Affirmed and Memorandum Opinion filed December 22, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00840-CR

THOMAS DANIEL GUERRERO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 1255375

M E M O R A N D U M O P I N I O N

A jury convicted appellant Thomas Daniel Guerrero of intentionally or knowingly 

causing serious bodily injury to a child, and it assessed punishment at fifty-five years‘

imprisonment. In three issues, appellant argues that the trial court erred by admitting 

evidence of certain extraneous bad acts, finding one of the State‘s experts qualified to 

testify about shaken baby syndrome, and reading certain testimony back to the jury

during jury deliberations. We affirm.
2

BACKGROUND

While appellant was separated from his wife, Melissa Guerrero, he met and 

conceived a child with his girlfriend, Irene Ayala. In March 2006, Irene gave birth to the 

complainant, Lilah. Appellant had infrequent contact with Lilah until the fall of 2006 

when he moved into Irene‘s apartment. At the time, Lilah was about eight months old, 

and appellant was again separated from his wife Melissa. 

On November 9, 2006, Irene was at work while appellant stayed home to watch 

Lilah. Irene‘s other children were in daycare, so appellant and Lilah were alone. 

Evidence revealed that appellant spoke to Irene on the phone throughout the day,

inquiring about lunch plans and letting Lilah hear Irene‘s voice. Evidence also revealed 

that appellant spoke with Melissa about getting a divorce and whether she would permit 

appellant to visit their daughter, Alora. At approximately 4:00 p.m. and while still caring 

for Lilah, appellant phoned Irene and told her to come to the apartment right away 

because Lilah had sustained injuries. Lilah died from those injuries several days later. 

Appellant did not testify at trial, but he told a consistent story of what happened to 

Lilah to at least ten of the State‘s witnesses.1 Appellant claimed that he put Lilah on a 

pillow sitting on the couch, and that Lilah fell off the couch and onto the carpeted floor 

when he went to the kitchen to cook some food. Appellant claimed to have found Lilah 

lying on her stomach with her hands beneath her and her head turned to the right; her 

eyes were ―halfway open‖ and she was having difficulty breathing.

Appellant took Lilah to a neighbor‘s apartment and asked the neighbor to call 911. 

Appellant called Irene‘s mother and asked her to come lock the apartment because he was 

going to the hospital with Lilah and did not have a key. Irene‘s mother went to the 

apartment and found the door open and a stove burner on low. When Irene arrived at the 

 

1 These witnesses included Melissa, Irene, Irene‘s neighbor, Irene‘s mother, an emergency 

responder, a doctor, several police officers, a social worker, and a supervising investigator with the Texas 

Department of Family and Protective Services.
3

apartment to pick up Lilah‘s car seat and belongings before going to the hospital, Irene

noted a forty-ounce bottle of beer open on the counter, which was full almost to the top.

The State presented evidence that Lilah previously had sustained virtually no 

injury when, while also in appellant‘s care, she fell onto carpet from a bed much higher 

than the couch. The State also presented evidence that appellant has a drinking problem 

and had become verbally abusive toward Melissa on one occasion after drinking alcohol

and discussing Melissa‘s own extra-marital relationship; on that occasion, appellant had 

shaken Lilah‘s car seat in irritation in an effort to make her stop crying.

Other testimony painted appellant in a positive light. Irene testified that appellant 

was a good, patient, loving, and affectionate father-figure toward Lilah and Irene‘s other 

children. Irene also testified that she had not noticed appellant drinking any alcohol in 

the two weeks before Lilah‘s death. Irene‘s mother testified that appellant was a very 

polite, quiet, and respectful person, and she had never seen him get angry, use drugs or 

alcohol, or abuse children. Melissa testified that appellant was a loving and affectionate 

father for their daughter, and he was never mean to their daughter or struck or shook her. 

Appellant‘s sister testified that appellant often babysat for her children, and he was very 

affectionate towards them and never put them in harm‘s way. Appellant scolded his 

sister when she spanked her children. Finally, the jury heard evidence that appellant was 

distraught when Lilah showed signs of injury and died: he cried, attempted suicide, and 

admitted fault for leaving Lilah on the couch unsupervised.

Regarding Lilah‘s injuries and their cause, the State presented evidence from five 

doctors, all of whom the court found qualified to testify as experts over appellant‘s 

objections. Dr. Ana Lopez, an assistant medical examiner with the Harris County 

Institute of Forensic Sciences, performed an autopsy on Lilah. Dr. Lopez explained that 

Lilah suffered from subdural and subarachnoid hemorrhages, or bleeding in different 

parts of the outer layers of the brain. Lilah also showed retinal hemorrhages in both eyes. 

She developed swelling in her brain, and one side of her brain was pushed into the other. 
4

Lilah finally had a stroke because her brain was not getting enough oxygen. Dr. Lopez 

opined that Lilah‘s injuries were caused by blunt impact to the head or 

acceleration/deceleration forces, which could include shaking. Dr. Lopez noted that 

Lilah had no external injuries except for a few pressure sores caused by lying in the 

hospital for several days, as well as several small, faint bruises on the right side of her 

head and the left side of her neck, which she opined could have been caused by I.V. lines 

or a cervical collar used on Lilah during hospitalization. Dr. Lopez further opined that 

Lilah‘s injuries were not consistent with a fall from a couch.

Dr. Rebecca Girardet, a medical doctor specializing in child abuse pediatrics, 

testified that she examined Lilah before her death. She opined that a 2.5-foot fall from a 

couch to a carpeted surface could not have caused Lilah‘s injuries. She believed that 

Lilah was shaken, and there may or may not have been an impact to her head. Dr. 

