Opinion filed August 29, 2014

In The

Eleventh Court of Appeals __________

No. 11-12-00073-CR

__________

CHRISTOPHER GALINDO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 24325A

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

Christopher Galindo appeals his jury convictions for three counts of injury to 

a child. See TEX. PENAL CODE ANN. § 22.04 (West Supp. 2013). On the first count

of second-degree injury to a child, the jury assessed Appellant’s punishment at 

confinement in the Institutional Division of the Texas Department of Criminal 

Justice for a term of twenty years and a $10,000 fine. For each of the two
2

remaining counts of third-degree injury to a child, the jury assessed Appellant’s 

punishment at ten years confinement and a $10,000 fine. In three issues on appeal, 

Appellant argues that the trial court erred when it (1) denied his requests for the 

appointment of a defense expert, (2) admitted digitally enhanced photographs, and 

(3) allowed testimony regarding the child victim’s neurological damage. We 

affirm.

Background Facts

Appellant was charged by indictment with three counts of injury to a child. 

The first count alleged that, on or about September 2, 2010, Appellant intentionally 

and knowingly caused serious bodily injury to G.B., a child fourteen years of age 

or younger, by causing G.B.’s head to strike an unknown object. The second count 

alleged that, on or about September 2, 2010, Appellant intentionally and 

knowingly caused serious bodily injury to G.B. by holding G.B.’s foot under hot 

water. The third count alleged that, on or about September 2, 2010, Appellant 

intentionally and knowingly caused bodily injury to G.B. by bruising G.B.’s 

genitals with his hand.

When the trial court subsequently submitted the three counts in the court’s 

charge to the jury, it added the less culpable mental state of reckless conduct to 

Count One. Additionally, the trial court announced to the parties that, based upon 

the evidence offered at trial, it would submit the second count in the court’s charge 

on the lesser included offense of causing bodily injury rather than serious bodily 

injury. The jury convicted Appellant of recklessly causing serious bodily injury on 

Count One and of intentionally or knowingly causing bodily injury on Counts Two 

and Three.

Abilene Police Officer Eric Vickers testified that, on September 2, 2010, he 

was dispatched to a residence on Arnold Street in Abilene, Texas, to investigate a 

reported injury to a child. Officer Vickers noted that the child had purportedly 
3

fallen but that the APD’s policy is to perform a general inquiry when it is informed 

that a child has been injured. When Officer Vickers arrived at the scene, G.B. was 

being transported by ambulance to the local hospital. Officer Vickers encountered 

Appellant, the fiancé of G.B.’s mother, at the residence.

Appellant told Officer Vickers that G.B. had fallen down the steps in front of 

the family’s trailer house and that he had found G.B. unconscious and not 

breathing. Officer Vickers doubted Appellant’s explanation because G.B. showed 

signs of a very severe head injury that was unlikely to have been caused by falling 

down a few steps. Officer Vickers also found Appellant’s reaction to the situation 

a bit alarming given that Appellant was in no rush to check on G.B.’s condition.

Based on Appellant’s behavior, Officer Vickers asked his sergeant to send 

detectives to the scene for further investigation.

Suzie Butz, a sexual assault nurse examiner (SANE), testified that she 

photographed G.B.’s injuries on September 2, 2010, at Hendrick Medical Center. 

Butz stated that she applied “SDFI” technology to some of the photographs. SDFI 

stands for “Secure Digital Forensic Imaging.” She explained that SDFI is a 

computer program that applies a negative inverse filter to a photograph in order to 

highlight “different patterns of injury.” Butz noted that the SDFI images of G.B.’s 

injuries made his bruises more vivid and that they were not true and accurate 

depictions of how G.B. actually looked to the naked eye when the original 

photographs were taken. Butz stated that her examination of G.B. showed that the 

child was bruised all over his body, including his head, penis, arms, and stomach. 

Butz also noted that G.B. had a burn on his right foot that she believed to be a 

second-degree burn.

