to Jovonie that evening. Officer Stach stated Jovonie allegedly played with his sisters, opened Christmas presents, and fell asleep at around 10:00 p.m. that night. He further testified DeLeon indicated that her family called for medical assistance as soon as they discovered Jovonie in an unresponsive state the next morning. A second officer, Alfred Damiani, testified he was assigned to investigate the cause of Jovonie's death. According to Officer Damiani, DeLeon provided investigators with a written statement concerning the events surrounding Jovonie's death. Officer Damiani was permitted to read DeLeon's written statement to the jury, which provided, in relevant part, as follows:I am the grandmother of Jovonie Ochoa. I believe he was the son of my son, Domingo Esqueda. I am not 100 percent sure about that, but it doesn't matter because I always treated him like he was my grandson. Domingo Esqueda [is] in TDC for murder.Yesterday evening, Wednesday, December 24th, 2003, at about 7 p.m., Liza Ochoa came to my home on Potter Valley. She arrived with Jovonie and his sisters Ariel and Felicia. She was also with her lover Jo Ann Vasquez. All Liza told me was that she needs to drop off the children. She didn't say for how long or why or where she was going. When I saw Jovonie I was concerned right away. When Liza brought Jovonie to the house I didn't want to keep him because of his condition. He was skinny — he was skin and bones. When my daughter Dolores saw Jovonie she asked Liza why he was so thin. Liza told her that Jovonie eats but he doesn't gain weight. Anyway my husband didn't want me to take Jovonie because of the way he was, but I decided to take him anyway. I thought I would let him stay over the weekend and then call CPS on the following Monday. After Liza dropped Jovonie off she left. Jovonie stayed to play with the other kids and after a while he got — he got a Christmas present and continued to play. A — a little later I fed Jovonie about half a package of crackers. I put Jovonie to bed around midnight. He said that he was tired. When he went to bed he looked fine to me. At some point during the night I checked on Jovonie because I was going to move him to another bed. When I did, I noted that he was moaning in his sleep. I called my daughter Dolores for her to come check on Jovonie. And she said he wasn't breathing. Dolores called 911 and they told her to give Jovonie mouth-to-mouth resuscitation. While Dolores did that I went outside and waited for the ambulance so they would be able to find us easily. When the ambulance arrived they started working on Jovonie and they took him to the hospital. Last time that I had seen Jovonie was during the summer. When I saw him he was — he was just as thin as he was last night. In addition, to being thin he also had bruises on his face and forehead. They were not recent bruises. They were yellow like they were going — like they were going away. That's all I know about this situation. I will cooperate in this investigation. Officer Damiani testified he concluded that Jovonie's death was caused by starvation based upon his investigation. He further testified his investigation led him to believe Jovonie had resided with DeLeon since October 2003. The officer noted, however, that Jovonie may have started living with DeLeon as early as August 2003. Another Bexar County Sheriff's Deputy, Jesse Padilla, testified he helped execute a search warrant on DeLeon's residence following Jovonie's death. He stated he searched a child's bedroom and observed the remains of fresh duct tape on the railings of a bunk bed in the room. Officer Padilla stated he also found a cloth cord tied to the railing of the bunk bed. Maria Esqueda, DeLeon's daughter, also testified during the State's case in chief. Esqueda testified the first time she saw Jovonie was at a birthday party for her daughter in August 2003. She stated Jovonie came with DeLeon and appeared "skinny" but "kind of healthy." She further stated her sister, Dolores, had told her that Jovonie was living with DeLeon at the time of the party. When Esqueda asked DeLeon whether Jovonie was residing with her, however, DeLeon responded that he was not. Esqueda testified she visited DeLeon's home approximately every two weeks between the months of August 2003 and October 2003. She stated she would see Jovonie "[e]very once in a while" when she was at the residence. Esqueda testified she believed Jovonie was living with DeLeon during that time period because Jovonie had a duffle bag of clothes at DeLeon's residence. Esqueda stated she confirmed her belief in October 2003, when she heard DeLeon tell Jovonie's mother, Liza, that she would take custody of and care for Jovonie. Esqueda indicated she confronted DeLeon regarding Jovonie's health after one of her visits to DeLeon's home because she noticed Jovonie looking skinnier. According to Esqueda, DeLeon indicated that Jovonie was sick and that she could not afford to take him to the hospital. In addition, DeLeon indicated she could not bring the child to the hospital because