Girardet explained that the shaking required to cause brain trauma like Lilah suffered is 

severe, and not something that someone would do accidentally because anyone would 

recognize it as being harmful to a baby.

Dr. Judianne Kellaway, an ophthalmologist specializing in the retina, was 

consulted about Lilah‘s retinal hemorrhages. Dr. Kellaway testified that retinal 

hemorrhages can be caused by direct trauma to the eye or from shaking, but that retinal 

hemorrhages are rarely seen in babies because the elastic tissues that interface with the 

retina are ―very tough‖ and more solid in a baby than in an adult or older child. Dr. 

Kellaway testified that ―moderately severe‖ hemorrhaging in both retinas of a baby, as 

was present in Lila‘s case, suggests the baby was shaken. She explained that it takes a 

―tremendous‖ amount of force to cause these types of hemorrhages, and even babies who 

have been thrown from vehicles during car accidents, found unconscious with fractures 

and head injuries, did not develop retinal hemorrhages. Dr. Kellaway opined that a 2.5-

foot fall from a couch could not have caused Lilah‘s injuries, and the only possible cause 

of Lilah‘s multiple injuries was shaking.
5

Dr. Alexander Simonetta, a neuroradiologist with training and experience in 

shaken baby syndrome, evaluated Lilah‘s CT scans. The CT scans and x-rays of Lilah 

did not reveal any fractures, but they revealed the subdural and subarachnoid 

hemorrhages and eventual brain death. Dr. Simonetta noted the lack of external swelling 

or injuries to Lilah and explained that the lack of such injuries, combined with bleeding 

in the brain, is indicative of child abuse—in particular, a shaking injury rather than a 

direct blow to the head. He testified it takes a ―fair amount‖ of force to cause a subdural 

hemorrhage, and it was not possible for Lilah‘s injuries to be caused by falling from a 

couch.

Dr. Deborah Brown, a hematologist, testified that Lilah did not have a bleeding 

disorder and her injuries could not have been caused by a bleeding disorder. Dr. Brown 

concluded that Lilah‘s injuries were caused by some kind of significant blunt force 

trauma; she opined that Lilah‘s injuries were inconsistent with appellant‘s story that Lilah 

fell 2.5 feet from a couch and were consistent with shaken baby syndrome.

The jury convicted appellant of intentionally or knowingly causing serious bodily 

injury to a child, and assessed punishment at fifty-five years‘ imprisonment. In three 

issues on appeal, appellant argues that the trial court erred by 

(1) admitting evidence of certain extraneous bad acts; (2) finding Dr. Brown qualified to 

testify about shaken baby syndrome; and (3) reading back certain testimony from Dr. 

Kellaway to the jury during deliberations. 

ANALYSIS

I. Evidence of Extraneous Bad Acts

In his first issue, appellant argues that the trial court erred by admitting evidence 

of extraneous bad acts showing that (1) appellant has a drinking problem and shook 

Lilah‘s car seat in irritation after drinking alcohol on a prior occasion; and (2) drugs were 

found on several occasions in appellant‘s backpack. 
6

Evidence of extraneous offenses or bad acts that a defendant may have committed 

ordinarily cannot be introduced at the guilt-innocence phase to show that the defendant 

acted in conformity with his criminal nature and therefore committed the crime for which 

he is on trial. See TEX. R. EVID. 404(b); Robbins v. State, 88 S.W.3d 256, 259 (Tex. 

Crim. App. 2002). This evidence, however, may be admissible when it is relevant to a 

―noncharacter conformity issue of consequence‖ in the case, such as the defendant‘s

intent or defensive theories. Robbins, 88 S.W.3d at 259; see also TEX. R. EVID. 404(b) 

(evidence may be admissible to prove, among other things, motive, intent, and absence of 

mistake or accident). Evidence is relevant to such an issue if the purpose for which the 

party seeks to have it admitted tends to make ―the existence of any fact that is of 

consequence to the determination of the action more probable or less probable than it 

would be without the evidence.‖ Smith v. State, 5 S.W.3d 673, 679 n.13 (Tex. Crim. 

App. 1999).

Evidence relevant to a ―noncharacter conformity issue of consequence‖ under 

Rule 404(b) nonetheless may be inadmissible under Rule 403 if the trial court determines 

that the probative value of the evidence is ―substantially outweighed‖ by the danger of 

unfair prejudice. TEX. R. EVID. 403. Evidence is unfairly prejudicial when it has ―an 

undue tendency to suggest that a decision be made on an improper basis.‖ Reese v. State, 

33 S.W.3d 238, 240 (Tex. Crim. App. 2000) (citing Montgomery v. State, 810 S.W.2d 

372, 389 (Tex. Crim. App. 1990) (op. on reh‘g)). When conducting a Rule 403 balancing 

test, the trial court should analyze (1) how probative the evidence is; (2) the potential for 

the evidence to impress the jury in some irrational way; (3) the time the proponent will 

need to develop the evidence; and (4) the proponent‘s need for the evidence, i.e., whether 

other evidence is available and whether the fact of consequence is related to a disputed 

issue. Montgomery, 810 S.W.2d at 389–90; Isenhower v. State, 261 S.W.3d 168, 177–78 

(Tex. App.—Houston [14th Dist.] 2008, no pet.).
7

Because the trial court is in the best position to decide these admissibility 

questions, an appellate court must review a trial court‘s admissibility decision under an 

abuse of discretion standard. Robbins, 88 S.W.3d at 259–60 (citing Montgomery, 810 

S.W.2d at 391). We uphold a trial court‘s admissibility decision when that decision is 

within the zone of reasonable disagreement. Id. at 260. An appellate court misapplies 

this standard of review if it reverses a trial court‘s admissibility decision simply because 

the appellate court disagrees with it. Id.

