Affirmed and Memorandum Opinion filed November 14, 2013.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-12-00659-CR

                           RODOLFO RUIZ, Appellant
                                          V.

                        THE STATE OF TEXAS, Appellee

                    On Appeal from the 239th District Court
                           Brazoria County, Texas
                        Trial Court Cause No. 67,899

                   MEMORANDUM OPINION

      A jury convicted appellant, Rodolfo Ruiz, of three counts of sexual assault
of a child and assessed his punishment at twelve years’ confinement and a $2,000
fine for each count; judgment was entered accordingly by the trial court. On
appeal, he asserts that the trial court abused its discretion by permitting the State to
use a demonstrative exhibit of a photograph of two capsules of a drug and allowing
a Brazoria County crime laboratory chemist to testify as to the pharmacological
effects of this drug on the human body. He further contends that the trial court’s
amended limiting instruction regarding the use of extraneous-offense evidence
constituted an improper comment on the weight of the evidence. We affirm.

                                   BACKGROUND

      Because appellant has not challenged the sufficiency of the evidence, we
describe the facts of the case only briefly here and as necessary in this opinion to
resolve this appeal. Appellant was indicted for three counts of sexually assaulting
his fourteen-year-old daughter, V.R., by intentionally or knowingly causing the
penetration of her sexual organ using his finger. The indictment alleged that these
offenses occurred on or about August 22, August 31, and September 7, 2010.

      V.R. and her older brother lived in San Antonio with their older sister. They
went to visit their father, appellant, in Pearland, Brazoria County, for the summer
of 2010. While they were staying with appellant and their step-mother in his two-
bedroom trailer home, V.R., her brother, and appellant’s two other sons—V.R.’s
half brothers—all shared one bedroom. V.R. slept in a small bed, and her brother
and two half-brothers shared a larger bed. Around August 22, V.R.’s brother
returned to San Antonio. The night that her brother left, appellant moved V.R. into
the bigger bed and moved her two younger half-brothers into the smaller bed. That
night, for the first time, appellant gave her and her two younger half-brothers ―little
green pills‖ to make them sleep. V.R. fell asleep very quickly, but woke up to find
appellant in the bed with her, his hand in her underpants, and his finger in her
vagina.   Appellant warned her not to tell anyone; he threatened to kill her,
everyone on her mother’s side of the family, and himself if she did.

      Appellant continued to commit the same acts—giving V.R. and her half-
brothers ―sleeping pills,‖ getting in bed with V.R., and placing his finger inside her
vagina—each night during the approximate two-week period from August 22 to
September 7, 2010. V.R. took the pill the first night appellant gave it to her, but
                                          2
avoided swallowing it the rest of the time by hiding it under her tongue and then,
when appellant wasn’t looking, going to the bathroom and spitting it out into the
toilet.

          On September 9, 2010, V.R. and one of her younger half-brothers got into
trouble because they weren’t home when appellant and his wife got there. V.R.’s
stepmother told appellant to hit V.R. and called V.R. names; V.R. went into her
bedroom, upset and in tears. Appellant came into the room with a paddle, and
V.R. told him that if he hit her, she would ―call the cops‖ and tell them that he had
been touching her at night. She also told her stepmother he had been touching her,
but her stepmother called her a liar. Appellant went into the kitchen, took a knife,
and acted as if he were going to stab himself. V.R.’s stepmother attempted to calm
him down and made unflattering remarks about V.R. While this commotion was
ongoing, V.R. left the home and did not return; she stayed with relatives of her
stepmother that night. She later discovered that an ambulance was in front of
appellant’s home.

          The next day, before and after school, V.R. spoke with a friend. She went
home with this friend and spoke with the friend’s mother. After talking with her
friend’s mother, they called the police. While waiting for the police, V.R.’s
stepmother came to her friend’s home looking for her. Her friend’s mother told
V.R.’s stepmother that V.R. wasn’t there because she didn’t believe it would be
safe for V.R. to return home. Later that evening, V.R. spoke with police; appellant
was subsequently arrested and indicted as described above.