she was not Jovonie's parent. Esqueda testified she would secretly try to feed Jovonie when she would visit the boy at DeLeon's house because the child was always hungry. She stated she did not tell DeLeon if she fed Jovonie because DeLeon would get mad. When DeLeon became aware that Esqueda was feeding the boy, DeLeon would chastise her for feeding Jovonie too much because the boy would "throw it up." Esqueda further noted that DeLeon refused to allow Jovonie outside to play when he was under her care. Esqueda stated she witnessed an alarming event at DeLeon's house sometime during the month of either October 2003 or November 2003. Esqueda testified she discovered DeLeon in a bedroom binding Jovonie with duct tape when she arrived at the residence to visit with Jovonie. DeLeon told Esqueda that she was binding Jovonie because she was playing cops and robbers with the children. When Esqueda removed the tape from Jovonie's mouth and confronted DeLeon about her treatment of Jovonie, DeLeon responded by telling Esqueda "[i]t's none of your business" and to get out of her house. Esqueda returned to DeLeon's residence approximately two or three weeks after the taping incident. Unfortunately, when Esqueda returned, she once again found DeLeon binding Jovonie with duct tape. This time, however, DeLeon told Esqueda she was playing cowboys and Indians with the children. According to Esqueda, DeLeon also told her to "shut . . . up" and "to mind [her own] business." Esqueda nevertheless advised DeLeon to get Jovonie medical attention because Jovonie appeared even skinnier than he did on Esqueda's last visit. DeLeon responded that she could not take Jovonie to the doctor because she lacked medical insurance for the boy. Esqueda offered to get Jovonie medical assistance, but DeLeon refused to let Esqueda take the boy. Esqueda returned to DeLeon's residence during the first weeks of December 2003 to determine what Jovonie wanted for Christmas. DeLeon, however, refused to let Esqueda see Jovonie. Esqueda stated the last time she saw Jovonie was on December 24, 2003, when he was lying on a bunk bed covered with a blanket. DeLeon refused to let Esqueda remove the blanket or hold the boy. Esqueda noted that Jovonie looked the worst she had ever seen him. Esqueda finally testified she received two phone calls from DeLeon after she left DeLeon's residence on December 24, 2003. During the first phone call, DeLeon asked Esqueda to watch her nieces and nephews because DeLeon needed to take Jovonie to the hospital because he was throwing up. During the second call, after Jovonie's death, DeLeon told Esqueda that she "kn[ew] she was going to jail" and that investigators wanted to speak with Esqueda. DeLeon also encouraged Esqueda "not [to] tell [the investigators] the truth" and to "tell the cops that she got [Jovonie] on Christmas Eve." Dr. Randall Frost, the Deputy Chief Medical Examiner for Bexar County, testified he was responsible for performing the autopsy on Jovonie's body. He stated stool cultures and blood spot tests showed Jovonie did not suffer from any metabolic diseases. Dr. Frost stated he also performed an internal and external examination of the child's body. Dr. Frost's external examination revealed Jovonie was extremely small and weighed only 15 pounds at the time of his death. Jovonie looked very malnourished and had lost significant muscle mass throughout his body. Dr. Frost observed numerous abrasions and bruises all over Jovonie's body. He also noted that he found tape residue on the child's wrists. The internal examination performed by Dr. Frost revealed Jovonie had virtually no fat on his body. The examination revealed no signs of disease, but did show Jovonie's thymus gland was abnormal. Dr. Frost stated an abnormally shrunken thymus gland is indicative of long-term starvation. Based on his findings, Dr. Frost concluded Jovonie died as a result of long-term starvation and neglect. The State's final witness, Dr. Nancy Kellogg, a professor of pediatrics at the University of Texas Health Science Center, testified she too believed Jovonie died of long-term starvation. She stated Jovonie's appearance suggested he had been subjected to chronic severe stress arising from months of starvation prior to his death. Dr. Kellogg opined that the various abrasions found on Jovonie's body may have been caused by duct tape. She stated the abrasions and other physical evidence in the case indicate Jovonie had been restrained for a prolonged period of time. Dr. Kellogg stated Jovonie did not suffer from any digestive diseases that would have caused his death. Lastly, Dr. Kellogg stated Jovonie likely had no motor capabilities for at least several days prior to his death due to a lack of blood flow to his muscles. Dr. Kellogg believed Jovonie was simply physically unable to do anything in the days before his death, including eating, opening presents, and walking. After the State rested, the defense recalled Esqueda to clarify parts of her previous testimony. The defense also recalled Esqueda to elicit testimony that