Affirmed and Memorandum Opinion filed December 22, 2011.




                                        In The

                      Fourteenth Court of Appeals

                                 NO. 14-10-00840-CR

                    THOMAS DANIEL GUERRERO, Appellant

                                           V.

                         THE STATE OF TEXAS, Appellee

                      On Appeal from the 179th District Court
                               Harris County, Texas
                          Trial Court Cause No. 1255375



                        MEMORANDUM OPINION

      A jury convicted appellant Thomas Daniel Guerrero of intentionally or knowingly
causing serious bodily injury to a child, and it assessed punishment at fifty-five years‘
imprisonment. In three issues, appellant argues that the trial court erred by admitting
evidence of certain extraneous bad acts, finding one of the State‘s experts qualified to
testify about shaken baby syndrome, and reading certain testimony back to the jury
during jury deliberations. We affirm.
                                            BACKGROUND

         While appellant was separated from his wife, Melissa Guerrero, he met and
conceived a child with his girlfriend, Irene Ayala. In March 2006, Irene gave birth to the
complainant, Lilah. Appellant had infrequent contact with Lilah until the fall of 2006
when he moved into Irene‘s apartment. At the time, Lilah was about eight months old,
and appellant was again separated from his wife Melissa.

         On November 9, 2006, Irene was at work while appellant stayed home to watch
Lilah.       Irene‘s other children were in daycare, so appellant and Lilah were alone.
Evidence revealed that appellant spoke to Irene on the phone throughout the day,
inquiring about lunch plans and letting Lilah hear Irene‘s voice. Evidence also revealed
that appellant spoke with Melissa about getting a divorce and whether she would permit
appellant to visit their daughter, Alora. At approximately 4:00 p.m. and while still caring
for Lilah, appellant phoned Irene and told her to come to the apartment right away
because Lilah had sustained injuries. Lilah died from those injuries several days later.

         Appellant did not testify at trial, but he told a consistent story of what happened to
Lilah to at least ten of the State‘s witnesses.1 Appellant claimed that he put Lilah on a
pillow sitting on the couch, and that Lilah fell off the couch and onto the carpeted floor
when he went to the kitchen to cook some food. Appellant claimed to have found Lilah
lying on her stomach with her hands beneath her and her head turned to the right; her
eyes were ―halfway open‖ and she was having difficulty breathing.

         Appellant took Lilah to a neighbor‘s apartment and asked the neighbor to call 911.
Appellant called Irene‘s mother and asked her to come lock the apartment because he was
going to the hospital with Lilah and did not have a key. Irene‘s mother went to the
apartment and found the door open and a stove burner on low. When Irene arrived at the


         1
          These witnesses included Melissa, Irene, Irene‘s neighbor, Irene‘s mother, an emergency
responder, a doctor, several police officers, a social worker, and a supervising investigator with the Texas
Department of Family and Protective Services.
                                                     2
apartment to pick up Lilah‘s car seat and belongings before going to the hospital, Irene
noted a forty-ounce bottle of beer open on the counter, which was full almost to the top.

       The State presented evidence that Lilah previously had sustained virtually no
injury when, while also in appellant‘s care, she fell onto carpet from a bed much higher
than the couch. The State also presented evidence that appellant has a drinking problem
and had become verbally abusive toward Melissa on one occasion after drinking alcohol
and discussing Melissa‘s own extra-marital relationship; on that occasion, appellant had
shaken Lilah‘s car seat in irritation in an effort to make her stop crying.

       Other testimony painted appellant in a positive light. Irene testified that appellant
was a good, patient, loving, and affectionate father-figure toward Lilah and Irene‘s other
children. Irene also testified that she had not noticed appellant drinking any alcohol in
the two weeks before Lilah‘s death. Irene‘s mother testified that appellant was a very
polite, quiet, and respectful person, and she had never seen him get angry, use drugs or
alcohol, or abuse children. Melissa testified that appellant was a loving and affectionate
father for their daughter, and he was never mean to their daughter or struck or shook her.
Appellant‘s sister testified that appellant often babysat for her children, and he was very
affectionate towards them and never put them in harm‘s way. Appellant scolded his
sister when she spanked her children. Finally, the jury heard evidence that appellant was
distraught when Lilah showed signs of injury and died: he cried, attempted suicide, and
admitted fault for leaving Lilah on the couch unsupervised.

       Regarding Lilah‘s injuries and their cause, the State presented evidence from five
doctors, all of whom the court found qualified to testify as experts over appellant‘s
objections.   Dr. Ana Lopez, an assistant medical examiner with the Harris County
Institute of Forensic Sciences, performed an autopsy on Lilah. Dr. Lopez explained that
Lilah suffered from subdural and subarachnoid hemorrhages, or bleeding in different
parts of the outer layers of the brain. Lilah also showed retinal hemorrhages in both eyes.
She developed swelling in her brain, and one side of her brain was pushed into the other.

                                              3
Lilah finally had a stroke because her brain was not getting enough oxygen. Dr. Lopez
opined that Lilah‘s injuries were caused by blunt impact to the head or
acceleration/deceleration forces, which could include shaking. Dr. Lopez noted that
Lilah had no external injuries except for a few pressure sores caused by lying in the
hospital for several days, as well as several small, faint bruises on the right side of her
head and the left side of her neck, which she opined could have been caused by I.V. lines
or a cervical collar used on Lilah during hospitalization. Dr. Lopez further opined that
Lilah‘s injuries were not consistent with a fall from a couch.

