Christopher Daniel Duntsch v. State ( 2018 )

AFFIRM; and Opinion Filed December 10, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00235-CR
CHRISTOPHER DANIEL DUNTSCH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F15-00411-L
OPINION
Before Justices Lang, Fillmore, and Schenck
Opinion by Justice Lang
Following a plea of not guilty, appellant Christopher Daniel Duntsch was convicted by a
jury of intentionally or knowingly causing serious bodily injury to an elderly individual while
using or exhibiting a deadly weapon. Punishment was assessed by the jury at life imprisonment.
In three issues on appeal, appellant contends the trial court abused its discretion by
admitting certain evidence of extraneous conduct of appellant and the evidence presented at trial
is insufficient to support appellant’s conviction because the State failed to prove the culpable
mental state beyond a reasonable doubt. We decide against appellant on his three issues. The trial
court’s judgment is affirmed.
I. FACTUAL AND PROCEDURAL CONTEXT
A. Pretrial Proceedings
At the time of events in question, appellant was a neurosurgeon licensed to practice
medicine in Texas and Tennessee. The indictment in this case alleged that on approximately July
25, 2012, appellant “intentionally, knowingly, recklessly and with criminal negligence cause[d]
serious bodily injury to MARY EFURD, an elderly individual 65 years of age or older, . . . by
MALPOSITIONING AN INTERBODY DEVICE AND MALPOSITIONING PEDICLE
SCREWS AND AMPUTATING THE LEFT L5 NERVE ROOT,” and “use[d] a deadly weapon,
to-wit: HANDS AND SURGICAL TOOLS AND A PEDICLE SCREW, during the commission
of the offense.” (emphasis original).
Prior to trial, the State sought a ruling on the admissibility of evidence respecting surgeries
performed by appellant on patients other than the complainant. The State asserted in part,
[T]he totality of the defendant’s conduct is relevant, admissible, and crucial to the
jurors’ understanding of the case. This Court should admit the evidence of the
defendant’s other surgeries, including the outcomes of those surgeries, under the
doctrine of chances and as substantive proof of the defendant’s culpable mental
state. . . .
....
The most likely defense will be that the defendant did not act intentionally,
knowingly, or recklessly. . . . In order to make a competent decision regarding the
defendant’s state of mind, the jurors need to understand the information that the
defendant knew regarding his surgical technique and previous outcomes.
In response, appellant contended the extraneous offense evidence in question constituted
improper character evidence and its admission would result in an improper amount of time
“devoted to extraneous offenses and not the case itself.” Further, during a pretrial hearing on that
matter, counsel for appellant stated in part “[w]e would ask the [trial court] to not allow any of the
extraneous offenses” the State sought to admit into evidence.
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Following that pretrial hearing, the trial court ruled that it would allow the extraneous
offense evidence in question and provide limiting instructions to the jury respecting that evidence.
B. Opening Statements
During opening statements, the State asserted in part, “You’re going to hear the carnage
[appellant] caused was not a mistake or an accident or just malpractice . . . and he was aware of all
the injuries that he had caused these patient [sic], and he knew what he was capable of, and he
knew that the next patient he walked into he was going to maim or paralyze or kill.”
Counsel for appellant asserted in part during opening statements as follows:
They want to be at knowing and intentionally, and to do that they’re going to bring
you . . . other individuals who have had surgery with him, character evidence, other
extraneouses, so that you can push yourself up that hill . . . .
....
. . . When we’re talking about surgery and we’re talking about consent, there
are risks in surgery. They don’t want you to think that this is just one of those risks
that failed, so they bring you more to persuade you it’s not a risk, to persuade you
that he knew, that he did it intentionally. They want to keep pushing you with the
emotion and draw you away from the facts.
C. Evidence Presented at Trial
1. Complainant’s Surgery by Appellant
At trial, the complainant, Mary Efurd, testified that in 2011, she was seventy-four years
old and had suffered from lower back pain for years. Her pain management doctor referred her to
appellant. Efurd stated appellant recommended surgery, including a fusion of two of her vertebrae
and the insertion of “hardware” in her spinal area. In December 2011, appellant performed back
surgery on Efurd at Baylor Regional Medical Center of Plano (“Baylor”). Efurd testified the
December 2011 surgery “went fine,” but did not relieve her pain. During a follow-up appointment,
appellant recommended another surgery “lower down,” in the “lumbar region” of her spine.
On Wednesday, July 25, 2012, Efurd underwent a second surgery by appellant, this time
at Dallas Medical Center (“DMC”). According to Efurd, when she awoke from that surgery, she
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“had excruciating pain” and could not move her feet or legs or turn over in bed. She stated she was
“crying and pleading and begging” for something to control the pain, but nothing she was given
was effective. Efurd testified that at some point, the “administrator of the hospital” came into her
room and told her appellant “wanted to do another surgery to see if he could determine what was
causing all of my pain.” Efurd told the administrator “something is wrong, bad wrong, and if I
have to have a surgery, some type of corrective surgery, please find me another doctor.”
On July 28, 2012, Efurd underwent surgery by Dr. Robert Henderson at DMC. Efurd
testified that surgery “went fine,” but afterward she “still was having lots of pain” and “couldn’t
move.” Efurd was transferred to a rehabilitation facility, where she spent approximately two
months. She eventually regained some muscle function in her legs and feet. However, she was left
with a condition called “drop foot,” which prevents her from being able to raise her left foot and
requires her to wear a brace. Also, she stated she now suffers from incontinence. She testified she
did not have those conditions before her second surgery by appellant.
Henderson testified he is board certified in diagnosis and treatment of the thoracic lumbar
spine and has limited his surgical practice to that specialty since 1988. He stated he is “extremely
familiar with orthopedic and neurosurgical techniques.” According to Henderson, when he
evaluated Efurd after the July 25, 2012 surgery in question, “it was very apparent that all of her
current complaints were what we call iatrogenic, or caused by the surgery and by the surgeon doing
the surgery.” Specifically, Henderson testified in part,
A. . . .[O]ne of my thoughts that I expressed was that [appellant] must have known
what he was doing because he did virtually everything wrong. So to be able to do
that much wrong, I felt that he must have known at some point in time how to do it
right. It was that egregious.
Q. So he knew how to do it, and he did the opposite?
A. It seemed like it. In a facetious way, it seemed like it. It was—you asked how
egregious it was. I’m not even—it’s as egregious as you can imagine. At the end
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of—well, during the procedure that I went in on Ms. Efurd to repair, I became
concerned whether or not he was a physician and was a surgeon.
Q. Why?
A. Because it was such a tragedy inside what had happened. There were holes
where they shouldn’t be in the bone, there were holes in the dura leaking cerebral
spinal fluid. There was an amputated nerve root, meaning a portion of the nerve
root was just gone, and he put a screw in at the S1 level on the right side that was
barely on the right side.
It actually crossed the midline and went right through the dural sac, the fluid
sac that holds the nerves, and one of the implants that he was planting, that was the
purpose of the operation to put between the vertebral bodies for stability and fusion,
was placed to the left side of the spine.
It wasn’t even in the spine. It was just laying in muscle, muscle that he had
destroyed, to some extent, to make a tunnel to put the device into and had injured
additional nerves.
Henderson stated he asked DMC administrators for the photograph appellant had submitted
with his credentialing process. Then, Henderson faxed a copy of that photograph to Dr. Kevin
Foley in Tennessee, whom appellant had listed as his fellowship director. Henderson asked Foley
whether this was the person he had trained and approved as a surgeon. Foley responded “yes.”
Further, Henderson testified he reported appellant to the Texas Medical Board, which ultimately
suspended appellant’s medical license two years later.
Henderson stated that the “Hippocratic Oath” taken by all doctors upon graduation from
medical school states in part, “I will not be ashamed to say I know not, nor will I fail to call in my
colleagues when the skills of another are needed for a patient’s recovery.” Henderson testified that
in this case, appellant “failed to adhere advice [sic] and interpretation of imaging from other
physicians, other specialists and certainly did not call in help and certainly did not provide
appropriate post operative care.” Also, Henderson testified in part,
Q. . . . Would a—would a trained neurosurgeon know, when they are doing the
things to Mary Efurd that [appellant] did, that they’re going to cause her serious
bodily injury?
A. Yes.
....
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Q. Is there any way that a neurosurgeon would not know that he was causing her
harm?
A. No.
Further, Henderson stated Efurd signed a consent form prior to her surgery that stated in
part “there is a chance for adverse outcomes.” Then, he testified as follows:
Q. So when Mary Efurd signed that consent, was she consenting to the defendant
putting the interbody device into her muscle?
A. No.
Q. That’s not in the realm of possibility that’s being considered by this consent
form that she’s signing?
A. No. Not even remotely, up until now, would anyone ever have thought of that
being a possible complication.
....
Q. And is there any reason in Mary Efurd’s case for her surgeon to have put the
interbody device in her muscle the way he did?
A. No.
Q. Would you agree with me that, that is a extremely rare complication?
A. Yes.
Q. And by extremely rare, would you agree with me that that doesn’t happen?
A. Yeah, I would say it would be unique, if the definition of unique is that there is
only one.
Additionally, Henderson stated that at the time of the surgery in question, appellant was
new to the staff of DMC and had performed only two prior surgeries at that facility. In the first of
those two surgeries, the patient had been discharged to home several days later. The other prior
surgery done by appellant at DMC was a cervical fusion performed on patient Floella Brown on
July 24, 2012, one day before Efurd’s surgery in question. According to Henderson, at the time
appellant began Efurd’s surgery, Brown “had yet to recover consciousness from her surgery the
day before,” “was doing very poorly,” and “appeared to be—have had a severe brain injury.”
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Brown “ended up dying either that same Wednesday or Thursday.” Henderson stated that in his
opinion, there was “no excuse for starting or rationalization to starting an elective case, until
[Brown’s] condition upstairs in the ICU had been stabilized.” Further, Henderson stated he is
testifying in this case “for free” because “ever since I saw this what I would term as an atrocity
that happened to Ms. Efurd and I found out about other issues Dr. Duntsch had been involved with,
with other patients in operations that had not gone well at all, I just realized that I had to do
something to stop him from taking care of patients in the future.”
On cross-examination, Henderson testified in part that he gave a deposition in a civil
medical malpractice lawsuit based on Efurd’s surgery in question and wrote a report for Efurd’s
attorney in that case summarizing his observations described above. Henderson stated he was paid
for writing the report for Efurd’s attorney in that case.
Raji Kumar testified she was the CEO of DMC at the time of Efurd’s second surgery by
appellant described above. Kumar stated she received appellant’s name “through somebody in
town” and contacted him because “[w]e were looking for spine surgeons.” She met with appellant
and “was so happy to see that a surgeon was so put together and cared so much about his patients.”
