Robert Thomas Wilharm v. The State of Texas

Case Number: 01-15-00507-CR

Judge: Harvey G. Brown

Court: In The Court of Appeals For The First District of Texas

Plaintiff's Attorney:

Clinton A. Morgan  
Jack Roady
Alan Keith Curry
Eric Kugler

Defendant's Attorney:

Joe David Wells

Description: Wilharm and Zepeda met at a bar, then dated “for a short time.” They began
communicating regularly via text message and phone calls. Zepeda testified that
Wilharm’s messages became “very strange,” she became “fed up” with his
messages and “the situation,” and she asked him over to her apartment one evening
to “end a relationship that was not coming to anything.”
When Wilharm arrived at Zepeda’s apartment, Wilharm tried to initiate sex
with her three times, by verbal statements and by trying to remove her clothing.
Zepeda testified that she declined his advances and that they did not have sex.
They watched TV together and fell asleep on separate couches. She further
testified that Wilharm woke her around 5:00 a.m. He was standing in front of her
face, naked, and rubbing his genitals on her face, “intending to have sex.” Zepeda
testified that she told him that she “didn’t want anything and for him to . . . get
dressed and leave” her apartment. Wilharm refused to do so, instead laughing and
insulting her. Zepeda threatened to call the police.

Zepeda testified that Wilharm then “came up from behind [Zepeda] and
grabbed the phone from [her],” and then “grabbed [her] hair and slammed [her] on
the floor.” He continued slamming her “against the floor until he busted [her] lip.”
He grabbed her by the neck and “tried to choke [her] with his hand several times.”
Wilharm threatened that Zepeda was “going to die” that day, grabbed her arm and
threatened to break it, and then began choking her again. When he covered her
mouth with his hand, she “bit him very hard.” During these events, which Zepeda
testified lasted a total of about 30 minutes, she screamed repeatedly for Wilharm to
“stop” and stated that he was hurting her. At some point, she found it impossible to
breathe and briefly lost consciousness.
Wilharm called emergency services. Throughout the 9-1-1 call, a recording
of which was played in evidence at trial, Zepeda can be heard screaming in the
background. Zepeda testified that she was screaming “[f]or him to leave [her]
alone” and “to stop jumping because he was jumping on [her] back.” She further
testified that the physical assault continued throughout the entire call and stopped
only when police arrived. Wilharm, meanwhile, can be heard in the recording
telling the emergency dispatcher that Zepeda—whose first name he misspelled for
the dispatcher—tried to kill him, “almost bit [his] thumb off,” and “tried to gouge
[his] eyes out.” He also stated that he was holding Zepeda down during the call
because “she tried to kill me just now.” He told the dispatcher that Zepeda has


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borderline personality disorder. Zepeda testified that she does not have that
disorder or “any form of manic or depression or anything like that.”
After the police arrived, Officers M. Leal and R. Still of the Houston Police
Department spoke with both Zepeda and Wilharm. Wilharm told the police that he
and Zepeda had slept on the bed together and that, when he woke up, Zepeda
attacked him. According to Wilharm, Zepeda’s injuries resulted from Wilharm
defending himself and restraining her. Zepeda, however, gave both written and oral
statements and told the police that Wilharm had attacked her. The police arrested
Wilharm.
A. Indictment
A grand jury indicted Wilharm for “intentionally and knowingly caus[ing]
bodily injury to [N.] Zepeda . . . a person with whom [he] had a dating relationship,
by impeding [her] normal breathing or circulation of the blood . . . by applying
pressure to [her] throat, applying pressure to [her] neck and blocking [her] mouth.”
The indictment also alleged in an enhancement paragraph that Wilharm had
previously been convicted of assault against a member of his family.
Before voir dire, the State moved to amend the indictment to correct the
spelling of Zepeda’s first name. Both Zepeda and Officer Leal testified that the
original spelling, which matched the spelling Wilharm had given to the dispatcher,
was the English spelling of Zepeda’s first name, but the correct spelling was the


