One criminal conviction in child abuse case vacated on order of higher court

Gregory Lee Villanueva v. The State of Texas, No. (Tex.App.-Houston, Aug. 22, 2007)(Opinion by Justice Taft)(criminal case; injury to child, double jeopardy)(Before Justices Taft, Keyes and Hanks)
Appeal from 21st District Court of Burleson County

On Appeal from the 21st District CourtBurleson County, Texas
Trial Court Cause No. 12742 (Count II)

O P I N I O N

In a single proceeding, the trial court permitted the jury in trial court cause number 12742 to convict appellant, Gregory Lee Villanueva, of both injury to a child by act and by omission. See Tex. Pen. Code Ann. § 22.04(a)(1) (Vernon Supp. 2006). On June 8, 2006, this Court issued an opinion in appellate cause numbers 01-04-01070-CR and 01-04-01072, holding that appellant's right against double jeopardy was not violated by his convictions on both counts of injury to a child by act and injury to a child by omission. See Villanueva v. State, 194 S.W. 3d. 146, 152-53 (Tex. App.--Houston [1st Dist.] 2006), aff'd in part & rev'd in part, Nos. 0718-06, 0719-06, 2007 WL 1828766, at *5 (Tex. Crim App. June 27, 2007).

Appellant filed petitions for discretionary review in the Court of Criminal Appeals. The Court of Criminal Appeals granted appellant's petitions for discretionary review. In an opinion issued on June 27, 2007, the Court of Criminal Appeals held that "punishing the appellant in the same proceeding for injury to a child by act and injury to a child by omission violated appellant's double-jeopardy protection." See Villanueva, 2007 WL 1828766, at * 5.

The Court of Criminal Appeals affirmed the judgment of this Court in cause number 01-04-01070-CR, which had affirmed the trial court's judgment of the conviction for Count I (injury to a child by act), and reversed the judgment of this Court in cause number 01-04-01072-CR, which had affirmed the trial court's judgment for Count II (injury to a child by omission). The Court of Criminal Appeals remanded our cause number 01-04-01072-CR to this Court with instructions to vacate the trial court's judgment of appellant's conviction for Count II.

Conclusion

Accordingly, we vacate that portion of the trial court's judgment, signed July 21, 2004, pertaining to Count II, injury to a child by omission, and dismiss the portion of the trial court cause (number 12742) relating to Count II.

Tim Taft
Justice

Panel consists of Justices Taft, Keyes, and Hanks.
Publish. See Tex. R. App. P. 47.2(b).