According to Kumar, appellant told her he was leaving Baylor “due to political reasons” and “said
he had one complication out of, like, so many surgeries that he had done.” She testified that on
approximately July 20, 2012, DMC “decided to grant him temporary privileges, as we received a
clean slate from Baylor Medical Center saying that he had no issues, he had a voluntary
resignation.” Appellant scheduled three surgeries for his first week at DMC, including Brown and
Efurd.
According to Kumar, Brown’s July 24, 2012 surgery was not expected to require an
overnight stay, but appellant decided “postoperatively” to admit her. At approximately 6:05 a.m.
on July 25, 2012, Brown “had respiratory arrest” and was “not doing well.” At 6:30 a.m., appellant
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was notified that Brown was “unresponsive.” Efurd’s surgery began at 7:44 a.m. on that same date.
Kumar stated that Efurd’s surgery was elective and “was not life-threatening.” Brown was
transferred to another hospital at 1:25 p.m. that day.
Kumar testified that on the day after Efurd’s surgery, “we had some staff that had spoken
to the director of surgery, saying that they had had some concerns intraoperatively with some
technique.” Kumar and the director of surgery went to speak with Efurd and learned appellant had
told Efurd “he needed to take her back to surgery on Monday.” Kumar testified Efurd was having
a hard time moving her foot. Kumar immediately talked to the chief of surgery, Dr. Robert Ippolito,
and told him that “something does not seem to add up.” She asked Ippolito if he “could please get
involved.” According to Kumar, Ippolito “looked at some images” from Efurd’s case and “it
seemed like the screws were in the spinal foramen, which means they were actually inside the—
kind of touching the spinal cord.” Kumar contacted appellant. He told her “everything is fine” and
stated that Efurd needed another surgery because she had a “re-ruptured disc” and a compressed
nerve, which appellant told her “happens about 1/20 cases.” Kumar testified Efurd “did not happen
to be doing fine.” Additionally, Kumar stated that the anesthesiologist from Efurd’s July 25, 2012
surgery wrote in his notes (1) the “interbody cage” device that appellant put in was “likely in the
wrong place”; (2) appellant “did a very poor job” of controlling blood loss, “often ignoring the
pool of blood that was forming and just continuing to stab the patient”; and (3) “[appellant] kept
saying he had to hurry so as to take care of the patient upstairs but really he needed to focus on
this case.”
Kyle Kissenger testified he is a nurse and has participated in at least several hundred spine
surgeries. He participated in Efurd’s July 25, 2012 surgery by appellant at DMC. According to
Kissenger, Efurd’s surgery started at least a half-hour late and appellant was “agitated already”
because of “what was going on upstairs with the other patient.” Kissenger stated that during
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Efurd’s surgery, Ippolito came into the operating room and told appellant “in not too kind of
words” that appellant’s request to do an emergency “craniotomy” on Brown had been denied by
DMC and Brown was being transferred to another hospital. According to Kissenger, at that point,
appellant and Ippolito got into a short “argument.” Kissenger stated appellant “was still very
agitated about the whole thing.” Then, appellant “broke scrub” and “left the room” for at least
thirty minutes, which is “very rare.”
Kissenger stated that prior to appellant leaving the operating room, appellant had been
trying to “place a pedicle screw” to attach a device to Efurd’s spine and “[a]ll of us in the room”
were telling him the screw was “not in the right place.” Upon returning to the operating room,
appellant took that screw out and “started going back to trying to get it in the right place.” Further,
Kissenger testified the placement of the device “never looked right” to him during the surgery and
“everyone” told appellant “that’s not right.” Kissenger stated that after surgery, he was told Efurd
was unable to move her leg. He testified that something like that “should never happen” in an
elective spine surgery and he had never had anything like that happen to a patient of his before.
Danny Smith testified he has been a surgical assistant for twenty-two years. On July 25,
2012, he was the spine coordinator at DMC. He had met appellant for the first time on the previous
day and had performed one surgery with him. Smith stated that during Efurd’s surgery, “there was
some question” about the positioning of a screw and “everybody” told appellant “it was lateral of
where it needed to be.” Also, Smith testified that during the surgery, appellant stated he “wanted
to stop [Efurd’s] surgery” at “whatever point we were at,” “close her up,” and “go take care of the
patient upstairs.” According to Smith, the anesthesiologist then told appellant “he needed to focus
on this patient.”
On cross-examination, Smith testified that when Ippolito came into the operating room,
appellant and Ippolito had a “tense conversation,” during which appellant continued actively
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working on Efurd. Additionally, Smith stated (1) appellant is “a smart guy,” but “his technique
may not be the best,” and (2) “whenever [appellant] tried to help a patient,” “[appellant] believed
that he could.”
On redirect examination, Smith testified in part as follows:
Q. And if you are in the middle of a procedure, and you find yourself distracted,
what should you do?
A. You can tell ’em “we’ll talk later.” . . . You don’t have to have a conversation
right there, over an open patient. That was the choice made by the surgeon.
Q. Because, if you’re going to be distracted, you may do something wrong.
A. Yes, ma’am.
Q. And, you know that.
A. Yes, ma’am.
Matt Padron testified that on July 25, 2012, he was a “device representative” for Lanx
Spine and was present at Efurd’s surgery. He stated his role was to ensure that the surgeon had the
proper implants and hardware during surgery. According to Padron, the surgery was “[c]haos, from
the beginning.” He stated it was his first case with appellant and “the OR staff didn’t know what
we were doing, as far as how to set up the room, getting the sets [of hardware] there.” After the
operation began, “somebody came in talking about doing a cranial case” and appellant “broke
scrub” and “left to talk to somebody.” Padron stated that before appellant left the room, he directed
the “OR techs” to “search around” in Efurd’s body for a pedicle screw that the x-ray images
showed was misplaced. According to Padron, “that’s kind of when we knew things were going
downhill.”
Padron stated that after appellant returned, he seemed to be “growing in agitation.” Further,
according to Padron, “some time around the time we were putting the cage in,” a man came into
the room and appellant began arguing with him. Padron testified the x-ray imaging showed the
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interbody cage was improperly placed in “soft tissue” rather than bone and Padron told appellant
that. According to Padron, appellant responded that he had “direct visualization” that it was in
bone. Padron stated it was “very clear in the surgery” that “something was wrong” with the
placement of the cage and appellant was told that “by multiple people.”
Anam Hussain testified he is a surgical technician and participated in Efurd’s July 25, 2012
surgery. He stated that during the surgery, appellant received a call about “a patient upstairs” who
had “some sort of complication.” According to Hussain, “[a]fter that, [appellant] kind of lost a
little bit of focus,” “seemed distracted,” and “was more concerned about . . . what was going on
with the other patient.” Additionally, Hussain stated that during the surgery, one of the pedicle
screws was misplaced into “soft tissue” rather than bone and “there was a lot of bleeding.”
Elaine Furey testified she has been an x-ray technician for twenty years. She stated she was
present at Efurd’s July 25, 2012 surgery, which “didn’t go smoothly.” During that surgery, Furey
provided x-ray images using fluoroscopy, which allows for continuous viewing of a live x-ray
image on a monitor during surgery. She stated that based on those images, she told appellant, “I
don’t think the cage is in the right area.” Also, Furey stated that “one of the reps said it wasn’t in
the right place.” According to Furey, appellant responded, “I’ve done a [expletive] visual. I can
see where it is. You don’t have to tell me.” She stated appellant was acting “very erratic” and
“angry.” Further, she testified she has done at least 100 spine surgeries and has never “seen a cage
in between the vertebrae like that.”
Dr. Martin Lazar testified he is board certified in neurological surgery and has been a
practicing neurosurgeon for forty years. He has performed “many thousands” of surgeries. At the
request of two plaintiffs’ attorneys, he reviewed the cases of several of appellant’s patients for
purposes of civil litigation, for which he was paid. He stated he was not paid for his testimony in
this case.
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Lazar testified that appellant’s July 25, 2012 surgery on Efurd went “[p]oorly, to say the
least” and resulted in “a catastrophic surgical misadventure.” According to Lazar, (1) a prosthetic
device was misplaced, resulting in damage to muscle tissue, and (2) a surgical tool amputated a
major nerve root and a screw damaged other nerve roots, causing permanent partial leg paralysis
and other impairment in the lower extremities. Further, Lazar testified in part,
Q. Have you ever seen anything like what happened in Ms. Efurd’s surgery?
A. Never.
....
Q. How egregious would you say it is?
A. It’s beyond egregious. It’s beyond anybody’s imagination that this could happen.
Q. Is this a normal risk of surgery?
A. No.
Q. Is this something Ms. Efurd would have consented to, when she signed all those
forms?
A. Never.
....
Q. Is there any way that a neurosurgeon doesn’t know that he’s going to cause Ms.
Efurd serious bodily injury by doing these things?
A. It’s inconceivable. How can you not know that you’re going to cause the
disaster? Intraoperative x-rays were taken, and you can see on the intraoperative x-
ray where things are.
Q. And did you see those intraoperative x-rays?
A. Yes.
Q. Is it pretty clear where things are?
A. Yes.
Ippolito testified appellant’s surgical privileges at DMC were revoked on July 27, 2012,
based on “the two patients that had been operated at our facility,” Brown and Efurd. He stated
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those were “[v]ery serious, negative outcomes” and he has never “seen anything like that” in his
forty-one years as a surgeon.
Dr. Carlos Bagley testified as an expert for the defense. He stated he is a neurosurgeon and
has performed approximately 4,300 spine surgeries. According to Bagley, appellant’s errors were
“known complications” that “a poorly-trained, inexperienced surgeon could do” and have “all
occurred before elsewhere and been reported in the literature.” Additionally, Bagley testified
(1) “if a doctor’s desire is to hurt a patient, he could do so in a more less obvious way than
performing bad surgeries”; (2) if a doctor “tries to fix a surgery that he’s previously done,” that
“can be” a sign that the doctor is “concerned about his patients”; and (3) if a particular surgeon is
“inexperienced and poorly trained,” a “chaotic operating room” is “an additional barrier to
providing appropriate care.”
2. Extraneous Acts of Appellant
Additionally, over objection by appellant, the State presented the following evidence
respecting extraneous acts of appellant.1 Throughout the trial, the jury was repeatedly instructed
that such evidence was to be considered “only . . . in determining the intent, knowledge, motive,
absence of mistake or lack of action of the defendant, if any, alleged in the indictment in this case
and for no other purpose.”
a. Robert Passmore
Robert Passmore testified he is forty-one years old. In late 2011, he was experiencing back
pain and was referred to appellant, who recommended surgery. On December 30, 2011, appellant
performed back surgery on Passmore at Baylor. That surgery included an “interbody fusion” and
placement of a spacing device between two of Passmore’s vertebrae. When Passmore awoke from
1
Also, during the testimony of the witnesses described below, related medical records, reports, and other exhibits were admitted into evidence
over appellant’s objection.