DeLeon was briefly incarcerated during October 2003. Esqueda stated DeLeon's husband, Juan Palacios, cared for Jovonie when DeLeon was incarcerated. She further testified DeLeon was primarily responsible for taking care of Jovonie when she was not incarcerated. Lastly, DeLeon testified on her own behalf. DeLeon stated she was the individual responsible for caring for Liza's two daughters at the time of Esqueda's daughter's birthday party in August 2003. She stated Jovonie was still living with his mother at that time. DeLeon testified when she brought Jovonie to the birthday party, Jovonie was skinny and would fall down if he tried to run. DeLeon stated she was concerned about Jovonie, but chose not to take Jovonie to the doctor. According to DeLeon, Jovonie stayed with her for several days after the party. She saw Jovonie for a couple of days in September and did not see Jovonie again until October 2003. DeLeon stated she was arrested on September 25, 2003 for theft. She indicated she was incarcerated for the offense from October 13, 2003 until October 30, 2003. After her release from prison, DeLeon did not see Jovonie until early November, when Jovonie's mother dropped the boy off at her house for a few days. DeLeon testified she was only responsible for caring for Jovonie when he was at her house, as Liza remained Jovonie's primary caretaker. According to DeLeon, Jovonie appeared sick and did not eat well when he stayed with her in November 2003. DeLeon allegedly confronted Jovonie's mother about the child's health, but took no other action concerning the boy. She stated she saw Jovonie one other time between Thanksgiving and the date of Jovonie's death. DeLeon noted Jovonie looked terrible by that time. On December 24, 2003, Jovonie's mother unexpectedly dropped Jovonie off at DeLeon's residence. DeLeon testified she did not want Jovonie to stay with her because he did "[n]ot [look] too good." She nevertheless let Jovonie stay because she felt she "really didn't have a choice." After Jovonie's mother left, DeLeon fed Jovonie crackers since he did not want to eat the plate of food she had given the boy. Jovonie later sat with his sisters and looked at the Christmas tree. DeLeon indicated Jovonie was able to move under his own volition that evening. DeLeon stated she checked on Jovonie throughout the night after he fell asleep. According to DeLeon, she called for medical assistance when she discovered Jovonie was no longer breathing. DeLeon testified she knew she was going to go to jail once medical personnel were called to her house. DeLeon further testified that she neither starved Jovonie nor bound Jovonie to the bed. She also denied asking Esqueda to lie to investigators for her. Lastly, DeLeon claimed the only mistake she made concerning Jovonie was not getting medical attention for the boy as soon as he arrived at her house on Christmas Eve. After viewing all the evidence, we hold the evidence is both legally and factually sufficient to support a finding that DeLeon assumed care, custody, or control of Jovonie. The record indicates that the jury heard Esqueda testify she overheard a conversation between DeLeon and Jovonie's mother, Liza, during October 2003, where DeLeon expressly agreed to care for Jovonie and take custody of the boy. The record further reflects that from the time DeLeon agreed to accept primary responsibility for Jovonie, DeLeon carried herself like the child's caretaker. For example, DeLeon was the individual who prohibited Esqueda from taking Jovonie to get medical attention; who scolded Esqueda for secretly feeding Jovonie when the child was hungry; and who determined if and when Esqueda could visit with Jovonie. We believe DeLeon's express promise to care for Jovonie, together with her words and actions following the promise to Jovonie's mother, would cause a reasonable person to conclude that DeLeon accepted responsibility for protecting, feeding, sheltering, and providing medical care to Jovonie. Accordingly, we overrule DeLeon's first sufficiency complaint. DeLeon nevertheless argues there is factually insufficient evidence to support a jury finding that she assumed care, custody, or control of Jovonie. As support for her contention, she cites her own testimony indicating that she rarely saw Jovonie after her release from prison and never told Jovonie's mother that she would accept long-term responsibility for the boy. She contends that had she accepted long-term responsibility for Jovonie, Jovonie would have stayed with her more often than he did between the dates of October 30, 2003 and December 24, 2003. The jury, however, is the sole judge of the credibility of witnesses and the weight to be given their testimony. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002). The jury was presented with conflicting evidence by DeLeon and Esqueda as to whether DeLeon assumed long-term care, custody, or control of Jovonie and elected to believe Esqueda's testimony over DeLeon's. "A decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State." Cain, 958 S.W.2d at 410.
