                                   NUMBER 13-07-00532-CR

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


MISAEL GONZALEZ,                                                                              Appellant,

                                                      v.

THE STATE OF TEXAS,                                                                            Appellee.


                       On appeal from the 275th District Court
                             of Hidalgo County, Texas.


                               MEMORANDUM OPINION

      Before Chief Justice Valdez and Justices Rodriguez and Vela
              Memorandum Opinion by Justice Rodriguez

        A jury found appellant Misael Gonzalez guilty of capital murder.1 See TEX . PENAL

CODE ANN . § 19.03(a)(8) (Vernon Supp. 2010) (providing that a person commits capital

        1
          Gonzalez was indicted on one count of capital m urder, one count of m urder, and one count of injury
to a child. See T EX . P EN AL C OD E A N N . §§ 19.02(b)(1) (Vernon 2003), 19.03(a)(8) (Vernon Supp. 2010),
22.04(a) (Vernon Supp. 2010). Because the m urder allegation was subm itted to the jury as a lesser-included
offense of capital m urder, the m urder count was dism issed. Although the jury found Gonzalez guilty of injury
to a child in addition to capital m urder, the State dism issed the injury to a child count because of double
jeopardy concerns.
murder if he murders an individual under six years of age). Because the State did not seek

the death penalty, an automatic life sentence without the possibility of parole was imposed.

See id. § 12.31(a) (Vernon Supp. 2010). By two issues, Gonzalez contends that the trial

court erred (1) in admitting evidence not previously disclosed by the State in violation of

a discovery order, and (2) in denying his request for a mistrial when a comment made by

the prosecutor allegedly shifted the burden of proof to the defense. We affirm.

                                              I. BACKGROUND 2

        Gonzalez provided conflicting accounts of the events that occurred on January 1,

2006. In a statement given to investigators, Gonzalez said that he was alone with his five-

month-old son, when the child began crying.3 Gonzalez explained that, in an attempt to

stop the crying, he dropped the child to the floor three times. After the third time, the child

stopped breathing. According to his statement, Gonzalez shook the child to get him to start

breathing.4 At trial, however, Gonzalez testified that the child was in his swing inhaling but

not exhaling. According to his testimony, Gonzalez picked the child up and shook him, but

he did not respond. As reflected in Gonzalez's statement and in his trial testimony,

Gonzalez was taking the child to get help when Yajayra Hernandez, the child's mother and

Gonzalez's girlfriend, returned to the apartment, having been gone for approximately ten

minutes. After Hernandez arrived at the apartment, Gonzalez, Hernandez, and Gonzalez's

        2
           Because this is a m em orandum opinion and the parties are fam iliar with the facts, we will not recite
them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See
T EX . R. A PP . P. 47.4.

        3
        Gonzalez's statem ent was adm itted at trial. The jury was instructed that it should consider
Gonzalez's statem ent only if it believed, beyond a reasonable doubt, that Gonzalez m ade it voluntarily.
Gonzalez does not challenge the voluntariness of his statem ent on appeal.

        4
          Gonzalez testified that investigators added inform ation to his statem ent that he did not say, including
his com m ents about dropping the child. He agreed that he told the investigators that he shook the child when
he stopped breathing.

                                                        2
aunt took the child to a fire station and from there he was transported to a hospital by

ambulance. Finally, both Gonzalez and Hernandez testified that the child had fallen a

number of times: once, in October, from his car seat; a second time from or in the kitchen

sink; and, a third time on Christmas Eve.

        Vincent Vann, Jr., M.D., a physician specializing in ophthalmology and retina

surgery, and Krishna Turlapati, M.D., a pediatric intensive care specialist, testified at trial.

Both treated the child upon his admission to the hospital on January 1, 2006, and both

concluded that the child's symptoms and their findings were consistent with Shaken Baby

Syndrome. Pathologist Fulgencio Salinas, M.D., performed the autopsy on the child. He

testified that the child's injuries were consistent with blunt force or impact trauma and that,

based on subdural hemorrhaging of his brain, a hematoma on the right side of the brain,

and three skull fractures, the cause of the child's death was Shaken Baby Impact

Syndrome.

