Opinion filed August 29, 2014




                                      In The

        Eleventh Court of Appeals
                                   __________

                                No. 11-12-00073-CR
                                    __________

                  CHRISTOPHER GALINDO, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 42nd District Court
                                Taylor County, Texas
                           Trial Court Cause No. 24325A


                      MEMORANDUM OPINION
      Christopher Galindo appeals his jury convictions for three counts of injury to
a child. See TEX. PENAL CODE ANN. § 22.04 (West Supp. 2013). On the first count
of second-degree injury to a child, the jury assessed Appellant’s punishment at
confinement in the Institutional Division of the Texas Department of Criminal
Justice for a term of twenty years and a $10,000 fine. For each of the two
remaining counts of third-degree injury to a child, the jury assessed Appellant’s
punishment at ten years confinement and a $10,000 fine. In three issues on appeal,
Appellant argues that the trial court erred when it (1) denied his requests for the
appointment of a defense expert, (2) admitted digitally enhanced photographs, and
(3) allowed testimony regarding the child victim’s neurological damage.          We
affirm.
                                 Background Facts
      Appellant was charged by indictment with three counts of injury to a child.
The first count alleged that, on or about September 2, 2010, Appellant intentionally
and knowingly caused serious bodily injury to G.B., a child fourteen years of age
or younger, by causing G.B.’s head to strike an unknown object. The second count
alleged that, on or about September 2, 2010, Appellant intentionally and
knowingly caused serious bodily injury to G.B. by holding G.B.’s foot under hot
water. The third count alleged that, on or about September 2, 2010, Appellant
intentionally and knowingly caused bodily injury to G.B. by bruising G.B.’s
genitals with his hand.
      When the trial court subsequently submitted the three counts in the court’s
charge to the jury, it added the less culpable mental state of reckless conduct to
Count One. Additionally, the trial court announced to the parties that, based upon
the evidence offered at trial, it would submit the second count in the court’s charge
on the lesser included offense of causing bodily injury rather than serious bodily
injury. The jury convicted Appellant of recklessly causing serious bodily injury on
Count One and of intentionally or knowingly causing bodily injury on Counts Two
and Three.
      Abilene Police Officer Eric Vickers testified that, on September 2, 2010, he
was dispatched to a residence on Arnold Street in Abilene, Texas, to investigate a
reported injury to a child. Officer Vickers noted that the child had purportedly
                                         2
fallen but that the APD’s policy is to perform a general inquiry when it is informed
that a child has been injured. When Officer Vickers arrived at the scene, G.B. was
being transported by ambulance to the local hospital. Officer Vickers encountered
Appellant, the fiancé of G.B.’s mother, at the residence.
      Appellant told Officer Vickers that G.B. had fallen down the steps in front of
the family’s trailer house and that he had found G.B. unconscious and not
breathing. Officer Vickers doubted Appellant’s explanation because G.B. showed
signs of a very severe head injury that was unlikely to have been caused by falling
down a few steps. Officer Vickers also found Appellant’s reaction to the situation
a bit alarming given that Appellant was in no rush to check on G.B.’s condition.
Based on Appellant’s behavior, Officer Vickers asked his sergeant to send
detectives to the scene for further investigation.
      Suzie Butz, a sexual assault nurse examiner (SANE), testified that she
photographed G.B.’s injuries on September 2, 2010, at Hendrick Medical Center.
Butz stated that she applied “SDFI” technology to some of the photographs. SDFI
stands for “Secure Digital Forensic Imaging.”        She explained that SDFI is a
computer program that applies a negative inverse filter to a photograph in order to
highlight “different patterns of injury.” Butz noted that the SDFI images of G.B.’s
injuries made his bruises more vivid and that they were not true and accurate