5
Spanish spelling. The trial court granted the State’s motion to amend the
indictment over Wilharm’s objection, without granting Wilharm 10 days to
respond to the amended indictment. See TEX. CODE CRIM. PROC. art. 28.10 (after
amendment to indictment and upon request by defendant, trial court must allow not
less than 10 days, or shorter period if requested by defendant, to respond to
amended indictment).
B. Trial
Zepeda, who speaks English but is more comfortable speaking Spanish,
testified through an interpreter about her relationship with Wilharm, the
altercation, and the substance of her statements that can be heard in the background
of the 9-1-1 recording. She also testified that she “never gave [Wilharm] a last
name” and that Wilharm told her his name was “Rob W.”
During cross-examination, Zepeda initially refused to answer questions
about the timing and content of text messages she sent to and received from
Wilharm. She repeatedly stated that she could not answer the questions without
more context, that “there’s a lot missing” in the exhibits she was shown, and that
she would not answer questions without seeing messages previous to those
introduced into evidence. Specifically, she answered, “I’m sorry, but if you don’t
show me the prior messages, I’m not going to answer,” at which point the
prosecutor asked to “have a moment with [the] witness in the hallway.” The trial


6
court granted the State’s request, over Wilharm’s objection, after which Zepeda
answered questions from Wilharm’s counsel about the text messages and an
interspersed series of phone calls to and from Wilharm.
Officers Leal and Still testified about their response to Wilharm’s 9-1-1 call.
Wilharm objected to several of Leal’s statements in which he repeated what
Zepeda had told the officers during the investigation, but Wilharm did not object
when Still or Zepeda testified about many of those same statements. Additionally,
Wilharm objected to Leal’s testimony that redness in Zepeda’s eye could have
been caused by asphyxiation as improper expert testimony but again did not object
when Leal offered other opinions about symptoms of asphyxiation or when Still
offered the same opinion. The trial court overruled these objections.
Wilharm offered the testimony of three witnesses who testified that Zepeda
had a reputation for lying and for violence. After Richard Aguirre, one of these
witnesses, implied that his only past criminal history was “an assault charge when
[he] was young,” the State impeached him by eliciting testimony regarding several
additional prior convictions, including misdemeanor convictions from more than
ten years before trial. Wilharm objected to some but not all of these questions on
the ground that several questions constituted “improper impeachment,” but the trial
court overruled those objections.


7
The jury found Wilharm guilty of assault of a person with whom he had a
dating relationship and sentenced him to 20 years’ confinement. Wilharm appeals
his conviction.
Extension After Amendment of Indictment
In his first issue, Wilharm argues that the trial court erred in refusing to grant
a ten-day extension after the State amended the indictment to correct the spelling
of Zepeda’s first name. “After notice to the defendant, a matter of form or
substance in an indictment or information may be amended at any time before the
date the trial on the merits commences.” TEX. CODE CRIM. PROC. art. 28.10. But
“[o]n the request of the defendant, the court shall allow the defendant not less than
10 days, or a shorter period if requested by the defendant, to respond to the
amended indictment or information.” Id. The trial court refused Wilharm’s request
for time to respond after the State’s amendment, which Wilharm contends requires
us to reverse the conviction.
A. Standard of review
We will only overturn a conviction based on the trial court’s refusal to grant
a defendant time to respond to the amended indictment if the error was harmful,
that is, if it “affected his substantial rights.” TEX. R. APP. P. 44.2(b); Hamann v.
State, 428 S.W.3d 221, 225 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d);
Richard v. State, No. 01-11-00945-CR, 2013 WL 4676129, at *4–5 (Tex. App.—


8
Houston [1st Dist.] Aug. 27, 2013, no pet.) (mem. op., not designated for
publication); see Hall v. State, 62 S.W.3d 918, 919–20 (Tex. App.—Dallas 2001,
pet. ref’d) (holding that removal of surplus language from indictment is not
“amendment” under Section 28.10); Hicks v. State, 864 S.W.2d 693, 694 (Tex.
App.—Houston [14th Dist.] 1993, no pet.) (same). “If, looking at the record as a
whole, it appears the error ‘did not influence the jury, or had but a slight effect,’ we
must consider the error harmless and allow the conviction to stand.” Hamann, 428
S.W.3d at 226 (quoting Trejos v. State, 243 S.W.3d 30, 41–42 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref’d)).
B. Analysis
Before voir dire, the trial court granted the State’s motion to amend the
indictment to correct the spelling of Zepeda’s first name. The original indictment
used an incorrect, English spelling of Zepeda’s name. The State amended the
indictment to change the spelling to the correct, Spanish spelling of her name.
Wilharm argues that the “trial court erred in failing to grant [him] a ten-day
extension” as required by Article 28.10 of the Code of Criminal Procedure after it
amended the indictment. See TEX. CODE CRIM. PROC. art. 28.10.
Wilharm does not argue that the change in spelling harmed him or hurt his
ability to prepare a defense or impeach Zepeda. Wilharm did, in fact, impeach
Zepeda with the information he received about the different spellings of her name,


