Jaylin Jevon Lewis v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-24-00302-CR
NO. 09-24-00303-CR
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JAYLIN JEVON LEWIS, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause Nos. F22-40196 and F22-40197
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MEMORANDUM OPINION

In these two cases, Appellant Jaylin Jevon Lewis appeals his convictions for

injury to a child, a first-degree felony. See Tex. Penal Code Ann. § 22.04(a)(1), (e).

In each case, Lewis complains about a double jeopardy violation and improper jury

argument during punishment. Since Lewis’s two offenses for injury to a child

resulted in two separate and distinct injuries and the State’s jury argument

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concerning parole law was not improper, we affirm the trial court’s judgments in

trial cause numbers F22-40196 and F22-40197.

PERTINENT BACKGROUND

In trial cause number F22-40196, the grand jury indicted Lewis for violating

the injury-to-a-child statute, alleging that Lewis:

did then and there, intentionally or knowingly, by omission, cause
serious bodily injury to [Ken],1 a child fourteen years of age or younger,
by failing to provide food to [Ken], and the Defendant had assumed
care, custody, or control of [Ken], and during the commission of the
charged offense, the Defendant used or exhibited a deadly weapon: to-
wit: a padlock, which in the manner of its use and intended use is
capable of causing serious bodily injury or death[.]

See id. § 22.04(a)(1).

In trial cause number F22-40197, the grand jury indicted Lewis for violating

the injury-to-a-child statute, alleging that Lewis:

did then and there, intentionally or knowingly, by omission, cause
serious bodily injury to [Ken] a child fourteen years of age or younger,
by failing to provide medical care to [Ken], and the Defendant had
assumed care, custody, or control of [Ken], and during the commission
of the charged offense, the Defendant used or exhibited a deadly
weapon: to-wit: a padlock, which in the manner of its use and intended
use is capable of causing serious bodily injury or death[.]

See id.

1
We use pseudonyms for the names of the child and his family members
to protect their rights to privacy. See Tex. Const. art. I, § 30(a)(1) (granting crime
victims “the right to be treated with fairness and with respect for the victim’s dignity
and privacy throughout the criminal justice process”).
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The trial court conducted a jury trial. Jacob Paul Rodriguez with the Port

Arthur Fire Department testified that he responded to a call on May 31, 2022, and

found three-year-old Ken lying on the floor looking “kind of emaciated.” Rodriguez

explained that Ken had no pulse, was not breathing, and had early signs of rigor

mortis and had been deceased too long to resuscitate him. Rodriguez testified that

Ken’s sister and a male were present and reported Ken was alive the night before but

had food intake issues. Rodriguez learned that Ken’s mother had left him in his

sister’s care for an unknown amount of time.

Captain James Barbay of the Port Arthur Fire Department also responded to

the scene and explained that Ken’s sister reported that Ken had Down Syndrome and

poor health and that Ken’s mother had been neglecting him. Barbay testified that

when he arrived, he observed a male, who he assumed was Ken’s sister’s boyfriend,

performing chest compressions and then the boyfriend packed a bag and left before

the police arrived. Barbay explained that the scene was “very awkward[,]” and he

didn’t feel that anybody was upset. Barbay testified that Ken was “very

malnutrition[,]” and Ken’s sister, who reported having Ken for about a month,

blamed Ken’s mother for neglecting him. Barbay believed that Ken had not received

proper care.

Kayla Taylor with Acadian Ambulance testified that when she responded to

the scene, she observed Ken was “very emaciated and looked very unwell.” Taylor

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testified that she advised to cease resuscitation efforts due to Ken having rigor mortis

to his jaw. Taylor stated that Ken’s sister reported that when she told Ken’s mother

that Ken had been sick and losing weight, Ken’s mother told her he just needed milk

and vitamins.

Officer Bao Tran with the City of Port Arthur testified that when he arrived

on scene, he observed a black male, whom he identified as Lewis, leaving the scene

and medical personnel trying to resuscitate Ken, whose ribcage was very visible.