Henry Higgins, M.D. testified that he treated G.B.’s head trauma at the 

trauma center of Hendrick Medical Center. Dr. Higgins stated that G.B. was in

critical condition and in a deep coma when he first saw the child. Upon examining 
4

G.B.’s body, Dr. Higgins found bruises that appeared to have occurred over several 

different time periods and a burn on G.B.’s foot. Based on G.B.’s injuries, Dr. 

Higgins believed that G.B. had been abused.

Talmadge Trammell, M.D. testified that he performed emergency 

neurological surgery on G.B. at Hendrick Medical Center prior to G.B.’s transfer 

to Cook Children’s Hospital. Dr. Trammell explained that he made an incision in 

G.B.’s scalp and removed a section of G.B.’s skull in order to allow G.B.’s brain to 

swell.

Randi Weaver, a nurse at Cook Children’s Hospital, testified that she 

assisted G.B. with his recovery from his injuries. She testified that G.B.’s left side 

was intensely weaker than his right side and that he was unable to move his left 

arm or leg. Weaver believed that G.B. would always have a problem manipulating 

the left side of his body due to his injuries.

Appellant testified on his own behalf during the guilt/innocence phase. He 

testified that he was at home with G.B. on September 2, 2010, getting ready to 

leave to pick up G.B.’s sister from her school bus stop. Appellant stated that he 

was attempting to put shoes on G.B. but G.B. was being “fussy.” Appellant then 

put his hand on G.B. and pushed him. G.B.’s head struck a coffee table, and he 

lost consciousness. Appellant claimed that he only pushed G.B. in order to make 

G.B. sit down and that he did not intend for G.B.’s head to hit the table. Appellant 

testified that he initially told the police that G.B. had fallen down the stairs because 

he knew that his behavior had been reckless. Appellant noted that he has an anger 

problem, and he admitted hitting G.B. on multiple occasions.

Appellant also testified that, a few days before G.B. hit his head, Appellant

accidently burned G.B.’s foot while giving him a bath. Appellant was attempting 

to wash G.B.’s hair, but G.B. was not cooperating. In order to get the soap out of 

G.B.’s hair, Appellant held G.B.’s leg down in the bathtub. Appellant’s action 
5

forced G.B.’s leg under the hot water faucet, and Appellant did not immediately 

realize that the water was burning G.B.’s foot. Appellant noted that he initially 

lied to the police about how G.B. had sustained the burn because he was afraid that 

he would have been arrested immediately if he had told the truth.

Appellant also admitted that he intentionally pinched G.B.’s genitals a day 

before G.B. sustained his head injury. Appellant stated that he pinched G.B. for 

being “fussy.” Appellant testified that he consciously and intentionally pinched 

G.B.’s genitals despite the fact that he knew that his action would hurt the child. 

Analysis

In his second issue, Appellant asserts that the trial court erred in denying his 

requests for the appointment of an expert in SDFI to assist with the preparation and 

presentation of the defense. According to the literature, SDFI-TeleMedicine LLC

is a company that has developed a “Negative Invert Filter” computer software 

program that inverts or converts the color of each pixel in a digital photograph to 

create a “tonal inversion of a color positive image.”1

 As described in the literature, 

“[w]hen you apply a negative filter to a color positive image, a static string of 

computer code converts complementary colors for each pixel in the original image. 

It then color reverses the image, where red areas of the image appear ‘cyan-ish’, 

green areas appear ‘magenta-ish’ and blue areas appear ‘yellow-ish.’” As further 

described in the literature, “[a]fter the Negative-Invert Filter is applied, you get a 

picture that has high contrast, nothing more.” 

 1

The State offered the accompanying SDFI literature into evidence at the pretrial hearing on 

Appellant’s motion to exclude the SDFI images at trial.
6

Appellant initially presented his request for an expert in an ex parte motion

filed eighteen days prior to trial.2

 He alleged as follows in the motion:

The state has notified defense counsel that the state intends to offer as 

evidence altered photographs produced by a Secured Digital Forensic 

Imaging Camera. Secured Digital Forensic Imaging purports to 

observe and record “subcutaneous” injury, that is, supposed damage 

to tissues below the skin which are not actually indicated by 

discoloration or other visible physical sign on the surface. In fact, 

SDFI is nothing more than a computer-generated image depicting an

artistic representation of a purported condition which is not in fact 

visible or otherwise measurable or observable by any objective 

criteria. The state is proffering SDFI as a scientifically proven and 

reliable technology. Defendant requires expert assistance to testify as

to the actual processes behind SDFI and the lack of scientific validity 

of this supposed technology.

