Thomas Daniel Guerrero v. State ( 2011 )


Menu:
  • Affirmed and Memorandum Opinion filed December 22, 2011.
    In The
    Fourteenth Court of Appeals
    NO. 14-10-00840-CR
    THOMAS DANIEL GUERRERO, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 179th District Court
    Harris County, Texas
    Trial Court Cause No. 1255375
    MEMORANDUM OPINION
    A jury convicted appellant Thomas Daniel Guerrero of intentionally or knowingly
    causing serious bodily injury to a child, and it assessed punishment at fifty-five years‘
    imprisonment. In three issues, appellant argues that the trial court erred by admitting
    evidence of certain extraneous bad acts, finding one of the State‘s experts qualified to
    testify about shaken baby syndrome, and reading certain testimony back to the jury
    during jury deliberations. We affirm.
    BACKGROUND
    While appellant was separated from his wife, Melissa Guerrero, he met and
    conceived a child with his girlfriend, Irene Ayala. In March 2006, Irene gave birth to the
    complainant, Lilah. Appellant had infrequent contact with Lilah until the fall of 2006
    when he moved into Irene‘s apartment. At the time, Lilah was about eight months old,
    and appellant was again separated from his wife Melissa.
    On November 9, 2006, Irene was at work while appellant stayed home to watch
    Lilah.       Irene‘s other children were in daycare, so appellant and Lilah were alone.
    Evidence revealed that appellant spoke to Irene on the phone throughout the day,
    inquiring about lunch plans and letting Lilah hear Irene‘s voice. Evidence also revealed
    that appellant spoke with Melissa about getting a divorce and whether she would permit
    appellant to visit their daughter, Alora. At approximately 4:00 p.m. and while still caring
    for Lilah, appellant phoned Irene and told her to come to the apartment right away
    because Lilah had sustained injuries. Lilah died from those injuries several days later.
    Appellant did not testify at trial, but he told a consistent story of what happened to
    Lilah to at least ten of the State‘s witnesses.1 Appellant claimed that he put Lilah on a
    pillow sitting on the couch, and that Lilah fell off the couch and onto the carpeted floor
    when he went to the kitchen to cook some food. Appellant claimed to have found Lilah
    lying on her stomach with her hands beneath her and her head turned to the right; her
    eyes were ―halfway open‖ and she was having difficulty breathing.
    Appellant took Lilah to a neighbor‘s apartment and asked the neighbor to call 911.
    Appellant called Irene‘s mother and asked her to come lock the apartment because he was
    going to the hospital with Lilah and did not have a key. Irene‘s mother went to the
    apartment and found the door open and a stove burner on low. When Irene arrived at the
    1
    These witnesses included Melissa, Irene, Irene‘s neighbor, Irene‘s mother, an emergency
    responder, a doctor, several police officers, a social worker, and a supervising investigator with the Texas
    Department of Family and Protective Services.
    2
    apartment to pick up Lilah‘s car seat and belongings before going to the hospital, Irene
    noted a forty-ounce bottle of beer open on the counter, which was full almost to the top.
    The State presented evidence that Lilah previously had sustained virtually no
    injury when, while also in appellant‘s care, she fell onto carpet from a bed much higher
    than the couch. The State also presented evidence that appellant has a drinking problem
    and had become verbally abusive toward Melissa on one occasion after drinking alcohol
    and discussing Melissa‘s own extra-marital relationship; on that occasion, appellant had
    shaken Lilah‘s car seat in irritation in an effort to make her stop crying.
    Other testimony painted appellant in a positive light. Irene testified that appellant
    was a good, patient, loving, and affectionate father-figure toward Lilah and Irene‘s other
    children. Irene also testified that she had not noticed appellant drinking any alcohol in
    the two weeks before Lilah‘s death. Irene‘s mother testified that appellant was a very
    polite, quiet, and respectful person, and she had never seen him get angry, use drugs or
    alcohol, or abuse children. Melissa testified that appellant was a loving and affectionate
    father for their daughter, and he was never mean to their daughter or struck or shook her.
    Appellant‘s sister testified that appellant often babysat for her children, and he was very
    affectionate towards them and never put them in harm‘s way. Appellant scolded his
    sister when she spanked her children. Finally, the jury heard evidence that appellant was
    distraught when Lilah showed signs of injury and died: he cried, attempted suicide, and
    admitted fault for leaving Lilah on the couch unsupervised.
    Regarding Lilah‘s injuries and their cause, the State presented evidence from five
    doctors, all of whom the court found qualified to testify as experts over appellant‘s
    objections.   Dr. Ana Lopez, an assistant medical examiner with the Harris County
    Institute of Forensic Sciences, performed an autopsy on Lilah. Dr. Lopez explained that
    Lilah suffered from subdural and subarachnoid hemorrhages, or bleeding in different
    parts of the outer layers of the brain. Lilah also showed retinal hemorrhages in both eyes.
    She developed swelling in her brain, and one side of her brain was pushed into the other.
    3
    Lilah finally had a stroke because her brain was not getting enough oxygen. Dr. Lopez
    opined that Lilah‘s injuries were caused by blunt impact to the head or
    acceleration/deceleration forces, which could include shaking. Dr. Lopez noted that
    Lilah had no external injuries except for a few pressure sores caused by lying in the
    hospital for several days, as well as several small, faint bruises on the right side of her
    head and the left side of her neck, which she opined could have been caused by I.V. lines
    or a cervical collar used on Lilah during hospitalization. Dr. Lopez further opined that
    Lilah‘s injuries were not consistent with a fall from a couch.
    Dr. Rebecca Girardet, a medical doctor specializing in child abuse pediatrics,
    testified that she examined Lilah before her death. She opined that a 2.5-foot fall from a
    couch to a carpeted surface could not have caused Lilah‘s injuries. She believed that
    Lilah was shaken, and there may or may not have been an impact to her head. Dr.
