Christopher Daniel Duntsch v. State

• Court: Court of Appeals of Texas
• Decided: December 10, 2018
• Docket: 05-17-00235-CR
• Status: Published

Opinion

AFFIRM; and Opinion Filed December 10, 2018.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00235-CR

CHRISTOPHER DANIEL DUNTSCH, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from Criminal District Court No. 5 Dallas County, Texas Trial Court Cause No. F15-00411-L

OPINION Before Justices Lang, Fillmore, and Schenck Opinion by Justice Lang

Following a plea of not guilty, appellant Christopher Daniel Duntsch was convicted by a

jury of intentionally or knowingly causing serious bodily injury to an elderly individual while

using or exhibiting a deadly weapon. Punishment was assessed by the jury at life imprisonment.

In three issues on appeal, appellant contends the trial court abused its discretion by

admitting certain evidence of extraneous conduct of appellant and the evidence presented at trial

is insufficient to support appellant’s conviction because the State failed to prove the culpable

mental state beyond a reasonable doubt. We decide against appellant on his three issues. The trial

court’s judgment is affirmed. I. FACTUAL AND PROCEDURAL CONTEXT

A. Pretrial Proceedings

At the time of events in question, appellant was a neurosurgeon licensed to practice

medicine in Texas and Tennessee. The indictment in this case alleged that on approximately July

25, 2012, appellant “intentionally, knowingly, recklessly and with criminal negligence cause[d]

serious bodily injury to MARY EFURD, an elderly individual 65 years of age or older, . . . by

MALPOSITIONING AN INTERBODY DEVICE AND MALPOSITIONING PEDICLE

SCREWS AND AMPUTATING THE LEFT L5 NERVE ROOT,” and “use[d] a deadly weapon,

to-wit: HANDS AND SURGICAL TOOLS AND A PEDICLE SCREW, during the commission

of the offense.” (emphasis original).

Prior to trial, the State sought a ruling on the admissibility of evidence respecting surgeries

performed by appellant on patients other than the complainant. The State asserted in part,

[T]he totality of the defendant’s conduct is relevant, admissible, and crucial to the jurors’ understanding of the case. This Court should admit the evidence of the defendant’s other surgeries, including the outcomes of those surgeries, under the doctrine of chances and as substantive proof of the defendant’s culpable mental state. . . . .... The most likely defense will be that the defendant did not act intentionally, knowingly, or recklessly. . . . In order to make a competent decision regarding the defendant’s state of mind, the jurors need to understand the information that the defendant knew regarding his surgical technique and previous outcomes.

In response, appellant contended the extraneous offense evidence in question constituted

improper character evidence and its admission would result in an improper amount of time

“devoted to extraneous offenses and not the case itself.” Further, during a pretrial hearing on that

matter, counsel for appellant stated in part “[w]e would ask the [trial court] to not allow any of the

extraneous offenses” the State sought to admit into evidence.

–2– Following that pretrial hearing, the trial court ruled that it would allow the extraneous

offense evidence in question and provide limiting instructions to the jury respecting that evidence.

B. Opening Statements

During opening statements, the State asserted in part, “You’re going to hear the carnage

[appellant] caused was not a mistake or an accident or just malpractice . . . and he was aware of all

the injuries that he had caused these patient [sic], and he knew what he was capable of, and he

knew that the next patient he walked into he was going to maim or paralyze or kill.”

Counsel for appellant asserted in part during opening statements as follows:

They want to be at knowing and intentionally, and to do that they’re going to bring you . . . other individuals who have had surgery with him, character evidence, other extraneouses, so that you can push yourself up that hill . . . . .... . . . When we’re talking about surgery and we’re talking about consent, there are risks in surgery. They don’t want you to think that this is just one of those risks that failed, so they bring you more to persuade you it’s not a risk, to persuade you that he knew, that he did it intentionally. They want to keep pushing you with the emotion and draw you away from the facts.

C. Evidence Presented at Trial

1. Complainant’s Surgery by Appellant

At trial, the complainant, Mary Efurd, testified that in 2011, she was seventy-four years

old and had suffered from lower back pain for years. Her pain management doctor referred her to

appellant. Efurd stated appellant recommended surgery, including a fusion of two of her vertebrae

and the insertion of “hardware” in her spinal area. In December 2011, appellant performed back

surgery on Efurd at Baylor Regional Medical Center of Plano (“Baylor”). Efurd testified the

December 2011 surgery “went fine,” but did not relieve her pain. During a follow-up appointment,

appellant recommended another surgery “lower down,” in the “lumbar region” of her spine.

On Wednesday, July 25, 2012, Efurd underwent a second surgery by appellant, this time

at Dallas Medical Center (“DMC”). According to Efurd, when she awoke from that surgery, she

–3– “had excruciating pain” and could not move her feet or legs or turn over in bed. She stated she was

“crying and pleading and begging” for something to control the pain, but nothing she was given

was effective. Efurd testified that at some point, the “administrator of the hospital” came into her

room and told her appellant “wanted to do another surgery to see if he could determine what was

causing all of my pain.” Efurd told the administrator “something is wrong, bad wrong, and if I

have to have a surgery, some type of corrective surgery, please find me another doctor.”

On July 28, 2012, Efurd underwent surgery by Dr. Robert Henderson at DMC. Efurd

testified that surgery “went fine,” but afterward she “still was having lots of pain” and “couldn’t

move.” Efurd was transferred to a rehabilitation facility, where she spent approximately two

months. She eventually regained some muscle function in her legs and feet. However, she was left

with a condition called “drop foot,” which prevents her from being able to raise her left foot and

requires her to wear a brace. Also, she stated she now suffers from incontinence. She testified she

did not have those conditions before her second surgery by appellant.

Henderson testified he is board certified in diagnosis and treatment of the thoracic lumbar

spine and has limited his surgical practice to that specialty since 1988. He stated he is “extremely

familiar with orthopedic and neurosurgical techniques.” According to Henderson, when he

evaluated Efurd after the July 25, 2012 surgery in question, “it was very apparent that all of her

current complaints were what we call iatrogenic, or caused by the surgery and by the surgeon doing

the surgery.” Specifically, Henderson testified in part,

A. . . .[O]ne of my thoughts that I expressed was that [appellant] must have known what he was doing because he did virtually everything wrong. So to be able to do that much wrong, I felt that he must have known at some point in time how to do it right. It was that egregious.

Q. So he knew how to do it, and he did the opposite?

A. It seemed like it. In a facetious way, it seemed like it. It was—you asked how egregious it was. I’m not even—it’s as egregious as you can imagine. At the end

–4– of—well, during the procedure that I went in on Ms. Efurd to repair, I became concerned whether or not he was a physician and was a surgeon.

Q. Why?

A. Because it was such a tragedy inside what had happened. There were holes where they shouldn’t be in the bone, there were holes in the dura leaking cerebral spinal fluid. There was an amputated nerve root, meaning a portion of the nerve root was just gone, and he put a screw in at the S1 level on the right side that was barely on the right side. It actually crossed the midline and went right through the dural sac, the fluid sac that holds the nerves, and one of the implants that he was planting, that was the purpose of the operation to put between the vertebral bodies for stability and fusion, was placed to the left side of the spine. It wasn’t even in the spine. It was just laying in muscle, muscle that he had destroyed, to some extent, to make a tunnel to put the device into and had injured additional nerves.

Henderson stated he asked DMC administrators for the photograph appellant had submitted

with his credentialing process. Then, Henderson faxed a copy of that photograph to Dr. Kevin

Foley in Tennessee, whom appellant had listed as his fellowship director. Henderson asked Foley

whether this was the person he had trained and approved as a surgeon. Foley responded “yes.”

Further, Henderson testified he reported appellant to the Texas Medical Board, which ultimately

suspended appellant’s medical license two years later.

Henderson stated that the “Hippocratic Oath” taken by all doctors upon graduation from

medical school states in part, “I will not be ashamed to say I know not, nor will I fail to call in my

colleagues when the skills of another are needed for a patient’s recovery.” Henderson testified that

in this case, appellant “failed to adhere advice [sic] and interpretation of imaging from other

physicians, other specialists and certainly did not call in help and certainly did not provide

appropriate post operative care.” Also, Henderson testified in part,

Q. . . . Would a—would a trained neurosurgeon know, when they are doing the things to Mary Efurd that [appellant] did, that they’re going to cause her serious bodily injury?

A. Yes. .... –5– Q. Is there any way that a neurosurgeon would not know that he was causing her harm?

A. No.

Further, Henderson stated Efurd signed a consent form prior to her surgery that stated in

part “there is a chance for adverse outcomes.” Then, he testified as follows:

Q. So when Mary Efurd signed that consent, was she consenting to the defendant putting the interbody device into her muscle?

Q. That’s not in the realm of possibility that’s being considered by this consent form that she’s signing?

A. No. Not even remotely, up until now, would anyone ever have thought of that being a possible complication. .... Q. And is there any reason in Mary Efurd’s case for her surgeon to have put the interbody device in her muscle the way he did?

Q. Would you agree with me that, that is a extremely rare complication?

A. Yes.

Q. And by extremely rare, would you agree with me that that doesn’t happen?

A. Yeah, I would say it would be unique, if the definition of unique is that there is only one.

Additionally, Henderson stated that at the time of the surgery in question, appellant was

new to the staff of DMC and had performed only two prior surgeries at that facility. In the first of

those two surgeries, the patient had been discharged to home several days later. The other prior

surgery done by appellant at DMC was a cervical fusion performed on patient Floella Brown on

July 24, 2012, one day before Efurd’s surgery in question. According to Henderson, at the time

appellant began Efurd’s surgery, Brown “had yet to recover consciousness from her surgery the

day before,” “was doing very poorly,” and “appeared to be—have had a severe brain injury.”

–6– Brown “ended up dying either that same Wednesday or Thursday.” Henderson stated that in his

opinion, there was “no excuse for starting or rationalization to starting an elective case, until

[Brown’s] condition upstairs in the ICU had been stabilized.” Further, Henderson stated he is

testifying in this case “for free” because “ever since I saw this what I would term as an atrocity

that happened to Ms. Efurd and I found out about other issues Dr. Duntsch had been involved with,

with other patients in operations that had not gone well at all, I just realized that I had to do

something to stop him from taking care of patients in the future.”

On cross-examination, Henderson testified in part that he gave a deposition in a civil

medical malpractice lawsuit based on Efurd’s surgery in question and wrote a report for Efurd’s

attorney in that case summarizing his observations described above. Henderson stated he was paid

for writing the report for Efurd’s attorney in that case.

Raji Kumar testified she was the CEO of DMC at the time of Efurd’s second surgery by

appellant described above. Kumar stated she received appellant’s name “through somebody in

town” and contacted him because “[w]e were looking for spine surgeons.” She met with appellant

and “was so happy to see that a surgeon was so put together and cared so much about his patients.”

