Benefield, Brent Allen ( 2015 )


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  •                                                                              PD-1126-15
    PD-1126-15                          COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    Transmitted 8/28/2015 8:52:35 PM
    Accepted 9/1/2015 10:31:07 AM
    ABEL ACOSTA
    NO. __________________                                        CLERK
    TO THE
    COURT OF CRIMINAL APPEALS
    OF TEXAS
    ***************
    BRENT ALLEN BENEFIELD
    Petitioner,
    v.
    THE STATE OF TEXAS
    Respondent.
    ***************
    PETITION FOR DISCRETIONARY REVIEW IN CAUSE NUMBER
    02-14-00099-CR FROM THE SECOND COURT OF APPEALS
    AND IN CAUSE NUMBER 53,721-C FROM THE
    30th DISTRICT COURT OF WICHITA COUNTY
    ***************
    PETITION FOR DISCRETIONARY REVIEW
    ***************
    John Bennett
    Post Office Box 19144
    Amarillo, TX 79114
    Telephone: (806) 282-4455
    September 1, 2015
    Fax: (806) 398-1988
    AppealsAttorney@gmail.com
    State Bar No. 00785691
    Attorney for the Petitioner
    THE PETITIONER REQUESTS ORAL ARGUMENT
    IDENTITY OF JUDGE, PARTIES AND COUNSEL
    Trial Court Judge
    Hon. Robert P. Brotherton
    Appellant
    Brent Allen Benefield
    Trial Counsel:        Jim Rasmussen (State Bar No. 16554300)
    Wichita County Public Defender
    Brennon Brady (State Bar No. 24038120)
    Assistant Public Defender
    600 Scott Avenue, Suite 204
    Wichita Falls, Texas 76301-2531
    Telephone: (940) 766-8199
    Appellate Counsel:    John Bennett (State Bar No. 00785691)
    P.O. Box 19144
    Amarillo, Texas 79114
    Telephone: (806) 282-4455
    Appellee
    The State of Texas
    Trial Counsel:        John Gillespie (State Bar No. 24010053)
    Grace Pandithurai (State Bar No. 24074849)
    Wichita County Assistant District Attorneys
    900 7th Street
    Wichita Falls, Texas 76301
    Telephone: (940) 766-8113
    Appellate Counsel:    John Brasher (State Bar No. 02907800)
    Wichita County Assistant District Attorney
    900 7th Street
    Wichita Falls, Texas 76301
    Telephone: (940) 766-8113
    2
    TABLE OF CONTENTS
    Identity of Judge, Parties and Counsel..................................................................2
    Index of Authorities ..............................................................................................4
    Statement Regarding Oral Argument ...................................................................6
    Statement of the Case............................................................................................6
    Statement of Procedural History ...........................................................................6
    Ground for Review ...............................................................................................7
    May proof under TEX. PEN. CODE § 6.02(e) consist of
    evidence that the jury did not believe?
    Argument ..............................................................................................................7
    Prayer for Relief ....................................................................................................9
    Certificate of Compliance ...................................................................................10
    Certificate of Service ..........................................................................................10
    Court of Appeals’ Initial Opinion ............................................. following page 10
    Court of Appeals’ Later Opinion ................................... following Initial Opinion
    3
    INDEX OF AUTHORITIES
    Cases
    Wasylina v. State, 
    275 S.W.3d 908
    (Tex.Crim.App. 2009).............................. 7-8
    Wasylina v. State, 
    2007 WL 677778
    (Tex.App. – Tyler,
    March 7, 2007) (not designated for publication) ........................................7
    Statutory Provision
    TEX. PEN CODE § 6.02(e) ...............................................................................7,9
    4
    NO. __________________
    TO THE
    COURT OF CRIMINAL APPEALS
    OF TEXAS
    ***************
    BRENT ALLEN BENEFIELD
    Petitioner,
    v.
    THE STATE OF TEXAS
    Respondent.
    ***************
    PETITION FOR DISCRETIONARY REVIEW IN CAUSE NUMBER
    02-14-00099-CR FROM THE SECOND COURT OF APPEALS
    AND IN CAUSE NUMBER 53,721-C FROM THE
    30th DISTRICT COURT OF WICHITA COUNTY
    ***************
    PETITION FOR DISCRETIONARY REVIEW
    ***************
    To the Honorable Judges of the Court of Criminal Appeals:
    COMES NOW Brent Allen Benefield, petitioner in the above cause, and
    submits this petition in support of his request for his appeal’s remand to the
    Second Court of Appeals for new analysis.
    5
    STATEMENT REGARDING ORAL ARGUMENT
    Because the petitioner’s claim involves the proper review of a
    constitutional issue, the petitioner requests oral argument.
    STATEMENT OF THE CASE
    The petitioner pled not guilty to charges of injury to a child with serious
    bodily injury and of continuous violence against the family. A jury convicted
    him of both, but although the indictment accused the petitioner of knowing
    injury to a child, the verdict was of reckless injury to a child. The jury then
    returned sentencing verdicts of ten and five years’ imprisonment, respectively,
    which the trial court imposed.
    STATEMENT OF PROCEDURAL HISTORY
    The court of appeals affirmed the convictions and sentences on February
    26, 2015. (Court of Appeals’ Initial Opinion, attached). The petitioner filed a
    motion for rehearing on March 7, 2015. And on July 30, 2015, the court of
    appeals denied rehearing but withdrew its earlier opinion and issued another.
    (Court of Appeals’ Later Opinion, also attached).
    6
    GROUND FOR REVIEW
    May proof under TEX. PEN. CODE § 6.02(e) consist of evidence the
    jury did not believe?
    ARGUMENT
    In Wasylina v. State, 
    275 S.W.3d 908
    (Tex.Crim.App. 2009), a
    manslaughter case, the jury charge included the lesser-included criminally
    negligent homicide. The verdict was criminally negligent homicide. 
    Id. at 909.
    But finding no record evidence to prompt “a rational jury to find that Appellant
    is guilty of criminally negligent homicide, but not guilty of manslaughter,” the
    court of appeals ordered an acquittal. Wasylina v. State, 
    2007 WL 677778
    (Tex.App. – Tyler, March 7, 2007) (not designated for publication).
    A majority of this Court reversed, holding that “proving the greater
    culpable mental state … necessarily proves the lesser culpable mental state …”
    
    Wasylina, 275 S.W.3d at 909-10
    ; TEX. PEN CODE § 6.02(e). But three judges
    dissented, stating § 6.02(e) does not apply where the verdict shows the jury did
    not believe the evidence of the greater culpable mental state: “the State did not
    prove the greater culpable mental state … which is why the jury acquitted
    Appellant of manslaughter.” 
    Wasylina, 275 S.W.3d at 914
    (emphasis added).
    7
    Here only the conviction for reckless injury to a child is at issue. The trial
    court charged the jury both on knowing injury to a child, as the indictment
    accused, and on the lesser-included offense of reckless injury to a child. At
    closing argument the State requested conviction for “a knowing crime,” telling
    the jury that “There is really not any evidence that it's reckless.” (RR, v. 20, p.
    69) (emphasis added). But the jury returned a verdict of reckless injury to a
    child. Its appellate brief similarly pointed only to a knowing offense.
    In response to the petitioner’s claim that insufficient evidence was
    presented of recklessness, the court of appeals’ initial opinion applied the
    Wasylina majority’s opinion:
    in our sufficiency review, we can consider the same evidence that [the
    petitioner] acted knowingly in determining whether the evidence is
    sufficient to show that he acted recklessly. See Tex. Penal Code Ann. §
    6.02 (West 2011) (stating that proof of a higher degree of culpability
    than that charged constitutes proof of the culpability charged); Wasylina
    v. State, 
    275 S.W.3d 908
    , 910 & n.14 (Tex. Crim. App. 2009) (holding
    that jury could properly convict defendant of criminally negligent
    homicide even though the State had charged manslaughter and proved a
    “reckless” culpability)…
    (Initial Opinion, attached, p. 9). The court of appeals’ later opinion did not refer
    to Wasylina but used its principle, that rejected evidence of a knowing offense
    still suffices to proves recklessness. (Later Opinion, also attached, p. 13-14).