    Girardet explained that the shaking required to cause brain trauma like Lilah suffered is
    severe, and not something that someone would do accidentally because anyone would
    recognize it as being harmful to a baby.
    Dr. Judianne Kellaway, an ophthalmologist specializing in the retina, was
    consulted about Lilah‘s retinal hemorrhages.         Dr. Kellaway testified that retinal
    hemorrhages can be caused by direct trauma to the eye or from shaking, but that retinal
    hemorrhages are rarely seen in babies because the elastic tissues that interface with the
    retina are ―very tough‖ and more solid in a baby than in an adult or older child. Dr.
    Kellaway testified that ―moderately severe‖ hemorrhaging in both retinas of a baby, as
    was present in Lila‘s case, suggests the baby was shaken. She explained that it takes a
    ―tremendous‖ amount of force to cause these types of hemorrhages, and even babies who
    have been thrown from vehicles during car accidents, found unconscious with fractures
    and head injuries, did not develop retinal hemorrhages. Dr. Kellaway opined that a 2.5-
    foot fall from a couch could not have caused Lilah‘s injuries, and the only possible cause
    of Lilah‘s multiple injuries was shaking.
    4
    Dr. Alexander Simonetta, a neuroradiologist with training and experience in
    shaken baby syndrome, evaluated Lilah‘s CT scans. The CT scans and x-rays of Lilah
    did not reveal any fractures, but they revealed the subdural and subarachnoid
    hemorrhages and eventual brain death. Dr. Simonetta noted the lack of external swelling
    or injuries to Lilah and explained that the lack of such injuries, combined with bleeding
    in the brain, is indicative of child abuse—in particular, a shaking injury rather than a
    direct blow to the head. He testified it takes a ―fair amount‖ of force to cause a subdural
    hemorrhage, and it was not possible for Lilah‘s injuries to be caused by falling from a
    couch.
    Dr. Deborah Brown, a hematologist, testified that Lilah did not have a bleeding
    disorder and her injuries could not have been caused by a bleeding disorder. Dr. Brown
    concluded that Lilah‘s injuries were caused by some kind of significant blunt force
    trauma; she opined that Lilah‘s injuries were inconsistent with appellant‘s story that Lilah
    fell 2.5 feet from a couch and were consistent with shaken baby syndrome.
    The jury convicted appellant of intentionally or knowingly causing serious bodily
    injury to a child, and assessed punishment at fifty-five years‘ imprisonment. In three
    issues     on    appeal,    appellant    argues    that    the   trial   court    erred    by
    (1) admitting evidence of certain extraneous bad acts; (2) finding Dr. Brown qualified to
    testify about shaken baby syndrome; and (3) reading back certain testimony from Dr.
    Kellaway to the jury during deliberations.
    ANALYSIS
    I.       Evidence of Extraneous Bad Acts
    In his first issue, appellant argues that the trial court erred by admitting evidence
    of extraneous bad acts showing that (1) appellant has a drinking problem and shook
    Lilah‘s car seat in irritation after drinking alcohol on a prior occasion; and (2) drugs were
    found on several occasions in appellant‘s backpack.
    5
    Evidence of extraneous offenses or bad acts that a defendant may have committed
    ordinarily cannot be introduced at the guilt-innocence phase to show that the defendant
    acted in conformity with his criminal nature and therefore committed the crime for which
    he is on trial. See TEX. R. EVID. 404(b); Robbins v. State, 
    88 S.W.3d 256
    , 259 (Tex.
    Crim. App. 2002). This evidence, however, may be admissible when it is relevant to a
    ―noncharacter conformity issue of consequence‖ in the case, such as the defendant‘s
    intent or defensive theories. 
    Robbins, 88 S.W.3d at 259
    ; see also TEX. R. EVID. 404(b)
    (evidence may be admissible to prove, among other things, motive, intent, and absence of
    mistake or accident). Evidence is relevant to such an issue if the purpose for which the
    party seeks to have it admitted tends to make ―the existence of any fact that is of
    consequence to the determination of the action more probable or less probable than it
    would be without the evidence.‖ Smith v. State, 
    5 S.W.3d 673
    , 679 n.13 (Tex. Crim.
    App. 1999).
    Evidence relevant to a ―noncharacter conformity issue of consequence‖ under
    Rule 404(b) nonetheless may be inadmissible under Rule 403 if the trial court determines
    that the probative value of the evidence is ―substantially outweighed‖ by the danger of
    unfair prejudice. TEX. R. EVID. 403. Evidence is unfairly prejudicial when it has ―an
    undue tendency to suggest that a decision be made on an improper basis.‖ Reese v. State,
    
    33 S.W.3d 238
    , 240 (Tex. Crim. App. 2000) (citing Montgomery v. State, 
    810 S.W.2d 372
    , 389 (Tex. Crim. App. 1990) (op. on reh‘g)). When conducting a Rule 403 balancing
    test, the trial court should analyze (1) how probative the evidence is; (2) the potential for
    the evidence to impress the jury in some irrational way; (3) the time the proponent will
    need to develop the evidence; and (4) the proponent‘s need for the evidence, i.e., whether
    other evidence is available and whether the fact of consequence is related to a disputed
    issue. 
    Montgomery, 810 S.W.2d at 389
    –90; Isenhower v. State, 
    261 S.W.3d 168
    , 177–78
    (Tex. App.—Houston [14th Dist.] 2008, no pet.).
    6
    Because the trial court is in the best position to decide these admissibility
    questions, an appellate court must review a trial court‘s admissibility decision under an
    abuse of discretion standard. 
    Robbins, 88 S.W.3d at 259
    –60 (citing 
    Montgomery, 810 S.W.2d at 391
    ). We uphold a trial court‘s admissibility decision when that decision is
    within the zone of reasonable disagreement. 