B. Deadly Weapon Finding
DeLeon also contends the evidence is both legally and factually insufficient to support the jury's finding that she used a deadly weapon in her commission of the alleged offenses. According to DeLeon, the evidence is insufficient to support the deadly weapon finding because the State failed to produce sufficient evidence that she was the individual who restrained Jovonie with duct tape or ties. DeLeon's own daughter, however, testified that she personally observed DeLeon restrain Jovonie with duct tape on multiple occasions. In light of the evidence presented, we must conclude the evidence is both legally and factually sufficient to support the jury's finding that DeLeon used a deadly weapon in committing the alleged offenses. DeLeon's second sufficiency complaint is also overruled.Double Jeopardy
DeLeon raises three double jeopardy complaints on appeal. First, she contends her convictions for both unlawful restraint and endangering a child violate her right of protection against multiple punishments for the same offense because both offenses are based on the same criminal act — taping and tying Jovonie on November 28, 2003. Second, DeLeon contends the double jeopardy clause precluded the jury from both convicting her of unlawful restraint and finding that she used a deadly weapon during the commission of the offense because the jury was essentially punishing her twice for the same conduct. Finally, she contends the double jeopardy clause precluded her convictions for unlawful restraint and endangering a child because such offenses are the lesser included offenses of injury to a child. The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall "be subject to the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Article I, section 14 of the Texas Constitution provides much the same double jeopardy protections as the United States Constitution. Stephens v. State, 806 S.W.2d 812, 814-15 (Tex.Crim.App. 1990). The double jeopardy clause embodies three essential guarantees: (1) it protects against a successive prosecution for the "same offense" after acquittal; (2) it protects against a successive prosecution for the "same offense" after conviction; and (3) it protects against multiple punishments for the "same offense." Langs v. State, 183 S.W.3d 680, 685 (Tex.Crim.App. 2006). When, as here, the defendant is convicted of two or more crimes in a single trial, only the multiple punishment guarantee is implicated. A. Waiver of Double Jeopardy Claims DeLeon did not assert her double jeopardy claims at trial before she was convicted or sentenced. Thus, we must first decide whether DeLeon can raise her double jeopardy contentions for the first time on appeal. See Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App. 2000). Generally, a double jeopardy claim must be raised in the trial court to preserve the error for appellate review. Honeycutt v. State, 82 S.W.3d 545, 547 (Tex.App.-San Antonio 2002, pet. ref'd). The court of criminal appeals, however, has stated that a defendant may raise a double jeopardy claim for the first time on appeal when: (1) the undisputed facts show the double jeopardy violation is clearly apparent from the face of the record; and (2) enforcement of the usual rules of procedural default serves no legitimate state purpose. Gonzalez, 8 S.W.3d at 643. In analyzing the first prong of the Gonzalez test, we acknowledge that the record in this case is fully developed. DeLeon stood trial for all three offenses before the same judge and jury, and she has presented a complete record of the trial for our consideration. All three offenses being before the same judge and jury, the court knew or should have known of a potential jeopardy issue. See Saenz v. State, 131 S.W.3d 43, 50 (Tex.App.-San Antonio 2003), aff'd, 166 S.W.3d 270 (Tex.Crim.App. 2005). We can resolve DeLeon's claims based on the record before us, and there is no need for further proceedings to add new evidence to the record. See id. Accordingly, DeLeon has satisfied the first prong of the Gonzalez test. With respect to the second prong of the Gonzalez test, we believe enforcement of the usual procedural default rules would serve no legitimate state purpose. The appropriate remedy for any double jeopardy violation is to vacate one of the convictions. Id. As a matter of state law, we are required to retain the conviction with the "most serious punishment," and vacate any remaining convictions that are the "same" for double jeopardy purposes. Id. A successful double jeopardy challenge in this case would not require a retrial or even a remand to the trial court. Therefore, there are no legitimate state interests that would be negatively impacted if DeLeon is allowed to raise her double jeopardy claims for the first time on appeal. See id. DeLeon has thus satisfied the second prong of the Gonzalez test. Having satisfied both prongs of Gonzalez, we hold DeLeon may raise her claims of double jeopardy on appeal.B. Merits of Double Jeopardy Claims
DeLeon's first double jeopardy complaint asserts that her convictions for both unlawful restraint and endangering a child violate her right of protection against multiple punishments for the same offense because both offenses are based on the same criminal act — taping and tying Jovonie on November 28, 2003. The indictment in this case alleges:[O]n or about the 28th day of November . . . 2003, [DeLeon] did then and there intentionally and knowingly restrain another person, namely: Jovonie Ochoa, a child younger than seventeen years of age, by confining Jovonie Ochoa by taping and tying Jovonie Ochoa, thereby recklessly exposing Jovonie Ochoa to a substantial risk of serious bodily injury in that Jovonie Ochoa was prevented from receiving nourishment and medical care while Jovonie Ochoa was in a malnourished condition.