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

appeal.

A. Alcohol Use and Shaking of Car Seat

Melissa testified that appellant has had ―a habit of drinking too much‖ and ―a 

problem with drinking‖ for ―quite some time.‖ She testified that appellant regularly 

would drink beer all day when he was not working, from the time a store opened in the 

morning (or whenever he could buy beer) until the late evening. Melissa also testified 

about a trip to Galveston that she took with appellant, their daughter Alora, and Lilah. 

Melissa explained that appellant had been drinking alcohol before and throughout the 

trip, and he seemed intoxicated. Appellant became upset about Melissa‘s past marital 

indiscretion during the car ride home, and he began yelling obscenities at Melissa. Lilah 

was crying in her car seat, and appellant yelled at Lilah to ―shut up.‖ When Lilah 

continued to cry, appellant turned around and shook the car seat ―like he was irritated.‖ 

Melissa testified that appellant‘s shaking of the car seat ―concerned [her].‖

Appellant generally objected to this evidence on the grounds that (1) the evidence 

shows only bad character or reputation and therefore is prohibited by Rule 404(b); and 

(2) the evidence is more prejudicial than probative under Rule 403. The trial court 

admitted the evidence, but granted appellant a jury instruction and a running objection. 

We address separately each of appellant‘s arguments regarding this evidence.
8

1. Shaking of Car Seat

Rule 404(b). With respect to evidence that appellant shook Lilah‘s car seat, 

appellant argues more specifically on appeal that the evidence is not admissible under 

Rule 404(b) because appellant ―never argued that he did not mean to shake the 

complainant‖ and that ―the prior shaking does not establish that the injuries were not 

accidental, only that [appellant] shook the complainant before.‖ 

Appellant seems to argue that the questions of intent or accident are not ―issues of 

consequence‖ under 404(b) because appellant‘s explanation for Lilah‘s injuries was that 

she fell from the couch, not that he accidentally shook her, or shook her without 

intending to cause any injury. We disagree that this is a meaningful distinction in this 

case. See, e.g., Robbins, 88 S.W.3d at 261–62 (defendant claimed that infant‘s fatal 

asphyxiation injuries were caused by defendant‘s improperly performed CPR or, 

alternatively, sudden infant death syndrome; admitting evidence of prior injuries suffered 

by infant while in appellant‘s care because such evidence was relevant under Rule 404(b)

to show intent or rebut either defensive theory); Prieto v. State, 879 S.W.2d 295, 298 

(Tex. App.—Houston [14th Dist.] 1994, pet. ref‘d) (defendant claimed that child‘s burns

and bruises were caused when child fell while giving himself a bath; admitting evidence 

showing that on a prior occasion, defendant had yelled at child in abusive manner, 

threatened beating, and grabbed child roughly by the arm because such evidence was 

relevant to appellant‘s intent under 404(b)); cf. Estelle v. McGuire, 502 U.S. 62, 68–69 

(1991) (in context of constitutional challenge to trial court‘s admission of evidence, 

noting that evidence of prior injury to child helps prove ―that the child died at the hands 

of another and not by falling off a couch, for example; it also tends to establish that the 

 ̳other,‘ whoever it may be, inflicted the injuries intentionally‖); Robbins, 88 S.W.3d 

267–68 (Cochran, J., concurring) (discussing ―doctrine of chances‖ and historic case of 

Rex v. Smith, 11 Cr. App. R. 229, 84 L.J.K.B. 2153 (1915), in which evidence that 

Smith‘s two prior wives were found drowned in bath tubs was held admissible; ―[t]he 
9

evidence was not offered to prove that Mr. Smith had a  ̳drowning‘ or  ̳murderous‘ 

character trait, but to show that it was more likely that [the third wife] died from a 

criminal act [rather than an accident] because two of Mr. Smith‘s other brides had died 

under very similar circumstances‖).

We cannot say that the trial court abused its discretion in deciding that the 

evidence was relevant to a ―noncharacter conformity issue of consequence‖ in this case, 

such as appellant‘s intent or his defensive theory that Lilah‘s injuries were caused by

falling from the couch while appellant was out of the room. See TEX. R. EVID. 404(b);

Robbins, 88 S.W.3d at 259–60. We overrule appellant‘s issue based on this argument.

Rule 403. Appellant also argues that even if such evidence is admissible under 

404(b), it should have been excluded under Rule 403 because ―it did not resemble the 

degree or type of shaking that was alleged was necessary to cause the injuries.‖

2

 This 

argument relates to the probative value of the evidence, which is one of the four factors,

discussed above, that are germane to our analysis under Rule 403. The probative value is 

―often, although by no means invariably, a function of the similarity of the extraneous 

transaction to the charged offense.‖ Montgomery, 810 S.W.2d at 389–90. We do not 

agree with appellant that his shaking of Lilah‘s car seat, while under the influence of 

alcohol and having a heated discussion about his relationship with Melissa, is so 

dissimilar to weigh in favor of inadmissibility under Rule 403 simply because appellant

did not shake Lilah vigorously enough to cause fatal injury.

With respect to the remaining Rule 403 factors, we note that (1) it is unlikely that 

the jury could have irrationally relied on this evidence to convict appellant for shaking 

Lilah‘s car seat, especially when there is no evidence that shaking the car seat injured 

Lilah; (2) it took the State very little time to develop this evidence; and (3) there was no 

other compelling or undisputed evidence upon which the State could have relied to show 

 

2 Appellant also argues that it constitutes evidence of appellant‘s ―drunk temper, which evokes a 

strong negative emotional response.‖ We address this argument below in the context of appellant‘s 

alcohol use.
10

that appellant had acted aggressively toward Lilah before.