    Id. at 260.
    An appellate court misapplies
    this standard of review if it reverses a trial court‘s admissibility decision simply because
    the appellate court disagrees with it. 
    Id. With these
    standards in mind, we turn to the evidence challenged by appellant on
    appeal.
    A.     Alcohol Use and Shaking of Car Seat
    Melissa testified that appellant has had ―a habit of drinking too much‖ and ―a
    problem with drinking‖ for ―quite some time.‖ She testified that appellant regularly
    would drink beer all day when he was not working, from the time a store opened in the
    morning (or whenever he could buy beer) until the late evening. Melissa also testified
    about a trip to Galveston that she took with appellant, their daughter Alora, and Lilah.
    Melissa explained that appellant had been drinking alcohol before and throughout the
    trip, and he seemed intoxicated. Appellant became upset about Melissa‘s past marital
    indiscretion during the car ride home, and he began yelling obscenities at Melissa. Lilah
    was crying in her car seat, and appellant yelled at Lilah to ―shut up.‖ When Lilah
    continued to cry, appellant turned around and shook the car seat ―like he was irritated.‖
    Melissa testified that appellant‘s shaking of the car seat ―concerned [her].‖
    Appellant generally objected to this evidence on the grounds that (1) the evidence
    shows only bad character or reputation and therefore is prohibited by Rule 404(b); and
    (2) the evidence is more prejudicial than probative under Rule 403. The trial court
    admitted the evidence, but granted appellant a jury instruction and a running objection.
    We address separately each of appellant‘s arguments regarding this evidence.
    7
    1.     Shaking of Car Seat
    Rule 404(b). With respect to evidence that appellant shook Lilah‘s car seat,
    appellant argues more specifically on appeal that the evidence is not admissible under
    Rule 404(b) because appellant ―never argued that he did not mean to shake the
    complainant‖ and that ―the prior shaking does not establish that the injuries were not
    accidental, only that [appellant] shook the complainant before.‖
    Appellant seems to argue that the questions of intent or accident are not ―issues of
    consequence‖ under 404(b) because appellant‘s explanation for Lilah‘s injuries was that
    she fell from the couch, not that he accidentally shook her, or shook her without
    intending to cause any injury. We disagree that this is a meaningful distinction in this
    case. See, e.g., 
    Robbins, 88 S.W.3d at 261
    –62 (defendant claimed that infant‘s fatal
    asphyxiation injuries were caused by defendant‘s improperly performed CPR or,
    alternatively, sudden infant death syndrome; admitting evidence of prior injuries suffered
    by infant while in appellant‘s care because such evidence was relevant under Rule 404(b)
    to show intent or rebut either defensive theory); Prieto v. State, 
    879 S.W.2d 295
    , 298
    (Tex. App.—Houston [14th Dist.] 1994, pet. ref‘d) (defendant claimed that child‘s burns
    and bruises were caused when child fell while giving himself a bath; admitting evidence
    showing that on a prior occasion, defendant had yelled at child in abusive manner,
    threatened beating, and grabbed child roughly by the arm because such evidence was
    relevant to appellant‘s intent under 404(b)); cf. Estelle v. McGuire, 
    502 U.S. 62
    , 68–69
    (1991) (in context of constitutional challenge to trial court‘s admission of evidence,
    noting that evidence of prior injury to child helps prove ―that the child died at the hands
    of another and not by falling off a couch, for example; it also tends to establish that the
    ‗other,‘ whoever it may be, inflicted the injuries intentionally‖); Robbins, 
    88 S.W.3d 267
    –68 (Cochran, J., concurring) (discussing ―doctrine of chances‖ and historic case of
    Rex v. Smith, 11 Cr. App. R. 229, 84 L.J.K.B. 2153 (1915), in which evidence that
    Smith‘s two prior wives were found drowned in bath tubs was held admissible; ―[t]he
    8
    evidence was not offered to prove that Mr. Smith had a ‗drowning‘ or ‗murderous‘
    character trait, but to show that it was more likely that [the third wife] died from a
    criminal act [rather than an accident] because two of Mr. Smith‘s other brides had died
    under very similar circumstances‖).
    We cannot say that the trial court abused its discretion in deciding that the
    evidence was relevant to a ―noncharacter conformity issue of consequence‖ in this case,
    such as appellant‘s intent or his defensive theory that Lilah‘s injuries were caused by
    falling from the couch while appellant was out of the room. See TEX. R. EVID. 404(b);
    
    Robbins, 88 S.W.3d at 259
    –60. We overrule appellant‘s issue based on this argument.
    Rule 403. Appellant also argues that even if such evidence is admissible under
    404(b), it should have been excluded under Rule 403 because ―it did not resemble the
    degree or type of shaking that was alleged was necessary to cause the injuries.‖2 This
    argument relates to the probative value of the evidence, which is one of the four factors,
    discussed above, that are germane to our analysis under Rule 403. The probative value is
    ―often, although by no means invariably, a function of the similarity of the extraneous
    transaction to the charged offense.‖ 
    Montgomery, 810 S.W.2d at 389
    –90. We do not
    agree with appellant that his shaking of Lilah‘s car seat, while under the influence of
    alcohol and having a heated discussion about his relationship with Melissa, is so
    dissimilar to weigh in favor of inadmissibility under Rule 403 simply because appellant
    did not shake Lilah vigorously enough to cause fatal injury.
    With respect to the remaining Rule 403 factors, we note that (1) it is unlikely that
    the jury could have irrationally relied on this evidence to convict appellant for shaking
    Lilah‘s car seat, especially when there is no evidence that shaking the car seat injured
    Lilah; (2) it took the State very little time to develop this evidence; and (3) there was no
    other compelling or undisputed evidence upon which the State could have relied to show
    2
    Appellant also argues that it constitutes evidence of appellant‘s ―drunk temper, which evokes a
    strong negative emotional response.‖ We address this argument below in the context of appellant‘s
    alcohol use.
    9
    that appellant had acted aggressively toward Lilah before.3 See 
    Montgomery, 810 S.W.2d at 389
    –90; 
    Isenhower, 261 S.W.3d at 177
    –78. These factors do not weigh in favor of
    finding that the probative value of the evidence is ―substantially outweighed‖ by its
    potential for prejudice, and we conclude that the trial court acted within its discretion in
    admitting the evidence. See TEX. R. EVID. 403; 
    Robbins, 88 S.W.3d at 259
    –60. We
    overrule appellant‘s issue based on this argument.
    2.      Alcohol Use
    Rule 404(b). With respect to the evidence of appellant‘s habitual alcohol use,
    appellant argues on appeal that the evidence is inadmissible under Rule 404(b) because
    the State cannot establish its theory that appellant ―was angry and got drunk‖ on the day
    of Lilah‘s injury by introducing evidence that appellant ―would wake up and drink in the
    morning and until he went to bed.‖
    The State consistently argued that the evidence of appellant‘s drinking habit
    established a ―pattern of behavior.‖ This argument fairly raises the application of Texas
    Rule of Evidence 406.4 See TEX. R. EVID. 406. Rule 406 states: ―Evidence of the habit
    of a person . . . is relevant to prove that the conduct of the person . . . on a particular
    occasion was in conformity with the habit . . . .‖ 
    Id. Evidence of
    habit and character
    sometimes appear similar; but while character is a generalized description of a person‘s
    3
    Appellant argues that the State‘s need for this evidence was slight because ―there was testimony
    of five experts that said he shook the baby to death,‖ and that Lilah‘s injuries could not have been caused
    by falling from the couch. While the expert testimony was compelling, the applicability of the shaken
    baby syndrome theory to this case was consistently disputed by appellant at trial. See 
    Montgomery, 810 S.W.2d at 390
    (―When the proponent has other compelling or undisputed evidence to establish the
    proposition or fact that the extraneous misconduct goes to prove, the misconduct evidence will weigh far
    less than it otherwise might in the probative-versus-prejudicial balance.‖).
    4
    Moreover, a trial court‘s evidentiary ruling must be upheld ―if it is correct under any theory of
    law that finds support in the record.‖ See, e.g., Gonzalez v. State, 
    195 S.W.3d 114
    , 125–26 (Tex. Crim.
    App. 2006) (citing McDuff v. State, 
    939 S.W.2d 607
    , 619 (Tex. Crim. App. 1997), and Romero v. State,
    
    800 S.W.2d 539
    , 543–44 (Tex. Crim. App. 1990)). This is so even when the State did not raise the
    ground for upholding the ruling in the trial court. See, e.g., Rhodes v. State, 
    945 S.W.2d 115
    , 118 n.3 &
    119 (Tex. Crim. App. 1997) (affirming and noting that court of appeals concluded that trial court‘s denial
    of motion to suppress could be affirmed based on same theory of law applicable to case but not argued by
    State to trial court).
    10
    disposition, habit describes a person‘s regular response to a repeated specific situation.
    Reyes v. Mo. Pac. R.R. Co., 
    589 F.2d 791
    , 794 (5th Cir. 1979).5 Controlling admissibility
    considerations include the adequacy of sampling and uniformity of response. 
    Id. at 795.
    ―[T]he probative force of habit evidence to prove intoxication on a given occasion
    depends on the degree of regularity of the practice and its coincidence with the occasion.‖
    Id.; see Haynes v. State, 
    85 S.W.3d 855
    , 858–59 (Tex. App.—Waco 2002, pet. ref‘d)
    (noting that ―Rule 406 allows for evidence of a ‗habit‘ if relevant, as Haynes‘s drinking
    habit was here,‖ but overruling appellant‘s issue regarding admissibility of evidence
    showing drinking ―habit‖ because such evidence was admitted elsewhere at trial without
    objection).
    Rather than challenging these considerations with respect to Melissa‘s testimony,
    appellant argues, without citation to supporting authority, that the trial court erred in
    admitting the testimony because the State presented no evidence that appellant was
    intoxicated on the day of Lilah‘s injury. Appellant seems to implicitly reference the old
    rule that if there is some evidence that a party was intoxicated at the time of the incident
    in question, only then may such evidence be corroborated by habit evidence showing that
    the party was frequently or habitually drunk. See, e.g., Compton v. Jay, 
    389 S.W.2d 639
    ,
    642 (Tex. 1965); R.T. Herrin Petroleum Transp. Co. v. Proctor, 
    338 S.W.2d 422
    , 431
    (Tex. 1960); but see TEX. R. EVID. 406 (evidence of habit admissible ―whether
    corroborated or not‖); 
    64 A.L.R. 567
    § 28 (4th ed. Supp. 2011) (―The phrase ‗whether
    corroborated or not‘ has been held to eliminate prior law requirement that there be
    evidence that the person acted in conformity with the habit or routine practice on the
    particular occasion in suit.‖).
    5
    Authorities discussing Federal Rule of Evidence 406 are persuasive in our application of the
    equivalent Texas rule. See Bishop v. State, 
    837 S.W.2d 431
    , 435 (Tex. App.—Beaumont 1992), aff’d,
    
    869 S.W.2d 342
    (Tex. Crim. App. 1993) (relying on ―federal case law dealing with an identical provision
    in the Federal Rules of Evidence,‖ and noting that the court‘s research ―turned up no Texas cases in
    which Rule 406 was significantly discussed‖); compare FED. R. EVID. 406 with TEX. R. EVID. 406.
