NUMBER 13-24-00629-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MELISSA LYNN WALKER
A/K/A MELISSA HARMS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 24TH DISTRICT COURT
OF JACKSON COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Silva, Peña, and West
Memorandum Opinion by Justice Peña
Appellant Melissa Lynn Walker a/k/a Melissa Harms raises a single issue
challenging her conviction for intentionally causing serious injury to a child, a first-degree felony resulting in twenty-five-years’ imprisonment. See TEX. PENAL CODE § 22.04(a)(1),
(e). Appellant contends the trial court erred in allowing the testimony of Dr. Raquel VargasWhale over her objections because it violated her Sixth Amendment right to confrontation.
We affirm.
I. BACKGROUND
Appellant was indicted on charges of seriously injuring her then-six-month-old
infant, J.R. 1 Appellant pleaded “not guilty” and her case was tried before a jury.
At trial, the State called several medical experts to testify on J.R.’s emergency
room stay at Driscoll Children’s Hospital (DCH) months before appellant’s arrest,
including J.R.’s attending pediatric physician Dr. Raqual Vargas-Whale. Dr. Raquel
Vargas-Whale noted bruising around J.R.’s head, face, and chest. Dr. Vargas-Whale
ordered X-rays, which revealed a spiral fracture on J.R.’s right tibia and acute rib
fractures. Dr. Vargas-Whale conferred with her medical colleagues in developing a
medical treatment plan for J.R., including DCH’s attending orthopedic surgeon Dr. Roger
Timperlake.
At trial, appellant objected to the introduction of Dr. Vargas-Whale’s testimony on
Sixth Amendment Confrontation Clause grounds, arguing that Dr. Vargas-Whale’s expert
testimony was a surrogate of her medical colleagues’ diagnoses: “[I]f [Dr. Vargas-Whale]
is allowed to testify to actions that other professionals performed in this case or evaluation
of any data or information of records that she’s using, to form an opinion is a violation of
the confrontation clause.” See U.S. CONST. amend. VI. The trial court overruled
appellant’s objections and permitted Dr. Vargas-Whale’s testimony.
1 To protect the identity of the child victim of this case, we refer to her by her initials. See TEX.
FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
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Dr. Vargas-Whale testified to J.R.’s medical history, physical examination results,
bloodwork and X-ray results, and the methodology behind her independent diagnosis
concerning J.R.’s injuries. Appellant cross-examined her on each matter, including her
independent interpretation of J.R.’s X-rays, including several reiterations of how Dr.
Vargas-Whale assessed J.R.’s particular skeletal injuries. Direct testimony and crossexamination of Dr. Vargas-Whale involved cross-referencing her testimony with several
scholarly articles positing alternative causes to J.R.’s skeletal injuries, delving into detail
on X-ray interpretation and diagnosis, and her methodology in assessing J.R.’s injuries.
II. ERROR PRESERVATION
The State argues that appellant failed to preserve the Confrontation Clause
complaint against Dr. Vargas-Whale’s testimony by failing to raise that objection at trial.
We agree.
A. Standard of Review
Generally, in order to preserve a complaint for appellate review, the record must
show that “the complaint was made to the trial court by a timely request, objection, or
motion . . . with sufficient specificity to make the trial court aware of the complaint.” TEX.
R. APP. P. 33.1(a). To be sufficiently specific, an objecting party must let the trial judge
know what she wants, explain why the party thinks she’s entitled to a ruling, and do so
clearly enough for the judge to understand her at a time when the trial court is in a proper
position to do something about it. See Montelongo v. State, 623 S.W.3d 819, 822 (Tex.
Crim. App. 2021); Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009).
The objection specificity requirement is meant to provide the trial judge with the
basis of the objection and the opportunity to rule on it, while also providing opposing
counsel with the opportunity to respond to the complaint. Resendez, 306 S.W.3d at 312
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(citing Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App.1977)). A party who fails to
preserve an issue by specific objection at trial forfeits their complaint on appeal—including
objections based on Confrontation Clause grounds. See Anderson v. State, 301 S.W.3d
276, 280 (Tex. Crim. App. 2009) (holding that constitutional rights, including those that
implicate a defendant’s right to confrontation, may be forfeited for purposes of appellate
review unless properly preserved); Craven v. State, 579 S.W.3d 784, 787 (Tex. App.—
Houston [14th Dist.] 2019, no pet.) (“To preserve error on Confrontation-Clause grounds,
the objector must voice the complaint as soon as the basis for the objection becomes
apparent.”).
B. Analysis
Upon review of the trial record, we conclude that appellant did not timely object to
the introduction of Dr. Vargas-Whale’s testimony regarding Dr. Timperlake’s diagnosis,
waiving her sole Confrontation Clause issue on appeal.
