No. 05-09-00095-CR
Opinion Filed April 27, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-80147-08.
Before Chief Justice WRIGHT and Justices FITZGERALD and MURPHY.
Opinion By Justice MURPHY.
We overrule Padmaja Silvaram Enjeti's motion for rehearing. On our own motion, we withdraw our March 26, 2010 opinion and vacate the judgment of that date. This is now the opinion of the Court. This appeal from jury convictions for attempted capital murder, aggravated assault, and injury to a child presents issues of legal sufficiency and double jeopardy. We affirm the judgments.
Background
On November 28, 2007, Enjeti called 911 to report her daughter was "dying." Enjeti, who was home alone with the child, said she had pushed her twenty-month-old daughter from the "ceiling" intending to kill her. After telling the 911 operator to come to her home to arrest her, Enjeti hung up. The 911 operator called back immediately and, after telling Enjeti help was on the way, asked her to explain "exactly what happened." Enjeti said "hold on," and returned to the telephone out of breath about thirty seconds later reporting that she "pushed her from the ceiling again." Enjeti told the operator she was "out of control." The call ended when paramedics arrived approximately a minute later. The paramedics found Enjeti holding the child. The child was crying and appeared "almost in a state of shock," but there were no visible signs of serious injury. The child was immediately separated from Enjeti and taken by ambulance to Medical Center of Plano, where she underwent extensive imaging tests and was given morphine. She was subsequently transferred to Children's Medical Center, where she underwent further testing and remained overnight. The examining doctors gave differing accounts of their findings but ultimately agreed the child suffered no fracture or other serious bodily injury. The child was released the next day with no instructions for follow-up. Several police officers responded to the scene in addition to the paramedics. Enjeti gave detailed accounts to the officers of how she had become angry and had dropped the child twice over the railing of the second floor of the home. She reported the child had landed on her head both times. She repeatedly asked to be arrested. The State charged Enjeti with the three counts in a single indictment and sought affirmative deadly weapon findings in connection with the attempted capital murder and injury to a child offenses. Enjeti pled not guilty and the case was tried to a jury. Evidence
The State's first witness was Gretchen Dunlap, the 911 operator who took Enjeti's call. Dunlap testified the call was "out of the ordinary." She heard a child crying in the background during the call and assumed what Enjeti told her was true. Dunlap described the child's cry as that of "an injured child," as opposed to an angry or upset child, and described Enjeti as "irritated" and "out of breath" when she returned to the telephone after the second fall. The trial court admitted as evidence the 911 recording. The recording depicted a child crying, moaning, and whimpering in the background, what appeared to be a "thud" or slamming sound about three minutes into the call, and a more intense wail immediately before and after the "thud." Paramedic Captain Jeff Amadon testified next. He said Enjeti opened the door holding the child. He testified the "child appeared to [him], to be limp, to maybe a little mumbling, crying, as the notes will say in the medical report. . . . But almost in a state of shock. Just, you know, things did not look right." He described Enjeti's demeanor as "very calm"; she handed the child to the rest of the paramedic crew and, upon questioning as to what happened, "motioned back at the stairwell and kind of mumbled something." He "didn't know" what she said because at first he thought "maybe we're not getting all the information right. Maybe the child had come down and fallen down the stairs instead." After separating the child from Enjeti, he talked to Enjeti and confirmed that she dropped the child from the second level of a split stairwell and then did it a second time. Enjeti asked Amadon "point-blank" if they were "coming to arrest her." On cross-examination, Amadon testified the child was crying, but paramedics were able to console her; their notes indicate she had an open airway, was conscious and breathing on her own, and had no obvious injury on her face other than a "tinge of blood" on the right side of her lower mouth. Amadon saw no obvious signs of injury and could not testify whether the blood noted by his staff came from the incident. The child's pulse rate "may have been a little bit rapid," but was within normal limits. Amadon did not personally observe injuries around her mouth needing medical attention nor did he see any blood. He testified the child's injuries were not what he would expect in "a situation like this," but that children are "quite resistant" and he has seen serious incidents