    As the Wasylina dissent noted, such a conclusion does not address the fact that
    the jury placed no credence in such evidence of a knowing mental state.
    8
    “Proof of a higher degree of culpability than that charged” unquestionably
    “constitutes proof of the culpability charged” under § 6.02(e) (emphasis added).
    This entails that if a defendant is charged merely with simple robbery but the
    jury believes the evidence establishes aggravated robbery, then simple robbery
    is clearly proven.
    But § 6.02(e) cannot render evidence legally sufficient where the greater
    degree of culpability is not proven. Where the verdict reflects that jury put no
    stock in the evidence of the greater culpable mental state, then evidence of the
    higher offense is not proof, and § 6.02(e) does not come into play.
    PRAYER FOR RELIEF
    The petitioner prays the Court grant discretionary review and remand the
    case to the court of appeals for new analysis, or grant all appropriate relief.
    Respectfully submitted,
    /s/ JOHN BENNETT
    John Bennett
    Post Office Box 19144
    Amarillo, TX 79114
    Telephone: (806) 282-4455
    Fax: (806) 398-1988
    AppealsAttorney@gmail.com
    State Bar No. 00785691
    Attorney for the Petitioner
    9
    CERTIFICATE OF COMPLIANCE
    I certify that this entire PDR contains 1,188 words.
    /s/ JOHN BENNETT
    John Bennett
    CERTIFICATE OF SERVICE
    I certify that a true and correct copy of the above and foregoing PDR has
    been served by prepaid U.S. Mail, first class delivery prepaid, on John Gillespie,
    Esq., and John Brasher, Esq., Assistant Criminal District Attorneys for Wichita
    County, by United States Mail, first class delivery prepaid, to them at 900
    Seventh Street, Wichita Falls, Texas 76310, and by email to them at
    john.brasher@co.wichita.tx.us, and on Lisa McMinn, Esq., State Prosecuting
    Attorney, by United States Mail, first class delivery prepaid, to her at P.O. Box
    13046, Austin, Texas 78711, and by email to her at lisa.mcminn@spa.texas.gov,
    all on August 28, 2015.
    /s/ JOHN BENNETT
    John Bennett
    10
    COURT OF APPEALS’
    INITIAL OPINION
    COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-14-00099-CR
    BRENT ALLEN BENEFIELD                                              APPELLANT
    V.
    THE STATE OF TEXAS                                                       STATE
    FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
    TRIAL COURT NO. 53,721-A
    OPINION
    I. INTRODUCTION
    A jury convicted Appellant Brent Allen Benefield of one count of injury to a
    child by recklessly causing serious bodily injury and one count of continuous
    violence against the family and found the deadly weapon allegation for both
    counts to be true. See Tex. Penal Code Ann. §§ 22.04, 25.11 (West 2011 &
    Supp. 2014). The jury assessed his punishment at ten years' confinement on
    count one and five years' confinement on count two. The trial court sentenced
    him accordingly, ordering that the sentences run concurrently. In three issues,
    Benefield argues that the evidence is insufficient to show that he recklessly
    committed injury to a child, that his convictions violate double jeopardy, and that
    he is entitled to further jail-time credit toward his sentence for the continuous-
    violence-against-the-family conviction. We will affirm.
    II. FACTUAL AND PROCEDURAL BACKGROUND
    Benefield and Sally had a son, Lane, together in 2009.1 Sally and Lane
    lived with her parents after Lane's birth, but Sally and Benefield eventually
    married and moved into a house together with Lane in 2010. Sally became
    pregnant with their second child, Lee, in January 2011. When she was three
    months pregnant with Lee, Benefield began assaulting Sally. He choked her
    multiple times; in one incident when she was four months pregnant, Benefield
    choked her and hit her, giving her a black eye. The assault caused her to have
    contractions and start bleeding, so she went to the emergency room to make
    sure that her baby had not been harmed.
    When she was six months pregnant, Benefield pushed Sally face down on
    the bed after she confronted him about not having a job and about the high
    electricity bill. Sally told their couples' counselor, who advised Sally to make a
    1To protect the anonymity of the children in this case, we will use aliases to
    refer to all individuals named herein with the exception of the appellant. See
    Tex. R. App. P. 9.10(a)(3); McClendon v. State, 
    643 S.W.2d 936
    , 936 n.1 (Tex.
    Grim. App. [Panel Op.] 1982).
    safety plan and contact a battered woman's shelter. Benefield admitted to the
    counselor that he had hurt Sally.       During another joint counseling session,
    Benefield became angry at Sally and yelled at her; the counselor asked him to
    leave until he could act better, and Benefield did not return.
    Lee was born in October 2011.* After taking one week off, Sally resumed
    college classes for her teaching degree, and Benefield took care of Lane and Lee
    while Sally was gone. At Lee's one-month check-up, the pediatrician discovered
    that Lee had an unexplained spiral fracture to one of his arm bones; the
    pediatrician opined that "probably somebody picked him up by his arm or twisted
    his arm in some way." At his two-month check-up, Sally reported that Lee had
    some bruises on his ankles, and his pediatrician noted two small bruises on
    Lee's wrists as well. The pediatrician tested Lee's blood for blood disorders that
    could cause him to bruise easily, and the results came back normal. In January
    2012, Sally began student teaching; Benefield stayed home with Lane and Lee
    while Sally was at school from 7:50 a.m. until 3:00 p.m. during the week.
    On February 8, 2012, when Lee was four months old, Sally woke up late
    for school at 7:30. Lee was awake, cooing and babbling, when Sally got up.
    Sally woke Benefield before leaving for school and was at school at 8:00 a.m.
    She received a call around lunchtime informing her that Lee had been taken to
    the emergency room.
    2Lee's birth was normal; he had some trouble breathing after birth but did
    not require any oxygen, and the issue quickly resolved.
    Benefield talked to the police at the hospital and again the following day.
    He said that after Sally woke him, he got up, changed Lee's diaper, and made
    him a bottle.   Lee drank four ounces, which was a normal amount for him.
    Benefield turned on a movie for Lane, and Lee followed the movie with his eyes
    and was "pretty alert." Around 11:00 a.m., Lee began fussing, so Benefield put
    him down for a nap. At 11:13 a.m., a friend called Benefield, and the two talked
    for approximately twenty minutes; Benefield never mentioned to the friend
    anything unusual about Lee. Around 11:45, Lee started crying, so Benefield
    changed his diaper. Lee squirmed around and kicked his legs during the diaper
    change but suddenly went limp. Benefield called 911. He told the 911 operator
    that he had observed "nothing out of the ordinary, nothing unusual" with Lee that
    morning. He said that Lee had been unresponsive for two minutes.
    Lee was resuscitated at the Wichita Falls hospital and then transported by
    Care Flight to Cook Children's Hospital in Fort Worth. He presented with an
    acute, or new, subdural hematoma and a prior subdural hematoma; retinal
    hemorrhages; an acute rib fracture and two healing rib fractures; ligamentous
    neck injuries, or injuries to the tissues and ligaments in his spine; corner fractures
    on the bottom of both his left and right femur bones and on the top of both his left
    and right humerus bones; and a torn frenulum, which was a recent injury with no
    signs of healing. Based on the constellation of Lee's injuries, doctors determined
    that Lee was a "severely battered baby" and diagnosed him with abusive, or non-
    accidental, head trauma. Lee died in the hospital four days later. Doctors at
    Cook Children's Hospital determined that the cause of Lee's death was a severe
    brain injury, causing him to be "neurologically devastated." Doctors opined that
    the acute subdural hematoma and retinal hemorrhaging was caused by shaking
    Lee or by shaking with impact, that the ligamentous neck injuries and the
    fractures to his leg and arm bones resulted from shaking Lee, that the acute rib
    fracture could have been caused by grabbing Lee or from the resuscitation
    efforts, and that the torn frenulum was caused by blunt impact to Lee's mouth
    from an object (likely a pacifier or a bottle) being pushed under his lip.3
    The State charged Benefield with one count of injury to a child and one
    count of continuous family violence.       The injury-to-a-child count alleged that
    Benefield knowingly or recklessly caused serious bodily injury to Lee "by causing
    blunt trauma to the head and/or brain of [Lee], to wit: by shaking [Lee] with his
    hands and/or by striking [Lee] with or against a hard or soft object or surface."
