                                   NO. 07-07-0298-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                  AUGUST 25, 2008
                          ______________________________

                         DERRICK GUTIERREZ, APPELLANT

                                             V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

            FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY;

          NO. D-1-DC-05-500141; HONORABLE JULIE KOCUREK, JUDGE
                      _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant, Derrick Gutierrez, appeals his conviction for the offense of injury to a child

and sentence of 18 years incarceration in the Institutional Division of the Texas

Department of Criminal Justice. We affirm.


                                        Background


      Appellant’s five month old son died on March 4, 2006, while being watched by

appellant. Appellant called 911 for medical assistance for his son. When police arrived
at the scene, Travis County Deputy Sheriff Mitch White said that he smelled a strong odor

of marijuana in the house. Appellant’s son was treated at the scene by emergency medical

technicians and was ultimately taken to the hospital for further medical treatment. Three

days after the child was admitted into the hospital, he died.


       Medical examination of the child revealed symptoms consistent with shaken baby

syndrome.    As a result of this assessment, Travis County Sergeant Doug Teague

interviewed appellant at the hospital regarding the circumstances leading to the 911 call.

Appellant told Teague that the baby began to spit up his formula and that he was gagging

and turning red, like he was choking. Appellant told Teague that he began to shake the

baby in an attempt to wake the baby up. An autopsy was performed on the body of the

child by Travis County Deputy Medical Examiner, Elizabeth Peacock. The autopsy report

concluded that the cause of the child’s death was “cranio-cerebral trauma.”


       Appellant was subsequently indicted by the grand jury for the offenses of capital

murder and injury to a child. At trial, the State offered expert testimony that the injuries

suffered by appellant’s son were not consistent with gentle shaking, but were rather

consistent with violent shaking or impact with an unknown surface. The jury acquitted

appellant of capital murder, rejected the lesser-included offense of recklessly causing injury

to a child, and convicted appellant of intentionally or knowingly causing injury to a child.


       During the punishment phase of trial, the State presented evidence that appellant

had been arrested for possession of cocaine approximately two and a half years before the

injury to a child incident occurred. Appellant then presented evidence that he had been


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allowed to participate in a pre-trial diversionary program, called the SHORT program.

Through the social service program coordinator for the SHORT program, Corrine

Hernandez, appellant presented evidence of what was required to successfully complete

the SHORT program and that he had successfully completed the program. Among the

requirements of the SHORT program that were specifically addressed was that participants

must submit to random urinalysis tests and have a certain number of negative urinalysis

test results. Prior to taking Hernandez on cross-examination, the State approached the

bench and arguments were presented regarding whether evidence of appellant’s failed

urinalysis tests while participating in the SHORT program could be admitted. The State

argued that appellant had opened the door to this evidence by presenting evidence of the

requirements of the SHORT program and that appellant had successfully completed the

program. Appellant objected because the urinalysis tests were only presumptive tests that

do not have the “forensic value” to be proven beyond a reasonable doubt. The trial court

overruled appellant’s objection stating that the jury could find that appellant presumptively

tested positive beyond a reasonable doubt and that the probative value of the evidence

outweighs the prejudicial effect. Following this ruling, the State elicited testimony from

Hernandez that appellant had failed seven urinalysis tests during his participation in the

SHORT program. Appellant then rehabilitated the witness by eliciting testimony that

appellant’s failed urinalysis tests had all been from early in his participation in the program

and that certain drugs can stay in a person’s system for an extended amount of time. At

the conclusion of punishment, appellant was sentenced to 18 years incarceration.




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       By one issue, appellant contends that the trial court erred in admitting evidence that

appellant failed urinalysis tests during the punishment phase of trial because there was no

predicate presented to establish the accuracy and reliability of the tests to prove actual

drug use.


                                       Law and Analysis


       A trial court’s decision to admit evidence is reviewed under an abuse of discretion

standard. Allen v. State, 108 S.W.3d 281, 284 (Tex.Crim.App. 2003). A reviewing court

should not reverse a trial judge’s decision whose ruling is within the zone of reasonable

disagreement. Green v. State, 934 S.W.2d 92, 102 (Tex.Crim.App. 1996). A trial court’s

ruling on admissibility should not be disturbed simply because the appellate court might

have decided a question differently.         Montgomery v. State, 810 S.W.2d 372, 391

(Tex.Crim.App. 1990) (op. on reh’g). If evidence is admissible for any purpose, the trial

court's action in admitting it is not error, regardless of the reason given by the trial court for

admitting the evidence. Sewell v. State, 629 S.W.2d 42, 45 (Tex.Crim.App. 1982).


