Affirmed as Modified; Opinion Filed February 19, 2020




                                                In the
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-19-00707-CR

                               JODI RAE MCDONALD, Appellant
                                            V.
                                THE STATE OF TEXAS, Appellee

                       On Appeal from the 292nd Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F-1852869-V

                              MEMORANDUM OPINION
                            Before Justices Myers, Schenck, and Carlyle
                                     Opinion by Justice Carlyle

       Appellant Jodi Rae McDonald entered an open plea of guilty to aggravated assault with a

deadly weapon causing serious bodily injury to a family member. Following a hearing, the trial

court convicted her and assessed punishment at ten years’ imprisonment.

       In her sole issue on appeal, Ms. McDonald contends the trial court abused its discretion by

admitting certain photographs into evidence during the plea hearing. The State argues Ms.

McDonald’s appellate issue does not comport with her trial court objection and, regardless, the

trial court did not abuse its discretion. The State also asserts in a cross-point that this court should

modify the judgment to include the trial court’s affirmative finding of family violence. We affirm

the trial court’s judgment as modified in this memorandum opinion. See TEX. R. APP. P. 47.4.
Background

       Ms. McDonald was indicted for injuring the complainant—her husband—by stabbing him

in the neck with a knife. In August 2018, she filed a discovery motion requesting that the State

produce, among other things, “[a]ll photographs of the complainant, whether taken at the scene of

the alleged offense, at the scene where the complainant was discovered, [or] at the hospital, . . . if

any.” The day of Ms. McDonald’s guilty plea hearing, in March 2019, the State filed a list of items

it produced in response, including an electronic “zip” file it described as “Photographs.”

       During the plea hearing, the State asked the complainant, “[Y]ou and I in my office had

the opportunity to look through some photos from [the day of the stabbing]; is that correct?” The

complainant answered “yes” and testified that those photos “accurately describe the scene . . . as

it was.” Then, the prosecutor offered into evidence State’s Exhibit 4, a compact disc. Defense

counsel objected as follows:

       [DEFENSE COUNSEL]: I’ve seen photos, Judge, with regard to crime scene
       photos. I’ve not seen this.

       [STATE]: These are the crime scene photos.

       [DEFENSE COUNSEL]: I don’t know what else is on there.

       [STATE]: That’s all. You can check if you want.

       THE COURT: I’ll tell you what. You’ve seen crime scene photos. You’ve never
       seen what’s exactly on that disc, though?

       [DEFENSE COUNSEL]: Correct. I’ll have to object. I don’t know, other than
       what’s—

       [STATE]: I’ll show you if you like.

       THE COURT: I’ll tell you what. Before you do that, if you’re representing to the
       Court that they’re all pictures, and if there’s something on there that shouldn’t be
       on there, then you’re running a risk. You understand that?

       [STATE]: I understand, Your Honor.
                                                 –2–
       THE COURT: All right. Then I’ll admit those over your objection, conditioned
       upon their being relevant once we’ve seen them. I have to make the determination
       anyway. I’ll admit State’s Exhibit No. 4 over your objection. I’ll give you a running
       objection to State’s Exhibit No. 4.

       The State published the disc’s photos to the trial court one by one. The first dozen photos

showed blood-stained items in the apartment where the stabbing occurred. Then, defense counsel

again objected:

       [DEFENSE COUNSEL]: Judge, that’s where I’m going to object. No. 1, the
       previously was 7645494, that’s clearly at the hospital. It’s not a crime scene photo
       at the residence of which, subject to my previous objection, not knowing the full
       contents of the CD.

       THE COURT: The objection is overruled.

       [DEFENSE COUNSEL]: Same objection to—go back one.

       THE COURT: Are you going to object to all photos—

       [DEFENSE COUNSEL]: Yes, Your Honor.

       THE COURT: Hang on. —all photos of the victim at the hospital?

       [DEFENSE COUNSEL]: Yes, Judge.

       THE COURT: It’s my understanding by looking at these, these are photos of him
       at the hospital as a result of the wounds sustained?

       [STATE]: Yes, sir.

