### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00782- CR

Der rick L. Davis, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 167 TH JUDICI AL DISTRICT NO. D-1 -DC- 10- 9040 84, H ONO RAB LE JO N W. W ISSER, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N
D e r r ic k D a v is a n d Wh it n e y Sn e e d

- M o o r e a

r e th e p a r e n ts o f M
. D
. A t th e ti me r e le v a n t to this appea l, Davis was the primary car eg iver for M.D. A few months afte r M.D. was born, SneedMoore left M.D. in Davis’s custody and we n t t o wo rk. When she returne d home from work, she chec ked on M.D. and noticed that M.D. appea red to be sleeping
. When she went to chec k on M.D. later in the evening , she noticed that one of M.D.’s ey es had blood in it. Sneed-Moor e asked Davis

w h a t h a p p e n e d , a n d h e s a id th a

t M
. D
. h a d f

a ll e n o f f o f th e b e d
. Sh o r

tl y th e r e a f te r , M
. D
. h a d a s e iz u

r e . I n response , the couple called 911, and M.D. was rushe d to a nea rby emer g ency

room. Whil e she
was in the hospital, M.D. was trea ted for signific ant head trauma and other injuries, and she stay ed in the intensive ca

re unit for wee ks befor e being rele ased. I nitially , Davis told the police that M.D. had fallen off of a bed or couch or had been hurt when he rushed to the kitchen while car ry ing her. After the police conducte d an investiga tion,Davis was arr ested, and a trial was schedule d. At the end of the trial, the jury conclude d that Davis

was guilty of i njury to a child with serious bodi ly injury and agg rava ted assault
. Da v i s el ected to have the district court assess his punishment, and the district court imposed a prison term of 15 y ear s for both counts a

nd order ed that the punishments run c oncurr ently
. Subsequent t o receiving his sentenc e, Davis appea led t he dis trict court’s judgment of convic tion.
DISCUSSIO N

I n his sole issue on app ea l , Davis arg ues that the district court err ed by admitting into evidenc e M.D.’s m edical rec ords beca use the require ments for the admission of s e lf

a u th e n ti c a ti n g d o c u me n ts u n d e r r u le o f e v id e n c e 9 0 2 w e r e n o t c o mp li e d w it h
. S e e T e x. R. E v id
. 9 0 2
. We revie w a t ri al co u rt ’s “admission or exclusion of evidenc e under the abuse of discretion standard.” Hawkins v. State , 89 S.W .3d 674, 678 (Tex. App.—Houston [1st Dist.] 2002, pet. ref ’d). Under that standard, a trial court is “g iven wide latitude” reg arding its decision to admit or exclude evidenc e. Id. Provided that the ruling was “within the zone of rea sonable disag ree ment,” the trial court’s r uling will be uphe ld. Id. The State soug ht to admit some of M.D.’s medical rec ords as business rec ords under rule 902(10). Tex. R. Evid. 902; see Adams v. State , 985 S.W .2d 582, 583-84 (Tex. App.—Eastland 1998, pet. ref

’d) (conc luding t h at district court did not abuse its discretion by admitting medical
rec ords under rules of evidenc e)
. R u l e 902 states that “[e]x trinsic evidenc e of authenticity as a condition pr ece dent to admissibili ty is not require d” for cer tain ty pes of documents. Tex. R. Evid. 902. The rule provides that any rec ord, “which would be admissible under Rule 803(6) or (7) shall 2be admissible in evid ence in any court in this state upon the aff idavit of the person who would otherwise provide the prer equisites of Rule 803(6) or (7), that such rec ords attache d to such aff idavit
wer e in fac t so kept as require d by Rule 803(6) or (7),” provided that the rec ord and the aff idavit “ar e filed with the cler

k of the court
. . . at least fourtee n day s prior to the” start of the trial and provided that the other parties are g iven “prompt notice” that the reco rd s h av e b ee n filed. Tex. R. Evid. 902(10). Fur

ther, the rule provides that the “re cords shall be made available to the counsel for other parties to the a ction or litiga tion for inspection and c opy ing.” Id.

The State attempted to file the medical rec ords with the district cler k approximately 30 day s befor e the trial was set to be held, but the district cler k informed the State that there was not enoug h room in the cler

k’s office to store the medical rec ords and asked the State to store them in its office s in the same building. During the trial, the medical rec ords wer e offe red, but Davis objected to their admission on the g round that “not ke eping the fil ed busi ness records in the district cler k’s office was a

violation of” rule 902( 10), and D avis repe ats that asser tion on appeal. We note that the rule does not addre ss situations in which a cler k’s office ref

uses to
s tore rec ords filed under rule 902; howeve r, we also note that the State made eff orts to compl y with the rema ining r equire ments of the rule . Although the cler k’s office did not keep the medical
r e c o r d s , th e St a

te a tt e mp te d to f

il e th e r e c o r d s w e ll b e f

o r e th e d e a d li n e e xp r e s s e d in r u le 9 0 2
. S

e e id

. Moreove r, the State notified Davis that it had attempted to file the rec ords but that the cler k asked the State to store the documents. Fur ther, the State informed Davis that the documents wer e in the district attorney ’s office , and Davis’s attorney went to the district at t o rney ’s office to revie w the documents prior to trial. Moreove r, when the district court was informed of the matter, it g ave Davis