According to Kumar, appellant told her he was leaving Baylor “due to political reasons” and “said

he had one complication out of, like, so many surgeries that he had done.” She testified that on

approximately July 20, 2012, DMC “decided to grant him temporary privileges, as we received a

clean slate from Baylor Medical Center saying that he had no issues, he had a voluntary

resignation.” Appellant scheduled three surgeries for his first week at DMC, including Brown and

Efurd.

According to Kumar, Brown’s July 24, 2012 surgery was not expected to require an

overnight stay, but appellant decided “postoperatively” to admit her. At approximately 6:05 a.m.

on July 25, 2012, Brown “had respiratory arrest” and was “not doing well.” At 6:30 a.m., appellant

–7– was notified that Brown was “unresponsive.” Efurd’s surgery began at 7:44 a.m. on that same date.

Kumar stated that Efurd’s surgery was elective and “was not life-threatening.” Brown was

transferred to another hospital at 1:25 p.m. that day.

Kumar testified that on the day after Efurd’s surgery, “we had some staff that had spoken

to the director of surgery, saying that they had had some concerns intraoperatively with some

technique.” Kumar and the director of surgery went to speak with Efurd and learned appellant had

told Efurd “he needed to take her back to surgery on Monday.” Kumar testified Efurd was having

a hard time moving her foot. Kumar immediately talked to the chief of surgery, Dr. Robert Ippolito,

and told him that “something does not seem to add up.” She asked Ippolito if he “could please get

involved.” According to Kumar, Ippolito “looked at some images” from Efurd’s case and “it

seemed like the screws were in the spinal foramen, which means they were actually inside the—

kind of touching the spinal cord.” Kumar contacted appellant. He told her “everything is fine” and

stated that Efurd needed another surgery because she had a “re-ruptured disc” and a compressed

nerve, which appellant told her “happens about 1/20 cases.” Kumar testified Efurd “did not happen

to be doing fine.” Additionally, Kumar stated that the anesthesiologist from Efurd’s July 25, 2012

surgery wrote in his notes (1) the “interbody cage” device that appellant put in was “likely in the

wrong place”; (2) appellant “did a very poor job” of controlling blood loss, “often ignoring the

pool of blood that was forming and just continuing to stab the patient”; and (3) “[appellant] kept

saying he had to hurry so as to take care of the patient upstairs but really he needed to focus on

this case.”

Kyle Kissenger testified he is a nurse and has participated in at least several hundred spine

surgeries. He participated in Efurd’s July 25, 2012 surgery by appellant at DMC. According to

Kissenger, Efurd’s surgery started at least a half-hour late and appellant was “agitated already”

because of “what was going on upstairs with the other patient.” Kissenger stated that during

–8– Efurd’s surgery, Ippolito came into the operating room and told appellant “in not too kind of

words” that appellant’s request to do an emergency “craniotomy” on Brown had been denied by

DMC and Brown was being transferred to another hospital. According to Kissenger, at that point,

appellant and Ippolito got into a short “argument.” Kissenger stated appellant “was still very

agitated about the whole thing.” Then, appellant “broke scrub” and “left the room” for at least

thirty minutes, which is “very rare.”

Kissenger stated that prior to appellant leaving the operating room, appellant had been

trying to “place a pedicle screw” to attach a device to Efurd’s spine and “[a]ll of us in the room”

were telling him the screw was “not in the right place.” Upon returning to the operating room,

appellant took that screw out and “started going back to trying to get it in the right place.” Further,

Kissenger testified the placement of the device “never looked right” to him during the surgery and

“everyone” told appellant “that’s not right.” Kissenger stated that after surgery, he was told Efurd

was unable to move her leg. He testified that something like that “should never happen” in an

elective spine surgery and he had never had anything like that happen to a patient of his before.

Danny Smith testified he has been a surgical assistant for twenty-two years. On July 25,

2012, he was the spine coordinator at DMC. He had met appellant for the first time on the previous

day and had performed one surgery with him. Smith stated that during Efurd’s surgery, “there was

some question” about the positioning of a screw and “everybody” told appellant “it was lateral of

where it needed to be.” Also, Smith testified that during the surgery, appellant stated he “wanted

to stop [Efurd’s] surgery” at “whatever point we were at,” “close her up,” and “go take care of the

patient upstairs.” According to Smith, the anesthesiologist then told appellant “he needed to focus

on this patient.”

On cross-examination, Smith testified that when Ippolito came into the operating room,

appellant and Ippolito had a “tense conversation,” during which appellant continued actively

–9– working on Efurd. Additionally, Smith stated (1) appellant is “a smart guy,” but “his technique

may not be the best,” and (2) “whenever [appellant] tried to help a patient,” “[appellant] believed

that he could.”

On redirect examination, Smith testified in part as follows:

Q. And if you are in the middle of a procedure, and you find yourself distracted, what should you do?

A. You can tell ’em “we’ll talk later.” . . . You don’t have to have a conversation right there, over an open patient. That was the choice made by the surgeon.

Q. Because, if you’re going to be distracted, you may do something wrong.

A. Yes, ma’am.

Q. And, you know that.

Matt Padron testified that on July 25, 2012, he was a “device representative” for Lanx

Spine and was present at Efurd’s surgery. He stated his role was to ensure that the surgeon had the

proper implants and hardware during surgery. According to Padron, the surgery was “[c]haos, from

the beginning.” He stated it was his first case with appellant and “the OR staff didn’t know what

we were doing, as far as how to set up the room, getting the sets [of hardware] there.” After the

operation began, “somebody came in talking about doing a cranial case” and appellant “broke

scrub” and “left to talk to somebody.” Padron stated that before appellant left the room, he directed

the “OR techs” to “search around” in Efurd’s body for a pedicle screw that the x-ray images

showed was misplaced. According to Padron, “that’s kind of when we knew things were going

downhill.”

Padron stated that after appellant returned, he seemed to be “growing in agitation.” Further,

according to Padron, “some time around the time we were putting the cage in,” a man came into

the room and appellant began arguing with him. Padron testified the x-ray imaging showed the

–10– interbody cage was improperly placed in “soft tissue” rather than bone and Padron told appellant

that. According to Padron, appellant responded that he had “direct visualization” that it was in

bone. Padron stated it was “very clear in the surgery” that “something was wrong” with the

placement of the cage and appellant was told that “by multiple people.”

Anam Hussain testified he is a surgical technician and participated in Efurd’s July 25, 2012

surgery. He stated that during the surgery, appellant received a call about “a patient upstairs” who

had “some sort of complication.” According to Hussain, “[a]fter that, [appellant] kind of lost a

little bit of focus,” “seemed distracted,” and “was more concerned about . . . what was going on

with the other patient.” Additionally, Hussain stated that during the surgery, one of the pedicle

screws was misplaced into “soft tissue” rather than bone and “there was a lot of bleeding.”

Elaine Furey testified she has been an x-ray technician for twenty years. She stated she was

present at Efurd’s July 25, 2012 surgery, which “didn’t go smoothly.” During that surgery, Furey

provided x-ray images using fluoroscopy, which allows for continuous viewing of a live x-ray

image on a monitor during surgery. She stated that based on those images, she told appellant, “I

don’t think the cage is in the right area.” Also, Furey stated that “one of the reps said it wasn’t in

the right place.” According to Furey, appellant responded, “I’ve done a [expletive] visual. I can

see where it is. You don’t have to tell me.” She stated appellant was acting “very erratic” and

“angry.” Further, she testified she has done at least 100 spine surgeries and has never “seen a cage

in between the vertebrae like that.”

Dr. Martin Lazar testified he is board certified in neurological surgery and has been a

practicing neurosurgeon for forty years. He has performed “many thousands” of surgeries. At the

request of two plaintiffs’ attorneys, he reviewed the cases of several of appellant’s patients for

purposes of civil litigation, for which he was paid. He stated he was not paid for his testimony in

this case.

–11– Lazar testified that appellant’s July 25, 2012 surgery on Efurd went “[p]oorly, to say the

least” and resulted in “a catastrophic surgical misadventure.” According to Lazar, (1) a prosthetic

device was misplaced, resulting in damage to muscle tissue, and (2) a surgical tool amputated a

major nerve root and a screw damaged other nerve roots, causing permanent partial leg paralysis

and other impairment in the lower extremities. Further, Lazar testified in part,

Q. Have you ever seen anything like what happened in Ms. Efurd’s surgery?

A. Never. .... Q. How egregious would you say it is?

A. It’s beyond egregious. It’s beyond anybody’s imagination that this could happen.

Q. Is this a normal risk of surgery?

Q. Is this something Ms. Efurd would have consented to, when she signed all those forms?

A. Never. .... Q. Is there any way that a neurosurgeon doesn’t know that he’s going to cause Ms. Efurd serious bodily injury by doing these things?

A. It’s inconceivable. How can you not know that you’re going to cause the disaster? Intraoperative x-rays were taken, and you can see on the intraoperative x- ray where things are.

Q. And did you see those intraoperative x-rays?

Q. Is it pretty clear where things are?

Ippolito testified appellant’s surgical privileges at DMC were revoked on July 27, 2012,

based on “the two patients that had been operated at our facility,” Brown and Efurd. He stated

–12– those were “[v]ery serious, negative outcomes” and he has never “seen anything like that” in his

forty-one years as a surgeon.

Dr. Carlos Bagley testified as an expert for the defense. He stated he is a neurosurgeon and

has performed approximately 4,300 spine surgeries. According to Bagley, appellant’s errors were

“known complications” that “a poorly-trained, inexperienced surgeon could do” and have “all

occurred before elsewhere and been reported in the literature.” Additionally, Bagley testified

(1) “if a doctor’s desire is to hurt a patient, he could do so in a more less obvious way than

performing bad surgeries”; (2) if a doctor “tries to fix a surgery that he’s previously done,” that

“can be” a sign that the doctor is “concerned about his patients”; and (3) if a particular surgeon is

“inexperienced and poorly trained,” a “chaotic operating room” is “an additional barrier to

providing appropriate care.”

2. Extraneous Acts of Appellant

Additionally, over objection by appellant, the State presented the following evidence

respecting extraneous acts of appellant.1 Throughout the trial, the jury was repeatedly instructed

that such evidence was to be considered “only . . . in determining the intent, knowledge, motive,

absence of mistake or lack of action of the defendant, if any, alleged in the indictment in this case

and for no other purpose.”

a. Robert Passmore

Robert Passmore testified he is forty-one years old. In late 2011, he was experiencing back

pain and was referred to appellant, who recommended surgery. On December 30, 2011, appellant

performed back surgery on Passmore at Baylor. That surgery included an “interbody fusion” and

placement of a spacing device between two of Passmore’s vertebrae. When Passmore awoke from

1 Also, during the testimony of the witnesses described below, related medical records, reports, and other exhibits were admitted into evidence over appellant’s objection.