          At appellant’s trial, V.R.’s friend, her friend’s mother, V.R.’s older sister,
V.R., the first responding police officer, and a Brazoria County Sheriff’s Office
chemist testified. After hearing the testimony and arguments of counsel, a jury
convicted appellant of three counts of sexual assault of a child as charged in the

                                             3
indictment. Following a hearing on punishment, the jury assessed punishment at
twelve years’ confinement in the Texas Department of Criminal Justice,
Institutional Division and a $2,000 fine for each count. The trial court ordered the
sentences to run consecutively. Appellant’s motion for new trial was denied by
operation of law, and this appeal timely followed.

                                   EVIDENTIARY ISSUES

A.     State’s Exhibit 8 – Demonstrative Evidence

       In his first issue, appellant asserts that the trial court abused its discretion by
permitting the State to use Exhibit 8, a photograph of two green and yellow
capsules, for demonstrative purposes because it was irrelevant and inflammatory.
We review a trial court’s admission of demonstrative evidence for abuse of
discretion.1 Simmons v. State, 622 S.W.2d 111, 113 (Tex. Crim. App. 1981). As is
relevant here, we have held that ―visual, real, or demonstrative evidence is
admissible where it tends to resolve some issue at trial and is relevant to the case
unless the prejudicial effect clearly outweighs its probative value.‖ Posey v. State,
763 S.W.3d 872, 875 (Tex. App.—Houston [14th Dist.] 1988, pet ref’d). We have
further indicated that

       [a]n object, which is not an exact replica of the original used in the
       commission of a crime, may be admissible if:
       (1) the original is not available;
       (2) if available, the original would be admissible;
       (3) it is relevant and material to an issue in controversy;

       1
         It is undisputed that State’s Exhibit 8 was not admitted as evidence; it was used solely
for demonstrative purposes. Neither appellant nor the State argues any distinction in the
standards for reviewing the trial court’s decision to admit or merely display demonstrative
materials. Therefore, we apply the standard of review applicable to admitted demonstrative
evidence, finding no specific distinction in authority from our court or the Texas Court of
Criminal Appeals.

                                               4
      (4) its probative value outweighs any inflammatory effect; and,
      (5) the jury is instructed that the object is not the object used in the
      commission of the crime, and is to be considered by the jury solely as
      evidence that demonstrates or illustrates what the object used in the
      offense looks like.
Miskis v. State, 756 S.W.2d 350, 352 (Tex. App.—Houston [14th Dist.] 1988, pet.
ref’d) (citing Simmons, 622 S.W.2d at 113).

      V.R. testified that appellant provided her and her half-brothers with ―little
green pills‖ to make them sleepy. She later agreed with the State that appellant
gave her green and yellow pills, yet on cross-examination, she also agreed that the
pills were green and white. V.R. identified the photograph provided in State’s
Exhibit 8 as ―similar to‖ the pills that appellant provided to her each night before
he sexually assaulted her. The State tendered the exhibit into evidence. Appellant
objected on the basis of relevance. The State urged that the exhibit’s relevance
was connected to State’s Exhibit 4, appellant’s medical records, which were
admitted into evidence and indicate that the day before V.R. reported these
offenses to police, appellant attempted to commit suicide by overdosing on the
prescription drug Tramadol. The trial court refused to admit State’s Exhibit 8 into
evidence without further predicate.

      Subsequently, Brazoria County Sheriff’s Office chemist Laura Cook
testified that she was familiar with Tramadol. At this point in her testimony, the
State sought admission of Exhibit 8, for demonstrative purposes only. The trial
court admitted this photograph, over appellant’s 401 and 403 objections, as a
demonstrative exhibit. Cook described Tramadol as a pain-relieving drug that may
cause dizziness, drowsiness, and tiredness, among other things. Cook testified that
Tramadol comes in a green and yellow capsule form. She identified the green and



                                         5
yellow capsules in State’s Exhibit 8 as Tramadol, based on their appearance and
the markings on them.