    11
    Even if appellant‘s argument were relevant under some other applicable theory,
    we disagree that there is ―simply no evidence that [appellant] was intoxicated‖ on the day
    of Lilah‘s injury.    While there is no direct evidence showing intoxication because
    appellant was alone with Lilah, there is circumstantial evidence that appellant was under
    the influence of alcohol. Specifically, Irene found a forty-ounce bottle of beer on the
    counter when she returned to her apartment on the day Lilah went to the hospital; she
    explained that it was ―still up to the top‖ and ―just like a little bit off of it.‖ Irene denied
    having any beer in the home when she left for work that morning. Irene testified that
    appellant had no money because he was not working at the time, but that she confronted
    appellant the same day about money that had gone missing from her bank account after
    she had allowed him to use her debit card. Evidence from a neighbor indicates that
    appellant left the apartment with Lilah in a stroller at some point during the morning, and
    Irene testified that appellant would take Lilah in the stroller when he wanted to go to the
    store next to the apartments. Thus, there is evidence that appellant purchased and opened
    at least one beer on the day Lilah was injured. We conclude that this evidence brings the
    admissibility of appellant‘s drinking ―habit‖ within the zone of reasonable disagreement.
    See TEX. R. EVID. 404(b); 
    Robbins, 88 S.W.3d at 259
    –60. We overrule appellant‘s issue
    based on this argument.
    With respect to evidence of appellant‘s angry and aggressive behavior while
    discussing his relationship with Melissa under the influence of alcohol, we also conclude
    that such evidence was admissible under Rule 404(b) to show, among other things,
    appellant‘s intent, state of mind, or motive. Melissa‘s testimony regarding the Galveston
    trip demonstrated that appellant acted uncharacteristically angry and aggressive when
    discussing the infidelity issue under the influence of alcohol; she testified that she had
    never seen him so angry before. Additionally, Melissa testified without objection about
    an instance that occurred a few months later when she was lying in bed with appellant,
    who had been drinking. Melissa concluded that appellant was asleep and had just closed
    12
    her own eyes when appellant reached over ―and grabbed for [Melissa‘s] neck‖ and said,
    ―I don‘t trust you anymore.‖
    The evidence showed that while appellant was caring for Lilah on the day she was
    injured, appellant spoke with Melissa and Irene over the phone about getting a divorce
    from Melissa. Appellant also spoke with Melissa about whether she would permit him to
    see their daughter, Alora; Melissa informed appellant that he could come see Alora at
    Melissa‘s home, but she did not want him taking Alora until he had a ―stable place‖ to
    live. Melissa testified: ―He got real upset when I told him that. . . . He was angry. He
    didn‘t like for anyone to dictate to him when or where he could see Alora.‖ This
    evidence, along with admissible evidence showing that appellant may have been under
    the influence of alcohol, creates a picture of the circumstances under which appellant was
    caring for Lilah.6 We conclude that this evidence brings the admissibility of appellant‘s
    behavior while under the influence of alcohol within the zone of reasonable
    disagreement. See TEX. R. EVID. 404(b); 
    Robbins, 88 S.W.3d at 259
    –60. We overrule
    appellant‘s issue based on these arguments.
    Rule 403. Appellant argues that even if such evidence is admissible under Rule
    404(b), it should have been excluded under Rule 403 because it ―left the indelible
    impression that [appellant] was always drunk, even though [Melissa] was often not
    around him.‖ Appellant also argues that it constitutes evidence of appellant‘s ―drunk
    temper, which evokes a strong negative emotional response.‖7
    6
    Although appellant argues that the evidence of appellant‘s behavior while under the influence of
    alcohol is not relevant to prove motive because ―the evidence did not show that Lelah [sic] did anything
    that would have caused him to intentionally injure [her] that day,‖ we think the circumstantial evidence
    described above is more than sufficient. Additionally, we note that the probative value of this evidence
    for permissible Rule 404(b) purposes is enhanced by the fact that appellant lied to a Texas Department of
    Family Protective Services investigator, who asked the ―standard question‖ about his use of alcohol that
    day. Appellant denied any such use and stated that ―the only mistake he made was by setting [Lilah] on
    the couch.‖
    7
    Appellant also argues that ―the extraneous evidence that [appellant] was intoxicated and was
    driving was not probative and extremely prejudicial.‖ Melissa did not testify about who drove to
    Galveston; she testified that she ―knew [she] had to drive home‖ from Galveston and that she ―was
    13
    The evidence of appellant‘s alcohol use and behavior while under the influence of
    alcohol is extremely probative to show, among other things, appellant‘s intent, state of
    mind, or motive on the day Lilah suffered injury. This is especially so in light of other
    evidence that appellant was a patient caretaker when not under the influence of alcohol or
    discussing his troubled relationship with Melissa. Moreover, it is not likely that the jury
    irrationally relied on the evidence to convict appellant for having a ―drunk temper,‖
    rather than for causing serious bodily injury to a child. Although the State spent a great
    deal of time developing the evidence, the State‘s need for such evidence to explain
    appellant‘s actions weighs in favor of admissibility. Based on these considerations, we
    conclude that the trial court acted within its discretion in admitting the evidence. See
    TEX. R. EVID. 403; 
    Robbins, 88 S.W.3d at 259
    –60; see also 
    Montgomery, 810 S.W.2d at 389
    –90; 
    Isenhower, 261 S.W.3d at 177
    –78. We overrule appellant‘s issue based on this
    argument.
    B.      Drugs
    Melissa also testified that her grandmother ―found drugs in [appellant‘s] backpack
    on more than one occasion.‖              Appellant complains that the trial court erroneously
    admitted this evidence over appellant‘s objection. Assuming without deciding that the
    admission of such evidence was error, we conclude that appellant was not harmed.
    In conducting a harm analysis for non-constitutional errors, our objective is to
    determine whether the admission of the evidence had an effect on appellant‘s substantial
    rights. See TEX. R. APP. P. 44.2(b); Haley v. State, 
    173 S.W.3d 510
    , 518 (Tex. Crim.