       Dr. Rebecca Girardet, a medical doctor specializing in child abuse pediatrics,
testified that she examined Lilah before her death. She opined that a 2.5-foot fall from a
couch to a carpeted surface could not have caused Lilah‘s injuries. She believed that
Lilah was shaken, and there may or may not have been an impact to her head. Dr.
Girardet explained that the shaking required to cause brain trauma like Lilah suffered is
severe, and not something that someone would do accidentally because anyone would
recognize it as being harmful to a baby.

       Dr. Judianne Kellaway, an ophthalmologist specializing in the retina, was
consulted about Lilah‘s retinal hemorrhages.         Dr. Kellaway testified that retinal
hemorrhages can be caused by direct trauma to the eye or from shaking, but that retinal
hemorrhages are rarely seen in babies because the elastic tissues that interface with the
retina are ―very tough‖ and more solid in a baby than in an adult or older child. Dr.
Kellaway testified that ―moderately severe‖ hemorrhaging in both retinas of a baby, as
was present in Lila‘s case, suggests the baby was shaken. She explained that it takes a
―tremendous‖ amount of force to cause these types of hemorrhages, and even babies who
have been thrown from vehicles during car accidents, found unconscious with fractures
and head injuries, did not develop retinal hemorrhages. Dr. Kellaway opined that a 2.5-
foot fall from a couch could not have caused Lilah‘s injuries, and the only possible cause
of Lilah‘s multiple injuries was shaking.

                                             4
         Dr. Alexander Simonetta, a neuroradiologist with training and experience in
shaken baby syndrome, evaluated Lilah‘s CT scans. The CT scans and x-rays of Lilah
did not reveal any fractures, but they revealed the subdural and subarachnoid
hemorrhages and eventual brain death. Dr. Simonetta noted the lack of external swelling
or injuries to Lilah and explained that the lack of such injuries, combined with bleeding
in the brain, is indicative of child abuse—in particular, a shaking injury rather than a
direct blow to the head. He testified it takes a ―fair amount‖ of force to cause a subdural
hemorrhage, and it was not possible for Lilah‘s injuries to be caused by falling from a
couch.

         Dr. Deborah Brown, a hematologist, testified that Lilah did not have a bleeding
disorder and her injuries could not have been caused by a bleeding disorder. Dr. Brown
concluded that Lilah‘s injuries were caused by some kind of significant blunt force
trauma; she opined that Lilah‘s injuries were inconsistent with appellant‘s story that Lilah
fell 2.5 feet from a couch and were consistent with shaken baby syndrome.

         The jury convicted appellant of intentionally or knowingly causing serious bodily
injury to a child, and assessed punishment at fifty-five years‘ imprisonment. In three
issues     on    appeal,    appellant    argues    that    the   trial   court    erred    by
(1) admitting evidence of certain extraneous bad acts; (2) finding Dr. Brown qualified to
testify about shaken baby syndrome; and (3) reading back certain testimony from Dr.
Kellaway to the jury during deliberations.

                                          ANALYSIS

I.       Evidence of Extraneous Bad Acts

         In his first issue, appellant argues that the trial court erred by admitting evidence
of extraneous bad acts showing that (1) appellant has a drinking problem and shook
Lilah‘s car seat in irritation after drinking alcohol on a prior occasion; and (2) drugs were
found on several occasions in appellant‘s backpack.


                                               5
       Evidence of extraneous offenses or bad acts that a defendant may have committed
ordinarily cannot be introduced at the guilt-innocence phase to show that the defendant
acted in conformity with his criminal nature and therefore committed the crime for which
he is on trial. See TEX. R. EVID. 404(b); Robbins v. State, 88 S.W.3d 256, 259 (Tex.
Crim. App. 2002). This evidence, however, may be admissible when it is relevant to a
―noncharacter conformity issue of consequence‖ in the case, such as the defendant‘s
intent or defensive theories. Robbins, 88 S.W.3d at 259; see also TEX. R. EVID. 404(b)
(evidence may be admissible to prove, among other things, motive, intent, and absence of
mistake or accident). Evidence is relevant to such an issue if the purpose for which the
party seeks to have it admitted tends to make ―the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence.‖ Smith v. State, 5 S.W.3d 673, 679 n.13 (Tex. Crim.
App. 1999).

       Evidence relevant to a ―noncharacter conformity issue of consequence‖ under
Rule 404(b) nonetheless may be inadmissible under Rule 403 if the trial court determines
that the probative value of the evidence is ―substantially outweighed‖ by the danger of
unfair prejudice. TEX. R. EVID. 403. Evidence is unfairly prejudicial when it has ―an
undue tendency to suggest that a decision be made on an improper basis.‖ Reese v. State,
33 S.W.3d 238, 240 (Tex. Crim. App. 2000) (citing Montgomery v. State, 810 S.W.2d
372, 389 (Tex. Crim. App. 1990) (op. on reh‘g)). When conducting a Rule 403 balancing
test, the trial court should analyze (1) how probative the evidence is; (2) the potential for
the evidence to impress the jury in some irrational way; (3) the time the proponent will
need to develop the evidence; and (4) the proponent‘s need for the evidence, i.e., whether
other evidence is available and whether the fact of consequence is related to a disputed
issue. Montgomery, 810 S.W.2d at 389–90; Isenhower v. State, 261 S.W.3d 168, 177–78
(Tex. App.—Houston [14th Dist.] 2008, no pet.).