Tran described Ken’s sister as hysterical and Ken as “very malnourished.” Tran

testified that Ken’s sister reported she was helping her mom with Ken, whom she

claimed to have had for a few weeks and about a month. Tran testified that Ken’s

sister reported telling Ken’s mother that Ken was not eating, but Ken’s mother

claimed that was normal for him. Tran explained that Ken’s sister said Ken was

perfectly fine the night before Tran arrived. Tran explained there were three other

children at the scene who were living in deplorable conditions and reporting being

hungry. Tran testified that in the bedroom where Ken was found, there was a door,

which he assumed was a closet, padlocked with a red-colored lock. Tran explained

when they pried the door open, they smelled a foul smell like urine and found toys

and a makeshift bed with a soiled bedsheet. The jury viewed photographs of Ken

from the scene and the closet with the padlock and Tran’s body camera video. Tran

testified the photographs showed Ken appeared to be “severely starved.”

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Officer Mickey Sterling with the Port Arthur Police Department testified that

Ken’s sister reported that Ken’s mother had been his primary caregiver and that they

had trouble feeding Ken, who didn’t like some foods. Sterling explained that Ken’s

sister reported that Ken’s mother had been dodging Child Protective Services and

hiding the three children at different residences. Sterling testified that Ken’s mother

came to the scene.

Detective Brian Cater with the Port Arthur Police Department testified that he

extracted data from a cell phone and prepared a report, which was entered into

evidence.

Kathy, Ken’s sister, testified that she was residing with her boyfriend, Lewis,

when her mother, Ken, and her other two siblings came to stay with them. Kathy

explained that her mother would leave for weeks at a time and leave the children.

Kathy testified that Lewis helped her care for the children, and he had care, custody,

and control over the children when he was alone with them during an approximate

six-month period. Kathy testified to her cell phone number, which matches the cell

phone that is the subject of Detective Carter’s report, and she explained that Lewis

was saved in her cell phone as “Babe[.]” The State questioned Kathy about the text

messages in the report, some of which show Kathy and Lewis discussing the location

of Ken’s bottle the month prior to his death. The text messages show that Lewis

responded that Ken’s bottle was in the closet. The text messages also show Lewis

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told Kathy Ken was having seizures the month of his death, and Kathy testified that

Ken had a seizure a few times and they never sought medical attention. Kathy

explained that another message showed she begged Lewis to take Ken out of the

closet, where Lewis had put Ken on several occasions when Ken was under his

control.

Kathy explained that during the six months Ken was staying with them, his

weight went up and down, but when it declined, they never sought medical attention

or treatment. Kathy testified that she had taken responsibility and pled guilty for her

involvement in Ken’s death and received thirty years of confinement. Kathy agreed

that she should have sought help for Ken and that Lewis had told her a few times

that she needed to get help because something was wrong. Kathy explained Ken was

in the closet because she and Lewis fought, and he wanted the children to leave.

Kathy claimed she never saw the padlock on the closet door. Kathy testified there

were some days when Ken would not eat, and she did not know why.

Dr. Baiyang Xu, a forensic pathologist, testified he reviewed Ken’s autopsy

report, which shows Ken was very thin and the level was so severe the fat tissue in

the underlying skin was gone and the skin directly covered the bone. Xu explained

that Ken’s ribcage and spine were protruding, and the body was “early decomposed.”

Xu testified that the body features showed it had been two or three days since Ken’s

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death. Xu explained the report showed Ken’s upper and lower extremities were

atrophic and there was maggot activity in his external genital area.

Xu testified that Ken’s cause of death was severe malnutrition with acute

bronchopneumonia, and he explained Ken’s manner of death was a homicide and

that death is a form of serious bodily injury. Xu testified that severe malnutrition is

a byproduct of not providing Ken with adequate food, and he explained that Ken’s

“very severe malnutrition[]” does not happen instantly or overnight. Xu explained

that it was unlikely that Ken’s Down Syndrome influenced his ability to eat or weight

fluctuations. Xu explained that malnutrition is a risk factor for infections because

severe malnutrition decreases the function of the immune system. Xu opined that

Ken’s bronchopneumonia is largely related to the malnutrition, and his

bronchopneumonia was acute, meaning the timing was one or two weeks. Xu

testified that medical intervention, had it been sought early enough, could have

potentially saved Ken.