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[O]n or about the 28th day of November . . . 2003, [DeLeon] did then and there intentionally, knowingly, recklessly, and with criminal negligence engage in conduct that placed Jovonie Ochoa, a child younger than fifteen years of age, in imminent danger of death, bodily injury, and physical impairment by restraining Jovonie Ochoa by taping and tying Jovonie Ochoa thereby preventing Jovonie Ochoa from receiving nourishment and medical care while Jovonie Ochoa was in a malnourished condition.Although the indictment alleges both offenses occurred "on or about November 28, 2003," the State was not required to prove either offense occurred on the specific date alleged. The "on or about" language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment or return of the indictment and within the statutory limitation period. Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App. 1997). Therefore, as long as the record demonstrates DeLeon committed two distinct acts of "taping or tying Jovonie" within the limitations period, DeLeon's convictions for both unlawful restraint and endangering a child cannot constitute a double jeopardy violation in this case. See generally Murray v. State, 24 S.W.3d 881, 889 (Tex.App.-Waco 2000, pet. ref'd) (holding the defendant's double jeopardy rights were not violated by his punishment for both aggravated sexual assault and indecency with a child because the evidence at trial showed the defendant "committed two separate acts — penetrating the victim's sexual organ with his finger and touching her genitals with his tongue — that constituted two separate offenses."). The record in this case shows DeLeon committed two distinct acts of "taping or tying Jovonie" between the months of October 2003 and November 2003. Esqueda testified that the first tying or taping incident she witnessed occurred when she visited DeLeon's home during either October 2003 or November 2003. She stated she discovered DeLeon in a bedroom binding Jovonie with duct tape when she arrived at the residence. According to Esqueda, DeLeon told her that she was binding Jovonie because she was playing cops and robbers with the children. The second tying or taping incident observed by Esqueda occurred approximately two or three weeks after the first incident. This time, however, DeLeon told Esqueda she was binding Jovonie with duct tape because she was playing cowboys and Indians with the children. We believe Esqueda's testimony demonstrates DeLeon committed two separate and distinct offenses against Jovonie; therefore, we hold the jury could convict DeLeon both for unlawful restraint and endangering a child without infringing upon DeLeon's right against double jeopardy. DeLeon's first double jeopardy complaint is overruled. DeLeon's second double jeopardy complaint alleges the jury could not both convict her of unlawful restraint and find that she used a deadly weapon during the commission of the offense because the jury was essentially punishing her twice for the same conduct — taping and tying Jovonie. When the fact finder makes a deadly weapon finding under article 42.12, section 3(g)(a) of the Texas Code of Criminal Procedure, however, the finding is not a separate and distinct punishment for double jeopardy purposes. See Tex. Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2005); Pachecano v. State, 881 S.W.2d 537, 546 (Tex.App.-Fort Worth 1994, no pet.). The protections of the double jeopardy clause are thus not implicated in this case because the trial court's deadly weapon finding did not punish DeLeon twice for the same conduct. See Pachecano, 881 S.W.2d at 546. DeLeon's remaining double jeopardy complaint concerns an issue she urged for the first time at oral argument. At oral argument, DeLeon argued for the first time that the double jeopardy clause precludes her convictions for unlawful restraint and endangering a child because such offenses are the lesser included offenses of injury to a child. New issues, however, may not be presented for the first time at oral argument. See Tex.R.App.P. 38.1(e), 39.2; see also Moore v. State, 165 S.W.3d 118, 121 n. 1 (Tex.App.-Fort Worth 2005, no pet.). By failing to present this claim of error in her brief, DeLeon waived her right to complain of the error on appeal. See Moore, 165 S.W.3d at 121 n. 1. In any event, even if DeLeon did not waive this issue, we believe the issue lacks merit. When, as here, the case involves more than one offense, the principle that DeLeon attempts to invoke does not apply. As previously discussed, the State was entitled to seek a conviction for both unlawful restraint and endangering a child because it had evidence demonstrating DeLeon committed two separate and distinct acts of "taping or tying Jovonie" between the months of October 2003 and November 2003. The State was also entitled to seek a conviction for injury to a child as well because it had additional evidence indicating DeLeon repeatedly refused to seek medical care for Jovonie even though she knew the child was sick and in need of medical attention. On these facts, unlawful restraint and endangering a child could not be lesser included offenses of injury to a child because DeLeon's acts and omissions during the months preceding Jovonie's death can be differentiated into separate and distinct transgressions of the law. The State was therefore entitled to seek convictions for all three offenses, and DeLeon's double jeopardy rights are not violated by her punishment for the alleged offenses.