3

 See Montgomery, 810 S.W.2d 

at 389–90; Isenhower, 261 S.W.3d at 177–78. These factors do not weigh in favor of 

finding that the probative value of the evidence is ―substantially outweighed‖ by its 

potential for prejudice, and we conclude that the trial court acted within its discretion in 

admitting the evidence. See TEX. R. EVID. 403; Robbins, 88 S.W.3d at 259–60. We 

overrule appellant‘s issue based on this argument. 

2. Alcohol Use

Rule 404(b). With respect to the evidence of appellant‘s habitual alcohol use, 

appellant argues on appeal that the evidence is inadmissible under Rule 404(b) because 

the State cannot establish its theory that appellant ―was angry and got drunk‖ on the day 

of Lilah‘s injury by introducing evidence that appellant ―would wake up and drink in the 

morning and until he went to bed.‖

The State consistently argued that the evidence of appellant‘s drinking habit

established a ―pattern of behavior.‖ This argument fairly raises the application of Texas 

Rule of Evidence 406.4 See TEX. R. EVID. 406. Rule 406 states: ―Evidence of the habit 

of a person . . . is relevant to prove that the conduct of the person . . . on a particular 

occasion was in conformity with the habit . . . .‖ Id. Evidence of habit and character 

sometimes appear similar; but while character is a generalized description of a person‘s 

 

3 Appellant argues that the State‘s need for this evidence was slight because ―there was testimony 

of five experts that said he shook the baby to death,‖ and that Lilah‘s injuries could not have been caused 

by falling from the couch. While the expert testimony was compelling, the applicability of the shaken 

baby syndrome theory to this case was consistently disputed by appellant at trial. See Montgomery, 810 

S.W.2d at 390 (―When the proponent has other compelling or undisputed evidence to establish the 

proposition or fact that the extraneous misconduct goes to prove, the misconduct evidence will weigh far 

less than it otherwise might in the probative-versus-prejudicial balance.‖). 

4 Moreover, a trial court‘s evidentiary ruling must be upheld ―if it is correct under any theory of 

law that finds support in the record.‖ See, e.g., Gonzalez v. State, 195 S.W.3d 114, 125–26 (Tex. Crim. 

App. 2006) (citing McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997), and Romero v. State, 

800 S.W.2d 539, 543–44 (Tex. Crim. App. 1990)). This is so even when the State did not raise the 

ground for upholding the ruling in the trial court. See, e.g., Rhodes v. State, 945 S.W.2d 115, 118 n.3 & 

119 (Tex. Crim. App. 1997) (affirming and noting that court of appeals concluded that trial court‘s denial 

of motion to suppress could be affirmed based on same theory of law applicable to case but not argued by 

State to trial court).
11

disposition, habit describes a person‘s regular response to a repeated specific situation. 

Reyes v. Mo. Pac. R.R. Co., 589 F.2d 791, 794 (5th Cir. 1979).5 Controlling admissibility 

considerations include the adequacy of sampling and uniformity of response. Id. at 795. 

―[T]he probative force of habit evidence to prove intoxication on a given occasion 

depends on the degree of regularity of the practice and its coincidence with the occasion.‖ 

Id.; see Haynes v. State, 85 S.W.3d 855, 858–59 (Tex. App.—Waco 2002, pet. ref‘d) 

(noting that ―Rule 406 allows for evidence of a  ̳habit‘ if relevant, as Haynes‘s drinking 

habit was here,‖ but overruling appellant‘s issue regarding admissibility of evidence 

showing drinking ―habit‖ because such evidence was admitted elsewhere at trial without 

objection).

Rather than challenging these considerations with respect to Melissa‘s testimony, 

appellant argues, without citation to supporting authority, that the trial court erred in 

admitting the testimony because the State presented no evidence that appellant was 

intoxicated on the day of Lilah‘s injury. Appellant seems to implicitly reference the old 

rule that if there is some evidence that a party was intoxicated at the time of the incident 

in question, only then may such evidence be corroborated by habit evidence showing that 

the party was frequently or habitually drunk. See, e.g., Compton v. Jay, 389 S.W.2d 639, 

642 (Tex. 1965); R.T. Herrin Petroleum Transp. Co. v. Proctor, 338 S.W.2d 422, 431 

(Tex. 1960); but see TEX. R. EVID. 406 (evidence of habit admissible ―whether 

corroborated or not‖); 64 A.L.R. 567 § 28 (4th ed. Supp. 2011) (―The phrase  ̳whether 

corroborated or not‘ has been held to eliminate prior law requirement that there be 

evidence that the person acted in conformity with the habit or routine practice on the 

particular occasion in suit.‖).