–13– the surgery, he “hurt extremely.” On January 6, 2012, he underwent a second surgery by appellant

that was not “part of the plan.” The purpose of the second surgery was to reduce pressure on his

spine and remove “pieces of disc” from the area that was originally operated on. Passmore stated

that after the second surgery, he was not better than before the surgeries and he stopped seeing

appellant. He still experiences back pain. Also, he stated he now has a limp, nerve pain, numbness,

poor balance, “bowel problems,” incontinence, and erectile dysfunction that he did not have prior

to his surgeries. On cross-examination, Passmore testified in part that prior to his surgeries by

appellant, he signed a consent form that stated “the practice of medicine in surgery is not an exact

science.”

Passmore’s mother, Janet Elaine Passmore, testified she accompanied Passmore to

appellant’s office several days after Passmore’s first surgery and was present when Passmore

described to appellant that he was experiencing pain in areas of his back that had not previously

hurt. Janet stated appellant told Passmore, “You’re not giving the medication time to do its work.”

According to Janet, as soon as she and Passmore returned home from that office visit, Passmore

received a phone call from appellant in which appellant stated there was “something wrong” and

“it has to be taken care of immediately.” Passmore then underwent a second surgery by appellant,

but his condition did not improve.

Dr. Mark Hoyle testified he is a vascular surgeon and his practice consists mainly of “spinal

exposures.” He has been practicing in that field since 1994. On December 30, 2011, he was

scheduled to “do the opening” for appellant’s surgery on Passmore. Hoyle had not met appellant

before that date. Hoyle testified that in the doctors’ lounge before the surgery, appellant stated he

is “the best-trained surgeon there is” and seemed “pretty over-confident or narcissistic.” Hoyle

made the initial incision and then called appellant into the operating room. According to Hoyle,

appellant’s surgical technique was “sloppy” and resulted in “a lot of bleeding.” At one point, Hoyle

–14– physically stopped the surgery and stated to appellant, “You can’t see what you’re doing, and

you’re right on top of the spinal cord and you’re gonna hurt this guy, if you don’t let me get control

of the bleeding.” According to Hoyle, appellant did not “seem appropriately concerned about that.”

Hoyle “got a little upset” and told appellant “he was incredibly dangerous” and Hoyle “was never

working with him again” because “[h]e was going to hurt somebody.” Hoyle stated he had “never

done that with anybody before.” Additionally, Hoyle was concerned about the placement of the

“cage” device being inserted by appellant. Specifically, according to Hoyle,

I told [appellant], “It’s too far to my side. It’s too far to the left.” I said, “You need to get an x-ray because, I’m telling you, you’re too far to my side.” He said, “No, I think it’s fine.” I said, “Let’s get an x-ray. I’m telling you, you’re too far over to my side.” He says, “No, I’m fine.” He proceeded to put the four screws in. . . . Once we got an x-ray, lo and behold, it was too far to my side, just like I said. He said, “You were right. I should’ve got an x-ray.”

Hoyle had three other surgeries scheduled with appellant, but cancelled them at that point.

b. Barry Morguloff

Barry Morguloff testified that in 2011 he had a “history of back issues” and was referred

to appellant. On January 11, 2012, appellant performed back surgery on Morguloff at Baylor. The

surgery included a fusion and the installation of “titanium hardware.” Prior to the surgery,

Morguloff had “complete mobility,” but was experiencing back pain in connection with certain

activities. Morguloff signed a consent form and “knew basically there could be complications.”

Morguloff stated that as he regained consciousness after surgery, he had numbness and “an

incredible amount of pain” in his left leg, which worsened over the next few days. He testified he

told appellant about that pain and numbness. Appellant told him it would go away over time, but

it actually became worse and Morguloff lost the ability to move his left foot properly. Morguloff

stated he eventually sought the opinion of another neurosurgeon, Dr. Michael Desaloms, who told

him “the hardware was loose” and bone fragments had “lodged into” the nerve canal and were

“impinging the nerve.” Morguloff underwent a subsequent surgery by Desaloms and his condition –15– improved slightly, but much of the nerve damage was permanent. He still experiences pain in his

leg and cannot walk without a brace and cane.

Dr. Randall Kirby testified he has been a vascular surgeon since 1996 and his area of

expertise is “spinal access.” He stated he was present during Morguloff’s January 11, 2012 surgery

because the general surgeon hired by appellant to assist in the operating room asked Kirby to

“help” with the case. According to Kirby, although the type of surgery Morguloff was to undergo

“is about the easiest operation a spine surgeon performs,” appellant “struggled mightily” and “was

functioning at the level of a first- or second-year neurosurgery resident.”

c. Jerry Summers

Jerry Summers testified by video deposition that he is forty-six years old and has known

appellant since they attended junior high school together in Tennessee. In approximately 2011,

Summers moved to Dallas with appellant to assist in “opening up a new clinic.” At that time,

Summers was experiencing “sharp pain” and some numbness in his arms and hands. Appellant

offered to perform a “disc fusion surgery” on Summers’s spine. Appellant told Summers it was “a

very dangerous surgery” and went over “the risks” with Summers several times.

Appellant performed surgery on Summers at Baylor on February 2, 2012. When Summers

awoke from the surgery, he couldn’t move his arms or legs and “freaked out.” He did not regain

movement in his arms and legs and now has a permanent condition in his limbs called “incomplete

paralysis.” He can feel “touching” and pain, but his arms and legs are otherwise paralyzed. He is

confined to a wheelchair and requires a catheter. Also, as a result of his condition, he is prone to

lung infections and battles bedsores, digestive issues, and depression.

Dr. Joy Gathe-Ghermay testified she has been practicing as an anesthesiologist for

approximately twenty years. She was the anesthesiologist during Summers’s surgery described

above. Gathe-Ghermay stated that when the surgery began, she positioned herself “at the head of

–16– the bed,” which is typical. However, during the surgery, she noticed that there “seemed to be a lot

of blood being suctioned from the patient” and she then moved to the foot of the operating table

so she could “better see the surgeon and the suctioning equipment.” She stated that the typical

amount of blood loss for that type of surgery is “150 to 200 cc’s.” When the blood loss reached

800 cc, Gathe-Ghermay asked appellant, “Is everything okay?” She stated that his response was

“yes.” The final amount of blood loss during the surgery was 1,900 cc.

Gathe-Ghermay testified that after Summers was moved to the recovery room, a

neurological evaluation showed “weakness in his arms and legs.” She “started to have concerns

about his condition” and asked the nurses to contact appellant. She had another surgery scheduled

with appellant later that day, but arranged for a substitute to handle that surgery because she was

concerned Summers “could potentially have respiratory compromise” and require further

treatment by her. Gathe-Ghermay stated she has been assisting with spine surgeries for seventeen

years and has never seen anyone become a quadriplegic from the type of surgery Summers had.

Laura Strasser testified she has been a nurse for more than thirty years. She assisted as a

surgical nurse in Summers’s surgery described above. According to Strasser, during the surgery,

the anesthesiologist “was concerned about the blood loss that was occurring” and asked appellant

several times whether everything was okay. After the surgery, Strasser accompanied Summers to

the recovery room. She stated the recovery room nurses became concerned because Summers

could not move his arms or legs and “[t]he urine catheter bag was full of—bright cherry red” rather

than “normal yellow.” Strasser stated she was “numb and in shock” because she had “never had

an outcome like that before.”

Marcia Adlam testified she has been an operating room nurse since 1993. At approximately

11 p.m. on February 2, 2012, she was on call and was asked to assist in an emergency “bring back”

surgery on a patient who had undergone surgery earlier that day. The patient was Summers, who

–17– had paralysis and was unable to move his arms and legs. The surgeon was appellant. Adlam stated

appellant was calm, but it “seemed he was hurrying through the operation.” She stated she saw

appellant remove material from Summers that appeared to be muscle tissue mixed with “surgical

foam,” which is a hemostatic product that “looks like a sponge” and is used to control bleeding.

Debra Gunaca testified she is a “circular” at Baylor and “runs[s] the operating room” during

surgeries. She has been “working in surgery” for approximately twenty years. In 2012, she was

present during a “revision surgery” on Summers that occurred subsequent to Summers’s two

surgeries by appellant described above. The surgeon was Dr. O’Brien. Gunaca testified that when

O’Brien “got down to the area in question that he was going to stabilize,” he stated, “Holy

[expletive]. What the [expletive] did that guy do?” Gunaca stated the comment surprised her

because she had operated with O’Brien numerous times before and he was “not normally like that.”

As stated above, Dr. Martin Lazar testified he reviewed certain spinal cases, including

Summers’s case, at the request of several plaintiffs’ attorneys. Lazar stated appellant correctly

diagnosed Summers with a severe spinal cord compression. However, according to Lazar, during

Summers’s surgery there was “massive” blood loss due to a damaged artery. Specifically, Lazar

testified appellant “took out an excessive amount of vertebral bone” and “exposed the vertebral

artery to injury.” He stated that injury to a vertebral artery is a “known complication” of spine

surgery, but is “exceptionally rare.” Further, Lazar testified (1) he believed Summers’s

quadriplegia was caused by pressure on the spinal cord and nerve root that resulted when appellant

“pack[ed] excessive amounts of Gelfoam or some other thrombogenic or hemostatic agent into the

spinal canal” in an attempt to reduce the massive bleeding and (2) that did not constitute

“reasonable medical care.” Additionally, Lazar stated (1) in the second surgery on Summers,

appellant attempted to relieve pressure on the back of the spinal cord, but “the pressure was really

–18– in the front,” and (2) by removing bone in Summers’s back during the second surgery, appellant

caused additional “instability” issues respecting Summers’s spine and neck.

Dr. Joseph Sample testified he is currently retired after practicing medicine for more than

forty years. At the time of the events described above, he was chairman of the physician peer

review committee at Baylor, which is made up of six to eight physicians. Sample stated that “pretty

much right after [Summers’s] surgery,” he received a report from an ICU nurse that Summers said

he and his surgeon, appellant, had “consumed a combination of cocaine and heroin.” The

committee referred appellant to the hospital’s physician health and wellness program for

evaluation for drug abuse and asked appellant “to refrain from scheduling any further surgical

cases for the next two weeks.” According to Sample, “[t]he Committee’s feeling was that the

patient had an unexpected outcome from the surgery; that the surgeon failed to recognize the

complications; that the surgeon may have performed an inadequate second surgical procedure.”

Also, the committee was concerned about “an unacceptable relationship that developed between

the patient, the patient’s family and the operating surgeon.” Sample testified appellant’s drug test

“came back negative for drugs.” However, appellant was asked to relinquish care of Summers to

another physician, which Sample testified happens only “rarely.” Sample testified that

approximately three weeks later, appellant “requested a return to surgical privileges.” Although an

“external review” of Summers’s surgery was still pending, appellant’s request was granted.