    The continuous-family-violence count alleged six acts of assault against Sally
    based on his hitting her and choking her on six different occasions while she was
    pregnant with Lee and alleged one act of assault against Lee based on Lee's
    torn frenulum.
    3One  of Lee's treating doctors testified that the corner fractures to his arms
    and legs were symmetrical, which could have been caused by shaking Lee such
    that his arms and legs flailed at the same time.
    III. SUFFICIENCY OF THE EVIDENCE
    In his first issue, Benefield argues that the evidence is insufficient to
    support his conviction for injury to a child by recklessly causing serious bodily
    injury.
    In our due-process review of the sufficiency of the evidence to support a
    conviction, we view all of the evidence in the light most favorable to the verdict to
    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, 
    99 S. Ct. 2781
    , 2789 (1979); Dobbs v. State, 434 S.W.Sd 166, 170
    (Tex. Grim. App. 2014). This standard gives full play to the responsibility of the
    trier of fact 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
    , 99 S. Ct. at 2789; Dobbs, 434 S.W.Sd at 170.
    The trier of fact is the sole judge of the weight and credibility of the
    evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434
    S.W.Sd at 170. Thus, when performing an evidentiary sufficiency review, we
    may not re-evaluate the weight and credibility of the evidence and substitute our
    judgment for that of the factfmder. Isassi v. State, 330 S.W.Sd 633, 638 (Tex.
    Crim. App. 2010). Instead, we determine whether the necessary inferences are
    reasonable based upon the cumulative force of the evidence when viewed in the
    light most favorable to the verdict. Sorrells v. State, 343 S.W.Sd 152, 155 (Tex.
    Crim. App. 2011); see Temple v. State, 390 S.W.Sd 341, 360 (Tex. Crim. App.
    2013). We must presume that the factfinder resolved any conflicting inferences
    in favor of the verdict and defer to that resolution. 
    Jackson, 443 U.S. at 326
    , 99
    S. Ct. at 2793; Dobbs, 434 S.W.Sd at 170.
    The standard of review is the same for direct and circumstantial evidence
    cases; circumstantial evidence is as probative as direct evidence in establishing
    the guilt of an actor. Dobbs, 434 S.W.Sd at 170; Hooper v. State, 214 S.W.Sd 9,
    13 (Tex. Grim. App. 2007).
    A person commits an offense if the person intentionally, knowingly, or
    recklessly causes serious bodily injury to a child.       Tex. Penal Code Ann.
    §22.04(a).      When the conduct is committed intentionally or knowingly, the
    offense is a first degree felony; when the conduct is committed recklessly, it is a
    second-degree felony.      
    Id. § 22.04(e).
      Injury to a child is a result-oriented
    offense requiring a mental state that relates not to the specific conduct but to the
    result of that conduct. Williams v. State, 235 S.W.Sd 742, 750 (Tex. Grim. App.
    2007).
    A person acts recklessly, or is reckless, with respect to a result of his
    conduct when he is aware of but consciously disregards a substantial and
    unjustifiable risk that the result will occur. Tex. Penal Code Ann. § 6.03(c) (West
    2011).     The risk must be of such a nature and degree that its disregard
    constitutes a gross deviation from the standard of care that an ordinary person
    would exercise under all the circumstances as viewed from the actor's
    standpoint. 
    Id. Here, viewing
    the evidence in the light most favorable to the verdict, the
    evidence showed the following. Lee acted normally on the morning of February
    8, 2012, from the time that Sally awoke at 7:30 a.m. until Benefield called 911
    around 12:08 p.m. Benefield told the 911 operator on the phone and later told
    the police that Lee had been acting normally all morning until he suddenly "went
    limp" during a diaper change.
    At the hospital, Lee presented with multiple injuries evidencing that he was
    a severely beaten baby.         Specifically regarding the head injuries that Lee
    presented with on February 8, 2012, Dr. Jayme Coffman, the medical director of
    the child abuse program at Cook Children's Hospital, testified that Lee would
    have been in a serious state of distress that would have been "immediately
    apparent" to a caretaker right after sustaining those head injuries.      Pediatric
    radiologist Dr. Hayden Head testified that Lee's brain injuries were caused from
    shaking or shaking with impact. He explained that a four-month-old baby with
    Lee's brain injuries would be incapable of appearing normal for any period of
    time after the brain injury was inflicted; the baby would be unable to drink four
    ounces of milk or follow the lights on a TV with his eyes after sustaining that
    injury. Although some of Lee's injuries could not be dated or occurred weeks
    prior to the day that Benefield called 911,4 the doctors all agreed that the severe
    4For example, Dr. Head testified that the prior subdural hemorrhage in
    Lee's head could have occurred two to three weeks earlier, that the rib fractures
    that showed signs of healing could have occurred three to four weeks earlier, and
    8
    brain injury that ultimately led to Lee's death must have occurred that morning
    immediately prior to Benefield calling 911.
    Benefield argues on appeal that the State failed to introduce any evidence
    that he acted recklessly and instead introduced evidence that either he acted
    intentionally or knowingly (by shaking or by shaking with impact) or that Lee's
    injuries stemmed from an internal cause for which no one was responsible. But
    in our sufficiency review, we can consider the same evidence that Benefield
    acted knowingly in determining whether the evidence is sufficient to show that he
    acted recklessly. See Tex. Penal Code Ann. § 6.02 (West 2011) (stating that
    proof of a higher degree of culpability than that charged constitutes proof of the
    culpability charged); Wasylina v. State, 275 S.W.Sd 908, 910 & n.14 (Tex. Grim.
    App. 2009) (holding that jury could properly convict defendant of criminally
    negligent homicide even though the State had charged manslaughter and proved
    a "reckless" culpability); Ledet v. State, No. 02-10-00281-CR, 
    2013 WL 1830801
    ,
    at *1 (Tex. App.—Fort Worth May 2, 2013, pet. refd) (mem. op., not designated
    for publication) ("[BJecause sexual assault is a lesser-included offense of
    aggravated sexual assault, if the complainant's testimony was sufficient to
    support the greater offense, her testimony necessarily also proved the lesser
    offense.").
    that the corner fractures to Lee's arms could have occurred two to three weeks
    earlier.
    Based on the evidence that Lee acted normally on the morning of the
    incident, that Benefield was his sole caretaker from approximately 8:00 a.m. until
    he called 911 at 12:08 p.m., that Lee's extensive brain injuries would have been
    immediately apparent once sustained, and that Lee's injuries were consistent
    with and indicative of abusive head trauma, we hold that a rational trier of fact
    could have found beyond a reasonable doubt that Benefield, by causing blunt
    force trauma to Lee's head (by shaking Lee or by striking him with or against a
    hard or soft object or surface), was aware of but consciously disregarded a
    substantial and unjustifiable risk that Lee would suffer serious bodily injury. See
    Tex. Penal Code Ann. § 6.03(c). That is, sufficient evidence exists in the record
    that Benefield acted recklessly in causing serious bodily injury to Lee.5 We
    overrule Benefield's first issue.
    IV. DOUBLE JEOPARDY
    In his third issue, Benefield argues that his convictions for continuous
    violence against the family and injury to a child violate double jeopardy because
    5Benefield points to the State's closing argument in support of his claim of
    insufficient evidence of recklessness. The State argued, "[l]t's a knowing crime,
    and I would ask each and every one of you to convict him of a knowing crime.
    There is really not any evidence that it's reckless. There's no evidence that. . .
    there was some sort of a risk that he perceived and proceeded anyway." But
    arguments are not evidence. See Woods v. State, 301 S.W.Sd 327, 332, n.1
    (Tex. App.—Houston [14th Dist] 2009, no pet.). And even if all of the evidence
    pointed to a knowing culpable mental state, as we stated above, we can consider
    such evidence in our sufficiency review of evidence that Benefield acted
    recklessly. See Tex. Penal Code Ann. § 6.02; Wasylina, 275 S.W.Sd at 910.