9
arguing that Zepeda gave the wrong spelling to the police intentionally. He used
this exchange to impeach Zepeda’s character for truthfulness. Notably, the
misspelling of Zepeda’s name did not prohibit Wilharm from learning of her
criminal history. Rather, the State disclosed Zepeda’s criminal history to Wilharm
in its pre-trial Brady notice. Nor does Wilharm argue that the spelling change
influenced the jury at all. Thus, neither Wilharm’s briefing nor our review of the
record as a whole reveals any harm requiring reversal. See King v. State, 953
S.W.2d 266, 271 (Tex. Crim. App. 1997); Hamann, 428 S.W.3d at 226.
Because Wilharm has failed to demonstrate that the trial court’s refusal to
grant a ten-day extension after the State amended the indictment harmed him, we
overrule his first issue.
Interruption of Cross-Examination
In his second issue, Wilharm argues that the trial court erred in halting cross
examination of Zepeda and granting the prosecution a recess to confer with the
witness. The entirety of his argument is as follows:
The trial court must make the interrogation of the witnesses conducive to the ascertainment of the truth. TEX. R. EVID. 611. The trial court allowed the State to stop appellant’s cross examination in order to confer with the complaining witness outside the presence of the jury over appellant’s objection. (RR III 74–75). The following exchange occurred between the trial court and counsel:
[quoted exchange]


10
This improper interruption of appellant’s right to cross examination and coaching outside the presence of the jury violates appellant’s right to due process. U.S. CONST. V. The trial court erred in allowing this to happen.
Rule of Appellate Procedure 38.1(i) requires an appellant’s brief to “contain
a clear and concise argument for the contentions made, with appropriate citations
to authorities and to the record.” TEX. R. APP. P. 38.1(i). If a party fails to provide
citations or arguments for his position, the party waives that argument for purposes
of appellate review. Gallo v. State, 239 S.W.3d 757, 768 (Tex. Crim. App. 2007);
State v. Gonzalez, 855 S.W.2d 692, 697 (Tex. Crim. App. 1993); see Grado v.
State, 445 S.W.3d 736, 738–39 (Tex. Crim. App. 2014) (in general, even
constitutional errors may be waived or forfeited).
Wilharm did not provide any citation or reasoning to support his argument
that the State’s request to pause cross-examination to “have a moment” with
Zepeda was a violation of his right to due process. He does not identify—nor can
we locate—any authority for the proposition that a pause in cross-examination
violates a defendant’s due-process rights. Nor does he distinguish this interruption
from routine interruptions of cross-examination, such as those caused by court
recesses, or identify any evidence regarding the substance of the alleged
“coaching” of the witness.
Wilharm has waived his second issue by inadequate briefing. Even if he had
preserved it, we would be compelled to overrule it, as he was allowed to conduct


11
further cross-examination after the interruption, and he makes no effort to show
that the interruption contributed to his conviction or affected any substantial right.
See TEX. R. APP. P. 44.2(a), (b); King, 953 S.W.2d at 271; Hamann, 428 S.W.3d at
225; Richard, 2013 WL 4676129, at *4–5.
Challenges to Testimony Admitted at Trial
In his remaining three issues, Wilharm argues that the trial court improperly
admitted three categories of testimony: testimony regarding hearsay, cross
examination about a witness’s prior convictions, and testimony concerning the
condition of Zepeda’s eye.
A. Standard of review
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006). A
trial court commits an abuse of discretion when its decision falls outside the zone
of reasonable disagreement. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App.
2003); Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003) (citing
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on
reh’g)); Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). Before a
reviewing court may reverse the trial court’s decision, “it must find the trial court’s
ruling was so clearly wrong as to lie outside the zone within which reasonable


