Opinion
No. 05-05-00830-CR
Opinion issued June 20, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F03-50710-Uvl. Affirmed.
Before Justices MORRIS, O'NEILL, and MAZZANT.
OPINION
Jose Manuel Davila appeals his conviction for murder. In eight issues, he claims (1) the evidence is legally and factually insufficient to support his conviction; (2) the trial court erred in limiting his cross-examination about the victim's character; (3) the trial court erred in overruling his objection to the admission of his written statement to the police, his Miranda card, and his photograph; (4) the trial court erred in the admission of autopsy photographs; and (5) the trial court erred in denying his request to instruct the jury to disregard after sustaining his objection to the prosecutor's "unsworn jury argument." We affirm the trial court's judgment.
Factual Background
On the evening of April 18, 2003, at approximately 9:00 p.m., Samuel Martinez telephoned his friend, Ricardo Trejo, and made plans for the evening. After picking up Ricardo, Samuel drove back to his house, where they were joined by Samuel's brother, Cesar Martinez. They decided to drive to a nearby park. Along the way, they encountered a friend, Jason Quinonez, who decided to join them. The four friends drove to a store, bought beer, and then drove to the park. Although it was Samuel's car, Ricardo was now driving. On their way to the park, Ricardo turned right on Bluffton Avenue, where appellant lived. Ricardo was driving, Samuel was in the front passenger's seat, and Jason and Cesar were in the rear seats. As they drove down Bluffton Avenue, they passed a group of people standing a few houses away from appellant's home. As they drove by, Samuel recalled that someone in the group on the street yelled "East Side," which he understood to be a street gang. Ricardo made a u-turn and headed back toward the group on the street. After the car reached the group of people gathered near the street, Ricardo stopped the vehicle, got out, and began arguing with them. A fight ensued. Samuel, Cesar, and Jason got out of the car to help Ricardo. Samuel hit Adam Dominguez, who was fighting with Ricardo. Ricardo also fought with appellant, and Cesar and Jason were fighting with two other people. Samuel testified that, up to this point, no weapons were used. After Samuel saw appellant run to a nearby house, he tried to get everyone to leave because he thought appellant might be looking for weapons or help. As Samuel ran towards the vehicle, however, Adam tackled him from behind and fought with him. Samuel saw appellant come out of the house carrying a rifle. By this point Ricardo, Cesar, and Jason were in the vehicle attempting to flee. Samuel, who was still fighting with Adam, saw the rifle's muzzle flash and heard the first shot, which struck the rear of the vehicle. Ricardo started to drive away with Cesar and Jason but noticed Samuel was not in the car. Ricardo stopped the car, and Cesar got out to help Samuel. Appellant fired a second shot, which hit Cesar in the leg. Samuel and Cesar managed to get back into the vehicle and tell Ricardo, who was in the driver's seat, to leave. As they did this, appellant continued to fire the rifle. Ricardo put the car in drive, stepped on the gas, but then slumped over the steering wheel with a gunshot wound to the back. Samuel and Cesar drove Ricardo to the hospital, where he later died. On the afternoon of April 19, 2003, appellant's father called Charles Young of the Dallas Police Department and told him appellant was at Baylor Hospital. After arranging appellant's transport to the police station with officers at the hospital, Young interviewed appellant. After being advised of his Miranda rights, appellant agreed to give a statement, which Young wrote out and appellant signed. In his statement, appellant admitted going into the house, retrieving a rifle, and shooting at the victim's vehicle three times "so they could leave." Officers subsequently went to appellant's residence on Bluffton Avenue and retrieved the rifle, which was admitted into evidence at trial. The police detectives who investigated the shooting testified at trial that shots had been fired at the rear of the vehicle. Forensics examiner Laura Fleming testified that the shell casings and bullet jacket fragments found at the crime scene and in the victim's vehicle indicate they were fired from the rifle recovered from appellant's residence. Dr. Lynn Salzberger, a medical examiner for the Southwestern Institute of Forensic Sciences, testified that Ricardo died from a gunshot wound to the back and his wound was consistent with the testimony of other witnesses that he was sitting in the driver's seat of the car when he was shot. After the State rested its case, Elizabeth Arias, who lives two houses down from appellant, testified for the defense that she was with Adam on the night of the incident. Elizabeth testified that, as the victim's vehicle drove by, one of the occupants rolled down the window and yelled something but no one could hear what was said. No one she was with said anything to the occupants of the vehicle. They saw the vehicle turn around and stop along the curb near her house. She said all four occupants got out carrying bats and a tire iron. The four individuals from the vehicle knocked appellant to the ground and began hitting him. After appellant escaped and went inside his home, he came out with a gun and asked the people from the vehicle to leave, but they refused. Appellant then fired the first shot through the rear window of the vehicle. Elizabeth testified that no one was in the vehicle when the first shot was fired. When the second shot was fired, two of the individuals were in the vehicle. When the last shot was fired, all four of them were in the car. Elizabeth testified that she did not give a statement to the police immediately after the incident. Adam, appellant's cousin, was the second and final witness for the defense. He testified that he, appellant, and several other individuals