Opinion issued January 28, 2014.




                                        In The

                                Court of Appeals
                                       For The

                            First District of Texas
                             ————————————
                                NO. 01-12-00925-CR
                              ———————————
                     EFRIAN SERGIO SANCHEZ, Appellant
                                          V.
                         THE STATE OF TEXAS, Appellee


                      On Appeal from the 184th District Court
                              Harris County, Texas
                          Trial Court Case No. 1295538


                            MEMORANDUM OPINION
        A jury convicted Efrian Sergio Sanchez of reckless injury to his five-week-

old daughter, assessed punishment at 20 years’ imprisonment, and imposed a

$10,000 fine.1 In two issues, Sanchez contends (1) the evidence was insufficient to


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    TEX. PENAL CODE ANN. § 22.04(a) (West Supp. 2013).
support the jury’s verdict and (2) the trial court erred by admitting extraneous

evidence of Sanchez’s prior bad acts. We affirm.

                                  Background

      Sanchez and his wife, J. Covey, have three children. Covey had just put their

five-week-old daughter, E.S., down for a nap when Sanchez came home from

work. While Covey was in the shower, E.S. woke up and began to cry. Sanchez

tried to quiet her, but she continued to cry. Sanchez took E.S. into a bedroom and

locked the door because he worried one of the other children would open the door

and bother him. Sanchez tried to feed E.S.; she would not take a bottle and

continued to cry. According to Sanchez, he grew frustrated, “blanked out,” and

started shaking E.S. When E.S. continued to cry, Sanchez shook her harder.

      When Covey got out of the shower, she tried to open the bedroom door to

check on E.S., but Sanchez did not immediately open the door. When she finally

entered the bedroom, she saw E.S. gasping for air. Covey could not feel any air

coming out of E.S.’s nose. According to Covey, Sanchez said that E.S. was trying

to sleep and not to worry about it. Covey ran to get her father who lived in the

same apartment complex. Covey and her father immediately took E.S. to Bayshore

Medical Center. Sanchez did not go to the hospital.

      Bayshore Medical Center doctors assessed E.S.’s condition and decided to

transfer her by helicopter to Clear Lake Regional Medical Center. E.S. was having

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seizures when she arrived at Clear Lake. Dr. Malkani described her condition as

critical and observed that the soft spot on the top of her head bulged abnormally,

indicating increased pressure in her brain. A CAT scan showed a subdural

hematoma (bleeding inside the brain) on both sides. Dr. Malkani diagnosed E.S.

with shaken baby syndrome, a condition caused by severe shaking of a child that

results in ruptured blood vessels in the brain. Because of the acute nature of E.S.’s

bleeding, Dr. Malkani transferred her by helicopter to Memorial Hermann

Children’s Hospital for evaluation by a pediatric neurosurgeon.

      At Memorial Hermann, doctors surgically drained some of the fluid from

E.S.’s brain to control her seizures. After reviewing the Bayshore records, Dr.

Girardet, E.S.’s treating physician at Memorial Hermann, testified that E.S. was in

critical condition when she arrived at Bayshore and might have died if Covey had

not immediately taken E.S. to the emergency room. Both Dr. Girardet and Dr.

Malkani ruled out all other potential causes of E.S.’s injuries and concluded that

severe shaking had caused permanent brain damage.

      The jury found Sanchez guilty of reckless injury to a child. This appeal

followed.




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                              Sufficiency of the Evidence

      In his first issue, Sanchez contends that the evidence is insufficient to

support the jury’s verdict because the State failed to prove that Sanchez caused

E.S. serious bodily injury.

A.    Standard of review

      We review the legal and factual sufficiency of the evidence under a single

standard. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see

Ervin v. State, 331 S.W.3d 49, 52–54 (Tex. App.—Houston [1st Dist.] 2010, pet.

ref’d). Evidence is insufficient to support a conviction if, considering all the record

evidence in the light most favorable to the verdict, no rational fact finder could

have found each essential element of the charged offense was proven beyond a

reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Laster v. State,

275 S.W.3d 512, 517 (Tex. Crim. App. 2009). Evidence is insufficient under this

standard when (1) the record contains no evidence, or merely a “modicum” of

evidence, probative of an element of the offense, or (2) the evidence conclusively

establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 320, 99 S. Ct. at

2786, 2789; see also Laster, 275 S.W.3d at 518.

      We presume that the fact finder resolved any conflicts in the evidence in

favor of the verdict and defer to that resolution, provided that the resolution is

rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton v. State, 235


                                          4
S.W.3d 772, 778 (Tex. Crim. App. 2007). We treat direct and circumstantial

evidence in the same way: they are equally probative in establishing the guilt of an

actor and circumstantial evidence alone can be sufficient. Clayton, 235 S.W.3d at

778; see also Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006)

(holding “cumulative force” of all circumstantial evidence can be sufficient to

support guilty verdict).