According to Sample, appellant was asked by the committee “to not schedule anything but minor

surgical procedures” and appellant agreed to that request. Sample testified that the “very next”

surgery appellant performed was on a patient named Kellie Martin.

d. Kellie Martin

Don Martin testified that on March 12, 2012, appellant operated on his wife, Kellie Martin

(“Martin”), who was fifty-five years old at that time. The surgery took place at Baylor. After

–19– surgery, appellant told Don Martin there were “some complications” and his wife was being taken

to the intensive care unit, but she would “be okay.” Several hours later, appellant and two other

doctors came out to the waiting area and told Don Martin that his wife had passed away.

Julie Hogg testified she is an operating room nurse at Baylor and has been “doing surgery”

for approximately twenty years. She was present at Martin’s surgery described above. She stated

that near the end of the surgery, the anesthesiologist was concerned because “the patient’s blood

pressure was going down and there wasn’t any way to get it back up.” At that point, appellant left

the room to go talk to the family. While appellant was out of the room, Hogg and others “flipped”

Martin over onto her back pursuant to a request from the anesthesiologist. According to Hogg,

Martin “was starting to wake up and kind of writhing in pain and reaching for her legs.” Hogg

testified Martin’s legs were “very mottled” and had “white and red splotchy spots all over,” which

“usually is an indication of lack of blood flow, oxygenation, into the extremities.” Hogg pointed

this out to the anesthesiologist, who stated, “Yes, something’s wrong. I cannot get her blood

pressure up.” When appellant returned to the room, he was “made aware of the patient’s

condition.” Also, Hogg told him about the patient’s mottled legs. Appellant “acted very

nonchalant” and stated, “She’s fine. She’s fine.” Hogg and another nurse rushed to get Martin’s

bed to the intensive care unit and “handed off care to the ICU team.”

James Cooper testified he is a radiology technician and participated in Martin’s surgery

described above. Cooper stated that during the surgery, the anesthesiologist had “concerns about

the blood pressure” and “asked also if there was any—if the physician had seen any additional

blood or if they were, you know, bleeding additionally.” According to Cooper, appellant’s

response was “along the lines of, ‘Well, we got it. We see a little bit. We got it.’” Cooper stated

that appellant’s “PA,” Kimberly Morgan, was also present during that surgery. According to

Cooper, the relationship between appellant and Morgan was “flirtatious.” Further, Cooper testified,

–20– “[A]fter the concern about the blood pressures, [Morgan] had mentioned that, ‘Oh, you wouldn’t

mess up.’ [Appellant] said, ‘No, that’s right. It’s because I’m god.’”

Udina Doucet testified she is an operating room nurse and was present during Martin’s

surgery. Doucet stated that during the surgery, the anesthesiologist became “very concerned” about

Martin’s “vitals” and told appellant, “You need to close her. We need to get her off this bed.”

Doucet testified appellant responded, “She’s fine. Everything is fine.”

Dr. Jeff Taylor testified he is a pulmonary critical care physician and has worked at Baylor

for twelve years. He stated he treated Martin in the Baylor ICU following the surgery described

above. According to Taylor, when Martin arrived in the ICU, her legs were “mottled” and she had

no movement in one leg. Taylor testified her symptoms were suggestive of “inadequate

circulation.” He began a rapid transfusion of blood, but her condition deteriorated. Taylor

determined Martin was experiencing internal bleeding, but he could not determine where the blood

loss was originating. He and the anesthesiologist spent approximately two hours trying to

resuscitate Martin, but were not successful. Taylor testified that in his twelve years at Baylor ICU,

he has never “seen someone who was getting an elected spine surgery come into the ICU in this

condition.”

William Rohr testified he is the medical examiner for Collin County, Texas. His job

“involves doing autopsies and examinations of deceased individuals, to determine cause and

manner of death.” In March 2012, he conducted an autopsy on Martin. He testified appellant had

communicated to him that “the surgery went well,” with a “normal” amount of external blood loss.

Rohr stated he “opened up the abdomen” and it “was full of blood,” which “was obviously going

to be the cause of death and somehow related to the cause of death.” Rohr was unable to locate or

determine damage to a particular blood vessel. He stated he believed “the blood loss did start up

during the surgery” and “this was a result of something that didn’t go right during the procedure.”

–21– Rohr ruled Martin’s death to be accidental and “most likely the result of a therapeutic

misadventure.” According to Rohr, appellant requested and was sent a copy of the autopsy report.

Lazar testified appellant properly diagnosed Martin with a herniated disc. He stated the

planned surgery is “the most common spine operation done,” has a mortality rate of less than one

in 10,000, and was a reasonable treatment for Martin’s symptoms. According to Lazar, Martin

died from a “retroperitoneal hemorrhage.” Specifically, Lazar testified a surgical instrument called

a disc rongeur “went through the ligament in the front” and lacerated an “iliac vessel,” which

resulted in internal bleeding. Further, Lazar stated that a trained neurosurgeon would know (1) this

is “a rare but possible complication of this type of surgery” that needs to be addressed immediately

during the surgery and (2) the most common cause of blood pressure dropping during surgery is

hemorrhage.

Sample testified that on the morning after Martin’s death, her case came to the attention of

the Baylor physician peer review committee. Sample elected to take the case directly to the

Medical Staff Executive Committee in order to accelerate the review process. The executive

committee determined Martin had bled to death from a “penetrating wound.” Further, the

committee (1) determined appellant was at fault as to both Martin’s death and Summers’s

condition and (2) recommended that the incidents be reported to the Texas Medical Board. Sample

testified appellant was informed of the committee’s findings and Sample personally told appellant

that he “had grave concerns about [appellant’s] operative technique and judgment.” Appellant

again took a “leave of absence” and was asked to submit to drug testing. Appellant’s initial drug

test results came back as “diluted,” so he was asked to repeat the test several days later. His second

drug test came back negative. Approximately one month after Martin’s death, appellant requested

reinstatement of his surgical privileges at Baylor, but that request was denied. Appellant was told

–22– he would not be allowed to operate at Baylor again. According to Sample, appellant resigned his

privileges at Baylor on April 20, 2012. Further, Sample testified as follows:

Q. . . . Have you ever seen anything like these two cases before, in your career?

Q. And how long have you been doing this?

A. Forty-five years.

Q. And what makes them so different?

A. A failure to recognize the consequences of the surgery. Accidents happen in surgery. Every surgical procedure has got a mortality rate associated with it. But there were two events too close together that were very disturbing.

Q. And you’ve never seen anything like that before?

On cross-examination, Sample testified (1) appellant voluntarily resigned from Baylor;

(2) Baylor “did not take his privileges away”; and (3) upon his resignation, appellant received “a

letter from Baylor that did not indicate he had any problems.” On redirect examination, Sample

testified that in response to a subsequent request by DMC for information respecting appellant,

Baylor sent DMC an August 31, 2012 letter in which it stated in part that the Baylor executive

committee determined that the “standard of care” was not met in the cases of Summers and Martin.

e. Floella Brown

Joe Brown testified that his wife, Floella Brown (“Brown”), underwent surgery by

appellant for neck pain at DMC on July 24, 2012, and passed away as a result of that surgery. Joe

Brown stated that when he arrived at the hospital to visit his wife at approximately 5:30 a.m. on

July 25, 2012, she was “convulsing in the bed.” The staff on duty called appellant, who arrived

approximately one hour later. Joe Brown testified appellant “looked at [Brown] and he said, ‘I’ve

got to drill a hole in her head and relieve the pressure on the brain.’” However, according to Joe

–23– Brown, “the hospital did not allow that to happen, because he was not qualified to do that.” Several

hours later, Brown was transferred to another hospital. The staff at that facility told Joe Brown his

wife was “brain dead.” She was removed from life support a short time later.

Lazar testified he reviewed Brown’s case. He stated that based on Brown’s symptoms,

appellant was operating “at the completely wrong level” of her spine. Also, according to Lazar,

Brown “lost 20 percent of her blood volume” during surgery, which is “an enormous blood loss.”

Specifically, he stated that although a normal blood loss for that type of surgery is 25 cc to 200 cc,

Brown lost approximately “1,200, at least.” Additionally, Lazar testified (1) “we know in this case

that [appellant] took too much bone off again and exposed the vertebral artery”; (2) either “the

artery itself was lacerated” or “the bleeding came from the periarterial venous plexus,” or both; (3)

then, “[s]omething [appellant] did obstructed the vertebral artery”; (4) “[p]robably, because it was

bleeding, he packed it”; (5) that “would stop the blood from coming out into the wound,” but “it

could also stop the vessel from working so that the blood wasn’t going to the brain”; (6) “[i]f you

have an occluded vessel and you have decreased oxygen-carrying capacity and that vessel is the

dominant vessel going to the back of your brain, you’re gonna have a stroke”; and (7) Brown

experienced obstruction to her dominant vertebral artery, which resulted in a stroke, brain swelling,

and, ultimately, acute obstructive hydrocephalus, which caused her death.

Further, Lazar stated in part,

A. No, this is not a normal risk.

Q. Is it a risk at all?

A. It’s a risk, but it has to be so far outside of statistical probability that one would not mention it. .... Q. So, it’s pretty rare?

A. It’s very rare. –24– .... Q. If you have all of those outcomes [described above], would you go into another surgery?

A. Never.

Q. Would you know that you are going to hurt that next patient?

A. How can you not?

Bagley testified in part on direct examination,

Q. Do you think Dr. Duntsch was poorly-trained, based on your review of these surgeries?

A. Well, I would say—again, I don’t know what the denominator is, how many cases this was out of. But, for the number of catastrophic injuries that occurred over a very short period of time, it would be hard-pressed to imagine that those qualities didn’t show themselves during training.

Further, Bagley testified on cross-examination that the six surgeries described above

“would be considered low risk surgeries.” Additionally, Bagley stated as follows:

Q. And [appellant] had a high rate of patients coming back after their surgeries complaining of new neurological problems.

A. Again, the rate, I can’t say because I only reviewed specific records. But that was a lot of patients, for the time. But I don’t know what the denominator is. I don’t know how many patients it’s out of. .... Q. . . . [Y]ou said earlier that you have heard of all these complications [described above]; that they’re known complications, but they’re extremely rare.

Q. These things don’t just happen all the time, on a regular basis.

Q. So it’s highly unusual that a surgeon would have all of these extremely-rare complications in a very short period of time. Wouldn’t you agree?