      State’s Exhibit 8 had unmistakable relevance. The green and yellow pills
identified in this photograph by V.R. were alleged to be used in the commission of
these offenses. Based on appellant’s medical records, which had previously been
admitted, the jury was aware that appellant had access to Tramadol, and Cook’s
testimony established that this medication caused drowsiness and tiredness. We
conclude that this demonstrative evidence was relevant to corroborate V.R.’s
testimony that appellant gave her and her half-brothers little green ―sleeping pills‖
because, as V.R. testified, they were ―similar to‖ the Tramadol capsules pictured in
Exhibit 8. See Tex. R. Evid. 401 (defining ―relevant evidence‖ as that evidence
having any tendency to make the existence of any fact consequential to the
determination of the action more or less probable than it would be without the
evidence).

      Further, this picture of the capsules of Tramadol had little to no
inflammatory effect unrelated to its probative value. Appellant urges that the
exhibit was used to show the extraneous offense of delivery of a controlled
substance to a minor. That is, however, the probative aspect of the exhibit. This
demonstrative evidence tended to solve an issue in the case by shedding some light
on the subject at hand—the drug that was given to V.R. and her half-brothers to
make them sleepy so that appellant could commit these offenses against V.R. See
Simmons, 622 S.W.2d at 113; cf. Morales v. State, 389 S.W.3d 915, 919 (Tex.
App.—Houston [14th Dist.] 2013, no pet.) (discussing admission of same-
transaction contextual evidence to place instant offense in context). The use of this
medication on V.R. and appellant’s other children showed appellant’s manner of
committing these offenses and explained why his sons slept through the incidents

                                         6
even though they were in the same room where the offenses occurred. Cf. Devoe
v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (holding that evidence of
another crime, wrong, or act may be admissible as same-transaction contextual
evidence when it is intermixed, blended, or connected so it forms an indivisible
criminal transaction). Accordingly, the probative value of this evidence outweighs
any inflammatory effect.2

       Finally, even if the trial court erred in admitting this demonstrative exhibit, it
was harmless. Errors that do not affect substantial rights must be disregarded. See
Tex. R. App. P. 44.2(b); Orrick v. State, 36 S.W.3d 622, 627 (Tex. App.—Fort
Worth 2000, no pet.).         A substantial right is affected when the error had a
substantial and injurious effect or influence in determining the jury’s verdict.
Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010).                         But if the
improperly admitted evidence did not influence the jury or had but a slight effect
upon its deliberations, such non-constitutional error is harmless. Id. In reviewing
harm, we examine the entire trial record and calculate, as best as possible, the
probable impact of the error upon the rest of the evidence. Id. We consider the


       2
         On the final Miskis factor, we note that the trial court was not requested to and did not
give an instruction that ―the object is not the object used in the commission of the crime, and is
to be considered by the jury solely as evidence that demonstrates or illustrates what the object
used in the offense looks like.‖ 756 S.W.2d at 352. Here, however, the trial court did not admit
the exhibit into evidence. Moreover, appellant argued extensively to the jury during closing
about the absence of the actual ―object,‖ including the following remarks:
       They don’t have a drug to submit to you to say that this man gave her Tramadol to
       make her drowsy. They don’t have that. They showed you a picture. The Judge
       would not allow it in. So, there is no evidence of it. It was not allowed in. You
       don’t have that to see. You don’t have that proof. Here’s the other thing. The
       State didn’t bring an officer to say that we searched that house and we found a
       green and yellow pill, Tramadol. In fact, what did Ms. Cook say? That came
       from an online picture that had nothing to do with this case. They want you to
       think that. But there’s not any evidence from that stand for you to take back to
       that jury room that says it does.

