NO. 07-09-00308-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A OCTOBER 12, 2010

RICHARD P. ESCH, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2006-412,999; HONORABLE JI M BOB DARNELL, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION Appellant, Richard P. Esch, appeals his conv iction by jury for the offense of causing serious bodily injury to a child, 1 and jury-assessed punishment of fifty-five years incarceration in the Institut ional Division of the Texas D epartment of Criminal Justice (ID-TDCJ). We will modify the judgment and affirm.
Background
In the early morning hours of March 7, 2005, personnel at University Medical Center (UMC) in Lubbock, Texas, report ed their suspicion t hat appellant’s daughter,

1 See T EX

. P ENAL C ODE A NN . § 22.04 (a)(1), (e) (Vernon Supp. 2009).2 Kylie, had been the victim of chil d abuse. According to mem bers of the staff, Kylie had suffered multiple injuries, incl uding shaken baby syndrome.
Appellant and Kylie’s mother, Stephanie He rsom, had three children together. Kylie was the youngest of these children an d was approximately tw o and a half months old at the time that the suspected abuse was reported. At that time, appellant was the primary caretaker of the children, so he was considered the prim ary suspect in the abuse.
On March 4, 2005, appellant watched the children while Hersom went to work. During a break in her work day , Hersom called appellant to check on the children, and appellant informed Hersom that Kylie had thrown up three or f our times. Hersom called appellant again during a later break, and appellant informed her that the children were with Cathy and Crystal Timms so that appellant could go look for a job. The Timmses watched the children on March 4 for approximat ely five hours. When Hersom returned home from work, Kylie appeared to be well and in good spirits.
On March 5, Hersom again had to work. She did not notice anything wrong with Kylie before leaving for work. Hersom called appellant during a break and appellant told her that Kylie did not eat much, but appellant did not s eem concerned about this. Hersom’s cousin, Lisa Murdock, contacted Hersom and offered to watch Kylie for a portion of the day. Hersom was still at work when Murdock arrived to take Kylie. When Murdock entered the home, she noticed that the two older children were covered in baby oil and had bee n writing on each other with marker s. Murdock found Kylie alone in the master bedroom with her face cover ed by a blanket. Kylie was sucking on an3 empty bottle. Murdock described Kylie as unresponsive and, when Murdock picked Kylie up, Kylie wimpered and mo aned, which struck Murdock as odd. Murdock changed Kylie’s diaper and noticed that Kylie had a new bruise on her chest. When she asked appellant about the bruise, appell ant told her that one of the older children had fallen on Kylie. Over the course of the time that Murd ock spent with Kylie, Murdock felt that Kylie was just not acting like herself. Accord ing to Murdock, Kylie was lethargic, unresponsive, and appeared to be in pain. Murdock called Hersom at work and recommended that Kylie be taken to the emer gency room. Hersom called appellant and asked him to take Kylie to the emergency r oom, but appellant got upset and refused to take Kylie.
Hersom went straight home after she got off work. Murdock still had Kylie. Hersom again talked to appellant about taki ng Kylie to the emergency room. After some argument, appellant agreed to pick Kylie up from Murdock a nd take her to the emergency room. At the Lev elland Hospital emergency r oom, Hersom informed the staff of the symptoms that Murdock had described to her. Appellant added that Kylie had been vomiting and had diarrhea. The emergency room diagn osed Kylie with gastroenteritis and dehydra tion and released her.