A. Extremely. Yes, ma’am.

Q. And even a surgeon who wants to say they’re poorly trained, when they—when a patient is complaining of new pain over and over and over again, multiple patients, you start to know that you’re hurting people. –25– A. I would hope so. Yes, ma’am.

f. Barbara Jean Ellison

Barbara Jean Ellison testified she has been an office manager and “medical office biller”

for twenty-five years. She worked for appellant from December 2011 to July 2012. She stated

appellant “lost privileges” from approximately March 2012 until July 2012 and did not perform

surgeries during that time. Ellison overheard appellant telling patients “he was going to be the

medical director of a billion-dollar facility,” “he was the best that ever came out of Tennessee’s

program,” and “[n]obody else could do what he could do, as well as he could do it.” In Ellison’s

opinion, those statements were lies. She stated appellant (1) seemed depressed, (2) had only a few

patients, (3) was rejected by at least one hospital to which he applied for privileges, and (4) would

sometimes “just disappear” with “no communication from him for days at a time.” Further, Ellison

testified it seemed to her that “[appellant] had an unusual number of bad outcomes” as compared

to the other doctors she had worked for.

Ellison testified that after Brown’s surgery, appellant asked her to “change the record”

respecting “the date that [Brown] was told to be off of blood thinners.” Specifically, Ellison stated

appellant wanted the office records to reflect that Brown had been told to stay off of blood thinners

for fourteen days before her surgery, when Brown had actually been off of blood thinners for only

four days before her surgery. Ellison testified she did not change the paperwork as requested by

appellant, but later saw “an addendum there in [appellant’s] handwriting.”

g. Kimberly Morgan

Morgan testified via Skype that from August 2011 until approximately May 2012, she was

employed as a nurse practitioner, surgical assistant, and office administrator in appellant’s office.

She stated she participated in ten to twenty neurosurgeries with appellant during that time.

–26– According to Morgan, appellant was “very caring and kind” when she began working for him, but

his demeanor later changed and he became “angry-appearing” and “confrontational.”

Additionally, Morgan stated she had an intimate personal relationship with appellant

during a portion of the time period that she worked for him. They often communicated through

emails. Morgan testified she received a December 9, 2011 email from appellant titled “Occam’s

Razor.” That email was admitted into evidence as State’s Exhibit 160 and published to the jury. 2

Morgan stated (1) she has “no clue” what appellant meant in his statements in that email and (2) the

email did not cause her to “think [appellant] wanted to go and kill people.”

D. Closing Argument and Jury Charge

During closing argument, the prosecution stated in part,

Well, that email, number one, tells you everything you need to know about what’s in [appellant’s] head. . . . .... But, he’s god. He’s Einstein. He’s the antichrist. Those are his words, right? . . . .... So now, we’ve got all of these people. All of these people that he hurt, over and over and over again. How many does it take . . . before you know what you’re doing is hurting people, causing that serious bodily injury? How many lives does it take? ....

2 That email stated in part as follows: Unfortunately, you cannot understand that I really am building an empire, and I am so far outside the box that the earth is small and the sun is bright. . . . .... Anyone close to me thinks that I’m likely something between god, einstein, and the antichrist. Because how can I do anything I want and cross any discipline boundary like its [sic] a playground and never ever lose. But unfortunately, despite the fact that I’m winning it is not happening fast enough. What is the problem Kim? It is simply that everyone else is human and there is nothing I can do about it. And so I pick and choose my humans and try to help them. . . . .... You, my child, are the only one between me and the other side. I am ready to leave the love and kindness and goodness and patience that I mix with everything else that I am and become a cold blooded killer. The sad fact is that I would go faster do better and catch more respect and honor by [expletive] every one in the brain, emotionally and mentally control them in a manner that borders on abuse, taking no prisoners, and sending everyone in my way, and especially that [expletive] with me to hell for the simple fact that they thought they could much less tried. [sic] .... What I am being is what I am, one of a kind, a mother [expletive] stone cold killer that can buy or own or steal or ruin or build whatever he wants.

–27– You have to go in now and tell him “no more.” . . . His own words, he was being what he was: a one-of-a-kind, mother-[expletive], stone-cold killer. You say “no.” . . . .... . . . The Judge allowed you to hear about these other patients, because it goes to knowledge. That is why you even got those. Normally, you don’t get to hear about those other sort of things. It’s not to garner sympathy. It is that [sic] you can know everything that the Defendant knew. .... So, let’s talk about knowing. Absolutely. I want you to find that he intentionally, knowingly, did this. We have filled you a room full of knowledge. Knowledge of all the pain that the patients were suffering, as they came out of the surgeries, that he was causing. . . . Knowledge—every witness who came in here told you and gave you a different piece of everything that the Defendant knew, before he went into [Efurd’s] surgery and even while he’s in there.

Counsel for appellant argued in part,

Dr. Bagley sat up here . . . and told you, “Yes, not one of these surgeries was reasonable medical care.” So there’s no defense to reasonable medical care. “Yes, they were suboptimal surgeries. They were not good surgeries. They were bad outcomes.” Okay. Everybody agrees that they were bad outcomes. .... They want to make him a stone-cold killer and monster, because that’s what he said in an email, to a girlfriend, who thought he was rambling, just like he always does. But you’ve got to stand there and think, is that, does that, in and of itself, rise to the level of . . . intentional and knowingly? .... [D]o you need all this [extraneous evidence]? Because, see, the fear the State has is that if you look at the situation by itself, you might accidentally—think it’s an accident. Think it’s all the distractions that caused it. So they want to make sure you had all this [extraneous evidence] to help you with intent. Do you know what? You can have all this, because he’s got that in his head. And maybe it helps you put yourself where he is. But maybe where he is at that point in time is not what they want to say. Because, . . . they started this whole thing out in opening statements they were going to prove to you intentionally and knowingly . . . . Ladies and Gentlemen, just because that’s what you think he deserves doesn’t mean necessarily that’s what the evidence fits. .... The problem was, he . . . was not a skilled surgeon. He was, according to his peers, at the level of a first-year resident. But he was on his own, and doing the best he could. . . . .... [Appellant] never could get his hands to do what he knew he was supposed to do, and it caused injury. I think he knows that that caused the injury. . . . But, was he going in hoping that he would do it again; that he would cause injury again? No. . . . I think his hope

–28– was, this time, he would learn from what he did before and it would be better. And it never did.

The charge of the court instructed the jury that “if there is any evidence before you in this

case regarding the defendant’s having engaged in conduct or acts other than the offense alleged

against him in the indictment in this case,” “you may only consider the same in determining the

intent or knowledge of the defendant, if any, or the absence of mistake or accident, if any, in

connection with the offense alleged against the defendant in the indictment, and for no other

purpose.” Following the verdict and assessment of punishment described above, this appeal was

timely filed.

II. APPELLANT’S ISSUES

A. Standard of Review

We review the trial court’s decision to admit or exclude evidence for an abuse of discretion.

Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). The trial court abuses its discretion

when the decision falls outside the zone of reasonable disagreement. Id. at 83. We uphold a trial

court’s evidentiary ruling if it was correct on any theory of law applicable to the case. De La Paz

v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

When addressing a challenge to the sufficiency of the evidence, we consider whether, after

viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. Zuniga v. State, 551

S.W.3d 729, 732 (Tex. Crim. App. 2018) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));

see also Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016) (review of “all of the

evidence” includes evidence that was properly and improperly admitted). “Appellate review ‘does

not intrude on the jury’s role to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.’” Johnson v. State, No. PD-0197-

17, 2018 WL 5810857, at *1 (Tex. Crim. App. Nov. 7, 2018) (quoting Musacchio v. United States, –29– 136 S. Ct. 709, 715 (2016)); accord Zuniga, 551 S.W.3d at 732; see also Hooper v. State, 214

S.W.3d 9, 16 (Tex. Crim. App. 2007) (“inference” is conclusion reached by considering other facts

and deducing logical consequence from them). “We may not re-weigh the evidence or substitute

our judgment for that of the fact-finder.” Zuniga, 551 S.W.3d at 732. Although juries may not

speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable

inferences from the facts so long as each inference is supported by the evidence presented at trial.

Id. at 733. We presume that the fact-finder resolved any conflicting inferences from the evidence

in favor of the verdict, and we defer to that resolution. Id.; Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007). In analyzing the sufficiency of the evidence, we determine whether the

necessary inferences are reasonable based upon the combined and cumulative force of all the

evidence when viewed in the light most favorable to the verdict. Clayton, 235 S.W.3d at 778.

Further, “[d]irect evidence and circumstantial evidence are equally probative, and circumstantial

evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the

incriminating circumstances is sufficient to support the conviction.” Zuniga, 551 S.W.3d at 733.

B. Applicable Law

Texas Penal Code section 22.04 provides in part that a person commits the offense of injury

to an elderly individual if he intentionally or knowingly causes serious bodily injury to a person

sixty-five years of age or older. TEX. PENAL CODE ANN. § 22.04(a). A person acts “knowingly”

with respect to a result of his conduct when he is aware that his conduct is reasonably certain to

cause the result. Id. § 6.03(b). “Serious bodily injury” means “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.” Id. § 1.07(a)(46).

Injury to an elderly individual is a “result of conduct” offense, which means the culpable

mental state relates to the result of the conduct, i.e., the causing of the injury. Kelly v. State, 748

–30– S.W.2d 236, 239 (Tex. Crim. App. 1988); Perkins v. State, No. 05-17-00288-CR, 2018 WL

2252420, at *3 (Tex. App.—Dallas May 17, 2018, pet. ref’d) (mem. op., not designated for

publication). Proof of mental state will almost always depend upon circumstantial evidence.

Lincoln v. State, 307 S.W.3d 921, 924 (Tex. App.—Dallas 2010, no pet.). Knowledge may be

inferred from the person’s acts, words, and conduct. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim.

App. 2002); Martinez v. State, 833 S.W.2d 188, 196 (Tex. App.—Dallas 1992, pet. ref’d).

Evidence is relevant if it has any tendency to make a fact more or less probable than it

would be without the evidence and the fact is of consequence in determining the action. TEX. R.

EVID. 401. “Evidence need not by itself prove or disprove a particular fact to be relevant; it is

sufficient if the evidence provides a small nudge toward proving or disproving some fact of

consequence.” Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004).

Texas Rule of Evidence 403 allows for the exclusion of otherwise relevant evidence when

its probative value “is substantially outweighed by a danger of . . . unfair prejudice, confusing the

issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” TEX. R.

EVID. 403; Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Rule 403 favors the

admission of relevant evidence and carries a presumption that relevant evidence will be more

probative than prejudicial. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). Further,

the rule envisions exclusion of evidence only when there is a “clear disparity between the degree

of prejudice of the offered evidence and its probative value.” Hammer v. State, 296 S.W.3d 555,

568 (Tex. Crim. App. 2009). When conducting a rule 403 analysis, courts must balance: (1) the

inherent probative force of the proffered item of evidence, along with (2) the proponent’s need for

that evidence, against (3) any tendency of the evidence to suggest decision on an improper basis,

(4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any

tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate

–31– the probative force of the evidence, and (6) the likelihood that presentation of the evidence will

consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco

v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).

Texas Rule of Evidence 404(b)(1) provides that evidence of an extraneous act “is not

admissible to prove a person’s character in order to show that on a particular occasion the person

acted in accordance with this character.” TEX. R. EVID. 404(b)(1); Devoe v. State, 354 S.W.3d

457, 469 (Tex. Crim. App. 2011); see also Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App.

