NO. 07-09-0347-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JANUARY 8, 2010

______________________________

CHARLIE E. BECKHAM, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2003-402,627; HONORABLE CECIL PURYEAR, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

          Pursuant to a guilty plea in 2004, Appellant, Charlie E. Beckham, was placed on deferred adjudication for aggravated assault. He was placed on community supervision for two years. In 2006, pursuant to a guilty plea, Appellant was adjudicated guilty for violations of the terms and conditions of community supervision and sentenced to five years confinement, suspended in favor of five years community supervision. In January 2009, the State moved to revoke community supervision for multiple violations of the terms and conditions thereof. Appellant entered a plea of not true to one of the State’s allegations and true to the remaining allegations. The trial court revoked community supervision and sentenced Appellant to five years confinement.

          Pending before this Court is Appellant’s Motion to Dismiss Appeal in which he represents he wishes to withdraw his notice of appeal and dismiss the appeal. As required by Rule 42.2(a) of the Texas Rules of Appellate Procedure, the motion is signed by Appellant and his attorney. No decision of this Court having been delivered, the motion is granted and the appeal is dismissed. No motion for rehearing will be entertained and our mandate will issue forthwith.

          Accordingly, the appeal is dismissed.

 

                                                                           Patrick A. Pirtle

                                                                                 Justice

Do not publish.

ecific reading. However, the record shows that Johnson introduced, without objection, two medical evaluation reports prepared by Kurt in which it was specified that the carbon monoxide reading on October 30, 1998, was 316 parts per million of carbon monoxide. Additionally, American did not request redaction of those specific references. Moreover, American's expert, Dr. Eric Comstock (Comstock), states in his report that it was reasonable to assume that Johnson was exposed to approximately 300 parts per million of carbon monoxide in her workplace. In view of this evidence, the admission of Johnson's testimony regarding the carbon monoxide reading, even if erroneous, probably did not cause the rendition of an improper judgment and was therefore harmless. American's second issue is overruled.

Returning to American's first issue, American argues Kurt's expert testimony was unreliable and should have been excluded by the trial court because it was based upon unreliable methodology or factual foundation. Specifically, it points out that Kurt's opinion that Johnson was chronically exposed to carbon monoxide is not reasonable and lacks a proper factual foundation because it was based upon a single reading. Further, American argues that Kurt's methodology is not reliable because there is no scientifically accepted theory that chronic exposure to carbon monoxide causes cardiomyopathy. In evaluating these arguments, we will first look to the factual assumptions made by Kurt in forming his opinion and then to the scientific reliability of his conclusion.

A trial court's determination of the reliability of expert evidence is part of its determination of admissibility and is not erroneous absent an abuse of discretion. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex. 1998). The test for determining whether the trial court abused its discretion is whether it acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). When erroneously admitted evidence is merely cumulative or does not concern a material issue dispositive of the case, the error is harmless. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 230 (Tex. 1990); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). Harmfulness is determined by looking at the entire record to see whether the judgment was controlled by the testimony that should have been excluded. Mancorp, Inc. v. Culpepper, 802 S.W.2d at 230; Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d at 396.

Reiterated, the thrust of American's challenge to Kurt's testimony is its argument that chronic exposure to carbon monoxide cannot be extrapolated from one reading and his reliance upon that one reading makes his testimony unreliable. However, the record reveals that Comstock, American's expert, specifically indicated that it is reasonable to assume chronic exposure based on the one reading, and further, Kurt's assumption that Johnson's carbon monoxide blood saturation was 30 percent could also be considered reasonable. In Comstock's report, tendered by American, there appears the following paragraph:

Based upon the air monitoring of the patient's working environment in October of 1998[,] it is reasonable to assume that she had been exposed to carbon monoxide concentrations in the order of 300 ppm throughout the work day for a period which has not been determined but appears to have been a minimum of several months. Such a concentration of carbon monoxide in the ambient air would result in significant hemogoblin saturation and I would concur with the estimate of approximately 30% carboxyhemoglobin to be expected.

Consequently, all of the expert testimony before the trial court supported the conclusion that Johnson was chronically exposed to carbon monoxide and that her blood saturation level was approximately 30 percent.

American also challenges Kurt's opinion that Johnson's work-related exposure to carbon monoxide caused her to develop cardiomyopathy. We note that Comstock opined that even chronic exposure to carbon monoxide does not cause any clinical illnesses. However, that causation opinion is merely cumulative of other causation evidence in the record. For example, although he indicates that Kurt's theory regarding chronic exposure has not been accepted in the scientific community in the United States, he acknowledges that the British scientific community believes that "chronic exposure to carbon monoxide increases the incidence of heart problems . . . ."

Moreover, because workers' compensation was involved, Johnson was sent to a TWCC-designated doctor, Dr. Randall Wolcott. He opined in two separate reports that, within a reasonable degree of medical probability, Johnson's work-related exposure to carbon monoxide was a producing cause of her "heart disease." Indeed, in one of these reports, which was introduced by American without any request to redact or exclude the causation opinion, Wolcott stated:

She [Johnson] has been seen by Dr. Rizzo who has diagnosed her with cardiomyopathy. It is clear that carbon monoxide does cause significant cellular destruction to myocardial cells. There is reasonable medical probability that the carbon monoxide did contribute to the patient's heart disease.

Thus, even assuming arguendo that the trial court was in error in admitting Kurt's expert testimony, under this record, we cannot conclude that its admission probably caused the rendition of an improper judgment. See Mancorp, Inc. v. Culpepper, 802 S.W.2d at 230. American's first issue is overruled.

In summary, both of American's issues are overruled and the judgment of the trial court is affirmed.

John T. Boyd

Senior Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. 75.002(a)(1) (Vernon Supp. 2004-2005).