depictions of how G.B. actually looked to the naked eye when the original
photographs were taken. Butz stated that her examination of G.B. showed that the
child was bruised all over his body, including his head, penis, arms, and stomach.
Butz also noted that G.B. had a burn on his right foot that she believed to be a
second-degree burn.
      Henry Higgins, M.D. testified that he treated G.B.’s head trauma at the
trauma center of Hendrick Medical Center. Dr. Higgins stated that G.B. was in
critical condition and in a deep coma when he first saw the child. Upon examining
                                           3
G.B.’s body, Dr. Higgins found bruises that appeared to have occurred over several
different time periods and a burn on G.B.’s foot. Based on G.B.’s injuries, Dr.
Higgins believed that G.B. had been abused.
         Talmadge Trammell, M.D. testified that he performed emergency
neurological surgery on G.B. at Hendrick Medical Center prior to G.B.’s transfer
to Cook Children’s Hospital. Dr. Trammell explained that he made an incision in
G.B.’s scalp and removed a section of G.B.’s skull in order to allow G.B.’s brain to
swell.
         Randi Weaver, a nurse at Cook Children’s Hospital, testified that she
assisted G.B. with his recovery from his injuries. She testified that G.B.’s left side
was intensely weaker than his right side and that he was unable to move his left
arm or leg. Weaver believed that G.B. would always have a problem manipulating
the left side of his body due to his injuries.
         Appellant testified on his own behalf during the guilt/innocence phase. He
testified that he was at home with G.B. on September 2, 2010, getting ready to
leave to pick up G.B.’s sister from her school bus stop. Appellant stated that he
was attempting to put shoes on G.B. but G.B. was being “fussy.” Appellant then
put his hand on G.B. and pushed him. G.B.’s head struck a coffee table, and he
lost consciousness. Appellant claimed that he only pushed G.B. in order to make
G.B. sit down and that he did not intend for G.B.’s head to hit the table. Appellant
testified that he initially told the police that G.B. had fallen down the stairs because
he knew that his behavior had been reckless. Appellant noted that he has an anger
problem, and he admitted hitting G.B. on multiple occasions.
         Appellant also testified that, a few days before G.B. hit his head, Appellant
accidently burned G.B.’s foot while giving him a bath. Appellant was attempting
to wash G.B.’s hair, but G.B. was not cooperating. In order to get the soap out of
G.B.’s hair, Appellant held G.B.’s leg down in the bathtub. Appellant’s action
                                            4
forced G.B.’s leg under the hot water faucet, and Appellant did not immediately
realize that the water was burning G.B.’s foot. Appellant noted that he initially
lied to the police about how G.B. had sustained the burn because he was afraid that
he would have been arrested immediately if he had told the truth.
       Appellant also admitted that he intentionally pinched G.B.’s genitals a day
before G.B. sustained his head injury. Appellant stated that he pinched G.B. for
being “fussy.” Appellant testified that he consciously and intentionally pinched
G.B.’s genitals despite the fact that he knew that his action would hurt the child.
                                            Analysis
       In his second issue, Appellant asserts that the trial court erred in denying his
requests for the appointment of an expert in SDFI to assist with the preparation and
presentation of the defense. According to the literature, SDFI-TeleMedicine LLC
is a company that has developed a “Negative Invert Filter” computer software
program that inverts or converts the color of each pixel in a digital photograph to
create a “tonal inversion of a color positive image.” 1 As described in the literature,
“[w]hen you apply a negative filter to a color positive image, a static string of
computer code converts complementary colors for each pixel in the original image.
It then color reverses the image, where red areas of the image appear ‘cyan-ish’,
green areas appear ‘magenta-ish’ and blue areas appear ‘yellow-ish.’” As further
described in the literature, “[a]fter the Negative-Invert Filter is applied, you get a
picture that has high contrast, nothing more.”