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the surgery, he “hurt extremely.” On January 6, 2012, he underwent a second surgery by appellant
that was not “part of the plan.” The purpose of the second surgery was to reduce pressure on his
spine and remove “pieces of disc” from the area that was originally operated on. Passmore stated
that after the second surgery, he was not better than before the surgeries and he stopped seeing
appellant. He still experiences back pain. Also, he stated he now has a limp, nerve pain, numbness,
poor balance, “bowel problems,” incontinence, and erectile dysfunction that he did not have prior
to his surgeries. On cross-examination, Passmore testified in part that prior to his surgeries by
appellant, he signed a consent form that stated “the practice of medicine in surgery is not an exact
science.”
Passmore’s mother, Janet Elaine Passmore, testified she accompanied Passmore to
appellant’s office several days after Passmore’s first surgery and was present when Passmore
described to appellant that he was experiencing pain in areas of his back that had not previously
hurt. Janet stated appellant told Passmore, “You’re not giving the medication time to do its work.”
According to Janet, as soon as she and Passmore returned home from that office visit, Passmore
received a phone call from appellant in which appellant stated there was “something wrong” and
“it has to be taken care of immediately.” Passmore then underwent a second surgery by appellant,
but his condition did not improve.
Dr. Mark Hoyle testified he is a vascular surgeon and his practice consists mainly of “spinal
exposures.” He has been practicing in that field since 1994. On December 30, 2011, he was
scheduled to “do the opening” for appellant’s surgery on Passmore. Hoyle had not met appellant
before that date. Hoyle testified that in the doctors’ lounge before the surgery, appellant stated he
is “the best-trained surgeon there is” and seemed “pretty over-confident or narcissistic.” Hoyle
made the initial incision and then called appellant into the operating room. According to Hoyle,
appellant’s surgical technique was “sloppy” and resulted in “a lot of bleeding.” At one point, Hoyle
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physically stopped the surgery and stated to appellant, “You can’t see what you’re doing, and
you’re right on top of the spinal cord and you’re gonna hurt this guy, if you don’t let me get control
of the bleeding.” According to Hoyle, appellant did not “seem appropriately concerned about that.”
Hoyle “got a little upset” and told appellant “he was incredibly dangerous” and Hoyle “was never
working with him again” because “[h]e was going to hurt somebody.” Hoyle stated he had “never
done that with anybody before.” Additionally, Hoyle was concerned about the placement of the
“cage” device being inserted by appellant. Specifically, according to Hoyle,
I told [appellant], “It’s too far to my side. It’s too far to the left.” I said, “You need
to get an x-ray because, I’m telling you, you’re too far to my side.” He said, “No, I
think it’s fine.” I said, “Let’s get an x-ray. I’m telling you, you’re too far over to
my side.” He says, “No, I’m fine.” He proceeded to put the four screws in. . . .
Once we got an x-ray, lo and behold, it was too far to my side, just like I
said. He said, “You were right. I should’ve got an x-ray.”
Hoyle had three other surgeries scheduled with appellant, but cancelled them at that point.
b. Barry Morguloff
Barry Morguloff testified that in 2011 he had a “history of back issues” and was referred
to appellant. On January 11, 2012, appellant performed back surgery on Morguloff at Baylor. The
surgery included a fusion and the installation of “titanium hardware.” Prior to the surgery,
Morguloff had “complete mobility,” but was experiencing back pain in connection with certain
activities. Morguloff signed a consent form and “knew basically there could be complications.”
Morguloff stated that as he regained consciousness after surgery, he had numbness and “an
incredible amount of pain” in his left leg, which worsened over the next few days. He testified he
told appellant about that pain and numbness. Appellant told him it would go away over time, but
it actually became worse and Morguloff lost the ability to move his left foot properly. Morguloff
stated he eventually sought the opinion of another neurosurgeon, Dr. Michael Desaloms, who told
him “the hardware was loose” and bone fragments had “lodged into” the nerve canal and were
“impinging the nerve.” Morguloff underwent a subsequent surgery by Desaloms and his condition
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improved slightly, but much of the nerve damage was permanent. He still experiences pain in his
leg and cannot walk without a brace and cane.
Dr. Randall Kirby testified he has been a vascular surgeon since 1996 and his area of
expertise is “spinal access.” He stated he was present during Morguloff’s January 11, 2012 surgery
because the general surgeon hired by appellant to assist in the operating room asked Kirby to
“help” with the case. According to Kirby, although the type of surgery Morguloff was to undergo
“is about the easiest operation a spine surgeon performs,” appellant “struggled mightily” and “was
functioning at the level of a first- or second-year neurosurgery resident.”
c. Jerry Summers
Jerry Summers testified by video deposition that he is forty-six years old and has known
appellant since they attended junior high school together in Tennessee. In approximately 2011,
Summers moved to Dallas with appellant to assist in “opening up a new clinic.” At that time,
Summers was experiencing “sharp pain” and some numbness in his arms and hands. Appellant
offered to perform a “disc fusion surgery” on Summers’s spine. Appellant told Summers it was “a
very dangerous surgery” and went over “the risks” with Summers several times.
Appellant performed surgery on Summers at Baylor on February 2, 2012. When Summers
awoke from the surgery, he couldn’t move his arms or legs and “freaked out.” He did not regain
movement in his arms and legs and now has a permanent condition in his limbs called “incomplete
paralysis.” He can feel “touching” and pain, but his arms and legs are otherwise paralyzed. He is
confined to a wheelchair and requires a catheter. Also, as a result of his condition, he is prone to
lung infections and battles bedsores, digestive issues, and depression.
Dr. Joy Gathe-Ghermay testified she has been practicing as an anesthesiologist for
approximately twenty years. She was the anesthesiologist during Summers’s surgery described
above. Gathe-Ghermay stated that when the surgery began, she positioned herself “at the head of
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the bed,” which is typical. However, during the surgery, she noticed that there “seemed to be a lot
of blood being suctioned from the patient” and she then moved to the foot of the operating table
so she could “better see the surgeon and the suctioning equipment.” She stated that the typical
amount of blood loss for that type of surgery is “150 to 200 cc’s.” When the blood loss reached
800 cc, Gathe-Ghermay asked appellant, “Is everything okay?” She stated that his response was
“yes.” The final amount of blood loss during the surgery was 1,900 cc.
Gathe-Ghermay testified that after Summers was moved to the recovery room, a
neurological evaluation showed “weakness in his arms and legs.” She “started to have concerns
about his condition” and asked the nurses to contact appellant. She had another surgery scheduled
with appellant later that day, but arranged for a substitute to handle that surgery because she was
concerned Summers “could potentially have respiratory compromise” and require further
treatment by her. Gathe-Ghermay stated she has been assisting with spine surgeries for seventeen
years and has never seen anyone become a quadriplegic from the type of surgery Summers had.
Laura Strasser testified she has been a nurse for more than thirty years. She assisted as a
surgical nurse in Summers’s surgery described above. According to Strasser, during the surgery,
the anesthesiologist “was concerned about the blood loss that was occurring” and asked appellant
several times whether everything was okay. After the surgery, Strasser accompanied Summers to
the recovery room. She stated the recovery room nurses became concerned because Summers
could not move his arms or legs and “[t]he urine catheter bag was full of—bright cherry red” rather
than “normal yellow.” Strasser stated she was “numb and in shock” because she had “never had
an outcome like that before.”
Marcia Adlam testified she has been an operating room nurse since 1993. At approximately
11 p.m. on February 2, 2012, she was on call and was asked to assist in an emergency “bring back”
surgery on a patient who had undergone surgery earlier that day. The patient was Summers, who
–17–
had paralysis and was unable to move his arms and legs. The surgeon was appellant. Adlam stated
appellant was calm, but it “seemed he was hurrying through the operation.” She stated she saw
appellant remove material from Summers that appeared to be muscle tissue mixed with “surgical
foam,” which is a hemostatic product that “looks like a sponge” and is used to control bleeding.
Debra Gunaca testified she is a “circular” at Baylor and “runs[s] the operating room” during
surgeries. She has been “working in surgery” for approximately twenty years. In 2012, she was
present during a “revision surgery” on Summers that occurred subsequent to Summers’s two
surgeries by appellant described above. The surgeon was Dr. O’Brien. Gunaca testified that when
O’Brien “got down to the area in question that he was going to stabilize,” he stated, “Holy
[expletive]. What the [expletive] did that guy do?” Gunaca stated the comment surprised her
because she had operated with O’Brien numerous times before and he was “not normally like that.”
As stated above, Dr. Martin Lazar testified he reviewed certain spinal cases, including
Summers’s case, at the request of several plaintiffs’ attorneys. Lazar stated appellant correctly
diagnosed Summers with a severe spinal cord compression. However, according to Lazar, during
Summers’s surgery there was “massive” blood loss due to a damaged artery. Specifically, Lazar
testified appellant “took out an excessive amount of vertebral bone” and “exposed the vertebral
artery to injury.” He stated that injury to a vertebral artery is a “known complication” of spine
surgery, but is “exceptionally rare.” Further, Lazar testified (1) he believed Summers’s
quadriplegia was caused by pressure on the spinal cord and nerve root that resulted when appellant
“pack[ed] excessive amounts of Gelfoam or some other thrombogenic or hemostatic agent into the
spinal canal” in an attempt to reduce the massive bleeding and (2) that did not constitute
“reasonable medical care.” Additionally, Lazar stated (1) in the second surgery on Summers,
appellant attempted to relieve pressure on the back of the spinal cord, but “the pressure was really
–18–
in the front,” and (2) by removing bone in Summers’s back during the second surgery, appellant
caused additional “instability” issues respecting Summers’s spine and neck.
Dr. Joseph Sample testified he is currently retired after practicing medicine for more than
forty years. At the time of the events described above, he was chairman of the physician peer
review committee at Baylor, which is made up of six to eight physicians. Sample stated that “pretty
much right after [Summers’s] surgery,” he received a report from an ICU nurse that Summers said
he and his surgeon, appellant, had “consumed a combination of cocaine and heroin.” The
committee referred appellant to the hospital’s physician health and wellness program for
evaluation for drug abuse and asked appellant “to refrain from scheduling any further surgical
cases for the next two weeks.” According to Sample, “[t]he Committee’s feeling was that the
patient had an unexpected outcome from the surgery; that the surgeon failed to recognize the
complications; that the surgeon may have performed an inadequate second surgical procedure.”
Also, the committee was concerned about “an unacceptable relationship that developed between
the patient, the patient’s family and the operating surgeon.” Sample testified appellant’s drug test
“came back negative for drugs.” However, appellant was asked to relinquish care of Summers to
another physician, which Sample testified happens only “rarely.” Sample testified that
approximately three weeks later, appellant “requested a return to surgical privileges.” Although an
“external review” of Summers’s surgery was still pending, appellant’s request was granted.
