TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-10-00782-CR

Derrick L. Davis, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. D-1-DC-10-904084, HONORABLE JON W. WISSER, JUDGE PRESIDING

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

Derrick Davis and Whitney Sneed-Moore are the parents of M.D. At the time relevant

to this appeal, Davis was the primary caregiver for M.D. A few months after M.D. was born, SneedMoore left M.D. in Davis’s custody and went to work. When she returned home from work, she

checked on M.D. and noticed that M.D. appeared to be sleeping. When she went to check on M.D.

later in the evening, she noticed that one of M.D.’s eyes had blood in it. Sneed-Moore asked Davis

what happened, and he said that M.D. had fallen off of the bed. Shortly thereafter, M.D. had a seizure.

In response, the couple called 911, and M.D. was rushed to a nearby emergency room. While she

was in the hospital, M.D. was treated for significant head trauma and other injuries, and she stayed

in the intensive care unit for weeks before being released.

Initially, 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 carrying her. After the police conducted an investigation,
Davis was arrested, and a trial was scheduled. At the end of the trial, the jury concluded that Davis

was guilty of injury to a child with serious bodily injury and aggravated assault. Davis elected to

have the district court assess his punishment, and the district court imposed a prison term of 15 years

for both counts and ordered that the punishments run concurrently.

Subsequent to receiving his sentence, Davis appealed the district court’s judgment

of conviction.

DISCUSSION

In his sole issue on appeal, Davis argues that the district court erred by admitting

into evidence M.D.’s medical records because the requirements for the admission of selfauthenticating documents under rule of evidence 902 were not complied with. See Tex. R. Evid. 902.

We review a trial court’s “admission or exclusion of evidence 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 “given wide latitude” regarding its decision to admit or exclude

evidence. Id. Provided that the ruling was “within the zone of reasonable disagreement,” the trial

court’s ruling will be upheld. Id.

The State sought to admit some of M.D.’s medical records as business records 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) (concluding that district court did not abuse its discretion by admitting medical

records under rules of evidence). Rule 902 states that “[e]xtrinsic evidence of authenticity as a

condition precedent to admissibility is not required” for certain types of documents. Tex. R. Evid.

902. The rule provides that any record, “which would be admissible under Rule 803(6) or (7) shall

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be admissible in evidence in any court in this state upon the affidavit of the person who would

otherwise provide the prerequisites of Rule 803(6) or (7), that such records attached to such affidavit

were in fact so kept as required byRule 803(6) or (7),” provided that the record and the affidavit “are

filed with the clerk of the court . . . at least fourteen days prior to the” start of the trial and provided

that the other parties are given “prompt notice” that the records have been filed. Tex. R. Evid.

902(10). Further, the rule provides that the “records shall be made available to the counsel for other

parties to the action or litigation for inspection and copying.” Id.

The State attempted to file the medical records with the district clerk approximately

30 days before the trial was set to be held, but the district clerk informed the State that there was not

enough room in the clerk’s office to store the medical records and asked the State to store them in its

offices in the same building. During the trial, the medical records were offered, but Davis objected

to their admission on the ground that “not keeping the filed business records in the district clerk’s

office was a violation of” rule 902(10), and Davis repeats that assertion on appeal.

We note that the rule does not address situations in which a clerk’s office refuses to

store records filed under rule 902; however, we also note that the State made efforts to comply

with the remaining requirements of the rule. Although the clerk’s office did not keep the medical

records, the State attempted to file the records well before the deadline expressed in rule 902. See id.

Moreover, the State notified Davis that it had attempted to file the records but that the clerk asked

the State to store the documents. Further, the State informed Davis that the documents were in the

district attorney’s office, and Davis’s attorney went to the district attorney’s office to review the

documents prior to trial. Moreover, when the district court was informed of the matter, it gave Davis

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permission to take the records home to review them before they were admitted into evidence, and

it also offered to provide Davis with a copy of the records. In addition, when challenging the district

court’s decision to admit the documents, Davis made no allegation that any of the documents had

been altered.

In light of the preceding, we are not persuaded that the district court’s decision to

admit the medical records under rule 902(10) was outside the zone of reasonable disagreement.

However, even assuming that the district court’s ruling was improper, we would still be unable to

sustain Davis’s issue on appeal. When deciding whether an error is reversible error, appellate

courts must determine if the error is constitutional or non-constitutional in nature. See Tex. R.

App. P. 44.2. The erroneous admission of evidence is not constitutional error. See Casey v. State,

215 S.W.3d 870, 885 (Tex. Crim. App. 2007). Accordingly, the error must be disregarded unless

it affected substantial rights. Tex. R. App. P. 44.2(b). A defendant’s substantial rights are affected

“when the error had a substantial and injurious effect or influence in determining the jury’s

verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In performing this analysis,

the reviewing “court should consider everything in the record, including any testimony or physical

evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict,

the character of the alleged error and how it might be considered in connection with other evidence

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). If the reviewing court, “after examining the record as

a whole, has fair assurance that the error did not influence the jury, or had but a slight effect,” then

the defendant’s substantial rights were not affected. Motilla, 78 S.W.3d at 355.