                                                7
evidence supporting the particular issue to which the erroneously admitted
evidence was directed, but that is only one factor in our harm analysis. Id.

      Based on V.R.’s description of the pills and their effect on her, the
admission of appellant’s medical records indicating his attempted overdose with
Tramadol, and Cook’s testimony describing the appearance of Tramadol and its
pharmacological effects, the jury could have inferred that appellant had given V.R.
and her half-brothers this medication to make them drowsy or sleepy so that he
could commit these offenses against V.R. without interruption or witnesses, even
without the admission of this demonstrative exhibit. Further, V.R.’s testimony,
standing alone, is sufficient to support appellant’s conviction. See Tex. Code
Crim. Proc. Ann. art. 38.07 (a), (b)(1). The admission of the photograph of these
capsules for demonstrative purposes likely did not influence or had but a slight
effect on the jury’s determination of appellant’s guilt. Accordingly, any error in
the admission of this photograph was harmless.

      Under these circumstances, we overrule appellant’s first issue.

B.    Admission of Cook’s Testimony

      Appellant asserts in issue two that the trial court abused its discretion by
allowing Cook to testify regarding the pharmacological effects of Tramadol on the
human body because she was not qualified under Texas Rules of Evidence 701 and
702. We review a trial court’s ruling on the admissibility of expert testimony for
an abuse of discretion. Rodgers v. State, 205 S.W.3d 525, 528 (Tex. Crim. App.
2006); Carter v. State, 5 S.W.3d 316, 319 (Tex. App.—Houston [14th Dist.] 1999,
pet. ref’d). We afford great deference to the trial court’s determination that a
witness is qualified as an expert. Rodgers, 205 S.W.3d at 527–28.




                                          8
       Appellant focuses his argument on appeal on admission of Cook’s testimony
under Texas Rule of Evidence 702,3 which provides:

       If scientific, technical, or other specialized knowledge will assist the
       trier of fact to understand the evidence or to determine a fact in issue,
       a witness qualified as an expert by knowledge, skill, experience,
       training, or education may testify thereto in the form of an opinion or
       otherwise.

Tex. R. Evid. 702. Three criteria assist us in assessing whether a trial court has
clearly abused its discretion in ruling on an expert’s qualifications: (1) whether the
field of expertise is complex; (2) how conclusive the expert’s opinion is; and
(3) the centrality of the expert’s area of expertise to resolution of the case.
Rodgers, 205 S.W.3d at 528.

       Here, Cook testified that she had worked for the crime lab for two-and-one-
half years. She described her educational background, beginning with a bachelor’s
degree in forensic science. She explained that she had ―many weeks‖ of in-house
training, including various drug classes, including classes on ―amphetamines and
marijuana and opiates.‖ Cook stated that she had ―also taken a couple of courses
with West Virginia University on toxicology effects of drugs on the body.‖ She
testified that she has been an expert witness about twenty times before. According
to Cook, in her training and experience, she had heard of a drug called Tramadol,
which is a type of pain reliever.

       After the admission of State’s Exhibit 8 for demonstrative purposes,
discussed above, appellant’s counsel requested permission to take Cook on voir
dire regarding her ―credibility as an expert.‖ During this voir dire questioning,
which occurred in the presence of the jury, appellant’s counsel asked Cook what
       3
         Although appellant identifies Rule 701 in his issue, in the argument supporting his
issue, he focuses solely on Rule 702. Further, Rule 701 focuses on opinion testimony by lay
witnesses, and Cook was testifying as an expert witness.

                                             9
part of her training ―dealt with the effect of narcotics on the human body.‖ Cook
replied that she took an online class at West Virginia University and had done ―a
lot of reading.‖ She acknowledged that she had no training in physiology and that
her only pharmacology training came from the online class. After this brief voir
dire, appellant’s counsel objected to her qualifications to testify before the jury
―about the effects of any drug on the body‖ under Texas Rules of Evidence 701,
702, and 703. The trial court overruled these objections.