in which there was no visible evidence of injuries. He saw no blood or any kind of genetic material on the floor where the drop was said to occur. He testified that other than Enjeti's statement and the 911 operator, he had no other evidence to show the child fell from the balcony. Amadon also refused to agree with counsel's repetitive questioning that "[t]here was nothing physically, about this child that indicated a fall, twice, from fourteen feet inside that home," referencing the earlier description of the child when he first saw Enjeti holding her. Amadon's testimony was followed by the testimony of three of the police officers who responded to the scene. Steven Sanders was the first police officer to arrive at the Enjeti home; the paramedics were attending to the child and Amadon was speaking with Enjeti. He performed a protective sweep of the house and waited for a supervisor to arrive. After Sergeant A.D. Paul arrived, Sanders gave Enjeti her Miranda warnings and Sanders and Paul questioned her about "[e]xactly what had happened." They asked her "to go into some details and give [them] some more idea of what had all gone on." Sanders was not sure when the third officer, detective Brian Pfahning, arrived, but he let Paul and Pfahning take over the questioning at that time. During Sanders's questioning, Enjeti was "[s]omewhat upset" but "[k]new exactly what had gone on." She did not hesitate with answers and "was very direct." In his walk-through of the house he did not look for evidence of the child hitting the floor; he was just looking for obvious signs, such as "blood, something that may have been broken," and he "didn't see any of that." He testified the surface where he was told the child landed was a "very hard," laminate wood floor. Sanders said he is trained to look for signs of deception in people and he saw no deception in Enjeti. He "believed everything she was telling [him] had happened just like she said." Paul testified he saw the ambulance pulling away with the child when he arrived. He first ordered Sanders to give Enjeti her Miranda warnings. When Paul first spoke with her, Enjeti told him she needed to be arrested because she had tried to kill the child. Upon further questioning, she told Paul she had been watching the child play in an upstairs common area for approximately twenty minutes. The child would not stop crying and Enjeti became angry, took the child to the balcony area, and dropped the child from the balcony. Enjeti gave Paul the "startling details" of how she picked up the child, carried her to the railings, and dropped her. She repeated the same act during the 911 call. She said the child landed on her head. Paul characterized Enjeti's demeanor as "very matter of factly, very calm, very detail-oriented, reasonable, and prudent." He heard the child "had blood from the head," but did not see any on the floor. His best recollection was that the floor was ceramic tile and he saw no evidence of impact on the floor. He did not perform a DNA test on the floor. He testified Enjeti was credible and he believed her description. Part of his belief was also the credibility of the police officers and the firemen who told him what they saw and personally experienced. The third officer, Pfahning, testified that he arrived after Paul and Sanders; detective Epperson from crimes against persons was also there. The child had already been transported to Medical Center of Plano, and Pfahning received updated information from officers at the hospital. Pfahning was told by those officers that x-rays had been taken and there was a possible skull fracture. Arrangements were being made to transport the child to Children's for further evaluation. Pfahning wanted to know "just exactly what happened," "the mechanism of the injury," "what kind of forces were involved," if there were other injuries that might be internal that he could relay to the officers, and "to get a better sense of what happened." He made initial contact with Enjeti and gave her Miranda warnings again. Enjeti was crying and upset but provided "clear answers." When he asked Enjeti about medications, she told him she had a chemical imbalance and had been taking medication regularly. Pfahning had no doubt that Enjeti's intent was to kill the child. Photographs from the hospital showed redness on the child's back, which was consistent with what Enjeti told him about the incident. Enjeti was arrested for serious bodily injury to a child. After Pfahning completed his investigation, which included information that the child did not have a skull fracture, Pfahning changed the charge against Enjeti to bodily injury; Enjeti was also charged with attempted capital murder "for trying to kill her child." His investigation showed the railing on the stairwell to be 13.3 feet high, with approximately a ten foot fall to the floor if Enjeti held the child by the ankles as described. He looked for evidence of a specific point of impact and saw none. He did not move the blue