                                             6
       Because the trial court is in the best position to decide these admissibility
questions, an appellate court must review a trial court‘s admissibility decision under an
abuse of discretion standard. Robbins, 88 S.W.3d at 259–60 (citing Montgomery, 810
S.W.2d at 391). We uphold a trial court‘s admissibility decision when that decision is
within the zone of reasonable disagreement. Id. at 260. An appellate court misapplies
this standard of review if it reverses a trial court‘s admissibility decision simply because
the appellate court disagrees with it. Id.

       With these standards in mind, we turn to the evidence challenged by appellant on
appeal.

       A.     Alcohol Use and Shaking of Car Seat

       Melissa testified that appellant has had ―a habit of drinking too much‖ and ―a
problem with drinking‖ for ―quite some time.‖ She testified that appellant regularly
would drink beer all day when he was not working, from the time a store opened in the
morning (or whenever he could buy beer) until the late evening. Melissa also testified
about a trip to Galveston that she took with appellant, their daughter Alora, and Lilah.
Melissa explained that appellant had been drinking alcohol before and throughout the
trip, and he seemed intoxicated. Appellant became upset about Melissa‘s past marital
indiscretion during the car ride home, and he began yelling obscenities at Melissa. Lilah
was crying in her car seat, and appellant yelled at Lilah to ―shut up.‖ When Lilah
continued to cry, appellant turned around and shook the car seat ―like he was irritated.‖
Melissa testified that appellant‘s shaking of the car seat ―concerned [her].‖

       Appellant generally objected to this evidence on the grounds that (1) the evidence
shows only bad character or reputation and therefore is prohibited by Rule 404(b); and
(2) the evidence is more prejudicial than probative under Rule 403. The trial court
admitted the evidence, but granted appellant a jury instruction and a running objection.
We address separately each of appellant‘s arguments regarding this evidence.


                                             7
              1.     Shaking of Car Seat

       Rule 404(b). With respect to evidence that appellant shook Lilah‘s car seat,
appellant argues more specifically on appeal that the evidence is not admissible under
Rule 404(b) because appellant ―never argued that he did not mean to shake the
complainant‖ and that ―the prior shaking does not establish that the injuries were not
accidental, only that [appellant] shook the complainant before.‖

       Appellant seems to argue that the questions of intent or accident are not ―issues of
consequence‖ under 404(b) because appellant‘s explanation for Lilah‘s injuries was that
she fell from the couch, not that he accidentally shook her, or shook her without
intending to cause any injury. We disagree that this is a meaningful distinction in this
case. See, e.g., Robbins, 88 S.W.3d at 261–62 (defendant claimed that infant‘s fatal
asphyxiation injuries were caused by defendant‘s improperly performed CPR or,
alternatively, sudden infant death syndrome; admitting evidence of prior injuries suffered
by infant while in appellant‘s care because such evidence was relevant under Rule 404(b)
to show intent or rebut either defensive theory); Prieto v. State, 879 S.W.2d 295, 298
(Tex. App.—Houston [14th Dist.] 1994, pet. ref‘d) (defendant claimed that child‘s burns
and bruises were caused when child fell while giving himself a bath; admitting evidence
showing that on a prior occasion, defendant had yelled at child in abusive manner,
threatened beating, and grabbed child roughly by the arm because such evidence was
relevant to appellant‘s intent under 404(b)); cf. Estelle v. McGuire, 502 U.S. 62, 68–69
(1991) (in context of constitutional challenge to trial court‘s admission of evidence,
noting that evidence of prior injury to child helps prove ―that the child died at the hands
of another and not by falling off a couch, for example; it also tends to establish that the
‗other,‘ whoever it may be, inflicted the injuries intentionally‖); Robbins, 88 S.W.3d
267–68 (Cochran, J., concurring) (discussing ―doctrine of chances‖ and historic case of
Rex v. Smith, 11 Cr. App. R. 229, 84 L.J.K.B. 2153 (1915), in which evidence that
Smith‘s two prior wives were found drowned in bath tubs was held admissible; ―[t]he

                                            8
evidence was not offered to prove that Mr. Smith had a ‗drowning‘ or ‗murderous‘
character trait, but to show that it was more likely that [the third wife] died from a
criminal act [rather than an accident] because two of Mr. Smith‘s other brides had died
under very similar circumstances‖).

        We cannot say that the trial court abused its discretion in deciding that the
evidence was relevant to a ―noncharacter conformity issue of consequence‖ in this case,
such as appellant‘s intent or his defensive theory that Lilah‘s injuries were caused by
falling from the couch while appellant was out of the room. See TEX. R. EVID. 404(b);
Robbins, 88 S.W.3d at 259–60. We overrule appellant‘s issue based on this argument.

        Rule 403. Appellant also argues that even if such evidence is admissible under
404(b), it should have been excluded under Rule 403 because ―it did not resemble the
degree or type of shaking that was alleged was necessary to cause the injuries.‖2 This
argument relates to the probative value of the evidence, which is one of the four factors,
discussed above, that are germane to our analysis under Rule 403. The probative value is
―often, although by no means invariably, a function of the similarity of the extraneous
transaction to the charged offense.‖ Montgomery, 810 S.W.2d at 389–90. We do not
agree with appellant that his shaking of Lilah‘s car seat, while under the influence of
alcohol and having a heated discussion about his relationship with Melissa, is so
dissimilar to weigh in favor of inadmissibility under Rule 403 simply because appellant
did not shake Lilah vigorously enough to cause fatal injury.