The following morning, March 6, Hersom awoke to find appellant tending to Kylie. Kylie was crying and Hersom witnessed appell ant spank Kylie on the behind. Hersom confronted appellant regarding the spanking, which angered appellant. Kylie looked worse than she had the night before and cried th roughout the morning. By the evening, Kylie’s condition had deteriora ted further. She had become very pale and laid in her4 crib lifelessly. Around 5:00 p.m., Hersom noticed that Ky lie’s hands and feet began to twitch and, at some point thereafter, Kylie’s face began to twitch as well. Appellant and Hersom took the children to Hersom’s mo ther’s house as her mother was going to watch the children that evening. Upon seeing Kylie’s condition, Hersom’s mother told appellant and Hersom to take Kylie to the emergency room immediately.
At the emergency room, Hersom and appellant again re counted Kylie’s symptoms to the doctors. After examini ng Kylie, the doctors informed Hersom and appellant that blood was found in Kylie’s spin al column and that she would have to be “life-flighted” to UMC in Lubbock.
As mentioned before, per sonnel at UMC suspected th at Kylie had been abused, so they contacted Children’ s Protective Services (CPS) . CPS investigator, Jamie Blount, went to the hospital to investigate the report. As part of the investigation, Blount interviewed appellant. Blount described appellant as “cur t and dismissive” during the interview. Appellant admitted that he was Kylie’s primary caretaker on March 5 and 6. Appellant told Blount that one of the older children had fallen on Kylie’s chest, and that Kylie had not had much to eat or drink since that inci dent. Because appellant was Kylie’s primary caregiver durin g the times that Kylie’s inju ries were believed to have occurred, Blount believed t hat appellant was the primary suspect in causing Kylie’s injuries.
Subsequently, the Wolffo rth Police Department began a criminal investigation into the injuries to Kylie. Wolfforth Police Chief Rick Scott obtained background information on the case from CPS and Kylie’s doctors. Appellant was interviewed by5 police on four different occasions and gave two written statements to the police. In one of the interviews, about a week after the in vestigation began, appell ant told police that he had performed CPR on Kylie on March 4. A ccording to appellant, Kylie appeared to have asphyxiated on vomit necessitating appell ant’s performance of CPR. However, appellant did not call emergency services nor did he inform Hersom of his need to perform CPR on Kylie on March 4. After an approximate year-long investigation into Kylie’s injuries, Chief Scott determined that appellant likely caused Kylie’s injuries.
Appellant was indicted for the offense of causing serious bodily injury to a child. He was further alleged to have used a deadly weapon in the commission of the offense, to-wit, his hands. Appellant pled not guilty and the case proceeded to trial. At the close of evidence, the jury found appellant guilty of the i ndicted offense and made an affirmative deadly weapon findi ng. Following a heari ng on punishment, the jury sentenced appellant to incarcerat ion in the ID-TDCJ for a pe riod of fifty-five years and assessed a $10,000 fine. The trial cour t subsequently entered a Judgment of Conviction by Jury that memorialized the ju ry’s verdicts, but that also assessed court costs against appellant in an amount of $9,637.50. 2 It is from this judgment that appellant appeals.
By his appeal, appellant pr esents four issues. By his first two issues, appellant challenges the factual sufficien cy of the evidence used to establish his guilt, specifically in reference to identity and causation. By his third issue, appellant contends that the trial court abused its discretion by exclud ing expert witness testimony offered by