       1
        The State offered the accompanying SDFI literature into evidence at the pretrial hearing on
Appellant’s motion to exclude the SDFI images at trial.

                                                5
        Appellant initially presented his request for an expert in an ex parte motion
filed eighteen days prior to trial.2 He alleged as follows in the motion:
        The state has notified defense counsel that the state intends to offer as
        evidence altered photographs produced by a Secured Digital Forensic
        Imaging Camera. Secured Digital Forensic Imaging purports to
        observe and record “subcutaneous” injury, that is, supposed damage
        to tissues below the skin which are not actually indicated by
        discoloration or other visible physical sign on the surface. In fact,
        SDFI is nothing more than a computer-generated image depicting an
        artistic representation of a purported condition which is not in fact
        visible or otherwise measurable or observable by any objective
        criteria. The state is proffering SDFI as a scientifically proven and
        reliable technology. Defendant requires expert assistance to testify as
        to the actual processes behind SDFI and the lack of scientific validity
        of this supposed technology.
Appellant asserted in the ex parte motion that his counsel had spoken with Sonja
Eddleman, R.N., “a competent and qualified specialist in the field of forensic
psychology or psychiatry.” He further stated that she would charge $1,000 to
review the State’s proposed exhibits and testify at a pretrial hearing on their
admissibility and that she would charge an additional $1,500 to testify at trial
“regarding the principles, limited application, and lack of means of independent
verification of such images.” Appellant concluded the ex parte motion by stating
that the services of an expert in SDFI were necessary to enable him to prepare
effectively for trial. The trial court denied the ex parte motion by written order on
January 6, 2012.
        The trial court subsequently conducted a pretrial hearing on Appellant’s
motion to exclude the SDFI images. After the trial court ruled that the images
        2
         A defendant is entitled to present a request for the appointment of an expert on an ex parte basis
because he must reveal some details of his defensive theories in order to be entitled to the appointment
under Ake v. Oklahoma, 470 U.S. 68, 82–83, 86 (1985). See Williams v. State, 958 S.W.2d 186, 191
(Tex. Crim. App. 1997).

                                                    6
would be admissible at trial, 3 Appellant orally re-urged his ex parte request for the
appointment of an SDFI expert. The trial court denied Appellant’s request for
reconsideration.
          Appellant additionally presented his request for an SDFI expert at the end of
the first day of trial after the SDFI images were admitted into evidence.
Appellant’s counsel stated, “[A]t this time we renew our request for an expert to
testify as to the limitations of the SDFI system, [its] inaccuracies and its non use in
standard medical care, as we have previously identified an available expert to the
Court in or [sic] request for same.” Appellant’s counsel further stated that his
proposed expert was “a SANE nurse herself and an RN.” The trial court advised
Appellant’s counsel to check on the proposed expert’s availability and “let [the
court] know tomorrow morning.” The next day’s proceedings make no mention of
the availability of the Appellant’s proposed expert. In his brief, Appellant states
that “the renewed request was denied the next morning prior to resuming on the
record.”
          To preserve error for appellate review, a complaining party must obtain an
adverse ruling on the record. TEX. R. APP. P. 33.1; see Cienfuegos v. State, 113
S.W.3d 481, 488 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). If the trial
court refuses to rule on a request, the complaining party must object to the trial
court’s refusal to rule. Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004).
In the absence of an adverse ruling on the record, Appellant did not preserve error
on his renewed request for an expert after trial commenced.
          With regard to Appellant’s pretrial requests for the appointment of an expert,
we review the trial court’s rulings for an abuse of discretion. Griffith v. State, 983
S.W.2d 282, 287 (Tex. Crim. App. 1998). When an indigent defendant makes a