        With respect to the remaining Rule 403 factors, we note that (1) it is unlikely that
the jury could have irrationally relied on this evidence to convict appellant for shaking
Lilah‘s car seat, especially when there is no evidence that shaking the car seat injured
Lilah; (2) it took the State very little time to develop this evidence; and (3) there was no
other compelling or undisputed evidence upon which the State could have relied to show
        2
          Appellant also argues that it constitutes evidence of appellant‘s ―drunk temper, which evokes a
strong negative emotional response.‖ We address this argument below in the context of appellant‘s
alcohol use.
                                                   9
that appellant had acted aggressively toward Lilah before.3 See Montgomery, 810 S.W.2d
at 389–90; Isenhower, 261 S.W.3d at 177–78. These factors do not weigh in favor of
finding that the probative value of the evidence is ―substantially outweighed‖ by its
potential for prejudice, and we conclude that the trial court acted within its discretion in
admitting the evidence. See TEX. R. EVID. 403; Robbins, 88 S.W.3d at 259–60. We
overrule appellant‘s issue based on this argument.

                2.      Alcohol Use

        Rule 404(b). With respect to the evidence of appellant‘s habitual alcohol use,
appellant argues on appeal that the evidence is inadmissible under Rule 404(b) because
the State cannot establish its theory that appellant ―was angry and got drunk‖ on the day
of Lilah‘s injury by introducing evidence that appellant ―would wake up and drink in the
morning and until he went to bed.‖

        The State consistently argued that the evidence of appellant‘s drinking habit
established a ―pattern of behavior.‖ This argument fairly raises the application of Texas
Rule of Evidence 406.4 See TEX. R. EVID. 406. Rule 406 states: ―Evidence of the habit
of a person . . . is relevant to prove that the conduct of the person . . . on a particular
occasion was in conformity with the habit . . . .‖ Id. Evidence of habit and character
sometimes appear similar; but while character is a generalized description of a person‘s
        3
          Appellant argues that the State‘s need for this evidence was slight because ―there was testimony
of five experts that said he shook the baby to death,‖ and that Lilah‘s injuries could not have been caused
by falling from the couch. While the expert testimony was compelling, the applicability of the shaken
baby syndrome theory to this case was consistently disputed by appellant at trial. See Montgomery, 810
S.W.2d at 390 (―When the proponent has other compelling or undisputed evidence to establish the
proposition or fact that the extraneous misconduct goes to prove, the misconduct evidence will weigh far
less than it otherwise might in the probative-versus-prejudicial balance.‖).
        4
           Moreover, a trial court‘s evidentiary ruling must be upheld ―if it is correct under any theory of
law that finds support in the record.‖ See, e.g., Gonzalez v. State, 195 S.W.3d 114, 125–26 (Tex. Crim.
App. 2006) (citing McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997), and Romero v. State,
800 S.W.2d 539, 543–44 (Tex. Crim. App. 1990)). This is so even when the State did not raise the
ground for upholding the ruling in the trial court. See, e.g., Rhodes v. State, 945 S.W.2d 115, 118 n.3 &
119 (Tex. Crim. App. 1997) (affirming and noting that court of appeals concluded that trial court‘s denial
of motion to suppress could be affirmed based on same theory of law applicable to case but not argued by
State to trial court).
                                                    10
disposition, habit describes a person‘s regular response to a repeated specific situation.
Reyes v. Mo. Pac. R.R. Co., 589 F.2d 791, 794 (5th Cir. 1979).5 Controlling admissibility
considerations include the adequacy of sampling and uniformity of response. Id. at 795.
―[T]he probative force of habit evidence to prove intoxication on a given occasion
depends on the degree of regularity of the practice and its coincidence with the occasion.‖
Id.; see Haynes v. State, 85 S.W.3d 855, 858–59 (Tex. App.—Waco 2002, pet. ref‘d)
(noting that ―Rule 406 allows for evidence of a ‗habit‘ if relevant, as Haynes‘s drinking
habit was here,‖ but overruling appellant‘s issue regarding admissibility of evidence
showing drinking ―habit‖ because such evidence was admitted elsewhere at trial without
objection).

       Rather than challenging these considerations with respect to Melissa‘s testimony,
appellant argues, without citation to supporting authority, that the trial court erred in
admitting the testimony because the State presented no evidence that appellant was
intoxicated on the day of Lilah‘s injury. Appellant seems to implicitly reference the old
rule that if there is some evidence that a party was intoxicated at the time of the incident
in question, only then may such evidence be corroborated by habit evidence showing that
the party was frequently or habitually drunk. See, e.g., Compton v. Jay, 389 S.W.2d 639,
642 (Tex. 1965); R.T. Herrin Petroleum Transp. Co. v. Proctor, 338 S.W.2d 422, 431
(Tex. 1960); but see TEX. R. EVID. 406 (evidence of habit admissible ―whether
corroborated or not‖); 64 A.L.R. 567 § 28 (4th ed. Supp. 2011) (―The phrase ‗whether
corroborated or not‘ has been held to eliminate prior law requirement that there be
evidence that the person acted in conformity with the habit or routine practice on the
particular occasion in suit.‖).