B.    There was sufficient evidence of serious bodily injury

      Sanchez argues that there was insufficient evidence that, by shaking E.S., he

inflicted serious bodily injury to her. The State points to expert medical testimony

emphasizing E.S.’s critical condition and the lasting effects of her injury.

      A person commits the offense of injury to a child if he “intentionally,

knowingly, recklessly, or with criminal negligence” causes serious bodily injury to

a child. TEX. PENAL CODE ANN. § 22.04(a) (West Supp. 2013). Serious bodily

injury is defined as an “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.” TEX. PENAL CODE ANN. § 1.07(a)(46)

(West Supp. 2013). To show protracted loss of a bodily member or organ, the

injuries must be “continuing . . . lingering . . . long-drawn . . . never-ending,

ongoing . . . [or] prolonged.” Moore v. State, 739 S.W.2d 347, 352 (Tex. Crim.

App. 1987).


                                          5
      When considering the sufficiency of evidence to establish a serious bodily

injury, we consider the injury “‘as it was inflicted, not after the effects had been

ameliorated or exacerbated by other actions such as medical treatment.’” Stuhler v.

State, 218 S.W.3d 706, 715 (Tex. Crim. App. 2007) (holding that only minor

dysfunction with “no serious long-term ramifications” did not meet statutory

requirements for serious bodily injury); cf. Bearnth v. State, 361 S.W.3d 135, 141

(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (upholding felony-murder

conviction based on evidence of bruises from being beaten and skull fracture

caused by blunt force trauma to head).

      1.     Substantial risk of death

      Serious bodily injury includes “bodily injury that creates a substantial risk of

death.” See Id. Whether there was a substantial risk of death turns upon the

likelihood the injury inflicted would result in death, regardless of what could have

occurred if the injury were left untreated. See Stuhler, 218 S.W.3d at 715. Rather

than examining what could have occurred, a court should examine what likely

“would” have occurred “absent medical intervention.” Id. at 715.

      According to Dr. Malkani, a pediatric intensive care physician at Clear Lake

Regional Medical Center, E.S.’s condition was so critical that she could not be

treated at a community hospital. E.S. was barely able to breathe on her own,

requiring doctors to insert a breathing tube in her throat and put her on a ventilator.


                                          6
Her condition was so severe that she was twice transferred by helicopter to receive

more advanced emergency care. After reviewing CAT scan images, Dr. Malkani

described the bleeding in E.S.’s brain as “acute onchronic” meaning that the injury

causing the bleeding had occurred no more than a few hours before E.S. arrived at

the hospital. Clear Lake doctors observed that the “soft spot” on her skull was

swollen and bulging and that she was having seizures. Dr. Malkani testified that

the pressure caused by the bleeding was so severe that E.S. needed to be

transferred quickly to be examined by a pediatric neurosurgeon.

      Dr. Malkani and Dr. Girardet both testified that E.S. suffered from shaken

baby syndrome—intentional violent force that can cause death. Dr. Malkani and

Dr. Girardet explained that the force of the shaking ruptured blood vessels in her

brain, allowing blood to pool on both sides of her brain, created a subdural

hematoma, and caused seizures. Unable to control E.S.’s seizures and continued

brain swelling, a Memorial Hermann neurosurgeon put two “burr holes” in the top

of her head to drain fluid from her brain. This procedure aimed to control E.S.’s

seizures and relieve pressure on her brain. Dr. Girardet, the treating doctor at

Bayshore, testified that if E.S. had not been given immediate medical treatment,

she risked death.

      Based on this evidence, a rational jury could find that E.S.’s injuries caused

a substantial risk of death.

                                         7
      2.     Protracted loss of function

      Because E.S.’s injuries are on-going, there is also sufficient evidence that

she suffered protracted loss of brain function. See TEX. PENAL CODE ANN. §

1.07(a)(46) (defining serious bodily injury as “protracted loss or impairment of the

function of any bodily member or organ”); Moore, 739 S.W.2d at 352 (loss of a

bodily member or organ is “protracted” when it is “continuing . . . never-ending

[or] ongoing.”); see also Gonzales v. State, 191 S.W.3d 741, 753 (Tex. App.—

Waco 2006, pet. ref’d) (holding that testimony that injury caused risk of brain

damage was sufficient to meet § 1.07(a)(46) definition).

      Dr. Girardet testified that when Sanchez shook E.S., parts of her brain tissue

ruptured and died. E.S.’s doctors explained that dead brain tissue does not

regenerate. Dr. Malkani compared shaken baby syndrome injuries to injuries from

a stroke—once damage to the brain has occurred, the damage is irreversible.