3permission to take the re cords home to revie w t hem before they wer e admitt ed int o evidenc e, and

it also offe red to provide Davis with a copy of the rec ords. I n addition, when challeng ing the district court’s decision to admit the documents, Davis m ade no alleg ation that any of t he documents had been a ltered. I n light of the prec eding , we are not persua ded that the district court’s decision to admit the medical reco rd s u nder rule 902(10) was outside the zone of rea sonable disag ree ment. Howeve r, eve n assuming tha t the district court’s ruling was improper , we would still be unable to sustain Davis’s issue on appea l. When deciding whether an err or is reve rsible err or, appellate
co u rt s must deter

mine if the err or is constitutional or non-constitutional in nature
. See Tex. R. App. P. 44.2. The err oneous admission of evidenc e is not constitutional e rror . See Casey v. State , 215 S.W .3d 870, 885 (Tex. Crim. App. 2007). Acc ording ly , the error must be dis reg arde d unless it aff ecte d substantial rig hts. Tex. R. App. P. 44.2(b). A defe ndant’s substantial rig hts are aff ecte d “whe n the err or had a substantial and injurious eff ect or influence in deter mining the jury ’s verdic t.” King v. State , 953 S.W .2d 266, 271 (Tex. Crim. App. 1997). I n perf orming this analy sis, the revie wing “cour

t should consider ever

y thing in the rec ord, including any testimony or phy sical evidenc e admitted for the jury ’s consideration, the nature of the evidenc e supporting t h e v erdic t, the char acte r of the alleg ed err or and how it might be considere d in connec tion with other evidenc e in the case .” Morales v. State , 32 S.W .3d 862, 867 (Tex. Crim. App. 2000); see Motilla v. State , 78 S.W .3d 352, 355 (Tex. Crim. App. 2002). I f the revie wing court, “af ter examining the rec ord as
a whole, has fair assura

nce that the err or did not influence the jury , or had but a slight eff ect,” then the def endant’ s substantial rights we re not a ffe cted. Motilla , 78 S.W .3d at 355.

4The medical rec ords at i s s u e detailed the injuries that M.D. sustained prior to

her arriva l at t he hospi tal and the trea tment that she underwent afte r her arr ival. As a preliminary matter, we note that Davis does not ar gu e t h at t h e admission of the medical rec ords harme d his substantial rig hts. I n any event, the same information contained in the medical rec ords was rela ted to the jury without objection throug h other exhibi ts and throug h the testimony of various witnesses. 1 Cf. Massey v. State , 9 3 3 S
. W
. 2 d 141, 149 (Tex. Crim. App. 1996) (explaining that if defe ndant objects to admission of evidenc e b u t s a me e v ide nce is later admitted from differ ent source , defe ndant waives obje ction); see W

ebber v. State , 21 S.W .3d 726, 730 (Tex. App.—Austin 2000, pet. ref ’d) (stating that “over

ruling an objection to evidenc e will not result in reve rsal when other such evidenc e
was rec eived with o u t o b

j ec tion, either befor e or afte r the complained- of ruling ”). For example, Sneed-Moor e testified that when she went to chec k on M.D., she noticed that M.D. had a black ey e and then saw M.D. throw up and start seizing. Fur thermore , Sneed-Moor e explained that when they
arr ived at the hospital, the doc tors hooked M.D. up to a ventilator, gave her a transfusion, and put her in a medically -induce d coma. I n addition, Sneed-Moor e testified that as a result of her injuries, M.D. was in the hospital for a month. I n addition to the testimony from M.D.’s mother, two individuals who res p o n d ed to the 911 call also testified reg arding M.D.’s injuries. First, Robe rt Ki n g t es t i fied that he works for the Pfluge rville Fire Depa rt m en t an d related that when he arr ived on the scene , M.D. was unconscious, had blood in one of her e y es bec ause some of her blood ve ssels had broken, and had

I t is worth noting that in response to a reque st by Davis, the district court reda cted portions 1 of the exhibi t that mentioned that Davis had made thr ea t en i n g statements to various medical personne l and that detailed inc idents that Davis had with hospital secur ity
. 5abdominal bruising. During King ’s testimony , the district court admitted a repor t prepa red by King that listed M.D.’s injuries.