1996) (extraneous offense includes any act of misconduct, whether resulting in prosecution or not,

that is not alleged in indictment). However, pursuant to rule 404(b)(2), such evidence “may be

admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” TEX. R. EVID. 404(b)(2); see also

De La Paz, 279 S.W.3d at 343 (rule 404(b) is “a rule of inclusion rather than exclusion” and

excludes only evidence offered or used solely for purpose of proving bad character and conformity

therewith). “Whether extraneous offense evidence has relevance apart from character conformity,

as required by Rule 404(b), is a question for the trial court.” Devoe, 354 S.W.3d at 469. A trial

court’s ruling respecting the admission of extraneous offense evidence is generally within the zone

of reasonable disagreement if the extraneous offense evidence is relevant to a material, non-

propensity issue and the probative value of that evidence is not substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading of the jury. De La Paz, 279

S.W.3d at 344.

Non-constitutional error that does not affect an appellant’s substantial rights is to be

disregarded. TEX. R. APP. P. 44.2(b); Garcia v. State, 126 S.W.3d 921, 927–28 (Tex. Crim. App.

2004). An appellant’s substantial rights are not affected by the erroneous admission of evidence

if, after examining the record as a whole, we have fair assurance that the error did not influence

–32– the verdict or had only a slight influence on the verdict. Motilla v. State, 78 S.W.3d 352, 355 (Tex.

Crim. App. 2002); see also Garcia, 126 S.W.3d at 927–28. In making this determination, we

consider the entire record, including the other evidence admitted in the case, the nature of the

evidence supporting the fact-finder’s determination, the character of the alleged error and how it

might be considered in connection with other evidence in the case, the State’s theory, any defensive

theories, closing arguments, and whether the State emphasized the error. Motilla, 78 S.W.3d at

355–56.

C. Application of Law to Facts

1. Sufficiency of the Evidence

We begin with appellant’s third issue, in which he contends the evidence is insufficient to

support his conviction because “the State failed to prove a culpable mental state beyond a

reasonable doubt.” According to appellant, (1) although the evidence shows Efurd suffered serious

bodily injury, “[i]t does not show that Appellant intentionally or knowingly caused that serious

bodily injury,” and (2) “[t]he State failed to prove the adverse outcome in Efurd’s surgery was the

result of anything other than poor surgical technique.” Specifically, appellant argues (1) Efurd

“signed a consent form for her surgery in which she acknowledged risks of adverse outcomes,

which included some of the outcomes she experienced”; (2) although Henderson and Lazar

testified that a trained neurosurgeon would know that the things that were done to Efurd would

cause serious bodily injury, they “did not testify that Appellant knew they would cause serious

bodily injury” (emphasis original); (3) both Henderson and Lazar were paid for reviews relating

to civil litigation respecting this case; (4) several witnesses “agreed that Appellant had to have

been distracted during Efurd’s surgery because of what was happening in Brown’s case”; (5) Smith

testified that “whenever [appellant] tried to help a patient,” “[h]e believed that he could”; and

(6) Bagley testified there are less obvious ways to intentionally harm a patient other than in an

–33– operating room in front of others, all of the adverse outcomes in appellant’s patients were reported

outcomes that have happened before to other surgeons, “the outcome in Efurd’s case was a known

complication that a poorly-trained inexperienced surgeon might encounter,” performing additional

surgery to try to repair damage could be a sign that appellant had some concern for his patients,

and a “chaotic operating room” is “an additional barrier to providing appropriate care” when a

surgeon is “inexperienced and poorly trained.”

The State responds that the evidence of knowledge in this case fell into three categories:

(1) “things that any neurosurgeon would know”; (2) “things that Appellant knew about his own

prior surgeries”; and (3) “things that Appellant knew in the midst of Mary Efurd’s surgery.”

According to the State, (1) “[t]he jury could reasonably infer that because Appellant was a

neurosurgeon, he knew what any neurosurgeon would know”; (2) because the evidence showed

appellant had caused serious bodily harm in multiple cases during the preceding months and “knew

it,” rational jurors could have inferred that appellant was “aware that his conduct in Efurd’s surgery

was reasonably certain to cause the same result”; and (3) because there was evidence that appellant

was told during Efurd’s surgery that the implant was malpositioned and the intraoperative x-rays

showed the improper positioning, rational jurors could have inferred that appellant was aware he

was reasonably certain to cause serious bodily injury to Efurd.

The record shows Henderson testified (1) there is not “any way that a neurosurgeon would

not know that he was causing [Efurd] harm” and (2) the complication that occurred during Efurd’s

surgery is “extremely rare” and “unique.” Lazar testified (1) it is “inconceivable” that there is “any

way that a neurosurgeon doesn’t know that he’s going to cause Ms. Efurd serious bodily injury by

doing these things”; (2) he has never “seen anything like what happened in Ms. Efurd’s surgery”;

and (3) the outcome of Efurd’s surgery is “beyond egregious,” not “a normal risk of surgery,” and

not something Efurd “would have consented to” when she signed surgical consent forms.

–34– Additionally, (1) Hoyle stated that after his first and only surgery with appellant, he told appellant

he “was incredibly dangerous” and Hoyle “was never working with him again” because “[h]e was

going to hurt somebody”; (2) Passmore, Morguloff, Sample, and Rohr testified that during the

months prior to Efurd’s surgery, appellant was told he had caused serious injury to his patients;

and (3) Kissenger, Padron, and Furey testified that during Efurd’s surgery, appellant was told, and

the intraoperative x-rays showed, that the implant was improperly positioned.

Further, Bagley’s uncontroverted testimony included the following:

Q. These things don’t just happen all the time, on a regular basis.

Q. So it’s highly unusual that a surgeon would have all of these extremely-rare complications in a very short period of time. Wouldn’t you agree?

Q. And even a surgeon who wants to say they’re poorly trained, when they—when a patient is complaining of new pain over and over and over again, multiple patients, you start to know that you’re hurting people.

A. I would hope so. Yes, ma’am.

Accordingly, the record shows appellant experienced a highly unusual number of

extremely rare complications over a very short period of time, i.e., from December 2011 through

July 2012; was told multiple times during that period that he had caused serious injury to his

patients; and was told during Efurd’s surgery that the device he was installing was malpositioned.

The jury was permitted to draw any reasonable inferences from the facts so long as each inference

was supported by the evidence presented at trial. Zuniga, 551 S.W.3d at 733. Further, “[d]irect

evidence and circumstantial evidence are equally probative, and circumstantial evidence alone

may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating

circumstances is sufficient to support the conviction.” Id. On this record, we conclude the evidence

of what appellant knew prior to and during Efurd’s surgery supports a reasonable inference that, –35– during Efurd’s surgery, appellant was “aware that his conduct [was] reasonably certain to cause”

serious bodily injury to Efurd. See id.; see also PENAL § 6.03(b). As indicated above, whether

appellant was “aware” of the reasonable certainty of the result of his conduct is critical.

The dissent concludes the evidence is insufficient to sustain appellant’s conviction for

knowingly or intentionally causing serious bodily injury to Efurd. Specifically, the dissent states

in part (1) the evidence supports the lesser culpable mental state of “recklessness” because “the

jury could have concluded appellant . . . was aware that his incompetence posed a significant

danger and chose, without justification, to engage in actions that threatened to bring about that

danger”; (2) however, the State did not prove appellant “actually knew what he was doing was

reasonably certain to result in injury,” i.e., the culpable mental state of “knowingly”; and (3) “the

proof shows all too clearly that appellant did not know what he was doing and that he was wholly

lacking in the kind of self-awareness that would support a finding that, by operating on a patient,

he knew he was ‘reasonably certain’ to do more harm than good.” Further, the dissent states,

[T]he evidence supports the conclusion that at the time he performed the surgery on the complainant, appellant was aware3 of five complications out of an unknown total patient population, that he had been rebuked by another doctor who opined that “he was going to hurt somebody” at some point, and had been accused of causing injury to other patients in the past. This evidence speaks to what appellant, as a trained neurosurgeon, should have known about the risk he posed generally, as would any evidence of past deficient performance, but says nothing about the probability of harm to any particular patient, most importantly Ms. Efurd. . . . That appellant had been accused of (or was being investigated for) errors causing injuries to patients in the past is clear as is the notion that neurosurgery as performed by him appeared to pose elevated risks, but the State made no effort to quantify that risk or to apply it to the crime for which he was charged. It did not ask Dr. Bagley, for example, whether he (Bagley) could have said that it was “reasonably certain” that appellant would harm Ms. Efurd or any particular patient. Instead, he simply agreed that he “would hope” that a surgeon who had experienced a series of rare complications would start to know that he was “hurting people” . . . .4

3 Italics supplied. 4 The testimony of Bagley on this point actually stated as follows:

–36– In essence, the dissent concludes the evidence does not support an inference that appellant

was aware that his conduct in question was reasonably certain to cause injury. In reaching that

conclusion, the dissent focuses on appellant’s “unknown total patient population” and the State’s

lack of “effort to quantify” the “probability of harm” to Efurd based on that total patient population.

The record shows appellant strenuously objected in the trial court to the State’s efforts to introduce

a broad spectrum of evidence of other surgeries performed by him. Further, appellant did not assert

any argument pertaining to “probability” based on “total patient population” until during oral

submission before this Court the dissenting justice suggested those propositions. Moreover, as

described above, the record contains uncontroverted expert testimony that during a very short

period of time, appellant’s surgical techniques resulted in extremely rare adverse outcomes with

unusual frequency. To the extent the dissent posits that evidence of a “probability of harm” based

on appellant’s “total patient population” was essential to demonstrate the culpable mental state of

knowingly in this case, we strongly disagree.

As described above, appellate review of the sufficiency of the evidence “does not intrude

on the jury’s role to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Johnson, 2018 WL 5810857, at *1; see

also Hooper, 214 S.W.3d at 16 (“inference” is conclusion reached by considering other facts and

deducing logical consequence from them). Further, we must not base our decision in this case on

“policy” concerns focused upon hypotheticals and abstract applications.5 Rather, we reach our

Q. And even a surgeon who wants to say they’re poorly trained, when they—when a patient is complaining of new pain over and over and over again, multiple patients, you start to know that you’re hurting people.

The jury was entitled to consider the whole of Bagley’s testimony, not just the answer to the above question.

5 We decline to address the dissent’s policy discussion, as that discussion has no bearing on the application of the established law described above to the facts of this case. See TEX. R. APP. P. 47.1 (this Court is to hand down written opinion that is as brief as practicable); see also City of Laredo v. Laredo Merchs. Ass’n, 550 S.W.3d 586, 599 (Tex. 2018) (Guzman, J., concurring) (public policy arguments “are acutely legislative concerns and, as such, are constitutionally removed from judicial purview”).