       5
         Authorities discussing Federal Rule of Evidence 406 are persuasive in our application of the
equivalent Texas rule. See Bishop v. State, 837 S.W.2d 431, 435 (Tex. App.—Beaumont 1992), aff’d,
869 S.W.2d 342 (Tex. Crim. App. 1993) (relying on ―federal case law dealing with an identical provision
in the Federal Rules of Evidence,‖ and noting that the court‘s research ―turned up no Texas cases in
which Rule 406 was significantly discussed‖); compare FED. R. EVID. 406 with TEX. R. EVID. 406.
                                                  11
       Even if appellant‘s argument were relevant under some other applicable theory,
we disagree that there is ―simply no evidence that [appellant] was intoxicated‖ on the day
of Lilah‘s injury.    While there is no direct evidence showing intoxication because
appellant was alone with Lilah, there is circumstantial evidence that appellant was under
the influence of alcohol. Specifically, Irene found a forty-ounce bottle of beer on the
counter when she returned to her apartment on the day Lilah went to the hospital; she
explained that it was ―still up to the top‖ and ―just like a little bit off of it.‖ Irene denied
having any beer in the home when she left for work that morning. Irene testified that
appellant had no money because he was not working at the time, but that she confronted
appellant the same day about money that had gone missing from her bank account after
she had allowed him to use her debit card. Evidence from a neighbor indicates that
appellant left the apartment with Lilah in a stroller at some point during the morning, and
Irene testified that appellant would take Lilah in the stroller when he wanted to go to the
store next to the apartments. Thus, there is evidence that appellant purchased and opened
at least one beer on the day Lilah was injured. We conclude that this evidence brings the
admissibility of appellant‘s drinking ―habit‖ within the zone of reasonable disagreement.
See TEX. R. EVID. 404(b); Robbins, 88 S.W.3d at 259–60. We overrule appellant‘s issue
based on this argument.

       With respect to evidence of appellant‘s angry and aggressive behavior while
discussing his relationship with Melissa under the influence of alcohol, we also conclude
that such evidence was admissible under Rule 404(b) to show, among other things,
appellant‘s intent, state of mind, or motive. Melissa‘s testimony regarding the Galveston
trip demonstrated that appellant acted uncharacteristically angry and aggressive when
discussing the infidelity issue under the influence of alcohol; she testified that she had
never seen him so angry before. Additionally, Melissa testified without objection about
an instance that occurred a few months later when she was lying in bed with appellant,
who had been drinking. Melissa concluded that appellant was asleep and had just closed


                                              12
her own eyes when appellant reached over ―and grabbed for [Melissa‘s] neck‖ and said,
―I don‘t trust you anymore.‖

        The evidence showed that while appellant was caring for Lilah on the day she was
injured, appellant spoke with Melissa and Irene over the phone about getting a divorce
from Melissa. Appellant also spoke with Melissa about whether she would permit him to
see their daughter, Alora; Melissa informed appellant that he could come see Alora at
Melissa‘s home, but she did not want him taking Alora until he had a ―stable place‖ to
live. Melissa testified: ―He got real upset when I told him that. . . . He was angry. He
didn‘t like for anyone to dictate to him when or where he could see Alora.‖ This
evidence, along with admissible evidence showing that appellant may have been under
the influence of alcohol, creates a picture of the circumstances under which appellant was
caring for Lilah.6 We conclude that this evidence brings the admissibility of appellant‘s
behavior while under the influence of alcohol within the zone of reasonable
disagreement. See TEX. R. EVID. 404(b); Robbins, 88 S.W.3d at 259–60. We overrule
appellant‘s issue based on these arguments.

        Rule 403. Appellant argues that even if such evidence is admissible under Rule
404(b), it should have been excluded under Rule 403 because it ―left the indelible
impression that [appellant] was always drunk, even though [Melissa] was often not
around him.‖ Appellant also argues that it constitutes evidence of appellant‘s ―drunk
temper, which evokes a strong negative emotional response.‖7


        6
          Although appellant argues that the evidence of appellant‘s behavior while under the influence of
alcohol is not relevant to prove motive because ―the evidence did not show that Lelah [sic] did anything
that would have caused him to intentionally injure [her] that day,‖ we think the circumstantial evidence
described above is more than sufficient. Additionally, we note that the probative value of this evidence
for permissible Rule 404(b) purposes is enhanced by the fact that appellant lied to a Texas Department of
Family Protective Services investigator, who asked the ―standard question‖ about his use of alcohol that
day. Appellant denied any such use and stated that ―the only mistake he made was by setting [Lilah] on
the couch.‖
        7
         Appellant also argues that ―the extraneous evidence that [appellant] was intoxicated and was
driving was not probative and extremely prejudicial.‖ Melissa did not testify about who drove to
Galveston; she testified that she ―knew [she] had to drive home‖ from Galveston and that she ―was
                                                   13
        The evidence of appellant‘s alcohol use and behavior while under the influence of
alcohol is extremely probative to show, among other things, appellant‘s intent, state of
mind, or motive on the day Lilah suffered injury. This is especially so in light of other
evidence that appellant was a patient caretaker when not under the influence of alcohol or
discussing his troubled relationship with Melissa. Moreover, it is not likely that the jury
irrationally relied on the evidence to convict appellant for having a ―drunk temper,‖
rather than for causing serious bodily injury to a child. Although the State spent a great
deal of time developing the evidence, the State‘s need for such evidence to explain
appellant‘s actions weighs in favor of admissibility. Based on these considerations, we
conclude that the trial court acted within its discretion in admitting the evidence. See
TEX. R. EVID. 403; Robbins, 88 S.W.3d at 259–60; see also Montgomery, 810 S.W.2d at
389–90; Isenhower, 261 S.W.3d at 177–78. We overrule appellant‘s issue based on this
argument.

        B.      Drugs

        Melissa also testified that her grandmother ―found drugs in [appellant‘s] backpack
on more than one occasion.‖              Appellant complains that the trial court erroneously
admitted this evidence over appellant‘s objection. Assuming without deciding that the
admission of such evidence was error, we conclude that appellant was not harmed.