Lewis testified in his defense and explained he knew something was wrong

with Ken because of his weight. Lewis testified he was concerned about Ken because

he did not improve, and he expressed his concerns to Kathy multiple times. Lewis

testified he did not know Ken was not eating because he was “never around really”

when Kathy fed the children. Lewis knew Ken was having seizures and told Kathy

to seek medical help, but he never sought help for Ken even though he thought about

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it because he did not want his child taken away. Lewis testified that Kathy told him

the children were her responsibility and not Lewis’s. Lewis explained that the

morning Kathy found Ken unresponsive, he gave Ken CPR until help arrived and

then went to work. Lewis testified he got scared when Kathy and her mom were

arrested and was on the run for nearly a month, because he did not want to go back

to jail for something that happened in his household. Lewis admitted he had a

padlock on his closet, which he used as a storage room and place for his puppy to

sleep. Lewis denied locking Ken in the closet, and he claimed that Kathy begged

him to take the puppy out of the closet.

In each case, a jury found Lewis guilty of injury to a child and assessed

Lewis’s punishment at 60 years of confinement.

ANALYSIS

In issue one, Lewis argues his convictions and sentences from his

consolidated trial violate his double jeopardy rights under the United States and

Texas Constitutions because he was convicted of the same offense, under the same

statute, upon the same victim, on the same date, varying only in the manner and

means of committing the offense. See U.S. CONST. amend V; Tex. Const. art. I, §

14. The State counters that in each case, Lewis failed to preserve this issue for our

review or, alternatively, that Lewis failed to show there are double jeopardy

violations clearly apparent on the face of the records. We agree with the State.

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A person commits the offense of injury to a child if he “intentionally,

knowingly, recklessly, or with criminal negligence, by act or intentionally,

knowingly, or recklessly by omission, causes to a child[]” serious bodily injury.

See Tex. Penal Code Ann. § 22.04(a)(3). For purposes of an injury-to-a-child by

omission offense, an omission that causes a child to suffer serious bodily injury is

conduct constituting an offense if the actor has a legal or statutory duty to act. Id. §

22.04(b)(1); see Estrella v. State, 546 S.W.3d 789, 795 (Tex. App.—Houston [1st

Dist.] 2018, pet. ref’d); Williams v. State, 294 S.W.3d 674, 684 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d) (op. on reh’g).

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. See Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). It is therefore not enough for the State

to prove that the defendant engaged in the alleged conduct with the requisite criminal

intent; rather, it must prove that the defendant caused the result with the requisite

criminal intent. Estrella, 546 S.W.3d at 795. A person acts intentionally with respect

to a result of his conduct when it is his conscious objective or desire to cause the

result. Tex. Pen. Code Ann. § 6.03(a). A person acts knowingly with respect to a

result of his conduct when he is aware that his conduct is reasonably certain to cause

the result. Id. § 6.03(b). The particular result at issue in these two cases is “serious

bodily injury.” “Serious bodily injury” means “bodily injury that creates a

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substantial risk of death or that causes death, serious permanent disfigurement, or

protracted loss or impairment of the function of any bodily member or organ.” Id. §

1.07(a)(46).

Preservation of Double Jeopardy Claim

As a general rule, a party must preserve a complaint for appellate review by

making a timely and specific objection, motion, or request in the trial court. See Tex.

R. App. P. 33.1. A potential multiple-punishment double jeopardy claim may be

forfeited if the defendant does not properly preserve the claim by raising it in the

trial court. Langs v. State, 183 S.W.3d 680, 686 (Tex. Crim. App. 2006); Gonzalez

v. State, 8 S.W.3d 640, 642-43 (Tex. Crim. App. 2000). Requiring the defendant to

preserve his multiple-punishments double jeopardy claim allows the trial court and

the prosecution the opportunity to remove the basis for the objection and avoid the

risk of an unnecessary retrial. Langs, 183 S.W.3d at 686 n.22 (quoting Gonzalez, 8

S.W.3d at 645-46).