    App. 2005) (reviewing erroneous admission of evidence for non-constitutional harm
    under Rule 44.2(b)). Pursuant to Texas Rule of Appellate Procedure Rule 44.2(b), any
    non-constitutional error that does not affect appellant‘s substantial rights must be
    disregarded. 
    Haley, 173 S.W.3d at 518
    . A substantial right is affected when the error
    already driving‖ when the argument occurred. Melissa testified on cross-examination that ―I don‘t recall
    if he [shook the car seat] while he was driving . . . or if this was when I was driving.‖ The record does not
    reflect that the jury heard any evidence that appellant drove while intoxicated.
    14
    had a substantial and injurious effect or influence in determining the jury‘s verdict. 
    Id. In assessing
    the likelihood that the jury‘s decision was adversely affected by the error, an
    appellate court should consider everything in the record, including (1) any testimony or
    physical evidence admitted for the jury‘s consideration; (2) the nature of the evidence
    supporting the verdict; (3) the character of the alleged error and how it might be
    considered in connection with other evidence in the case; (4) whether the State
    emphasized the error; (5) the jury instructions; (6) the parties‘ theories; and (7) jury
    arguments and voir dire, if necessary. 
    Id. at 518–19.
    We agree with appellant that the character of the alleged error generally weighs in
    favor of finding harm.     See Jackson v. State, 
    320 S.W.3d 873
    , 889 (Tex. App.—
    Texarkana 2010, no pet.) (―By its very nature, an improperly admitted extraneous offense
    tends to be harmful.‖). However, Melissa‘s statement that her grandmother ―found drugs
    in [appellant‘s] backpack on more than one occasion‖ was unlikely to distract the jury
    from the extensive admissible evidence presented by both parties over the course of
    approximately three days. The State presented testimony from fifteen witnesses and
    proffered thirty-nine exhibits. The State did not ask any follow-up questions in response
    to Melissa‘s statement about the drugs in appellant‘s backpack but instead moved on to
    other topics related to the State‘s theory that appellant intentionally injured Lilah while
    under the influence of alcohol—not drugs. The State did not emphasize the error or
    otherwise raise the issue again in questioning or closing arguments. Having reviewed the
    entire record, we conclude that the alleged error did not have a substantial and injurious
    effect or influence in determining the jury‘s verdict. See TEX. R. APP. P. 44.2(b); 
    Haley, 173 S.W.3d at 518
    –19.
    We overrule appellant‘s first issue.
    II.    Expert Witness Qualification
    In his second issue, appellant argues that the trial court erred by concluding that
    Dr. Brown was qualified to opine that Lilah‘s injuries were consistent with shaken baby
    15
    syndrome. The State responds that any error in qualifying Dr. Brown to testify about
    shaken baby syndrome was harmless.
    A witness is qualified to testify as an expert if the witness has sufficient
    background—knowledge, skill, experience, training, or education—in a particular field
    that ―goes to the very matter on which the witness is to give an opinion.‖ Vela v. State,
    
    209 S.W.3d 128
    , 131 (Tex. Crim. App. 2006) (quotation omitted); see also TEX. R. EVID.
    702 (testimony of experts). The focus is on the ―fit‖ between the subject matter at issue
    and the expert‘s familiarity therewith. 
    Vela, 209 S.W.3d at 133
    . For example, a licensed
    medical doctor may be an expert in a particular field, but the doctor is not automatically
    qualified to testify as an expert on every medical question. 
    Id. at 132.
    The doctor‘s
    background must ―fit‖ with the specific issue before the court. See 
    id. at 132–33.
    We review a trial court‘s decision to admit expert testimony for an abuse of
    discretion. Ellison v. State, 
    201 S.W.3d 714
    , 723 (Tex. Crim. App. 2006). A trial court
    abuses its discretion when its decision lies outside the zone of reasonable disagreement.
    Turner v. State, 
    252 S.W.3d 571
    , 584 (Tex. App.—Houston [14th Dist.] 2008, pet. ref‘d)
    (citing Casey v. State, 
    215 S.W.3d 870
    , 879 (Tex. Crim. App. 2007)). The proponent of
    expert testimony bears the burden of proving that the expert is qualified to testify.8 
    Id. The trial
    court held a hearing outside the jury‘s presence to allow the State an
    opportunity to establish Dr. Brown‘s knowledge, skill, experience, training, and
    education. Dr. Brown testified that she is a pediatric hematologist, is board certified in
    pediatrics and pediatric hematology-oncology, and has fifteen years experience in the
    field. She explained that hematology is the study of blood disorders, and she described
    the tests that she ran on Lilah‘s blood to determine if Lilah had a blood disorder.
    Appellant objected to Dr. Brown testifying in support of a theory based on shaken
    baby syndrome, and the court overruled the objection. Dr. Brown eventually testified in
    8
    The proponent must also prove that the expert‘s testimony is reliable and relevant. See 
    Vela, 209 S.W.3d at 131
    . Appellant does not challenge the trial court‘s findings on these elements.
    16
    front of the jury that Lilah‘s injuries must have been caused by significant blunt force
    trauma because Lilah did not have any bleeding disorders that would explain those
    injuries. She opined further that Lilah‘s injuries were not consistent with a 2.5-foot fall
    from a couch but were consistent with shaken baby syndrome.
    Appellant did not, and does not now, challenge Dr. Brown‘s qualifications to
    opine that Lilah did not have a blood disorder, or that this fact meant Lilah‘s injuries
    must have been caused by trauma. But the State presented no evidence during the
    hearing about Dr. Brown‘s knowledge, skill, experience, training, or education to ―fit‖
    the opinion that Lilah‘s injuries were consistent with shaking rather than some other
    trauma. Thus, the State failed to meet its burden, and the trial court should have limited
    Dr. Brown‘s testimony to the subject matter for which she was qualified—namely,
    diagnosing blood disorders and the lack thereof. See, e.g., Croft v. State, 
    148 S.W.3d 533
    , 541–42 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (finding no abuse of
    discretion when trial court limited expert‘s testimony about a medical device to two
    specific topics tailored to expert‘s actual qualifications).