      Cook then testified that Tramadol is a pain reliever that can cause dizziness,
tiredness, headaches, stomach aches, or drowsiness. She stated that Tramadol is
not an opiate-based drug, but is similar to and acts much like codeine. She
explained that Tramadol comes in pill and capsule form. According to Cook, it
comes in a green and yellow capsule form. She identified State’s Exhibit 8 as
capsules of Tramadol based on their color and the markings on the capsules in the
photograph. The State then tendered State’s Exhibit 8 for demonstrative purposes.

      We cannot say the trial court abused its discretion in permitting Cook to
testify as an expert in this case. Considering the criteria provided in Roberts,4 the
field of expertise necessary is not particularly complex—determining the side
effects of most prescription medications by running a search on the World Wide
Web is fairly easy for anyone with an Internet connection. Here, Cook stated that
she was familiar with Tramadol and had taken courses on the toxicological effects
of drugs on the body. Cf. Carter, 5 S.W.3d at 318–19 (quoting Holloway v. State,
613 S.W.2d 497, 501 (Tex. Crim. App. 1981) for the proposition that the special
knowledge qualifying a witness as an expert ―may be derived entirely from a study
of technical works, or specialized education, or practical experience or varying
combinations thereof‖).        Next, the information provided by Cook was not

      4
          205 S.W.3d at 528.

                                         10
conclusive on a material issue: the jury had already been informed by V.R. that
appellant gave her and her half-brothers pills that made them sleepy. Even if it had
been some other medication than Tramadol, the evidence that appellant provided
sleeping medication to the three children was already before the jury. Further
Cook’s testimony was not central in determining appellant’s guilt or innocence;5 as
noted above, V.R.’s testimony alone is sufficient to support appellant’s
conviction.6

       For the foregoing reasons, we overrule appellant’s second issue.

                              ORAL LIMITING INSTRUCTION

       In his third issue, appellant contends that the trial court’s amended oral
limiting instruction regarding the use of extraneous-offense evidence constituted an
improper comment on the weight of the evidence. Appellant was indicted with
three counts of the offense of sexual assault of a child, alleging the same acts
against V.R. on or about three different dates: August 22, 2010, August 31, 2010,
and September 7, 2010.

       V.R. provided specific details about the first and third counts that were
shown through testimony of other witnesses to have occurred on or about August
22 and September 7. Before V.R. testified that appellant committed the same acts
against her multiple times, the State proffered her testimony outside the presence

       5
         The fact that her testimony was not central to deciding this case does not mean that it
was not relevant. Indeed, her testimony was crucial in linking V.R.’s description of the ―little
green pills‖ given to V.R. and her half-brothers by appellant to the Tramadol discussed in
appellant’s medical records. See our discussion above regarding admission of State’s Exhibit 8.
       6
         In Rodgers v. State, the Court of Criminal Appeals held that a latent print examiner was
qualified to provide expert testimony regarding a shoe print and tire tracks based on his in-house
training with the Dallas County Sheriff’s Department, an apprenticeship with a certified print
examiner, and various classes at the Sheriff’s Department, the University of North Texas, and an
FBI conference, despite the fact that he had only a few days of class work on shoe and tire
imprints. 205 S.W.3d at 529.

                                               11
of the jury. Appellant’s counsel objected that these other instances of misconduct
constituted extraneous offenses, which were more prejudicial than probative. The
trial court overruled appellant’s objection, but in response to appellant’s request,
the trial court provided the following limiting instruction:

       Ladies and gentlemen of the jury, at this time the following testimony
       is being offered for a very limited purpose. You can only consider the
       testimony for the limited purpose as it relates, if any, to the previous
       and subsequent relationship between the defendant and the child and
       for no other reason.

V.R. then testified before the jury that appellant continued to sexually assault her
by placing his finger in her vagina every night between the two specific instances
she had previously described.