12
people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App.
2008).
To preserve a complaint for appellate review, the complaint must be made to
the trial court by a timely request, objection, or motion that makes the trial court
aware of the complaint, and the record must show that the trial court ruled on the
request, objection, or motion, or refused to do so. TEX. R. APP. P. 33.1; Bekendam
v. State, 441 S.W.3d 295, 299–300 (Tex. Crim. App. 2014).
B. Analysis
1. Hearsay testimony
In his third issue, Wilharm argues that the trial court improper allowed
Officer Leal to testify regarding facts that he learned from another officer, over
Wilharm’s objections that the testimony constituted inadmissible hearsay.
Hearsay is an out-of-court statement that “the declarant does not make while
testifying at the current trial or hearing” and that “a party offers in evidence to
prove the truth of the matter asserted in the statement.” TEX. R. EVID. 801(d).
Hearsay is generally inadmissible, unless allowed by a specific evidentiary rule.
TEX. R. EVID. 802.
The erroneous admission of a hearsay statement constitutes non
constitutional error that is subject to a harm analysis. Campos v. State, 317 S.W.3d
768, 779 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). We disregard non


13
constitutional errors that do not affect the substantial rights of the defendant. See
TEX. R. APP. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).
“[S]ubstantial rights are not affected by the erroneous admission of evidence ‘if the
appellate court, after examining the record as a whole, has fair assurance that the
error did not influence the jury, or had but a slight effect.’” Motilla v. State, 78
S.W.3d 352, 355 (Tex. Crim. App. 2002) (quoting Solomon v. State, 49 S.W.3d
356, 365 (Tex. Crim. App. 2001)); Johnson v. State, 967 S.W.2d 410, 417 (Tex.
Crim. App. 1998).
Wilharm’s briefing on this issue consists of nearly four pages of quoted
testimony, objections, and rulings by the trial court, followed by the bare assertions
that “[n]o statute, rule of evidence or exception to the hearsay rule allows for
Officer Leal to relate the facts he was told by Officer Still to the jury,” and that the
“trial court erred in admitting this evidence and abused its discretion in so doing.”
In the quoted testimony, Officer Leal testified that Officer Still had called his
attention to the fact that one half of Zepeda’s bed had been slept in, while the other
half appeared “turned down” and “fresh.” He then testified regarding Zepeda’s
statements to Officer Still about her sleeping habits, the placement of her phone
charger relative to her bed, and events on the evening of the assault. On cross
examination, he confirmed that Officer Still was the source of “the things [he]
learned in the course of this investigation.”


14
Wilharm does not identify with any specificity statements that were not
admissible, nor does he argue that the admission of any challenged testimony
harmed him or resulted in an improper verdict. See TEX. R. APP. P. 44.2(b);
Johnson, 43 S.W.3d at 4; Campos, 317 S.W.3d at 779. We hold that he has waived
his third issue by inadequately briefing it. See Gallo, 239 S.W.3d at 768; Gonzalez,
855 S.W.2d at 697. Even if he had adequately briefed the issue, we would overrule
it, as our review of the record reveals no statements that could have had more than
a slight effect on the jury and were not admitted elsewhere without objection. See
Motilla, 78 S.W.3d at 355.
2. Testimony regarding witness’s prior convictions
In his fourth issue, Wilharm argues that the trial court erred in allowing the
State to ask Richard Aguirre, one of Wilharm’s witnesses who testified about
Zepeda’s character, about the witness’s past convictions more than ten years
earlier, including (1) a 2001 conviction for assault with a deadly weapon, (2) a
2000 DWI conviction, and (3) a 1998 conviction for possession of a controlled
substance.
The ten-year limitation on the use of a criminal conviction to impeach a
witness is set forth in Texas Rule of Evidence 609, which provides, in relevant
part,
(a) Evidence of a criminal conviction offered to attack a witness’s character for truthfulness must be admitted if


15
(1) the crime was a felony or involved moral turpitude, regardless of punishment;
(2) the probative value of the evidence outweighs its prejudicial effect to a party; and
(3) it is elicited from the witness or established by public record.
(b) This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.
TEX. R. EVID. 609(a)–(b).
Aguirre testified on direct examination that Zepeda is “not very truthful at
all,” but “is very violent” and has “been violent several times.” On cross
examination by the State, he testified, without objection, that he had a criminal
history. When the prosecutor asked him to “please tell [us] about it,” Aguirre
responded, “I had an assault charge when I was young,” specifically when he was
20 years old. The prosecutor then asked, “You have another assault, right?”
Aguirre testified that he did, prompting an unspecified objection by Wilharm,
which was withdrawn without obtaining a ruling. The prosecutor then asked, “Mr.
Aguirre, isn’t it true that back in May of 2001[—which was when he was 16 or 17
years old—] you were convicted of assault in Williamson County and you received
40 days in the county jail?” Wilharm objected, “This conviction is inadmissible.
And it’s improper impeachment despite the way the State is doing this, Your