      After the incident, E.S. was placed in foster care. According to E.S.’s foster

mother, E.S.’s injuries caused developmental delays and require that she be treated

with anti-seizure medication for the rest of her life. She also testified that E.S. is

weak in her extremities, must use a leg brace on her right leg to walk, and has

differing levels of strength in her right and left arms. In order to develop muscle

strength and ensure that her condition does not regress, E.S. attends physical and

occupational therapies. Based on testimony that E.S.’s damage is irreversible and


                                           8
permanent, there was sufficient evidence from which a jury could conclude that

E.S.’s injuries were permanent. See Moore, 739 S.W.2d at 352.

       Based on evidence that E.S.’s injuries created a substantial risk of death and

are protracted and ongoing, we conclude that a rational jury could likewise find

that Sanchez caused serious bodily injury to E.S. See TEX. PENAL CODE ANN. §§

1.07(a)(46), 22.04; Garcia v. Sate, 16 S.W.3d 401, 405 (Tex. App.—El Paso 2000,

pet. ref’d).

       We overrule Sanchez’s first issue.

                              Admission of Evidence

       In his second issue, Sanchez argues that the trial court improperly admitted

evidence of (1) a prior incident of putting a blanket into E.S.’s mouth to quiet her

and (2) his prior marijuana use.

A.     Standard of review

       We review a trial court’s evidentiary rulings for an abuse of discretion.

Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006); Walker v. State,

321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d). We will

uphold a trial court’s decision unless it falls outside the “zone of reasonable

disagreement.” Oprean, 201 S.W.3d at 726; Walker, 321 S.W.3d at 22. In cases

involving injury to a child, evidence of a defendant’s other relevant bad acts may

be admitted to show: “(1) the state of mind of the defendant and the child; and (2)


                                            9
the previous and subsequent relationship between the defendant and the child.”

TEX. CRIM. PROC. CODE ANN. art. 38.37 (West Supp. 2013).

B.    No abuse of discretion by admitting evidence of prior bad act

      Covey testified that days before E.S. went to the hospital, Covey found E.S.

with the tip of a blanket in her mouth. Sanchez testified that he put the blanket tip

into E.S.’s mouth so that she would not wake her older sister if she cried. Sanchez

argues that the trial court abused its discretion by admitting evidence of this prior

bad act. The State responds that it was admissible because it showed Sanchez’s

mental state and the character of his relationship with E.S. We agree.

      Specifically, Sanchez contends the evidence was inadmissible under Rule

403.2 Admissible evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice.” Id. When determining whether the

prejudice of admitting evidence substantially outweighs the probative value, we

consider (1) the probative value of evidence, (2) the potential the evidence has to

impress the jury in some irrational but indelible way, (3) the time during trial

required to develop evidence, and (4) the State’s need for the extraneous evidence.

State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005); see also Smith v.

State, 355 S.W.3d 138, 153–54 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).

2
      In one sentence, Sanchez also cites Texas Rule of Evidence 404(b) to support his
      contention that the trial court erroneously admitted such evidence. But, Sanchez
      waived this argument because he neither raised this objection at trial nor discussed
      it in his brief. See TEX. R. EVID. 404(b).
                                           10
A trial court has broad discretion to determine whether evidence is admissible. See

Montgomery v. State, 810 S.W.2d 372, 386, 390 (Tex. Crim. App. 1990). When the

trial court weighs the probativeness and prejudice, there is a presumption of

admissibility. Feldman v. State, 71 S.W.3d 738, 754–55 (Tex. Crim. App. 2002).

      1.     Blanket incident was relevant

      To be admissible, the incident must be relevant. TEX. R. EVID. 401. Sanchez

argues that the blanket tip episode was not relevant because he was not on trial “for

the insert.” The State contends evidence that Sanchez previously put a blanket tip

into E.S.’s mouth to quiet her cries is relevant to the issue of his intent to harm E.S.

See TEX. CRIM. PROC. CODE ANN. art. 38.37; see Prescott v. State 123 S.W.3d 506,

515 (Tex. App.—San Antonio 2003, no pet.) (upholding conviction for reckless

injury to child and determining evidence admissible that defendant recklessly let

children wander unsupervised). Evidence of the blanket incident was also relevant

to demonstrate Sanchez’s relationship with E.S. and his inability to properly deal

with her when she cried. See Burke v. State, 371 S.W.3d 252, 257–58 (Tex. App.—

Houston [1st Dist.] 2011, pet dism’d w.o.j.) (holding that evidence of defendant’s

previous molestations of complainant was probative of relationship between

defendant and complainant). Because this case involved injury to a child, we

conclude that evidence of Sanchez’s state of mind and previous relationship with

E.S. was relevant. See TEX. CRIM. PROC. CODE ANN. art. 38.37.


