MORALES GOMEZ v. STATE (2025)

OPINION

The facts of this case are tragic. Three-year-old Kyle was found unresponsive with Appellant standing near him.¹ The EMT who found him said that he was “bruised from head to toe and very pale.” He was life-flighted to Houston's Memorial Hermann Hospital and diagnosed with a subdural hematoma, in addition to his extensive external injuries. The medical interventions were unsuccessful, and Kyle died three days later.

Appellant, Kyle's uncle, was arrested and charged with felony murder. See Tex. Penal Code § 19.02(b)(3). The jury heard five days of testimony and evidence and found Appellant guilty. Appellant timely appealed, challenging the sufficiency of the evidence and certain evidentiary rulings. We affirm.

Analysis

I. Sufficiency of the Evidence

Appellant asserts that the evidence is legally insufficient to maintain his conviction. We disagree.

For a legal sufficiency review, we examine all the evidence presented at trial in the light most favorable to the verdict to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); Perales v. State, 622 S.W.3d 575, 580 (Tex. App.—Houston [14th Dist.] 2021, pet. ref'd). We consider both direct and circumstantial evidence, as well as any reasonable inferences that may be drawn from the evidence. Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018). We defer to the factfinder to weigh the evidence and fairly resolve any conflicts. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

Appellant asserts that our legal sufficiency review should disregard any evidence attributing Kyle's injuries to shaken baby syndrome or abusive head trauma because these theories rely on “junk science.” Appellant relies on Ex parte Roark, 707 S.W.3d 157 (Tex. Crim. App. 2024), in which the Court of Criminal Appeals examined at length the evolving science on shaken baby and shaken impact syndrome. To be clear, Roark did not cast doubt on abusive head trauma—to the contrary, the court repeatedly mentioned that the victim's injuries in that case were consistent with abusive head trauma. Id. at 187. Rather, the court focused on developing research suggesting that certain head and retinal injuries were not necessarily indicative of shaking or other intentional trauma but could also be attributed to accidental, short-distance falls. Id. at 185 (“We find that scientific knowledge has evolved regarding [shaken baby syndrome] and its application in Applicant's case.”).

But context matters, and the procedural and factual contexts here are markedly different from those in Roark. The victim's injuries in Roark included an internal subdural hematoma and retinal hemorrhages but, importantly, no external head injuries. Id. at 159-60, 164. The State alleged that the defendant's intentional acts—shaking and possibly striking her with or against something—were the only possible explanation for those injuries, while the defendant's primary defense was that the internal injuries were non-intentional, caused either by an earlier injury that had begun to rebleed spontaneously or a minor accidental fall. Id. at 160. But one of the State's main experts testified at trial that these non-intentional causes would be “controversial and rare”—limited to “children who have abnormal spaces over the brain.” Id. at 163.

The State's expert recanted her opinion by affidavit in the habeas proceeding. Her new opinion gave credence to the defendant's theory that prior subdural hematomas can rebleed without a subsequent trauma or as the result of mild trauma. Id. at 181. Other evidence during the habeas proceeding also showed—contrary to the evidence the State presented at trial—that short-distance falls can cause the kind of injuries the victim suffered, an infant cannot be shaken hard enough to cause the victim's injuries, and retinal hemorrhages can be caused by accidental trauma. Id. at 174-83. Taken together, these scientific developments entitled the defendant to a new trial. Id. at 185-87.

So, contrary to Appellant's argument, Roark was not a wholesale repudiation of even shaken baby syndrome, but rather a context dependent reexamination of certain scientific opinions concerning the cause of a child's injury and their likely affect on the jury's verdict. See also Ex parte Horvath, 721 S.W.3d 248, 249 (Tex. Crim. App. 2025) (Yeary, J., concurring) (“To the extent that Ex parte Roark has been read to suggest that Shaken Baby Syndrome (SBS) is junk science or that shaking alone cannot cause a serious brain injury to a child, that reading should be disavowed.”).