were standing outside appellant's home talking with Elizabeth at approximately 9:30 p.m. Adam had to use the telephone, so they began to walk back toward appellant's house when the victim's vehicle drove by. Someone from the vehicle yelled "East Side Killer." Adam testified that he was a member of the "East Side" gang but appellant was not. Adam did not see the vehicle turn around, but he heard a vehicle's door shut behind him. He turned around and saw appellant being hit with a crowbar and bat. After running to help appellant, Adam grabbed Samuel and held him down. Adam saw appellant fire the first shot in the air. Samuel then got up and ran towards the vehicle. Appellant fired again. Adam heard appellant fire a total of three shots. He did not tell the police the group in the car shouted "East Side Killer" as they drove by. His statement to the police indicated he had been in the house talking on the telephone when he went outside and saw appellant "getting jumped." Rejecting appellant's claim of self-defense, the jury found him guilty of murder and sentenced him to twenty-five years in prison.Discussion
Legal and Factual Sufficiency In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his murder conviction in light of his claim of self-defense. We apply familiar standards when reviewing challenges to the legal and factual sufficiency of the evidence. In a legal sufficiency review, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). A defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003); Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.Crim.App. 1991). Once the defendant produces such evidence, the State then bears the burden of persuasion to disprove the raised defense. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. The burden of persuasion is not one that requires the production of evidence; rather, it requires only that the State prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. When a factfinder determines that the defendant is guilty, there is an implicit finding against the defensive theory. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914. When an appellant challenges the legal sufficiency of the evidence supporting a jury's rejection of self-defense, "we look not to whether the State presented evidence which refuted appellant's self-defense testimony, but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt." Saxton, 804 S.W.2d at 914. When an appellant challenges the factual sufficiency of the rejection of self-defense, we review all of the evidence in a neutral light and ask "whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence." Zuliani, 97 S.W.3d at 595 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)). The jury was authorized to convict appellant of murder if it found beyond a reasonable doubt that appellant intentionally or knowingly caused the death of an individual or if he intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the death of an individual. See Tex. Pen. Code Ann. § 19.02(b)(1) (2) (Vernon 2005). The charge also provided an instruction on self-defense. A person is "justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." Tex. Pen. Code Ann. § 9.31(a) (Vernon 2005); see also Tex. Pen. Code Ann. § 9.32 (Vernon 2005) (justification for using deadly force). In the present case, considerable evidence indicates that appellant shot at Ricardo while Ricardo and his friends were in their car attempting to flee. Appellant was seen running back into his house after he had evaded the individuals with whom he had been fighting. Appellant was then seen exiting his house carrying a rifle and subsequently fired the rifle at the vehicle to which Ricardo and his companions were running. In his sworn statement to the police, appellant admitted he went into his house, grabbed a rifle, and fired several shots at the victim's vehicle. The police detectives who investigated the shooting testified that shots were fired at the rear of the vehicle. The forensics examiner testified that tests on bullet fragments and shell casings found at the crime scene showed they were fired from the rifle recovered from appellant's home. The medical examiner testified that Ricardo died from a gunshot wound to the back and, consistent with witness testimony, he was sitting in the driver's seat of the vehicle when he was shot. After viewing all the evidence in the light most favorable to the prosecution, we conclude any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and the same rational trier of fact would have found against appellant on the self-defense issue beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914. Furthermore, giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude, after reviewing the evidence in this case, that the State's evidence taken alone is too weak to support the finding or that the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. See Zuliani, 97 S.W.3d at 595. Therefore, we conclude the evidence is legally and factually sufficient to support appellant's murder conviction. We overrule appellant's first and second issues. Sustaining the State's Objection In his third issue, appellant contends the trial court erred in sustaining the State's objection to his cross-examination about the deceased's character. The State maintains the trial court did not abuse its discretion in sustaining the State's objection to the admission of this evidence because the State did not "open the door" during direct examination. As its first witness, the State called Ricardo's older brother, Alfredo. Alfredo testified that Ricardo, who attended high school, had just turned seventeen shortly before he died. Alfredo also testified that Ricardo looked up to him and would always follow his advice. The prosecutor then asked, "Did you have to get on him sometimes?" Alfredo responded, "Yeah I had — sometimes he would slip and I would have to get on him." On cross-examination, defense counsel questioned Alfredo as follows:Q. [DEFENSE COUNSEL]: How was he slipping? How did you know he was slipping?