After King conclude d his testimony , the State called para medic Chery l Ba

khtiari. I n her testimony , she stated that the injuri es M
. D. ex hibited “most likely could have only happene d delibera tely .” When descr ibing what she saw, she said that M.D.’s fac e was red, that one of M.D.’s ey es was bloodshot, that M.D. had a bruise o n h er abdomen, and that the two soft spots on M.D.’s head “we re not sunken” as they should have been and wer e instead “fla t, not quite bulging , but almost.” Reg arding the s o ft s p ots, Ba khtiari testified that their appea ranc e was indicative of brain swe lling. During her testimony , Ba khtiari also rea d portions of a re port prepa red by another para medic that was admitted into evidenc e. Those port i o n s d escribed M.D. as sustaining serious injuries and listed that M.D. had a larg e contusion and broken blood vessels of the ey e and suffe red a seizure on the w ay

to the hospital. D u r in g th e tr ia l, th r e e o f M
. D
. ’ s tr e a

ti n g p h y s ic ia

n s te s ti f ie d
. F ir s t, D r . Ro b e r

t V e zze tt i

w a s c a ll e d to th e s ta

n d
. H e w a s th e p e d ia

tr ic e me r g e n c y p h y s ic ia

n w h o tr e a te d M
. D
. w h e n s h e a

r r iv e d at the hospital. Dr. Vezzetti testified that M
. D. was unresponsive and not brea thing on her own when she arr ived at the hos pital and had a seiz ure in the emerg ency room. I n additio n , h e rela ted th a t h e r c o n d it io n w a s “ v e r

y c r it ic a l. Sh e [w a s ] n o t b r e a th in g . So b e c a

u s e o f th a t, s h e h a [d ] p o te n ti a l for r espirator

y arr est
. . . . [and] car diac arre st.” I n his testimony , Dr. Ve zz etti expl ained that they put M.D. on a ventilator beca use she was not brea thing sufficie ntly on her own. Fur ther, he rela ted that the rig ht side of M.D.’s fac e was swollen and bruised and that sh e h ad a “subconjuctival hemorrha g e” or blood in her rig ht ey e. Reg arding the injury to the ey e, Dr. Vezzetti stated that it can

6be caused by a blow to the ey e or trauma to the head. Dr. Vezz etti ag ree d that M.D. had s u ff ere d “ser ious bodily injury ” and also postulated that M.D.’s injuries plac ed her in serious risk of death. I n his te stimony , Dr. Vezzetti explained that he did not believe that M.D.’s injuries could have been cause d by falling off of a bed or by acc identally bumping the baby ’s head on a wall;
on the contra

ry , he insisted that the injuries that M.D. sustained wer e likely cause d by “[r]eally violent forc e” and by “either violent shaking or violent throwing .” He also descr ibed M.D.’s injuries
as being cause d by “ac cele ration/dec eler ation forc es” and explained that the injuries could have been
cause d if M.D. was throw n at a wa ll or another ha rd surfa ce. During his testimony , Dr. Vezzetti’s medical notes from the night that M.D. was taken to the hospital wer e admitted into evidenc e. The notes indicated that when M.D. arr ived, she
was “not rea lly active” and had a low score on the coma scale that the doctors use to assess patients. The notes also stated that she was in “seve re distress, letharg ic and unresponsive,” that she was not brea thing normally , and that M.D. was not responsive to pain. I n addition, the repor t chronic led the injuries to M.D.’s ey e and abdomen and reve aled Dr. Vezzetti’s impression that M.D.’s injuries
wer e not the re sult of acc idental trauma
.

The State also called Dr. Renee Hig g erson to the stand. Dr. Hig g erson is a pediatric intensive car e phy sician who trea ted M.D. afte r she was transfe rre d to the intensive car e unit. I n her testimony , Dr. Hig g erson explained the eff orts that wer e underta ken to lessen the pressure on M.D.’s brain and to stop the seizures, including naming the medicines that wer e administered, the tests that
wer e perf ormed, and the need to put M.D. in a medically -induce d coma. I n addition, Dr. Hig g erson rela ted that M.D. had “inter m ittent but very rec urre nt” seizures for the first wee k. Dr. Hig g erson

