Affirmed and Opinion filed May 19, 2016.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00039-CR

                       SHERILL ANN SMALL, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                     On Appeal from the 20th District Court
                              Milam County, Texas
                        Trial Court Cause No. CR24,066

                                  OPINION

      A jury convicted appellant Sherill Ann Small of capital murder. Because the
State did not seek the death penalty, punishment was assessed at a mandatory term
of life imprisonment without the possibility of parole. See Tex. Penal Code §
12.31(a)(2). In two issues, appellant contends that the trial court erred by limiting
the testimony of her expert witness and by failing to read its response to a jury note
in open court as required by Article 36.27 of the Texas Code of Criminal
Procedure. We affirm.1

                                     BACKGROUND

       A grand jury indicted appellant for capital murder, alleging that on or about
July 29, 2013, she “intentionally or knowingly cause[d] the death of . . . [A.H.], by
blunt force trauma to the head, and the said [A.H.] was then and there an individual
under ten years of age.” A.H., a two-year old child, had been placed in foster care
in appellant’s home. Although appellant’s story varied, she ultimately testified that
A.H. was injured twice on the date in question: once when she fell while playing
“Ring around the Rosie” with appellant, and again when appellant dropped A.H.
while swinging her in the air. Appellant stated that when she dropped A.H., the
child stopped breathing. After responding to appellant’s 9-1-1 call, paramedics
transported A.H. to the hospital, where she died a few days later.

       At appellant’s trial, the jury heard testimony from many witnesses, including
first responders, A.H.’s treating physicians, and members of appellant’s family.
Additionally, the State called Dr. Barnard, the Chief Medical Examiner for Dallas
County who performed A.H.’s autopsy. Dr. Barnard testified that he is the director
of the Southwestern Institute of Forensic Sciences, is board-certified in both
pathology and forensic pathology, and has performed approximately 7,000
autopsies. Dr. Barnard’s autopsy revealed five areas of bruising to A.H.’s head, as
well as a subdural hemorrhage. Dr. Barnard stated that his “ultimate determination
was that [A.H.] died as a result of blunt force injuries” to her head and abdomen.
According to Dr. Barnard, A.H.’s death was a homicide.

       The State also presented testimony from Dr. Edwards, a physician who is

       1
          This case was transferred to our court from the Third Court of Appeals in Austin;
therefore, we must decide the case in accordance with its precedent if our decision would be
otherwise inconsistent with its precedent. See Tex. R. App. P. 41.3.

                                             2
board-certified in child abuse pediatrics. Dr. Edwards formerly served as director
of the pediatrics residency program at Dell Children’s Medical Center in Austin,
Texas. He currently works as an associate professor of pediatrics and as a
consultant in child abuse pediatrics. Dr. Edwards stated that he was asked by CPS
to review the case and determine whether there was evidence of child abuse. After
reviewing A.H.’s records, he concluded that “there was substantial evidence of
physical abuse.”

      Appellant’s expert witness was Dr. Steven Yount, a board-certified family
practitioner. Appellant called Dr. Yount to testify regarding his interpretation of
certain medical evidence, including A.H.’s medical records, autopsy, and death
certificate. Dr. Yount also attempted to testify about scientific studies supporting
the defense’s theory that A.H.’s injuries resulted from an accidental, short-distance
fall. The State objected, arguing that Dr. Yount was not qualified to give such
testimony. The trial judge initially sustained the State’s objection, and a discussion
between appellant, the State, and the trial judge ensued. Appellant argued that Dr.
Yount was qualified and that limiting his testimony would infringe upon
appellant’s right to present an adequate defense.2 The trial judge was ultimately
unpersuaded, stating:

      Well, as I said before the break, I’m going to allow him to testify
      about things in—in his personal experience and background, practice,
      so on and so forth. I think that’s fair game. But to wander farther
      afield than that, again, to get into the entire medical universe is—
      that’s too far of a stretch.

Later, appellant submitted a written proffer of evidence, which the trial court
accepted.

      After hearing from the witnesses, the jury retired to deliberate. The jury
      2
          On appeal, appellant’s arguments only concern Dr. Yount’s qualifications.

                                                3
deliberated for about three hours before the foreman sent a note to the judge
indicating that the vote was 11 to 1. After discussing the proper response with the
attorneys for both sides, the judge read his response to the attorneys and sent it in
to the jury. The trial judge’s note stated: “continue to deliberate.” Appellant argues
that the judge later sent the jury an Allen charge3 after receiving a second note that
the vote remained 11 to 1. Ultimately, the jury was able to reach a unanimous
guilty verdict, and appellant was sentenced to life without parole. She appeals.