light around. His conclusion of bodily injury was based on the child's bloody lip, redness to her back, and "just information [he] obtained during [his] investigation from the medical report." He agreed the redness on the back could have been from the night before or earlier in the morning, but he did not believe that was the case. He agreed he saw nothing in the paramedics' notes about redness, bruising, or any mark on the child's back. He believed the child's injuries were consistent with what Enjeti told him and the lack of fracture or other serious bodily injury did not change his opinion. The officers recorded a portion of Enjeti's interview. The recording evidenced Enjeti was emotional as she recounted details. As she demonstrated to the officers how she dropped the child, she described a look of fear on the child's face. Enjeti said the child landed head first each time and each time reached out to Enjeti after landing. She said the child was bleeding from the mouth after the first drop, but had stopped bleeding by the time of the second drop. Enjeti admitted she knew what she was doing and that the child could have been seriously injured. She also repeatedly admitted that she tried to kill the child, should not have done what she did, needed to be arrested, and deserved to go to jail. She attributed her actions to her "chemical imbalance" and stated that she had never hurt the child and "loved her very much." The State's last witness was Dr. Matthew Cox, a child abuse pediatrician who examined the child at Children's after the initial testing showed a possible skull fracture. Cox saw the child both in the emergency room as well as in the hospital the next day. The CT report indicated a right occipital skull fracture and the intake doctor's report indicated a contusion on the head and the hip. Cox observed minimal soft tissue swelling on her head and three bruises along her backbone. He could not testify as to what caused the swelling or the bruises. He also saw no injuries inside the child's mouth when he evaluated her. After reviewing a plain x-ray, he determined there was no skull fracture. Cox testified he was surprised "a little bit" by the minimal degree of trauma, but commented "it's the kind of thing we sometimes see." Cox continued by testifying that "[k]ids can fall or have trauma like this and bounce and not have any significant injuries." Cox described children as "quite resilient" with "some plasticity, some kind of flexibility to their skeletal system." He added that they "are able to kind of withstand that fall without sustaining significant injuries." He also explained that the occipital bone, located in the lower portion of the head, is "a harder bone to break" because it is thicker. Cox testified he has seen many children who have gone through pretty significant traumatic events without suffering significant injuries. Cox also said it is unusual to see a child with the degree of trauma described with no significant injuries; he testified that the injuries she did have-swelling on the back of the head, bruising on the back, and blood on the tongue-could be consistent with being dropped twice from a second story balcony. He "would think" two falls would increase the likelihood of injuries, but it also was possible the child "learned the first time how to protect herself and did it the second time." Enjeti did not testify at trial but called a family friend, Ravi Macha, who had known the family since 2002. He described Enjeti as a "very nice person" who was protective of her children. He also testified she had become "delusional, disconnected with what's going on" long before the incident. He said it took months of urging from family and friends for Enjeti to go to the doctor. Macha testified that about a week before the incident, Enjeti seemed particularly disconnected and "lost in her thoughts," but Enjeti's husband had expressed no concerns to him. Macha learned about the November 28 incident from Enjeti's husband and went to the hospital to console him and the child. Macha testified the child "seemed absolutely normal . . . [a]nd was happy" to see him. Macha held the child for about an hour and during that time "look[ed] all over her to check her" but saw "nothing" that would indicate she had been dropped twice from the second floor. Macha testified he "didn't know what to think because . . . it didn't make sense what they were saying." Enjeti also called as a witness Dr. Bradley Weprin, a pediatric neurosurgeon and colleague of Cox. Weprin described pediatric neurosurgery as the medicine of evaluating and treating infants, toddlers, children, and young adults with diseases and injuries of the brain, spines, spinal cord, and nerves. Weprin said he has testified for the State on multiple occasions in child abuse cases. He testified he never saw the child, but reviewed the "films" with his on-call fellow. He saw no evidence of skull fracture or soft tissue injury from his review of the CT exam. He believed