      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00115-CR



                                 Dedra Lorine Reyes, Appellant

                                                 v.

                                  The State of Texas, Appellee



      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
         NO. CR-04-476, HONORABLE WILLIAM HENRY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Dedra Lorine Reyes pleaded guilty to knowingly causing serious bodily

injury to a child. See Tex. Penal Code Ann. § 22.04(a)(1), (e) (West Supp. 2008). The trial court

accepted the plea and, after a three-day punishment hearing, adjudged appellant guilty and imposed

a twenty-seven-year prison sentence. In five issues, appellant contends that the trial court erred by

refusing her request to withdraw her guilty plea, permitting the State to suggest that appellant had

injured a second child (her own daughter), excluding evidence regarding the state of the victim’s

parent’s marriage, allowing the State to cross-examine appellant’s mother regarding the contents of

a psychological examination, and admitting in evidence a medical article on shaken-baby syndrome.

We will affirm the conviction.

               The injured child was Gabriella Morris. Gabriella was born on December 1, 2003,

the fourth child of Jody and Felipa Morris. Gabriella had some health issues at birth due to Felipa’s
gestational diabetes, but the evidence reflects that she was, generally speaking, a normal, healthy

infant. In the spring of 2004, the Morrises arranged for appellant to babysit Gabriella two days a

week. Appellant was herself the mother of a daughter, Serenity Cruz, born May 1, 2002.

               Felipa left Gabriella with appellant on the morning of May 4, 2004, as she had

been doing twice a week for about a month. That afternoon, emergency medical technicians were

dispatched to appellant’s residence in response to a report that a child was not breathing. They

found Gabriella in distress. The child was first taken to the emergency room in San Marcos, then

transferred to Children’s Hospital in Austin. The medical testimony was that Gabriella had injuries

commonly seen in shaken babies: bilateral retinal hemorrhages, subdural hematomas, and traumatic

ischemic brain injury. Gabriella survived, but she was left with serious visual and developmental

impairments for which she will need long-term medical, speech, and physical therapy.

               Although appellant pleaded guilty, she testified at the punishment hearing that she did

not shake or otherwise injure Gabriella. According to appellant, Gabriella was asleep when Felipa

brought her that morning. Appellant said that this was unusual, that the child was usually awake

when she arrived. According to appellant, Gabriella awoke at about 11:00 a.m. Appellant gave her

a bottle, but she vomited and then fell back asleep. Appellant testified that when she next checked

on Gabriella, the child “looked lifeless” and did not appear to be breathing.


Guilty Plea

               The State’s original indictment alleged that appellant intentionally and knowingly

caused serious bodily injury to Gabriella Morris “by violently shaking her.” The indictment was

later amended to allege that appellant knowingly caused Gabriella serious bodily injury by shaking

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her with her hands, striking her with or against an unknown object, and failing to adequately

supervise her. The amended indictment also alleged that appellant used her hands or an object

unknown as a deadly weapon

               On September 25, 2006, appellant appeared with counsel, waived her right to trial

by jury, and entered an unbargained plea of guilty to the amended indictment. In response to

questions from the court, appellant stated that she had no hesitation in pleading guilty and was doing

so because she was, in fact, guilty. Appellant told the court that she understood that there was no

plea bargain and that the range of punishment was five years to life in prison and a fine of up to

$10,000. In addition, appellant signed a written document containing the admonishments required

by statute. See Tex. Code Crim. Proc. Ann. art. 26.13 (West Supp. 2008). This document also

contained a stipulation of evidence in which appellant admitted all of the conduct alleged in the

amended indictment, including the use of a deadly weapon. The trial court accepted appellant’s plea,

found that the stipulated evidence substantiated her guilt, and took the case under advisement. The

cause was reset for a bench trial on punishment.

               Appellant subsequently employed new counsel, who filed a motion to withdraw

appellant’s guilty plea on November 14, 2006, the day before the punishment hearing was set

to begin. The court heard arguments on the motion the following day. Appellant’s new counsel

asserted, as he had in the written motion, that when appellant pleaded guilty, she was confused as

to whether or not there was a plea bargain. Counsel argued that appellant “gained nothing” by

pleading guilty and “didn’t understand” the consequences of her actions.




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               The court overruled the motion to withdraw the plea, but agreed to allow appellant

to present further evidence in support of the motion during the punishment hearing. When appellant

later testified, she said that she had been confused regarding the range of punishment. She testified

that she had been told that the range was “five to life,” but “when I arrived for my court date, I was

told [by counsel] 20 to life. And so it changed dramatically for me.” Appellant acknowledged that

she had said that she understood the plea, but explained, “I just felt pressured. I didn’t know what

to do, I was confused.”

               A defendant may withdraw her guilty plea as a matter of right before judgment

is pronounced or the case is taken under advisement. Saldana v. State, 150 S.W.3d 486, 490

(Tex. App.—Austin 2004, no pet.). But after the case has been taken under advisement, a defendant

may withdraw her plea only with the trial court’s permission, and the court’s ruling denying

permission will be overturned on appeal only if an abuse of discretion is shown. Id.