    10
    at least some of the conduct of the injury to a child offense is the same as an
    element of the continuous violence offense.
    The Double Jeopardy Clause of the United States Constitution provides
    that no person shall be subjected to twice having life or limb in jeopardy for the
    same offense. U.S. Const, amend. V. Generally, this clause protects against
    (1) a second prosecution for the same offense after acquittal, (2) a second
    prosecution for the same offense after conviction, and (3) multiple punishments
    for the same offense. Brown v. Ohio, 
    432 U.S. 161
    , 165, 
    97 S. Ct. 2221
    , 2225
    (1977); Exparte Cavazos, 203 S.W.Sd 333, 336 (Tex. Crim. App. 2006).
    A potential double jeopardy violation may be forfeited by the defendant's
    failure to assert it in the trial court. Langs v. State, 183 S.W.Sd 680, 686-87
    (Tex. Crim. App. 2006). But a double jeopardy claim may be raised for the first
    time on appeal "when the undisputed facts show the double jeopardy violation is
    clearly apparent on the face of the record and when enforcement of usual rules
    of procedural default serves no legitimate state interests." Gonzalez v. State, 8
    S.W.Sd 640, 643 (Tex. Crim. App. 2000) (footnotes omitted).
    Here, Benefield did not raise his double jeopardy claim in the trial court.
    Thus, the alleged double jeopardy violation must be clearly apparent from the
    face of the record. See Langs, 183 S.W.Sd at 686-87. Benefield argues that, in
    convicting him of continuous violence against the family, the jury could have
    relied upon the same conduct that it relied upon in convicting him of injury to a
    child because, in addition to multiple allegations of assault against Sally, the
    11
    continuous-violence-against-the-family indictment also alleged an assault against
    Lee based on the torn frenulum injury.6 But the jury returned a general verdict,
    and we do not know what acts it relied upon in convicting Benefield of continuous
    violence against the family. The six acts of violence against Sally and the one
    act against Lee were submitted to the jury disjunctively, and the jury had to find
    that Benefield committed at least two of the seven acts to convict him of
    continuous violence against the family. See Tex. Penal Code Ann. § 25.11 ("A
    person commits an offense if, during a period that is 12 months or less in
    duration, the person two or more times engages in conduct that constitutes an
    [assault against a family member]."). Because the jury could have relied on two
    or more of the alleged acts of violence against Sally in convicting him of
    continuous violence against the family, Benefield's double jeopoardy claim is not
    clear from the face of the record. See Langs, 183 S.W.Sd at 686-87; Gonzalez,
    8 S.W.Sd at 643.
    Benefield argues that the continuous-violence-against-the-family statute
    imposes a double jeopardy bar that applies here to "trumpQ" the general raise-or-
    waive principle set forth above. Section 25.11 provides,
    Specifically, the continuous-family-violence indictment alleged that
    Benefield intentionally or recklessly caused bodily injury to Lee "by causing
    [Lee's] frenulum to tear, by striking [Lee's] mouth with a bottle and/or
    [Benefield's] hand, and/or by striking [Lee's] mouth with or against a hard or soft
    object or surface and/or by manner and means unknown."
    12
    A defendant may not be convicted in the same criminal action
    of another offense the victim of which is an alleged victim of the
    offense under Subsection (a) and an element of which is any
    conduct that is alleged as an element of the offense under
    Subsection (a) unless the other offense:
    (1) is charged in the alternative;
    (2) occurred outside the period in which the offense alleged
    under Subsection (a) was committed; or
    (3) is considered by the trier of fact to be a lesser included
    offense of the offense alleged under Subsection (a).
    Tex. Penal Code Ann. § 25.11(c). As applied here, Benefield argues that an
    element of the injury-to-a-child offense ("striking [Lee] with or against a hard or
    soft object or surface") was alleged as an element of the continuous-violence-
    against-the-family offense ("striking [Lee's] mouth with or against a hard or soft
    object or surface"). But even if Benefield is correct that an objection is not
    required to raise a double jeopardy complaint based on section 25.11, the
    allegation of assault against Lee in the continuous-violence-against-the-family
    offense was the act causing injury to Lee's mouth—the frenulum tear—whereas
    the allegation of assault against Lee in the injury-to-a-child count was the act
    causing blunt trauma to Lee's head or brain, specifically by shaking him or by
    striking him with or against an object or surface. As Dr. Coffman opined, the
    injury to Lee's mouth—the frenulum tear—was caused by blunt impact to his
    mouth, likely from a pacifier or a bottle being pushed under his lip. Dr. Coffman
    explained that the action that caused Lee's injury to his mouth was separate and
    distinct from that which caused his brain injury. Thus, the conduct alleged in the
    13
    injury-to-a-child offense was not the same conduct alleged as part of the
    continuous-violence-against-the-family offense.    See Tex. Penal Code Ann. §
    25.11(c). Benefield's convictions for distinct offenses based on different conduct
    do not present the double jeopardy situation prohibited under penal code section
    25.11. See id.; see also Vick v. State, 
    991 S.W.2d 830
    , 833 (Tex. Grim. App.
    1999) (explaining that the court's determination that violations of separate and
    distinct statutory aggravated sexual assault offenses involved separate and
    distinct acts ended the inquiry for double jeopardy purposes).
    For the above reasons, we overrule Benefield's third issue.
    V. JAIL TIME CREDIT
    In his fourth issue, Benefield argues that he is entitled to further jail-time
    credit toward his sentence for his continuous-violence-against-the-family
    conviction.   The trial court awarded him 133 days' jail-time credit toward his
    sentence for the continuous-violence-against-the-family conviction, but he argues
    that he should have been given credit for the entire 653 days he spent in jail after
    he was arrested for injury to a child.7
    7The State argues that direct appeal is not the proper vehicle to present
    the issue of pre-sentence jail credit. We agree that typically, the correct avenue
    to seek a credit is through a motion for judgment nunc pro tune, but when the
    alleged failure to award jail credit involves the exercise of judicial reasoning, a
    judgment nunc pro tune is not the proper remedy. See Collins v. State, 240
    S.W.Sd 925, 928 (Tex. Crim. App. 2007). Because the allegation here involves
    more than an alleged miscalculation or other clerical error, we will address the
    merits of the claim. See id.; see also Blackerby v. State, No. 03-11-00272-CR,
    
    2012 WL 6097306
    , at *3 (Tex. App.—Austin Dec. 5, 2012, no pet.) (mem. op.,
    not designated for publication) (addressing merits of similar jail-time-credit
    14
    The trial court is required by law to credit the sentence of a defendant for
    time the defendant spent "in jail for the case . . . from the time of his arrest and
    confinement until his sentence by the trial court." Tex. Code Crim. Proc. Ann. art.
    42.03, § 2(a)(1) (West Supp. 2014) (emphasis added); see a/so Tex. R. App. P.
    23.2(b).   In this case, Benefield essentially argues that the injury-to-a-child
    charge and the subsequent continuous-violence-against-the-family charge
    constitute the same "case" for purposes of pre-sentence jail-time credit because
    both involve the same conduct. We have already explained above that the act
    against Lee alleged in the injury-to-a-child count was separate and distinct from
    the act alleged in the continuous-violence-against-the-family count.       Benefield
    was originally arrested on April 17, 2012, on the sole charge of injury to a child by
    causing blunt trauma to Lee's "head and/or brain." A grand jury indicted him for
    continuous-violence-against-the-family on September 18, 2013. The time spent
    "in jail for the [continuous-violence-against-the-family] case" ran from the date of
    his indictment for that offense until the date of his sentence. Because the trial
    court correctly awarded jail-time credit based on that period of time, we overrule
    Benefield's fourth issue. See Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a)(1);
    see a/so Collins v. State, 
    318 S.W.3d 471
    , 473 (Tex. App.—Amarillo 2010, pet.
    refd) ("fT]he credit at issue relates not just to any time the defendant spent
    argument because issue involved judicial reasoning such that nunc pro tune
    judgment would have been inappropriate).