 

5 Authorities discussing Federal Rule of Evidence 406 are persuasive in our application of the 

equivalent Texas rule. See Bishop v. State, 837 S.W.2d 431, 435 (Tex. App.—Beaumont 1992), aff’d, 

869 S.W.2d 342 (Tex. Crim. App. 1993) (relying on ―federal case law dealing with an identical provision 

in the Federal Rules of Evidence,‖ and noting that the court‘s research ―turned up no Texas cases in 

which Rule 406 was significantly discussed‖); compare FED. R. EVID. 406 with TEX. R. EVID. 406. 
12

Even if appellant‘s argument were relevant under some other applicable theory, 

we disagree that there is ―simply no evidence that [appellant] was intoxicated‖ on the day 

of Lilah‘s injury. While there is no direct evidence showing intoxication because 

appellant was alone with Lilah, there is circumstantial evidence that appellant was under 

the influence of alcohol. Specifically, Irene found a forty-ounce bottle of beer on the 

counter when she returned to her apartment on the day Lilah went to the hospital; she 

explained that it was ―still up to the top‖ and ―just like a little bit off of it.‖ Irene denied 

having any beer in the home when she left for work that morning. Irene testified that 

appellant had no money because he was not working at the time, but that she confronted 

appellant the same day about money that had gone missing from her bank account after 

she had allowed him to use her debit card. Evidence from a neighbor indicates that 

appellant left the apartment with Lilah in a stroller at some point during the morning, and 

Irene testified that appellant would take Lilah in the stroller when he wanted to go to the 

store next to the apartments. Thus, there is evidence that appellant purchased and opened 

at least one beer on the day Lilah was injured. We conclude that this evidence brings the 

admissibility of appellant‘s drinking ―habit‖ within the zone of reasonable disagreement. 

See TEX. R. EVID. 404(b); Robbins, 88 S.W.3d at 259–60. We overrule appellant‘s issue 

based on this argument.

With respect to evidence of appellant‘s angry and aggressive behavior while 

discussing his relationship with Melissa under the influence of alcohol, we also conclude 

that such evidence was admissible under Rule 404(b) to show, among other things,

appellant‘s intent, state of mind, or motive. Melissa‘s testimony regarding the Galveston 

trip demonstrated that appellant acted uncharacteristically angry and aggressive when 

discussing the infidelity issue under the influence of alcohol; she testified that she had 

never seen him so angry before. Additionally, Melissa testified without objection about 

an instance that occurred a few months later when she was lying in bed with appellant, 

who had been drinking. Melissa concluded that appellant was asleep and had just closed
13

her own eyes when appellant reached over ―and grabbed for [Melissa‘s] neck‖ and said, 

―I don‘t trust you anymore.‖

The evidence showed that while appellant was caring for Lilah on the day she was 

injured, appellant spoke with Melissa and Irene over the phone about getting a divorce 

from Melissa. Appellant also spoke with Melissa about whether she would permit him to 

see their daughter, Alora; Melissa informed appellant that he could come see Alora at 

Melissa‘s home, but she did not want him taking Alora until he had a ―stable place‖ to 

live. Melissa testified: ―He got real upset when I told him that. . . . He was angry. He 

didn‘t like for anyone to dictate to him when or where he could see Alora.‖ This 

evidence, along with admissible evidence showing that appellant may have been under 

the influence of alcohol, creates a picture of the circumstances under which appellant was 

caring for Lilah.6 We conclude that this evidence brings the admissibility of appellant‘s 

behavior while under the influence of alcohol within the zone of reasonable 

disagreement. See TEX. R. EVID. 404(b); Robbins, 88 S.W.3d at 259–60. We overrule 

appellant‘s issue based on these arguments.

Rule 403. Appellant argues that even if such evidence is admissible under Rule 

404(b), it should have been excluded under Rule 403 because it ―left the indelible 

impression that [appellant] was always drunk, even though [Melissa] was often not 

around him.‖ Appellant also argues that it constitutes evidence of appellant‘s ―drunk 

temper, which evokes a strong negative emotional response.‖

7

 

 

6 Although appellant argues that the evidence of appellant‘s behavior while under the influence of 

alcohol is not relevant to prove motive because ―the evidence did not show that Lelah [sic] did anything 

that would have caused him to intentionally injure [her] that day,‖ we think the circumstantial evidence 

described above is more than sufficient. Additionally, we note that the probative value of this evidence 

for permissible Rule 404(b) purposes is enhanced by the fact that appellant lied to a Texas Department of 

Family Protective Services investigator, who asked the ―standard question‖ about his use of alcohol that 

day. Appellant denied any such use and stated that ―the only mistake he made was by setting [Lilah] on 

the couch.‖ 

7 Appellant also argues that ―the extraneous evidence that [appellant] was intoxicated and was 

driving was not probative and extremely prejudicial.‖ Melissa did not testify about who drove to 

Galveston; she testified that she ―knew [she] had to drive home‖ from Galveston and that she ―was 
14

The evidence of appellant‘s alcohol use and behavior while under the influence of 

alcohol is extremely probative to show, among other things, appellant‘s intent, state of 

mind, or motive on the day Lilah suffered injury. This is especially so in light of other 

evidence that appellant was a patient caretaker when not under the influence of alcohol or

discussing his troubled relationship with Melissa. Moreover, it is not likely that the jury 

irrationally relied on the evidence to convict appellant for having a ―drunk temper,‖ 

rather than for causing serious bodily injury to a child. Although the State spent a great 

deal of time developing the evidence, the State‘s need for such evidence to explain 

appellant‘s actions weighs in favor of admissibility. Based on these considerations, we 

conclude that the trial court acted within its discretion in admitting the evidence. See 

TEX. R. EVID. 403; Robbins, 88 S.W.3d at 259–60; see also Montgomery, 810 S.W.2d at 

389–90; Isenhower, 261 S.W.3d at 177–78. We overrule appellant‘s issue based on this 

argument.

B. Drugs

Melissa also testified that her grandmother ―found drugs in [appellant‘s] backpack 

on more than one occasion.‖ Appellant complains that the trial court erroneously 

admitted this evidence over appellant‘s objection. Assuming without deciding that the 

admission of such evidence was error, we conclude that appellant was not harmed. 