               Appellant’s assertion that she was confused regarding the applicable range of

punishment or the existence of a plea bargain is contradicted by the record. The trial court

admonished appellant both orally and in writing as to the applicable range of punishment, and

appellant assured the court that she understood. She also told the court that she understood that there

was no plea bargain.

               When appellant appeared in court to plead guilty to a first-degree felony, she

was twenty-two years old, the mother of a four-year-old child, and had no criminal record. We can

appreciate the emotional strain appellant must have felt, and we can understand why she might later

have entertained second thoughts about her decision. On this record, however, we find no basis



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for concluding that the trial court abused its discretion by overruling appellant’s motion to withdraw

her guilty plea.

                   A large portion of appellant’s brief to this Court is devoted to a summary of the

evidence in a light favorable to the defense. She asserts that the trial court should have allowed her

to withdraw her guilty plea because the “scientific and testimonial evidence raised considerable

reasonable doubt” regarding her guilt.

                   At one time, it was the rule in Texas that a trial court was required to withdraw a

defendant’s guilty plea if evidence was introduced raising an issue as to her guilt. See Moon v. State,

572 S.W.2d 681, 682 (Tex. Crim. App. 1978) (op. on reh’g) (collecting cases). In Moon, the court

of criminal appeals overruled that line of cases and held that if a defendant waives trial by jury and

pleads guilty to the court, and if evidence is thereafter adduced raising a question as to the

defendant’s guilt, the trial court need not withdraw the guilty plea; rather, the court has the duty to

consider the evidence and, if warranted, return a verdict of not guilty or guilty of a lesser included

offense. Id. Under the holding in Moon, appellant’s denial of guilt during the punishment hearing

did not obligate the trial court to withdraw her guilty plea. If the trial court believed that there was

a reasonable doubt as to whether appellant knowingly caused serious bodily injury to Gabriella

Morris, it could have returned a verdict of not guilty or convicted appellant of a lesser-included

offense. Appellant does not now contend that the evidence is legally or factually insufficient to

sustain the judgment of conviction. Issue one is overruled.




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Injury to Other Child

               Appellant contends that the State committed “plain error” by suggesting that appellant

had also injured her own daughter, Serenity Cruz. During its cross-examination of appellant and

without objection, the State introduced a photograph of Serenity showing that her eyes are slightly

crossed.1 The prosecutor then cross-examined appellant regarding the fact that Serenity had suffered

from colic, again without objection. Finally, the prosecutor asked appellant if she were aware that

colic “is one of the mild symptoms of shaken baby syndrome.” The prosecutor added, “It’s pretty

coincidental that she’s diagnosed with colic and has a crossed eye, wouldn’t you agree.” Once again,

there was no objection to these questions.

               Appellant complains that the State’s suggestion that she had shaken Serenity was

inflammatory and without evidentiary basis. Because appellant voiced no objection, however,

nothing was preserved for review. Tex. R. App. P. 33.1(a)(1). Issue two is overruled.


Morrises’ Marriage

               While cross-examining Jody Morris, defense counsel adduced the fact that the witness

and Felipa Morris were not living together at the time Gabriella was injured. When counsel asked

Jody if Felipa was “contemplating divorce because of a Diana Garza,” the prosecutor objected that

the question was irrelevant. Defense counsel responded that the State had opened the door by

“paint[ing] a picture of a happy family.” The court told counsel, “You’ve already made the point

that they were at least in the process of being separated and that there may have been some


       1
        A pediatric ophthalmologist had previously testified that Gabriella Morris had crossed eyes,
“which is likely related to the fact that she had poor vision in the eyes due to her injuries.”

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contemplation by some of the parties concerning divorce. I think leave it at that.” Counsel then

asked if he “[could] follow up on the separation as to just a separation issue, that they weren’t living

together and who was watching the baby and things of that nature.” The court replied, “The

objection concerning relevance is sustained.”

               Appellant argues that the Morrises’ separation and possible divorce was relevant as

a basis for believing that there was “frustration within the immediate family [as] a plausible counter-

explanation” for Gabriella’s injuries. But as the trial court pointed out to counsel, the defense had

already adduced the fact that Jody and Felipa were not living together and were contemplating

divorce. The trial court subsequently permitted defense counsel to question both Jody and Felipa

Morris regarding the persons who had been at home with Gabriella on the night of May 3, 2004. The

trial court did not prevent appellant from adducing evidence relevant to her “counter-explanation.”

No abuse of discretion is shown. Issue three is overruled.


Psychological Report

               One of the defense witnesses at the punishment hearing was appellant’s mother,

Mirta Reyes. She described appellant as “a very, very, sweet, loving person. [Appellant] has no

intention of hurting nobody. She has never hurt anybody.” Reyes agreed that appellant was “a

passive person” and indicated that she had never seen appellant “in any type of aggressive mode.”

She testified that on the afternoon in question, she and appellant had followed Gabriella to the

hospitals. Reyes testified that appellant was “crying,” “very upset,” and “scared.” She also testified,

“Every day we pray. We pray for the little child that she gets better.”