A defendant may, however, raise a double jeopardy claim for the first time on

appeal when the undisputed facts show that the violation is clearly apparent on the

face of the record and when enforcement of usual rules of procedural default serves

no legitimate state interest. Gonzalez, 8 S.W.3d at 642-43. A double jeopardy claim

is apparent on the face of the trial record if resolution of the claim does not require

further proceedings to introduce additional evidence in support of the claim. Ex parte

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Denton, 399 S.W.3d 540, 544 (Tex. Crim. App. 2013); Gonzalez, 8 S.W.3d at 643.

The record shows Lewis did not raise a double jeopardy objection in the trial court

in either case. Instead, Lewis argues that the double jeopardy violation is clear and

that he is entitled to relief based on the record alone. We disagree.

As mentioned above, injury to a child is a result-oriented offense. See

Williams, 235 S.W.3d at 750; Villanueva v. State, 227 S.W.3d 744, 748 (Tex. Crim.

App. 2007). “If the focus of the offense is the result—that is, the offense is a ‘result

of conduct’ crime—then different types of results are considered to be separate

offenses, but different types of conduct are not.” Huffman v. State, 267 S.W.3d 902,

907 (Tex. Crim. App. 2008) (superseded by statute on other grounds). Whether

separate legal theories are separate offenses depends upon whether the theories differ

with respect to the result of the defendant’s conduct. Id. at 905. Thus, the allowable

units of prosecution are determined by how many separate and discrete statutorily

defined types of injurious results the defendant’s act or conduct caused. Nawaz v.

State, 663 S.W.3d 739, 745, 747 (Tex. Crim. App. 2022).

The Court of Criminal Appeals has held that it is permissible to convict a

defendant for two violations of the same statutory provision on the same day if the

State can prove that two separate and discrete incidents occurred comprising two

violations of the same statutory offense. Villanueva, 227 S.W.3d at 748-49 (citing

Luna v. State, 493 S.W.2d 854, 855 (Tex. Crim. App. 1973)). The Villanueva Court

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explained that as it held in Luna v. State, a failure to seek treatment for injuries could

reasonably result in a “separate and discrete, or at least incrementally greater, injury

for which the appellant could also be held criminally accountable without violating

double jeopardy.” Id. at 749. The Villanueva Court explained that when a victim’s

condition is obviously deteriorating, and it is apparent that the victim might suffer

further serious bodily injury absent medical interventions, the Luna principle could

apply. See id. Since these cases include evidence that Lewis’s failure to provide food

caused Lewis to suffer serious bodily injury and that Lewis’s failure to provide

medical care to Ken caused Ken to suffer further serious bodily injury, the Luna

principle applies, and Lewis could be convicted for two violations of the same

statutory provision without violating double jeopardy. See id. at 748-49; Luna, 493

S.W.2d at 855. In Luna, the court explained that Luna committed two separate

offenses when he made a purchase of heroin on February 19, 1970, and on May 4,

1970, even though he was convicted of the May 4th purchase before he was

prosecuted for the February 19th purchase.

The State charged Lewis with two violations of the injury-to-a-child statute–

1) failing to provide food and 2) failing to provide medical care–which the evidence

shows resulted in separate and distinct injuries to Ken. See Villanueva, 227 S.W.3d

at 748-49; Luna, 493 S.W.2d at 855. The jury heard that Ken’s cause of death was

severe malnutrition with acute bronchopneumonia. Concerning the failure to provide

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food, the jury heard Ken’s severe malnutrition did not happen overnight and was a

byproduct of not being provided adequate food over a period of time.

Concerning the failure to provide medical care, the jury heard testimony that

the failure to seek medical care for Ken’s severe malnutrition caused him to suffer

an additional serious bodily injury, acute bronchopneumonia, which was largely

related to his malnutrition and developed one or two weeks prior to his death. The

jury heard that medical intervention could have potentially saved Ken, and Lewis

admitted that although he knew something was wrong with Ken and had thought

about getting him medical care, he failed to do so.

We hold the records show that Ken suffered two separate and discrete injuries,

severe malnourishment, which developed over time due to the failure to provide Ken

food, and acute bronchopneumonia, which developed the week or two before Ken’s

death and was largely related to Ken’s severe malnutrition which compromised his

immune system. See Villanueva, 227 S.W.3d at 748-49; Luna, 493 S.W.2d at 855.