Appellant’s sole contention on appeal is that “Dr. Tim[p]erlake is the actual
declarant of the testimonial assertion of J.R.’s injuries, and was not called to testify at
trial,” violating her constitutional right to confrontation. Appellant, however, ignores the
fact that the testimony relevant to this complaint was elicited by appellant herself on recross examination—without objection:
[Appellant on Re-Cross Examination]
[Appellant]: [Examining J.R.’s medical records.] [W]hose
note is this?
[Dr. Vargas-Whale]: Dr. Roger Timperlake, orthopedic surgeon.
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[Appellant]: And is his orthopedic experience better than
yours – or orthopedic understanding, is it better
than yours?
[Dr. Vargas-Whale]: I sure hope so. He’s an orthopedic surgeon, so
he should know how to repair bones better than
I.
[Appellant]: So the paragraph where it says, “I reviewed the
X rays,” can you read that?
[Dr. Vargas-Whale]: “I reviewed the X rays, a healing oblique fracture
of the tibia” —
[Appellant]: Stop right there . . . [w]hat did you say the
fracture of the tibia was?
[Dr. Vargas-Whale]: Healing oblique fracture of the tibia.
[Appellant]: No, not this doctor. Your diagnosis two days
before, what did you say?
[Dr. Vargas-Whale]: You mean the radiologist’s report that says it
was a spinal fracture.
[Appellant]: And you agreed; right?
[Dr. Vargas-Whale]: That’s correct.
[Appellant]: And this doctor disagrees; right?
[Dr. Vargas-Whale]: No . . . [oblique and spiral fractures] have the
same orientation . . . [Goes on the explain the
orientations of bone fractures.]
Appellant did not object to Dr. Vargas-Whale’s testimony concerning the medical opinion
of her colleague, Dr. Timperlake—indeed, appellant directed the very testimony she
raises on appeal. Finding that appellant did not raise a specific objection to the sole
complaint she brings on appeal, we find appellant’s constitutional complaint was
unpreserved at trial and thus waived on appeal. With appellant’s sole issue waived, we
accordingly affirm the trial court’s judgment.
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III. DR. VARGAS-WHALE’S TESTIMONY
Assuming arguendo that appellant’s issue was properly preserved at trial, we move
on to whether Dr. Vargas-Whale’s testimony violated appellant’s right to confrontation.
On appeal, appellant contends that Dr. Vargas-Whale’s testimony at trial was
merely “parroting” the medical opinions and diagnoses of her medical colleague Dr.
Timperlake. Allowing Dr. Vargas-Whale to testify in this manner without also subjecting
Dr. Timperlake to cross-examination, appellant contends, violated her Sixth Amendment
right to confrontation. The State asserts Dr. Vargas-Whale relied on her independent
interpretation of J.R.’s X-ray in developing her testimony—in conjunction with Dr.
Timperlake’s opinions, and that the resulting admission of her testimony does not violate
appellant’s Sixth Amendment right to confrontation.
A. Standard of Review
The Confrontation Clause of the Sixth Amendment guarantees the accused the
right to confront the witnesses against him. U.S. CONST. amend. VI. The Confrontation
Clause applies to in-court testimony and testimonial statements made outside of court.
Molina v. State, 632 S.W.3d 539, 543 (Tex. Crim. App. 2021) (citing Paredes v. State, 462
S.W.3d 510, 517–18 (Tex. Crim. App. 2015)).
The threshold inquiry is whether the hearsay at issue is “testimonial” in nature.
“Various formulations of th[e] core class of ‘testimonial’ statements exist....” Crawford v.
Washington, 541 U.S. 36, 51 (2004). The Texas Court of Criminal Appeals has identified
three kinds of testimonial statements: (1) “ex parte in-court testimony or its functional
equivalent,” i.e., “pretrial statements that declarants would expect to be used
prosecutorially”; (2) “extrajudicial statements contained in formalized testimonial
materials,” such as affidavits, depositions, or prior testimony; and (3) “statements that
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were made under circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial.” Langham v. State,
305 S.W.3d 568, 576 (Tex. Crim. App. 2010).
Although evidentiary rulings are usually reviewed for an abuse of discretion,
whether a statement is testimonial is a question of law that we review de novo. Wall v.
State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).
B. Analysis
Appellant argues that since Dr. Vargas-Whale used Dr. Timperlake’s interpretation
of J.R.’s X-rays in establishing her own medical diagnosis, Dr. Timperlake—the “actual
declarant,” according to appellant—must be subject to cross-examination. 2 Such a
position assumes that Dr. Vargas-Whale based her testimony exclusively on Dr.
Timperlake’s observations and conclusions, without conducting an independent
evaluation of J.R.’s X-rays. That presumption is inconsistent with the record before us.
Medical reports created for treatment purposes are generally non-testimonial. See
Odeku v. State, 722 S.W.3d 76, 84 (Tex. App.—Houston [1st Dist.] 2025, pet. ref’d).
