Opinion filed June 25, 2009




                                              In The


   Eleventh Court of Appeals
                                            __________

                                     No. 11-07-00226-CR
                                          ________

                                JESSE MCGINNIS, Appellant

                                                 V.

                                STATE OF TEXAS, Appellee


                              On Appeal from the 70th District Court

                                       Ector County, Texas

                                 Trial Court Cause No. A-33,368


                              MEMORANDUM OPINION
       Jesse McGinnis appeals his conviction by a jury of the offense of murder. The jury assessed
his punishment at life in the Texas Department of Criminal Justice, Institutional Division, and a fine
of $10,000. He contends in two issues on appeal that the trial court erred by overruling his objection
to an argument made by the State that commented on his failure to testify and that the trial court
abused its discretion by allowing certain exhibits into evidence because the evidence was more
prejudicial than probative. We affirm.
        McGinnis contends in Issue One that the trial court erred by overruling his objection to an
argument made by the State that amounted to a comment on his failure “to bring forth evidence in
the Guilt/Innocence Stage of the Trial.” However, an examination of his argument reveals that his
real issue in this appeal is that the comment by counsel for the State was a comment on his failure
to testify. A prosecutor’s comment on a defendant’s failure to testify offends both our state and
federal constitutions, as well as TEX . CODE CRIM . PROC. ANN . art. 38.08 (Vernon 2005). Allen v.
State, 693 S.W.2d 380, 385 (Tex. Crim. App. 1984). However, before a comment is a comment on
a defendant’s failure to testify, it must either be manifestly intended as such a comment or of such
a character that the jury would naturally and necessarily take it to be a comment on the defendant’s
failure to testify. Id.
        In his opening statement, counsel for McGinnis stated that he expected the evidence to show
that McGinnis, on the night in question, acted in self-defense. In his closing statement, McGinnis’s
counsel argued that it was Johnny Oranday who had fired the fatal shots. Following that argument,
counsel for the State argued, “Ladies and gentlemen of the jury, what we say here is not evidence.
What these lawyers say is not evidence. And that is probably a good thing because it seems that the
Defense’s story has changed from the beginning of the trial to the end.” Counsel for McGinnis
objected to the State’s argument on the basis that it assumed that the defense had some burden to
produce a story. After the objection, counsel for the State argued, “They stated that Jesse McGinnis
did at the beginning of the trial, and it’s not in dispute, and now all of a sudden, Johnny Oranday is
the shooter. What evidence do you have of that?” The trial court overruled McGinnis’s objection
that the State’s counsel was attempting to put some burden on the defense to bring in evidence.
        In order for error to be preserved, the defendant’s issue on appeal must comport with the
objection made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). At trial,
counsel for McGinnis objected on the basis that, in the argument complained of, the State was
suggesting that the defense had some burden to produce evidence, whereas, on appeal, McGinnis
contends that the State’s argument was a comment on his failure to testify. Inasmuch as McGinnis’s
issue on appeal does not comport with the objection he made at trial, nothing is presented for review.
We do not think McGinnis preserved error by cloaking his issue on appeal as one in which the




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State’s prosecutor commented on his failure to bring forth evidence when in reality the issue he
presents is that it was a comment on his failure to testify.
        Even if McGinnis’s objection had preserved the issue for our review, the nature of the
comment was not such as was manifestly intended to be a comment on the defendant’s failure to
testify or of such a character that the jury would naturally and necessarily take it to be a comment
on the defendant’s failure to testify. Rather, as was the case in Allen, the comment appeared to be
a reference to the variance between defense counsel’s opening statement virtually conceding that
McGinnis was the shooter and his closing statement asserting that someone else was the shooter.
McGinnis’s statement in his brief to the effect that the prosecutor used body language and gestured
at McGinnis is not supported by the record. We overrule Issue One.
        McGinnis urges in Issue Two that the trial court abused its discretion by allowing the
admission of various State’s exhibits, over objection, because the evidentiary value of the evidence
was clearly more prejudicial than probative. Although counsel does not directly specify the exhibits
to which the issue relates, he does refer us to the following pages of the record: “RR V. 4 pg. 71;
V. 5 pg. 81; V. 6 pg. 44-45; V. 6 pg. 152-53.”
        Page 71 of Volume 4 of the reporter’s record shows us that counsel for defense had an
objection to State’s Exhibit No. 10, a photograph of a blood pool on pavement. Although one of the
attorneys for the State said, “[W]e’ve got the objections to State’s Exhibit 10 on the record,”
McGinnis does not refer us to where on the record such an objection is stated. He also makes no
specific argument, with respect to this exhibit, as to why its probative value is substantially
outweighed by the danger of unfair prejudice. He does make a general argument that this and the
other evidence of which he complains constitutes evidence whose probative value is substantially
outweighed by the danger of unfair prejudice. Inasmuch as the record presented to us presents no
TEX . R. EVID . 403 objection to State’s Exhibit No. 10, nothing is preserved for review. Bell v. State,
938 S.W.2d 35, 49 (Tex. Crim. App. 1996). Even if error were preserved, we see no reason why
any probative value of a picture of blood found at the scene of the crime was substantially
outweighed by the danger of unfair prejudice.
        Page 81 of Volume 5 of the reporter’s record shows us that the trial court overruled an
objection made by defense counsel to State’s Exhibit No. 26, a color autopsy photograph that was