In conducting a harm analysis for non-constitutional errors, our objective is to 

determine whether the admission of the evidence had an effect on appellant‘s substantial 

rights. See TEX. R. APP. P. 44.2(b); Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim.

App. 2005) (reviewing erroneous admission of evidence for non-constitutional harm

under Rule 44.2(b)). Pursuant to Texas Rule of Appellate Procedure Rule 44.2(b), any 

non-constitutional error that does not affect appellant‘s substantial rights must be 

disregarded. Haley, 173 S.W.3d at 518. A substantial right is affected when the error 

 

already driving‖ when the argument occurred. Melissa testified on cross-examination that ―I don‘t recall 

if he [shook the car seat] while he was driving . . . or if this was when I was driving.‖ The record does not 

reflect that the jury heard any evidence that appellant drove while intoxicated.
15

had a substantial and injurious effect or influence in determining the jury‘s verdict. Id. 

In assessing the likelihood that the jury‘s decision was adversely affected by the error, an 

appellate court should consider everything in the record, including (1) any testimony or 

physical evidence admitted for the jury‘s consideration; (2) the nature of the evidence 

supporting the verdict; (3) the character of the alleged error and how it might be 

considered in connection with other evidence in the case; (4) whether the State 

emphasized the error; (5) the jury instructions; (6) the parties‘ theories; and (7) jury 

arguments and voir dire, if necessary. Id. at 518–19.

We agree with appellant that the character of the alleged error generally weighs in 

favor of finding harm. See Jackson v. State, 320 S.W.3d 873, 889 (Tex. App.—

Texarkana 2010, no pet.) (―By its very nature, an improperly admitted extraneous offense 

tends to be harmful.‖). However, Melissa‘s statement that her grandmother ―found drugs 

in [appellant‘s] backpack on more than one occasion‖ was unlikely to distract the jury 

from the extensive admissible evidence presented by both parties over the course of

approximately three days. The State presented testimony from fifteen witnesses and

proffered thirty-nine exhibits. The State did not ask any follow-up questions in response 

to Melissa‘s statement about the drugs in appellant‘s backpack but instead moved on to 

other topics related to the State‘s theory that appellant intentionally injured Lilah while 

under the influence of alcohol—not drugs. The State did not emphasize the error or 

otherwise raise the issue again in questioning or closing arguments. Having reviewed the 

entire record, we conclude that the alleged error did not have a substantial and injurious 

effect or influence in determining the jury‘s verdict. See TEX. R. APP. P. 44.2(b); Haley, 

173 S.W.3d at 518–19. 

We overrule appellant‘s first issue.

II. Expert Witness Qualification

In his second issue, appellant argues that the trial court erred by concluding that

Dr. Brown was qualified to opine that Lilah‘s injuries were consistent with shaken baby 
16

syndrome. The State responds that any error in qualifying Dr. Brown to testify about 

shaken baby syndrome was harmless.

A witness is qualified to testify as an expert if the witness has sufficient 

background—knowledge, skill, experience, training, or education—in a particular field 

that ―goes to the very matter on which the witness is to give an opinion.‖ Vela v. State, 

209 S.W.3d 128, 131 (Tex. Crim. App. 2006) (quotation omitted); see also TEX. R. EVID. 

702 (testimony of experts). The focus is on the ―fit‖ between the subject matter at issue 

and the expert‘s familiarity therewith. Vela, 209 S.W.3d at 133. For example, a licensed 

medical doctor may be an expert in a particular field, but the doctor is not automatically 

qualified to testify as an expert on every medical question. Id. at 132. The doctor‘s 

background must ―fit‖ with the specific issue before the court. See id. at 132–33.

We review a trial court‘s decision to admit expert testimony for an abuse of 

discretion. Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006). A trial court 

abuses its discretion when its decision lies outside the zone of reasonable disagreement. 

Turner v. State, 252 S.W.3d 571, 584 (Tex. App.—Houston [14th Dist.] 2008, pet. ref‘d) 

(citing Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007)). The proponent of 

expert testimony bears the burden of proving that the expert is qualified to testify.8 Id.

The trial court held a hearing outside the jury‘s presence to allow the State an

opportunity to establish Dr. Brown‘s knowledge, skill, experience, training, and

education. Dr. Brown testified that she is a pediatric hematologist, is board certified in 

pediatrics and pediatric hematology-oncology, and has fifteen years experience in the 

field. She explained that hematology is the study of blood disorders, and she described 

the tests that she ran on Lilah‘s blood to determine if Lilah had a blood disorder.

Appellant objected to Dr. Brown testifying in support of a theory based on shaken 

baby syndrome, and the court overruled the objection. Dr. Brown eventually testified in 

 

8 The proponent must also prove that the expert‘s testimony is reliable and relevant. See Vela, 

209 S.W.3d at 131. Appellant does not challenge the trial court‘s findings on these elements.
17

front of the jury that Lilah‘s injuries must have been caused by significant blunt force 

trauma because Lilah did not have any bleeding disorders that would explain those 

injuries. She opined further that Lilah‘s injuries were not consistent with a 2.5-foot fall 

from a couch but were consistent with shaken baby syndrome. 

Appellant did not, and does not now, challenge Dr. Brown‘s qualifications to 

opine that Lilah did not have a blood disorder, or that this fact meant Lilah‘s injuries 

must have been caused by trauma. But the State presented no evidence during the 

hearing about Dr. Brown‘s knowledge, skill, experience, training, or education to ―fit‖

the opinion that Lilah‘s injuries were consistent with shaking rather than some other 

trauma. Thus, the State failed to meet its burden, and the trial court should have limited 

Dr. Brown‘s testimony to the subject matter for which she was qualified—namely, 

diagnosing blood disorders and the lack thereof. See, e.g., Croft v. State, 148 S.W.3d 

533, 541–42 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (finding no abuse of 

discretion when trial court limited expert‘s testimony about a medical device to two 

specific topics tailored to expert‘s actual qualifications).