        James Lukefahr, M.D., a pediatrician and medical school professor, testified as the

State's expert. Based on his review of the child's medical records, witness statements,

autopsy report, and the summary of the Child Protective Service's investigation, Dr.

Lukefahr concluded that the child had been the victim of inflicted, non-accidental injuries;

that the injuries consisted of head injuries, eye injuries, skeletal injuries, and fractures

including bending rib fractures; and that the injuries had all occurred around the same time

on January 1, 2006.5          According to Dr. Lukefahr, the January 1st determination is


        5
          Dr. Lukefahr agreed that there was a discrepancy between the autopsy report that identified rib
fractures and the radiology report that reported no rib fractures. Dr. Lukefahr explained that he had looked
at the x-rays under m agnification and found the hard-to-see bending fractures noted in the autopsy report.
He also identified an acute injury to the area between the lining of the lungs and the rib cage. According to
Dr. Lukefahr, these injuries could not have occurred around Christm as and could not have been caused by
perform ing CPR on the child.

                                                     3
consistent with the finding of fresh blood between the skull and the brain. In Dr. Lukefahr's

opinion, the child had experienced "blunt force trauma and rotational trauma over a very

short period of time." He testified that "[t]here was clearly impact injury to this baby, and

there was clearly rotational trauma . . . [with] the head . . . moving very quickly in multiple

directions to get the subdural bleeding and the retinal hemorrhages." Dr. Lukefahr also

explained that the retinal hemorrhages, a significant factor supporting his conclusion that

the child had suffered inflicted, non-accidental trauma, could have only come from

rotational trauma involving shaking, jerking, or twisting the baby's head. During cross-

examination, Dr. Lukefahr agreed that the ambulance report and hospital emergency room

records did not mention any external injuries and that there were no injuries to the child's

neck.

        James Keith Rose, M.D., testified as a medical expert for the defense.6 He

reviewed, among other things, the child's medical records, including reports, films, and

CDs, the autopsy report, and the transcript of Dr. Lukefahr's trial testimony. In Dr. Rose's

opinion, the child's death resulted from anoxia caused by Sudden Infant Death Syndrome

(SIDS). Among other things, Dr. Rose believed that: (1) the child's skull fractures were

caused by a fall that had nothing to do with his death; (2) the hematoma occurred more

than twenty-four to forty-eight hours earlier; and (3) whatever happened had already

resolved externally and was resolving internally. While retinal hemorrhages can be the

result of shaking a child, Dr. Rose opined that, in this case, they had been caused by



        6
          Dr. Rose, a practicing physician, testified that he went to medical school at the University of Texas
Medical Branch and trained in the areas of em ergency m edicine, general surgery, plastic surgery, and
pediatric plastic and critical care.

                                                      4
aggressive resuscitation, DIC (disseminated or diffuse intravascular coagulation), and intra-

cranial pressure. Dr. Rose further explained that a swollen brain can be caused by anoxia,

which was the diagnosis (anoxic encephalopathy) given the child when he was admitted

to Mission Hospital and when he was transferred to McAllen Medical Center. Dr. Rose did

not agree with Dr. Lukefahr's opinion that the swelling of the child's brain was caused by

blunt force trauma, explaining that if blunt force trauma had been the cause, there would

have been "blood everywhere" and the trauma would have caused swelling that would

have pushed the brain down through the bottom of the skull compressing the brain stem

and causing the child to stop breathing. In Dr. Rose's opinion, this did not happen. Rather,

the child had diffuse, symmetrical, consistent brain swelling caused by anoxia. Dr. Rose

also explained that if the swelling was caused by trauma there would also have been neck

injuries, and the child, in this case, had no neck injuries, as acknowledged by Dr. Lukefahr.

       The State called Norma Farley, M.D., a forensic pathologist, as a rebuttal witness.

Having reviewed the medical records and autopsy photographs and having heard Dr.

Rose's testimony, Dr. Farley testified that, in her opinion, the child's brain injuries were not

consistent with SIDS. Rather, in Dr. Farley's opinion, the child's injuries were from inflicted

trauma because there were at least three skull fractures and retinal hemorrhaging; retinal

folds are usually the result of significant trauma; Dr. Vann had noted left facial hematomas

on his external exam; and the radiologist had found multiple fractures of the occipital bone

in the back of the head and non-displaced fractures of the left forearm. Dr. Farley did not

agree with Dr. Rose's determination that the fractures were from an earlier fall because,

in her opinion, whatever happened to the child happened on January 1, 2006.



