Villanueva v. State

On May 22, 2006, appellant filed a petition for discretionary review. Pursuant to Texas Rule of Appellate Procedure 50, and within 30 days of the filing of said petition, the Court withdraws its opinion and judgments issued March 30, 2006 and issues this corrected opinion and judgments in their stead. See Tex. R. App. P. 50.Appellant, Gregory Lee Villanueva, appeals from jury convictions on two counts of injury to a child. See Tex. Pen. Code Ann. 22.04(a), (b) (Vernon 2003). The jury assessed appellants punishment at 50 years in prison on each count, to be served concurrently, and a $5,000 fine on each count. We determine (1) whether appellants right against double jeopardy was violated because he was convicted on both counts of injury to a child; (2) whether the omission of the definition of deadly weapon constituted reversible error in regard to count I of the charge; (3) whether the evidence was legally sufficient to support an affirmative finding that a deadly weapon was used in the commission of the offense charged in count I and to show that appellant had a duty to act in the offense charged in count II; and (4) whether there was a fatal variance between the indictment and the proof. We affirm.