       During the punishment phase of a criminal trial, the State may offer into evidence

any matter the trial court deems relevant to sentencing. See TEX . CODE CRIM . PROC . ANN .

art. 37.07, § 3(a)(1) (Vernon Supp. 2006). Such “bad acts” evidence may include the

defendant’s prior criminal record, his general reputation, his character, or circumstances

of the offense for which he is being tried. Id. However, such “bad acts” evidence must be

proven to be attributable to the defendant beyond a reasonable doubt. Id.; Haley v. State,

173 S.W.3d 510, 515 (Tex.Crim.App. 2005). Whether an extraneous offense or bad act


                                                4
was established to be attributable to the defendant beyond a reasonable doubt is a

question of fact for the jury as opposed to the preliminary question of admissibility for the

trial court. Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996); Nanez v. State,

179 S.W.3d 149, 151-52 (Tex.App.–Amarillo 2005, no pet.). The use of extraneous

offenses during the punishment phase is analogous to that of the guilt-innocence phase

of a trial in regard to the burden of proof. Mitchell, 931 S.W.2d at 954. When evidence of

an extraneous offense has been offered, regardless of the respective phase of the trial, the

law requires that it be proved beyond a reasonable doubt that the defendant committed the

extraneous offense or is, at least, criminally responsible for its commission. Id. When the

evidence of an extraneous offense or bad act is legally insufficient to allow a rational trier

of fact to find that the defendant committed the offense or act beyond a reasonable doubt,

a preliminary determination that the evidence is admissible is an abuse of discretion. See

Stewart v. State, 927 S.W.2d 205, 208 (Tex.App.–Fort Worth 1996, writ ref’d).


       In the present case, Hernandez testified that she was not employed with the SHORT

program at the time that appellant was in the program. Her testimony made clear that all

of her information on appellant’s performance in the program was based on the reports in

the SHORT program’s file. Specifically, Hernandez’s testimony regarding appellant’s

urinalysis results was that appellant tested positive seven times, but that each of these

positive tests were at the beginning of his participation in the SHORT program. In addition,

Hernandez testified that appellant also tested positive for Xanax once. Hernandez is not

an expert in drug testing. She did not testify about the method utilized to perform the

urinalysis tests on appellant. In fact, nothing in the record would support the reliability of


                                              5
the results of the urinalysis tests performed while appellant was participating in the SHORT

program. Because the evidence was legally insufficient to allow the jury to find that

appellant had actually used drugs while he was participating in the SHORT program, the

trial court abused its discretion in admitting this evidence over appellant’s objection to the

reliability of the urinalysis test results. Stewart, 927 S.W.2d at 208. See also Hernandez

v. State, 55 S.W.3d 701, 705-06 (Tex.App.–Corpus Christi 2001), aff’d by 116 S.W.3d 26

(Tex.Crim.App. 2003) (admission of drug testing results not shown to be reliable is

inadmissible over timely objection); Philpot v. State, 897 S.W.2d 848, 852

(Tex.App.–Dallas 1995, writ ref’d) (same).


       However, even after finding that the trial court erred in admitting the extraneous

offense evidence, we must determine the effect of the erroneous admission. Error in the

admission of evidence of an extraneous offense constitutes nonconstitutional error that is

subject to harm analysis. Boyd v. State, 899 S.W.2d 371, 375-76 (Tex.App.–Houston [14th

Dist.] 1995, no writ). We are to disregard nonconstitutional error that does not affect the

substantial rights of the defendant. TEX . R. APP. P. 44.2(b). A substantial right is affected

when the error had a substantial and injurious effect or influence in determining the jury’s

verdict. Russell v. State, 113 S.W.3d 530, 549 (Tex.App.–Fort Worth 2003, pet. ref’d)

(citing King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997)).


       In determining whether error had a substantial and injurious effect or influence on

the verdict, we must review the error in relation to the entire proceeding. King v. State, 953

S.W.2d 266, 271 (Tex.Crim.App. 2007); Haley, 173 S.W.3d at 518. The process for

assessing harm due to the erroneous admission of evidence is to isolate the error and all

                                              6
of its effects and ask whether a rational trier of fact might have reached a different result

if the error and its effects had not occurred. Christopher v. State, 851 S.W.2d 318, 320

(Tex.App.–Dallas 1993, writ ref’d). However, if overwhelming evidence dissipates the

error’s effect upon the jury’s function to the extent that the error did not contribute to the

verdict, then the error is harmless. Id.


       Looking at the entire punishment proceeding, we conclude that the evidence of

appellant’s failed urinalysis tests had no influence or, at worst, only a slight influence on

the jury’s verdict. The testimony of Hernandez regarding appellant’s failed urinalysis tests

was brief, it was offered only in rebuttal to show that appellant had some noncompliance

issues before successfully completing the SHORT program, and the trial court properly

instructed the jury that they could only consider the evidence of an extraneous offense if

they were satisfied beyond a reasonable doubt that appellant committed or was criminally

responsible for the acts. Additionally, the State made no further reference to appellant’s

failed urinalysis tests. In fact, the most logical inference to be drawn from the evidence of

appellant’s failed urinalysis tests, when viewed in context of the entire record of the

punishment proceeding, is that appellant had some compliance issues when he began the

SHORT program, but that he became compliant through the course of the program and

was able to successfully complete the program. Hernandez testified that the final note in

appellant’s file stated that he tested “negative on the pre-graduation UA [urinalysis]. He’s

done a good job in the program.” Viewing the entire punishment proceeding, we cannot

say that the erroneously admitted evidence of appellant’s failed urinalysis tests had a




                                              7
substantial and injurious effect on the jury’s verdict and, therefore, we conclude that the

error was harmless.


                                       Conclusion


       Having found the trial court’s erroneous admission of evidence to be harmless, we

affirm the judgment.




                                                 Mackey K. Hancock
                                                      Justice


Do not publish.




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