According to Sample, appellant was asked by the committee “to not schedule anything but minor
surgical procedures” and appellant agreed to that request. Sample testified that the “very next”
surgery appellant performed was on a patient named Kellie Martin.
d. Kellie Martin
Don Martin testified that on March 12, 2012, appellant operated on his wife, Kellie Martin
(“Martin”), who was fifty-five years old at that time. The surgery took place at Baylor. After
–19–
surgery, appellant told Don Martin there were “some complications” and his wife was being taken
to the intensive care unit, but she would “be okay.” Several hours later, appellant and two other
doctors came out to the waiting area and told Don Martin that his wife had passed away.
Julie Hogg testified she is an operating room nurse at Baylor and has been “doing surgery”
for approximately twenty years. She was present at Martin’s surgery described above. She stated
that near the end of the surgery, the anesthesiologist was concerned because “the patient’s blood
pressure was going down and there wasn’t any way to get it back up.” At that point, appellant left
the room to go talk to the family. While appellant was out of the room, Hogg and others “flipped”
Martin over onto her back pursuant to a request from the anesthesiologist. According to Hogg,
Martin “was starting to wake up and kind of writhing in pain and reaching for her legs.” Hogg
testified Martin’s legs were “very mottled” and had “white and red splotchy spots all over,” which
“usually is an indication of lack of blood flow, oxygenation, into the extremities.” Hogg pointed
this out to the anesthesiologist, who stated, “Yes, something’s wrong. I cannot get her blood
pressure up.” When appellant returned to the room, he was “made aware of the patient’s
condition.” Also, Hogg told him about the patient’s mottled legs. Appellant “acted very
nonchalant” and stated, “She’s fine. She’s fine.” Hogg and another nurse rushed to get Martin’s
bed to the intensive care unit and “handed off care to the ICU team.”
James Cooper testified he is a radiology technician and participated in Martin’s surgery
described above. Cooper stated that during the surgery, the anesthesiologist had “concerns about
the blood pressure” and “asked also if there was any—if the physician had seen any additional
blood or if they were, you know, bleeding additionally.” According to Cooper, appellant’s
response was “along the lines of, ‘Well, we got it. We see a little bit. We got it.’” Cooper stated
that appellant’s “PA,” Kimberly Morgan, was also present during that surgery. According to
Cooper, the relationship between appellant and Morgan was “flirtatious.” Further, Cooper testified,
–20–
“[A]fter the concern about the blood pressures, [Morgan] had mentioned that, ‘Oh, you wouldn’t
mess up.’ [Appellant] said, ‘No, that’s right. It’s because I’m god.’”
Udina Doucet testified she is an operating room nurse and was present during Martin’s
surgery. Doucet stated that during the surgery, the anesthesiologist became “very concerned” about
Martin’s “vitals” and told appellant, “You need to close her. We need to get her off this bed.”
Doucet testified appellant responded, “She’s fine. Everything is fine.”
Dr. Jeff Taylor testified he is a pulmonary critical care physician and has worked at Baylor
for twelve years. He stated he treated Martin in the Baylor ICU following the surgery described
above. According to Taylor, when Martin arrived in the ICU, her legs were “mottled” and she had
no movement in one leg. Taylor testified her symptoms were suggestive of “inadequate
circulation.” He began a rapid transfusion of blood, but her condition deteriorated. Taylor
determined Martin was experiencing internal bleeding, but he could not determine where the blood
loss was originating. He and the anesthesiologist spent approximately two hours trying to
resuscitate Martin, but were not successful. Taylor testified that in his twelve years at Baylor ICU,
he has never “seen someone who was getting an elected spine surgery come into the ICU in this
condition.”
William Rohr testified he is the medical examiner for Collin County, Texas. His job
“involves doing autopsies and examinations of deceased individuals, to determine cause and
manner of death.” In March 2012, he conducted an autopsy on Martin. He testified appellant had
communicated to him that “the surgery went well,” with a “normal” amount of external blood loss.
Rohr stated he “opened up the abdomen” and it “was full of blood,” which “was obviously going
to be the cause of death and somehow related to the cause of death.” Rohr was unable to locate or
determine damage to a particular blood vessel. He stated he believed “the blood loss did start up
during the surgery” and “this was a result of something that didn’t go right during the procedure.”
–21–
Rohr ruled Martin’s death to be accidental and “most likely the result of a therapeutic
misadventure.” According to Rohr, appellant requested and was sent a copy of the autopsy report.
Lazar testified appellant properly diagnosed Martin with a herniated disc. He stated the
planned surgery is “the most common spine operation done,” has a mortality rate of less than one
in 10,000, and was a reasonable treatment for Martin’s symptoms. According to Lazar, Martin
died from a “retroperitoneal hemorrhage.” Specifically, Lazar testified a surgical instrument called
a disc rongeur “went through the ligament in the front” and lacerated an “iliac vessel,” which
resulted in internal bleeding. Further, Lazar stated that a trained neurosurgeon would know (1) this
is “a rare but possible complication of this type of surgery” that needs to be addressed immediately
during the surgery and (2) the most common cause of blood pressure dropping during surgery is
hemorrhage.
Sample testified that on the morning after Martin’s death, her case came to the attention of
the Baylor physician peer review committee. Sample elected to take the case directly to the
Medical Staff Executive Committee in order to accelerate the review process. The executive
committee determined Martin had bled to death from a “penetrating wound.” Further, the
committee (1) determined appellant was at fault as to both Martin’s death and Summers’s
condition and (2) recommended that the incidents be reported to the Texas Medical Board. Sample
testified appellant was informed of the committee’s findings and Sample personally told appellant
that he “had grave concerns about [appellant’s] operative technique and judgment.” Appellant
again took a “leave of absence” and was asked to submit to drug testing. Appellant’s initial drug
test results came back as “diluted,” so he was asked to repeat the test several days later. His second
drug test came back negative. Approximately one month after Martin’s death, appellant requested
reinstatement of his surgical privileges at Baylor, but that request was denied. Appellant was told
–22–
he would not be allowed to operate at Baylor again. According to Sample, appellant resigned his
privileges at Baylor on April 20, 2012. Further, Sample testified as follows:
Q. . . . Have you ever seen anything like these two cases before, in your career?
A. No.
Q. And how long have you been doing this?
A. Forty-five years.
Q. And what makes them so different?
A. A failure to recognize the consequences of the surgery. Accidents happen in
surgery. Every surgical procedure has got a mortality rate associated with it. But
there were two events too close together that were very disturbing.
Q. And you’ve never seen anything like that before?
A. No.
On cross-examination, Sample testified (1) appellant voluntarily resigned from Baylor;
(2) Baylor “did not take his privileges away”; and (3) upon his resignation, appellant received “a
letter from Baylor that did not indicate he had any problems.” On redirect examination, Sample
testified that in response to a subsequent request by DMC for information respecting appellant,
Baylor sent DMC an August 31, 2012 letter in which it stated in part that the Baylor executive
committee determined that the “standard of care” was not met in the cases of Summers and Martin.
e. Floella Brown
Joe Brown testified that his wife, Floella Brown (“Brown”), underwent surgery by
appellant for neck pain at DMC on July 24, 2012, and passed away as a result of that surgery. Joe
Brown stated that when he arrived at the hospital to visit his wife at approximately 5:30 a.m. on
July 25, 2012, she was “convulsing in the bed.” The staff on duty called appellant, who arrived
approximately one hour later. Joe Brown testified appellant “looked at [Brown] and he said, ‘I’ve
got to drill a hole in her head and relieve the pressure on the brain.’” However, according to Joe
–23–
Brown, “the hospital did not allow that to happen, because he was not qualified to do that.” Several
hours later, Brown was transferred to another hospital. The staff at that facility told Joe Brown his
wife was “brain dead.” She was removed from life support a short time later.
Lazar testified he reviewed Brown’s case. He stated that based on Brown’s symptoms,
appellant was operating “at the completely wrong level” of her spine. Also, according to Lazar,
Brown “lost 20 percent of her blood volume” during surgery, which is “an enormous blood loss.”
Specifically, he stated that although a normal blood loss for that type of surgery is 25 cc to 200 cc,
Brown lost approximately “1,200, at least.” Additionally, Lazar testified (1) “we know in this case
that [appellant] took too much bone off again and exposed the vertebral artery”; (2) either “the
artery itself was lacerated” or “the bleeding came from the periarterial venous plexus,” or both; (3)
then, “[s]omething [appellant] did obstructed the vertebral artery”; (4) “[p]robably, because it was
bleeding, he packed it”; (5) that “would stop the blood from coming out into the wound,” but “it
could also stop the vessel from working so that the blood wasn’t going to the brain”; (6) “[i]f you
have an occluded vessel and you have decreased oxygen-carrying capacity and that vessel is the
dominant vessel going to the back of your brain, you’re gonna have a stroke”; and (7) Brown
experienced obstruction to her dominant vertebral artery, which resulted in a stroke, brain swelling,
and, ultimately, acute obstructive hydrocephalus, which caused her death.
Further, Lazar stated in part,
Q. Is this a normal risk of surgery?
A. No, this is not a normal risk.
Q. Is it a risk at all?
A. It’s a risk, but it has to be so far outside of statistical probability that one would
not mention it.
....
Q. So, it’s pretty rare?
A. It’s very rare.
–24–
....
Q. If you have all of those outcomes [described above], would you go into another
surgery?
A. Never.
Q. Would you know that you are going to hurt that next patient?
A. How can you not?
Bagley testified in part on direct examination,
Q. Do you think Dr. Duntsch was poorly-trained, based on your review of these
surgeries?
A. Well, I would say—again, I don’t know what the denominator is, how many cases
this was out of. But, for the number of catastrophic injuries that occurred over a very
short period of time, it would be hard-pressed to imagine that those qualities didn’t
show themselves during training.
Further, Bagley testified on cross-examination that the six surgeries described above
“would be considered low risk surgeries.” Additionally, Bagley stated as follows:
Q. And [appellant] had a high rate of patients coming back after their surgeries
complaining of new neurological problems.
A. Again, the rate, I can’t say because I only reviewed specific records. But that
was a lot of patients, for the time. But I don’t know what the denominator is. I don’t
know how many patients it’s out of.
....
Q. . . . [Y]ou said earlier that you have heard of all these complications [described
above]; that they’re known complications, but they’re extremely rare.
A. Yes, ma’am.
Q. These things don’t just happen all the time, on a regular basis.
A. Yes, ma’am.
Q. So it’s highly unusual that a surgeon would have all of these extremely-rare
complications in a very short period of time. Wouldn’t you agree?
A. Extremely. Yes, ma’am.
Q. And even a surgeon who wants to say they’re poorly trained, when they—when
a patient is complaining of new pain over and over and over again, multiple
patients, you start to know that you’re hurting people.