A. You know, my mother would sometimes say, hey, I saw Ricardo smoking a cigarette, and I would talk to him and tell him, hey, you know, why were you smoking. And he would tell me that that is what everybody was doing in high school, that that was cool. And he would take my advice from there.
Q. That is about the worst he would do to slip is smoke a cigarette?
A. No, he would —
[PROSECUTOR]: Object to relevance to that, Judge.
[DEFENSE COUNSEL]: Your Honor —
THE COURT: Overruled.
A. He would — he skipped school once or twice that I recall. But from that, that is about the worst he has ever done, from my knowledge.
Q. [DEFENSE COUNSEL]: Worst he ever did was skip school or smoke a cigarette, to your knowledge?
A. Yes, sir.
Q. Okay. You don't have any knowledge that about a month earlier —
[PROSECUTOR]: Object, Your Honor. May we approach?
THE COURT: Sure.
(Off-the-record discussion at the bench)
THE COURT: Sustain the objection. You will be allowed to make a bill at the appropriate time . . .During a hearing held outside of the jury's presence, defense counsel questioned Alfredo about Ricardo's "slips" of smoking cigarettes and skipping school:
Q. And you said his slips were smoking cigarettes and skipping school a few times?
A. Yeah. He would also — he had a curfew, had to be home at 10, he would get home at 10:30, 11. My mother would tell him to do chores, he would sometimes not do any chores and I would get on him about things like that.
Q. And you had indicated through your testimony you knew pretty much what he was doing and what was going on in his life.
A. Not everything he was doing, but the majority of the things he was.
Q. Okay. Did you know on March 7, 2003, he was arrested by Wiley Police on an aggravated assault an — or, excuse me, deadly conduct and unlawfully carrying a weapon charge?
A. Yes, I was aware of that, but he was not carrying any weapons.
Q. And that is a slip, right?
A. Yeah, I would consider that a slip.
Q. Okay.
A. Hanging around with the wrong people.
Q. You didn't mention that.
A. Oh, there is plenty of things I haven't mentioned. Like, for example, the chores, I forgot to tell you, the coming home late.
