                                    NO. 07-03-0060-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                    JUNE 29, 2004
                           ______________________________

                              JONATHAN RAY GRIFFIN, SR.,

                                                                  Appellant

                                              v.

                                  THE STATE OF TEXAS,

                                                       Appellee
                         _________________________________

     FROM THE 252ND CRIMINAL DISTRICT COURT OF JEFFERSON COUNTY;

                    NO. 81,858; HON. LAYNE WALKER, PRESIDING
                         _______________________________

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

       Jonathan Ray Griffin, Sr. (appellant) appeals his conviction for manslaughter. Via

three issues, he contends that the trial court erred 1) in failing to grant him a mistrial after

the prosecutor impermissibly commented on his failure to testify and 2) in permitting the

State to utter improper argument during its closing. We affirm.

                                        Background

       Appellant had two children with LaDanna McQueen (McQueen). One was a girl,

L.R.G., who was born on February 21, 2000. On May 27, 2000, appellant was watching

his two children while McQueen was at work. McQueen arrived home the next morning
between 2:15 and 2:45 a.m. She checked with appellant about the children, and he

advised her that everyone was okay. McQueen went to sleep on a loveseat next to the

couch where her daughter was laying. The next morning appellant awoke McQueen by

advising her “that something was wrong with the baby.” McQueen held L.R.G., felt “how

cold she was,” and then called 911. An EMS crew arrived and determined that the baby

had been dead for some time.

       An autopsy revealed that the infant died from trauma to her head that caused

lacerations to the brain. Upon questioning by the police, appellant admitted to hitting the

child three times on the back of her head with his fist. These acts were determined to have

caused the trauma.

       Evidence also was presented at trial illustrating that appellant was “low borderline

to high mild mental retardation.” Thereafter, a jury convicted him of manslaughter and

levied a sentence of 20 years in prison.

                   Issue One - Comment on Right to Remain Silent

       Appellant contends that the trial court erred in denying his motion for mistrial after

the prosecutor impermissibly commented on his right to remain silent. The comment in

question involved the prosecutor asking the first witness to testify at trial about whether

appellant ever expressed whether “he was sorry . . . .” Appellant objected to the question

on the ground mentioned above, and the trial court sustained the objection. However, it

denied his request for mistrial. We overrule the issue.

       It is clear that when the complained of comment was uttered, the State had not

closed its case. Nor had appellant rested. Similarly clear is that the utterance did not

contain words expressly referring to appellant’s silence during trial or invocation, if any, of

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any right against self-incrimination. Rather, the context of the statement involved two

letters written by appellant and sent to McQueen. According to the latter, she construed

them as his asking for forgiveness. In response to that, the prosecutor asked whether

appellant talked to her or told “you he was sorry about . . . .” At that point, appellant

objected.

       Given the context and timing of the utterance, we do not construe it to be one that

“was manifestly intended or was of such character that the jury would naturally and

necessarily take it to be a comment on the accused's failure to testify." Caldwell v. State,

818 S.W.2d 790, 800 (Tex. Crim. App. 1991) (quoting Dickinson v. State, 685 S.W.2d 320,

323 (Tex. Crim. App. 1984)) (describing the quoted passage to be the relevant test); see

Bustamante v. State, 48 S.W.3d 761, 767 (Tex. Crim. App. 2001) (stating that the timing

of the comment is a factor to consider in assessing whether it was an improper); Swallow

v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992) (requiring the comment to be more

than "an implied or indirect allusion" to the failure of the accused to testify). And, because

it fell outside the scope of utterances as defined in and prohibited by Caldwell, it was not

a comment on the failure to testify even though the trial court may have believed otherwise.

Thus, no error occurred when the trial court refused to grant a mistrial.

                                  Issues Two and Three

       In his final two issues, appellant contends that the trial court erred “by allowing

improper jury argument.” The improper argument allegedly consisted of the prosecutor

uttering comments “contrary to the court’s charge” and alluding to matters outside the

record. We overrule the issues.



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       In pressing his contention, appellant provides us, in his brief, lengthy excerpts of the

State’s argument. However, he does not expressly refer to the particular utterances he

urges, on appeal, to be objectionable. This is of import for some of the comments to which

he objected (and which were included in the excerpts) were not preserved due to his failure

to request an instruction to disregard and move for a mistrial once the initial objection was

sustained. See Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App.), cert. denied, 516

U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995) (stating that to preserve an objection for

prosecutorial misconduct one must not only object but also request an instruction to

disregard and move for a mistrial). Moreover, none of the objections contained in the

excerpts specifically include an objection founded upon the contention that the prosecutor

was arguing “matters outside the record.” Nor does appellant explain how or why any

matter purportedly outside the record was outside the record and, therefore, improper

comment. So too did he fail to suggest, much less explain, why the trial court’s instruction

to disregard the comments did not cure the error. See Wilson v. State, 7 S.W.3d 136, 148

(Tex. Crim. App. 1999) (holding that an instruction to disregard normally cures the error

unless it was so egregious that an instruction would have little effect).

       Similar deficiencies are noted with regard to the complaint about arguing “the law

in a manner contrary to the courts [sic] charge.” Again, nowhere do any of the excerpts

reference an objection specifically incorporating the objection that the argument

contradicted the trial court’s jury charge. Nor did appellant provide us with specific

explanation, and supporting authority, illustrating that anything said by the State was

contrary to the charge and, therefore, improper. And, to the extent that it could be said that

appellant refers to a comment about the jury being unable to consider his mental

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retardation while assessing guilt, the trial court sustained the objection. However, appellant

did not request an instruction or move for a mistrial.

       As to the objection about what appellant’s “job” at trial consisted of, he again omits

explanation as to why the instruction to disregard did not cure the purported error. Nor

does he provide us with authority or analysis illustrating that the comment was actually

improper.

       Given that appellant did not specify the particular comments encompassed within

his issues on appeal, that various of the objections uttered below were not preserved for

review, that various of the objections urged now were unmentioned below, that appellant

fails to provide us with any explanation as to why any of the excerpts to which he alludes

was improper, that appellant fails to argue that (much less explain why) the purported

errors were not cured by the court’s instruction to disregard, and that appellant fails to

provide us with legal authority supporting his contention that what the State argued

constituted either impermissible comment outside the record or comment contradicting the

charge, we conclude that issues two and three were waived. See Coffey v. State, 796

S.W.2d 175, 179 (Tex. Crim. App. 1990) (holding that an issue on appeal must comport

with the objection asserted at trial); Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex.

App.–Amarillo 1998, no pet.) (requiring the appellant to provide the appellate court with

both substantive analysis and legal authority supporting its issue or the complaint is

waived).

       Having overruled each issue, we affirm the judgment of the trial court.



                                                  Brian Quinn
Do not publish.                                     Justice

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