                                               5
                                               II. DISCUSSION

                              A. Admission of Undisclosed Exhibits

        In his first issue, Gonzalez contends that the trial court erred in admitting exhibits

not previously disclosed by the State.

                           1. Standard of Review and Applicable Law

        When reviewing a trial judge's decision to admit or exclude evidence, an
        appellate court must determine whether the judge's decision was an abuse
        of discretion. . . . And when the trial judge fails to enter written or oral
        findings of fact, an appellate court will "view the evidence in the light most
        favorable to the trial court's ruling and assume that the trial court made
        implicit findings of fact that support its ruling as long as those findings are
        supported by the record."

Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006) (quoting State v. Ross, 32

S.W.3d 853, 855 (Tex. Crim. App. 2000) (en banc)) (other citations omitted).

        Gonzalez's appellate contentions are challenges to (1) the trial court's implied

finding that the State did not violate the discovery order willfully, and (2) its failure to find

harm.7 See Hall v. State, 283 S.W.3d 137, 165 (Tex. App.–Austin 2009, pet. ref'd) (op. on

reh'g) (citing Cooks v. State, 844 S.W.2d 697, 734 n.32 (Tex. Crim. App. 1992); Oprean

v. State (Oprean II), 238 S.W.3d 412, 415 (Tex. App.–Houston [1st Dist.] 2007, pet. ref'd)

(op. on remand)). We accordingly evaluate the record support for those findings.



        7
          At the evidentiary hearing, Gonzalez challenged the content of the exhibits, objecting that the exhibits
contained hearsay, were duplicitous, repetitive, and irrelevant, and provided sum m ation inform ation. All
objections were overruled, and Gonzalez does not com plain about these rulings on appeal. See id. at R. 47.1.
Gonzalez does com plain that the im ages were im properly enhanced or m anipulated. He did not, however,
object on that basis during the hearing or when he re-urged objections at trial. Therefore, Gonzalez has not
preserved this aspect of the substantive inadm issibility of the exhibits for our review. See id. at R. 33.1a
(setting out that when an appellate com plaint fails to com port with the trial objection, nothing is preserved for
review); see also Hall v. State, 283 S.W .3d 137, 165 (Tex. App.–Austin 2009, pet. ref'd) (citing Cooks v. State,
844 S.W .2d 697, 734 n.32 (Tex. Crim . App. 1992); Oprean v. State (Oprean II), 238 S.W .3d 412, 415 (Tex.
App.–Houston [1st Dist.] 2007, pet. ref'd) (op. on rem and)).

                                                        6
       "Evidence willfully withheld from disclosure under a discovery order should be

excluded . . . ." Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978).

Therefore, the relevant inquiry is whether the prosecutor acted with specific intent to

willfully disobey a discovery order when she failed to disclose evidence as ordered. See

Oprean, 201 S.W.3d at 727; Walker v. State, No. 01-08-00557-CR, 2009 Tex. App. LEXIS

8347, at **7-12 (Tex. App.–Houston [1st Dist.] Oct. 29, 2009, pet. dism'd, untimely filed)

(designated for publication). When discussing whether a prosecutor acted willfully, the

court of criminal appeals has considered the following: (1) whether the prosecutor

intended to harm the defense; (2) whether the prosecutor's actions were a strategic and

purposeful effort to thwart the defense's preparation of its case; (3) whether the prosecutor

acted with a specific purpose or conscious decision to disobey the court's discovery order;

(4) whether the prosecutor's explanation for violating the discovery order was valid; and (5)

whether the prosecutor discovered or received the evidence at a time or in a manner such

that compliance with the terms of the discovery order was impossible. Oprean, 201

S.W.3d at 727-28 (citing LaRue v. State, 152 S.W.3d 95, 96-99 (Tex. Crim. App. 2004) (en

banc)); Walker, 2009 Tex. App. LEXIS 8347, at **8-9.