                                    ISSUES AND ANALYSIS

I.    Limitation of Dr. Yount’s Testimony

      Appellant first contends that the trial court abused its discretion in limiting
Dr. Yount’s testimony to matters within his “actual personal practice experience.”
According to appellant, “[t]he excluded testimony covered interpretations of expert
journal articles or studies tending to show that, when applied to the facts of
Appellant’s case, this incident could have been an accident rather than a murder.”
Specifically, appellant argues that Yount was qualified by “knowledge, skill,
experience, training, or education” to give these opinions.

      Appellant submitted a proffer of evidence listing points Dr. Yount would
have made had he been permitted to testify. See Tex. R. Evid. 103(a)(2).
According to the proffer, Dr. Yount would have “pointed out” the following:

      1. A portion of the autopsy report noting that sections of parts of the
         brain “fail[ed] to demonstrate axonal spheroids of the type that
         characterize traumatic axonal injury; there is immunoreactivity in
         white matter of the dorsolateral pons that probably represents
         ischemic damage”—evidence which Dr. Yount states “fail[ed] to
         demonstrate traumatic forces high enough to do this type of
         damage in the brain”;

      3
          Allen v. United States, 164 U.S. 492 (1896).

                                                 4
      2. The “[d]isconnect between the testimony that the subdural
         hematoma was not a big deal in [A.H.’s] death . . . and the Abstract
         of the Death Certificate which states the ‘Immediate Cause of
         Death’ is Subdural Hematoma”;
      3. Findings indicating that injuries to A.H.’s chin and scalp “were
         old, potentially from one of the earlier falls”;
      4. Although the ophthalmologist opined that A.H.’s retinal
         hemorrhages were “consistent with nonaccidental head trauma,”
         the ophthalmologist also noted that “one thing that should be ruled
         out is . . . elevated intracranial pressure could be a cause of this”;
      5. A 2012 study entitled “Prevalence of Retinal Hemorrhage in
         Critically Ill Children”;
      6. The 2001 Plunkett study regarding short distance falls;
      7. A.H.’s liver lacerations could have reasonably resulted from the
         administration of CPR; and
      8. The total blood volume in a 30-pound child should be around 1200
         milliliters, a unit of whole blood is 450–500 milliliters, and one
         unit of packed red blood cells is about 250 milliliters.

      We first address whether appellant’s proffer preserved any error for our
review.

      A. Preservation of Error

      To adequately and effectively preserve error in a trial court’s exclusion of
evidence, the substance of the excluded evidence must be shown by an offer of
proof unless it is apparent from the context of the questions asked. Tex. R. Evid.
103(a)(2); Fox v. State, 115 S.W.3d 550, 558–59 (Tex. App.—Houston [14th Dist.]
2002, pet. ref’d). The purpose of the offer of proof is to show what the witness’s
testimony would have been; otherwise, there is nothing before the appellate court
to show reversible error in the trial court’s ruling. Stewart v. State, 686 S.W.2d
118, 122 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 866 (1985); see Guidry v.
State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999). Error may be preserved by an

                                         5
offer of proof in question and answer form or in the form of a concise statement by
counsel. Tex. R. Evid. 103(b); Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App.
1998). Counsel’s concise statement must include a summary of the proposed
testimony. Warner, 969 S.W.2d at 2. Error is not preserved if the offer of proof is
inadequate. Id.

      After reviewing appellant’s proffer, we conclude that it is insufficient to
preserve appellant’s complaint for our review. The proffer does not contain any
information regarding Dr. Yount’s specific qualifications to testify and does not
state any opinions that he would have given. See Alberts v. State, 302 S.W.3d 495,
509–10 (Tex. App.—Texarkana 2009, no pet.) (holding that error was not
preserved when defendant elicited testimony about expert’s qualifications but did
not elicit testimony about the substance of the expert’s opinion); Lavoie v. State,
No. 02-14-00333-CR, 2015 WL 5108854, at *5 (Tex. App.—Fort Worth Aug. 28,
2015, pet. ref’d) (mem. op., not designated for publication) (holding that defendant
did not preserve error when testimony elicited from expert concerned expert’s
qualifications and general topics of his proposed testimony, but not his specific
opinions).