–25–
A. I would hope so. Yes, ma’am.
f. Barbara Jean Ellison
Barbara Jean Ellison testified she has been an office manager and “medical office biller”
for twenty-five years. She worked for appellant from December 2011 to July 2012. She stated
appellant “lost privileges” from approximately March 2012 until July 2012 and did not perform
surgeries during that time. Ellison overheard appellant telling patients “he was going to be the
medical director of a billion-dollar facility,” “he was the best that ever came out of Tennessee’s
program,” and “[n]obody else could do what he could do, as well as he could do it.” In Ellison’s
opinion, those statements were lies. She stated appellant (1) seemed depressed, (2) had only a few
patients, (3) was rejected by at least one hospital to which he applied for privileges, and (4) would
sometimes “just disappear” with “no communication from him for days at a time.” Further, Ellison
testified it seemed to her that “[appellant] had an unusual number of bad outcomes” as compared
to the other doctors she had worked for.
Ellison testified that after Brown’s surgery, appellant asked her to “change the record”
respecting “the date that [Brown] was told to be off of blood thinners.” Specifically, Ellison stated
appellant wanted the office records to reflect that Brown had been told to stay off of blood thinners
for fourteen days before her surgery, when Brown had actually been off of blood thinners for only
four days before her surgery. Ellison testified she did not change the paperwork as requested by
appellant, but later saw “an addendum there in [appellant’s] handwriting.”
g. Kimberly Morgan
Morgan testified via Skype that from August 2011 until approximately May 2012, she was
employed as a nurse practitioner, surgical assistant, and office administrator in appellant’s office.
She stated she participated in ten to twenty neurosurgeries with appellant during that time.
–26–
According to Morgan, appellant was “very caring and kind” when she began working for him, but
his demeanor later changed and he became “angry-appearing” and “confrontational.”
Additionally, Morgan stated she had an intimate personal relationship with appellant
during a portion of the time period that she worked for him. They often communicated through
emails. Morgan testified she received a December 9, 2011 email from appellant titled “Occam’s
Razor.” That email was admitted into evidence as State’s Exhibit 160 and published to the jury. 2
Morgan stated (1) she has “no clue” what appellant meant in his statements in that email and (2) the
email did not cause her to “think [appellant] wanted to go and kill people.”
D. Closing Argument and Jury Charge
During closing argument, the prosecution stated in part,
Well, that email, number one, tells you everything you need to know about what’s
in [appellant’s] head. . . .
....
But, he’s god. He’s Einstein. He’s the antichrist. Those are his words,
right? . . .
....
So now, we’ve got all of these people. All of these people that he hurt, over
and over and over again. How many does it take . . . before you know what you’re
doing is hurting people, causing that serious bodily injury? How many lives does it
take?
....
2
That email stated in part as follows:
Unfortunately, you cannot understand that I really am building an empire, and I am so far outside the box that the earth is
small and the sun is bright. . . .
....
Anyone close to me thinks that I’m likely something between god, einstein, and the antichrist. Because how can I do anything
I want and cross any discipline boundary like its [sic] a playground and never ever lose. But unfortunately, despite the fact
that I’m winning it is not happening fast enough. What is the problem Kim? It is simply that everyone else is human and
there is nothing I can do about it. And so I pick and choose my humans and try to help them. . . .
....
You, my child, are the only one between me and the other side. I am ready to leave the love and kindness and goodness and
patience that I mix with everything else that I am and become a cold blooded killer. The sad fact is that I would go faster do
better and catch more respect and honor by [expletive] every one in the brain, emotionally and mentally control them in a
manner that borders on abuse, taking no prisoners, and sending everyone in my way, and especially that [expletive] with me
to hell for the simple fact that they thought they could much less tried. [sic]
....
What I am being is what I am, one of a kind, a mother [expletive] stone cold killer that can buy or own or steal or ruin or
build whatever he wants.
–27–
You have to go in now and tell him “no more.” . . . His own words, he was
being what he was: a one-of-a-kind, mother-[expletive], stone-cold killer. You say
“no.” . . .
....
. . . The Judge allowed you to hear about these other patients, because it
goes to knowledge. That is why you even got those. Normally, you don’t get to hear
about those other sort of things. It’s not to garner sympathy. It is that [sic] you can
know everything that the Defendant knew.
....
So, let’s talk about knowing. Absolutely. I want you to find that he
intentionally, knowingly, did this. We have filled you a room full of knowledge.
Knowledge of all the pain that the patients were suffering, as they came out of the
surgeries, that he was causing. . . . Knowledge—every witness who came in here
told you and gave you a different piece of everything that the Defendant knew,
before he went into [Efurd’s] surgery and even while he’s in there.
Counsel for appellant argued in part,
Dr. Bagley sat up here . . . and told you, “Yes, not one of these surgeries was
reasonable medical care.” So there’s no defense to reasonable medical care. “Yes,
they were suboptimal surgeries. They were not good surgeries. They were bad
outcomes.” Okay. Everybody agrees that they were bad outcomes.
....
They want to make him a stone-cold killer and monster, because that’s what
he said in an email, to a girlfriend, who thought he was rambling, just like he always
does. But you’ve got to stand there and think, is that, does that, in and of itself, rise
to the level of . . . intentional and knowingly?
....
[D]o you need all this [extraneous evidence]? Because, see, the fear the
State has is that if you look at the situation by itself, you might accidentally—think
it’s an accident. Think it’s all the distractions that caused it. So they want to make
sure you had all this [extraneous evidence] to help you with intent. Do you know
what? You can have all this, because he’s got that in his head. And maybe it helps
you put yourself where he is. But maybe where he is at that point in time is not what
they want to say. Because, . . . they started this whole thing out in opening
statements they were going to prove to you intentionally and knowingly . . . . Ladies
and Gentlemen, just because that’s what you think he deserves doesn’t mean
necessarily that’s what the evidence fits.
....
The problem was, he . . . was not a skilled surgeon. He was, according to
his peers, at the level of a first-year resident. But he was on his own, and doing the
best he could. . . .
....
[Appellant] never could get his hands to do what he knew he was supposed to do,
and it caused injury.
I think he knows that that caused the injury. . . . But, was he going in hoping
that he would do it again; that he would cause injury again? No. . . . I think his hope
–28–
was, this time, he would learn from what he did before and it would be better. And
it never did.
The charge of the court instructed the jury that “if there is any evidence before you in this
case regarding the defendant’s having engaged in conduct or acts other than the offense alleged
against him in the indictment in this case,” “you may only consider the same in determining the
intent or knowledge of the defendant, if any, or the absence of mistake or accident, if any, in
connection with the offense alleged against the defendant in the indictment, and for no other
purpose.” Following the verdict and assessment of punishment described above, this appeal was
timely filed.
II. APPELLANT’S ISSUES
A. Standard of Review
We review the trial court’s decision to admit or exclude evidence for an abuse of discretion.
Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). The trial court abuses its discretion
when the decision falls outside the zone of reasonable disagreement. Id. at 83. We uphold a trial
court’s evidentiary ruling if it was correct on any theory of law applicable to the case. De La Paz
v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
When addressing a challenge to the sufficiency of the evidence, we consider whether, after
viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Zuniga v. State, 551
S.W.3d 729, 732 (Tex. Crim. App. 2018) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));
see also Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016) (review of “all of the
evidence” includes evidence that was properly and improperly admitted). “Appellate review ‘does
not intrude on the jury’s role to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.’” Johnson v. State, No. PD-0197-
17, 2018 WL 5810857, at *1 (Tex. Crim. App. Nov. 7, 2018) (quoting Musacchio v. United States,
–29–
136 S. Ct. 709, 715 (2016)); accord Zuniga, 551 S.W.3d at 732; see also Hooper v. State, 214
S.W.3d 9, 16 (Tex. Crim. App. 2007) (“inference” is conclusion reached by considering other facts
and deducing logical consequence from them). “We may not re-weigh the evidence or substitute
our judgment for that of the fact-finder.” Zuniga, 551 S.W.3d at 732. Although juries may not
speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable
inferences from the facts so long as each inference is supported by the evidence presented at trial.
Id. at 733. We presume that the fact-finder resolved any conflicting inferences from the evidence
in favor of the verdict, and we defer to that resolution. Id.; Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007). In analyzing the sufficiency of the evidence, we determine whether the
necessary inferences are reasonable based upon the combined and cumulative force of all the
evidence when viewed in the light most favorable to the verdict. Clayton, 235 S.W.3d at 778.
Further, “[d]irect evidence and circumstantial evidence are equally probative, and circumstantial
evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction.” Zuniga, 551 S.W.3d at 733.
B. Applicable Law
Texas Penal Code section 22.04 provides in part that a person commits the offense of injury
to an elderly individual if he intentionally or knowingly causes serious bodily injury to a person
sixty-five years of age or older. TEX. PENAL CODE ANN. § 22.04(a). A person acts “knowingly”
with respect to a result of his conduct when he is aware that his conduct is reasonably certain to
cause the result. Id. § 6.03(b). “Serious bodily injury” means “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.” Id. § 1.07(a)(46).
Injury to an elderly individual is a “result of conduct” offense, which means the culpable
mental state relates to the result of the conduct, i.e., the causing of the injury. Kelly v. State, 748
–30–
S.W.2d 236, 239 (Tex. Crim. App. 1988); Perkins v. State, No. 05-17-00288-CR, 2018 WL
2252420, at *3 (Tex. App.—Dallas May 17, 2018, pet. ref’d) (mem. op., not designated for
publication). Proof of mental state will almost always depend upon circumstantial evidence.
Lincoln v. State, 307 S.W.3d 921, 924 (Tex. App.—Dallas 2010, no pet.). Knowledge may be
inferred from the person’s acts, words, and conduct. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim.
App. 2002); Martinez v. State, 833 S.W.2d 188, 196 (Tex. App.—Dallas 1992, pet. ref’d).
Evidence is relevant if it has any tendency to make a fact more or less probable than it
would be without the evidence and the fact is of consequence in determining the action. TEX. R.
EVID. 401. “Evidence need not by itself prove or disprove a particular fact to be relevant; it is
sufficient if the evidence provides a small nudge toward proving or disproving some fact of
consequence.” Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004).
Texas Rule of Evidence 403 allows for the exclusion of otherwise relevant evidence when
its probative value “is substantially outweighed by a danger of . . . unfair prejudice, confusing the
issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” TEX. R.
EVID. 403; Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Rule 403 favors the
admission of relevant evidence and carries a presumption that relevant evidence will be more
probative than prejudicial. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). Further,
the rule envisions exclusion of evidence only when there is a “clear disparity between the degree
of prejudice of the offered evidence and its probative value.” Hammer v. State, 296 S.W.3d 555,
568 (Tex. Crim. App. 2009). When conducting a rule 403 analysis, courts must balance: (1) the
inherent probative force of the proffered item of evidence, along with (2) the proponent’s need for
that evidence, against (3) any tendency of the evidence to suggest decision on an improper basis,
(4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any
tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate
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the probative force of the evidence, and (6) the likelihood that presentation of the evidence will
consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco
v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).
Texas Rule of Evidence 404(b)(1) provides that evidence of an extraneous act “is not
admissible to prove a person’s character in order to show that on a particular occasion the person
acted in accordance with this character.” TEX. R. EVID. 404(b)(1); Devoe v. State, 354 S.W.3d
457, 469 (Tex. Crim. App. 2011); see also Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App.