There are at least four key differences that render Roark inapplicable here. First, whereas Roark was “a prosecution under the theory of Shaken Baby Syndrome,” see 707 S.W.3d at 159, the State's indictment and theory of prosecution alleged theories of Kyle's death that didn't involve shaking at all. The jury could have convicted Appellant based on those theories: “When the trial court's charge authorizes the jury to convict on more than one theory, as it did in this case, the verdict of guilt will be upheld if the evidence is sufficient on any of the theories.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

Second, in Roark, the State's experts testified that the victim's internal injuries were “absolutely” and “only” caused by “a lot of trauma”—namely, by intentional shaking. That expert testimony was the “primary” and “most persuasive” evidence at trial—there were no eyewitnesses, no evidence of past abuse, and no external injuries—but the science no longer supported it by the time of the habeas proceeding. 707 S.W.3d at 157. The State's experts here, in contrast, made no absolute finding that shaking was the sole cause of Kyle's injuries and did not categorically rule out other possible causes. Instead, they testified that his extensive injuries were “highly suspicious for abusive head trauma” and “consistent with” or “strongly indicative of” abuse. There is no science in the record contrary to that testimony. The jury, as factfinder, was entitled to consider this evidence in finding guilt beyond a reasonable doubt.

Third, any references to shaking as a possible mechanism of Kyle's injuries were minimal and occurred approximately ten times during two witnesses’ testimonies. The jury heard over 900 pages of testimony from 18 witnesses in this case; shaken baby syndrome was not the primary theory on which the prosecution based its case against Appellant, unlike in Roark. See Ex parte Roberson, No. WR-63,081-03, 2025 WL 2858392, at *21 (Tex. Crim. App. Oct. 9, 2025) (Finley, J., concurring and dissenting) (noting that there were “79 references to shaking or tangential uses of the term in voir dire, 130 references in guilt/innocence, and 15 references in punishment” in Roark).

Fourth, Kyle's injuries included not just internal brain and retinal injuries that could have been caused by a spontaneous rebleed or accidental fall, as in Roark, but also extensive bruising and abrasions in different stages, bite marks, broken teeth, and bone fractures. Most of the testimony at trial focused on these external injuries. Therefore, we decline to exclude from our sufficiency review any evidence attributing the victim's injuries to shaking.

We turn to the evidence presented at trial. Appellant was convicted of felony murder, which is shown when a defendant “commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, ․ he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.” Tex. Penal Code § 19.02(b)(3). The offense of injury to a child can qualify as the underlying felony in a felony murder prosecution. Contreras v. State, 312 S.W.3d 566, 584 (Tex. Crim. App. 2010); Avellaneda v. State, 496 S.W.3d 311, 318 (Tex. App.—Houston [14th Dist.] 2016, no pet.). A person commits injury to a child if he intentionally, knowingly, recklessly, or with criminal negligence by act or omission causes bodily injury to a child. Tex. Penal Code § 22.04.

EMT Margaret Little was dispatched to a call at Kindred Hospital in northwest Houston and found Kyle laying on the ground outside of the hospital with Appellant standing near him. Kyle was unresponsive with shallow breathing, and Little said that he “was bruised from head to toe and very pale.” He was life-flighted to Memorial Hermann hospital and determined to be in critical condition.

He was examined by Dr. McCarty, who testified at trial as to Kyle's extensive external injuries, including generalized bruising to his forehead, neck, chest, abdomen, arms, and legs, abrasions to his forehead and scalp, multiple broken teeth, and fractures to his jaw and clavicle that were in the process of healing. The bruises were in various stages of healing, suggesting that they had occurred at different times. Kyle was diagnosed with an acute subdural hematoma, which Dr. McCarty described as “a collection of blood inside the brain causing pressure on the brain.” Kyle also had bilateral retinal hemorrhages, which are “small little bits of bleeding noticed in the back of the retina.” Dr. McCarty said it was “concerning” to see this degree of injury without any explanation or history; rather, such injuries “are usually seen in severe car accidents, for example, falls from big heights or cases of nonaccidental trauma.” Kyle underwent an emergency craniotomy to attempt to reduce the pressure in his brain.