        In conducting a harm analysis for non-constitutional errors, our objective is to
determine whether the admission of the evidence had an effect on appellant‘s substantial
rights. See TEX. R. APP. P. 44.2(b); Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim.
App. 2005) (reviewing erroneous admission of evidence for non-constitutional harm
under Rule 44.2(b)). Pursuant to Texas Rule of Appellate Procedure Rule 44.2(b), any
non-constitutional error that does not affect appellant‘s substantial rights must be
disregarded. Haley, 173 S.W.3d at 518. A substantial right is affected when the error

already driving‖ when the argument occurred. Melissa testified on cross-examination that ―I don‘t recall
if he [shook the car seat] while he was driving . . . or if this was when I was driving.‖ The record does not
reflect that the jury heard any evidence that appellant drove while intoxicated.
                                                    14
had a substantial and injurious effect or influence in determining the jury‘s verdict. Id.
In assessing the likelihood that the jury‘s decision was adversely affected by the error, an
appellate court should consider everything in the record, including (1) any testimony or
physical evidence admitted for the jury‘s consideration; (2) the nature of the evidence
supporting the verdict; (3) the character of the alleged error and how it might be
considered in connection with other evidence in the case; (4) whether the State
emphasized the error; (5) the jury instructions; (6) the parties‘ theories; and (7) jury
arguments and voir dire, if necessary. Id. at 518–19.

       We agree with appellant that the character of the alleged error generally weighs in
favor of finding harm.     See Jackson v. State, 320 S.W.3d 873, 889 (Tex. App.—
Texarkana 2010, no pet.) (―By its very nature, an improperly admitted extraneous offense
tends to be harmful.‖). However, Melissa‘s statement that her grandmother ―found drugs
in [appellant‘s] backpack on more than one occasion‖ was unlikely to distract the jury
from the extensive admissible evidence presented by both parties over the course of
approximately three days. The State presented testimony from fifteen witnesses and
proffered thirty-nine exhibits. The State did not ask any follow-up questions in response
to Melissa‘s statement about the drugs in appellant‘s backpack but instead moved on to
other topics related to the State‘s theory that appellant intentionally injured Lilah while
under the influence of alcohol—not drugs. The State did not emphasize the error or
otherwise raise the issue again in questioning or closing arguments. Having reviewed the
entire record, we conclude that the alleged error did not have a substantial and injurious
effect or influence in determining the jury‘s verdict. See TEX. R. APP. P. 44.2(b); Haley,
173 S.W.3d at 518–19.

       We overrule appellant‘s first issue.

II.    Expert Witness Qualification

       In his second issue, appellant argues that the trial court erred by concluding that
Dr. Brown was qualified to opine that Lilah‘s injuries were consistent with shaken baby
                                              15
syndrome. The State responds that any error in qualifying Dr. Brown to testify about
shaken baby syndrome was harmless.

       A witness is qualified to testify as an expert if the witness has sufficient
background—knowledge, skill, experience, training, or education—in a particular field
that ―goes to the very matter on which the witness is to give an opinion.‖ Vela v. State,
209 S.W.3d 128, 131 (Tex. Crim. App. 2006) (quotation omitted); see also TEX. R. EVID.
702 (testimony of experts). The focus is on the ―fit‖ between the subject matter at issue
and the expert‘s familiarity therewith. Vela, 209 S.W.3d at 133. For example, a licensed
medical doctor may be an expert in a particular field, but the doctor is not automatically
qualified to testify as an expert on every medical question. Id. at 132. The doctor‘s
background must ―fit‖ with the specific issue before the court. See id. at 132–33.

       We review a trial court‘s decision to admit expert testimony for an abuse of
discretion. Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006). A trial court
abuses its discretion when its decision lies outside the zone of reasonable disagreement.
Turner v. State, 252 S.W.3d 571, 584 (Tex. App.—Houston [14th Dist.] 2008, pet. ref‘d)
(citing Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007)). The proponent of
expert testimony bears the burden of proving that the expert is qualified to testify.8 Id.

       The trial court held a hearing outside the jury‘s presence to allow the State an
opportunity to establish Dr. Brown‘s knowledge, skill, experience, training, and
education. Dr. Brown testified that she is a pediatric hematologist, is board certified in
pediatrics and pediatric hematology-oncology, and has fifteen years experience in the
field. She explained that hematology is the study of blood disorders, and she described
the tests that she ran on Lilah‘s blood to determine if Lilah had a blood disorder.

       Appellant objected to Dr. Brown testifying in support of a theory based on shaken
baby syndrome, and the court overruled the objection. Dr. Brown eventually testified in

       8
        The proponent must also prove that the expert‘s testimony is reliable and relevant. See Vela,
209 S.W.3d at 131. Appellant does not challenge the trial court‘s findings on these elements.
                                                 16
front of the jury that Lilah‘s injuries must have been caused by significant blunt force
trauma because Lilah did not have any bleeding disorders that would explain those
injuries. She opined further that Lilah‘s injuries were not consistent with a 2.5-foot fall
from a couch but were consistent with shaken baby syndrome.