However, we conclude that the trial court‘s error in admitting Brown‘s testimony 

about shaken baby syndrome was harmless. We must disregard a non-constitutional error 

that does not affect a substantial right. TEX. R. APP. P. 44.2(b); see Coble v. State, 330 

S.W.3d 253, 280 (Tex. Crim. App. 2010) (analyzing erroneous admission of expert 

testimony for non-constitutional harm under Rule 44.2(b)). As we have already 

explained, a substantial right is affected when the error had a substantial and injurious 

effect or influence in determining the jury‘s verdict. Coble, 330 S.W.3d at 280. But if 

the improperly admitted evidence did not influence the jury or had but a slight effect 

upon its deliberations, such non-constitutional error is harmless. Id. In analyzing the 

erroneous admission of expert testimony, we may consider, among other things: (1) the 

strength of the evidence of the appellant‘s guilt; (2) whether the jury heard the same or 

substantially similar admissible evidence through another source; (3) the strength or 
18

weakness of an expert‘s conclusions, including whether the expert‘s opinion was 

effectively refuted; and (4) whether the State directed the jury‘s attention to the expert‘s 

testimony during arguments. See id. at 286–88.

The evidence of appellant‘s guilt was strong, in particular, because four experts 

other than Dr. Brown reached the same conclusion: Lilah‘s injuries were caused by 

shaking and not a short fall from a couch. Further, Dr. Brown effectively refuted her own 

opinion during cross-examination and redirect when she repeatedly testified, ―I don‘t 

consider myself an expert in Shaken Baby Syndrome,‖ and ―I‘m not an expert in that 

field, no.‖ Finally, in closing argument the State referenced Dr. Brown‘s testimony on 

the subject of bleeding disorders only and did not mention her opinion that Lilah‘s 

injuries were the result of shaking. Instead, the State specifically identified the other 

doctors who reached those conclusions.

After reviewing the record as a whole, we have a fair assurance that the 

improperly admitted evidence did not influence the jury or had but a slight effect upon 

the verdict. See Coble, 330 S.W.3d at 280. Thus, we conclude that the error was 

harmless.

We overrule appellant‘s second issue.

III. Jury Deliberations

In his third issue, appellant argues that the trial court erred when it granted the 

jury‘s request to read back Dr. Kellaway‘s testimony ―about the amount of force required 

to inflict the injuries sustained by Lila [sic] Guerrero‖ because ―the jury did not specify

that there was a dispute‖ about the testimony.

Texas Code of Criminal Procedure article 36.28 states that ―if the jury disagree as 

to the statement of any witness they may, upon applying to the court, have read to them 

from the court reporter‘s notes that part of such witness testimony or the particular point 

in dispute, and no other.‖ TEX. CODE CRIM. PROC. ANN. art. 36.28 (West 2006). When 
19

the jury asks for testimony to be read back, the trial court must first determine whether 

the jury‘s inquiry is proper. Brown v. State, 870 S.W.2d 53, 55 (Tex. Crim. App. 1994). 

―A simple request for testimony does not, by itself, reflect disagreement, implicit or 

express‖ and is not a proper request under article 36.28. Howell v. State, 175 S.W.3d 

786, 790 (Tex. Crim. App. 2005). But a trial court may infer a disagreement if there is 

some basis ―other than mere speculation‖ to support the court‘s finding. Id. at 792; see 

also Robison v. State, 888 S.W.2d 473, 481 (Tex. Crim. App. 1994). We review the trial 

court‘s conclusion as to whether there is a disagreement for an abuse of discretion. 

Howell, 175 S.W.3d at 790.

Appellant acknowledges in his brief that he objected to the trial court‘s reading of

Dr. Kellaway‘s testimony on the grounds that the jury‘s request was not specific enough.9 

However, appellant did not object on the grounds that the jury failed to certify that it was

in dispute about the requested testimony. Accordingly, appellant has failed to preserve 

this issue for our review. See TEX. R. APP. P. 33.1; Boatwright v. State, 933 S.W.2d 309, 

310–11 (Tex. App.—Houston [14th Dist.] 1996, no pet.) (appellant must preserve error 

regarding trial court‘s reading of testimony to jury). We overrule appellant‘s issue based 

on this argument.

Appellant argues briefly on appeal that the trial court erred in reading back Dr. 

Kellaway‘s testimony that it would take a ―tremendous force‖ to cause a retinal 

hemorrhage in a baby because ―the jury was not specific enough in its request.‖ Neither 

appellant‘s issue as stated nor the authorities cited by appellant in support of that issue 

concern the question of whether the requests were specific enough; appellant‘s issue and 

authorities concern the question of whether the jury was in dispute, an argument we 

 

9 Appellant objected that ―we had sent a note back to [the jury] asking them to be more specific as 

to the question of force, what they meant by force. We have not received yet from them a specific enough 

question as to what they‘re asking about. . . . [T]hey never came back to specify what they meant by 

force. So, therefore, until we have a clear question on that, I am objecting to the readback—to the 

proposed readback of Dr. Kellaway. . . . My objection continues that the requests are not specific enough 

to what is disputed; and second, they have not defined what the amount of force is.‖
20

already have overruled. Even if we read appellant‘s issue as encompassing an additional 

complaint regarding specificity, we do not agree with appellant that the trial court abused 

its discretion in concluding that the jury‘s request to hear testimony from Dr. Kellaway 

―about the amount of force required to inflict the injuries sustained by Lila [sic] 

Guerrero‖ was specific enough. See Howell, 175 S.W.3d at 792 (appellate courts should 

not disturb a trial court‘s decision under article 36.28 ―unless a clear abuse of discretion 

and harm is shown‖). We overrule appellant‘s issue based on this argument.