16
Honor.” After the objection was overruled, Aguirre acknowledged the conviction.
The prosecutor then asked, without objection, about a 2003 conviction for
aggravated assault with a deadly weapon. Wilharm objected to questions about a
2000 DWI conviction and a 1998 conviction for possession of a controlled
substance, stating that those questions were “improper impeachment” and
“inadmissible,” citing Rules of Evidence 403 and 404.
Wilharm objected to the testimony regarding the 2001 assault, stating, in
part, “This conviction is inadmissible,” but without offering any reasoning for that
assertion or referring to any rule of evidence. And Wilharm had not objected to the
question that led to Aguirre’s immediately preceding statement that he had been
convicted of assault on another occasion, that is, an occasion other than the one
“when [he] was young.” Indeed, the State responded to Wilharm’s eventual
objection, “Your Honor, when I asked the witness if he had a prior conviction, he
brought it up himself.” Nothing in Wilharm’s other objections made clear to the
trial court that the basis for the objections was improper use of a prior conviction
under Rule 609(b); instead, he relied entirely on Rules 403 and 404. Thus,
Wilharm’s complaint on appeal does not comport with his objections in the trial
court and is therefore not preserved for our review. See TEX. R. APP. P. 33.1;
Bekendam, 441 S.W.3d at 300.


17
Finally, any error in admitting evidence of a witness’s prior convictions is
subject to a harm analysis. Johnson, 43 S.W.3d at 4; Jabari v. State, 273 S.W.3d
745, 754 (Tex. App.—Houston [1st Dist.] 2008, no pet.). But Wilharm has not
argued that he was harmed by the admission of evidence regarding certain of
Aguirre’s prior convictions. We also note that two other witnesses—in addition to
Aguirre—testified that Zepeda was dishonest and violent. Thus, Aguirre’s
testimony regarding Zepeda’s character was merely cumulative of other evidence,
and Wilharm has made no attempt to show that he was harmed by evidence
tending to discredit Aguirre alone.
Given the record before us, Wilharm has not preserved his complaint for our
review. Further, any error in admitting evidence of Aguirre’s prior convictions was
harmless, as Aguirre’s testimony regarding Zepeda’s character for honesty and
violence was cumulative of testimony by other witnesses.
We overrule Wilharm’s fourth issue.
3. Testimony regarding Zepeda’s eye
Finally, in his fifth issue, Wilharm argues that Officer Leal “was a
probationary officer with only 9 months of experience” and therefore should not
have been allowed to testify about Zepeda’s injuries. Specifically, Wilharm points
to the following testimony:
Q. Okay. And what kind of injuries did she suffer?


18
A. She suffered trauma to the head, there were fresh welts on there when she started speaking to her. She had a bloody lip. She had red eyes, bloodshot eyes with portions that had -- I guess capillaries had burst or something, but there were big blotches of red in her eye. . . . . Q. In your training and experience when somebody has their capillaries burst, what is that consistent with? A. Asphyxiation.
Although Wilharm objected to the question about burst capillaries, he did not
object when Zepeda herself testified earlier in the trial that “[t]he vessels in [her]
eye burst” as a result of her struggle with Wilharm. Wilharm also did not object to
Leal’s testimony regarding mechanisms of asphyxiation or his observation of other
symptoms that he identified as consistent with asphyxiation, including marks on
Zepeda’s neck, a cut on her chin, swelling, and bruising. Leal also testified without
objection about photographic evidence, including a photograph of the burst
capillaries in Zepeda’s eye and another of injuries to Wilharm’s thumb, which Leal
testified were consistent with Zepeda’s claim that Wilharm put his hand over her
mouth. On appeal, Wilharm argues that Officer Leal’s testimony regarding burst
capillaries was inadmissible, either as lay witness testimony or as expert testimony.
Admissibility of expert testimony is governed by Rule of Evidence 702.
Rule 702 allows an expert “qualified . . . by knowledge, skill, experience, training,
or education” to give an expert opinion if “scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to determine a