We hold the jury could have reasonably concluded that Lewis’s failure to provide

medical care for Ken’s severe malnutrition resulted in Ken developing acute

bronchopneumonia, a separate and discrete serious bodily injury for which Lewis

could be held criminally accountable. See Villanueva, 227 S.W.3d at 749.

Based on the records in these cases, we conclude that Lewis’s double jeopardy

rights were not violated by the State having charged him with two separate offenses

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of injury to a child by omission that resulted in separate and distinct injuries. Since

Lewis failed to show double jeopardy violations are apparent on the face of the

records, we overrule Lewis’s first issue in each case.

In issue two, Lewis contends the State engaged in improper jury argument

during the punishment phase of trial by encouraging the jury to consider the

application of parole law as it applied to him. His complaint pertains to the following

argument:

No matter -- whatever amount of time you sentence this
defendant to in prison, there is the possibility -- it’s in the jury charge
- - that he will be eligible for parole in about half of that time, okay?
It’s in the charge. Don’t take my word for it. You can read it. You can’t
bank on that, but the charge says you can consider that. Let’s say, for
instance, you sentence this defendant to 50 years in prison. He is
eligible for parole -- or could be eligible for parole at 25 years, okay?
So, in 25 years, this -- either 25 years or 30 years, whichever is the least
amount of time. But by -- for the most part, I want [] you to consider
the fact that he would be eligible for parole in about -- or could be in
about half that time, which means in 25 years, he’s back out and he can
eat and live and do the things –

Defense counsel objected that the State’s closing argument was improper

because the jury is not allowed to consider the manner in which the parole law may

be applied in this particular case. The State explained it was only stating that Lewis

may be eligible for parole. The trial court overruled defense counsel’s objection,

finding that the jury may consider the possibility of parole. The State then argued

that the jury could consider that in “25 years, he could be out walking around, you

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know, living his life. Death sentence versus couple decades in prison. So, again, I

would consider that as part of the aggravating factors that you consider.”

Article 37.07, § 4(a) of the Texas Code of Criminal Procedure requires that

the jury be given certain instructions about parole eligibility, including: “It cannot

accurately be predicted how the parole law might be applied to this defendant if

sentenced to a term of imprisonment, because the application of that law will depend

on decisions made by parole authorities[,]” and “You may consider the existence of

the parole law. You are not to consider the manner in which the parole law may be

applied to this particular defendant.” See Tex. Code Crim. Proc. Ann. art. 37.07, §

4(a). “Consequently, it is improper for a prosecutor to apply [parole] law to the

defendant on trial during jury argument.” Perez v. State, 994 S.W.2d 233, 237 (Tex.

App.—Waco 1999, no pet.). That said, it is not improper for a prosecutor to

“accurately restate the law given in the jury charge” or “to ask the jury to take the

existence of that law into account when assessing punishment.” Hawkins v. State,

135 S.W.3d 72, 84 (Tex. Crim. App. 2004).

In each case, the trial court’s jury charge instructions during punishment

instruct the jury that it may consider the existence of the parole law but may not

consider the manner in which it may be applied to this particular defendant. The

punishment charge also explains that the defendant will not become eligible for

parole until the actual time served equals one-half of the sentence imposed. We

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cannot conclude that the State’s argument was improper. Instead, it was an accurate

restatement of the parole law. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a);

Hawkins, 135 S.W.3d at 84. The argument did not apply parole law to Lewis

specifically, nor did it encourage the jury “to consider the manner in which the parole

law may be applied to” him. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a);

Perez, 994 S.W.2d at 237. Rather, the State’s argument sought to merely explain the

parole-law instructions in the punishment charge and how the jury could consider

the existence of the parole law and how the defendant could be eligible for parole in

about half the time of the sentence it imposed. Since the State’s argument concerning

parole law was not improper, we overrule Lewis’s second issue in each case.

Having overruled both of Lewis’s issues in each case, we affirm the trial

court’s judgments in trial cause numbers F22-40196 and F22-40197.

AFFIRMED.

JAY WRIGHT
Justice

Submitted on November 12, 2025
Opinion Delivered December 10, 2025
Do Not Publish

Before Golemon, C.J., Johnson and Wright, JJ.

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