1996) (extraneous offense includes any act of misconduct, whether resulting in prosecution or not,
that is not alleged in indictment). However, pursuant to rule 404(b)(2), such evidence “may be
admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” TEX. R. EVID. 404(b)(2); see also
De La Paz, 279 S.W.3d at 343 (rule 404(b) is “a rule of inclusion rather than exclusion” and
excludes only evidence offered or used solely for purpose of proving bad character and conformity
therewith). “Whether extraneous offense evidence has relevance apart from character conformity,
as required by Rule 404(b), is a question for the trial court.” Devoe, 354 S.W.3d at 469. A trial
court’s ruling respecting the admission of extraneous offense evidence is generally within the zone
of reasonable disagreement if the extraneous offense evidence is relevant to a material, non-
propensity issue and the probative value of that evidence is not substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading of the jury. De La Paz, 279
S.W.3d at 344.
Non-constitutional error that does not affect an appellant’s substantial rights is to be
disregarded. TEX. R. APP. P. 44.2(b); Garcia v. State, 126 S.W.3d 921, 927–28 (Tex. Crim. App.
2004). An appellant’s substantial rights are not affected by the erroneous admission of evidence
if, after examining the record as a whole, we have fair assurance that the error did not influence
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the verdict or had only a slight influence on the verdict. Motilla v. State, 78 S.W.3d 352, 355 (Tex.
Crim. App. 2002); see also Garcia, 126 S.W.3d at 927–28. In making this determination, we
consider the entire record, including the other evidence admitted in the case, the nature of the
evidence supporting the fact-finder’s determination, the character of the alleged error and how it
might be considered in connection with other evidence in the case, the State’s theory, any defensive
theories, closing arguments, and whether the State emphasized the error. Motilla, 78 S.W.3d at
355–56.
C. Application of Law to Facts
1. Sufficiency of the Evidence
We begin with appellant’s third issue, in which he contends the evidence is insufficient to
support his conviction because “the State failed to prove a culpable mental state beyond a
reasonable doubt.” According to appellant, (1) although the evidence shows Efurd suffered serious
bodily injury, “[i]t does not show that Appellant intentionally or knowingly caused that serious
bodily injury,” and (2) “[t]he State failed to prove the adverse outcome in Efurd’s surgery was the
result of anything other than poor surgical technique.” Specifically, appellant argues (1) Efurd
“signed a consent form for her surgery in which she acknowledged risks of adverse outcomes,
which included some of the outcomes she experienced”; (2) although Henderson and Lazar
testified that a trained neurosurgeon would know that the things that were done to Efurd would
cause serious bodily injury, they “did not testify that Appellant knew they would cause serious
bodily injury” (emphasis original); (3) both Henderson and Lazar were paid for reviews relating
to civil litigation respecting this case; (4) several witnesses “agreed that Appellant had to have
been distracted during Efurd’s surgery because of what was happening in Brown’s case”; (5) Smith
testified that “whenever [appellant] tried to help a patient,” “[h]e believed that he could”; and
(6) Bagley testified there are less obvious ways to intentionally harm a patient other than in an
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operating room in front of others, all of the adverse outcomes in appellant’s patients were reported
outcomes that have happened before to other surgeons, “the outcome in Efurd’s case was a known
complication that a poorly-trained inexperienced surgeon might encounter,” performing additional
surgery to try to repair damage could be a sign that appellant had some concern for his patients,
and a “chaotic operating room” is “an additional barrier to providing appropriate care” when a
surgeon is “inexperienced and poorly trained.”
The State responds that the evidence of knowledge in this case fell into three categories:
(1) “things that any neurosurgeon would know”; (2) “things that Appellant knew about his own
prior surgeries”; and (3) “things that Appellant knew in the midst of Mary Efurd’s surgery.”
According to the State, (1) “[t]he jury could reasonably infer that because Appellant was a
neurosurgeon, he knew what any neurosurgeon would know”; (2) because the evidence showed
appellant had caused serious bodily harm in multiple cases during the preceding months and “knew
it,” rational jurors could have inferred that appellant was “aware that his conduct in Efurd’s surgery
was reasonably certain to cause the same result”; and (3) because there was evidence that appellant
was told during Efurd’s surgery that the implant was malpositioned and the intraoperative x-rays
showed the improper positioning, rational jurors could have inferred that appellant was aware he
was reasonably certain to cause serious bodily injury to Efurd.
The record shows Henderson testified (1) there is not “any way that a neurosurgeon would
not know that he was causing [Efurd] harm” and (2) the complication that occurred during Efurd’s
surgery is “extremely rare” and “unique.” Lazar testified (1) it is “inconceivable” that there is “any
way that a neurosurgeon doesn’t know that he’s going to cause Ms. Efurd serious bodily injury by
doing these things”; (2) he has never “seen anything like what happened in Ms. Efurd’s surgery”;
and (3) the outcome of Efurd’s surgery is “beyond egregious,” not “a normal risk of surgery,” and
not something Efurd “would have consented to” when she signed surgical consent forms.
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Additionally, (1) Hoyle stated that after his first and only surgery with appellant, he told appellant
he “was incredibly dangerous” and Hoyle “was never working with him again” because “[h]e was
going to hurt somebody”; (2) Passmore, Morguloff, Sample, and Rohr testified that during the
months prior to Efurd’s surgery, appellant was told he had caused serious injury to his patients;
and (3) Kissenger, Padron, and Furey testified that during Efurd’s surgery, appellant was told, and
the intraoperative x-rays showed, that the implant was improperly positioned.
Further, Bagley’s uncontroverted testimony included the following:
Q. These things don’t just happen all the time, on a regular basis.
A. Yes, ma’am.
Q. So it’s highly unusual that a surgeon would have all of these extremely-rare
complications in a very short period of time. Wouldn’t you agree?
A. Extremely. Yes, ma’am.
Q. And even a surgeon who wants to say they’re poorly trained, when they—when
a patient is complaining of new pain over and over and over again, multiple
patients, you start to know that you’re hurting people.
A. I would hope so. Yes, ma’am.
Accordingly, the record shows appellant experienced a highly unusual number of
extremely rare complications over a very short period of time, i.e., from December 2011 through
July 2012; was told multiple times during that period that he had caused serious injury to his
patients; and was told during Efurd’s surgery that the device he was installing was malpositioned.
The jury was permitted to draw any reasonable inferences from the facts so long as each inference
was supported by the evidence presented at trial. Zuniga, 551 S.W.3d at 733. Further, “[d]irect
evidence and circumstantial evidence are equally probative, and circumstantial evidence alone
may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating
circumstances is sufficient to support the conviction.” Id. On this record, we conclude the evidence
of what appellant knew prior to and during Efurd’s surgery supports a reasonable inference that,
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during Efurd’s surgery, appellant was “aware that his conduct [was] reasonably certain to cause”
serious bodily injury to Efurd. See id.; see also PENAL § 6.03(b). As indicated above, whether
appellant was “aware” of the reasonable certainty of the result of his conduct is critical.
The dissent concludes the evidence is insufficient to sustain appellant’s conviction for
knowingly or intentionally causing serious bodily injury to Efurd. Specifically, the dissent states
in part (1) the evidence supports the lesser culpable mental state of “recklessness” because “the
jury could have concluded appellant . . . was aware that his incompetence posed a significant
danger and chose, without justification, to engage in actions that threatened to bring about that
danger”; (2) however, the State did not prove appellant “actually knew what he was doing was
reasonably certain to result in injury,” i.e., the culpable mental state of “knowingly”; and (3) “the
proof shows all too clearly that appellant did not know what he was doing and that he was wholly
lacking in the kind of self-awareness that would support a finding that, by operating on a patient,
he knew he was ‘reasonably certain’ to do more harm than good.” Further, the dissent states,
[T]he evidence supports the conclusion that at the time he performed the surgery
on the complainant, appellant was aware3 of five complications out of an unknown
total patient population, that he had been rebuked by another doctor who opined
that “he was going to hurt somebody” at some point, and had been accused of
causing injury to other patients in the past. This evidence speaks to what appellant,
as a trained neurosurgeon, should have known about the risk he posed generally, as
would any evidence of past deficient performance, but says nothing about the
probability of harm to any particular patient, most importantly Ms. Efurd.
. . . That appellant had been accused of (or was being investigated for) errors
causing injuries to patients in the past is clear as is the notion that neurosurgery as
performed by him appeared to pose elevated risks, but the State made no effort to
quantify that risk or to apply it to the crime for which he was charged. It did not
ask Dr. Bagley, for example, whether he (Bagley) could have said that it was
“reasonably certain” that appellant would harm Ms. Efurd or any particular patient.
Instead, he simply agreed that he “would hope” that a surgeon who had experienced
a series of rare complications would start to know that he was “hurting
people” . . . .4
3
Italics supplied.
4
The testimony of Bagley on this point actually stated as follows:
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In essence, the dissent concludes the evidence does not support an inference that appellant
was aware that his conduct in question was reasonably certain to cause injury. In reaching that
conclusion, the dissent focuses on appellant’s “unknown total patient population” and the State’s
lack of “effort to quantify” the “probability of harm” to Efurd based on that total patient population.
The record shows appellant strenuously objected in the trial court to the State’s efforts to introduce
a broad spectrum of evidence of other surgeries performed by him. Further, appellant did not assert
any argument pertaining to “probability” based on “total patient population” until during oral
submission before this Court the dissenting justice suggested those propositions. Moreover, as
described above, the record contains uncontroverted expert testimony that during a very short
period of time, appellant’s surgical techniques resulted in extremely rare adverse outcomes with
unusual frequency. To the extent the dissent posits that evidence of a “probability of harm” based
on appellant’s “total patient population” was essential to demonstrate the culpable mental state of
knowingly in this case, we strongly disagree.
As described above, appellate review of the sufficiency of the evidence “does not intrude
on the jury’s role to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Johnson, 2018 WL 5810857, at *1; see
also Hooper, 214 S.W.3d at 16 (“inference” is conclusion reached by considering other facts and
deducing logical consequence from them). Further, we must not base our decision in this case on
“policy” concerns focused upon hypotheticals and abstract applications.5 Rather, we reach our
Q. And even a surgeon who wants to say they’re poorly trained, when they—when a patient is complaining of new pain over
and over and over again, multiple patients, you start to know that you’re hurting people.
A. I would hope so. Yes, ma’am.
The jury was entitled to consider the whole of Bagley’s testimony, not just the answer to the above question.
5
We decline to address the dissent’s policy discussion, as that discussion has no bearing on the application of the established law described
above to the facts of this case. See TEX. R. APP. P. 47.1 (this Court is to hand down written opinion that is as brief as practicable); see also City of
Laredo v. Laredo Merchs. Ass’n, 550 S.W.3d 586, 599 (Tex. 2018) (Guzman, J., concurring) (public policy arguments “are acutely legislative
concerns and, as such, are constitutionally removed from judicial purview”).