19
fact in issue.” TEX. R. EVID. 702. Because “[t]here is no hard and fast rule as to the
extent of knowledge required to qualify a witness as an expert in a given field,” the
decision on whether to qualify a witness as an expert “is generally left to the sound
discretion of the trial court.” Austin v. State, 794 S.W.2d 408, 411 (Tex. App.—
Austin 1990, pet. ref’d). But before the trial court allows a witness to give an
expert opinion, it must ensure that three conditions are met: “(1) that the witness
qualifies as an expert by reason of his knowledge, skill, experience, training, or
education; (2) that the subject matter of the testimony is appropriate for expert
testimony; and (3) that admitting the expert testimony will actually assist the fact
finder in deciding the case.” Dixon v. State, 244 S.W.3d 472, 478 (Tex. App.—
Houston [14th Dist.] 2007, pet. ref’d). Wilharm argues only that the first condition
is not met.
A witness qualifies as an expert based on his “specialized knowledge” in a
particular field, which “may be derived from specialized education, practical
experience, a study of technical works, or a varying combination of these things.”
Id. at 479. A police officer’s training and experience can be “specialized
knowledge” that qualifies the officer as an expert. See, e.g., Emerson v. State, 880
S.W.2d 759, 762 (Tex. Crim. App. 1994) (three and one-half years of experience
and training in detection of intoxicated persons qualified officer as expert on HGN
test performance); Dixon, 244 S.W.3d at 479 (training from police department on


20
family violence and observation of “common trend” among domestic violence
victims qualified officer as expert on behavior of victims of family violence).
The Court of Criminal Appeals has looked to the Texas Supreme Court “for
additional guidance” on determining whether an expert meets the qualification
prong of the expert test. See Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App.
2006). That prong requires a “two-step inquiry”: first, whether the witness has “a
sufficient background in a particular field” and second, “whether that background
goes to the very matter on which the witness is to give an opinion.” Id. (internal
quotation marks and brackets omitted).
The trial court can consider the witness’s “education, training, or
experience” in determining whether the first prong is satisfied. Rodgers v. State,
205 S.W.3d 525, 528 (Tex. Crim. App. 2006). The degree of education, training, or
experience that is required for a witness to be qualified as an expert depends on
several factors, including “the complexity of the field about which he proposes to
testify”; the conclusiveness of the expert’s opinion; and how dispositive the
expert’s testimony is to the central issues of the lawsuit. Id. A higher level of
qualification is required for a technical subject “when the evidence is well outside
the jury’s own experience,” while a lower level of qualification is necessary if the
expert’s opinion “is close to the jury’s common understanding.” Id.


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Leal testified that he had served as a police officer for almost three years
when he offered his expert opinion at trial. Before observing Zepeda’s injuries, he
had training at the police academy on “what we’re looking for” to detect “a choke
hold or losing oxygen to the brain, being choked out, anything having to do with
airway obstruction.” He further testified that, in his role as a police officer, he had
spoken to other people who reported being choked and likewise had burst
capillaries in their eyes. By failing to object to this testimony, Wilharm waived any
objections to Leal’s testimony about asphyxiation in general or symptoms of
asphyxiation other than burst capillaries. Valle v. State, 109 S.W.3d 500, 509 (Tex.
Crim. App. 2003) (“To preserve error in admitting evidence . . . . a party must
object each time the inadmissible evidence is offered or obtain a running
objection.” (footnotes omitted)).
We also conclude that, based on Leal’s “specialized education” and
“practical experience,” the trial court did not err in allowing him to give an expert
opinion that burst capillaries in Zepeda’s eye were “consistent” with asphyxiation.
See Dixon, 244 S.W.3d at 479. We also note that Wilharm has failed to cite to
statutes, rules, or case law or provide any argument—beside his one sentence
conclusory statement that “[a]s a probationary officer with only nine months of
experience, Officer Leal cannot be qualified as an expert, particularly in regards to
medical diagnosis and causation”—as to why Leal’s training and three years of


22
experience do not constitute sufficient education or experience to allow him to
offer an expert opinion on this particular issue. The evidence at trial demonstrated
that Officer Leal had sufficient experience and training to qualify as an expert for
the purpose of testifying as to his understanding of the link between asphyxiation
and burst capillaries in Zepeda’s eye. Further, any error in the trial court’s
admission of testimony specifically linking burst capillaries in Zepeda’s eyes to
asphyxiation was cured when Leal offered testimony linking burst capillaries to
asphyxiation in general, to which Wilharm did not object. Valle, 109 S.W.3d at
509. Accordingly, we hold that the trial court did not err in admitting that
testimony. We overrule Wilharm’s fifth issue.

Outcome: