Full Opinion

NUMBER 13-24-00629-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG MELISSA LYNN WALKER A/K/A MELISSA HARMS, Appellant, v. THE STATE OF TEXAS, Appellee. ON APPEAL FROM THE 24TH DISTRICT COURT OF JACKSON COUNTY, TEXAS MEMORANDUM OPINION Before Justices Silva, Peña, and West Memorandum Opinion by Justice Peña Appellant Melissa Lynn Walker a/k/a Melissa Harms raises a single issue challenging her conviction for intentionally causing serious injury to a child, a first-degree felony resulting in twenty-five-years’ imprisonment. See TEX. PENAL CODE § 22.04(a)(1), (e). Appellant contends the trial court erred in allowing the testimony of Dr. Raquel Vargas- Whale over her objections because it violated her Sixth Amendment right to confrontation. We affirm. I. BACKGROUND Appellant was indicted on charges of seriously injuring her then-six-month-old infant, J.R. 1 Appellant pleaded “not guilty” and her case was tried before a jury. At trial, the State called several medical experts to testify on J.R.’s emergency room stay at Driscoll Children’s Hospital (DCH) months before appellant’s arrest, including J.R.’s attending pediatric physician Dr. Raqual Vargas-Whale. Dr. Raquel Vargas-Whale noted bruising around J.R.’s head, face, and chest. Dr. Vargas-Whale ordered X-rays, which revealed a spiral fracture on J.R.’s right tibia and acute rib fractures. Dr. Vargas-Whale conferred with her medical colleagues in developing a medical treatment plan for J.R., including DCH’s attending orthopedic surgeon Dr. Roger Timperlake. At trial, appellant objected to the introduction of Dr. Vargas-Whale’s testimony on Sixth Amendment Confrontation Clause grounds, arguing that Dr. Vargas-Whale’s expert testimony was a surrogate of her medical colleagues’ diagnoses: “[I]f [Dr. Vargas-Whale] is allowed to testify to actions that other professionals performed in this case or evaluation of any data or information of records that she’s using, to form an opinion is a violation of the confrontation clause.” See U.S. CONST. amend. VI. The trial court overruled appellant’s objections and permitted Dr. Vargas-Whale’s testimony. 1 To protect the identity of the child victim of this case, we refer to her by her initials. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2). 2 Dr. Vargas-Whale testified to J.R.’s medical history, physical examination results, bloodwork and X-ray results, and the methodology behind her independent diagnosis concerning J.R.’s injuries. Appellant cross-examined her on each matter, including her independent interpretation of J.R.’s X-rays, including several reiterations of how Dr. Vargas-Whale assessed J.R.’s particular skeletal injuries. Direct testimony and cross- examination of Dr. Vargas-Whale involved cross-referencing her testimony with several scholarly articles positing alternative causes to J.R.’s skeletal injuries, delving into detail on X-ray interpretation and diagnosis, and her methodology in assessing J.R.’s injuries. II. ERROR PRESERVATION The State argues that appellant failed to preserve the Confrontation Clause complaint against Dr. Vargas-Whale’s testimony by failing to raise that objection at trial. We agree. A. Standard of Review Generally, in order to preserve a complaint for appellate review, the record must show that “the complaint was made to the trial court by a timely request, objection, or motion . . . with sufficient specificity to make the trial court aware of the complaint.” TEX. R. APP. P. 33.1(a). To be sufficiently specific, an objecting party must let the trial judge know what she wants, explain why the party thinks she’s entitled to a ruling, and do so clearly enough for the judge to understand her at a time when the trial court is in a proper position to do something about it. See Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim. App. 2021); Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009). The objection specificity requirement is meant to provide the trial judge with the basis of the objection and the opportunity to rule on it, while also providing opposing counsel with the opportunity to respond to the complaint. Resendez, 306 S.W.3d at 312 3 (citing Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App.1977)). A party who fails to preserve an issue by specific objection at trial forfeits their complaint on appeal—including objections based on Confrontation Clause grounds. See Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009) (holding that constitutional rights, including those that implicate a defendant’s right to confrontation, may be forfeited for purposes of appellate review unless properly preserved); Craven v. State, 579 S.W.3d 784, 787 (Tex. App.