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conclusion based on the combined and cumulative force of all the evidence described above and
the proper deferential standard of review. See Clayton, 235 S.W.3d at 778. We respectfully
disagree with the dissent’s conclusion that the jury could not reasonably draw an inference that
appellant was aware that his conduct in question was reasonably certain to cause serious bodily
injury.
We decide appellant’s third issue against him.
2. Admission of Extraneous Offense Evidence Respecting Other Surgeries
In his first issue, appellant contends the trial court abused its discretion by admitting
extraneous offense evidence pertaining to appellant’s surgeries on the other patients described
above in violation of rule 404(b). Appellant asserts the trial court’s improper admission of
“voluminous amounts” of such evidence “resulted in an unfair trial where Appellant was forced to
defend against unindicted allegations.” Specifically, appellant argues in part,
It seems the aim was to evoke outrage and sympathy from the jury in order to obtain
a conviction. However, . . . [p]arading surgery after surgery in front of the jury in
order to establish guilt in a single case is the very definition of evidence in
conformity with bad character or criminal behavior. It is evidence which “is
inherently prejudicial, tends to confuse the issues in the case, and forces the accused
to defend himself against charges which he had not been notified would be brought
against him.”
....
The effect was that the prosecutor stressed evidence that was irrelevant and
inadmissible pursuant to Rule 404(b) in order to scare and browbeat the jury into
finding a culpable mental state for the charged offense where no evidence of one
existed, or for the extraneous offenses, for that matter. . . . Appellant was harmed
by the admission of this evidence because without it, the jury, by the State’s own
admission, had no other evidence of his alleged mental state.
(citations to authority omitted). Further, appellant asserts in his brief in this Court (1) “not to be
forgotten is the larger impact of the State’s conduct in prosecuting a case of this kind and arguing
to the [trial court] that it should be allowed to present evidence of a surgeon’s entire career to
establish intent or absence of mistake to prove a mental state in a single surgery” and (2) “[t]he
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floodgates will now be opened for all surgeons to have their entire career considered by
lawyers . . . to decide whether those surgeons have committed a crime in performing their job.”
The State responds that the trial court did not abuse its discretion by admitting the
complained-of evidence. According to the State, the extraneous acts in question were (1) relevant
to material, non-conformity issues because “[t]hey showed that Appellant was aware that his
conduct was reasonably certain to cause serious bodily injury, and they disproved accident,
mistake, and malpractice,” and (2) “so probative of Appellant’s culpable mental state that the
danger of unfair prejudice could not have substantially outweighed it.”
We begin by addressing the relevance of the complained-of evidence. The State contends
(1) “[i]n Texas, extraneous acts have long been admissible to prove a culpable mental state when
one cannot be inferred from the conduct alleged in the indictment” and (2) “[l]ikewise, if a
defendant’s conduct is capable of both an innocent and a criminal interpretation, extraneous
offenses are relevant under the doctrine of chances to prove that the innocent explanation is less
likely.” Further, the State argues in part,
If Appellant, while operating on Passmore, is told that he’s dangerous and that he’s
going to hurt someone, and afterward, Passmore can no longer swim, run, or walk
without limping, the jury would be willing to accept Appellant’s poor surgical
technique as a conceivable explanation. But if shortly afterwards a similar thing
happens to Morguloff, and if on the third occasion Summers is paralyzed, the
immediate inference (as a probability, perhaps not a certainty) is that Appellant
deliberately caused the result, because the chances of inadvertent injuries on three
successive similar occasions is extremely small.
But here, it happens three more times:
If, on the fourth occasion, Martin bleeds to death, and on the fifth occasion Brown
dies of a stroke, the inference (perhaps not a certainty, but by now a presumption)
is that Appellant deliberately caused the result.
And if, on the occasion alleged in the indictment, Appellant amputates a nerve root,
impales the dura with a screw, and leaves the interbody device in the psoas muscle,
the immediate inference is that, at minimum, Appellant was aware that his conduct
was reasonably certain to cause serious bodily injury.
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“The ‘doctrine of chances’ tells us that highly unusual events are unlikely to repeat
themselves inadvertently or by happenstance.” Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim.
App. 2016) (citing De La Paz, 279 S.W.3d at 347). For the doctrine to apply, there must be a
similarity between the charged and extraneous offenses, since it is the improbability of a like result
being repeated by mere chance that gives the extraneous offense probative weight. See, e.g., Beaty
v. State, No. 05-17-00287-CR, 2018 WL 3991283, at *6 (Tex. App.—Dallas Aug. 21, 2018, no
pet.) (mem. op., not designated for publication). No rigid rules dictate what constitutes sufficient
similarities. Id. An extremely high degree of similarity is not required where intent, as opposed to
identity, is the material issue. Id.
In the case before us, the record shows (1) appellant’s culpable mental state was a disputed
element of the charged offense, (2) Efurd’s surgery involved surgical procedures or techniques
similar to those used in appellant’s surgeries on the other patients described at trial, and (3) the
outcomes of the surgeries described at trial were extremely rare. Under the doctrine of chances,
the evidence of multiple similar rare events in the several months preceding Efurd’s surgery tended
to increase the likelihood that those events did not happen by chance and thus was relevant to the
question of whether appellant’s conduct fell within the culpable mental states pleaded by the State.
See De La Paz, 279 S.W.3d at 348 (“extraordinary coincidence” that appellant saw drug deals that
no one else did three different times “flies in the face of common sense” and therefore, under
doctrine of chances, allowed jurors to conclude it was objectively unlikely that appellant was being
truthful in his testimony respecting what he saw); Vasquez v. State, No. 03-15-00067-CR, 2017
WL 474064, at *4 (Tex. App.—Austin Jan. 31, 2017, no pet.) (mem. op., not designated for
publication) (under doctrine of chances, fact that appellant who was accused of indecency by
sexual contact with a student in his classroom committed similar sexual acts against another child
in his classroom during same time frame made it considerably less probable that complainant had
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fabricated her allegations). Accordingly, pursuant to that doctrine, the evidence in question did not
lack relevance to a material, non-conformity issue.
Moreover, independently from the doctrine of chances, “an extraneous offense may be used
to illustrate intent where it cannot be inferred from the act.” Jones v. State, 716 S.W.2d 142, 161
(Tex. App.—Austin 1986, pet. ref’d). In the case before us, the extraneous offense evidence in
question demonstrated knowledge by appellant that from December 2011 through July 2012, his
surgical techniques resulted in extremely rare adverse outcomes with unusual frequency and
caused serious injuries to his patients. That knowledge was relevant to the reasonableness of an
inference respecting whether appellant was aware that continuing to perform surgery using those
techniques was reasonably certain to cause adverse outcomes resulting in additional serious
injuries, i.e., the culpable mental state of knowingly.6 See Davis v. State, 955 S.W.2d 340, 348–49
(Tex. App.—Fort Worth 1997, pet. ref’d) (evidence of prior adverse outcomes respecting dental
surgeon’s other patients tended to establish dental surgeon “was aware of but consciously
disregarded the risk” of using similar surgical technique on complainant patient and thus had
culpable mental state of “recklessness”); Jones, 716 S.W.2d at 162 (in case of nurse convicted of
murder of pediatric patient, evidence pertaining to adverse outcomes in nurse’s treatment of other
pediatric patients with similar symptoms was relevant because, although “natural causes would
have been believable” as applied to one child, “looking at the same types of incidents that all
happened within such a short time to six children makes that much less likely”).
6
In addition to his arguments described above, appellant asserted for the first time during oral submission before this Court that relevance for
purposes of rule 404(b) could not be established without evidence of the total number of surgeries performed by him during his entire career and
the percentage of adverse outcomes resulting from those surgeries overall. The record does not show appellant asserted that argument in the trial
court. Further, that argument is inconsistent with appellant’s arguments asserted in his brief before us. Appellant contends in his brief in this Court
that a negative consequence of this case is “the larger impact of the State’s conduct in prosecuting a case of this kind and arguing to the [trial court]
that it should be allowed to present evidence of a surgeon’s entire career to establish intent or absence of mistake to prove a mental state in a single
surgery.” Moreover, as described above, the relevance of the extraneous evidence in question was established by uncontroverted expert testimony
that during a very short period of time, appellant’s surgical techniques resulted in extremely rare adverse outcomes with unusual frequency.
Appellant’s overall percentage of adverse surgical outcomes based on his entire career is immaterial to that relevance. Therefore, we disagree with
appellant’s position asserted during oral submission that the State could not establish relevance of the evidence in question for purposes of rule
404(b) without showing appellant’s overall percentage of adverse surgical outcomes based on his entire career.
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Next, we address appellant’s complaint respecting the “voluminous amount” of extraneous
offense evidence. According to appellant, (1) “the evidence concerning the named complainant in
this case constituted less than a day of trial while the extraneous offense evidence constituted the
remaining twelve days of trial,” (2) “[i]n other words, roughly ninety-two percent of the trial
consisted of extraneous offense evidence,” and (3) the State relied heavily on that evidence during
opening statements and closing argument.
The State responds (1) appellant’s calculation categorizes evidence pertaining to Brown’s
surgery as extraneous, but “Brown’s surgery is best viewed as contextual rather than extraneous”;
(2) to arrive at ninety-two percent, appellant must have also included evidence presented in the
punishment phase of trial and hearings outside the jury’s presence, rather than properly including
only evidence presented to the jury during the “guilt phase” of trial; and (3) not counting evidence
respecting Brown’s surgery or any hearings outside the presence of the jury, “only 44% of the
guilt-phase transcript covers extraneous matters.” The State acknowledges that forty-four percent
“is still a significant amount of time,” but contends it “needed to prove a culpable mental state
beyond a reasonable doubt, and to do that it had to prove extraneous surgeries beyond a reasonable
doubt.” Further, the State argues that “[e]ven if this factor weighs against the trial court’s ruling,
the other factors all support it,” and “[t]his factor alone cannot overcome the presumption of
admissibility, nor show an abuse of discretion.”
As described above, factor number six of the balancing test to be applied by this Court in
conducting a rule 403 analysis is “the likelihood that presentation of the evidence will consume an
inordinate amount of time.” See Gigliobianco, 210 S.W.3d at 641–42. We agree with the State’s
position that Brown’s surgery provided context for the charged offense and therefore evidence
respecting that surgery was not extraneous. See Austin v. State, 222 S.W.3d 801, 809 (Tex. App.—
Houston [14th Dist.] 2007, pet. ref’d) (declining to consider contextual evidence for purposes of
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rule 403 analysis). Further, appellant cites no authority, and we have found none, to support the
inclusion of extraneous offense evidence presented during the punishment phase of trial in the rule
403 analysis in this case or to include hearings outside the presence of the jury in our analysis. See
TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1) (providing guidelines for introduction of
evidence of “bad acts” after finding of guilty); Newton v. State, 301 S.W.3d 315, 320–21 (Tex.