–37– conclusion based on the combined and cumulative force of all the evidence described above and

the proper deferential standard of review. See Clayton, 235 S.W.3d at 778. We respectfully

disagree with the dissent’s conclusion that the jury could not reasonably draw an inference that

appellant was aware that his conduct in question was reasonably certain to cause serious bodily

injury.

We decide appellant’s third issue against him.

2. Admission of Extraneous Offense Evidence Respecting Other Surgeries

In his first issue, appellant contends the trial court abused its discretion by admitting

extraneous offense evidence pertaining to appellant’s surgeries on the other patients described

above in violation of rule 404(b). Appellant asserts the trial court’s improper admission of

“voluminous amounts” of such evidence “resulted in an unfair trial where Appellant was forced to

defend against unindicted allegations.” Specifically, appellant argues in part,

It seems the aim was to evoke outrage and sympathy from the jury in order to obtain a conviction. However, . . . [p]arading surgery after surgery in front of the jury in order to establish guilt in a single case is the very definition of evidence in conformity with bad character or criminal behavior. It is evidence which “is inherently prejudicial, tends to confuse the issues in the case, and forces the accused to defend himself against charges which he had not been notified would be brought against him.” .... The effect was that the prosecutor stressed evidence that was irrelevant and inadmissible pursuant to Rule 404(b) in order to scare and browbeat the jury into finding a culpable mental state for the charged offense where no evidence of one existed, or for the extraneous offenses, for that matter. . . . Appellant was harmed by the admission of this evidence because without it, the jury, by the State’s own admission, had no other evidence of his alleged mental state.

(citations to authority omitted). Further, appellant asserts in his brief in this Court (1) “not to be

forgotten is the larger impact of the State’s conduct in prosecuting a case of this kind and arguing

to the [trial court] that it should be allowed to present evidence of a surgeon’s entire career to

establish intent or absence of mistake to prove a mental state in a single surgery” and (2) “[t]he

–38– floodgates will now be opened for all surgeons to have their entire career considered by

lawyers . . . to decide whether those surgeons have committed a crime in performing their job.”

The State responds that the trial court did not abuse its discretion by admitting the

complained-of evidence. According to the State, the extraneous acts in question were (1) relevant

to material, non-conformity issues because “[t]hey showed that Appellant was aware that his

conduct was reasonably certain to cause serious bodily injury, and they disproved accident,

mistake, and malpractice,” and (2) “so probative of Appellant’s culpable mental state that the

danger of unfair prejudice could not have substantially outweighed it.”

We begin by addressing the relevance of the complained-of evidence. The State contends

(1) “[i]n Texas, extraneous acts have long been admissible to prove a culpable mental state when

one cannot be inferred from the conduct alleged in the indictment” and (2) “[l]ikewise, if a

defendant’s conduct is capable of both an innocent and a criminal interpretation, extraneous

offenses are relevant under the doctrine of chances to prove that the innocent explanation is less

likely.” Further, the State argues in part,

If Appellant, while operating on Passmore, is told that he’s dangerous and that he’s going to hurt someone, and afterward, Passmore can no longer swim, run, or walk without limping, the jury would be willing to accept Appellant’s poor surgical technique as a conceivable explanation. But if shortly afterwards a similar thing happens to Morguloff, and if on the third occasion Summers is paralyzed, the immediate inference (as a probability, perhaps not a certainty) is that Appellant deliberately caused the result, because the chances of inadvertent injuries on three successive similar occasions is extremely small.

But here, it happens three more times:

If, on the fourth occasion, Martin bleeds to death, and on the fifth occasion Brown dies of a stroke, the inference (perhaps not a certainty, but by now a presumption) is that Appellant deliberately caused the result.

And if, on the occasion alleged in the indictment, Appellant amputates a nerve root, impales the dura with a screw, and leaves the interbody device in the psoas muscle, the immediate inference is that, at minimum, Appellant was aware that his conduct was reasonably certain to cause serious bodily injury.

–39– “The ‘doctrine of chances’ tells us that highly unusual events are unlikely to repeat

themselves inadvertently or by happenstance.” Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim.

App. 2016) (citing De La Paz, 279 S.W.3d at 347). For the doctrine to apply, there must be a

similarity between the charged and extraneous offenses, since it is the improbability of a like result

being repeated by mere chance that gives the extraneous offense probative weight. See, e.g., Beaty

v. State, No. 05-17-00287-CR, 2018 WL 3991283, at *6 (Tex. App.—Dallas Aug. 21, 2018, no

pet.) (mem. op., not designated for publication). No rigid rules dictate what constitutes sufficient

similarities. Id. An extremely high degree of similarity is not required where intent, as opposed to

identity, is the material issue. Id.

In the case before us, the record shows (1) appellant’s culpable mental state was a disputed

element of the charged offense, (2) Efurd’s surgery involved surgical procedures or techniques

similar to those used in appellant’s surgeries on the other patients described at trial, and (3) the

outcomes of the surgeries described at trial were extremely rare. Under the doctrine of chances,

the evidence of multiple similar rare events in the several months preceding Efurd’s surgery tended

to increase the likelihood that those events did not happen by chance and thus was relevant to the

question of whether appellant’s conduct fell within the culpable mental states pleaded by the State.

See De La Paz, 279 S.W.3d at 348 (“extraordinary coincidence” that appellant saw drug deals that

no one else did three different times “flies in the face of common sense” and therefore, under

doctrine of chances, allowed jurors to conclude it was objectively unlikely that appellant was being

truthful in his testimony respecting what he saw); Vasquez v. State, No. 03-15-00067-CR, 2017

WL 474064, at *4 (Tex. App.—Austin Jan. 31, 2017, no pet.) (mem. op., not designated for

publication) (under doctrine of chances, fact that appellant who was accused of indecency by

sexual contact with a student in his classroom committed similar sexual acts against another child

in his classroom during same time frame made it considerably less probable that complainant had

–40– fabricated her allegations). Accordingly, pursuant to that doctrine, the evidence in question did not

lack relevance to a material, non-conformity issue.

Moreover, independently from the doctrine of chances, “an extraneous offense may be used

to illustrate intent where it cannot be inferred from the act.” Jones v. State, 716 S.W.2d 142, 161

(Tex. App.—Austin 1986, pet. ref’d). In the case before us, the extraneous offense evidence in

question demonstrated knowledge by appellant that from December 2011 through July 2012, his

surgical techniques resulted in extremely rare adverse outcomes with unusual frequency and

caused serious injuries to his patients. That knowledge was relevant to the reasonableness of an

inference respecting whether appellant was aware that continuing to perform surgery using those

techniques was reasonably certain to cause adverse outcomes resulting in additional serious

injuries, i.e., the culpable mental state of knowingly.6 See Davis v. State, 955 S.W.2d 340, 348–49

(Tex. App.—Fort Worth 1997, pet. ref’d) (evidence of prior adverse outcomes respecting dental

surgeon’s other patients tended to establish dental surgeon “was aware of but consciously

disregarded the risk” of using similar surgical technique on complainant patient and thus had

culpable mental state of “recklessness”); Jones, 716 S.W.2d at 162 (in case of nurse convicted of

murder of pediatric patient, evidence pertaining to adverse outcomes in nurse’s treatment of other

pediatric patients with similar symptoms was relevant because, although “natural causes would

have been believable” as applied to one child, “looking at the same types of incidents that all

happened within such a short time to six children makes that much less likely”).

6 In addition to his arguments described above, appellant asserted for the first time during oral submission before this Court that relevance for purposes of rule 404(b) could not be established without evidence of the total number of surgeries performed by him during his entire career and the percentage of adverse outcomes resulting from those surgeries overall. The record does not show appellant asserted that argument in the trial court. Further, that argument is inconsistent with appellant’s arguments asserted in his brief before us. Appellant contends in his brief in this Court that a negative consequence of this case is “the larger impact of the State’s conduct in prosecuting a case of this kind and arguing to the [trial court] that it should be allowed to present evidence of a surgeon’s entire career to establish intent or absence of mistake to prove a mental state in a single surgery.” Moreover, as described above, the relevance of the extraneous evidence in question was established by uncontroverted expert testimony that during a very short period of time, appellant’s surgical techniques resulted in extremely rare adverse outcomes with unusual frequency. Appellant’s overall percentage of adverse surgical outcomes based on his entire career is immaterial to that relevance. Therefore, we disagree with appellant’s position asserted during oral submission that the State could not establish relevance of the evidence in question for purposes of rule 404(b) without showing appellant’s overall percentage of adverse surgical outcomes based on his entire career.

–41– Next, we address appellant’s complaint respecting the “voluminous amount” of extraneous

offense evidence. According to appellant, (1) “the evidence concerning the named complainant in

this case constituted less than a day of trial while the extraneous offense evidence constituted the

remaining twelve days of trial,” (2) “[i]n other words, roughly ninety-two percent of the trial

consisted of extraneous offense evidence,” and (3) the State relied heavily on that evidence during

opening statements and closing argument.

The State responds (1) appellant’s calculation categorizes evidence pertaining to Brown’s

surgery as extraneous, but “Brown’s surgery is best viewed as contextual rather than extraneous”;

(2) to arrive at ninety-two percent, appellant must have also included evidence presented in the

punishment phase of trial and hearings outside the jury’s presence, rather than properly including

only evidence presented to the jury during the “guilt phase” of trial; and (3) not counting evidence

respecting Brown’s surgery or any hearings outside the presence of the jury, “only 44% of the

guilt-phase transcript covers extraneous matters.” The State acknowledges that forty-four percent

“is still a significant amount of time,” but contends it “needed to prove a culpable mental state

beyond a reasonable doubt, and to do that it had to prove extraneous surgeries beyond a reasonable

doubt.” Further, the State argues that “[e]ven if this factor weighs against the trial court’s ruling,

the other factors all support it,” and “[t]his factor alone cannot overcome the presumption of

admissibility, nor show an abuse of discretion.”

As described above, factor number six of the balancing test to be applied by this Court in

conducting a rule 403 analysis is “the likelihood that presentation of the evidence will consume an

inordinate amount of time.” See Gigliobianco, 210 S.W.3d at 641–42. We agree with the State’s

position that Brown’s surgery provided context for the charged offense and therefore evidence

respecting that surgery was not extraneous. See Austin v. State, 222 S.W.3d 801, 809 (Tex. App.—

Houston [14th Dist.] 2007, pet. ref’d) (declining to consider contextual evidence for purposes of

–42– rule 403 analysis). Further, appellant cites no authority, and we have found none, to support the

inclusion of extraneous offense evidence presented during the punishment phase of trial in the rule

403 analysis in this case or to include hearings outside the presence of the jury in our analysis. See

TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1) (providing guidelines for introduction of

evidence of “bad acts” after finding of guilty); Newton v. State, 301 S.W.3d 315, 320–21 (Tex.