    15
    incarcerated before conviction. Rather, it is the time one is incarcerated for the
    case in which he is ultimately tried and convicted."); Blackerby, 
    2012 WL 6097306
    , at *3 (holding appellant not entitled to jail-time credit on intoxication
    manslaughter conviction for time spent in jail after arrest for felony DWI when not
    indicted for intoxication manslaughter until later date); Martinez v. State, No. 13-
    04-00085-CR, 
    2005 WL 1805500
    , at *3 (Tex. App.—Corpus Christi July 28,
    2005, no pet.) (mem. op., not designated for publication) ("A trial court must
    award credit for time served for the same offense and not time incarcerated pre-
    trial for independent offenses.").
    VI. CONCLUSION
    Having overruled Benefield's three issues, we affirm the trial court's
    judgment.8
    Is/ Sue Walker
    SUE WALKER
    JUSTICE
    PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.
    PUBLISH
    DELIVERED: February 26, 2015
    8Benefield expressly waived his second issue in a reply brief. Therefore,
    we do not consider it.
    16
    COURT OF APPEALS’
    LATER OPINION
    COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-14-00099-CR
    BRENT ALLEN BENEFIELD                                                  APPELLANT
    V.
    THE STATE OF TEXAS                                                           STATE
    ----------
    FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
    TRIAL COURT NO. 53,721-A
    ----------
    MEMORANDUM OPINION1 ON REHEARING
    ----------
    I. INTRODUCTION
    On February 26, 2015, this court issued an opinion affirming the trial
    court’s judgment. Appellant Brent Allen Benefield filed a motion for rehearing
    asserting that because the jury did not find him guilty of the offense of injury to a
    child with serious bodily injury committed knowingly but instead found him guilty
    1
    See Tex. R. App. P. 47.4.
    only of the offense of injury to a child with serious bodily injury committed
    recklessly, we erred by relying on evidence of knowing injury in performing our
    sufficiency analysis of the evidence supporting reckless injury.          We deny
    Benefield’s motion for rehearing but withdraw our prior opinion and judgment
    dated February 26, 2015, and substitute the following opinion and judgment to
    clarify our holding that the evidence is sufficient to support Benefield’s conviction
    for injury to a child with serious bodily injury committed recklessly.
    A jury convicted Benefield of one count of injury to a child by recklessly
    causing serious bodily injury and one count of continuous violence against the
    family and found the deadly-weapon allegation for both counts to be true. See
    Tex. Penal Code Ann. §§ 22.04, 25.11 (West 2011 & Supp. 2014). The jury
    assessed his punishment at ten years’ confinement on count one and five years’
    confinement on count two. The trial court sentenced him accordingly, ordering
    that the sentences run concurrently. In three issues, Benefield argues that the
    evidence is insufficient to show that he recklessly committed injury to a child, that
    his convictions violate double jeopardy, and that he is entitled to further jail-time
    credit toward his sentence for the continuous-violence-against-the-family
    conviction. We will affirm.
    2
    II. FACTUAL AND PROCEDURAL BACKGROUND
    Benefield and Sally had a son, Lane,2 together in 2009. Sally and Lane
    lived with her parents after Lane’s birth, but Sally and Benefield eventually
    married and moved into a house together with Lane in 2010. Sally became
    pregnant with their second child, Lee, in January 2011. When she was three
    months’ pregnant with Lee, Benefield began assaulting Sally. He choked her
    multiple times; in one incident when she was four months’ pregnant, Benefield
    choked her and hit her, giving her a black eye. The assault caused her to have
    contractions and start bleeding, so she went to the emergency room to make
    sure that her baby had not been harmed.
    When she was six months’ pregnant, Benefield pushed Sally face down on
    the bed after she confronted him about not having a job and about the high
    electricity bill. Sally told their couples’ counselor, who advised Sally to make a
    safety plan and to contact a battered woman’s shelter. Benefield admitted to the
    counselor that he had hurt Sally.       During another joint counseling session,
    Benefield became angry at Sally and yelled at her; the counselor asked him to
    leave until he could act better, and Benefield did not return.
    2
    To protect the anonymity of the children in this case, we will use aliases to
    refer to all individuals named herein with the exception of the appellant. See
    Tex. R. App. P. 9.10(a)(3); McClendon v. State, 
    643 S.W.2d 936
    , 936 n.1 (Tex.
    Crim. App. [Panel Op.] 1982).
    3
    Lee was born in October 2011.3 After taking off one week, Sally resumed
    college classes for her teaching degree, and Benefield took care of Lane and Lee
    while Sally was gone. At Lee’s one-month check-up, the pediatrician discovered
    that Lee had an unexplained spiral fracture to one of his arm bones; the
    pediatrician opined that “probably somebody picked him up by his arm or twisted
    his arm in some way.” At his two-month check-up, Sally reported that Lee had
    some bruises on his ankles, and his pediatrician noted two small bruises on
    Lee’s wrists as well. The pediatrician tested Lee’s blood for blood disorders that
    could cause him to bruise easily, and the results came back normal. In January
    2012, Sally began student teaching; Benefield stayed home with Lane and Lee
    while Sally was at school from 7:50 a.m. until 3:00 p.m. during the week.
    On February 8, 2012, when Lee was four months old, Sally woke up late
    for school at 7:30. Lee was awake, cooing and babbling, when Sally got up.
    Sally woke Benefield before leaving for school and was at school at 8:00 a.m.
    She received a call around lunchtime informing her that Lee had been taken to
    the emergency room.
    Benefield talked to the police at the hospital and again the following day.
    He said that after Sally woke him, he got up, changed Lee’s diaper, and made
    him a bottle.   Lee drank four ounces, which was a normal amount for him.
    Benefield turned on a movie for Lane, and Lee followed the movie with his eyes
    3
    Lee’s birth was normal; he had some trouble breathing after birth but did
    not require any oxygen, and the issue quickly resolved.
    4
    and was “pretty alert.” Around 11:00 a.m., Lee began fussing, so Benefield put
    him down for a nap. At 11:13 a.m., a friend called Benefield, and the two talked
    for approximately twenty minutes; Benefield never mentioned to the friend
    anything unusual about Lee. Around 11:45 a.m., Lee started crying, so Benefield
    changed his diaper. Lee squirmed around and kicked his legs during the diaper
    change but suddenly went limp and started coughing up blood. Benefield called
    911. He told the 911 operator that he had observed “nothing out of the ordinary,
    nothing unusual” with Lee that morning.         He said that Lee had been
    unresponsive for two minutes.
    The Wichita Falls Police Department, the Wichita Falls Fire Department,
    and Emergency Medical Services responded to Benefield’s 911 call.        Police
    Officer Brian Williams testified that Benefield admitted him to the home when he
    arrived and led him to the back master bedroom where Lee was lying on the bed.
    Officer Williams thought Lee was dead.     Officer Williams observed blood on
    Lee’s mouth, blood on the baby blanket that he was lying on, and bloody baby
    wipes in the nearby trashcan. EMS personnel arrived, provided medical attention
    to Lee, and transported him to the Wichita Falls hospital. Police Patrol Sargent
    Mike Younts arrived at the scene at this point; as he was asking Benefield to
    leave the home with Benefield’s other two-year-old son, Benefield “came up to
    [him] on his own and asked, ‘Do you think it was shaken?’”