       If it is determined that the prosecutor acted willfully and the trial court erroneously

admitted the complained-of exhibits, harm must be shown to require reversal. See Cooks,

844 S.W.2d at 734 n.31 (citing Hollowell, 571 S.W.2d at 180). In this case, the harm we

consider is that caused by the State's failure, if any, to disclose the exhibits as required by

the discovery order. See id. at 734 n.32. "In so doing, we take into consideration the




                                              7
intended purpose of the discovery order: to prevent surprise and to permit appellant to

prepare an adequate defense." Oprean II, 238 S.W.3d at 415.

                        2. Willful Violation of the Discovery Order

       During a pre-trial hearing regarding, among other things, the logistics of providing

trial exhibits, the trial court ruled that if either expert "print[ed] something out of [the CD]

that [he] intend[ed] to use at trial, then [counsel] need[ed] to show it to [o]pposing [c]ounsel

and get his or her initials on that exhibit at least . . . 7 days before trial. Unless that's going

to be a problem." The State argued in favor of the order, expressing a concern that the

defense, during its case-in-chief, might produce exhibits that contained manipulated

information such as printed changes in the format of a CD. The trial court indicated that

it did not "want any surprises by either side or attorneys from either side claiming that

they're surprised that they hadn't been shown those exhibits that [were] being tendered."

It did not "want to have to deal with the issue of surprise by either side as to exhibits that

[were] going to be used by the experts." Defense then suggested that if the exhibits came

in after that seven-day deadline, counsel would approach the court for a ruling, because

it would be likely that it would not be a surprise. In response, the trial court commented

that it "may be inclined to deny the admission of any exhibits . . . unless there's a good

cause." Before jury selection, the trial court again ordered that "[counsel] meet and

exchange any exhibits that [they] plan[ned] to offer so that nobody w[ould] be surprised."

       At trial, exact duplicates of the child's electronic radiology records, including films

and radiology reports, were admitted as State exhibits 59A-61C through the testimony of

Carlos Pena, assistant director of the radiology department at McAllen Medical Center. In

addition, the child's digital radiology records, produced as CDs, were admitted as State

                                                8
Exhibit 65 and described as "CT scan." A companion exhibit, labeled State Exhibit 64, was

also admitted. This exhibit was described as "System pack [or PACS] download."8 Omar

Cantu, the storekeeper of digital imaging for the medical facility, testified that no alterations

or changes had been made to the child's records when they were transferred from the

mainframe system at the medical center to the CDs.9 These exhibits were admitted without

objection.

        On the day Dr. Lukefahr was called to testify, the State provided Gonzalez with eight

additional exhibits prepared by Dr. Lukefahr from the child's radiology records.10 In

preparing these materials, Dr. Lukefahr enlarged some record images, changed the

brightness or contrast levels of others, and added descriptive words or arrows to some

images. It is undisputed that the State did not provide these newly prepared materials to

Gonzalez prior to trial as required by the trial court's pretrial discovery order.

        At a hearing on this matter, the prosecutor explained that she had not provided the

new exhibits to Gonzalez earlier because Dr. Lukefahr had prepared them the night before

he was to testify and had given them to her that morning. While recognizing that at least


        8
          Neither party disputes that the CDs containing im ages of the January 2, 2006 CT scan were adm itted
into evidence. Two CDs are included in the record. They are labeled only by the trial cause num ber and style,
and we are unable to determ ine their content. However, because no specific issues are raised regarding the
im ages on the CDs, we decline to address this m atter further. See T EX . R. A PP . P. 47.1. W e also note that
other exhibits adm itted at trial are not included in the reporter's record filed with this Court or are grouped
together, for exam ple, as "photos." Because neither party com plains of m issing or m islabeled exhibits, we
conclude that the record is com plete, as acknowledged by the actions of the parties, and any m issing or
m islabeled exhibits are not necessary to the resolution of this appeal. See id. at R. 34.6(f).

        9
         The evidence reveals that both Gonzalez and the State had access to the CDs, as well as to the filing
system . There were also discussions on the record showing that both sides were aware of the com plexity of
opening the records, reviewing them , and producing copies of the im ages from the records.