2 The Judgment further delineates that $373.00 of these co sts are for court costs, while the remaining $9,264.50 are for court-appointed attorney’s fees.6 appellant. By his fourth issue, appellant contends that the evidence was legally insufficient to support the trial court’s asse ssment of court-appointed attorney’s fees against appellant.
Factual Sufficiency
By his first two issues, appellant c hallenges the factual sufficiency of the evidence to support his conviction for the off ense of injury to a child. Specifically, appellant challenges the sufficiency of the evi dence to establish that he was the person that committed the crime, and t hat the serious bodily injuri es sustained by Kylie were the result of a crime.

Standard of Review
When an appellant challenges the factual sufficiency of the evidence supporting his conviction, the reviewing court must det ermine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a reasonable doubt. See Watson v. State , 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In performing a factual sufficiency review, we must give deference to the fact finder’s determinations if supported by evidence and may not order a new trial simply because we may disagree with the verdict. See id . at 417. As an appellate court, we are not justified in ordering a new trial unless ther e is some objective basis in the record demonstrating that either the ev idence supporting the jury’s verd ict is so weak as to be clearly wrong or manifestly unjust or t he great weight and preponderance of the evidence contradicts the jury’s verdict. See Laster v. State , 275 S.W.3d 512, 5187 (Tex.Crim.App. 2009); Watson , 204 S.W.3d at 417. Additio nally, an appellate opinion addressing factual sufficiency must include a discussion of the most important evidence that appellant claims undermines the jury’s verdict. Sims v. State , 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). However, when a def endant’s version of the facts conflicts with other evidence, it is the jury’s prerogative to judge the credibility of the evidence and to ascribe the weight to be given to the evidence. Jones v. State , 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996).
Identity
By his first issue, appellant contends that the evidence that he was the person that caused Kylie’s injuries was factually insu fficient. Appellant’s contention is premised on the emergency room diagnosis of March 5, which appellant contends is inconsistent with Kylie having sustained shaken baby syndrom e injuries on or before March 5. The State responds that the evidence is factually sufficient to establish that appellant caused Kylie’s injuries and, further, appellant did not raise this al ternative hypothesis at any time during trial.
In the present case, appellant contends that, if the evidenc e establishes that Kylie did not sustain the injuries for which he is charged until after March 5, then the evidence is too weak to establish that appellant, rather than Hersom, caused Kylie’s injuries. Appellant cites the emergency room report of March 5 as providing that Kylie “looks well, alert, and in no distress.” Comb ined with expert medica l opinion testimony that the onset of symptoms in a s haken baby syndrome case appear almost immediately and rapidly deterio rate, appellant’s main argument presented by this issue8 is that it was more probabl e that Kylie’s injuries occurred on March 6, when both appellant and Hersom spent the day with the child.
None of the medical expert s could testify as to the specific time that Kylie sustained the injuries for whic h appellant was tried. Furt her, there was no eyewitness of the incident causing Kylie’s injuries. Therefore, evidence establishing that anyone caused Kylie’s injuries will be circumstantial. Evidence was presented that Kylie had sustained injuries at varying periods of time , and that at least one of these periods was when appellant had nearly exclusive care of the child . Further, the jury heard evidence that appellant was reluctant to take Kylie fo r medical care, even after Kylie’s condition began to rapidly deteriorate. In addition, Hers om testified that appellant’s attitude toward Kylie had become one of anger or frustr ation and that, in the morning of March 6, she saw appellant spank Ky lie for keeping appellant awak e all night. Clearly, the evidence established that appel lant had access to Kylie thr oughout the time that Kylie may have sustained these injuries.
However, the jury also heard evidence that Hersom had a ccess to the child during the evening and night hours of Marc h 5 and throughout the day of March 6. Evidence was presented that Hersom exhibit ed a somewhat cavalier attitude in the way that she cared for her children. In addition, while Hersom suffered from a disability to her legs, evidence was presented to the jury that would have allowed the jury to infer that Hersom had the physical ability to have inflicted the injuries to Kylie.
Appellant’s main argument under his first issue is nothing more than a reasonable alternative hypothesis of how Kylie sustained the shaken baby syndrome9 injuries. While such a reasonable hypothesis may be relevant to our review of the factual sufficiency of the eviden ce, it is not determinative. See Wilson v. State , 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). Accord ing to appellant’s hypothesis, Kylie’s injuries could have been caused by Hersom , rather than appellant, because Hersom had the opportunity to commit the offense. While it is possibl e that Kylie was not injured until a time when Hersom had access to, and, therefore, opportunity to have inflicted the injuries on Kylie, appellant’s hypothetical version of t he facts conflicts with other evidence that presents a version of the fa cts in which appellant intentionally or knowingly caused Kylie’s serious bodily injury. By definition, evid ence that w ould allow a jury to rationally conclude that appellant intentionally or knowingly caused Kylie serious bodily injury beyond a reasonable doubt is factually sufficient evidence, regardless of the existence of evidence that would support the possibility that Kylie’s injuries might have been caus ed by another person. Fu rther, when an appellant presents a factual sufficiency challenge based on a ve rsion of the facts that conflicts with other evidence, it is the jury’s prerogative to judge the credibility of the evidence and to ascribe the weight to be given to the evidence, Jones , 944 S.W.2d at 647-48, and we, as a reviewing court, are not at liberty to substitute our judgment for that of the jury. See Watson , 204 S.W.3d at 417.
Consequently, we overrule appellant’s first issue.