Appellant asserted in the ex parte motion that his counsel had spoken with Sonja 

Eddleman, R.N., “a competent and qualified specialist in the field of forensic 

psychology or psychiatry.” He further stated that she would charge $1,000 to 

review the State’s proposed exhibits and testify at a pretrial hearing on their 

admissibility and that she would charge an additional $1,500 to testify at trial 

“regarding the principles, limited application, and lack of means of independent 

verification of such images.” Appellant concluded the ex parte motion by stating

that the services of an expert in SDFI were necessary to enable him to prepare 

effectively for trial. The trial court denied the ex parte motion by written order on 

January 6, 2012. 

The trial court subsequently conducted a pretrial hearing on Appellant’s 

motion to exclude the SDFI images. After the trial court ruled that the images 

 2

A defendant is entitled to present a request for the appointment of an expert on an ex parte basis 

because he must reveal some details of his defensive theories in order to be entitled to the appointment 

under Ake v. Oklahoma, 470 U.S. 68, 82–83, 86 (1985). See Williams v. State, 958 S.W.2d 186, 191 

(Tex. Crim. App. 1997). 
7

would be admissible at trial,

3 Appellant orally re-urged his ex parte request for the 

appointment of an SDFI expert. The trial court denied Appellant’s request for 

reconsideration.

Appellant additionally presented his request for an SDFI expert at the end of 

the first day of trial after the SDFI images were admitted into evidence. 

Appellant’s counsel stated, “[A]t this time we renew our request for an expert to 

testify as to the limitations of the SDFI system, [its] inaccuracies and its non use in 

standard medical care, as we have previously identified an available expert to the 

Court in or [sic] request for same.” Appellant’s counsel further stated that his 

proposed expert was “a SANE nurse herself and an RN.” The trial court advised 

Appellant’s counsel to check on the proposed expert’s availability and “let [the 

court] know tomorrow morning.” The next day’s proceedings make no mention of 

the availability of the Appellant’s proposed expert. In his brief, Appellant states 

that “the renewed request was denied the next morning prior to resuming on the 

record.”

To preserve error for appellate review, a complaining party must obtain an 

adverse ruling on the record. TEX. R. APP. P. 33.1; see Cienfuegos v. State, 113 

S.W.3d 481, 488 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). If the trial 

court refuses to rule on a request, the complaining party must object to the trial 

court’s refusal to rule. Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004). 

In the absence of an adverse ruling on the record, Appellant did not preserve error 

on his renewed request for an expert after trial commenced. 

With regard to Appellant’s pretrial requests for the appointment of an expert, 

we review the trial court’s rulings for an abuse of discretion. Griffith v. State, 983 

S.W.2d 282, 287 (Tex. Crim. App. 1998). When an indigent defendant makes a 

 3

See our discussion below of Appellant’s first issue pertaining to the admissibility of the SDFI 

images. 
8

threshold showing that expert assistance would likely be a significant factor at trial, 

he is entitled to the appointment of an expert. Ake, 470 U.S. at 82–83, 86; Griffith, 

983 S.W.2d at 286–87. To determine if a defendant is entitled to the requested 

expert, three factors are relevant: (1) the private interest that will be affected by the 

State’s action; (2) the governmental interest that will be affected if the safeguard is 

to be provided; and (3) the probable value of the additional or substitute procedural 

safeguards that are sought, and the risk of an erroneous deprivation of the affected 

interest if those safeguards are not provided. Ake, 470 U.S. at 77; Rey v. State, 897 

S.W.2d 333, 337 (Tex. Crim. App. 1995). The purpose is to ensure that the 

indigent defendant has access to a competent expert to assist in the evaluation of 

his defense. Ake, 470 U.S. at 77; Griffith, 983 S.W.2d at 286. The type of expert 

and the nature and complexity of the field of specialty must be considered in 

deciding if an expert will be helpful or a significant factor at trial. Griffith, 983 