        10
          These new m aterials were later adm itted as State exhibits 98a, 99, 100a, 101a, 102a, 103a, 104a,
and 105a, These sam e exhibits appear to be described in the index of the reporter's record as printouts of
exhibits 98, 102, 103, 104, and 105 and are referred to as such in the record.

                                                       9
one of the exhibits had been manipulated in some fashion and others had arrows or words

added, the prosecutor also advised the trial court that the images from which Dr. Lukefahr

prepared the new exhibits had been previously admitted. The record also establishes that,

prior to trial, defense counsel had the radiology records or had access to the records, as

did Gonzalez's medical expert.

       Gonzalez's objection of "utter surprise" was overruled. Gonzalez then "request[ed]

a continuance [of at least a week] to allow an opportunity to have [his] expert . . . review

this material." Cf. Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982) ("The

failure to request a postponement or seek a continuance waives any error urged in an

appeal on the basis of surprise."). The trial court denied the request and also denied

Gonzalez's motion for mistrial.

       Nothing in the record indicates that the prosecutor knew the complained-of exhibits

existed and that she willfully concealed the exhibits from defense counsel until trial was

underway. The State brought the exhibits to the attention of defense counsel the morning

they were received. Although Gonzalez argues that the prosecutor must have known that

the exhibits were forthcoming, except for the prosecutor's comment at the pretrial hearing

that potential manipulation of the records was a concern of hers, there is nothing in the

record to support this contention. The prosecutor informed the trial court that defense

counsel had knowledge of the substance of the exhibits because the radiology records had

been admitted as trial exhibits, without objection. The State also disclosed the radiology

records to Gonzalez prior to trial, pursuant to the discovery order, and the new exhibits

were portions of those previously-produced records.



                                            10
       Based on the above, we conclude that the prosecutor did not act willfully. The

prosecutor's actions were not consistent with an intent to harm the defense, with a strategic

and purposeful effort to thwart the defense's preparation of its case, or with a specific

purpose or conscious decision to disobey the court's discovery order. See Oprean, 201

S.W.3d at 727-28. The prosecutor's explanation for violating the discovery order was valid;

the prosecutor received the new exhibits—produced from exhibits that had already been

admitted at trial and reviewed by Gonzalez's expert—at a time such that compliance with

the terms of the discovery order was impossible. See id. The trial court's implicit finding

that the prosecutor did not willfully withhold the exhibits is supported by the record, and

thus, the trial court did not abuse its discretion in overruling Gonzalez's objection and

admitting the exhibits. See id. at 726.

                                           3. Harm

       Even if the trial court erroneously admitted the complained-of exhibits, Gonzalez

must show harm based on surprise or on his inability to prepare an adequate defense

because of the State's discovery order violation. See Cooks, 844 S.W.2d at 734 n.31;

Oprean II, 238 S.W.3d at 415. We conclude that he has not.

                                          a. Surprise

       Gonzalez asserts that he was harmed because he was surprised. However, prior

to trial, the State disclosed the child's radiology records, and Gonzalez's expert had access

to those records. The records were also admitted into evidence at trial, without objection,

on May 10, 2006, and Dr. Lukefahr did not began testifying until May 16, 2006. Therefore,




                                              11
defense counsel had knowledge of the substance of the exhibits through the earlier-

produced records.

       Furthermore, Dr. Lukefahr discussed each newly produced exhibit in conjunction

with the electronic or digital image from which it was taken. For example, Dr. Lukefahr

explained that he had changed the brightness and contrast on one exhibit to make the

fracture lines more visible. He testified that he added arrows to other images for quick

reference in order to illustrate particular aspects of the exhibit. Throughout his testimony,

Dr. Lukefahr emphasized certain portions of the earlier-admitted records to illustrate the

basis for his conclusion that the child had died from Shaken Baby Syndrome. We cannot

conclude that the prosecutor's actions unfairly surprised Gonzalez.

                     b. Opportunity to Prepare a Proper Defense

       Gonzalez also argues that he was harmed by the State's violation of the discovery

order because he was not permitted to prepare a proper defense. Also, citing to the

concurrence in Oprean, Gonzalez complains that his due process right to adequate notice

was denied because "[t]he images were sprung approximately nine days into the trial in the

State's case-in-chief. When ruled admissible, defense counsel's attempts for some form

of postponement to prepare were denied." See Oprean, 201 S.W.3d at 729 (Cochran, J.,

concurring).

