Full Opinion (html_with_citations)

                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-10-00448-CR


ROBERT GONZALES                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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                        MEMORANDUM OPINION1
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                                I. INTRODUCTION

      A jury found Appellant Robert Gonzales guilty of injury to a child and

assessed his punishment at fifty-five years‘ confinement.         The trial court

sentenced him accordingly. In three issues, Gonzales argues that he is entitled

to a new trial because, at the guilt-innocence phase of the trial, the trial court



      1
       See Tex. R. App. P. 47.4.
erroneously admitted hospital photos of the child and the testimony of Jan

Arbuckle; Gonzales contends both alleged errors were harmful.2

                             II. FACTUAL BACKGROUND3

      One day when C.H. was five months old, his mother Kristen had a job

interview.   C.H.‘s biological father Danny had spent the night with C.H. at

Kristen‘s house the night before Kristen‘s job interview so that Kristen could get a

good night‘s sleep. Danny left at about 9:30 on the morning of the interview and

testified at trial that C.H. was normal and happy when he left. Kristen bathed,

fed, and dressed C.H. and planned to take him to her sister‘s house while she

went to the job interview. Gonzales, who was Kristen‘s boyfriend, stopped by

while Kristen was getting ready to leave and offered to watch C.H. while Kristen

went to the job interview. Kristen agreed and left at around 11:30 a.m.; she said

that C.H. was normal and healthy when she left.         Kristen returned home at

approximately 1:00 p.m. Gonzales told Kristen that he had fallen with C.H.; she

rushed to C.H.‘s crib and discovered him limp, nonresponsive, and having

difficulty breathing. Kristen called 9-1-1.




      2
       We address Gonzales‘s three issues in the order they are argued in his
brief although they are numerically labeled differently in his brief‘s ―issues
presented.‖
      3
       Because Gonzales does not challenge the legal or factual sufficiency of
the evidence to support his conviction, we set forth only an abbreviated factual
background.


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      C.H. was near death when paramedics arrived, and he was care-flighted to

the hospital. At the hospital, C.H. was diagnosed with traumatic brain injuries—

including bleeding around the surface of his brain, brain swelling, and large areas

of dead brain tissue; rib fractures; massive subretinal hemorrhages; a fractured

heel; a laceration on the inside of his lip; lacerations and bruising on and around

his penis; and fresh petechiae on his right ear, forehead, nose, and upper arms.

Dr. Matthew Cox testified that C.H. would have been symptomatic immediately

after his injuries and that his distress would have been obvious.              Dr. Cox

explained that C.H.‘s injuries were most likely caused by a severe and violent

traumatic event such as repetitive and violent shaking followed by a deceleration-

type impact. According to Dr. Cox, C.H. was neurologically devastated; he was

unable to roll, sit, or stand by himself and would in probability never be able to

walk, talk, feed himself, or recover from his cortical blindness.

      Gonzales denied causing C.H.‘s injuries, saying that he fell while carrying

C.H. and that they bumped heads. Gonzales later admitted that he shook C.H. a

little bit to try to console him and to get him to stop crying. Still later in a recorded

interview that was played for the jury, Gonzales apologized for lying before and

admitted that he had become angry and frustrated because C.H. would not stop

crying and that he had shaken C.H., had freaked out, and had done things that

he should not have done.




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                              III. STANDARD OF REVIEW

      We review evidentiary rulings under an abuse of discretion standard.

Salazar v. State,
38 S.W.3d 141
, 153–54 (Tex. Crim. App.), cert. denied,
534 U.S. 855
 (2001); Aguilera v. State,
75 S.W.3d 60, 64
 (Tex. App.––San Antonio

2002, pet. ref‘d).   The trial court abuses its discretion when it acts without

reference to any guiding rules and principles or acts in a manner that is arbitrary

or capricious. See Montgomery v. State,
810 S.W.2d 372, 380
 (Tex. Crim. App.

1991). A trial court does not abuse its discretion if its ruling was at least within

―the zone of reasonable disagreement.‖ Salazar, 38 S.W.3d at 153–54.

                                 IV. HOSPITAL PHOTOS

      During the guilt-innocence phase of trial, the trial court admitted over

Gonzales‘s objection photographs of C.H. in the intensive care unit at the

hospital.   In his first issue, Gonzales claims that the admission of all of the

hospital photos was error and was harmful. Gonzales argues that the photos

were ―not at all probative‖ but were ―highly prejudicial.‖

      Danny testified that the photos accurately depicted C.H. as he appeared in

the hospital intensive care unit. The photos all show C.H. lying in the hospital

bed. They are taken from various angles and at varying degrees of closeness; in

some, C.H. is covered with a blanket––with only his head and face exposed––

and in some, he is not. Although the photos depict various tubes and monitors

attached to C.H., they are not gruesome in the sense of depicting bodily

mutilation or a bloody injury.