Nurse Lori Long examined Kyle after his craniotomy to document signs of trauma; Kyle was not breathing on his own and was not expected to survive. She testified at trial that Kyle had bruises over his entire body, including his face, neck, chest, abdomen, and legs. Nurse Long also identified several bruises in the shape of “opposing elliptical arcs” that were consistent with “bite marks.” She opined that Kyle's bruises were “not necessarily bruises that are consistent with the activities of daily living of a toddler.”

Dr. Ghergherehchi is the pediatric ophthalmologist who treated Kyle at the hospital. Her testimony at trial focused on Kyle's hemorrhaging in all three layers of both eyes, which she described as “very severe injuries” that were indicative of trauma to the eye and consistent with Kyle's brain injury. Dr. Ghergherehchi opined that these findings were “highly suspicious for abusive head trauma” because “seeing retinal hemorrhages is relatively rare, especially to this degree.”

Dr. Ruda reviewed Kyle's medical records and said he presented at the hospital with a subdural hematoma, bilateral retinal hemorrhages, bruises, and abrasions. Dr. Ruda also noted some bruises that were consistent with adult human bite marks. Kyle had fractures to his clavicle and jaw that were in the process of healing; Dr. Ruda said the jaw fracture would have caused Kyle “extreme pain” and would have been noticeable to a caregiver. She described Kyle's retinal hemorrhages as “severe” since they went through all three layers of both eyes, which she opined would not be seen with accidental trauma. Dr. Ruda concluded based on her review of the evidence that Kyle's brain injury, retinal hemorrhages, and bite marks represented substantial evidence of physical abuse.

Dr. Phatak performed the autopsy on Kyle's body and noted numerous abrasions and bruises on his scalp and face and more bruising on his neck, chest, and abdomen. Dr. Phatak identified a bruise on the inside of Kyle's lower lip and underneath his teeth, which he said can occur if “someone is struck in the face hard enough.” Dr. Phatak documented several “curvilinear injuries” on Kyle's torso, which he opined were caused by a belt, cable, or similar item. Dr. Phatak also identified several bruises consistent with bite marks. Kyle's clavicle had previously been broken and was in the final stages of healing. Dr. Phatak said Kyle's broken jaw was having difficulty healing because “it kept getting infected.” Dr. Phatak opined that this type of injury could cause pain, difficulty speaking, and difficulty eating, and was likely caused by a “large amount of force” rather than a simple fall. Dr. Phatak concluded that Kyle's cause of death was blunt force head trauma and that his manner of death was homicide.

Amanda Vargas was in a dating relationship with Appellant and lived with Appellant, Kyle, and Appellant's eight-year-old brother Omar in an apartment. Vargas said she typically worked most of the day; Appellant had sporadic employment and was the primary caregiver for Omar and Kyle. The morning before Kyle was taken to the hospital, Appellant drove Vargas to her job. Vargas recalled seeing Kyle crying on the couch but aside from that he was “fine.” Vargas said Appellant called her three hours later; he sounded “scared” and said that Kyle “had gotten sick.” Appellant arrived at Vargas's job with Kyle, and Vargas said Kyle “was breathing very ugly.” Appellant asked Vargas to take Kyle to the hospital, but she was unable to leave her job. She instructed Appellant to take him to the nearest hospital. Vargas said she never saw any injuries on Kyle nor did she see Appellant hit him, although she acknowledged that she could go days without seeing Kyle due to her work schedule.

Omar, Appellant's brother, was twelve years old when he testified at trial. Omar said he, rather than Appellant, provided most of Kyle's care. Omar said Appellant would hit him and Kyle with a belt. Omar recalled seeing Appellant hit Kyle “super hard.” Photographs of Omar were admitted into evidence showing bruises and abrasions on his face and chest.