       However, after the State concluded its examination of Dr. Lukefahr, the trial court

recessed for lunch providing time for Gonzalez to review the exhibits in preparation of his

cross-examination of the doctor. When the afternoon session began, Gonzalez asked Dr.

Lukefahr questions regarding "certain images that [he] personally found significant in this

case," including the printouts of State exhibits 98 (skull image printout), 101 (rib x-ray


                                             12
printout), and 102 (rib x-ray printout)—images Dr. Lukefahr used during the State's direct

examination.

       Importantly, Dr. Lukefahr's testimony concluded on May 16, 2007, and Dr. Rose was

not called to testify until May 22, 2007, six days later. Before testifying, Dr. Rose reviewed

the child's medical records, including reports, films, and CDs. He also reviewed the

exhibits used by Dr. Lukefahr, as well as the transcript of Dr. Lukefahr's testimony related

to those exhibits, and offered his opinion on both at trial. Defense counsel utilized some

of the complained-of exhibits during the examination of his expert. And, through his

testimony, Dr. Rose compared the medical records with Dr. Lukefahr's testimony,

highlighted discrepancies and weaknesses, and provided his interpretation of images

prepared by Dr. Lukefahr. Finally, Dr. Rose discussed images he himself had printed from

the CDs, noting that each contained the following caution: "WARNING! THE QUALITY

OF THIS IMAGE PRINTOUT MAY NOT BE ADEQUATE. IT SHOULD THEREFORE NOT

BE USED FOR DIAGNOSTIC PURPOSES." Dr. Rose testified that the warning was

necessary because a printed image may have "some artifact [from the printer], . . . some

distortion . . . [that] is just not there" on the image. Based on this printed warning and Dr.

Rose's testimony, Gonzalez was able to raise some inferences at trial regarding the validity

of exhibits printed from the electronic and digital radiology reports and used by Dr.

Lukefahr to support his conclusions.

       In summary, the trial court recessed for lunch after the State finished its direct

examination of Dr. Lukefahr. This recess provided defense counsel an opportunity to view

the newly produced images and to prepare a defensive strategy before he cross-examined

Dr. Lukefahr. After lunch, the defense questioned Dr. Lukefahr about the new exhibits.


                                             13
Six days later, Dr. Rose testified. Dr. Rose's testimony addressed concerns the defense

had about Dr. Lukefahr's exhibits and the conclusions they supported. It is apparent that

Gonzalez had the opportunity to prepare an adequate defense. See Oprean II, 238

S.W.3d at 415.

        Gonzalez's concerns about his due process right to adequate notice are also

unfounded. See Oprean, 201 S.W.3d at 729 (Cochran, J., concurring). Here, although the

trial court immediately denied Gonzalez's motion to continue the trial, during the lunch

recess Gonzalez had an opportunity to review the exhibits and prepare his defense. This

recess, coupled with the fact that Dr. Rose did not testify until six days later, protected

Gonzalez's due process right to adequate notice. See id.

        We conclude that Gonzalez was not surprised and was permitted to prepare an

adequate defense. Thus, the intended purpose of the discovery order was satisfied, see

Oprean II, 238 S.W.3d at 415, and his due process rights were satisfied. See Oprean, 201

S.W.3d at 729 (Cochran, J., concurring). Gonzalez was, therefore, not harmed by the

State's failure, if any, to disclose the exhibits. See Cooks, 844 S.W.2d at 734 n.32.

        Accordingly, we overrule Gonzalez's first issue.

              B. Prosecutor's Statement Regarding Paramedics Testifying

        By his second issue, Gonzalez argues that the trial court erred in denying his

request for a mistrial. Gonzalez contends that while the prosecutor's comment may have

been an attempt to discredit one of the State's exhibits, it instead impermissibly shifted the

burden of proof to Gonzalez to prove his defensive theory.11 We disagree.