    Lee was resuscitated at the Wichita Falls hospital and then transported by
    Care Flight to Cook Children’s Hospital in Fort Worth. He presented with an
    5
    acute, or new, subdural hematoma and a prior subdural hematoma; retinal
    hemorrhages; an acute rib fracture and two healing rib fractures; ligamentous
    neck injuries, or injuries to the tissues and ligaments in his spine; corner fractures
    on the bottom of both his left and right femur bones and on the top of both his left
    and right humerus bones; and a torn frenulum, which was a recent injury with no
    signs of healing. Based on the constellation of Lee’s injuries, doctors determined
    that Lee was a “severely battered baby” and diagnosed him with abusive, or non-
    accidental, head trauma. But doctors agreed that no physical evidence existed
    on Lee’s head indicating it had impacted a hard or soft surface. Lee died in the
    hospital four days later. Doctors at Cook Children’s Hospital determined that the
    cause of Lee’s death was a severe brain injury, causing him to be “neurologically
    devastated.”   Doctors opined that the acute subdural hematoma and retinal
    hemorrhaging was caused by shaking Lee or by shaking with impact, that the
    ligamentous neck injuries and the fractures to his leg and arm bones resulted
    from shaking Lee, that the acute rib fracture could have been caused by grabbing
    Lee or from the resuscitation efforts, and that the torn frenulum was caused by
    blunt impact to Lee’s mouth from an object (likely a pacifier or a bottle) being
    pushed under his lip.4
    4
    One of Lee’s treating doctors testified that the corner fractures to his arms
    and legs were symmetrical, which could have been caused by shaking Lee such
    that his arms and legs flailed at the same time.
    6
    The State charged Benefield with one count of injury to a child and one
    count of continuous family violence.      The injury-to-a-child count alleged that
    Benefield knowingly or recklessly caused serious bodily injury to Lee “by causing
    blunt trauma to the head and/or brain of [Lee], to wit: by shaking [Lee] with his
    hands and/or by striking [Lee] with or against a hard or soft object or surface.”
    The continuous-family-violence count alleged six acts of assault against Sally
    based on Benefield’s hitting her and choking her on six different occasions while
    she was pregnant with Lee and alleged one act of assault against Lee based on
    Lee’s torn frenulum.
    III. SUFFICIENCY OF THE EVIDENCE
    In his first issue, Benefield argues that the evidence is insufficient to
    support his conviction for injury to a child by recklessly causing serious bodily
    injury because the evidence does not show that he was the person who inflicted
    Lee’s injuries and because the evidence supports only a finding of intentional or
    knowing conduct but not reckless conduct.
    A. Standard of Review
    In our due-process review of the sufficiency of the evidence to support a
    conviction, we view all of the evidence in the light most favorable to the verdict to
    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, 
    99 S. Ct. 2781
    , 2789 (1979); Dobbs v. State, 
    434 S.W.3d 166
    , 170
    (Tex. Crim. App. 2014). This standard gives full play to the responsibility of the
    7
    trier of fact 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
    , 99 S. Ct. at 2789; 
    Dobbs, 434 S.W.3d at 170
    .
    The trier of fact is the sole judge of the weight and credibility of the
    evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); 
    Dobbs, 434 S.W.3d at 170
    . Thus, when performing an evidentiary sufficiency review, we
    may not re-evaluate the weight and credibility of the evidence and substitute our
    judgment for that of the factfinder. Isassi v. State, 
    330 S.W.3d 633
    , 638 (Tex.
    Crim. App. 2010). Instead, we determine whether the necessary inferences are
    reasonable based upon the cumulative force of the evidence when viewed in the
    light most favorable to the verdict. Sorrells v. State, 
    343 S.W.3d 152
    , 155 (Tex.
    Crim. App. 2011); see Temple v. State, 
    390 S.W.3d 341
    , 360 (Tex. Crim. App.
    2013). We must presume that the factfinder resolved any conflicting inferences
    in favor of the verdict and defer to that resolution. 
    Jackson, 443 U.S. at 326
    , 99
    S. Ct. at 2793; 
    Dobbs, 434 S.W.3d at 170
    . The standard of review is the same
    for direct and circumstantial evidence cases; circumstantial evidence is as
    probative as direct evidence in establishing the guilt of an actor. 
    Dobbs, 434 S.W.3d at 170
    ; Hooper v. State, 
    214 S.W.3d 9
    , 13 (Tex. Crim. App. 2007).
    A person commits an offense if the person intentionally, knowingly, or
    recklessly causes serious bodily injury to a child.      Tex. Penal Code Ann.
    § 22.04(a).   When the conduct is committed intentionally or knowingly, the
    offense is a first-degree felony; when the conduct is committed recklessly, it is a
    8
    second-degree felony. 
    Id. § 22.04(e).
    A person acts recklessly, or is reckless,
    with respect to a result of his conduct when he is aware of but consciously
    disregards a substantial and unjustifiable risk that the result will occur.      
    Id. § 6.03(c)
    (West 2011). The risk must be of such a nature and degree that its
    disregard constitutes a gross deviation from the standard of care that an ordinary
    person would exercise under all the circumstances as viewed from the actor’s
    standpoint. 
    Id. Proof of
    a culpable mental state almost invariably depends upon
    circumstantial evidence. Morales v. State, 
    828 S.W.2d 261
    , 263 (Tex. App.—
    Amarillo 1992), aff’d, 
    853 S.W.2d 583
    (Tex. Crim. App. 1993). Ordinarily, the
    culpable mental state must be inferred from the acts of the accused or the
    surrounding circumstances, which include not only acts but also words and
    conduct.   Ledesma v. State, 
    677 S.W.2d 529
    , 531 (Tex. Crim. App. 1984).
    Injury to a child is a result-oriented offense requiring a mental state that relates
    not to the specific conduct but to the result of that conduct. Williams v. State,
    
    235 S.W.3d 742
    , 750 (Tex. Crim. App. 2007). That is, the State must prove that
    the defendant caused the result with the requisite criminal intent. Id.; Cook v.
    State, 
    884 S.W.2d 485
    , 490 (Tex. Crim. App. 1994).
    9
    B. Sufficiency of the Evidence that Benefield
    Inflicted Lee’s Injuries on February 8, 2012
    Here, viewing the evidence in the light most favorable to the verdict, the
    evidence shows the following. Lee acted normally on the morning of February 8,
    2012, from the time that Sally woke up at 7:30 a.m. until she left for school;
    Benefield called 911 around 12:08 p.m. claiming that Lee had acted normally all
    morning until Lee purportedly “went limp” and started coughing up blood two
    minutes prior to Benefield’s 911 call. Dr. Jayme Coffman, the medical director of
    the child-abuse program at Cook Children’s Hospital, testified that Lee would
    have been in a serious state of distress that would have been “immediately
    apparent” to a caretaker right after sustaining his head injuries.        Pediatric
    radiologist Dr. Hayden Head also noted that Lee’s brain injuries, which Dr. Head
    asserted were caused from shaking or shaking with impact, would have
    prevented Lee from acting or appearing normal for any period of time after the
    brain injury was inflicted. Although some of Lee’s injuries could not be dated or
    occurred weeks prior to the day that Benefield had called 911,5 the doctors all
    agreed that the severe brain injury that ultimately led to Lee’s death occurred that
    morning immediately prior to Benefield’s calling 911. Sally was at school when
    Lee sustained his injuries; Lee was in Benefield’s sole care at that time. Thus,
    5
    For example, Dr. Head testified that the prior subdural hemorrhage in
    Lee’s head could have occurred two to three weeks earlier, that the rib fractures
    that showed signs of healing could have occurred three to four weeks earlier, and
    that the corner fractures to Lee’s arms could have occurred two to three weeks
    earlier.
    10
    although Benefield challenges the sufficiency of the evidence to show that he,
    rather than Sally, had inflicted Lee’s injuries, a rational jury could have
    reasonably concluded the opposite. See 
    Jackson, 443 U.S. at 326
    , 99 S. Ct. at
    2793.
    C. Sufficiency of the Evidence of Requisite Reckless Mens Rea
    Benefield also challenges the sufficiency of the evidence to support the
    “reckless” element of his conviction for injury to a child with serious bodily injury
    committed recklessly.    He argues that because the evidence established or
    supported an inference only that Lee’s injuries were intentionally or knowingly
    inflicted (even though the jury declined to convict him of injury to a child with
    serious bodily injury committed intentionally or knowingly), no evidence exists
    supporting the jury’s finding that Lee’s serious bodily injury was recklessly
    inflicted.6 In support of this sufficiency challenge, Benefield points to the State’s
    closing argument, wherein the State explicitly requested the jury to convict
    Benefield of a knowing crime because “[t]here is really not any evidence that it’s
    reckless.”