      Appellant’s proffer simply lists eight items Dr. Yount “would have pointed
out”—his musings about certain facts in A.H.’s medical records and autopsy
report, as well as the results of two medical studies. The proffer does not explain
Dr. Yount’s basis of knowledge for these statements, and it does not explain how
any of Dr. Yount’s proposed testimony would aid the jury. See Tex. R. Evid. 702
(expert witness may testify in the form of an opinion if expert’s scientific,
technical, or otherwise specialized knowledge will help trier of fact understand the
evidence or determine a fact in issue). Appellant’s proffer states that Dr. Yount
reviewed medical records, “reviewed accepted medical literature that concerned

                                         6
issues he saw in the case,” “consulted with other experts on medical issues[,] and
reached medical conclusions on which to testify pursuant to Rule 702”; however,
the proffer does not identify what these issues are or what conclusions Dr. Yount
reached. On this record, we cannot determine whether the trial court erred in
limiting Dr. Yount’s testimony. See Warner, 969 S.W.2d at 2. We therefore
conclude that appellant’s proffer did not preserve his complaint for our review.

      B. Rule 44.2(b) Harm Analysis

      Even if appellant had properly preserved her complaint regarding Dr.
Yount’s testimony for review, we conclude that no harm resulted from the trial
court’s ruling. See Tex. R. App. P. 44.2(b). In conducting an analysis under Rule
44.2(b), we examine the entire proceeding to determine whether the alleged error
had a “substantial and injurious effect or influence in determining the jury’s
verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

      A review of the record reveals that Dr. Yount testified in support of
appellant’s theory of the case and was ultimately allowed to give his opinion that
A.H.’s death was accidental. According to appellant, A.H.’s injuries occurred
when she accidentally dropped A.H., not from any intentional conduct. Dr. Yount
stated that he had examined appellant and reviewed her medical records, and he
noted that appellant had injured her left wrist a year before A.H.’s death.
According to Dr. Yount, appellant subsequently developed a condition that caused
tendons in her wrist to “freeze up.” Dr. Yount testified that although appellant had
two surgeries and received physical therapy, her grip pressure in her left arm was
much lower than in her right arm. Dr. Yount opined that “these findings are
consistent with [appellant’s] report that she lost her grip on the child during play.”
Dr. Yount then gave the following testimony on cross-examination:

      Q: Okay. Let’s—let’s talk about some of your—your testimony here.
                                          7
      Basically, the—the gist of your testimony in regard to the death of the
      child was that it was a tragic accident. Is that basically your—your
      testimony, the gist?
      A: That is a very reasonable consideration that that is what happened,
      yes.
      Q: Okay. Yes or no, that’s—that’s a fair question. That basically the
      bottom line is, it wasn’t a homicide, it was a tragic accident?
      ...
      A: A—a tragic accident is a real possibility, perhaps even a
      probability.

      As Dr. Yount was permitted to provide his ultimate opinion that A.H.’s
death was accidental, we fail to see how the trial court’s limitation of Dr. Yount’s
testimony harmed appellant. The significance of what Dr. Yount was trying to
convey to the jury—namely, that A.H.’s death was an accident—was in fact
conveyed to the jury by his subsequent testimony. See Easterling v. State, 710
S.W.2d 569, 574 (Tex. Crim. App. 1986), cert. denied, 479 U.S. 848 (1986);
Mowbray v. State, 788 S.W.2d 658, 668 (Tex. App.—Corpus Christi 1990, pet.
ref’d), cert. denied, 498 U.S. 1101 (1991). We overrule appellant’s first issue.

II.   Trial Court’s Failure to Comply with Article 36.27

      In her second issue, appellant argues that the trial court committed reversible
error when it failed to read its response to a jury note in open court as required by
Article 36.27 of the Code of Criminal Procedure.4 According to appellant, the trial

      4
          Article 36.27 provides:
      When the jury wishes to communicate with the court, it shall so notify the sheriff,
      who shall inform the court thereof. Any communication relative to the cause must
      be written, prepared by the foreman and shall be submitted to the court through
      the bailiff. The court shall answer any such communication in writing, and before
      giving such answer to the jury shall use reasonable diligence to secure the
      presence of the defendant and his counsel, and shall first submit the question and
      also submit his answer to the same to the defendant or his counsel or objections
      and exceptions, in the same manner as any other written instructions are
                                              8
judge responded to two notes from the jury. A discussion of the first note appears
in the reporter’s record. The first note stated: “We have a vote of 11-1.” Although
the judge wanted to send an Allen charge in reply, the parties agreed that “continue
to deliberate” was more appropriate. The judge then sent such a response to the
jury. The next event on the record is the reading of the verdict. The reporter’s
record makes no mention of the court’s receipt of a second note or of a second
response. However, the clerk’s record contains another juror note stating “the vote
is 11-1,” as well as a typewritten Allen charge signed by the judge. The record is
silent as to when and how this second note was presented to the jury. Nothing in
the record reflects that appellant objected to the trial court’s answer to the second
note. The record is also silent as to when appellant became aware of the second
jury note and the court’s response.

