      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00719-CR



                                    Michael Ord, Appellant

                                                 v.

                                  The State of Texas, Appellee



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
      NO. D-1-DC-09-300565, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Michael Ord guilty of intentionally or knowingly

causing serious bodily injury to a child and assessed punishment at fifteen years’ imprisonment. See

Tex. Penal Code Ann. § 22.04(a)(1), (e) (West Supp. 2010). In two points of error, appellant

contends that the trial court reversibly erred by admitting evidence of an extraneous offense and

by excluding evidence relevant to appellant’s mental state. We overrule these contentions and

affirm the conviction.

               On March 4, 2009, appellant was living in an Austin apartment with Vanessa Livesay

and her two-year-old son, C.R. To save the cost of day care, appellant stayed home that day to watch

C.R. while Livesay went to work. It was undisputed that C.R. was in normal good health when

Livesay left the apartment that morning.
                  At about 11:15 a.m., Livesay returned to the apartment on her lunch break. When

she arrived, the front door was locked and she could hear appellant shouting at C.R. to “stand up.”

Appellant opened the door in response to Livesay’s knock. C.R. was sitting on the floor in the

hallway, crying and naked. Appellant told Livesay that he was angry with C.R. because the boy had

torn up his diaper. Livesay saw the torn diaper on the floor. Livesay picked up C.R. and took him

to the bedroom to put on a fresh diaper. After doing this, she told C.R. to come with her to the

living room, but the boy would not move. It was then that Livesay noticed that C.R.’s right leg

was swollen. She also saw blood on C.R.’s face and on his shirt, and a blood stain would later be

found on the carpet. When Livesay picked up C.R. a second time, she noticed a “clicking” noise in

his leg. Immediately thereafter, appellant and Livesay took C.R. to the emergency room at

Brackenridge Hospital.

                  An X-ray at the emergency room disclosed that C.R.’s leg was broken, and

the child was transferred to Dell Children’s Hospital for treatment. The treating physician was

Dr. Jay Shapiro, a pediatric orthopedic surgeon. Shapiro testified that C.R. had a spiral fracture of

his right femur. He said that the femur is the largest bone in the body and that significant force, such

as that produced in an automobile accident, is required to cause such an injury. The doctor answered

affirmatively when asked if a reasonable person would know that such force was likely to cause a

serious injury.

                  When first questioned at the hospital, appellant said that he had been in the kitchen

preparing lunch when he heard a thud in the living room. He ran to the living room and found that

C.R. had fallen out of a chair. He picked the child up, but the boy was unable to stand and again fell



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to the floor, causing his nose to bleed. Appellant later changed his story. He told investigators that

he and C.R. had been roughhousing: appellant was lifting the child and throwing him on the bed.

At one point, C.R. fell to the floor, got up, and then fell to the floor again. In his trial testimony,

appellant admitted that these early statements were untruthful.

               Appellant testified that on the day in question, he was heating food for lunch when

C.R. entered the kitchen and reached for the burner on the stove. Appellant said that C.R. knew

better than to do this because the child had burned his thumb on the stove a few days earlier.

Appellant slapped the child’s hand and ordered him out of the kitchen. Shortly thereafter, appellant

heard C.R. playing with “DVD’s and stuff” in the living room. When appellant admonished him

and took the television remote control from his hand, C.R. slapped appellant on the leg. Appellant

testified that this angered him. He continued, “I grabbed him by his leg, his right leg and his

right—left arm and I picked him up. I was going to set him on the bed, and when I picked him up,

he twisted his body in my hands like he was trying to get away and started to fall backwards.”

Appellant testified, “I jerked him (indicating) back upright and, I mean, he started crying at that

point.” Appellant said he did not know at the time whether C.R.’s feelings were hurt or if the child

was actually injured. Appellant acknowledged that he had “lost it” and that he had tossed C.R. onto

the bed “pretty roughly.”

               Appellant testified that as he was leaving the bedroom, he turned and saw C.R. tearing

up his diaper. This also angered appellant, and he responded by removing the diaper and spanking

C.R. “harder than it needed to be.” This, said appellant, explained the red handprint on C.R.’s

buttock that had been observed at the hospital. Appellant testified that when he released C.R. after



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spanking him, the boy fell to the floor and bloodied his nose. Appellant was still angry and thought

that C.R. was just being difficult. It was at this point, as he was shouting at C.R. to stand up, that

Livesay returned to the apartment for lunch.