his on-call fellow saw the child and found no evidence of soft tissue injury. They reviewed the films together and determined no neurosurgical evaluation or intervention was necessary. Weprin was "very surprised" by the lack of injury and said he would have expected to see at least a hemorrhage. Weprin also described a 1985 study dropping fifteen cadaver infants onto their heads from a height of .9 meters, which is about a third of a foot. Three different surfaces were used and all fifteen cadavers exhibited linear skull fractures. He had never seen a situation like the one described. Enjeti's next two witnesses were the psychiatrists who treated her. Dr. Jhansi Raj, Enjeti's psychiatrist prior to her arrest, testified Enjeti presented to her with delusions in May 2007 and was diagnosed with "psychotic disorder not otherwise specified." Enjeti initially resisted and had difficulty with medication, but when Raj saw her in November-two weeks before the arrest-Enjeti reported "feeling better and more in peace of mind." Raj testified that during the time she treated Enjeti, Enjeti never expressed a desire to hurt anybody and there were no concerns for the safety of her children. Raj gave no opinion as to whether Enjeti was delusional the day of her arrest, but testified that frustrated parents can "do things that they normally wouldn't do" or "fantasize they're doing it." Dr. Frank Cody, an attending psychiatrist at Timberlawn Mental Health System, testified he began treating Enjeti in December 2007. Enjeti had been receiving psychiatric treatment in jail and needed to be hospitalized for further treatment. Enjeti remained at the hospital for two months and then continued as an outpatient under Cody's care. Cody testified Enjeti was "significantly depressed and had been for some time." Enjeti worried that her son was failing in school, although he "was probably in the top of his class"; that "there would be something wrong with her daughter"; and that she was not a good mother. Cody testified that he diagnosed Enjeti with depression with psychotic features. Based on his treatment and observations of Enjeti, he found "it very difficult, even in [his] wildest imaginations, to imagine" Enjeti "thr[e]w the child off a fourteen foot balcony onto a hardwood floor." Cody explained that labeling Enjeti a perpetrator "never quite . . . fit." He described placing Enjeti in the trauma unit where most of the patients were survivors of "some kind of abuse" and were "extremely sensitive to anyone who is a perpetrator." Cody was concerned that Enjeti would "be eaten alive," but the patients liked her. Cody also testified to a steady stream of visitors throughout Enjeti's hospitalization; it appeared to him the visitors were there because they liked her, not "out of duty." He also testified that Enjeti was "essentially completely amnestic for the first twelve years of her life," which indicated "some abuse of some sort." He also described her memory as "extremely limited about what happened that day" with her child. He said Enjeti could recount what she had been told had happened, but it did not appear she was actually remembering the events. In Cody's opinion, Enjeti was psychotic the day of her arrest and imagined she dropped the child. Enjeti's final witness was professor Richard Sanders, an audio and video forensics expert. Sanders analyzed the recording of the 911 call and tried to replicate the events and sounds on the recording to determine "who was where, when" during the thirty seconds that Enjeti was away from the telephone and reportedly dropping the child a second time. Based on his analysis and replication of the events, Sanders concluded the drop did not occur. He explained that the stairs squeaked, but no squeaking could be heard on the recording. Additionally, his measurement from the top of the railing to the floor was fourteen feet, but he believed the child was never more than seven feet from the telephone. Finally, he testified the "thud" heard on the recording was not consistent with a twenty-pound object or child being dropped fourteen feet, because the sound was too soft. He opined that the "thud" sounded more like "two pieces of wood hitting another like a cupboard door that's being either slammed or shut hard." Sanders admitted he did not know where Enjeti was standing when she called 911, where she put the telephone, or how the child fell, and those were factors that "could possibly" make his results "more accurate." The jury found Enjeti guilty of all three counts and specifically found she used or exhibited a deadly weapon during the commission of the attempted capital murder and injury to a child offenses. Upon the jury's recommendations, the trial judge assessed punishment: (1) five years' confinement, suspended for ten years, for attempted capital murder; (2) two years' confinement, suspended for ten years, to run concurrently, for aggravated assault; and (3) three years' confinement, to run concurrently, for the offense of injury to a child. Legal Sufficiency of the Evidence