       Appellant did not, and does not now, challenge Dr. Brown‘s qualifications to
opine that Lilah did not have a blood disorder, or that this fact meant Lilah‘s injuries
must have been caused by trauma. But the State presented no evidence during the
hearing about Dr. Brown‘s knowledge, skill, experience, training, or education to ―fit‖
the opinion that Lilah‘s injuries were consistent with shaking rather than some other
trauma. Thus, the State failed to meet its burden, and the trial court should have limited
Dr. Brown‘s testimony to the subject matter for which she was qualified—namely,
diagnosing blood disorders and the lack thereof. See, e.g., Croft v. State, 148 S.W.3d
533, 541–42 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (finding no abuse of
discretion when trial court limited expert‘s testimony about a medical device to two
specific topics tailored to expert‘s actual qualifications).

       However, we conclude that the trial court‘s error in admitting Brown‘s testimony
about shaken baby syndrome was harmless. We must disregard a non-constitutional error
that does not affect a substantial right. TEX. R. APP. P. 44.2(b); see Coble v. State, 330
S.W.3d 253, 280 (Tex. Crim. App. 2010) (analyzing erroneous admission of expert
testimony for non-constitutional harm under Rule 44.2(b)).          As we have already
explained, a substantial right is affected when the error had a substantial and injurious
effect or influence in determining the jury‘s verdict. Coble, 330 S.W.3d at 280. 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 analyzing the
erroneous admission of expert testimony, we may consider, among other things: (1) the
strength of the evidence of the appellant‘s guilt; (2) whether the jury heard the same or
substantially similar admissible evidence through another source; (3) the strength or

                                              17
weakness of an expert‘s conclusions, including whether the expert‘s opinion was
effectively refuted; and (4) whether the State directed the jury‘s attention to the expert‘s
testimony during arguments. See id. at 286–88.

       The evidence of appellant‘s guilt was strong, in particular, because four experts
other than Dr. Brown reached the same conclusion: Lilah‘s injuries were caused by
shaking and not a short fall from a couch. Further, Dr. Brown effectively refuted her own
opinion during cross-examination and redirect when she repeatedly testified, ―I don‘t
consider myself an expert in Shaken Baby Syndrome,‖ and ―I‘m not an expert in that
field, no.‖ Finally, in closing argument the State referenced Dr. Brown‘s testimony on
the subject of bleeding disorders only and did not mention her opinion that Lilah‘s
injuries were the result of shaking. Instead, the State specifically identified the other
doctors who reached those conclusions.

       After reviewing the record as a whole, we have a fair assurance that the
improperly admitted evidence did not influence the jury or had but a slight effect upon
the verdict. See Coble, 330 S.W.3d at 280. Thus, we conclude that the error was
harmless.

       We overrule appellant‘s second issue.

III.   Jury Deliberations

       In his third issue, appellant argues that the trial court erred when it granted the
jury‘s request to read back Dr. Kellaway‘s testimony ―about the amount of force required
to inflict the injuries sustained by Lila [sic] Guerrero‖ because ―the jury did not specify
that there was a dispute‖ about the testimony.

       Texas Code of Criminal Procedure article 36.28 states that ―if the jury disagree as
to the statement of any witness they may, upon applying to the court, have read to them
from the court reporter‘s notes that part of such witness testimony or the particular point
in dispute, and no other.‖ TEX. CODE CRIM. PROC. ANN. art. 36.28 (West 2006). When

                                            18
the jury asks for testimony to be read back, the trial court must first determine whether
the jury‘s inquiry is proper. Brown v. State, 870 S.W.2d 53, 55 (Tex. Crim. App. 1994).
―A simple request for testimony does not, by itself, reflect disagreement, implicit or
express‖ and is not a proper request under article 36.28. Howell v. State, 175 S.W.3d
786, 790 (Tex. Crim. App. 2005). But a trial court may infer a disagreement if there is
some basis ―other than mere speculation‖ to support the court‘s finding. Id. at 792; see
also Robison v. State, 888 S.W.2d 473, 481 (Tex. Crim. App. 1994). We review the trial
court‘s conclusion as to whether there is a disagreement for an abuse of discretion.
Howell, 175 S.W.3d at 790.

        Appellant acknowledges in his brief that he objected to the trial court‘s reading of
Dr. Kellaway‘s testimony on the grounds that the jury‘s request was not specific enough.9
However, appellant did not object on the grounds that the jury failed to certify that it was
in dispute about the requested testimony. Accordingly, appellant has failed to preserve
this issue for our review. See TEX. R. APP. P. 33.1; Boatwright v. State, 933 S.W.2d 309,
310–11 (Tex. App.—Houston [14th Dist.] 1996, no pet.) (appellant must preserve error
regarding trial court‘s reading of testimony to jury). We overrule appellant‘s issue based
on this argument.

        Appellant argues briefly on appeal that the trial court erred in reading back Dr.
Kellaway‘s testimony that it would take a ―tremendous force‖ to cause a retinal
hemorrhage in a baby because ―the jury was not specific enough in its request.‖ Neither
appellant‘s issue as stated nor the authorities cited by appellant in support of that issue
concern the question of whether the requests were specific enough; appellant‘s issue and
authorities concern the question of whether the jury was in dispute, an argument we

        9
          Appellant objected that ―we had sent a note back to [the jury] asking them to be more specific as
to the question of force, what they meant by force. We have not received yet from them a specific enough
question as to what they‘re asking about. . . . [T]hey never came back to specify what they meant by
force. So, therefore, until we have a clear question on that, I am objecting to the readback—to the
proposed readback of Dr. Kellaway. . . . My objection continues that the requests are not specific enough
to what is disputed; and second, they have not defined what the amount of force is.‖
                                                    19
already have overruled. Even if we read appellant‘s issue as encompassing an additional
complaint regarding specificity, we do not agree with appellant that the trial court abused
its discretion in concluding that the jury‘s request to hear testimony from Dr. Kellaway
―about the amount of force required to inflict the injuries sustained by Lila [sic]
Guerrero‖ was specific enough. See Howell, 175 S.W.3d at 792 (appellate courts should
not disturb a trial court‘s decision under article 36.28 ―unless a clear abuse of discretion
and harm is shown‖). We overrule appellant‘s issue based on this argument.