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      2.     Probative value outweighs unfair prejudice

      We next turn to whether the probative value of this evidence is substantially

outweighed by the danger it would have an unfairly prejudicial effect upon the

jury. See Feldman, 71 S.W.3d at 754–55.

      Under the first Mechler factor for determining admissibility under Rule 403,

the probativeness of the evidence favors the State. The evidence is probative of

Sanchez’s conduct toward E.S., the nature of their past relationship, his mental

state, and his treatment of her. See Mechler, 153 S.W.3d at 440; see Keller v. State,

818 S.W.2d 425, 429 (Tex. App.—Houston [1st Dist.] 1991, pet. ref’d).

      The second factor—the potential the evidence has to impress the jury in

some irrational but indelible way—also favors the State. The incident was not

violent. The evidence further established Sanchez’s state of mind when he

committed the charged offense and did not prejudicially distract the jury. See Price

v. State, 351 S.W.3d 148, 153–154 (Tex. App.—Fort Worth 2011. pet. ref’d)

(admitting extraneous evidence of defendant’s previous robberies did not distract

jury from charged offenses).

      The third Mechler factor, the time spent in developing the evidence, also

favors the State. The State spent relatively little time developing the evidence

regarding the blanket incident. See Mechler, 153 S.W.3d at 441 (favoring

admissibility when developing evidence “would not require an undue amount of


                                         12
time.”). Sanchez provided a brief explanation of his thought processes when he

decided to put the blanket into E.S.’s mouth; however, he was not asked to provide

additional details. Id.

      The last Mechler factor focuses on the State’s need for the evidence. The

State had to prove Sanchez’s mental state. See TEX. PENAL CODE ANN. § 22.04

(requiring proof that injury to child was done “intentionally, knowingly, recklessly,

or with criminal negligence.”). To prove intent, the State may rely upon

circumstantial evidence, including evidence of other relevant bad acts. See TEX.

CRIM. PROC. CODE ANN. art 38.37 (noting admissible evidence in cases involving

injury to child); see also Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App.

2004) (“Intent may also be inferred from circumstantial evidence such as acts,

words, and the conduct of the appellant.”). This factor also favors the State.

       In conclusion, the blanket tip evidence was probative, with little danger that

it would impress on the jury in some irrational way, took little time to develop, and

the State relied on the evidence to show Sanchez’s state of mind and his previous

relationship with E.S. See Mechler, 153 S.W.3d at 440. The danger of prejudicial

impact was minimal and did not substantially outweigh the probative value of the

evidence. We conclude the trial court did not abuse its discretion in admitting

testimony of the blanket incident.




                                         13
C.    Sanchez did not preserve error regarding his prior drug use

      Sanchez also argues that the trial court abused its discretion by admitting

evidence of his prior marijuana use.

      To preserve a complaint for appellate review, a party must make a timely

request, objection, or motion with sufficient specificity to apprise the trial court of

the complaint and to afford the trial court an opportunity to rule on the objection.

TEX. R. APP. P. 33.1(a); see Saldano v. State, 70 S.W.3d 873, 886–87 (Tex. Crim.

App. 2002); Pipkin v. State, 329 S.W.3d 65, 69 (Tex. App.—Houston [14th Dist.]

2010, pet ref’d). Requiring a party to make a complaint to the trial court with a

specific and timely objection, request, or motion as a prerequisite for appellate

review ensures that the trial court will have an opportunity to prevent or correct

errors. Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006); Pipkin,

329 S.W.3d at 69. Failure to do so results in waiver of the complaint on appeal.

Gillenwaters, 205 S.W.3d at 537; Pipkin, 329 S.W.3d at 69.

      Before Covey testified, the trial court admitted without objection medical

records collected by a hospital social worker in which Sanchez reported using

marijuana. When Covey was about to testify, however, Sanchez’s attorney

requested a limiting instruction to preclude the State from asking questions about

Sanchez’s marijuana use. The trial court denied his request for a limiting

instruction. On direct examination by the State, Covey testified that Sanchez used


                                          14
marijuana on a weekly basis. Sanchez later testified that he did use marijuana but

not on the day of the incident.

      By failing to object to the admission of the medical records and Dr.

Girardet’s testimony revealing Sanchez’s marijuana use, Sanchez waived his right

to challenge the admissibility of this evidence on appeal. See Leday v. State, 983

S.W.2d 713, 718 (Tex. Crim. App. 1998) (“. . . [O]verruling an objection to

evidence will not result in reversal when other such evidence was received without

objection, either before or after the complained-of ruling.”).

      Accordingly, we hold that the trial court did not abuse its discretion by

admitting evidence of Sanchez’s prior bad acts.

      We overrule Sanchez’s second issue.

                                     Conclusion

      We affirm.




                                                Harvey Brown
                                                Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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