       The following day of trial, after the presentation of V.R.’s testimony and
outside the presence of the jury, the trial court informed the parties that he intended
to provide an amended instruction to the jury.                  Appellant objected that the
amended instruction commented on the weight of the evidence and that it gave
―undue emphasis‖ to V.R.’s testimony regarding the three dates alleged in the
indictment.7     The trial court overruled appellant’s objection and provided the
following oral instruction to the jury:

       Yesterday I gave you an instruction regarding testimony of the
       complaining witness regarding instances, if any, that purportedly
       occurred, if any, between on or about August 22nd, 2010, and on or
       about September 7th, 2010. I am hereby amending that instruction to
       omit any instances, if any, that occurred, if any, on or about August
       31st, 2010.8

       7
         By this point, other witnesses had established dates for the first and third counts in the
indictment by linking key events in V.R.’s testimony to actual dates, something V.R. had been
unable to do through her testimony.
       8
         In the jury charge on guilt-innocence, the trial court included the following extraneous-
offense charge:

                                                12
       A judge in a jury trial is a neutral party and should refrain from giving any
indication to the jury of his own beliefs about the credibility or weight of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.05 (prohibiting judge from
commenting on weight of evidence beyond determining admissibility). A trial
judge improperly comments on the weight of the evidence if he makes a statement
that implies approval of the State’s argument, indicates any disbelief in the
defense’s position, or diminishes the credibility of the defense’s approach to the
case. Kim v. State, 331 S.W.3d 156, 160 (Tex. App.—Houston [14th Dist.] 2011,
pet. ref’d).

       We see nothing in this instruction that implies approval of the State’s
argument, indicates disbelief of the defense’s position, or diminishes the credibility
of the defense’s approach to the case. Rather, it served to inform the jury that any
offense that occurred on the date alleged in the second count of the indictment was
not an extraneous offense and that the prior limiting instruction did not apply to it.

       Moreover, if a trial judge makes an improper comment on the weight of the
evidence, we must then decide if the comment was material, i.e., if the jury was
considering the same issue. Id. (citing Simon v. State, 203 S.W.3d 581, 592 (Tex.
App.—Houston [14th Dist.] 2006, no pet.)). Only if the comment is material must


               You are instructed that there is testimony before you in this case regarding
       the defendant having committed an act other than the offense alleged against him
       in the indictment in this case. This is called an extraneous act.
               You cannot consider testimony of extraneous acts for any purposes unless
       you first find and believe beyond a reasonable doubt that the defendant committed
       any such extraneous acts and even then, you may only consider the same in
       determining the previous and subsequent relationship that existed between the
       defendant and the child, [V.R.], if any, and for no other purpose.
Appellant’s only objection to the written charge was that the jury should not be charged on the
second count because of a lack of evidence. He did not object to the written extraneous-offense
portion of the charge, nor does he complain about the charge on appeal.

                                               13
we determine whether it rises to the level of reversible error. See id. A material
comment creates reversible error only when it is reasonably calculated to
(a) benefit the State or (b) prejudice the defendant’s right to a fair and impartial
trial. Id.

       Here, appellant was specifically indicted for offenses occurring on or about
August 22, August 31, and September 7, 2010. Had the trial court not ―amended‖
its limiting instruction, the jury could have considered the offense, if any, that
occurred on August 31 as both an extraneous offense and a charged offense.
Accordingly, it does not appear that the trial court’s instruction was reasonably
calculated to benefit the State or prejudice the defendant’s right to a fair and
impartial trial. Further, as noted above, the trial court’s written charge to the jury
properly set out the law on extraneous offenses.

       Thus, even if the trial court’s verbal instruction was improper, there was no
reversible error. Appellant’s third issue is without merit, and we overrule it.

                                    CONCLUSION

       Having overruled appellant’s three issues, we affirm the trial court’s
judgment.



                                       /s/     Sharon McCally
                                               Justice

Panel consists of Justices Christopher, McCally, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).




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