— Houston [14th Dist.] 2019, no pet.) (“To preserve error on Confrontation-Clause grounds, the objector must voice the complaint as soon as the basis for the objection becomes apparent.”). B. Analysis Upon review of the trial record, we conclude that appellant did not timely object to the introduction of Dr. Vargas-Whale’s testimony regarding Dr. Timperlake’s diagnosis, waiving her sole Confrontation Clause issue on appeal. Appellant’s sole contention on appeal is that “Dr. Tim[p]erlake is the actual declarant of the testimonial assertion of J.R.’s injuries, and was not called to testify at trial,” violating her constitutional right to confrontation. Appellant, however, ignores the fact that the testimony relevant to this complaint was elicited by appellant herself on re- cross examination—without objection: [Appellant on Re-Cross Examination] [Appellant]: [Examining J.R.’s medical records.] [W]hose note is this? [Dr. Vargas-Whale]: Dr. Roger Timperlake, orthopedic surgeon. ... 4 [Appellant]: And is his orthopedic experience better than yours – or orthopedic understanding, is it better than yours? [Dr. Vargas-Whale]: I sure hope so. He’s an orthopedic surgeon, so he should know how to repair bones better than I. [Appellant]: So the paragraph where it says, “I reviewed the X rays,” can you read that? [Dr. Vargas-Whale]: “I reviewed the X rays, a healing oblique fracture of the tibia” — [Appellant]: Stop right there . . . [w]hat did you say the fracture of the tibia was? [Dr. Vargas-Whale]: Healing oblique fracture of the tibia. [Appellant]: No, not this doctor. Your diagnosis two days before, what did you say? [Dr. Vargas-Whale]: You mean the radiologist’s report that says it was a spinal fracture. [Appellant]: And you agreed; right? [Dr. Vargas-Whale]: That’s correct. [Appellant]: And this doctor disagrees; right? [Dr. Vargas-Whale]: No . . . [oblique and spiral fractures] have the same orientation . . . [Goes on the explain the orientations of bone fractures.] Appellant did not object to Dr. Vargas-Whale’s testimony concerning the medical opinion of her colleague, Dr. Timperlake—indeed, appellant directed the very testimony she raises on appeal. Finding that appellant did not raise a specific objection to the sole complaint she brings on appeal, we find appellant’s constitutional complaint was unpreserved at trial and thus waived on appeal. With appellant’s sole issue waived, we accordingly affirm the trial court’s judgment. 5 III. DR. VARGAS-WHALE’S TESTIMONY Assuming arguendo that appellant’s issue was properly preserved at trial, we move on to whether Dr. Vargas-Whale’s testimony violated appellant’s right to confrontation. On appeal, appellant contends that Dr. Vargas-Whale’s testimony at trial was merely “parroting” the medical opinions and diagnoses of her medical colleague Dr. Timperlake. Allowing Dr. Vargas-Whale to testify in this manner without also subjecting Dr. Timperlake to cross-examination, appellant contends, violated her Sixth Amendment right to confrontation. The State asserts Dr. Vargas-Whale relied on her independent interpretation of J.R.’s X-ray in developing her testimony—in conjunction with Dr. Timperlake’s opinions, and that the resulting admission of her testimony does not violate appellant’s Sixth Amendment right to confrontation. A. Standard of Review The Confrontation Clause of the Sixth Amendment guarantees the accused the right to confront the witnesses against him. U.S. CONST. amend. VI. The Confrontation Clause applies to in-court testimony and testimonial statements made outside of court. Molina v. State, 632 S.W.3d 539, 543 (Tex. Crim. App. 2021) (citing Paredes v. State, 462 S.W.3d 510, 517–18 (Tex. Crim. App. 2015)). The threshold inquiry is whether the hearsay at issue is “testimonial” in nature. “Various formulations of th[e] core class of ‘testimonial’ statements exist....” Crawford v. Washington, 541 U.S. 36, 51 (2004). The Texas Court of Criminal Appeals has identified three kinds of testimonial statements: (1) “ex parte in-court testimony or its functional equivalent,” i.e., “pretrial statements that declarants would expect to be used prosecutorially”; (2) “extrajudicial statements contained in formalized testimonial materials,” such as affidavits, depositions, or prior testimony; and (3) “statements that 6 were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010). Although evidentiary rulings are usually reviewed for an abuse of discretion, whether a statement is testimonial is a question of law that we review de novo. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). B. Analysis Appellant argues that since Dr. Vargas-Whale used Dr. Timperlake’s interpretation of J.R.’s X-rays in establishing her own medical diagnosis, Dr. Timperlake—the “actual declarant,” according to appellant—must be subject to cross-examination. 2 Such a position assumes that Dr. Vargas-Whale based her testimony exclusively on Dr. Timperlake’s observations and conclusions, without conducting an independent evaluation of J.R.’s X-rays. That presumption is inconsistent with the record before us. Medical reports created for treatment purposes are generally non-testimonial. See Odeku v. State, 722 S.W.3d 76, 84 (Tex. App.—Houston [1st Dist.] 2025, pet. ref’d). Nothing in the record suggests J.R.’s medical lab exams were conducted with the reasonable expectation that criminal prosecution was forthcoming. See id. Dr. Vargas- Whale conferenced and concurred with her medical colleague in interpreting J.R.’s X-ray, but that does not imply she merely parroted her colleague’s interpretation of J.R.’s X-ray without forming an independent diagnosis as J.R.’s pediatric physician. The record indicates that Dr. Vargas-Whale provided her own independent interpretation of J.R.’s X- 2 Appellant does not contest the trial court’s ruling on her Daubert/Kelly challenge to Dr. Vargas- Whale’s testimony. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993); Kelly v. State, 792 S.W.2d 579, 585 (Tex. App.—Fort Worth 1990). 7 ray and medical records at trial, and the X-rays and records were admitted into evidence without appellant’s objection. Below is a brief portion of Dr. Vargas-Whale’s testimony, whose independent analysis fills an entire volume of the trial court reporter’s record: [Prosecutor]: I want you to tell us what’s significant about [J.R.’s chest X-ray from November 8]. .... [Dr. Vargas-Whale]: [T]his is an image of the chest, so this is a part of the skeletal survey which is the imaging we do of the whole skeleton, and so this is just the chest portion . . . [H]ere the rib does not follow a continuous path here or here, which suggests that those two ends are not meeting together anymore. .... [Prosecutor]: Anything else in this image? [Dr. Vargas-Whale]: No. In this image just there were three areas on the ribs that were not continuous, which suggests that they’re broken. .... [I]n the healing process a callus forms over the bone, and the callus makes it really obvious where the fractures are . . . I like to describe it as a cotton ball. When I am speaking with parents, that’s how I describe it. .... [Prosecutor]: All right. Can you see in this image [J.R.’s chest X-ray from November 24] the rib fractures? If so, point them out. [Dr. Vargas-Whale]: Here is the phenomenon that we just discussed that looks like a cotton ball has formed there, there, there, there. [Prosecutor]: Okay. Now, a cotton ball is formed, so these are no longer fresh injuries? [Dr. Vargas-Whale]: They are not. 8 Appellant’s reliance on Paredes and Burch is misplaced in this case. See Paredes, 462 S.W.3d at 517–18; Burch v. State, 401 S.W.3d at 640 (Tex. Crim. App. 2013). While Paredes and Burch dealt with the forensic analysis of an unknown substance in furtherance of pursuing criminal prosecution, our current case deals with a physician interpreting a patient’s X-rays and medical laboratory records in furtherance of developing a medical treatment plan. Neither are we dealing with autopsy reports or photographs, which come with their own evidentiary caveats. See Lee v. State, 418 S.W.3d 892, 897 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (citing Hernandez v. State, No. 05–11– 01300–CR, 2013 WL 1282260, at *6 (Tex. App.—Dallas Mar. 6, 2013, pet. ref’d) (mem. op., not designated for publication) (finding no Confrontation Clause violation where testifying expert provided an “independent judgment”)). We conclude that even if appellant’s issue was properly preserved, Dr. Vargas- Whale’s expert testimony was based on her independent analysis of J.R.’s medical records—not as a surrogate of Dr. Timperlake—and thus no violation of appellant’s Sixth Amendment right to confrontation occurred. C. Harmless Error Even if we were to conclude the trial court erred in admitting the subject testimony, the error would not be reversible. If we find constitutional error, we must reverse unless we determine “beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” TEX. R. APP. P. 44.2(a). In determining whether a constitutional error under Crawford may be declared harmless beyond a reasonable doubt, Texas courts apply the following factors: (1) how important was the out-of-court statement to the State’s case; (2) whether the out-of-court statement was cumulative of other evidence; 9 (3) the presence or absence of evidence corroborating or contradicting the out-of-court statement on material points; and (4) the overall strength of the prosecution’s case. Scott v. State, 227 S.W.3d 670, 690–91 (Tex. Crim. App. 2007). Assuming arguendo that the introduction of Dr. Vargas-Whale’s testimony raised Sixth Amendment concerns, the expert’s testimony was cumulative of other evidence and was largely uncontested by appellant, rendering any potential error by the trial court on this matter harmless. See id. In particular, nineteen exhibits of J.R.’s X-rays and photographs from those hospital stays were admitted into evidence—indeed, appellant cross-examined Dr. Vargas-Whale on her initial medical diagnosis using several of J.R.’s admitted X-ray exhibits. These photographs and X-rays showed visible bone fractures on the six-month-old’s chest and tibia, including subsequent calluses after two weeks, indicating broken rib bones. The severity of J.R.’s injuries was apparent in these X-rays and photographs, leading this court to conclude beyond a reasonable doubt that Dr. Vargas-Whale’s testimony was cumulative of other evidence and did not affect the jury’s ultimate verdict. See id.; TEX. R. APP. P. 44.2(a). IV. CONCLUSION We affirm the trial court’s judgment. L. ARON PEÑA JR. Justice Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed on the 15th day of October, 2026. 10