          3
           See our discussion below of Appellant’s first issue pertaining to the admissibility of the SDFI
images.

                                                     7
threshold showing that expert assistance would likely be a significant factor at trial,
he is entitled to the appointment of an expert. Ake, 470 U.S. at 82–83, 86; Griffith,
983 S.W.2d at 286–87. To determine if a defendant is entitled to the requested
expert, three factors are relevant: (1) the private interest that will be affected by the
State’s action; (2) the governmental interest that will be affected if the safeguard is
to be provided; and (3) the probable value of the additional or substitute procedural
safeguards that are sought, and the risk of an erroneous deprivation of the affected
interest if those safeguards are not provided. Ake, 470 U.S. at 77; Rey v. State, 897
S.W.2d 333, 337 (Tex. Crim. App. 1995). The purpose is to ensure that the
indigent defendant has access to a competent expert to assist in the evaluation of
his defense. Ake, 470 U.S. at 77; Griffith, 983 S.W.2d at 286. The type of expert
and the nature and complexity of the field of specialty must be considered in
deciding if an expert will be helpful or a significant factor at trial. Griffith, 983
S.W.2d at 287. “The key question appears to be whether there is a high risk of an
inaccurate verdict absent the appointment of the requested expert.” Busby v. State,
990 S.W.2d 263, 271 (Tex. Crim. App. 1999).
      The burden is on the defendant to make a sufficient threshold showing of his
particularized need for the expert’s assistance. See Griffith, 983 S.W.2d at 286–87;
Rey, 897 S.W.2d at 339. In order to carry this burden, a defendant must offer more
“than undeveloped assertions that the requested assistance would be beneficial.”
Williams, 958 S.W.2d at 192 (quoting Caldwell v. Mississippi, 472 U.S. 320, 323–
24 n.1 (1985); Rey, 897 S.W.2d at 339 (quoting same). The defendant must show
both that there exists a reasonable probability that an expert would be of assistance
and that denial of expert assistance would result in a fundamentally unfair trial.
Davis v. State, 905 S.W.2d 655, 659 (Tex. App.—Texarkana 1995, pet. ref’d).
      We analyze whether a defendant made a sufficient threshold showing by
examining the facts and arguments before the trial court at the time of the
                                           8
defendant’s motion. Rey, 897 S.W.2d at 342 n.9. In his ex parte motion for
appointment of an expert, Appellant asserted that he needed an expert to show that
the SDFI process was unreliable and lacked scientific validity. However, he did
not support this assertion with an affidavit from his proposed expert. Although
Appellant’s counsel verified the motion, the defendant must show more than the
mere conclusions of defense counsel. See Norton v. State, 930 S.W.2d 101, 111
(Tex. App.—Amarillo 1996, pet. ref’d). Furthermore, Appellant alleged in the
motion that his proposed expert was an “R.N.” and that she was an expert “in the
field of forensic psychology or psychiatry.” Thus, the motion did not demonstrate
that Appellant’s proposed expert was an expert in a field related to the topic of
digital photo enhancement. Appellant did not offer any additional or corrected
information pertaining to his proposed expert’s qualifications when he
subsequently re-urged his motion.
      We hold that the trial court did not abuse its discretion when it denied
Appellant’s motion for appointment of an expert. As stated above, a defendant
must offer more “than undeveloped assertions that the requested assistance would
be beneficial.” Williams, 958 S.W.2d at 192 (quoting Caldwell, 472 U.S. at 323–
24 n.1). Appellant did not make the required preliminary showing of his need to
obtain an expert witness. We overrule Appellant’s second issue.
      Appellant’s first and third issues address the admissibility of evidence at
trial. We review a trial court’s ruling on admissibility of evidence for an abuse of
discretion. See Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). We
will uphold the trial court’s decision unless it lies outside the zone of reasonable
disagreement. Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001).
      In his first issue, Appellant asserts that the trial court erred in admitting the
SDFI images at trial. Appellant filed a pretrial motion challenging the SDFI
images on the basis that they did not have proven scientific reliability.          He
                                          9
additionally alleged that their probative value was outweighed by the danger of
unfair prejudice, confusion, or delay. On appeal, Appellant presents his scientific
reliability contention as Issue “1A” and his unfair prejudice contention as Issue
“1B.”
        The State called Butz as a witness at the pretrial hearing on Appellant’s
motion to exclude the SDFI images. She testified that she produced the contested
photographs using SDFI by taking photographs of G.B.’s injuries and then
transferring the images into the SDFI computer program. Butz explained that
SDFI does not alter the original photograph but, instead, makes a copy of the
photograph and then applies a filter to that copy. She noted that the filter reverses
the colors in the photograph to show “a better outline of your bruising or your
patterns.” Butz stated that SDFI technology is readily accepted in “[her] field” in
the medical community and widely used in sexual assault and child injury
programs.     She further testified that she had personally been using SDFI
technology for two years.
        On cross-examination by Appellant’s counsel, Butz acknowledged that the
colors of the SDFI image are different than those of the original photograph in that
the entire color scheme of the original photograph is reversed. Butz stated that the
SDFI process accentuates bruises and markings that are not immediately visual in
the original photograph. She denied having any knowledge of how the process
was designed. Butz testified that she was aware that other SANE programs use
SDFI photo enhancement but that it is not used in “straight medical applications.”
        The trial court denied Appellant’s pretrial motion to exclude the images
produced by SDFI. In reaching its holding, the trial court stated that the SDFI
images showed the “same obvious bruising” as did the original photographs but in
a different color. The trial court also stated that it believed that the process by
which SDFI images are produced is a “soft science” rather than a “hard science.”
                                         10
The trial court further opined that the fact that the SDFI images did not reflect what
G.B. actually looked like could be either explained to the jury or revealed through
cross-examination.
      At trial, the State offered approximately seventy photographs of G.B. into
evidence during Butz’s testimony. Of these seventy photographs, twenty-two of
them were SDFI images. The original photograph from which each SDFI image
was made was also included within the photographs offered into evidence.
      Appellant’s counsel conducted a voir dire examination of Butz in the
presence of the jury prior to the admission of the SDFI images. In doing so,
counsel established that the color pattern of the SDFI images was changed from the
originals, that G.B.’s body appeared paler in the SDFI images, and that the bruises
appeared “more vivid and darker” than they actually appeared “to the naked eye.”
Appellant’s counsel reiterated these differences between the SDFI images and the
corresponding original photographs during his cross-examination of Butz.
Appellant objected at trial that the SDFI images were not accurate depictions of
what they purported to depict and that their prejudicial value exceeded their
probative value. The trial court overruled Appellant’s objections and admitted the
SDFI images.
      If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or determine a fact 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. It is a trial court’s
responsibility under Rule 702 to determine whether proffered scientific evidence is
sufficiently reliable and relevant to assist the jury. Jackson v. State, 17 S.W.3d
664, 670 (Tex. Crim. App. 2000). To be considered sufficiently reliable as to be of
help to a jury, scientific evidence must meet three criteria: (1) the underlying