    6
    Although acknowledging that injury to a child is a result-oriented offense,
    Benefield nonetheless argues that “[t]he act of shaking a baby and thereby
    causing its death, particularly as the State accused here, requires a great deal of
    force and many individual ‘shakes,’ and thus is most unlikely to have been a
    reckless act rather than a knowing one.” But, this contention recasts the offense
    as a nature-of-conduct offense. See generally Young v. State, 
    341 S.W.3d 417
    ,
    423 (Tex. Crim. App. 2011).
    11
    Closing argument is not evidence. See, e.g., Woods v. State, 
    301 S.W.3d 327
    , 332, n.1 (Tex. App.—Houston [14th Dist.] 2009, no pet.).             And our
    sufficiency review is not related to, or limited by, the State’s characterization of
    the evidence in closing argument; in our sufficiency review, we examine the
    evidence that was admitted and view it in the light most favorable to the jury’s
    verdict to determine whether any rational trier of fact could have found beyond a
    reasonable doubt the reckless element of Benefield’s offense. See 
    Jackson, 443 U.S. at 319
    , 99 S. Ct. at 2789; 
    Dobbs, 434 S.W.3d at 170
    .
    Because the offense of injury to a child is a result-oriented offense
    requiring a mental state that relates not to the defendant’s specific conduct but to
    the result of that conduct, in conducting our sufficiency review, we examine
    Benefield’s conduct to determine whether
    (1) the alleged act of Benefield shaking Lee with his hands
    and/or striking Lee with or against a hard or soft object or surface,
    viewed objectively at the time of its commission, created a
    “substantial and unjustifiable” risk of the type of harm that occurred;
    (2) that risk was of such a magnitude that disregard of it
    constituted a gross deviation from the standard of care that a
    reasonable person would have exercised in the same situation (i.e.,
    it involved an “extreme degree of risk, considering the probability
    and magnitude of the potential harm to others”);
    (3) Benefield was consciously aware of that “substantial and
    unjustifiable” risk at the time of the conduct; and
    (4) Benefield consciously disregarded that risk.
    See 
    Williams, 235 S.W.3d at 755
    –56.
    12
    Viewing the evidence in the light most favorable to the jury’s verdict finding
    Benefield guilty of reckless injury to a child, the evidence shows that Lee suffered
    severe injuries from being shaken. Dr. Coffman testified about a slide shown to
    the jury demonstrating the “shaking mechanism.” She testified,
    [You see] the head going all the way back and then all the way
    forward, but it’s not just straight translation, right, so it’s not just
    straight forward and backward. A baby can’t hold their head stiff like
    that so you have some rotation as well. And so when their head is
    going forward and backward, there will be rotation in addition
    because you can see that his head’s not going just straight like a
    woodpecker, right. It’s - - those are rotations that cause additional
    forces inside the head.
    Dr. Coffman explained that a reasonable adult exerting the type of severe forces
    necessary to create the type of diffuse brain injury suffered by four-month-old
    Lee would know that the force he was exerting was likely to harm or kill the baby.
    Although Dr. Coffman’s testimony was couched in terms of Benefield’s knowing
    that his conduct in shaking Lee was reasonably certain to cause the result
    suffered by Lee,7 the jury was free to disbelieve that Benefield was reasonably
    certain of the result to Lee of Benefield’s shaking Lee and/or striking Lee. The
    jury was free to instead believe that Benefield’s shaking of Lee with his hands
    and/or his striking of Lee, viewed objectively at the time Benefield did it, created
    a “substantial and unjustifiable” risk of the type of harm that Lee suffered, that the
    risk of harm was of a magnitude that disregarding it was a gross deviation from
    7
    See Tex. Penal Code Ann. § 6.03(b) (defining a defendant’s knowing
    mental state with respect to a result of his conduct when he is aware that his
    conduct is reasonably certain to cause the result).
    13
    the standard of care that a reasonable person would have exercised in the same
    situation, that Benefield was consciously aware of that risk when he shook Lee
    and/or struck Lee, and that he consciously disregarded it. See, e.g., Cleburn v.
    State, 
    138 S.W.3d 542
    , 544–45 (Tex. App.––Houston [14th Dist.] 2004, pet.
    ref’d) (holding evidence sufficient to support reckless element of injury to a child
    with bodily injury when defendant rammed his truck into car containing visible car
    seat); Ehrhardt v. State, No. 06-02-00209-CR, 
    2003 WL 22004238
    , at *3 (Tex.
    App.––Texarkana Aug. 26, 2003, no pet.) (not designated for publication)
    (holding evidence sufficient to support reckless element of injury to a child with
    bodily injury when defendant bit child’s arm).
    Viewing all of the evidence in the light most favorable to the jury’s verdict,
    including the above evidence and the evidence that Lee had acted normally on
    the morning of the incident, that Benefield was his sole caretaker from
    approximately 8:00 a.m. until he called 911 at 12:08 p.m., that Lee’s extensive
    brain injuries would have been immediately apparent once sustained, and that
    Lee’s injuries were consistent with and indicative of abusive head trauma, we
    hold that a rational trier of fact could have found beyond a reasonable doubt that
    Benefield—by causing blunt force trauma to Lee’s head (by shaking Lee or by
    striking him with or against a hard or soft object or surface)—was aware of but
    consciously disregarded a substantial and unjustifiable risk that Lee would suffer
    serious bodily injury. See Tex. Penal Code Ann. § 6.03(c); 
    Jackson, 443 U.S. at 319
    , 99 S. Ct. at 2789; 
    Cleburn, 138 S.W.3d at 544
    –45; Ehrhardt, 
    2003 WL 14
    22004238, at *3. That is, sufficient evidence exists in the record that Benefield
    acted recklessly in causing serious bodily injury to Lee.8
    We overrule Benefield’s first issue.
    IV. DOUBLE JEOPARDY
    In his third issue, Benefield argues that his convictions for continuous
    violence against the family and injury to a child violate double jeopardy because
    at least some of the conduct of the injury-to-a-child offense is the same as an
    element of the continuous-violence offense.
    The Double Jeopardy Clause of the United States Constitution provides
    that no person shall be subjected to twice having life or limb in jeopardy for the
    same offense. U.S. Const. amend. V. Generally, this clause protects against
    (1) a second prosecution for the same offense after acquittal, (2) a second
    prosecution for the same offense after conviction, and (3) multiple punishments
    for the same offense. Brown v. Ohio, 
    432 U.S. 161
    , 165, 
    97 S. Ct. 2221
    , 2225
    (1977); Ex parte Cavazos, 
    203 S.W.3d 333
    , 336 (Tex. Crim. App. 2006).
    8
    Although Benefield cites Williams v. State in support of this sufficiency
    challenge to the reckless element of his conviction, it is inapplicable to the
    present facts. See 
    704 S.W.2d 156
    , 158–59 (Tex. App.—Fort Worth 1986, no
    pet.). In Williams, the defendant inflicted numerous injuries on a child over a
    period of time by holding a hair dryer on the child until the child suffered a burn
    and by pressing a heated fork against the child until the child suffered a burn. 
    Id. On appeal,
    this court rejected the defendant’s complaint that the trial court erred
    by failing to instruct the jury on recklessness. 
    Id. at 158.
    We held that,
    considering the result of the conduct—the nature of the child’s injuries and the
    manner in which they were inflicted––no evidence existed that the defendant had
    acted recklessly in causing the injuries. 
    Id. at 158–59.
    15
    A potential double-jeopardy violation may be forfeited by the defendant’s
    failure to assert it in the trial court. Langs v. State, 
    183 S.W.3d 680
    , 686–87
    (Tex. Crim. App. 2006). But a double-jeopardy claim may be raised for the first
    time on appeal “when the undisputed facts show the double jeopardy violation is
    clearly apparent on the face of the record and when enforcement of usual rules
    of procedural default serves no legitimate state interests.” Gonzalez v. State, 
    8 S.W.3d 640
    , 643 (Tex. Crim. App. 2000) (footnotes omitted).