S.W.2d at 287. “The key question appears to be whether there is a high risk of an 

inaccurate verdict absent the appointment of the requested expert.” Busby v. State, 

990 S.W.2d 263, 271 (Tex. Crim. App. 1999).

The burden is on the defendant to make a sufficient threshold showing of his 

particularized need for the expert’s assistance. See Griffith, 983 S.W.2d at 286–87; 

Rey, 897 S.W.2d at 339. In order to carry this burden, a defendant must offer more 

“than undeveloped assertions that the requested assistance would be beneficial.” 

Williams, 958 S.W.2d at 192 (quoting Caldwell v. Mississippi, 472 U.S. 320, 323–

24 n.1 (1985); Rey, 897 S.W.2d at 339 (quoting same). The defendant must show 

both that there exists a reasonable probability that an expert would be of assistance 

and that denial of expert assistance would result in a fundamentally unfair trial.

Davis v. State, 905 S.W.2d 655, 659 (Tex. App.—Texarkana 1995, pet. ref’d).

We analyze whether a defendant made a sufficient threshold showing by 

examining the facts and arguments before the trial court at the time of the 
9

defendant’s motion. Rey, 897 S.W.2d at 342 n.9. In his ex parte motion for 

appointment of an expert, Appellant asserted that he needed an expert to show that 

the SDFI process was unreliable and lacked scientific validity. However, he did 

not support this assertion with an affidavit from his proposed expert. Although

Appellant’s counsel verified the motion, the defendant must show more than the 

mere conclusions of defense counsel. See Norton v. State, 930 S.W.2d 101, 111 

(Tex. App.—Amarillo 1996, pet. ref’d). Furthermore, Appellant alleged in the 

motion that his proposed expert was an “R.N.” and that she was an expert “in the 

field of forensic psychology or psychiatry.” Thus, the motion did not demonstrate 

that Appellant’s proposed expert was an expert in a field related to the topic of 

digital photo enhancement. Appellant did not offer any additional or corrected 

information pertaining to his proposed expert’s qualifications when he 

subsequently re-urged his motion.

We hold that the trial court did not abuse its discretion when it denied 

Appellant’s motion for appointment of an expert. As stated above, a defendant 

must offer more “than undeveloped assertions that the requested assistance would 

be beneficial.” Williams, 958 S.W.2d at 192 (quoting Caldwell, 472 U.S. at 323–

24 n.1). Appellant did not make the required preliminary showing of his need to 

obtain an expert witness. We overrule Appellant’s second issue. 

Appellant’s first and third issues address the admissibility of evidence at 

trial. We review a trial court’s ruling on admissibility of evidence for an abuse of 

discretion. See Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). We 

will uphold the trial court’s decision unless it lies outside the zone of reasonable 

disagreement. Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001).

In his first issue, Appellant asserts that the trial court erred in admitting the 

SDFI images at trial. Appellant filed a pretrial motion challenging the SDFI 

images on the basis that they did not have proven scientific reliability. He 
10

additionally alleged that their probative value was outweighed by the danger of 

unfair prejudice, confusion, or delay. On appeal, Appellant presents his scientific 

reliability contention as Issue “1A” and his unfair prejudice contention as Issue 

“1B.” 

The State called Butz as a witness at the pretrial hearing on Appellant’s 

motion to exclude the SDFI images. She testified that she produced the contested 

photographs using SDFI by taking photographs of G.B.’s injuries and then 

transferring the images into the SDFI computer program. Butz explained that 

SDFI does not alter the original photograph but, instead, makes a copy of the 

photograph and then applies a filter to that copy. She noted that the filter reverses 

the colors in the photograph to show “a better outline of your bruising or your 

patterns.” Butz stated that SDFI technology is readily accepted in “[her] field” in 

the medical community and widely used in sexual assault and child injury 

programs. She further testified that she had personally been using SDFI 

technology for two years.