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The medical records at issue detailed the injuries that M.D. sustained prior to

her arrival at the hospital and the treatment that she underwent after her arrival. As a preliminary

matter, we note that Davis does not argue that the admission of the medical records harmed his

substantial rights. In any event, the same information contained in the medical records was related

to the jury without objection through other exhibits and through the testimony of various witnesses.1

Cf. Massey v. State, 933 S.W.2d 141, 149 (Tex. Crim. App. 1996) (explaining that if defendant

objects to admission of evidence but same evidence is later admitted from different source, defendant

waives objection); see Webber v. State, 21 S.W.3d 726, 730 (Tex. App.—Austin 2000, pet. ref’d)

(stating that “overruling an objection to evidence will not result in reversal when other such evidence

was received without objection, either before or after the complained-of ruling”). For example,

Sneed-Moore testified that when she went to check on M.D., she noticed that M.D. had a black eye

and then saw M.D. throw up and start seizing. Furthermore, Sneed-Moore explained that when they

arrived at the hospital, the doctors hooked M.D. up to a ventilator, gave her a transfusion, and put

her in a medically-induced coma. In addition, Sneed-Moore testified that as a result of her injuries,

M.D. was in the hospital for a month.

In addition to the testimony from M.D.’s mother, two individuals who responded

to the 911 call also testified regarding M.D.’s injuries. First, Robert King testified that he works

for the Pflugerville Fire Department and related that when he arrived on the scene, M.D. was

unconscious, had blood in one of her eyes because some of her blood vessels had broken, and had

It is worth noting that in response to a request by Davis, the district court redacted portions 1

of the exhibit that mentioned that Davis had made threatening statements to various medical

personnel and that detailed incidents that Davis had with hospital security.

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abdominal bruising. During King’s testimony, the district court admitted a report prepared by King

that listed M.D.’s injuries.

After King concluded his testimony, the State called paramedic Cheryl Bakhtiari. In

her testimony, she stated that the injuries M.D. exhibited “most likely could have only happened

deliberately.” When describing what she saw, she said that M.D.’s face was red, that one of M.D.’s

eyes was bloodshot, that M.D. had a bruise on her abdomen, and that the two soft spots on

M.D.’s head “were not sunken” as they should have been and were instead “flat, not quite bulging,

but almost.” Regarding the soft spots, Bakhtiari testified that their appearance was indicative of

brain swelling. During her testimony, Bakhtiari also read portions of a report prepared by another

paramedic that was admitted into evidence. Those portions described M.D. as sustaining serious

injuries and listed that M.D. had a large contusion and broken blood vessels of the eye and suffered

a seizure on the way to the hospital.

During the trial, three ofM.D.’streating physicianstestified. First, Dr.Robert Vezzetti

was called to the stand. He wasthe pediatric emergency physician who treated M.D. when she arrived

at the hospital. Dr. Vezzetti testified that M.D. was unresponsive and not breathing on her own

when she arrived at the hospital and had a seizure in the emergency room. In addition, he related

that her condition was “very critical. She [was] not breathing. So because of that,she ha[d] potential

for respiratory arrest . . . . [and] cardiac arrest.” In his testimony, Dr. Vezzetti explained that they

put M.D. on a ventilator because she was not breathing sufficiently on her own. Further, he related

that the right side of M.D.’s face was swollen and bruised and that she had a “subconjuctival

hemorrhage” or blood in her right eye. Regarding the injury to the eye, Dr. Vezzetti stated that it can

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be caused by a blow to the eye or trauma to the head. Dr. Vezzetti agreed that M.D. had suffered

“serious bodily injury” and also postulated that M.D.’s injuries placed her in serious risk of death.

In his testimony, Dr. Vezzetti explained that he did not believe that M.D.’s injuries

could have been caused by falling off of a bed or by accidentally bumping the baby’s head on a wall;

on the contrary, he insisted that the injuries that M.D. sustained were likely caused by “[r]eally

violent force” and by “either violent shaking or violent throwing.” He also described M.D.’s injuries

as being caused by“acceleration/deceleration forces” and explained that the injuries could have been

caused if M.D. was thrown at a wall or another hard surface.

During his testimony, Dr. Vezzetti’s medical notes from the night that M.D. was

taken to the hospital were admitted into evidence. The notes indicated that when M.D. arrived, she

was “not really 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 “severe distress, lethargic and unresponsive,” that she was not

breathing normally, and that M.D. was not responsive to pain. In addition, the report chronicled

the injuries to M.D.’s eye and abdomen and revealed Dr. Vezzetti’s impression that M.D.’s injuries

were not the result of accidental trauma.