Enjeti's legal sufficiency issues are discussed together because of intertwined facts. Her challenge to legal sufficiency rests on a claimed lack of evidence that the child was dropped, that the drops caused injuries, or that a deadly weapon was used. Enjeti argues that no rational trier of fact could find beyond a reasonable doubt that any offense was committed. She asserts that the evidence shows only one of two things: (1) Enjeti said she dropped her child because she was having a psychological breakdown and wanted the police to take her away from her home to jail, or (2) she was suffering from psychotic delusions and only thought she had dropped the child. She also complains that the corpus delecti doctrine would require evidence other than her statement to show she actually dropped or threw the child from the second floor. She insists the State was required to show proof of impact as well as injuries "of the kind that would be expected if [she] did what she claimed to have done." Enjeti characterizes examining doctor Cox's testimony that children "bounce" as "patently absurd," and claims the State's case was "encapsulated by [Pfahning's] testimony that `anything is possible.'" Enjeti's final sufficiency argument is that without proof of serious bodily injury, the floor cannot be considered a deadly weapon. In reviewing a legal sufficiency challenge, we must determine whether any rational trier of fact could find the essential elements of the offense beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We must review all of the evidence in the light most favorable to the verdict and "give deference to `the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). Based on the indictment, to establish the offense of attempted capital murder, the State had to prove beyond a reasonable doubt that Enjeti intentionally, with a specific intent to kill, dropped or threw the child from a second-story elevation to the ground floor below, and that her act amounted to more than mere preparation that tended, but failed, to effect the commission of the offense. See Tex. Penal Code Ann. §§ 15.01(a) (Vernon 2003) (criminal attempt); 19.02(b)(1), 19.03(a)(8) (Vernon Supp. 2009) (capital murder). The other two offenses also required proof that Enjeti dropped or threw the child from a second-story elevation to the ground floor below. For aggravated assault, the State had to prove Enjeti acted intentionally or knowingly, her actions caused bodily injury, and she used or exhibited the floor as a deadly weapon. Id. §§ 22.01(a)(1), 22.02(a)(2). For injury to a child, the State had to prove Enjeti acted intentionally, knowingly, or recklessly and her actions caused bodily injury to a child. Id. § 22.04(a)(3). To obtain the deadly weapon findings, the State had to prove Enjeti used or exhibited the floor in a manner in which "its use and intended use was capable of causing death and serious bodily injury." Id. § 1.07(a)(17)(B). The State could satisfy its burden as to each of the three counts with Enjeti's extrajudicial confession and some independent evidence tending to show the offenses actually occurred. See Rocha v. State, 16 S.W.3d 1, 4 (Tex. Crim. App. 2000) (under corpus delecti rule, extrajudicial confession alone not enough to support conviction; some other evidence must exist rendering commission of offense more probable than it would be without evidence). Viewing the evidence here in the light most favorable to the verdict, we conclude a rational jury could find Enjeti guilty of the offenses and could find she used or exhibited a deadly weapon. The State's proof included not only Enjeti's confession that she tried to kill the child, her detailed accounts of twice dropping the child from the second-floor railing head first onto the wood floor below, and her statement that the child was bleeding from the mouth following the first drop, but the paramedic and medical testimony that the child had a tinge of blood on her mouth, swelling on the back of the head, and three bruises on her back. The jury also heard the 911 recording that included Enjeti's statements as well as a child's continuous crying, moaning, and whimpering in the background, a "thud" or sound of something slamming, and a more intense wail immediately before and after the "thud." Paramedic Amadon described the child as limp and crying and appearing in "almost a state of shock" when he arrived at the home about a minute later. He testified the two things that made him think the child had trauma were the "blood she [had] on the upper of her mouth" and "the way that she presented in a shocked state." Officer Pfahning testified the photographs from the hospital depicting bruises or marks on the child's back were consistent with Enjeti's description. All of this proof was "some independent evidence" tending to show the offenses actually occurred as described by Enjeti. See Rocha, 16 S.W.3d at 4. Additionally, Pfahning testified