                                         11
scientific theory must be valid; (2) the technique applying the theory must be valid;
and (3) the technique must have been properly applied on the occasion in question.
Vela v. State, 209 S.W.3d 128, 133–34 (Tex. Crim. App. 2006); Kelly v. State, 824
S.W.2d 568, 573 (Tex. Crim. App. 1992).
       “Hard sciences” are those based on scientific methods that are susceptible to
rigid scientific testing, such as chemistry; “soft sciences” include nonscientific
disciplines that rely principally upon technical or specialized knowledge, skill, or
experience, such as psychology. See Weatherred v. State, 15 S.W.3d 540, 542 n.5
(Tex. Crim. App. 2000).             Because the distinction between various types of
testimony may often be blurred, the Court of Criminal Appeals “explicitly
refrained from developing rigid distinctions between ‘hard’ science, ‘soft’
sciences, and nonscientific testimony.” Morris v. State, 361 S.W.3d 649, 654–55
(Tex. Crim. App. 2011). Soft sciences are fields that are based primarily upon
experience and training as opposed to the scientific method. Nenno v. State, 970
S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled on other grounds by State v.
Terrazas, 4 S.W. 3d 720, 727 (Tex. Crim. App. 1999). Kelly’s requirement of
reliability applies but with less rigor when soft sciences are at issue. Id.
       The trial court concluded that the process of digitally enhancing photographs
through the use of the SDFI process constituted a matter of soft science. We
conclude that the trial court did not err in making this determination. The scientific
or technical question concerning the SDFI process in this case is essentially a
matter of comparing each SDFI image to the original photograph from which it
was made. In this regard, the trial court noted that the SDFI imagines revealed the
“same obvious bruising” as did the original photographs.4 The task of comparing
the original photograph to the SDFI image does not appear to be a matter that is

       4
          We would be presented with a much different question if the SDFI images in this case depicted
latent injuries that were not revealed in the original photographs.