7also testified that when they examined M.D., they noticed that M.D. had fra cture s to her femur and

tibia bones of her rig ht leg , and Dr. Hig g erson explained that those fra cture s wer e rec ent and that the fe m u r bone is very difficult to brea k. Moreove r, Dr. Hig g erson testified that M.D. had “six ri b fra cture s” and that the fra cture s occur red a few wee ks befor e M.D. was taken to the hospital. When descr ibing the totality

of M.D.’s injuries, Dr . Hig g erson testified tha t M.D. was “a s critical a s y ou
can possibly be. We explained to the family the first night that there was a very signific ant chanc e that she would die.” Moreove r, Dr. Hig g erson rela ted that the injuries wer e cause d by “a g rea t deal of forc e” and that she did not believe that the injuries could have been cause d acc identally
. I n fac t, Dr. Hig g erson stated that in the abs en ce o f a multi-story fall or a car acc ident, M.D.’s injuries
wer e likely cause d by someone beating her. Dr. Hig g erson also testified that all of the injuries wer e consistent with someone g rabbing M.D. by the leg and slamming her into something
. I n addition to the testimony from the two doctors from the hospital, the State called M.D.’s pediatric ian, Dr. Elise Kibler, to testify reg arding the injuries that M.D. sustained and her prog nosis. I n her testimony , Dr. Kibler explained that as a result of M.D.’s injuries, she “is unable to control the movement of her rig ht ey e” and has poor streng th on half of her body
. Fur ther, Dr. Kibler rela ted that she did not expect M.D.’s difficulties to “cha ng e in any signific ant way .” I n addition, Dr. Kibler stated that M.D. is “at a very high risk for intellectual and I Q problems.” Also, Dr. Kibler t es tified reg arding the i njuries t hat M .D. s ustained, i ncluding damag e to multipl e parts of her brain and fra cture s to her legs , an d cl ar i fied that the ty pe of forc e that had been applied to M.D. was “si milar to that of a car acc ident.” Moreove r, Dr. Kibler ex plained that the widespread nature of M.D.’s injuries de monstrated that M.D. ha d sustained multiple blows to t he hea d.

8I n a d d it io n to c a ll in g th e p h y s ic ia n w i t n e s s e s d e s c ri b e d a

b o v e a n d a d m i t t in g th e me d ic a l
rec ords at issue, the State admitted without objec t i o n a copy of M.D.’s medical discharg e paper s from the intensive car e unit, which provided a summary of her injuries and trea tment. Also, photos of M.D. that wer e taken while she was in the hospital wer e admitted into evidenc e without objection.

Finally , evidenc e w as introduced reg arding statements t hat Davis made about how M.D. had been injured. During the trial, two signe d statements by Davis wer e admitted and rea d to the j ury . I n the first statement, Da vis asserted tha t M.D. was hurt whe n she fe ll off of the be d and hit her head on various objects. I n the second statement obtained later, Davis rela ted that two wee ks befor e M.D. was admitted into the hospital, he beca me upset with M.D. “bec ause she would not stop cry ing, so I picked her up and squee zed her ribs.” Reg arding how M.D. wa s hurt on the night that she was taken to the hospital, Davis explained that M.D. “wa s cry ing and wo u l d n o t s t op and [he] snapped. [ He] slapped [ M.D.] three times in the face. I th en s l am m ed h er head into the wall
one time. I am tired of beating up my own daug hter. I need so m eo ne to help me.” I n addition, 2 Detec tive Ramon L opez testified that when he talked to Davis about what happene d, Davis initially
s t at ed t h at M.D. fell off of the bed but later admitted that a few wee ks befor e M.D. was taken t o the hospital, he g rabbe d M.D. “and squ eezed her too tight.” Simi larly , an investiga tor for Child Protective Service s, Mike Br adburn, testified reg arding an interview t h at h e had with Davis. Acc ording to Br adburn, Davis orig inally stated that M.D. was hurt when she fell from the bed or a couch in the living room but later state d that M.D. may have been hurt when he ran to the kitchen

Davis waived his rig ht to rema in silent and testified at trial. I n his testimony , Davis stated 2 that he told the police that he had hurt M.D. in order to cover for Sneed-Moor e. He also testified that the var ious versions that he told the police r eg arding how M.D. wa s hurt wer e “a ll lies.” 9holding M.D. Specifica lly , Br adburn rela ted that Davis said that M.D.’s head hit the wall when he

was running
. I n addition, Br adburn discussed the injuries to M.D. ’s ri b s an d s tated that Davis
a d mi tt e d th a t th e in ju r ie s to M
. D
. ’ s r ib s w e r e c a u s e d w h e n h e s q

u e e ze d h e r to o ti g h t o u t o f f r u s tr a ti o n . I n li g h t o f th e e v idence summarized above, we must conclude that any err or ste mm in g from the district cour

t’s decision to a dmit into evidenc e the disputed medical rec ords did not have “a substantial a

nd injurious effe ct or influenc e in de termining the jury ’s verdic t” and there fore did not a ffe ct Davis’s substantial r ights. See King , 953 S.W .2d at 271. Acc ording ly , we hold tha t a ny
err or would be ha

rmless and ove rrule D avis’s issue on appe al. See Tex. R. App. P . 44.2(b).

CONCLUSION H a v in g o v e r r u le d Davis’s sole issue on appea l, we aff irm the district court ’ s ju d g me n t of convic tion.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Henson, a nd Goodwin Affir med Filed: Aug ust 16, 2012 Do Not Publish

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