Causation
By his second issue, appellant contends that the evidence that Kylie’s injuries were the result of shaken baby syndrome is factually insufficient. Appellant’s argument10 is premised on the Levelland Hospital’s Ma rch 6 diagnosis of Kylie possibly having meningitis. The State responds that the great weight a nd preponderance of the medical evidence in the case supports the conclusion that Kylie’s symptoms were the result of shaken baby syndrome.
Appellant points to the diagnosis of po ssible meningitis cont ained in the abovereferenced medical record and then presents a number of symptoms of meningitis that are consistent with the sympt oms exhibited by Kylie. However, none of these symptoms of meningitis were presented to t he jury in any manner. Rather, appellant cites sources outside of the record to support his argument. In fact, this theory of causation was evidenced to the jury, in tota l, by nothing more than the diagnosis of possible meningitis found in th is one medical record. Even if we were to assume that the jury should have seized upon this one piec e of evidence to the exclusion of the other evidence of causation, the medical re cord cited by appellan t diagnoses Kylie with either meningitis or trauma. Further, all of the expert medi cal opinion testimony offered at trial was consistent that Kylie’s injuries were the result of s haken baby syndrome.
We overrule appellant’s second issue.
Exclusion of Expert Testimony
By his third issue, appellant contends t hat the trial court e rred in excluding the expert testimony of Wendy Thal. According to appellant, Thal’s testimony was relevant to implicate Hersom in causing Kylie’s in juries and, thus, would have decreased the likelihood that appellant committ ed the crime. The State res ponds that appellant failed to timely designate Thal as an expert witne ss, as had been ordered by the trial court,11 and, even if it was error for the trial court to have excluded Thal as an expert, the error was harmless because Thal’s testimony was cumulative.

A trial court’s decision to admit or exclude evidence, in cluding determining whether a witness is qualified as an expert, is reviewed under an abuse of discretion standard. See T EX

. R. E VID . 104(a); Penry v. State , 903 S.W.2d 715, 762 (Tex.Crim.App. 1995). The trial court abuses its discretion if its ruling is so clearly wrong as to be outside the zone of reasonable disagreement. See McDonald v. State , 179 S.W.3d 571, 576 (Tex.Crim.App. 2005). Error in ruli ng on the admissibility of evidence is generally non-constitutional error, see Walters v. State , 247 S.W.3d 204, 219 (Tex.Crim.App. 2007), and, as such, reversal is justified only if the error affected appellant’s substantial rights. See T EX