                                                  12
particularly complex. See, e.g., Rodgers v. State, 205 S.W.3d 525, 533 (Tex. Crim.
App. 2006) (noting that the fields of tire comparison and shoe comparison are not
particularly complex). Butz testified that the SDFI process is something that she
has been trained to use and that it is used in her SANE program and other SANE
programs in the state. Thus, the trial court had evidence that she possessed training
and experience in the field. We conclude that the trial court did not abuse its
discretion by determining that the SDFI images were scientifically reliable. We
overrule Appellant’s Issue 1A.
      TEX. R. EVID. 403 provides that relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury or by considerations of undue delay
or needless presentation of cumulative evidence. See Young v. State, 283 S.W.3d
854, 874 (Tex. Crim. App. 2009). Our analysis under Rule 403 includes, but is not
limited to, the following factors: (1) the probative value of the evidence, (2) the
potential to impress the jury in some irrational yet indelible way, (3) the time
needed to develop the evidence, and (4) the State’s need for the evidence.
Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012); Shuffield v.
State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). In determining whether the
probative value of a photograph is substantially outweighed by the danger of unfair
prejudice, we also consider “the number of exhibits offered, their gruesomeness,
their detail, their size, whether they are in color or black-and-white, whether they
are close-up, whether the body depicted is clothed or naked, the availability of
other means of proof, and other circumstances unique to the individual case.”
Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim. App. 2009).
      We note at the outset that Appellant did not object to the forty-eight original
photographs taken of G.B. by Butz at Hendrick Medical Center. Each of the
twenty-two SDFI images were immediately preceded by the original photograph
                                         13
from which they were made. As noted previously, the SDFI images revealed the
same obvious bruising depicted in the original photographs. While the SDFI
images of G.B. are disturbing and graphic, they are probative because they are
accurate depictions of the extent of his injuries. See Williams, 301 S.W.3d at 691
(photographs were probative because they depicted victim’s injuries). They are no
more disturbing than the original photographs of G.B.       Furthermore, there is
nothing in the record to suggest that these photographs were “offered solely to
inflame the minds of the jury.” Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim.
App. 2004) (quoting Martin v. State, 475 S.W.2d 265, 267 (Tex. Crim. App.
1972)).   To the contrary, the SDFI images were primarily used during the
punishment phase to illustrate the “head-to-toe” nature of G.B.’s injuries. Because
the SDFI images essentially depict the same injuries depicted in the original
photographs, the trial court did not abuse its discretion in determining that their
probative value was not substantially outweighed by the danger of unfair prejudice.
We overrule Appellant’s Issue 1B.
      Appellant also asserts in his first issue that the SDFI images were not
properly authenticated. We disagree. A photograph may be authenticated by the
testimony of any witness who has personal knowledge that the particular item
accurately represents the scene or event it purports to portray. See Kephart v.
State, 875 S.W.2d 319, 321 (Tex. Crim. App. 1994). Butz, the sponsoring witness
for the SDFI images, was the photographer that took the original photographs and
the person that processed the photographs through the SDFI system. Accordingly,
Butz’s testimony was sufficient to authenticate the SDFI images.
      Finally, even if we assume that the trial court erred when it allowed the
admission of the SDFI images, we cannot say that Appellant was harmed by the
error. The erroneous admission of evidence is subject to the nonconstitutional
error standard set out in TEX. R. APP. P. 44.2(b). Easley v. State, 424 S.W.3d 535,
                                        14
539–40 (Tex. Crim. App. 2014). Pursuant to Rule 44.2(b), an appellate court must
disregard nonconstitutional error unless it affects the appellant’s substantial rights.
Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011). An appellate court
should not overturn a criminal conviction for nonconstitutional error “if the
appellate court, after examining the record as a whole, has fair assurance that the
error did not influence the jury, or influenced the jury only slightly.” Id.
      The SDFI images were essentially cumulative of the original photographs
from which they were made. Inadmissible evidence can be rendered harmless if
other evidence is admitted without objection and proves the same fact that the
inadmissible evidence sought to prove. Brown v. State, 757 S.W.2d 739, 740–41
(Tex. Crim. App. 1988).        Furthermore, Appellant’s counsel pointed out the
differences between the SDFI images and the original photographs in his cross-
examination of the sponsoring witness.         Finally, the jury rejected the State’s
attempt to convict Appellant of a first-degree felony for the very serious head
injury alleged in Count One. Instead of finding that Appellant intentionally or
knowingly caused the head injury, the jury found that he recklessly inflicted the
injury, thereby convicting him of a second-degree felony rather than a first-degree
felony. See PENAL § 22.04(e). Accordingly, we have fair assurance that the SDFI
images had very little influence on the jury. We overrule Appellant’s first issue.
      In his third issue, Appellant contends that the trial court erred in admitting
evidence of the neurological injuries that G.B. suffered as a result of the head
injury. Dr. Trammell, the neurosurgeon that performed emergency surgery to
remove a portion of G.B.’s skull to relieve brain swelling, testified during the
guilt/innocence phase that G.B. had “severe neurological deficit.”             Appellant
objected to this testimony on the basis that it constituted evidence of an extraneous
offense. Appellant additionally objected to evidence regarding the treatment that