        Appellant also argues briefly that the jury‘s lack of specificity resulted in ―harm‖
to appellant because the jury also requested Dr. Simonetta‘s testimony ―about the amount
of force required to inflict the injuries sustained by Lila [sic] Guerrero,‖ but the trial court
failed to read back responsive testimony from Dr. Simonetta.

        After the court reporter searched for testimony responsive to the jury‘s requests,
the parties acknowledged that the court reporter could not find a statement by Dr.
Simonetta regarding ―the amount of force required to inflict the injuries sustained by Lila
[sic] Guerrero.‖ The trial court read back the requested testimony from Dr. Kellaway and
explained: ―Ladies and gentlemen, that‘s all we have for you at this time.‖ In fact, Dr.
Simonetta testified that ―it takes a fair amount of force‖ to cause a subdural
hemorrhage.10 Appellant argues that the failure to read this testimony constitutes a
―comment on the weight of the evidence‖ because Dr. Simonetta‘s testimony was
―contrary‖ to Dr. Kellaway‘s testimony that it would take a ―tremendous force‖ to cause
a retinal hemorrhage in a baby.

        Aside from arguing that this failure is the ―harm‖ attributable to the jury‘s lack of
specificity in its request, appellant does not complain on appeal that the trial court erred
in reading back some but not all the testimony responsive to the jury‘s requests, nor does

        10
            Defense counsel explained to the trial court: ―In reference to Dr. Simonetta, my recollection is
that he said it was an unknown amount of force. If that is there, then I think that has to be read back to
the jury if we are allowing the readback of Dr. Kellaway. . . . I believe he said it was an unknown force.‖
The trial court noted, ―[Y]ou are the only one that remembers that.‖
                                                    20
he cite to authority regarding such a complaint. Even if we read appellant‘s brief as
raising this issue, we conclude that any alleged error did not harm appellant.

       After concluding that a jury‘s request is proper, a trial court must interpret the
communication, decide what testimony will best answer the inquiry, and limit the reading
accordingly. Brown, 870 S.W.2d at 55; Fox v. State, 283 S.W.3d 85, 89 (Tex. App.—
Houston [14th Dist.] 2009, pet. ref‘d). If the court limits the reading to some but not all
of the testimony that is responsive to the jury‘s request, and the reading is a harmful
comment on the evidence, we must reverse. See Fox, 283 S.W.3d at 90–91 (holding that
trial court erred by reading back some but not all testimony responsive to jury‘s request,
and that error was harmful); Megason v. State, 19 S.W.3d 883, 889–90 (Tex. App.—
Texarkana 2000, pet. ref‘d) (holding that trial court erred by reading back some but not
all testimony responsive to jury‘s request, but reading was not harmful because omitted
testimony ―would not be of significance in the outcome of the case‖); see also Robison,
888 S.W.2d at 480 (noting that one concern in answering jury questions is that trial court
will comment on evidence). We review a trial court‘s determination about the scope of
the testimony read to the jury for an abuse of discretion. Brown, 870 S.W.2d at 55; Fox,
283 S.W.3d at 89.

       Assuming without deciding that the trial court erred, we must disregard this non-
constitutional error if we have a fair assurance after reviewing the record that the error
did not influence the jury or had but a slight effect upon the verdict. See TEX. R. APP. P.
44.2(b); Fox, 283 S.W.3d at 91 (analyzing error of reading back some but not all
responsive testimony for non-constitutional harm under Rule 44.2(b)). In Fox, the jury
requested a reading of the direct examination of the complaining witness‘s description of
the crime. Id. at 89. The defendant requested that the cross-examination testimony on
the same subject be read as well, but the trial court only ordered the direct examination
testimony read to the jury. Id. at 90. This court found error and reasoned that the error
was harmful because (1) the testimony during cross-examination contradicted the same

                                            21
witness‘s testimony during direct examination; and (2) the witness‘s testimony was
highly probative of the defendant‘s guilt, and therefore the witness‘s credibility was vital
to the jury‘s decision. Id. at 91.

       Dr. Simonetta testified about the amount of force necessary to cause a subdural
hemorrhage while Dr. Kellaway testified about the force necessary to cause a retinal
hemorrhage.     Thus, we disagree with appellant that Dr. Simonetta‘s testimony was
―contrary‖ to Dr. Kellaway‘s testimony. Dr. Kellaway‘s conclusion that Lilah‘s retinal
hemorrhage was caused by ―tremendous force‖ would not have been undercut by Dr.
Simonetta‘s testimony that the subdural hemorrhage was caused by ―a fair amount of
force.‖ After reviewing the entire record, we have a fair assurance that the error did not
influence the jury or had but a slight effect. See Fox, 283 S.W.3d at 90–91. We overrule
appellant‘s issue based on this argument.

       Accordingly, we overrule appellant‘s third issue.

                                      CONCLUSION

       Having overruled all of appellant‘s issues, we affirm the trial court‘s judgment.




                                            /s/    Sharon McCally
                                                   Justice



Panel consists of Justices Brown, Boyce, and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b).




                                              22