Nothing in the record suggests J.R.’s medical lab exams were conducted with the
reasonable expectation that criminal prosecution was forthcoming. See id. Dr. VargasWhale conferenced and concurred with her medical colleague in interpreting J.R.’s X-ray,
but that does not imply she merely parroted her colleague’s interpretation of J.R.’s X-ray
without forming an independent diagnosis as J.R.’s pediatric physician. The record
indicates that Dr. Vargas-Whale provided her own independent interpretation of J.R.’s X2 Appellant does not contest the trial court’s ruling on her Daubert/Kelly challenge to Dr. VargasWhale’s testimony. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993); Kelly v. State, 792 S.W.2d 579, 585 (Tex. App.—Fort Worth 1990).
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ray and medical records at trial, and the X-rays and records were admitted into evidence
without appellant’s objection. Below is a brief portion of Dr. Vargas-Whale’s testimony,
whose independent analysis fills an entire volume of the trial court reporter’s record:
[Prosecutor]: I want you to tell us what’s significant about
[J.R.’s chest X-ray from November 8].
[Dr. Vargas-Whale]: [T]his is an image of the chest, so this is a part
of the skeletal survey which is the imaging we
do of the whole skeleton, and so this is just the
chest portion . . .
[H]ere the rib does not follow a continuous path
here or here, which suggests that those two
ends are not meeting together anymore.
[Prosecutor]: Anything else in this image?
[Dr. Vargas-Whale]: No. In this image just there were three areas on
the ribs that were not continuous, which
suggests that they’re broken.
[I]n the healing process a callus forms over the
bone, and the callus makes it really obvious
where the fractures are . . . I like to describe it
as a cotton ball. When I am speaking with
parents, that’s how I describe it.
[Prosecutor]: All right. Can you see in this image [J.R.’s chest
X-ray from November 24] the rib fractures? If so,
point them out.
[Dr. Vargas-Whale]: Here is the phenomenon that we just discussed
that looks like a cotton ball has formed there,
there, there, there.
[Prosecutor]: Okay. Now, a cotton ball is formed, so these are
no longer fresh injuries?
[Dr. Vargas-Whale]: They are not.
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Appellant’s reliance on Paredes and Burch is misplaced in this case. See Paredes, 462
S.W.3d at 517–18; Burch v. State, 401 S.W.3d at 640 (Tex. Crim. App. 2013). While
Paredes and Burch dealt with the forensic analysis of an unknown substance in
furtherance of pursuing criminal prosecution, our current case deals with a physician
interpreting a patient’s X-rays and medical laboratory records in furtherance of developing
a medical treatment plan. Neither are we dealing with autopsy reports or photographs,
which come with their own evidentiary caveats. See Lee v. State, 418 S.W.3d 892, 897
(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (citing Hernandez v. State, No. 05–11–
01300–CR, 2013 WL 1282260, at *6 (Tex. App.—Dallas Mar. 6, 2013, pet. ref’d) (mem.
op., not designated for publication) (finding no Confrontation Clause violation where
testifying expert provided an “independent judgment”)).
We conclude that even if appellant’s issue was properly preserved, Dr. VargasWhale’s expert testimony was based on her independent analysis of J.R.’s medical
records—not as a surrogate of Dr. Timperlake—and thus no violation of appellant’s Sixth
Amendment right to confrontation occurred.
C. Harmless Error
Even if we were to conclude the trial court erred in admitting the subject testimony,
the error would not be reversible. If we find constitutional error, we must reverse unless
we determine “beyond a reasonable doubt that the error did not contribute to the
conviction or punishment.” TEX. R. APP. P. 44.2(a). In determining whether a constitutional
error under Crawford may be declared harmless beyond a reasonable doubt, Texas
courts apply the following factors: (1) how important was the out-of-court statement to the
State’s case; (2) whether the out-of-court statement was cumulative of other evidence;
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(3) the presence or absence of evidence corroborating or contradicting the out-of-court
statement on material points; and (4) the overall strength of the prosecution’s case. Scott
v. State, 227 S.W.3d 670, 690–91 (Tex. Crim. App. 2007).
Assuming arguendo that the introduction of Dr. Vargas-Whale’s testimony raised
Sixth Amendment concerns, the expert’s testimony was cumulative of other evidence and
was largely uncontested by appellant, rendering any potential error by the trial court on
this matter harmless. See id. In particular, nineteen exhibits of J.R.’s X-rays and
photographs from those hospital stays were admitted into evidence—indeed, appellant
cross-examined Dr. Vargas-Whale on her initial medical diagnosis using several of J.R.’s
admitted X-ray exhibits. These photographs and X-rays showed visible bone fractures on
the six-month-old’s chest and tibia, including subsequent calluses after two weeks,
indicating broken rib bones. The severity of J.R.’s injuries was apparent in these X-rays
and photographs, leading this court to conclude beyond a reasonable doubt that Dr.
Vargas-Whale’s testimony was cumulative of other evidence and did not affect the jury’s
ultimate verdict. See id.; TEX. R. APP. P. 44.2(a).
IV. CONCLUSION
We affirm the trial court’s judgment.
L. ARON PEÑA JR.
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
15th day of October, 2026.
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