      A. Appellant’s Failure to Object

      Appellant argues that the trial court did not read the Allen charge to the jury
in open court as required by article 36.27. Appellant concedes that the record
contains no objection from appellant; however, she argues that an objection was
not required pursuant to Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993),
overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App.
1997). In Marin, the court considered whether a trial court’s violation of article
1.051(e) of the Texas Code of Criminal Procedure, allowing appointed counsel ten


      submitted to such counsel, before the court gives such answer to the jury, but if he
      is unable to secure the presence of the defendant and his counsel, then he shall
      proceed to answer the same as he deems proper. The written instruction or answer
      to the communication shall be read in open court unless expressly waived by the
      defendant.
      All such proceedings in felony cases shall be a part of the record and recorded by
      the court reporter.
      Tex. Code Crim. Proc. art. 36.27 (emphasis added).

                                               9
days of trial preparation, could be raised for the first time on appeal. 851 S.W.2d at
277. In answering that question affirmatively, the court established three categories
of rights: “(1) absolute requirements and prohibitions; (2) rights of litigants which
must be implemented by the system unless expressly waived; and (3) rights of
litigants which are to be implemented upon request.” 851 S.W.2d at 279. The
Marin court concluded that the right established by article 1.051(e) belonged in the
second category. Id. at 280. These rights cannot be forfeited by inaction alone, but
must be expressly relinquished by the defendant. Id. at 278–79. The Marin court
looked to the language of article 1.051(e), which states: “[a]n appointed counsel is
entitled to 10 days to prepare for a proceeding but may waive the preparation time
with the consent of the defendant in writing or on the record in open court.” Tex.
Code Crim. Proc. art. 1.051(e) (emphasis added). The court concluded that the
statute “clearly does not contemplate a forfeiture of the statutory right from a mere
failure to object at trial.” Marin, 851 S.W.2d at 280.

      Appellant contends that the right to have the trial court’s response to a jury
note read in open court also belongs in the second category. She notes that article
36.27 contains language similar to the statute at issue in Marin. See Tex. Code
Crim. Proc. art. 36.27 (stating that “[t]he written instruction or answer to the
communication shall be read in open court unless expressly waived by the
defendant) (emphasis added). However, even if we classify the right at issue here
as a waivable-only right, we cannot sustain appellant’s second issue.

      B. Silent Record Presumption

      Appellant asks us to infer that because the trial court’s otherwise detailed
docket sheet does not make reference to a second note, it must not have been read
in open court. She contends that “[i]t is highly unlikely that the judge would
neglect to enter on his docket sheet the precise time he brought the jury back into

                                          10
the courtroom to read the Allen charge to them.” But this court cannot decide cases
based on speculation about matters not shown on the record, see Green v. State,
912 S.W.2d 189, 192 (Tex. Crim. App. 1995), or based on assumptions and
estimates about the record. Jenkins v. State, 912 S.W.2d 793, 821 (Tex. Crim. App.
1993). “In the absence of a showing to the contrary in the record, we presume the
trial court’s response was in open court and in appellant’s presence.” Green, 912
S.W.2d at 192. See also Word v. State, 206 S.W.3d 646, 651–52 (Tex. Crim. App.
2006) (affirming Green). We also presume appellant had an opportunity to object
and that she agreed to the trial court’s response. See Green, 912 S.W.2d at 192–93.
Without more information in the record, we cannot determine that the trial court’s
actions were in violation of article 36.27. We overrule appellant’s second issue.5

                                       CONCLUSION

We affirm the decision of the trial court.



                                           /s/    Ken Wise
                                                  Justice



Panel consists of Justices Jamison, McCally, and Wise.
Publish — TEX. R. APP. P. 47.2(b).




       5
          The State argues that appellant’s second issue should be overruled because appellant
has failed to show harm. Because we presume that appellant waived any objection to the trial
court’s response to the jury note, see Green, 912 S.W.2d at 192, we need not address whether
appellant was required to show harm.

                                             11