       THE COURT: Okay. The objection’s overruled. I will give you a running objection
       to all photos of him at the hospital—

       [DEFENSE COUNSEL]: Thank you.

       THE COURT: —contained on State’s 4.

       At the hearing’s conclusion, the trial court stated “I do find you guilty of the offense of

aggravated assault with a deadly weapon, serious bodily injury to a family member. I’m going to

make an affirmative finding of a deadly weapon. I’m going to make an affirmative finding of

family violence.”
                                               –3–
Ms. McDonald preserved her complaint

       In her issue, Ms. McDonald contends the trial court abused its discretion by admitting the

complainant’s hospital photos into evidence because “[defense] counsel objected that he had not

been given the documents on the disc labeled State’s Exhibit 4” as required by “[t]he Michael

Morton Act, Tex. Crim. Proc. Art. 39.14(a).” The State responds “[n]othing in [Ms. McDonald’s]

objections gave the trial judge notice that [she] was objecting to the exhibit based on the State’s

failure to timely disclose evidence pursuant to the Michael Morton Act or any discovery order as

she now raises on appeal,” and thus she failed to preserve her issue for appellate review.

       To preserve error for appellate review, the record must establish that the request or

objection made in the trial court “stated the grounds for the ruling that the complaining party sought

from the trial court with sufficient specificity to make the trial court aware of the complaint, unless

the specific grounds were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A); see Dixon v.

State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998). Even constitutional error may be waived by

failure to properly put the trial court on notice of the objection or request. See Reyna v. State, 168

S.W.3d 173, 177 (Tex. Crim. App. 2005). Arguments on appeal must comport to the objections or

requests made at trial. See, e.g., Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).

       Though no particular words or formalistic phrases are required to preserve an error, “[t]he

complaining party bears the responsibility of clearly conveying to the trial judge the particular

complaint, including the precise and proper application of the law as well as the underlying

rationale.” Pena v. State, 285 S.W.3d 459, 463–64 (Tex. Crim. App. 2009). Counsel for Ms.

McDonald adequately conveyed the objection below. Though not with perfect clarity, the

objection counsel made informed the trial court that counsel suspected the State had not disclosed

some or all of the contents of the disc he had not seen. It appears from the record that the trial court

understood this as well. In its response, “You’ve seen crime scene photos. You’ve never seen

                                                  –4–
what’s exactly on that disc, though?” the trial court evinced its understanding that counsel

complained of non-disclosure.

       Following the State’s offer to show counsel the contents of the disc, the court appropriately

admonished the State that it was “running a risk” if “there’s something on there that shouldn’t be

on there.” This too evinced the trial court’s understanding that counsel objected to items the State

had failed to disclose, or as the court noted, items “that shouldn’t be on there.” The State indicated

its understanding and the court then admitted the contents of the disc, “conditioned on their being

relevant once we’ve seen them,” a separate inquiry. After not lodging objections to several photos

of the bloody, messy apartment, the “crime scene,” counsel objected when the State showed a

picture of the wounded husband at the hospital. The court asked counsel if he objected to all

hospital photos, counsel said he did, and the court both overruled the objection and gave counsel

a running objection to the hospital photos on the disc.

       The two main purposes of requiring a specific objection are to inform the trial court of the

basis of the objection so it has an opportunity to rule on it and to allow opposing counsel to remedy

the error. Clark, 365 S.W.3d at 339. “Usually, for a complaint to be obvious without having been

explicitly stated and still satisfy the purposes above, there have been statements or actions on the

record that clearly indicate what the judge and opposing counsel understood the argument to be.”

Id. Based on the mid-hearing discussion we recite above, we conclude Ms. McDonald adequately

preserved error.

The trial court did not abuse its discretion by admitting the disc and its contents

       The Michael Morton Act requires, among other things, that the State must produce

requested discovery as soon as practicable after receiving a defendant’s timely request. TEX. CODE




                                                 –5–
CRIM. PROC. art. 39.14(a).1 We review the trial court’s decision to admit or exclude evidence under

an abuse-of-discretion standard. See Francis v. State, 428 S.W.3d 850, 855 (Tex. Crim. App.