On cross-examination by Appellant’s counsel, Butz acknowledged that the 

colors of the SDFI image are different than those of the original photograph in that 

the entire color scheme of the original photograph is reversed. Butz stated that the 

SDFI process accentuates bruises and markings that are not immediately visual in 

the original photograph. She denied having any knowledge of how the process 

was designed. Butz testified that she was aware that other SANE programs use 

SDFI photo enhancement but that it is not used in “straight medical applications.”

The trial court denied Appellant’s pretrial motion to exclude the images 

produced by SDFI. In reaching its holding, the trial court stated that the SDFI 

images showed the “same obvious bruising” as did the original photographs but in 

a different color. The trial court also stated that it believed that the process by 

which SDFI images are produced is a “soft science” rather than a “hard science.” 
11

The trial court further opined that the fact that the SDFI images did not reflect what 

G.B. actually looked like could be either explained to the jury or revealed through 

cross-examination.

At trial, the State offered approximately seventy photographs of G.B. into 

evidence during Butz’s testimony. Of these seventy photographs, twenty-two of 

them were SDFI images. The original photograph from which each SDFI image 

was made was also included within the photographs offered into evidence.

Appellant’s counsel conducted a voir dire examination of Butz in the 

presence of the jury prior to the admission of the SDFI images. In doing so, 

counsel established that the color pattern of the SDFI images was changed from the 

originals, that G.B.’s body appeared paler in the SDFI images, and that the bruises 

appeared “more vivid and darker” than they actually appeared “to the naked eye.” 

Appellant’s counsel reiterated these differences between the SDFI images and the 

corresponding original photographs during his cross-examination of Butz. 

Appellant objected at trial that the SDFI images were not accurate depictions of 

what they purported to depict and that their prejudicial value exceeded their 

probative value. The trial court overruled Appellant’s objections and admitted the 

SDFI images.

If scientific, technical, or other specialized knowledge will assist the trier of 

fact to understand the evidence or determine a fact issue, a witness qualified as an 

expert by knowledge, skill, experience, training, or education may testify thereto in 

the form of an opinion or otherwise. TEX. R. EVID. 702. It is a trial court’s 

responsibility under Rule 702 to determine whether proffered scientific evidence is 

sufficiently reliable and relevant to assist the jury. Jackson v. State, 17 S.W.3d 

664, 670 (Tex. Crim. App. 2000). To be considered sufficiently reliable as to be of 

help to a jury, scientific evidence must meet three criteria: (1) the underlying 
12

scientific theory must be valid; (2) the technique applying the theory must be valid; 

and (3) the technique must have been properly applied on the occasion in question. 

Vela v. State, 209 S.W.3d 128, 133–34 (Tex. Crim. App. 2006); Kelly v. State, 824 

S.W.2d 568, 573 (Tex. Crim. App. 1992).

“Hard sciences” are those based on scientific methods that are susceptible to 

rigid scientific testing, such as chemistry; “soft sciences” include nonscientific 

disciplines that rely principally upon technical or specialized knowledge, skill, or 

experience, such as psychology. See Weatherred v. State, 15 S.W.3d 540, 542 n.5 

(Tex. Crim. App. 2000). Because the distinction between various types of 

testimony may often be blurred, the Court of Criminal Appeals “explicitly 

refrained from developing rigid distinctions between ‘hard’ science, ‘soft’ 

sciences, and nonscientific testimony.” Morris v. State, 361 S.W.3d 649, 654–55 

(Tex. Crim. App. 2011). Soft sciences are fields that are based primarily upon 

experience and training as opposed to the scientific method. Nenno v. State, 970 

S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled on other grounds by State v. 

Terrazas, 4 S.W. 3d 720, 727 (Tex. Crim. App. 1999). Kelly’s requirement of 

reliability applies but with less rigor when soft sciences are at issue. Id.