                                          15
G.B. received for the head injury on the basis that it constituted “victim impact”
testimony.
      A person commits the offense of injury to a child by causing (1) serious
bodily injury; (2) serious mental deficiency, impairment, or injury; or (3) bodily
injury. PENAL § 22.04(a). Appellant contends that evidence of G.B.’s neurological
injuries constituted evidence of an extraneous offense under Section 22.04(a)(2)
because he was only charged in Count One with committing serious bodily injury
under Section 22.04(a)(1). Appellant is correct in his contention that the offense of
committing injury to a child by causing “serious mental deficiency, impairment, or
injury” is a separate offense from causing “serious bodily injury.” See Stuhler v.
State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007) (requiring jury unanimity on
the issue of whether the defendant caused “serious mental deficiency, impairment,
or injury” versus “serious bodily injury”). However, we disagree with Appellant’s
argument that evidence of G.B.’s neurological injuries constituted evidence of an
extraneous offense.
      The Penal Code defines “serious bodily injury” as “bodily injury that creates
a 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.”
PENAL § 1.07(a)(46). Evidence of G.B.’s neurological injuries was relevant to the
question of whether he suffered “protracted loss or impairment of the function of
any bodily member or organ.” See id. Circumstances of the offense that tend to
prove the allegations in the indictment are not extraneous offenses. Camacho v.
State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993); Ramirez v. State, 815 S.W.2d
636, 643 (Tex. Crim. App. 1991). Moreover, evidence of another crime, wrong, or
act may also be admissible as same-transaction contextual evidence when several
crimes are intermixed, blended with one another, or connected so that they form an
indivisible criminal transaction, and full proof by testimony of any one of them
                                         16
cannot be given without showing the others. Devoe v. State, 354 S.W.3d 457, 469
(Tex. Crim. App. 2011). On the record before us, the trial court could have
reasonably concluded that evidence of G.B.’s neurological injuries constituted
admissible same-transaction contextual evidence. Accordingly, the trial court did
not abuse its discretion in admitting evidence of G.B.’s neurological injuries. We
overrule Appellant’s third issue.
                                   This Court’s Ruling
      We affirm the judgments of the trial court.




                                                         JOHN M. BAILEY
                                                         JUSTICE


August 29, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




                                           17