2014); Salazar v. State, 38 S.W.3d 141, 153 (Tex. Crim. App. 2001). We will uphold the trial

court’s evidentiary ruling if it is within the zone of reasonable disagreement. Salazar, 38 S.W.3d

at 153.

           Counsel objected to potential contents of the disc he claimed had not been previously

disclosed, and that he had only seen crime scene photos. The State responded that the disc

contained only the crime scene photos counsel had seen. Apparently accepting the State’s

representation, and cautioning the State in the event that its representation was incorrect, the court

admitted the disc and its contents. The disc included photos depicting the bloody, messy aftermath

in the apartment where Ms. McDonald stabbed her husband. It also included photos of the husband

at the hospital to which counsel specifically objected.

           The trial court may have concluded the hospital photos had been disclosed to counsel based

on the State’s representation. It may have concluded the photos were not unnecessarily gruesome,

that they weren’t duplicative of other evidence, and that, as depictions of the injuries Ms.

McDonald admitted causing by pleading guilty, they were appropriately admitted. See TEX. R.

EVID. 401. Assuming the State did not disclose the hospital photos, nothing in the record supports

a conclusion this would have been more than extreme negligence or recklessness. See Francis, 428

S.W.3d at 855 & n.8. Based on this record, and without more, we cannot conclude the trial court

abused its discretion by allowing the hospital photos into evidence at the plea hearing. See id.




      1
        The record contains the required notice of disclosure, which refers to Ms. McDonald’s article 39.14 request for discovery and includes a list
of the items disclosed. TEX. CODE CRIM. PROC. art. 39.14(a), (i), (j). The State’s list of items provided to counsel includes only the name of the zip
file characterized as containing photographs, and does not include an itemized file-name list or other description of the photographs in that zip file.

                                                                        –6–
The State’s cross-point: add “family violence” finding to the judgment

       If a trial court determines that an offense under title five of the Texas Penal Code

(“Offenses Against the Person”) involved “family violence,” as defined by Texas Family Code

section 71.004, the court shall make an affirmative finding of that fact and enter the affirmative

finding in the judgment of the case. CRIM. PROC. art. 42.013; see also Butler v. State, 189 S.W.3d

299, 302 (Tex. Crim. App. 2006). “Family violence” means “an act by a member of a family or

household against another member of the family or household that is intended to result in physical

harm, bodily injury, assault, or sexual assault.” TEX. FAM. CODE § 71.004(1). Spouses, of course,

are “family.” See id. § 71.003.

       The indictment in this case charged an offense under the penal code’s title five and alleged

that “defendant was a member of the complainant’s family and household.” See TEX. PENAL CODE

§ 22.02(b)(1). The trial court found Ms. McDonald guilty of “aggravated assault with a deadly

weapon, serious bodily injury to a family member” and stated, “I’m going to make an affirmative

finding of family violence,” but the judgment includes no affirmative finding of family violence.

       We conclude the trial court was statutorily obligated to include an affirmative finding of

family violence in its judgment. See CRIM. PROC. art. 42.013; Butler, 189 S.W.3d at 302. This court

has the power to modify a judgment to make the record speak the truth when we have the necessary

information before us to do so. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex.

Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d).

Thus, we modify the trial court’s judgment to include an affirmative finding of family violence.

       We decide Ms. McDonald’s issue against her and decide in the State’s favor on its cross-




                                               –7–
point. We affirm the trial court’s judgment as modified.

                                                           /Cory L. Carlyle/
                                                           CORY L. CARLYLE
                                                           JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
190707F.U05




                                               –8–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 JODI RAE MCDONALD, Appellant                       On Appeal from the 292nd Judicial District
                                                    Court, Dallas County, Texas
 No. 05-19-00707-CR         V.                      Trial Court Cause No. F-1852869-V.
                                                    Opinion delivered by Justice Carlyle.
 THE STATE OF TEXAS, Appellee                       Justices Myers and Schenck participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to include an affirmative finding of family violence.
        As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 19th day of February, 2020.




                                              –9–