               Appellant testified that he had no idea that C.R.’s leg was broken until they were

told at the hospital. Appellant acknowledged that he had been frustrated and angry and that he

was responsible for C.R.’s injuries, but he insisted that he did not intend to hurt C.R. Appellant also

testified that he did not know that the manner in which he had handled the boy was reasonably

certain to cause serious bodily injury.

               In his first point of error, appellant contends that the trial court erred by admitting

testimony implying that he had intentionally burned C.R.’s thumb a few days before the incident

for which he was on trial. The testimony at issue was adduced by the State during its questioning

of Livesay:


               Q. About a week prior to the 4th of March that we’ve been talking about, did
       [C.R.] sustain an injury?

               A. Yes.

               Q. Were you present in the room when he sustained the injury?

               A. No.

               Q. Who was present in the room when he sustained the injury?

               A. Michael was.

               Q. And tell the jury what part of [C.R.’s] body was injured.

               A. His finger. I believe it was his thumb.



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       ...

       Q. And what type of injury was it?

       A. It was a burn.

       Q. Was [C.R.] able to explain what happened?

       A. No.

       Q. Did Michael explain what happened?

       A. Yes.

       Q. What did Michael claim had happened?

       A. [C.R.] had reached up and accidentally touched the burner with his finger.

       Q. And you keep saying finger. Is it the thumb or a finger?

       A. With his thumb.

        Q. With his thumb. And you told defense counsel that you had never seen
an injury—or Michael hurt [C.R.], but you didn’t see the injury on the 4th either,
correct?

       A. I didn’t notice anything was there, no.

       Q. But you didn’t see what he had done?

       A. No.

       Q. He just told you what he had done?

       A. Yes.

       Q. You didn’t see that one either, right?

       A. No.




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                Before permitting the State to offer this testimony, the trial court considered its

admissibility at a hearing outside the jury’s presence. Defense counsel objected that the testimony

had no relevance other than character conformity and that any proper relevance it might have

was outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403, 404(b). Counsel further

objected that “there’s been no evidence put forth . . . to show that Michael Ord caused this injury and

certainly no evidence that he knowingly or intentionally caused the injury.” Counsel asserted that

the testimony “would invite the jury to speculate about this extraneous act, this extraneous event, and

speculate that perhaps he had caused it, perhaps he had knowingly or intentionally caused it, and then

use that evidence to decide whether or not he had knowingly or intentionally caused the injuries that

are alleged in this case.” The State replied that the testimony “goes to show that . . . this child seems

to only be injured when he is in the defendant’s care; and that this goes to the intent, to show the

intent on . . . the 4th, these other acts and these other things that have happened with this child.”

                Responding to these arguments, the court said, “Maybe I’m looking at it a little

differently than the two of you, because I don’t necessarily view it as a bad act or an extraneous act.”

The court continued, “I mean, it’s not unthinkable that a two- or three-year-old would touch a burner

when they are standing there by you. I don’t necessarily see it as [an] indication that he was guilty

of this offense because this incident occurred.” The court announced that it would nevertheless

allow the challenged testimony to “prove the nature of their contact within a recent time to the

events.” The court added, “So I find the evidence to be relevant and it does expand upon the nature

of the relationship between the two [appellant and C.R.], so I find it probative to both sides, one way

or another, that would be left for you-all to convince the jury of which of you is correct.”



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                The decision to admit or exclude evidence is committed to the trial court’s discretion,

and its decision should not be disturbed on appeal absent a clear abuse of that discretion.

Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1991) (op. on reh’g). Even if error in

the admission of evidence is shown, the error must be disregarded unless the defendant’s substantial

rights were affected. Tex. R. App. P. 44.2(b). We will not reverse a conviction for nonconstitutional

error if, after examining the record as a whole, we have fair assurance that the error did not influence

the jury or had only a slight influence. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001).

                Appellant notes that his mental state was the only contested issue at the guilt stage

of the trial. Citing his own testimony, appellant urges that neither his conduct nor the circumstances

surrounding that conduct support an inference that he intentionally or knowingly injured C.R. on the

day in question. Thus, appellant argues that there is a strong probability that the burn incident caused

the jury to find that he acted intentionally or knowingly, rather than with criminal negligence.