App.—Waco 2009, pet. ref’d) (declining to consider portions of record outside presence of jury in
conducting rule 403 analysis). Accordingly, the record shows that approximately forty-four
percent of the guilt–innocence phase of trial was spent on evidence respecting extraneous acts of
appellant. This was a substantial portion of trial and therefore factor number six of the balancing
test weighs in favor of exclusion. See Newton, 301 S.W.3d at 321 (sixth factor weighed in favor
of exclusion where extraneous offense evidence amounted to about thirty percent of testimony);
McGregor v. State, 394 S.W.3d 90, 121 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (sixth
factor weighed in favor of exclusion when approximately one-third of trial was spent developing
extraneous testimony). However, that factor alone is not determinative, but rather must be balanced
against the remaining factors. See Gigliobianco, 210 S.W.3d at 641–42.
The first and second factors to be considered are the inherent probative force of the
proffered evidence and the proponent’s need for that evidence. See id. As described above, the
State needed the evidence in question to establish a disputed element, i.e., appellant’s culpable
mental state, and had no other means to establish that element. Thus, the trial court could have
reasonably concluded the evidence in question was highly probative and the State’s need for that
evidence was considerable. See Newton, 301 S.W.3d at 320. Accordingly, both the first and second
factors weigh heavily in favor of admissibility. See id.; see also Sifuentes v. State, 494 S.W.3d 806,
817 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (concluding first factor “weighs heavily” in
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favor of admissibility where extraneous evidence cast doubt on appellant’s claim that he lacked
requisite intent or knowledge).
The third factor is any tendency of the evidence to suggest decision on an improper basis.
See Gigliobianco, 210 S.W.3d at 641–42. As described above, the jury was repeatedly instructed
throughout the trial that the extraneous offense evidence in question was to be considered
“only . . . in determining the intent, knowledge, motive, absence of mistake or lack of action of the
defendant, if any, alleged in the indictment in this case and for no other purpose.” Also, the jury
charge contained that same instruction. Therefore, this factor weighs in favor of admissibility. See
McGregor, 394 S.W.3d at 121.
The fourth factor is “any tendency of the evidence to confuse or distract the jury from the
main issues.” See Gigliobianco, 210 S.W.3d at 641–42. As described above, all of the extraneous
surgeries by appellant were, like Efurd’s surgery, back surgeries that “would be considered low
risk.” Further, as described above, the jury was given multiple limiting instructions. However, the
outcomes of several of the extraneous surgeries in question were extremely adverse. Therefore,
this factor weighs in favor of exclusion. See Newton, 301 S.W.3d at 320.
Finally, the fifth factor is any tendency of the evidence to be given undue weight by a jury
that has not been equipped to evaluate the probative force of the evidence. See Gigliobianco, 210
S.W.3d at 641–42. As described above, the witnesses at trial included several physicians who
provided expert testimony. The record does not show the jury was not equipped to evaluate the
probative force of the evidence. See id.
To summarize, two of the six factors to be considered weigh in favor of exclusion of the
evidence in question and the remaining factors favor admissibility. Rule 403 envisions exclusion
of evidence only when there is a “clear disparity between the degree of prejudice of the offered
evidence and its probative value.” Hammer, 296 S.W.3d at 568. On this record, we conclude there
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is not a “clear disparity” between the danger of unfair prejudice posed by the extraneous-offense
evidence and its probative value. See id.; see also McGregor, 394 S.W.3d at 122 (concluding that
although time spent developing extraneous offense evidence weighed against admissibility, trial
court was within zone of reasonable disagreement in admitting evidence); Newton, 301 S.W.3d at
321–22 (concluding that although half of Gigliobianco factors, including factors four and six,
weighed in favor of exclusion of extraneous offense evidence, there was no clear disparity between
probative value and danger of unfair prejudice where State had considerable need for that
evidence); Austin, 222 S.W.3d at 809 (concluding that while half of witnesses spent “significant
time” testifying about matters in medical records respecting extraneous cases, other factors
weighed in favor of admissibility of that extraneous evidence and therefore trial court did not abuse
discretion by not excluding it). Accordingly, we conclude the trial court did not abuse its discretion
by admitting the complained-of extraneous offense evidence respecting other surgeries by
appellant.
We decide against appellant on his first issue.
3. Admission of State’s Exhibit 160
In his second issue, appellant contends the trial court abused its discretion by admitting
State’s Exhibit 160, the December 9, 2011 email from appellant to Morgan described above,
because it “constituted irrelevant, inadmissible extraneous offense evidence in violation of Texas
Rules of Evidence 401, 403, and 404(b).” According to appellant, as to rule 401, the email in
question (1) “was sent over seven months prior to the alleged offense in this case”; (2) “focuses
largely on Appellant’s relationship with Morgan”; (3) “is not relevant to show how [appellant]
acted intentionally or knowingly in this case”; (4) does not mention surgery, Efurd or any other
patient, or “what Appellant knew or intended during surgery”; and (5) is therefore “neither material
nor probative; and thus, inadmissible.”
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Further, as to rule 403, appellant asserts,
The [rule 403 balancing factors described above] weigh heavily in Appellant’s
favor because the email in question had no bearing on Efurd’s surgery, definitely
confused and distracted the jury from the main issue in the case, namely:
Appellant’s intent during Efurd’s surgery and not some random comment to his
girlfriend, and was clearly given undue weight when the prosecutor argued it, alone,
proved Appellant’s mens rea in this case during closing arguments to a jury which
was unequipped to evaluate any probative value of the email. See [Gigliobianco,
210 S.W.3d at 640–41]. For the foregoing reasons, State’s Exhibit 160 was
irrelevant, and therefore, inadmissible.
Additionally, as to rule 404(b), appellant contends (1) the State “resorted to convicting
Appellant by manipulating the jury to believe Appellant was, in fact, a ‘stone cold killer’ based on
a random comment made in a private email to his girlfriend seven months prior to the alleged
offense in this case which made no reference to the alleged victim”; (2) “[t]here can be no other
reason for the State to offer State’s Exhibit 160 other than to show action in conformity therewith
and that he is a bad person in general because of the lack of the specificity of the statement in
regards to the facts of this case”; and (3) appellant “was erroneously forced to defend himself
against an extraneous bad act, a random comment in a private email, that was not included within
the indictment or even tangentially connected to this case in any way.” Finally, appellant asserts
he “was harmed by the admission of this evidence because without it, the jury, by the State’s own
admission, had no other evidence of his alleged mental state.” (emphasis original).
The State responds that the trial court did not abuse its discretion by admitting the email in
question into evidence and, regardless, any error must be disregarded as harmless. Specifically,
the State asserts in part (1) the relevancy standard is non-demanding and, in general, relevant
evidence should not be excluded; (2) the email was relevant because it provided a “small nudge”
toward intentional conduct and rebutted defensive theories advanced by appellant; (3) the danger
of unfair prejudice did not substantially outweigh the email’s probative value; (4) the email was
admissible under rule 404(b) because it showed motive, intent, and plan, and did not show criminal
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propensity; and (5) “any error in admitting the email was harmless, because it would have had no
effect on the outcome.”
As described above, “[e]vidence need not by itself prove or disprove a particular fact to be
relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some
fact of consequence.” Stewart, 129 S.W.3d at 96. Additionally, a person’s mental state may be
inferred from the person’s acts, words, and conduct. See Hart, 89 S.W.3d at 64; Martinez, 833
S.W.2d at 196. In the case before us, the record shows (1) appellant’s mental state was a fact of
consequence at issue; (2) in the email in question, appellant stated on December 9, 2011, “I am
ready to leave the love and kindness and goodness and patience that I mix with everything else
that I am and become a cold blooded killer,” and “[w]hat I am being is what I am, one of a kind, a
mother [expletive] stone cold killer that can buy or own or steal or ruin or build whatever he
wants”; and (3) the surgeries described at trial in which appellant caused serious injury to his
patients occurred during the eight months following that email. On this record, we conclude it was
not outside the zone of reasonable disagreement for the trial court to conclude that appellant’s
statements in that email provided at least “a small nudge” toward proving that appellant’s acts in
question were done intentionally or knowingly, or disproving that such acts were the result of
happenstance. See Stewart, 129 S.W.3d at 96. Accordingly, we conclude the trial court did not
abuse its discretion by concluding State’s Exhibit 160 was relevant. See TEX. R. EVID. 401.
Further, as described above, appellant’s arguments respecting violation of rules 403 and
404(b) both describe and rely on the alleged lack of relevance of the email in question. In light of
our conclusion above that the trial court did not abuse its discretion by concluding State’s Exhibit
160 was relevant, we disagree with appellant’s positions respecting violation of rules 403 and
404(b).
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Moreover, as to harm, an appellant’s substantial rights are not affected by the erroneous
admission of evidence if, after examining the record as a whole, we have fair assurance that the
error did not influence the verdict or had only a slight influence on the verdict. See Motilla, 78
S.W.3d at 355; Garcia, 126 S.W.3d at 927–28. In response to appellant’s contention that the jury
had no evidence of his alleged mental state other than State’s Exhibit 160, the State asserts in part,
The email was evidence which, if given weight by the jury, supported an inference
that Appellant intentionally caused serious bodily injury. But the State was not
required to prove that to obtain the verdict it sought; proof that he knowingly caused
serious bodily injury would suffice. And . . . there was abundant evidence that
Appellant knowingly caused serious bodily injury. First, he knew—because any
neurosurgeon would know—that malpositioning hardware and amputating nerve
roots would cause serious bodily injury. Second, he knew that Passmore,
Morguloff, Summers, Martin, and Brown had suffered serious bodily injury
already. Third, he knew that Efurd’s hardware was malpositioned because the intra-
operative x-rays and his colleagues all told him so. The State was entitled to prove
intentional conduct, but knowing conduct supported the jury’s verdict. State’s
Exhibit 160 would have had little to no effect on the verdict, and was therefore
harmless.
Based on the entire record before us, including the evidence described by the State in its
argument set out above, we disagree with appellant’s position that the jury had no evidence of his
alleged mental state other than State’s Exhibit 160. On this record, we conclude appellant was not
harmed by the admission of the email in question. See Motilla, 78 S.W.3d at 355; Garcia, 126
S.W.3d at 927–28.
We decide appellant’s second issue against him.
III. CONCLUSION
We decide appellant’s three issues against him. The trial court’s judgment is affirmed.
/Douglas S. Lang/
Schenck, J., dissenting DOUGLAS S. LANG
JUSTICE
Publish
TEX. R. APP. P. 47.2(b)
170235F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CHRISTOPHER DANIEL DUNTSCH, On Appeal from the Criminal District Court
Appellant No. 5, Dallas County, Texas
Trial Court Cause No. F15-00411-L.
No. 05-17-00235-CR V. Opinion delivered by Justice Lang, Justices
Fillmore and Schenck participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 10th day of December, 2018.
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