Omar's second grade teacher, Martha Garcia, testified about an incident that occurred two days before Kyle was taken to the hospital. According to Garcia, Omar arrived late to class and his face was red from his nose to his chin. Omar appeared to be in “shock” and pulled an adult-sized work glove from his pocket that was “soaked in blood.” Garcia reported the incident to the department of child protective services.

Jose Collazo, the principal at Omar's school, recalled an earlier incident when he had a conversation with Appellant about an injury to Omar's nose. Appellant told Collazo that Omar had not been “cooperative in terms of getting ready to go to school” so Appellant hit him in the face, causing his nose to bleed. Collazo recalled another incident when he saw bruises on Omar's chest and back that appeared to be “fingertips” and were in various stages of healing. Collazo also saw marks that resembled “straps” across Omar's back.

The jury also heard from the crime scene investigator who collected evidence from Appellant's apartment. He identified numerous red stains that appeared to be blood in the hallway, on the floor in Appellant's bedroom, on Appellant's bedspread, and on several clothing items. These stains tested positive for blood and subsequent DNA testing showed the stains either contained Kyle's DNA or a mixture of DNA from Kyle and Appellant.

Taken together, this evidence is legally sufficient to support Appellant's conviction for felony murder with the underlying felony of injury to a child. See Tex. Penal Code §§ 19.02(b)(3), 22.04. The evidence shows a pattern of abuse by Appellant towards Kyle that culminated with Kyle arriving at the hospital unresponsive with a subdural hematoma, bilateral retinal hemorrhages, and bruises and abrasions over his entire body. Medical interventions were unsuccessful, and Kyle died of his injuries.

We overrule Appellant's first issue.

II. Expert Testimony

In his second issue, Appellant asserts the trial court erred in overruling his rule 702 objection to Dr. Ruda's expert testimony because (1) the Court of Criminal Appeals in Ex parte Roark “discredited” the theories of shaken baby syndrome and abusive head trauma, and (2) Dr. Ruda's opinion did not take into account sufficient “facts and data.”

Rule 702 states that “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Tex. R. Evid. 702. The trial court must be satisfied that three conditions are met before admitting expert testimony under rule 702: (1) the witness qualifies as an expert by reason of her knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is appropriate for expert testimony; and (3) admitting the expert testimony will assist the fact finder in deciding the case. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance. Id.

Qualification, reliability, and relevance “raise distinct questions and issues, and an objection based on one of these [grounds] does not preserve error as to another.” Shaw v. State, 329 S.W.3d 645, 655 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd); see Vela, 209 S.W.3d at 131 (“Qualification is distinct from reliability and relevance and, therefore, should be evaluated independently.”). A party cannot present a complaint for appellate review unless the record shows the party made a timely objection stating the grounds for the requested relief. Tex. R. App. P. 33.1(a)(1).

Appellant objected only to Dr. Ruda's qualifications in the trial court: that Dr. Ruda has “no education or training in biomechanics.” He agreed that Dr. Ruda should be able to testify about her general experience in child abuse cases and the specifics of what she had reviewed in this case, but he argued that she should not be able to give an opinion as to who caused Kyle's injuries or by what manner and means because that testimony would “invade[ ] the province of the jury.” The trial court agreed with Appellant, holding that Dr. Ruda was not allowed to testify as to whether Appellant was the one “who caused those injuries,” because that testimony would “invade the province of the jury.” Appellant did not get a ruling overruling his qualification objection, and he made no further objection to Dr. Ruda's testimony.²

On appeal, Appellant argues only that Dr. Ruda's opinion was unreliable: that she relied on discredited theories and did not take enough facts and data into account, for example. These are garden variety reliability objections, as Appellant readily admits in his brief. Because these reliability objections were not raised in the trial court, they are not preserved for our review. See Tex. R. App. P. 33.1.