    However, we conclude that the trial court‘s error in admitting Brown‘s testimony
    about shaken baby syndrome was harmless. We must disregard a non-constitutional error
    that does not affect a substantial right. TEX. R. APP. P. 44.2(b); see Coble v. State, 
    330 S.W.3d 253
    , 280 (Tex. Crim. App. 2010) (analyzing erroneous admission of expert
    testimony for non-constitutional harm under Rule 44.2(b)).          As we have already
    explained, a substantial right is affected when the error had a substantial and injurious
    effect or influence in determining the jury‘s verdict. 
    Coble, 330 S.W.3d at 280
    . But if
    the improperly admitted evidence did not influence the jury or had but a slight effect
    upon its deliberations, such non-constitutional error is harmless. 
    Id. In analyzing
    the
    erroneous admission of expert testimony, we may consider, among other things: (1) the
    strength of the evidence of the appellant‘s guilt; (2) whether the jury heard the same or
    substantially similar admissible evidence through another source; (3) the strength or
    17
    weakness of an expert‘s conclusions, including whether the expert‘s opinion was
    effectively refuted; and (4) whether the State directed the jury‘s attention to the expert‘s
    testimony during arguments. See 
    id. at 286–88.
    The evidence of appellant‘s guilt was strong, in particular, because four experts
    other than Dr. Brown reached the same conclusion: Lilah‘s injuries were caused by
    shaking and not a short fall from a couch. Further, Dr. Brown effectively refuted her own
    opinion during cross-examination and redirect when she repeatedly testified, ―I don‘t
    consider myself an expert in Shaken Baby Syndrome,‖ and ―I‘m not an expert in that
    field, no.‖ Finally, in closing argument the State referenced Dr. Brown‘s testimony on
    the subject of bleeding disorders only and did not mention her opinion that Lilah‘s
    injuries were the result of shaking. Instead, the State specifically identified the other
    doctors who reached those conclusions.
    After reviewing the record as a whole, we have a fair assurance that the
    improperly admitted evidence did not influence the jury or had but a slight effect upon
    the verdict. See 
    Coble, 330 S.W.3d at 280
    . Thus, we conclude that the error was
    harmless.
    We overrule appellant‘s second issue.
    III.   Jury Deliberations
    In his third issue, appellant argues that the trial court erred when it granted the
    jury‘s request to read back Dr. Kellaway‘s testimony ―about the amount of force required
    to inflict the injuries sustained by Lila [sic] Guerrero‖ because ―the jury did not specify
    that there was a dispute‖ about the testimony.
    Texas Code of Criminal Procedure article 36.28 states that ―if the jury disagree as
    to the statement of any witness they may, upon applying to the court, have read to them
    from the court reporter‘s notes that part of such witness testimony or the particular point
    in dispute, and no other.‖ TEX. CODE CRIM. PROC. ANN. art. 36.28 (West 2006). When
    18
    the jury asks for testimony to be read back, the trial court must first determine whether
    the jury‘s inquiry is proper. Brown v. State, 
    870 S.W.2d 53
    , 55 (Tex. Crim. App. 1994).
    ―A simple request for testimony does not, by itself, reflect disagreement, implicit or
    express‖ and is not a proper request under article 36.28. Howell v. State, 
    175 S.W.3d 786
    , 790 (Tex. Crim. App. 2005). But a trial court may infer a disagreement if there is
    some basis ―other than mere speculation‖ to support the court‘s finding. 
    Id. at 792;
    see
    also Robison v. State, 
    888 S.W.2d 473
    , 481 (Tex. Crim. App. 1994). We review the trial
    court‘s conclusion as to whether there is a disagreement for an abuse of discretion.
    
    Howell, 175 S.W.3d at 790
    .
    Appellant acknowledges in his brief that he objected to the trial court‘s reading of
    Dr. Kellaway‘s testimony on the grounds that the jury‘s request was not specific enough.9
    However, appellant did not object on the grounds that the jury failed to certify that it was
    in dispute about the requested testimony. Accordingly, appellant has failed to preserve
    this issue for our review. See TEX. R. APP. P. 33.1; Boatwright v. State, 
    933 S.W.2d 309
    ,
    310–11 (Tex. App.—Houston [14th Dist.] 1996, no pet.) (appellant must preserve error
    regarding trial court‘s reading of testimony to jury). We overrule appellant‘s issue based
    on this argument.
    Appellant argues briefly on appeal that the trial court erred in reading back Dr.
    Kellaway‘s testimony that it would take a ―tremendous force‖ to cause a retinal
    hemorrhage in a baby because ―the jury was not specific enough in its request.‖ Neither
    appellant‘s issue as stated nor the authorities cited by appellant in support of that issue
    concern the question of whether the requests were specific enough; appellant‘s issue and
    authorities concern the question of whether the jury was in dispute, an argument we
    9
    Appellant objected that ―we had sent a note back to [the jury] asking them to be more specific as
    to the question of force, what they meant by force. We have not received yet from them a specific enough
    question as to what they‘re asking about. . . . [T]hey never came back to specify what they meant by
    force. So, therefore, until we have a clear question on that, I am objecting to the readback—to the
    proposed readback of Dr. Kellaway. . . . My objection continues that the requests are not specific enough
    to what is disputed; and second, they have not defined what the amount of force is.‖
    19
    already have overruled. Even if we read appellant‘s issue as encompassing an additional
    complaint regarding specificity, we do not agree with appellant that the trial court abused
    its discretion in concluding that the jury‘s request to hear testimony from Dr. Kellaway
    ―about the amount of force required to inflict the injuries sustained by Lila [sic]
    Guerrero‖ was specific enough. See 
    Howell, 175 S.W.3d at 792
    (appellate courts should
    not disturb a trial court‘s decision under article 36.28 ―unless a clear abuse of discretion
    and harm is shown‖). We overrule appellant‘s issue based on this argument.