    Here, Benefield did not raise his double-jeopardy claim in the trial court.
    Thus, the alleged double-jeopardy violation must be clearly apparent from the
    face of the record. See 
    Langs, 183 S.W.3d at 686
    –87. Benefield argues that, in
    convicting him of continuous violence against the family, the jury could have
    relied upon the same conduct that it relied upon in convicting him of injury to a
    child because, in addition to multiple allegations of assault against Sally, the
    continuous-violence-against-the-family indictment also alleged an assault against
    Lee based on the torn frenulum injury.9 But the jury returned a general verdict,
    and we do not know what acts it relied upon in convicting Benefield of continuous
    violence against the family. The six acts of violence against Sally and the one
    act against Lee were submitted to the jury disjunctively, and the jury had to find
    9
    Specifically, the continuous-family-violence indictment alleged that
    Benefield had intentionally or recklessly caused bodily injury to Lee “by causing
    [Lee’s] frenulum to tear, by striking [Lee’s] mouth with a bottle and/or
    [Benefield’s] hand, and/or by striking [Lee’s] mouth with or against a hard or soft
    object or surface and/or by manner and means unknown.”
    16
    that Benefield committed at least two of the seven acts to convict him of
    continuous violence against the family. See Tex. Penal Code Ann. § 25.11 (“A
    person commits an offense if, during a period that is 12 months or less in
    duration, the person two or more times engages in conduct that constitutes an
    [assault against a family member].”). Because the jury could have relied on two
    or more of the alleged acts of violence against Sally in convicting him of
    continuous violence against the family, Benefield’s double-jeopardy claim is not
    clear from the face of the record. See 
    Langs, 183 S.W.3d at 686
    –87; 
    Gonzalez, 8 S.W.3d at 643
    .
    Benefield argues that the continuous-violence-against-the-family statute
    imposes a double-jeopardy bar that applies here to “trump[]” the general raise-or-
    waive principle set forth above. Section 25.11 provides,
    A defendant may not be convicted in the same criminal action
    of another offense the victim of which is an alleged victim of the
    offense under Subsection (a) and an element of which is any
    conduct that is alleged as an element of the offense under
    Subsection (a) unless the other offense:
    (1) is charged in the alternative;
    (2) occurred outside the period in which the offense alleged
    under Subsection (a) was committed; or
    (3) is considered by the trier of fact to be a lesser included
    offense of the offense alleged under Subsection (a).
    Tex. Penal Code Ann. § 25.11(c). As applied here, Benefield argues that an
    element of the injury-to-a-child offense (“striking [Lee] with or against a hard or
    soft object or surface”) was alleged as an element of the continuous-violence-
    17
    against-the-family offense (“striking [Lee’s] mouth with or against a hard or soft
    object or surface”).   But even if Benefield is correct that an objection is not
    required to raise a double-jeopardy complaint based on section 25.11, the
    allegation of assault against Lee in the continuous-violence-against-the-family
    offense was the act causing injury to Lee’s mouth—the frenulum tear—whereas
    the allegation of assault against Lee in the injury-to-a-child count was the act
    causing blunt trauma to Lee’s head or brain, specifically by shaking him or by
    striking him with or against an object or surface. As Dr. Coffman opined, the
    injury to Lee’s mouth—the frenulum tear—was caused by blunt impact to his
    mouth, likely from a pacifier or a bottle being pushed under his lip. Dr. Coffman
    explained that the action that caused Lee’s injury to his mouth was separate and
    distinct from that which caused his brain injury. Thus, the conduct alleged in the
    injury-to-a-child offense was not the same conduct alleged as part of the
    continuous-violence-against-the-family offense.    See Tex. Penal Code Ann.
    § 25.11(c).   Benefield’s convictions for distinct offenses based on different
    conduct do not present the double-jeopardy situation prohibited under penal code
    section 25.11. See id.; see also Vick v. State, 
    991 S.W.2d 830
    , 833 (Tex. Crim.
    App. 1999) (explaining that the court’s determination that violations of separate
    and distinct statutory aggravated sexual assault offenses involved separate and
    distinct acts ended the inquiry for double-jeopardy purposes).
    For the above reasons, we overrule Benefield’s third issue.
    18
    V. JAIL-TIME CREDIT
    In his fourth issue, Benefield argues that he is entitled to further jail-time
    credit toward his sentence for his continuous-violence-against-the-family
    conviction.   The trial court awarded him 133 days’ jail-time credit toward his
    sentence for the continuous-violence-against-the-family conviction, but he argues
    that he should have been given credit for the entire 653 days he spent in jail after
    he was arrested for injury to a child.10
    The trial court is required by law to credit the sentence of a defendant for
    time the defendant spent “in jail for the case . . . from the time of his arrest and
    confinement until his sentence by the trial court.” Tex. Code Crim. Proc. Ann. art.
    42.03, § 2(a)(1) (West Supp. 2014) (emphasis added); see also Tex. R. App. P.
    23.2(b).   In this case, Benefield essentially argues that the injury-to-a-child
    charge and the subsequent continuous-violence-against-the-family charge
    constitute the same “case” for purposes of presentence jail-time credit because
    10
    The State argues that direct appeal is not the proper vehicle to present
    the issue of presentence jail credit. We agree that typically the correct avenue to
    seek a credit is through a motion for judgment nunc pro tunc, but when the
    alleged failure to award jail credit involves the exercise of judicial reasoning, a
    judgment nunc pro tunc is not the proper remedy. See Collins v. State, 
    240 S.W.3d 925
    , 928 (Tex. Crim. App. 2007). Because the allegation here involves
    more than an alleged miscalculation or other clerical error, we will address the
    merits of the claim. See id.; see also Blackerby v. State, No. 03-11-00272-CR,
    
    2012 WL 6097306
    , at *3 (Tex. App.—Austin Dec. 5, 2012, no pet.) (mem. op.,
    not designated for publication) (addressing merits of similar jail-time-credit
    argument because issue involved judicial reasoning such that nunc pro tunc
    judgment would have been inappropriate).
    19
    both involve the same conduct. We have already explained above that the act
    against Lee alleged in the injury-to-a-child count was separate and distinct from
    the act alleged in the continuous-violence-against-the-family count. Benefield
    was originally arrested on April 17, 2012, on the sole charge of injury to a child by
    causing blunt trauma to Lee’s “head and/or brain.” A grand jury indicted him for
    continuous-violence-against-the-family on September 18, 2013. The time spent
    “in jail for the [continuous-violence-against-the-family] case” ran from the date of
    his indictment for that offense until the date of his sentence. Because the trial
    court correctly awarded jail-time credit based on that period of time, we overrule
    Benefield’s fourth issue. See Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a)(1);
    see also Collins v. State, 
    318 S.W.3d 471
    , 473 (Tex. App.—Amarillo 2010, pet.
    ref’d) (“[T]he credit at issue relates not just to any time the defendant spent
    incarcerated before conviction. Rather, it is the time one is incarcerated for the
    case in which he is ultimately tried and convicted.”); Blackerby, 
    2012 WL 6097306
    , at *3 (holding appellant not entitled to jail-time credit on intoxication
    manslaughter conviction for time spent in jail after arrest for felony DWI when not
    indicted for intoxication manslaughter until later date); Martinez v. State, No. 13-
    04-00085-CR, 
    2005 WL 1805500
    , at *3 (Tex. App.—Corpus Christi July 28,
    2005, no pet.) (mem. op., not designated for publication) (“A trial court must
    award credit for time served for the same offense and not time incarcerated pre-
    trial for independent offenses.”).
    20
    VI. CONCLUSION
    Having overruled Benefield’s three issues,11 we affirm the trial court’s
    judgment.
    /s/ Sue Walker
    SUE WALKER
    JUSTICE
    PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.
    DO NOT PUBLISH
    Tex. R. App. P. 47.2(b)
    DELIVERED: July 30, 2015
    11
    Benefield expressly waived his second issue in a reply brief. Therefore,
    we do not consider it.
    21