Indeed, the Eastland court of appeals has held the same in a very similar case. There, the defendant was convicted of causing serious bodily injury to a child, allegedly by shaking, throwing, or causing blunt force trauma. Crider v. State, No. 11-16-00302-CR, 2018 WL 1547217, at *1 (Tex. App.—Eastland Mar. 30, 2018, no pet.). The defendant's counsel made the same qualification objection to the State's expert as Appellant did here: that she did not have a sufficient knowledge of biomechanics to testify as to what caused the injury. On appeal, the defendant instead argued that the expert's testimony was unreliable because of growing “general disagreement and retraction” as to internal injuries caused by shaking. The court of appeals held the issue wasn't preserved: “The ․ qualification objections above ․ are insufficient to preserve Appellant's reliability complaint on appeal.” Id. at *6. The conviction was affirmed.

Moreover, any error in the admission of part of Dr. Ruda's testimony was harmless. The erroneous admission of expert testimony is non-constitutional error that is disregarded unless it affected Appellant's substantial rights. See Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). Here, the jury heard testimony from four medical providers who actually treated Kyle as well as the medical examiner who performed Kyle's autopsy; these witnesses testified in detail to Kyle's extensive external injuries as well as his subdural hematoma and retinal hemorrhages. Against this backdrop, the jury also heard from Dr. Ruda, who did not examine Kyle and instead based her testimony only on a review of his medical records and the notes from treating physicians. Dr. Ruda stated only three times that some of Kyle's injuries were consistent with but not exclusive to shaking—an opinion also expressed by the medical examiner without objection. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (“any error in admitting the evidence was harmless in light of other properly admitted evidence proving the same fact”). We overrule Appellant's second issue.

III. Demonstrative Video Exhibits

In his third issue, Appellant challenges the trial court's admission of two demonstrative video exhibits. The first video shows an animation of a baby being violently shaken back and forth, causing a subdural hematoma. The second video shows an animated eye developing retinal hemorrhages after shaking. Appellant asserts that these videos’ probative value was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403.

We save for another day the question of whether these videos were properly admitted in light of Roark because their admission was, at worst, non-constitutional error that did not affect Appellant's substantial rights.³ Tex. R. App. P. 44.2(b); Coble, 330 S.W.3d at 280. 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. Non-constitutional error is harmless if the improperly admitted evidence did not influence the jury or had but a slight effect upon its deliberations. Id. In performing this analysis, we examine the entire record and calculate, as much as possible, the probable impact of the error upon the rest of the evidence. Torres v. State, 424 S.W.3d 245, 260 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd).

After reviewing the record, we conclude for several reasons that any error in the admission of the demonstrative video exhibits did not affect Appellant's substantial rights. First, the trial court instructed the jury that the videos were admitted only “to illustrate or explain the testimony of this witness,” and did not have “independent probative value for determining the substantive issues in this case.” Second, any analogies that could be drawn between the video exhibits and Kyle were weak, given that the videos showed an animated baby and Kyle was a larger three-year-old child. Third, the videos only showed a single mechanism of injury: shaking. But here, the external injuries over most of Kyle's body suggest the presence of blunt force trauma—further limiting the relevancy of a demonstrative exhibit that shows injuries caused only by another mechanism. Multiple other experts and fact witnesses testified to Kyle's extensive external injuries. Finally, this video was an animation. Compared to the photographs of Kyle lying unconscious in a hospital bed covered in bruises and the subsequent photographs from his autopsy, any prejudicial effect from a fairly sterile animated depiction would be minimal.

We overrule Appellant's third issue.

Conclusion

We affirm the trial court's judgment.

FOOTNOTES

1.   We use a pseudonym to refer to the victim in this case.

2.   If Appellant thought the scope of the trial court's ruling was unclear, it was his responsibility to clarify that ruling. See Cade v. State, No. AP-76, 2015 WL 832421, at *14 (Tex. Crim. App. Feb. 25, 2015) (“And when the trial court ruled that Vigen's testimony was admissible, Appellant did not seek clarification of the ruling's scope.”).

3.   We also note that this case was tried before the Court of Criminal Appeals issued its opinion in Roark, so the trial court may well have made a different decision with the benefit of Roark.

Katy Boatman, Justice