App.—Waco 2009, pet. ref’d) (declining to consider portions of record outside presence of jury in

conducting rule 403 analysis). Accordingly, the record shows that approximately forty-four

percent of the guilt–innocence phase of trial was spent on evidence respecting extraneous acts of

appellant. This was a substantial portion of trial and therefore factor number six of the balancing

test weighs in favor of exclusion. See Newton, 301 S.W.3d at 321 (sixth factor weighed in favor

of exclusion where extraneous offense evidence amounted to about thirty percent of testimony);

McGregor v. State, 394 S.W.3d 90, 121 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (sixth

factor weighed in favor of exclusion when approximately one-third of trial was spent developing

extraneous testimony). However, that factor alone is not determinative, but rather must be balanced

against the remaining factors. See Gigliobianco, 210 S.W.3d at 641–42.

The first and second factors to be considered are the inherent probative force of the

proffered evidence and the proponent’s need for that evidence. See id. As described above, the

State needed the evidence in question to establish a disputed element, i.e., appellant’s culpable

mental state, and had no other means to establish that element. Thus, the trial court could have

reasonably concluded the evidence in question was highly probative and the State’s need for that

evidence was considerable. See Newton, 301 S.W.3d at 320. Accordingly, both the first and second

factors weigh heavily in favor of admissibility. See id.; see also Sifuentes v. State, 494 S.W.3d 806,

817 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (concluding first factor “weighs heavily” in

–43– favor of admissibility where extraneous evidence cast doubt on appellant’s claim that he lacked

requisite intent or knowledge).

The third factor is any tendency of the evidence to suggest decision on an improper basis.

See Gigliobianco, 210 S.W.3d at 641–42. As described above, the jury was repeatedly instructed

throughout the trial that the extraneous offense evidence in question was to be considered

“only . . . in determining the intent, knowledge, motive, absence of mistake or lack of action of the

defendant, if any, alleged in the indictment in this case and for no other purpose.” Also, the jury

charge contained that same instruction. Therefore, this factor weighs in favor of admissibility. See

McGregor, 394 S.W.3d at 121.

The fourth factor is “any tendency of the evidence to confuse or distract the jury from the

main issues.” See Gigliobianco, 210 S.W.3d at 641–42. As described above, all of the extraneous

surgeries by appellant were, like Efurd’s surgery, back surgeries that “would be considered low

risk.” Further, as described above, the jury was given multiple limiting instructions. However, the

outcomes of several of the extraneous surgeries in question were extremely adverse. Therefore,

this factor weighs in favor of exclusion. See Newton, 301 S.W.3d at 320.

Finally, the fifth factor is any tendency of the evidence to be given undue weight by a jury

that has not been equipped to evaluate the probative force of the evidence. See Gigliobianco, 210

S.W.3d at 641–42. As described above, the witnesses at trial included several physicians who

provided expert testimony. The record does not show the jury was not equipped to evaluate the

probative force of the evidence. See id.

To summarize, two of the six factors to be considered weigh in favor of exclusion of the

evidence in question and the remaining factors favor admissibility. Rule 403 envisions exclusion

of evidence only when there is a “clear disparity between the degree of prejudice of the offered

evidence and its probative value.” Hammer, 296 S.W.3d at 568. On this record, we conclude there

–44– is not a “clear disparity” between the danger of unfair prejudice posed by the extraneous-offense

evidence and its probative value. See id.; see also McGregor, 394 S.W.3d at 122 (concluding that

although time spent developing extraneous offense evidence weighed against admissibility, trial

court was within zone of reasonable disagreement in admitting evidence); Newton, 301 S.W.3d at

321–22 (concluding that although half of Gigliobianco factors, including factors four and six,

weighed in favor of exclusion of extraneous offense evidence, there was no clear disparity between

probative value and danger of unfair prejudice where State had considerable need for that

evidence); Austin, 222 S.W.3d at 809 (concluding that while half of witnesses spent “significant

time” testifying about matters in medical records respecting extraneous cases, other factors

weighed in favor of admissibility of that extraneous evidence and therefore trial court did not abuse

discretion by not excluding it). Accordingly, we conclude the trial court did not abuse its discretion

by admitting the complained-of extraneous offense evidence respecting other surgeries by

appellant.

We decide against appellant on his first issue.

3. Admission of State’s Exhibit 160

In his second issue, appellant contends the trial court abused its discretion by admitting

State’s Exhibit 160, the December 9, 2011 email from appellant to Morgan described above,

because it “constituted irrelevant, inadmissible extraneous offense evidence in violation of Texas

Rules of Evidence 401, 403, and 404(b).” According to appellant, as to rule 401, the email in

question (1) “was sent over seven months prior to the alleged offense in this case”; (2) “focuses

largely on Appellant’s relationship with Morgan”; (3) “is not relevant to show how [appellant]

acted intentionally or knowingly in this case”; (4) does not mention surgery, Efurd or any other

patient, or “what Appellant knew or intended during surgery”; and (5) is therefore “neither material

nor probative; and thus, inadmissible.”

–45– Further, as to rule 403, appellant asserts,

The [rule 403 balancing factors described above] weigh heavily in Appellant’s favor because the email in question had no bearing on Efurd’s surgery, definitely confused and distracted the jury from the main issue in the case, namely: Appellant’s intent during Efurd’s surgery and not some random comment to his girlfriend, and was clearly given undue weight when the prosecutor argued it, alone, proved Appellant’s mens rea in this case during closing arguments to a jury which was unequipped to evaluate any probative value of the email. See [Gigliobianco, 210 S.W.3d at 640–41]. For the foregoing reasons, State’s Exhibit 160 was irrelevant, and therefore, inadmissible.

Additionally, as to rule 404(b), appellant contends (1) the State “resorted to convicting

Appellant by manipulating the jury to believe Appellant was, in fact, a ‘stone cold killer’ based on

a random comment made in a private email to his girlfriend seven months prior to the alleged

offense in this case which made no reference to the alleged victim”; (2) “[t]here can be no other

reason for the State to offer State’s Exhibit 160 other than to show action in conformity therewith

and that he is a bad person in general because of the lack of the specificity of the statement in

regards to the facts of this case”; and (3) appellant “was erroneously forced to defend himself

against an extraneous bad act, a random comment in a private email, that was not included within

the indictment or even tangentially connected to this case in any way.” Finally, appellant asserts

he “was harmed by the admission of this evidence because without it, the jury, by the State’s own

admission, had no other evidence of his alleged mental state.” (emphasis original).

The State responds that the trial court did not abuse its discretion by admitting the email in

question into evidence and, regardless, any error must be disregarded as harmless. Specifically,

the State asserts in part (1) the relevancy standard is non-demanding and, in general, relevant

evidence should not be excluded; (2) the email was relevant because it provided a “small nudge”

toward intentional conduct and rebutted defensive theories advanced by appellant; (3) the danger

of unfair prejudice did not substantially outweigh the email’s probative value; (4) the email was

admissible under rule 404(b) because it showed motive, intent, and plan, and did not show criminal

–46– propensity; and (5) “any error in admitting the email was harmless, because it would have had no

effect on the outcome.”

As described above, “[e]vidence need not by itself prove or disprove a particular fact to be

relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some

fact of consequence.” Stewart, 129 S.W.3d at 96. Additionally, a person’s mental state may be

inferred from the person’s acts, words, and conduct. See Hart, 89 S.W.3d at 64; Martinez, 833

S.W.2d at 196. In the case before us, the record shows (1) appellant’s mental state was a fact of

consequence at issue; (2) in the email in question, appellant stated on December 9, 2011, “I am

ready to leave the love and kindness and goodness and patience that I mix with everything else

that I am and become a cold blooded killer,” and “[w]hat I am being is what I am, one of a kind, a

mother [expletive] stone cold killer that can buy or own or steal or ruin or build whatever he

wants”; and (3) the surgeries described at trial in which appellant caused serious injury to his

patients occurred during the eight months following that email. On this record, we conclude it was

not outside the zone of reasonable disagreement for the trial court to conclude that appellant’s

statements in that email provided at least “a small nudge” toward proving that appellant’s acts in

question were done intentionally or knowingly, or disproving that such acts were the result of

happenstance. See Stewart, 129 S.W.3d at 96. Accordingly, we conclude the trial court did not

abuse its discretion by concluding State’s Exhibit 160 was relevant. See TEX. R. EVID. 401.

Further, as described above, appellant’s arguments respecting violation of rules 403 and

404(b) both describe and rely on the alleged lack of relevance of the email in question. In light of

our conclusion above that the trial court did not abuse its discretion by concluding State’s Exhibit

160 was relevant, we disagree with appellant’s positions respecting violation of rules 403 and

404(b).

–47– Moreover, as to harm, an appellant’s substantial rights are not affected by the erroneous

admission of evidence if, after examining the record as a whole, we have fair assurance that the

error did not influence the verdict or had only a slight influence on the verdict. See Motilla, 78

S.W.3d at 355; Garcia, 126 S.W.3d at 927–28. In response to appellant’s contention that the jury

had no evidence of his alleged mental state other than State’s Exhibit 160, the State asserts in part,

The email was evidence which, if given weight by the jury, supported an inference that Appellant intentionally caused serious bodily injury. But the State was not required to prove that to obtain the verdict it sought; proof that he knowingly caused serious bodily injury would suffice. And . . . there was abundant evidence that Appellant knowingly caused serious bodily injury. First, he knew—because any neurosurgeon would know—that malpositioning hardware and amputating nerve roots would cause serious bodily injury. Second, he knew that Passmore, Morguloff, Summers, Martin, and Brown had suffered serious bodily injury already. Third, he knew that Efurd’s hardware was malpositioned because the intra- operative x-rays and his colleagues all told him so. The State was entitled to prove intentional conduct, but knowing conduct supported the jury’s verdict. State’s Exhibit 160 would have had little to no effect on the verdict, and was therefore harmless.

Based on the entire record before us, including the evidence described by the State in its

argument set out above, we disagree with appellant’s position that the jury had no evidence of his

alleged mental state other than State’s Exhibit 160. On this record, we conclude appellant was not

harmed by the admission of the email in question. See Motilla, 78 S.W.3d at 355; Garcia, 126

S.W.3d at 927–28.

We decide appellant’s second issue against him.

III. CONCLUSION

We decide appellant’s three issues against him. The trial court’s judgment is affirmed.

/Douglas S. Lang/ Schenck, J., dissenting DOUGLAS S. LANG JUSTICE Publish TEX. R. APP. P. 47.2(b)

170235F.P05 –48– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

CHRISTOPHER DANIEL DUNTSCH, On Appeal from the Criminal District Court Appellant No. 5, Dallas County, Texas Trial Court Cause No. F15-00411-L. No. 05-17-00235-CR V. Opinion delivered by Justice Lang, Justices Fillmore and Schenck participating. THE STATE OF TEXAS, Appellee

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 10th day of December, 2018.

–49–