the floor was a deadly weapon in the situation described. Further corroborating Pfahning's testimony the floor constituted use of a deadly weapon, all witnesses expressed some level of surprise the child had no serious bodily injury from a landing on the hard surface. Although Enjeti argues the jury's findings cannot stand because the State failed to prove a point of impact on the floor and serious bodily injury or injury "of the kind that would be expected if [she] did what she claimed to have done," neither the point of impact nor serious bodily injury is a required element of the charged offenses or necessary to establish the use of a deadly weapon. See Tex. Penal Code Ann. §§ 1.07(a)(17)(B) ("deadly weapon" means "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury"); 15.01(a) (elements of criminal attempt); 19.02(b)(1), 19.03(a)(8) (elements of capital murder); 22.01(a)(1), 22.02(a)(2) (elements of aggravated assault); 22.04(a)(3) (elements of injury to a child); see also Adame v. State, 69 S.W.3d 581, 582 (Tex. Crim. App. 2002) (actual injury not required for deadly weapon finding). The State's burden was to show Enjeti (1) intended and attempted to kill the child by dropping her, (2) caused bodily injury by dropping the child, and (3) used the floor as a deadly weapon; it was not required to explain why the child did not suffer more extensive injuries. Enjeti's additional arguments focusing on discrete parts of both Cox's and Pfahning's testimony similarly embrace the severity of the child's injuries. While the State did not have the burden to prove serious bodily injury, Enjeti's emphasis on just two statements ignores the remainder of the testimony. Cox's testimony included his extensive training in pediatrics, child abuse and neglect evaluation, and his role at Children's Medical Center at UT Southwestern since 2004. His primary role at UT Southwestern had been evaluation of children for physical and sexual abuse and for trauma, which he described as a traumatic event that leads to traumatic injuries. He explained that studies cannot be performed to "throw kids or drop kids or do other things to see what kind of injuries they have." He testified they have "to rely on [their] experience and what the literature says about that experience as well." He testified the age of a child is important because, as children get older, they have the ability to protect themselves from falls and learn to do so during the first year of life. With regard to his specific comments that children "bounce," he testified in detail about the composition and flexibility of the skeletal system, the capacity of children to protect themselves from falls, and their ability to withstand significant trauma. He elaborated his description of the occipital bone, which is in the lower back portion of the skull. He testified that it takes a high force trauma to break the bone. Examples he described included "a violent slamming of the head." He described seeing "many" children who have been "through pretty significant traumatic events without significant injuries." He testified, for example, to children "[f]alling out windows, falling off balconies head first, and not have injuries." The jury heard all of the evidence, and not just a statement that children "bounce." To disregard the testimony of Pfahning and Cox, as Enjeti suggests, would require this Court to substitute its judgment for that of a jury that heard all of the testimony, examined the exhibits, and observed all of the witnesses. This we may not do. Hooper, 214 S.W.3d at 13. Nor may we give greater weight to the evidence supporting Enjeti's theory that Enjeti was likely delusional or making a cry for help. We must view the evidence in the light most favorable to the verdict in conducting our legal sufficiency review. See Laster, 275 S.W.3d at 517-518. That evidence included Enjeti's extrajudicial confession and independent evidence from the 911 operator, the 911 recording, and observations of paramedics and officers tending to show Enjeti dropped or threw the child from the second-story elevation of her home. See Rocha, 16 S.W.3d 4. On this record, we resolve Enjeti's legal sufficiency challenges against her. Double Jeopardy
The next question Enjeti's appeal presents is her claim that the convictions for attempted capital murder and aggravated assault violate the constitutional prohibition against double jeopardy. Enjeti asserts that her aggravated assault conviction is barred by double jeopardy because, under the facts of this case, aggravated assault is the same offense as attempted capital murder and she is being punished more than once for the same offense. To preserve a double jeopardy complaint, a defendant must raise the complaint "in some fashion" at or before the time the trial court submits its charge to the jury. Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000). A double jeopardy violation may be raised for the first time on appeal, however, when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and no legitimate state interest is served by enforcement of the usual rules of procedural default. Id. at 643. See also Langs v. State, 183 S.W.3d 680, 682 (Tex. Crim. App. 2006) ("In this case we reiterate that the face of the trial record must clearly show a double jeopardy violation before a defendant may successfully raise a `multiple punishment' double jeopardy claim for the first time on appeal."). When raised for the first time on appeal, appellant has the burden of presenting a record showing on its face a multiple punishments violation. Gonzalez, 8 S.W.3d at 645. Enjeti never objected in any "fashion" to a double jeopardy violation at trial. Raising the issue for the first time on appeal, she cites only the first two counts of the indictment and, without any recitation to the record, argues that "Attempted Capital Murder and Aggravated Assault, under the facts in the case of bar, are the same offense for double jeopardy purposes." The State responds that the evidence established two offenses arising out of two distinct acts of twice dropping the child from the second floor. Enjeti disputes that, arguing "there was nothing in the indictment or the court's charge that supports a claim that the offenses charged went to one alleged dropping rather than the other alleged dropping." Enjeti cites no authority, however, for the proposition that, to avoid double jeopardy issues, the indictment or the court's charge had to delineate the separate offenses. The only legal authorities Enjeti cites in support of her claim that the facts here give rise to a double jeopardy claim are Johnson v. State, 6 S.W.3d 323 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd) and Gray v. State, 2005 WL 1566668 (Tex. App.-Texarkana 2005, no pet.) (not designated for publication). The two cases do not support Enjeti's argument. Johnson was a remand by the court of criminal appeals after the appellate court had originally concluded appellant's criminal convictions for attempted capital murder and aggravated assault were the same offense for double jeopardy purposes, but had determined that no violation occurred because the offenses were tried in the same trial and the sentences were concurrent. The court of criminal appeals remanded the case to the appellate court to consider Ex parte Ervin, 991 S.W.2d 804 (Tex. Crim. App. 1999) (double jeopardy occurs even when sentences are concurrent). The appellate court, following Ervin, modified its determination on remand to conclude the double jeopardy violation was not saved by a single trial resulting in two convictions and concurrent sentences. Johnson, 6 S.W.3d at 324. The opinion provides no factual background and is therefore no help in analyzing the record here. Looking to the underlying case, however, the "transaction" on which the convictions were based was one incident-a drive-by shooting. See Johnson v. State, 983 S.W.2d 800 (Tex. App.-Houston [14th Dist.] 1998), vacated, 991 S.W.2d 284 (Tex. Crim. App. 1999) (per curiam). Additionally, neither opinion addressed the issues of multiple punishments and defendant's failure to preserve error. In Gray, defendant was convicted of both attempted capital murder and aggravated assault on a public servant based on the claim defendant pointed a gun at an officer during a struggle over the gun. Similar to the record before this Court, appellant had failed to preserve his double jeopardy argument and claimed a multiple punishments violation on appeal. Focusing on the testimony that the struggle lasted only a few seconds and "an absence of evidence regarding a distinguishable `discrete act,'" the court determined a double jeopardy violation was clearly apparent on the face of the record. Gray, 2005 WL 1566668, at *4. The court emphasized by hypothetical that had defendant "maintained independent control of the weapon after the struggle concluded and had then pointed it at [the officer]," the conclusion might be different because there would be more than one discrete act. Id. Gray supports the State's response that the evidence established two offenses arising from two distinct acts. To support her multiple punishment double jeopardy claim here, Enjeti had the burden of presenting a record clearly showing "multiple punishments resulting from a commission of a single act that violated two separate penal statutes, one of which is, on its face, subsumed in the other." Stephenson v. State, 255 S.W.3d 652, 657 (Tex. App.-Fort Worth 2008, pet. ref'd) (mem. op.) (per curiam). Enjeti has failed to meet her burden. We also conclude she has failed to show no legitimate state interest is served by enforcing the usual rules of procedural default. Had she objected at trial, the State and the trial court could have addressed her complaint and had the "opportunity to remove the basis of the objection." Gonzalez, 8 S.W.3d at 645. We therefore resolve Enjeti's double jeopardy challenge against her. Conclusion
We affirm the judgments of the trial court.