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      In reviewing whether the trial court abused its discretion by determining

that the photos were relevant, we note that––as argued by the State––the

photographs were probative of the violent trauma inflicted on C.H. and of the fact

that serious bodily injury was inflicted.   See Tex. R. Evid. 401; Salazar,
38 S.W.3d at 151
. In reviewing whether the trial court abused its discretion by

determining that the probative value of the photos was not substantially

outweighed by the danger of unfair prejudice, we note that when the power of

visible evidence emanates from nothing more than what the defendant himself

has done, the trial court does not abuse its discretion merely by admitting the

evidence. Sonnier v. State,
913 S.W.2d 511, 519
 (Tex. Crim. App. 1995); see

also Williams v. State,
301 S.W.3d 675, 693
 (Tex. Crim. App. 2009) (explaining

that although photos, ―particularly the close-ups of the bullet wounds, are

gruesome[,] . . . they portray no more than the gruesomeness of the injuries

inflicted by appellant‖), cert. denied,
130 S. Ct. 3411
 (2010); Gallo v. State,
239 S.W.3d 757, 763
 (Tex. Crim. App. 2007) (holding that appellant did not preserve

error concerning admission of photos, but noting ―that all three photographs show

no more than the injuries that the victim suffered shortly before her death at a

time when appellant was the only adult with her‖), cert. denied,
553 U.S. 1080

(2008).

      We have reviewed the objected-to photos here; they show no more than

the treatment of the injuries that C.H. suffered shortly before his arrival at the

hospital.   Based on the record before us, we cannot say that the trial court


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abused its discretion by determining that the photos were relevant or that the

probative value of the photos was not substantially outweighed by the danger of

unfair prejudice to Gonzales. We overrule Gonzales‘s first issue.

                         V. JAN ARBUCKLE’S TESTIMONY

      Jan Arbuckle was C.H.‘s caregiver at the time of trial, fourteen months

after his injuries. She testified as to C.H.‘s condition at the time of trial, the

various physicians C.H. was required to see, the medicines prescribed for C.H.,

and how C.H. was transported. Jan‘s total testimony comprises four pages in the

over one-thousand-page reporter‘s record.          Gonzales objected to Jan‘s

testimony, claiming that it was improper victim impact testimony and was not

relevant.   In his second issue, Gonzales argues that the trial court erred by

admitting Jan‘s testimony. In his third issue, Gonzales contends that the errors in

the admission of the photos and the admission of Jan‘s testimony were both

harmful.

      Victim impact evidence is generally recognized as evidence concerning the

effect that the victim's death will have on others, particularly the victim's family

members.      Tex. Code Crim. Proc. Ann. art. 56.03(b) (West Supp. 2011)

(describing information to be included in a victim impact statement); Mathis v.

State,
67 S.W.3d 918, 928
 (Tex. Crim. App. 2002); see also Garcia v. State,
126 S.W.3d 921, 929
 (Tex. Crim. App. 2004) (holding medical records of victim shot

by defendant did not constitute victim impact evidence). Jan testified briefly as to

C.H.‘s medical condition at the time of trial, fourteen months after he had


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sustained his injuries.    Her testimony did not mention how C.H.‘s injuries

impacted Kristen‘s or Danny‘s lives or comment on the psychological impact (as

opposed to the physical aspect) of C.H.‘s injuries on him.            Instead, Jan‘s

testimony was limited to describing the continuing physical impact of C.H.‘s

injuries on C.H.    Accordingly, we cannot say that the trial court abused its

discretion by overruling Gonzales‘s improper-victim-impact objection to Jan‘s

testimony. See Garcia,
126 S.W.3d at 929
 (holding ―trial court did not abuse its

discretion in overruling appellant‘s objection to the records‖ on the ground that

they constituted improper victim impact evidence).

      As pointed out by the State on appeal, Jan‘s testimony was relevant; it was

probative of the ―violent nature of the assault, Appellant‘s intent, and the fact that

‗serious bodily injury‘ was inflicted even though Appellant admitted to only a mild

shaking of the baby.‖ Jan‘s testimony was relevant and probative for the State to

meet its burden of proving that C.H. had sustained serious bodily injury, as

alleged in the indictment and as defined in section 1.07 of the penal code. See
Tex. Penal Code Ann. § 1.07
(46) (West Supp. 2011) (defining serious bodily

injury as ―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‖). Accordingly, we cannot say that the

trial court abused its discretion by overruling Gonzales‘s relevancy objection to

Jan‘s testimony.




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      We overrule Gonzales‘s second issue.           Because we have overruled

Gonzales‘s first and second issues claiming error in the admission of the hospital

photos and Jan‘s testimony, we need not address his third issue claiming that

both of the errors alleged in his first and second issues were harmful. See Tex.

R. App. P. 47.1 (requiring appellate court to address only issues necessary to

final disposition of the appeal).

                                    VI. CONCLUSION

      Having overruled Gonzales‘s first and second issues and having

determined that we need not address Gonzales‘s third issue, we affirm the trial

court‘s judgment.



                                                     SUE WALKER
                                                     JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 22, 2011




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