       11
         The State responds that its com m ent was proper because "the State is allowed to com m ent on a
defendant's failure to produce testim ony from sources other than him self or herself." The State's argum ent
on appeal is prem ised on a line of cases that address whether a statem ent is an im proper com m ent on a

                                                    14
                          1. Standard of Review and Applicable Law

        An appellate court reviews a trial court's ruling on a motion for mistrial . . .
        using an abuse-of-discretion standard of review. We view the evidence in
        the light most favorable to the trial court's ruling and uphold the trial court's
        ruling if it was within the zone of reasonable disagreement. We do not
        substitute our judgment for that of the trial court, but rather we decide
        whether the trial court's decision was arbitrary or unreasonable. Thus, a trial
        court abuses its discretion in denying a motion [for mistrial] only when no
        reasonable view of the record could support the trial court's ruling.

Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).

        The State has the burden to prove the elements of the offense beyond a reasonable

doubt. See TEX . PENAL CODE ANN . § 2.01 (Vernon 2003) ("All persons are presumed to be

innocent and no person may be convicted of an offense unless each element of the

offense is proved beyond a reasonable doubt."). And, "[t]he defendant in a criminal trial

should be allowed to argue any defensive theory supported by the evidence admitted at

trial." Arnold v. State, 68 S.W.3d 93, 102 (Tex. App.–Dallas 2001, pet. ref'd) (citing Brown

v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997) (en banc) (discussing jury

instructions available on affirmative defenses)). However, when a defendant raises a

defensive theory, the State's burden of proof does not change; the defensive theory merely

casts doubt upon whether the State has met its burden. See Walters v. State, 247 S.W.3d

204, 209-10 (Tex. Crim. App. 2007) (discussing the burden of proof with regard to an alibi

and concluding that a special instruction on this defensive theory would constitute an

unwarranted comment on the weight of the evidence). In other words, although the State



defendant's failure to testify. See Jackson v. State, 17 S.W .3d 664, 674 (Tex. Crim . App. 2000); Patrick v.
State, 906 S.W .2d 481, 491 (Tex. Crim . App. 1995) (en banc); Livingston v. State, 739 S.W .2d 311, 338 (Tex.
Crim . App. 1987); Caron v. State, 162 S.W .3d 614, 618 (Tex. App.–Houston [14th Dist.] 2005, no pet.).
However, Gonzalez does not contend that the State's rem ark was a com m ent on his failure to testify; instead,
he argues that the State's com m ent im properly shifted the burden of proof to him . Accordingly, we focus our
analysis on whether the State attem pted to shift its burden to Gonzalez.

                                                     15
has no burden of production of evidence on a defensive issue, once a defense is raised

the State has the burden to persuade the jury with respect to that issue. Allen v. State, 253

S.W.3d 260, 267 n.24 (Tex. Crim. App. 2008).

       Also, error in admitting improper evidence, or, in this case, an improper comment,

is generally cured by an instruction to disregard, with the only exception to this rule being

extreme cases where it appears that the comment was clearly calculated to inflame the

minds of the jurors and is of such a character as to suggest the impossibility of withdrawing

the impression produced on their minds. See Thrift v. State, 176 S.W.3d 221, 224, n.10

(Tex. Crim. App. 2005). It is also presumed that jurors follow judicial instruction. See id.

                                  2. Shifting of Burden

       Gonzalez cross-examined Dr. Turlapati about State's Exhibit 67, a Med-Care

Ambulance report, when the following exchange occurred:

       Q.     This is State's Exhibit No. 67. This is a Med-Care report, Med-Care
              Ambulance. . . . Would you agree with that?

       A.     Yes, I do.

              ....

       Q.     [W]hen the Med-Care Ambulance arrived, the chief complaint was
              cardiac arrest and the child had not been breathing for 15 minutes?

       A.     Yes.

       Q.     And at that time they indicate here: Patient in cardiac arrest?

       A.     Yes.

              ....

       Q.     [On page 2 at the very bottom], we again have the front and back view
              of the body?


                                             16
A.   Yes.

Q.   And there's no indication on either of those of any sort of physical
     injury?

A.   Yes.

Q.   Yes, there is not?

A.   There is no indication.

     ....