The trial court concluded that the process of digitally enhancing photographs

through the use of the SDFI process constituted a matter of soft science. We 

conclude that the trial court did not err in making this determination. The scientific 

or technical question concerning the SDFI process in this case is essentially a 

matter of comparing each SDFI image to the original photograph from which it 

was made. In this regard, the trial court noted that the SDFI imagines revealed the 

“same obvious bruising” as did the original photographs.4

 The task of comparing 

the original photograph to the SDFI image does not appear to be a matter that is 

 4

We would be presented with a much different question if the SDFI images in this case depicted 

latent injuries that were not revealed in the original photographs.
13

particularly complex. See, e.g., Rodgers v. State, 205 S.W.3d 525, 533 (Tex. Crim.

App. 2006) (noting that the fields of tire comparison and shoe comparison are not 

particularly complex). Butz testified that the SDFI process is something that she 

has been trained to use and that it is used in her SANE program and other SANE 

programs in the state. Thus, the trial court had evidence that she possessed training 

and experience in the field. We conclude that the trial court did not abuse its 

discretion by determining that the SDFI images were scientifically reliable. We 

overrule Appellant’s Issue 1A. 

TEX. R. EVID. 403 provides that relevant evidence may be excluded if its 

probative value is substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the jury or by considerations of undue delay 

or needless presentation of cumulative evidence. See Young v. State, 283 S.W.3d 

854, 874 (Tex. Crim. App. 2009). Our analysis under Rule 403 includes, but is not 

limited to, the following factors: (1) the probative value of the evidence, (2) the 

potential to impress the jury in some irrational yet indelible way, (3) the time 

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

Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012); Shuffield v. 

State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). In determining whether the 

probative value of a photograph is substantially outweighed by the danger of unfair 

prejudice, we also consider “the number of exhibits offered, their gruesomeness, 

their detail, their size, whether they are in color or black-and-white, whether they 

are close-up, whether the body depicted is clothed or naked, the availability of 

other means of proof, and other circumstances unique to the individual case.” 

Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim. App. 2009).

We note at the outset that Appellant did not object to the forty-eight original 

photographs taken of G.B. by Butz at Hendrick Medical Center. Each of the 

twenty-two SDFI images were immediately preceded by the original photograph 
14

from which they were made. As noted previously, the SDFI images revealed the 

same obvious bruising depicted in the original photographs. While the SDFI 

images of G.B. are disturbing and graphic, they are probative because they are 

accurate depictions of the extent of his injuries. See Williams, 301 S.W.3d at 691 

(photographs were probative because they depicted victim’s injuries). They are no 

more disturbing than the original photographs of G.B. Furthermore, there is 

nothing in the record to suggest that these photographs were “offered solely to 

inflame the minds of the jury.” Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim.

App. 2004) (quoting Martin v. State, 475 S.W.2d 265, 267 (Tex. Crim. App. 

1972)). To the contrary, the SDFI images were primarily used during the 

punishment phase to illustrate the “head-to-toe” nature of G.B.’s injuries. Because 

the SDFI images essentially depict the same injuries depicted in the original 

photographs, the trial court did not abuse its discretion in determining that their 

probative value was not substantially outweighed by the danger of unfair prejudice. 

We overrule Appellant’s Issue 1B.

Appellant also asserts in his first issue that the SDFI images were not 

properly authenticated. We disagree. A photograph may be authenticated by the 

testimony of any witness who has personal knowledge that the particular item 

accurately represents the scene or event it purports to portray. See Kephart v. 

State, 875 S.W.2d 319, 321 (Tex. Crim. App. 1994). Butz, the sponsoring witness 

for the SDFI images, was the photographer that took the original photographs and 

the person that processed the photographs through the SDFI system. Accordingly, 

Butz’s testimony was sufficient to authenticate the SDFI images.

Finally, even if we assume that the trial court erred when it allowed the 

admission of the SDFI images, we cannot say that Appellant was harmed by the 

error. The erroneous admission of evidence is subject to the nonconstitutional 

error standard set out in TEX. R. APP. P. 44.2(b). Easley v. State, 424 S.W.3d 535, 
15

539–40 (Tex. Crim. App. 2014). Pursuant to Rule 44.2(b), an appellate court must 

disregard nonconstitutional error unless it affects the appellant’s substantial rights.

Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011). An appellate court 

should not overturn a criminal conviction for nonconstitutional error “if the 

appellate court, after examining the record as a whole, has fair assurance that the 

error did not influence the jury, or influenced the jury only slightly.” Id.

The SDFI images were essentially cumulative of the original photographs 

from which they were made. Inadmissible evidence can be rendered harmless if 

other evidence is admitted without objection and proves the same fact that the 

inadmissible evidence sought to prove. Brown v. State, 757 S.W.2d 739, 740–41 

(Tex. Crim. App. 1988). Furthermore, Appellant’s counsel pointed out the 

differences between the SDFI images and the original photographs in his crossexamination of the sponsoring witness. Finally, the jury rejected the State’s 

attempt to convict Appellant of a first-degree felony for the very serious head 

injury alleged in Count One. Instead of finding that Appellant intentionally or 

knowingly caused the head injury, the jury found that he recklessly inflicted the 

injury, thereby convicting him of a second-degree felony rather than a first-degree 

felony. See PENAL § 22.04(e). Accordingly, we have fair assurance that the SDFI 

images had very little influence on the jury. We overrule Appellant’s first issue. 

In his third issue, Appellant contends that the trial court erred in admitting 

evidence of the neurological injuries that G.B. suffered as a result of the head 

injury. Dr. Trammell, the neurosurgeon that performed emergency surgery to 

remove a portion of G.B.’s skull to relieve brain swelling, testified during the 

guilt/innocence phase that G.B. had “severe neurological deficit.” Appellant 

objected to this testimony on the basis that it constituted evidence of an extraneous 

offense. Appellant additionally objected to evidence regarding the treatment that 
16

G.B. received for the head injury on the basis that it constituted “victim impact” 

testimony.

A person commits the offense of injury to a child by causing (1) serious 

bodily injury; (2) serious mental deficiency, impairment, or injury; or (3) bodily 

injury. PENAL § 22.04(a). Appellant contends that evidence of G.B.’s neurological 

injuries constituted evidence of an extraneous offense under Section 22.04(a)(2)

because he was only charged in Count One with committing serious bodily injury 

under Section 22.04(a)(1). Appellant is correct in his contention that the offense of 

committing injury to a child by causing “serious mental deficiency, impairment, or 

injury” is a separate offense from causing “serious bodily injury.” See Stuhler v. 

State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007) (requiring jury unanimity on 

the issue of whether the defendant caused “serious mental deficiency, impairment, 

or injury” versus “serious bodily injury”). However, we disagree with Appellant’s

argument that evidence of G.B.’s neurological injuries constituted evidence of an 

extraneous offense.

The Penal Code defines “serious bodily injury” as “bodily injury that creates 

a substantial risk of death or that causes death, serious permanent disfigurement, or 

protracted loss or impairment of the function of any bodily member or organ.” 

PENAL § 1.07(a)(46). Evidence of G.B.’s neurological injuries was relevant to the 

question of whether he suffered “protracted loss or impairment of the function of 

any bodily member or organ.” See id. Circumstances of the offense that tend to 

prove the allegations in the indictment are not extraneous offenses. Camacho v. 

State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993); Ramirez v. State, 815 S.W.2d 

636, 643 (Tex. Crim. App. 1991). Moreover, evidence of another crime, wrong, or 

act may also be admissible as same-transaction contextual evidence when several 

crimes are intermixed, blended with one another, or connected so that they form an 

indivisible criminal transaction, and full proof by testimony of any one of them 
17

cannot be given without showing the others. Devoe v. State, 354 S.W.3d 457, 469 

(Tex. Crim. App. 2011). On the record before us, the trial court could have 

reasonably concluded that evidence of G.B.’s neurological injuries constituted 

admissible same-transaction contextual evidence. Accordingly, the trial court did 

not abuse its discretion in admitting evidence of G.B.’s neurological injuries. We 

overrule Appellant’s third issue.

This Court’s Ruling

We affirm the judgments of the trial court.

JOHN M. BAILEY

JUSTICE 

August 29, 2014

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

Panel consists of: Wright, C.J., 

Willson, J., and Bailey, J.