Appellant also argues briefly that the jury‘s lack of specificity resulted in ―harm‖

to appellant because the jury also requested Dr. Simonetta‘s testimony ―about the amount 

of force required to inflict the injuries sustained by Lila [sic] Guerrero,‖ but the trial court 

failed to read back responsive testimony from Dr. Simonetta. 

After the court reporter searched for testimony responsive to the jury‘s requests, 

the parties acknowledged that the court reporter could not find a statement by Dr. 

Simonetta regarding ―the amount of force required to inflict the injuries sustained by Lila 

[sic] Guerrero.‖ The trial court read back the requested testimony from Dr. Kellaway and 

explained: ―Ladies and gentlemen, that‘s all we have for you at this time.‖ In fact, Dr. 

Simonetta testified that ―it takes a fair amount of force‖ to cause a subdural 

hemorrhage.10 Appellant argues that the failure to read this testimony constitutes a 

―comment on the weight of the evidence‖ because Dr. Simonetta‘s testimony was 

―contrary‖ to Dr. Kellaway‘s testimony that it would take a ―tremendous force‖ to cause

a retinal hemorrhage in a baby. 

Aside from arguing that this failure is the ―harm‖ attributable to the jury‘s lack of 

specificity in its request, appellant does not complain on appeal that the trial court erred 

in reading back some but not all the testimony responsive to the jury‘s requests, nor does 

 

10 Defense counsel explained to the trial court: ―In reference to Dr. Simonetta, my recollection is 

that he said it was an unknown amount of force. If that is there, then I think that has to be read back to 

the jury if we are allowing the readback of Dr. Kellaway. . . . I believe he said it was an unknown force.‖ 

The trial court noted, ―[Y]ou are the only one that remembers that.‖ 
21

he cite to authority regarding such a complaint. Even if we read appellant‘s brief as 

raising this issue, we conclude that any alleged error did not harm appellant. 

After concluding that a jury‘s request is proper, a trial court must interpret the 

communication, decide what testimony will best answer the inquiry, and limit the reading 

accordingly. Brown, 870 S.W.2d at 55; Fox v. State, 283 S.W.3d 85, 89 (Tex. App.—

Houston [14th Dist.] 2009, pet. ref‘d). If the court limits the reading to some but not all

of the testimony that is responsive to the jury‘s request, and the reading is a harmful 

comment on the evidence, we must reverse. See Fox, 283 S.W.3d at 90–91 (holding that 

trial court erred by reading back some but not all testimony responsive to jury‘s request, 

and that error was harmful); Megason v. State, 19 S.W.3d 883, 889–90 (Tex. App.—

Texarkana 2000, pet. ref‘d) (holding that trial court erred by reading back some but not 

all testimony responsive to jury‘s request, but reading was not harmful because omitted 

testimony ―would not be of significance in the outcome of the case‖); see also Robison, 

888 S.W.2d at 480 (noting that one concern in answering jury questions is that trial court 

will comment on evidence). We review a trial court‘s determination about the scope of 

the testimony read to the jury for an abuse of discretion. Brown, 870 S.W.2d at 55; Fox, 

283 S.W.3d at 89.

Assuming without deciding that the trial court erred, we must disregard this nonconstitutional error if we have a fair assurance after reviewing the record that the error 

did not influence the jury or had but a slight effect upon the verdict. See TEX. R. APP. P.

44.2(b); Fox, 283 S.W.3d at 91 (analyzing error of reading back some but not all 

responsive testimony for non-constitutional harm under Rule 44.2(b)). In Fox, the jury 

requested a reading of the direct examination of the complaining witness‘s description of 

the crime. Id. at 89. The defendant requested that the cross-examination testimony on 

the same subject be read as well, but the trial court only ordered the direct examination

testimony read to the jury. Id. at 90. This court found error and reasoned that the error 

was harmful because (1) the testimony during cross-examination contradicted the same 
22

witness‘s testimony during direct examination; and (2) the witness‘s testimony was 

highly probative of the defendant‘s guilt, and therefore the witness‘s credibility was vital 

to the jury‘s decision. Id. at 91.

Dr. Simonetta testified about the amount of force necessary to cause a subdural

hemorrhage while Dr. Kellaway testified about the force necessary to cause a retinal

hemorrhage. Thus, we disagree with appellant that Dr. Simonetta‘s testimony was 

―contrary‖ to Dr. Kellaway‘s testimony. Dr. Kellaway‘s conclusion that Lilah‘s retinal 

hemorrhage was caused by ―tremendous force‖ would not have been undercut by Dr. 

Simonetta‘s testimony that the subdural hemorrhage was caused by ―a fair amount of 

force.‖ After reviewing the entire record, we have a fair assurance that the error did not 

influence the jury or had but a slight effect. See Fox, 283 S.W.3d at 90–91. We overrule 

appellant‘s issue based on this argument.

Accordingly, we overrule appellant‘s third issue. 

CONCLUSION

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

/s/ Sharon McCally

Justice

Panel consists of Justices Brown, Boyce, and McCally.

Do Not Publish — TEX. R. APP. P. 47.2(b).