Q.   Now Doctor, let[']s go back to the same exhibit. Patient not breathing
     for 15 minutes. But let's go up here to the top, incident date, January
     1st. Time arrived on the scene. You see that, 1350?

A.   Yes.

Q.   That's 1:50 P[.]M[.]?

A.   Yes.

Q.   So at 1:50 P[.]M[.] we know the child had no physical markings on his
     body. We know the child—

     [The State]: I will object to the—I will object to the
                  mischaracterization of the evidence. There is no
                  indication on the record—this doesn't necessarily
                  mean there are no physical markings. There is
                  a different—

     The Court:    Sustained.

     [The State]: If he wants to call in the paramedics to say that,
                  fine.

     [Defense]:    I will object to the State shifting the burden of
                   proof in front of the jury. I ask that the—

     The Court:    Sustained.

     [Defense]:    I ask that the jury disregard the last comment.


                                   17
              The Court:    Jury is instructed to disregard the last comment
                            made.

              [Defense]:    While I appreciate the court's instruction, we
                            would ask for a mistrial.

              The Court:    Denied.

        According to Gonzalez, part of his defense was that the child had no external

injuries when the paramedics attempted to care for him and that the injuries noted later

resulted from efforts to revive him. Gonzalez claims that he cited to the State's own exhibit

as proof that the child's injuries were not obtained until after he was taken into medical

care.

        Here, Gonzalez's defensive theory concerning when the child's injuries occurred

involved an element of the offense—that he intentionally and knowingly caused the child's

death. See TEX . PENAL CODE ANN . §§ 19.02(b)(1) (Vernon 2003), 19.03(a)(8). The State

had no burden of proof beyond its initial burden to prove the elements of the offense

beyond a reasonable doubt, see id. § 2.01, and we cannot conclude that the prosecutor's

comment was an attempt to shift that burden.

        Gonzalez complains of only one comment about the defense's ability to present

evidence and its failure to do so. The record reveals that, prior to making that comment,

the State objected to defense counsel's characterization of the ambulance report as

evidence that "the child had no physical markings on his body" as of 1:50 p.m. on January

1st. It is clear that the objection was made because Dr. Turlapati testified only that there

was "no indication" in the report of "any sort of physical injury." The trial court sustained

the State's objection. Immediately thereafter, the State commented that "[i]f [Gonzalez]

wants to call in the paramedics to say [there were no physical markings], fine." The State

                                             18
did not comment that Gonzalez had the burden to prove, through its defensive theory, that

he did not intentionally and knowingly cause the child's death. The State merely pointed

out that Gonzalez could clarify that matter by calling the paramedics. While Gonzalez

could argue any defensive theory supported by the evidence admitted at trial, see Arnold,

68 S.W.3d at 102, the State had no burden to produce evidence on Gonzalez's defensive

issue. See Allen, 253 S.W.3d at 267 n.24. The State only had the burden to persuade the

jury with respect to that issue. See id. Thus, we conclude that the prosecutor's comment

did not shift any burden of proof in this case.

       Nonetheless, even were we to conclude otherwise, the trial court sustained

Gonzalez's objection, granted his request for an instruction to disregard, and did, in fact,

instruct the jury to disregard the prosecutor's remark before it denied Gonzalez's request

for a mistrial. Based on our review, the prosecutor's remark, even if deemed error, was not

so inflammatory that its impression could not be withdrawn by the trial court's instruction

to disregard. See Thrift, 176 S.W.3d at 224, n.10. Presuming that the jurors in this case

followed the trial court's instruction to disregard, we conclude that the instruction was

sufficient to cure error, if any, caused by the challenged comment. See id.

       Therefore, viewing the evidence in the light most favorable to the trial court's ruling,

we conclude that the trial court's denial of Gonzalez's motion for mistrial was within the

zone of reasonable disagreement. See Webb, 232 S.W.3d at 112. The trial court's

decision was neither arbitrary nor unreasonable and was, therefore, not an abuse of

discretion. See id. Accordingly, we overrule Gonzalez's second issue.




                                             19
                                     III. CONCLUSION

       The judgment of the trial court is affirmed.


                                                       NELDA V. RODRIGUEZ
                                                       Justice

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

Delivered and filed the 21st
day of October, 2010.




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