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introduced into evidence together with other color autopsy photographs. The record reflects that
defense counsel’s objection to the photograph was that its probative value was outweighed by its
prejudicial value.
       Admissibility of photographs is within the sound discretion of the trial court. Rayford v.
State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003). Rule 403 provides that even relevant evidence
may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury or by consideration of undue delay, or needless
presentation of cumulative evidence. Id.; Rule 403. Rule 403 favors admissibility and contains a
presumption that relevant evidence will be more probative than prejudicial. Rayford, 125 S.W.3d
at 529. A trial court’s decision will be upheld if it is within the zone of reasonable disagreement.
Id. Autopsy photographs are generally admissible unless they depict mutilation caused by the
autopsy itself. Id.
       In his testimony to the jury, Dr. Nizam Peerwani, Medical Examiner for Tarrant County,
discussed various autopsy photographs.       In discussing the gunshots shown by the autopsy,
Dr. Peerwani described two wounds, including a wound in the right mid-chest. He indicated that
“this gunshot was slightly altered because there was a surgical incision made by the hospital at this
point.” Inasmuch as State’s Exhibit No. 26 shows that there was only one gunshot wound in the
complainant’s mid-right chest and inasmuch as State’s Exhibit No. 26 was the only autopsy picture
showing what appears to be a surgical incision, we are of the opinion that Dr. Peerwani was
describing the incision shown in that exhibit.
       As with the other exhibits complained of by McGinnis, he makes no argument of prejudice
specific to this photograph. Disregarding the surgical incision contained in State’s Exhibit No. 26,
the exhibit depicted the realities of the crime committed and was no more graphic than the rest of
the photographs that were admitted into evidence. The presence of the incision was explained to the
jury as being the result of medical intervention at the hospital where the complainant was taken. We
hold that the probative value of the testimony was not substantially outweighed by the danger of
unfair prejudice.
       Pages 44 and 45 of Volume 6 of the reporter’s record relate to the introduction into evidence
of State’s Exhibits Nos. 41 through 45, which constitute photographs of the residence where the


                                                 4
shooting occurred. Trial counsel for McGinnis presented a relevancy objection based upon TEX . R.
EVID . 401. He made no objection that the probative value of the exhibits were substantially
outweighed by the danger of unfair prejudice. Therefore, as previously noted with respect to one of
the other exhibits of which McGinnis complains, nothing is presented for review.
        On Page 153 of Volume 6 of the reporter’s record, Mark Garza Jr., a cousin of the deceased,
testified as follows:
        Q. Okay. Now, at some point – How long have you known Jesse McGinnis?

        A. I would say about a year and a half, two years.

        Q. Okay. And how did you get to know him?

        A. Through the County.

        Q. Okay. Well, in other words, did y’all wind up in the same gang together?

        A. Yeah.

        Q. And how did y’all get in that gang?

        A. Just by the people we hang around with.

        Q. Okay. And what gang was that?

        A. West Texas.

        Following that exchange, counsel for McGinnis objected, stating, “Your Honor, I’m going
to object to the relevancy and materiality. And [a TEX . R. EVID .] 803 test of probative versus
prejudice.” In response, the State started to say it went toward motive but was interrupted by counsel
for McGinnis, who urged that the motive was “the girls fighting” and had nothing to do with gang-
related activities. Therefore, he urged that it was a prejudicial effect that had no probative value.
After the trial court overruled his objection, McGinnis’s counsel obtained a limiting instruction from
the court that the jury was to consider the testimony, “if for any reason, solely for the purposes of
the motive, if any.”
        We first note that defense counsel’s objection to the testimony concerning McGinnis’s
involvement with gangs was untimely because it was not made at the earliest opportunity. See

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Wilson, 71 S.W.3d at 349. Consequently, nothing is presented for review. Id. The trial court
allowed the testimony as evidence of motive, instructing the jury not to consider the evidence for any
other purpose. McGinnis makes no argument or showing on this appeal that the evidence was
inadmissible for that purpose and no specific argument why, if properly admitted for that purpose,
its probative value was substantially outweighed by the danger of unfair prejudice. We overrule
Issue Two.
       The judgment is affirmed.




                                                                                PER CURIAM


June 25, 2009
Do not publish.         See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
Strange, J., and Hill, J.1




       1
           John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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