. R. A PP

. P. 44.2(b).
Appellant offered Thal as an expert witness to testify regarding her evaluation of Hersom and Kylie’s interacti on and bonding as of May of 2005. Thal, who performed this evaluation as a nurse consultant for CPS, te stified, by way of a bi ll of exception, that Kylie was not bonded to Hersom and that Kylie appeared to be uncomfortable in her mother’s presence. Thal fu rther testified that she had evaluated appellant at the time that she evaluated Hersom, but that the bonding assessment report she had prepared relating to appellant had been lost.
While it appears that the tr ial court excluded Thal as an expert on the basis of appellant’s failure to disclose her as an exper t witness in his pre-trial disclosures, we12 believe that the record estab lishes that the trial court’s ru ling was firmly within the zone of reasonable disagreement. 3
First, nothing in the bill of exception presenting Thal’s testimony establishes that she would be qualified to test ify as an expert on the subj ect matter upon which she was to testify. See Penry , 903 S.W.2d at 762. According to Thal’s testimony, at the time of trial, she was an assistant pr ofessor at Texas Tech University and she taught both undergraduate classes and classes in the nurse practitioner program. In 2005, Thal was working with West Texas A & M Universi ty and as a nurse consultant with CPS. While Thal testified that s he performed bonding assessments as part of her duties as a CPS consultant, nothing in her testimon y established how she would be expertly qualified to perform such an assessment. Thal did not testify regarding her education, did not quantify her experienc e working with CPS, and di d not identify any additional training that would reasonably qualify he r to be an expert in assessing the bond between a mother and an infant child. T hus, because appellant wholly failed to establish that Thal was an expert on the subject matter upon which she was called to testify, we conclude that the trial court di d not abuse its discretion in excluding Thal’s testimony as an expert. 4
Further, even if the evidence should have been admitted as expert testimony, its exclusion was not harmful to appellant. The lack of a bond between Hersom and Kylie

3 For purposes of our analysis of this iss ue, we will assume that the trial court’s exclusion of Thal based on appellant’s failure to disclose her as an expert witness was erroneous. However, we wish to emphasize t hat this assumption is not an expression of our opinion on that matter.

4 Appellant did not offer Thal’s testimony as a fact witness.13 would be expected when four-month-old Kylie had been separated from her mother for the previous two months. Additionally, this evidence was cumulative of other evidence establishing that Hersom was not an ideal mother to Kylie or to her other children. Finally, because Thal’s bonding assessment re lating to appellant was not available, Thal’s assessment of Hersom was significantly lessened in terms of exculpating appellant since the jury was unable to co mpare the assessments and because nothing in Thal’s assessment of Hersom in any wa y indicated that Hers om exhibited violent tendencies toward Kylie.

Because the trial court did not abuse its discretion in excluding Thal as an expert on the basis of her lack of qualifications, a nd because the exclusion of Thal’s expert testimony did not affect a substantial right of appellant, we overrule appellant’s third issue.
Assessment of Court-Appointed Attorney’s Fees
By his fourth and final issue, appellant contends that the ev idence was legally insufficient to support the trial court’s asse ssment of court-appointed attorney’s fees. The State concedes error under this issue. Bo th parties contend that the error may be remedied by this Court striking the assessment of attorney’s fees from the trial court’s judgment.
Article 26.05(g) of the Texas Code of Cr iminal Procedure provides, “[i]f the court determines that a defendant has financial resour ces that enable him to offset in part or in whole the costs of the lega l services provided, . . . the court shall order the defendant to pay during the pendency of the charges or, if convicted, as c ourt costs the amount14 that it finds the defendant is able to pay.” T EX

. C ODE C RIM

. P ROC

. A NN . art. 26.05(g) (Vernon Supp. 2009). The ke y factors in determining the propriety of ordering reimbursement of fees are the defendant’s financial res ources and ability to pay. Mayer v. State , 309 S.W.3d 552, 556 (Tex.Crim.App. 2010) . “Without evidence to demonstrate appellant’s financial resources to offset the co sts of the legal services, the trial court erred in ordering reimbursement of appointed attorney fees.” Mayer v. State , 274 S.W.3d 898, 901 (Tex.App.—Amarillo 2008), aff’d , 309 S.W.3d at 558.
Here, the record includes no evidenc e that appellant had the ability to pay attorney’s fees at the time that the trial c ourt assessed them. As such, we conclude that the evidence supporting this por tion of the judgment is legally insufficient and modify the judgment to remove the assessment of $9,264.50 for attorney’s fees. See id . at 902.
We sustain appellant’s fourth issue and will modify the judgment to delete the trial court’s assessment of attorney’s fees.

Conclusion
For the foregoing reasons, we modify the judgment of the trial court to delete the assessment of $9,264.50 for attorney’s fees. As modified, we affirm the judgment of the trial court.
Mackey K. Hancock Justice

Do not publish.