Appellant’s argument assumes the truth of his testimony, which the jury was not required to believe,

and overlooks the testimony of the treating physician. Shapiro testified to the large amount of force

required to produce a spiral fracture of the femur. He also testified that a reasonable person would

know that the force required to produce such a fracture was likely to cause serious injury, an

inference the jury reasonably could have drawn even in the absence of the doctor’s testimony.

Appellant’s argument also fails to account for the blood found on C.R.’s shirt and on the carpet.

                Moreover, the evidence concerning the burn incident was not particularly compelling

or prejudicial. In response to questions by defense counsel, Livesay described the injury to C.R.’s

thumb as “very small, very minor.” A photograph of C.R.’s thumb taken at the hospital and admitted



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in evidence tends to confirm this. Although the State called several medical witnesses, none of

them testified that the burn was a significant injury or that it appeared to have been deliberately

inflicted. And as the trial court observed, it was not improbable that a two-year-old child would

reach up and touch a hot burner or hot pot on a stove. In fact, the only reference to the burn after

Livesay testified was in appellant’s own testimony, when he recounted the incident to explain why

he had slapped C.R.’s hand when the boy again reached for the stove. The burn was not mentioned

during closing arguments.

               Having reviewed the record, we have a fair assurance that the admission of Livesay’s

testimony describing the burn on C.R.’s thumb, if error, did not affect appellant’s substantial rights.

Given the severity of the injury to C.R.’s leg, we conclude that the evidence regarding the relatively

insignificant burn on his thumb had little or no influence on the jury’s finding that appellant acted

knowingly or intentionally. Point of error one is overruled.

               In point of error two, appellant contends that the trial court erred by excluding

defensive testimony relevant to his culpable mental state. The witness in question was his mother,

Nancy Dean. She testified that when appellant was six years old, he was diagnosed with attention

deficit hyperactivity disorder. Dean, a registered nurse, said that appellant was successfully treated

with prescription medication until adolescence, when the drugs stopped having an effect. When

defense counsel sought to question Dean further about this subject, the State objected that “the

ADHD has [no] relevance to whether or not [appellant] injured this child intentionally.” Asked to

explain the relevance, defense counsel replied, “It has to do with his ability to process information.”

The court responded, “That would be at a different phase of the trial,” and sustained the State’s

objection.

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               Error cannot be predicated on a ruling that excludes evidence unless a substantial

right of the party is affected and the substance of the evidence was made known to the court by

offer of proof or was apparent from the context. Tex. R. Evid. 103(a)(2). An offer of proof may be

made in question and answer form or by a concise statement by counsel. Mays v. State, 285 S.W.3d

884, 889 (Tex. Crim. App. 2009). If in statement form, the proffer must include a reasonably

specific summary of the evidence and explain its relevance, unless that is otherwise apparent. Id.

at 889-90. In this case, appellant did not ask to make an offer of proof in question and answer form,

and his only statement to the court was that the proffered testimony “has to do with his ability to

process information.”

               The defendant in Mays, like appellant, complained on appeal that he was denied the

opportunity to offer evidence that he was incapable of forming the required culpable mental state.

Id. at 886. The only offer of proof was defense counsel’s statement to the court, “[T]he evidence in

this case, were we allowed to present it, would show that because of mental and medical impairment,

the defendant lacked, at the time of the alleged commission of this crime, the ability to form the

requisites of the mental state required of intentional and knowing.” Id. at 891. The court of criminal

appeals held that “this sort of summary, in the most general and cursory terms, without any of the

meat of the actual evidence, will not suffice to preserve error.” Id.

               Appellant’s statement to the trial court in the cause before us was even less

informative than the statement held insufficient to preserve error in Mays. Even if appellant’s

ability to “process information” was relevant to appellant’s defense, we have no basis in the record

for determining whether Dean’s testimony actually “[had] to do with” that subject or whether the



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exclusion of her testimony prejudiced the defense. See id. We conclude that appellant failed to

preserve this contention for review. Point of error two is overruled.

               The judgment of conviction is affirmed.




                                             ___________________________________________

                                             J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed

Filed: December 1, 2010

Do Not Publish




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