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                While cross-examining Reyes, the prosecutor asked if she knew that appellant “was

evaluated psychologically by Dr. Barnes.”2 Reyes said that she knew this. She also acknowledged

knowing what the report said “about [appellant’s] personality.” At this point, defense counsel

objected that the prosecutor was “trying to inject evidence that has not been proffered to the Court

by asking her questions of a report that is clearly hearsay.” The objection was overruled. In response

to further questions by the prosecutor, Reyes testified that the report “basically, to me it made it seem

like [appellant] was a monster of some sort. If I can recall, it said that [appellant] was the type of

person that would get mad over anything that they would tell her.” Asked if the report characterized

appellant as “explosive,” Reyes replied, “Ma’am, she does not become explosive.”

                On appeal, appellant urges that her hearsay objection should have been sustained.

The record reflects, however, that the State was using Reyes’s knowledge of the psychological report

to impeach her testimony that appellant was a “sweet, loving person” who “never hurt anybody,” and

not to prove the truth of the matters asserted in the report. See Tex. R. Evid. 801(d) (defining

hearsay). Whether this was proper impeachment is an issue that is not before us. The trial court did

not err by overruling the hearsay objection. Issue four is overruled.


Medical Article

                One of the State’s witnesses was Dr. George Edwards, a pediatrician with expertise

in the field of traumatic injuries to children, including shaken-baby syndrome, and one of the

physicians at Children’s Hospital who treated Gabriella Morris on May 4, 2002. During the course


        2
          Aside from this cross-examination, the record is silent regarding this evaluation.
Dr. Barnes is not identified, and his alleged report is not in the record.

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of Edwards’s testimony, the prosecutor drew his attention to a “policy statement” or article by the

Committee on Child Abuse and Neglect of the American Academy of Pediatrics entitled Shaken

Baby Syndrome: Rotational Cranial Injuries—Technical Report which had been published in the

July 2001 issue of the journal Pediatrics. More than once during his testimony, Edwards stated that

an opinion he expressed was consistent with this article. After Edwards indicated that the article was

one that is normally relied upon by experts in the field, the State offered a copy of the article in

evidence. As authority, the prosecutor cited evidence rule 703, which provides that the facts or data

on which an expert bases an opinion need not be admissible in evidence if they are of a type

reasonably relied upon by experts in the particular field. Tex. R. Evid. 703. In response to voir dire

questions by defense counsel, Edwards said that he could not remember the last time he had read

this article, but “[i]t’s been a while.” Appellant then objected to the admission of the article because

it had not formed a basis for Edwards’s testimony and had not been provided to the defense

during discovery.

               Initially, the trial court expressed the view that although the State had established

that the article was a reliable authority under rule 703, the article remained hearsay and under

rule 803(18), pertinent statements from the article could be read into evidence but could not be

received as exhibits. Tex. R. Evid. 803(18). This analysis was correct. Rule 703 permits an expert,

under certain circumstances, to base an opinion on inadmissible facts or data; the rule does not

permit the admission into evidence of the inadmissible facts or data. Under rule 803(18), statements

contained in a learned treatise may be read into evidence but not be received as an exhibit.




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Nevertheless, the court took the question under advisement and later, after Edwards’s testimony was

concluded, overruled appellant’s objections and admitted the article as State’s exhibit 13.

               Appellant now contends that the journal article was inadmissible under rule 803(18).

This is not the contention he made below, where he objected that the article was not reliable, had not

been relied on by the expert witness, and had not been disclosed during discovery. See Tex. R. App.

P. 33.1(a)(1). We also believe that any error in the admission was harmless. See Tex. R. App. P.

44.2(b). The article contains two statements that appellant asserts were harmful to the defense.

First, the article states that mild cases of shaken-baby syndrome may be mistaken for a viral illness,

feeding dysfunction, or colic. Appellant argues that the State relied on this to suggest that she had

shaken her own daughter. As we previously noted, however, appellant did not object when this

suggestion was made. Second, the article states that the clinical signs of shaken-baby syndrome

are immediate and identifiable. Appellant argues that this undermined her defensive theory that

Gabriella’s injuries had been inflicted before she was left in appellant’s care. Edwards testified,

however, that the symptoms of Gabriella’s injuries would have “started very rapidly after the injury

was sustained” and that his opinion was consistent with the opinions contained in the journal article.

Under the circumstances, we think it unlikely that the admission of the article itself added any

significant weight to the doctor’s expert testimony in the eyes of the trial court.

               Appellant had pleaded guilty and judicially confessed. Although appellant denied

her guilt during the punishment proceeding, she does not contend that the evidence is insufficient

to sustain her conviction. Under the circumstances, the admission of the journal article did not affect

appellant’s substantial rights. Issue five is overruled.



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              The judgment of conviction is affirmed.




                                           __________________________________________

                                           W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Waldrop and Henson

Affirmed

Filed: October 16, 2008

Do Not Publish




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