The State also called Dr. Renee Higgerson to the stand. Dr. Higgerson is a pediatric

intensive care physician who treated M.D. after she was transferred to the intensive care unit. In her

testimony, Dr. Higgerson explained the efforts that were undertaken to lessen the pressure on M.D.’s

brain and to stop the seizures, including naming the medicines that were administered, the tests that

were performed, and the need to put M.D. in a medically-induced coma. In addition, Dr. Higgerson

related that M.D. had “intermittent but very recurrent” seizures for the first week. Dr. Higgerson

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also testified that when they examined M.D., they noticed that M.D. had fractures to her femur and

tibia bones of her right leg, and Dr. Higgerson explained that those fractures were recent and that the

femur bone is very difficult to break. Moreover, Dr. Higgerson testified that M.D. had “six rib

fractures” and that the fractures occurred a few weeks before M.D. was taken to the hospital. When

describing the totality of M.D.’s injuries, Dr. Higgerson testified that M.D. was “as critical as you

can possibly be. We explained to the family the first night that there was a very significant chance

that she would die.” Moreover, Dr. Higgerson related that the injuries were caused by “a great deal

of force” and that she did not believe that the injuries could have been caused accidentally. In fact,

Dr. Higgerson stated that in the absence of a multi-story fall or a car accident, M.D.’s injuries

were likely caused by someone beating her. Dr. Higgerson also testified that all of the injuries were

consistent with someone grabbing M.D. by the leg and slamming her into something.

In addition to the testimony from the two doctors from the hospital, the State called

M.D.’s pediatrician, Dr. Elise Kibler, to testify regarding the injuries that M.D. sustained and

her prognosis. In her testimony, Dr. Kibler explained that as a result of M.D.’s injuries, she “is

unable to control the movement of her right eye” and has poor strength on half of her body. Further,

Dr. Kibler related that she did not expect M.D.’s difficulties to “change in any significant way.” In

addition, Dr. Kibler stated that M.D. is “at a very high risk for intellectual and IQ problems.” Also,

Dr. Kibler testified regarding the injuries that M.D. sustained, including damage to multiple parts

of her brain and fractures to her legs, and clarified that the type of force that had been applied to

M.D. was “similar to that of a car accident.” Moreover, Dr. Kibler explained that the widespread

nature of M.D.’s injuries demonstrated that M.D. had sustained multiple blows to the head.

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In addition to calling the physicianwitnesses described above and admittingthemedical

records at issue, the State admitted without objection a copy of M.D.’s medical discharge papers

from the intensive care unit, which provided a summary of her injuries and treatment. Also, photos

of M.D. that were taken while she was in the hospital were admitted into evidence without objection.

Finally, evidence was introduced regarding statements that Davis made about how

M.D. had been injured. During the trial, two signed statements by Davis were admitted and read to

the jury. In the first statement, Davis asserted that M.D. was hurt when she fell off of the bed and

hit her head on various objects. In the second statement obtained later, Davis related that two weeks

before M.D. was admitted into the hospital, he became upset with M.D. “because she would not stop

crying, so I picked her up and squeezed her ribs.” Regarding how M.D. was hurt on the night that

she was taken to the hospital, Davis explained that M.D. “was crying and would not stop and

[he] snapped. [He] slapped [M.D.] three times in the face. I then slammed her head into the wall

one time. I am tired of beating up my own daughter. I need someone to help me.” In addition, 2

Detective Ramon Lopez testified that when he talked to Davis about what happened, Davis initially

stated that M.D. fell off of the bed but later admitted that a few weeks before M.D. was taken to

the hospital, he grabbed M.D. “and squeezed her too tight.” Similarly, an investigator for Child

Protective Services, Mike Bradburn, testified regarding an interview that he had with Davis.

According to Bradburn, Davis originally stated that M.D. was hurt when she fell from the bed or a

couch in the living room but later stated that M.D. may have been hurt when he ran to the kitchen

Davis waived his right to remain silent and testified at trial. In his testimony, Davis stated 2

that he told the police that he had hurt M.D. in order to coverfor Sneed-Moore. He also testified that

the various versions that he told the police regarding how M.D. was hurt were “all lies.”

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holding M.D. Specifically, Bradburn related that Davis said that M.D.’s head hit the wall when he

was running. In addition, Bradburn discussed the injuries to M.D.’s ribs and stated that Davis

admitted that the injuriesto M.D.’sribs were caused when he squeezed her too tight out of frustration.

In light ofthe evidence summarized above, we must conclude that anyerror stemming

from the district court’s decision to admit into evidence the disputed medical records did not have

“a substantial and injurious effect or influence in determining the jury’s verdict” and therefore did

not affect Davis’s substantial rights. See King, 953 S.W.2d at 271. Accordingly, we hold that any

error would be harmless and overrule Davis’s issue on appeal. See Tex. R. App. P. 44.2(b).

CONCLUSION

Having overruledDavis’s sole issue on appeal, we affirm the district court’sjudgment

of conviction.

__________________________________________

David Puryear, Justice

Before Justices Puryear, Henson, and Goodwin

Affirmed

Filed: August 16, 2012

Do Not Publish

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