    Appellant also argues briefly that the jury‘s lack of specificity resulted in ―harm‖
    to appellant because the jury also requested Dr. Simonetta‘s testimony ―about the amount
    of force required to inflict the injuries sustained by Lila [sic] Guerrero,‖ but the trial court
    failed to read back responsive testimony from Dr. Simonetta.
    After the court reporter searched for testimony responsive to the jury‘s requests,
    the parties acknowledged that the court reporter could not find a statement by Dr.
    Simonetta regarding ―the amount of force required to inflict the injuries sustained by Lila
    [sic] Guerrero.‖ The trial court read back the requested testimony from Dr. Kellaway and
    explained: ―Ladies and gentlemen, that‘s all we have for you at this time.‖ In fact, Dr.
    Simonetta testified that ―it takes a fair amount of force‖ to cause a subdural
    hemorrhage.10 Appellant argues that the failure to read this testimony constitutes a
    ―comment on the weight of the evidence‖ because Dr. Simonetta‘s testimony was
    ―contrary‖ to Dr. Kellaway‘s testimony that it would take a ―tremendous force‖ to cause
    a retinal hemorrhage in a baby.
    Aside from arguing that this failure is the ―harm‖ attributable to the jury‘s lack of
    specificity in its request, appellant does not complain on appeal that the trial court erred
    in reading back some but not all the testimony responsive to the jury‘s requests, nor does
    10
    Defense counsel explained to the trial court: ―In reference to Dr. Simonetta, my recollection is
    that he said it was an unknown amount of force. If that is there, then I think that has to be read back to
    the jury if we are allowing the readback of Dr. Kellaway. . . . I believe he said it was an unknown force.‖
    The trial court noted, ―[Y]ou are the only one that remembers that.‖
    20
    he cite to authority regarding such a complaint. Even if we read appellant‘s brief as
    raising this issue, we conclude that any alleged error did not harm appellant.
    After concluding that a jury‘s request is proper, a trial court must interpret the
    communication, decide what testimony will best answer the inquiry, and limit the reading
    accordingly. 
    Brown, 870 S.W.2d at 55
    ; Fox v. State, 
    283 S.W.3d 85
    , 89 (Tex. App.—
    Houston [14th Dist.] 2009, pet. ref‘d). If the court limits the reading to some but not all
    of the testimony that is responsive to the jury‘s request, and the reading is a harmful
    comment on the evidence, we must reverse. See 
    Fox, 283 S.W.3d at 90
    –91 (holding that
    trial court erred by reading back some but not all testimony responsive to jury‘s request,
    and that error was harmful); Megason v. State, 
    19 S.W.3d 883
    , 889–90 (Tex. App.—
    Texarkana 2000, pet. ref‘d) (holding that trial court erred by reading back some but not
    all testimony responsive to jury‘s request, but reading was not harmful because omitted
    testimony ―would not be of significance in the outcome of the case‖); see also 
    Robison, 888 S.W.2d at 480
    (noting that one concern in answering jury questions is that trial court
    will comment on evidence). We review a trial court‘s determination about the scope of
    the testimony read to the jury for an abuse of discretion. 
    Brown, 870 S.W.2d at 55
    ; 
    Fox, 283 S.W.3d at 89
    .
    Assuming without deciding that the trial court erred, we must disregard this non-
    constitutional error if we have a fair assurance after reviewing the record that the error
    did not influence the jury or had but a slight effect upon the verdict. See TEX. R. APP. P.
    44.2(b); 
    Fox, 283 S.W.3d at 91
    (analyzing error of reading back some but not all
    responsive testimony for non-constitutional harm under Rule 44.2(b)). In Fox, the jury
    requested a reading of the direct examination of the complaining witness‘s description of
    the crime. 
    Id. at 89.
    The defendant requested that the cross-examination testimony on
    the same subject be read as well, but the trial court only ordered the direct examination
    testimony read to the jury. 
    Id. at 90.
    This court found error and reasoned that the error
    was harmful because (1) the testimony during cross-examination contradicted the same
    21
    witness‘s testimony during direct examination; and (2) the witness‘s testimony was
    highly probative of the defendant‘s guilt, and therefore the witness‘s credibility was vital
    to the jury‘s decision. 
    Id. at 91.
    Dr. Simonetta testified about the amount of force necessary to cause a subdural
    hemorrhage while Dr. Kellaway testified about the force necessary to cause a retinal
    hemorrhage.     Thus, we disagree with appellant that Dr. Simonetta‘s testimony was
    ―contrary‖ to Dr. Kellaway‘s testimony. Dr. Kellaway‘s conclusion that Lilah‘s retinal
    hemorrhage was caused by ―tremendous force‖ would not have been undercut by Dr.
    Simonetta‘s testimony that the subdural hemorrhage was caused by ―a fair amount of
    force.‖ After reviewing the entire record, we have a fair assurance that the error did not
    influence the jury or had but a slight effect. See 
    Fox, 283 S.W.3d at 90
    –91. We overrule
    appellant‘s issue based on this argument.
    Accordingly, we overrule appellant‘s third issue.
    CONCLUSION
    Having overruled all of appellant‘s issues, we affirm the trial court‘s judgment.
    /s/    Sharon McCally
    Justice
    Panel consists of Justices Brown, Boyce, and McCally.
    Do Not Publish — TEX. R. APP. P. 47.2(b).
    22