Q. Well, I understand the chores and coming home late. But I mean, being arrested a month before for carrying a weapon?
A. No, he wasn't carrying a weapon.
Q. I understand, but he was charged with that?
A. Oh, I'm not sure. I was not aware of him being charged with that.
Q. I thought you said you were aware.
A. No, I didn't know he was charged. I thought the guy carrying the weapon was charged with that.
Q. But you knew Ricardo was arrested?
A. Yes.
Q. And did you talk to him about that slip?
A. Yes.At the conclusion of the hearing, defense counsel argued that evidence of Ricardo's misconduct was relevant because such matters had been opened up by the State's direct examination. The trial court rejected this argument and again sustained the State's objection. We review a trial court's ruling admitting or excluding testimony under an abuse of discretion standard, meaning that we will uphold the trial court's decision if it is within "the zone of reasonable disagreement." See Salazar v. State, 38 S.W.3d 141, 153-54 (Tex.Crim.App. 2001). As a general rule, specific acts of misconduct may not be introduced to impeach a party or witness. See Prescott v. State, 744 S.W.2d 128, 130 (Tex.Crim.App. 1988). However, opposing counsel may introduce evidence about otherwise irrelevant past criminal history when a witness, during direct examination, "open[s] the door" or leaves a false impression with the jury as to the extent of either his prior arrests, convictions, charges, or trouble with the police. See Prescott, 744 S.W.2d at 130-31; see also Delk v. State, 855 S.W.2d 700, 704 (Tex.Crim.App. 1993). In the present case, the prosecutor's question on direct examination about whether Alfredo would sometimes have to "get on" Ricardo and Alfredo's answer that Ricardo would occasionally "slip and I would have to get on him" were general in nature. Alfredo's response did not leave a false impression with the jury. It was defense counsel who asked on cross-examination about specific examples of Ricardo's "slips." In response, Alfredo mentioned Ricardo's smoking cigarettes and skipping school. Appellant's counsel then attempted to elicit from Alfredo, under the theory that the State opened the door during direct examination, that Ricardo had recently been either arrested and/or charged with a crime. Because the State's general question during direct examination did not open the door, the trial court did not abuse its discretion in concluding the impeachment evidence was irrelevant and inadmissible. Appellant's third issue is overruled. Appellant's Written Statement, Miranda Card, and Photograph In his fourth, fifth, and sixth issues, appellant alleges the trial court erred in overruling his objection to the voluntariness of his written statement to the police and the admission of his Miranda card and booking photograph. Although appellant argues on appeal that his statement to the police was involuntary, he claims, as did trial counsel in the motion to suppress, that the statement, Miranda card, and photograph should have been suppressed because appellant's warrantless arrest violated the Fourth Amendment, the Fourteenth Amendment, and Texas's exclusionary rule, article 38.23 of the Texas Code of Criminal Procedure. Therefore, the issue is not the voluntariness of appellant's statement but whether the warrantless arrest was justified under federal and state law. Appellant filed a motion to suppress which was denied by the trial court following a hearing. Young testified that he was assigned to the Homicide Division of the Dallas Police Department. He talked to appellant's father after the shooting and was looking for appellant. Appellant had left the scene right after the shooting, and Young was concerned he would flee the state or country. Young told appellant's father the police needed to interview appellant and other family members. Young gave appellant's father his cell phone number. After Young arrived at work on April 19, 2003, appellant's father called Young's cell phone at approximately 1:30 p.m. to tell him appellant was at Baylor Hospital. Young went to the hospital and talked to appellant's father. He did not talk to appellant, who was being treated in the emergency room. Appellant was interviewed by another officer and indicated "he had fired a shot" at Ricardo, Cesar, and Samuel. Young told officers to bring appellant to the police station after he was released from the hospital. At that moment, another detective was preparing an arrest warrant for appellant. Young did not know whether the warrant was ready, but based on information gathered in the hours following the shooting, he concluded he had probable cause to believe appellant was the shooter. At approximately 3:30 p.m., patrol officers brought appellant to the interview room at the police department. Appellant had not been formally placed under arrest but he was not free to go. Appellant was wearing hospital warm-ups because his clothes had been collected at the hospital for analysis. Young read appellant his Miranda rights from the card, which was admitted at trial. Appellant indicated that he understood his rights by writing his name, the date, and the time on the Miranda card. Young also put his initials on the Miranda card and added the date and time. Young and appellant discussed the sequence of events. Young asked appellant if he wanted to write out what happened or whether he wanted to dictate a statement and have Young write it. Appellant elected to have Young write the statement, which was admitted at trial. After the statement was completed, a civilian witness was brought into the room to witness the signatures. Appellant was given a copy of the statement so he could follow along as Young read the written statement and the statutory warnings back to appellant. After being given an opportunity to make corrections, appellant signed the statement. Appellant never asked to terminate the interview or speak to an attorney nor did he give any indication he was unwilling to talk to Young about what happened on the evening in question. Young testified before the jury that he and another detective arrived at the crime scene at approximately 11:30 p.m. on April 18, 2003. Young interviewed witnesses and talked to appellant's father, who gave officers written consent to search his home. No one else was in the house. Young gave appellant's father his cell phone number and asked him to call if he located appellant. Young went to the hospital where the shooting victim had been transported and interviewed additional witnesses. A trial court's ruling on a motion to suppress is reviewed under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). We give "almost total deference to a trial court's determination of historical facts" and review de novo the court's application of the law to those facts. Id.; see also Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App. 2002). If the issue involves the credibility of witnesses, making the evaluation of the witnesses' demeanor important, we defer to the trial judge's determination of the facts. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We review de novo mixed questions of law and fact that do not turn on an evaluation of witness credibility and demeanor. Guzman, 955 S.W.2d at 89. When, as in this case, the trial court does not file findings of fact, we examine the evidence in the light most favorable to the trial court's ruling and assume the trial court found facts favorable to its ruling when the record supports the implicit findings. Ross, 32 S.W.3d at 855. Under the federal constitution, officers can arrest without a warrant as long as they have probable cause. United States v. Watson, 423 U.S. 411, 423 (1976). In Texas, however, a police officer may make a warrantless arrest only if "(a) there is probable cause with respect to that individual, and (b) the arrest falls within one of the exceptions specified in the Texas Code of Criminal Procedure." McCraw v. State, 117 S.W.3d 47, 54 (Tex.App.-Fort Worth 2003, pet. ref'd). Probable cause for a warrantless arrest exists when a police officer has reasonably trustworthy information, considered as a whole, that is sufficient to cause a reasonable, prudent officer to believe that a particular person has committed or is committing an offense. See Hughes v. State, 24 S.W.3d 833, 838 (Tex.Crim.App. 2000). Courts in Texas are in agreement that the current interpretation of article one, section nine of the state constitution is consistent with the interpretation of the Fourth Amendment. Aitch v. State, 879 S.W.2d 167, 171 (Tex.App.-Houston [14th Dist.] 1994, pet. denied). Based upon the information gathered in the hours following the shooting, Young believed appellant was the suspect. Young knew appellant had told another officer at the hospital that he fired shots at the deceased. Considering the totality of the circumstances, the officers had probable cause to arrest appellant at the hospital. Therefore, because probable cause existed to authorize appellant's warrantless arrest, appellant's objection to the written statement, Miranda card, and photograph based upon the federal constitution must fail. Turning to appellant's statutory challenge, we note that article 14.04 of the Texas Code of Criminal Procedure provides that "[w]here it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, the peace officer may, without a warrant, pursue and arrest the accused." Tex. Code Crim. Proc. Ann. art. 14.04 (Vernon 2005). "Satisfactory proof" is the legal equivalent of constitutional probable cause. Hughes, 24 S.W.3d at 838. In the present case, Young knew from his investigation that appellant had left the scene immediately after the shooting. Young was concerned appellant would flee the state or possibly even the country. Another detective was working on an arrest warrant but Young did not know whether the warrant had been completed when he arrived at Baylor Hospital. Considering the totality of the circumstances, we conclude appellant's warrantless arrest at the hospital was legitimately made under article 14.04. Therefore, the trial court did not err in failing to exclude the challenged evidence under article 38.23. Appellant's fourth, fifth, and sixth issues are overruled. Autopsy Photographs In his seventh issue, appellant contests the admission of ten eleven-and-one-half by eight inch color autopsy photographs. Appellant's trial counsel objected to the proposed admission of the autopsy photographs, State's exhibits sixty-three through seventy-two, based upon Tex. R. Evid. 403, arguing they were prejudicial and unnecessary. The trial court initially sustained appellant's objections to exhibits sixty-five and seventy because they were "duplicitous" but admitted the other photographs. The medical examiner testified that she reviewed the autopsy photographs and chose only those which she thought were necessary. She also explained that exhibits sixty-five and seventy were not "duplicitous" with exhibits sixty-three and sixty-nine because the photos would further assist her in explaining to the jury the nature and location of the bullet wound. The State re-offered exhibits sixty-five and seventy and the court admitted the photographs. The admissibility of a photograph is within the sound discretion of the trial judge. Paredes v. State, 129 S.W.3d 530, 539 (Tex.Crim.App. 2004). We will not disturb a trial court's ruling admitting or excluding evidence so long as the trial court's decision falls within the "zone of reasonable disagreement." See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990). Evidence is relevant if it tends to make the existence of any consequential fact more or less probable than it is without the evidence. Tex. R. Evid. 401; see Mayes v. State, 816 S.W.2d 79, 84 (Tex.Crim.App. 1991) (evidence is relevant under Rule 401 if it "influences consequential facts, i.e., facts which have something to do with the ultimate determination of guilt or innocence in a particular case"). Under Rule 403, all relevant evidence is admissible unless "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. Rule 403 does not exclude all prejudicial evidence; rather, it focuses only on the danger of unfair prejudice. State v. Mechler, 153 S.W.3d 435, 440 (Tex.Crim.App. 2005). "Unfair prejudice" pertains "only to relevant evidence's tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged." Id. In deciding whether to admit autopsy photographs, the trial court may consider the following factors to determine whether the danger of unfair prejudice substantially outweighs the probative value of the evidence: the number of photographs, the size of the photograph, whether they are in color or black-and-white, whether they are gruesome, whether the body is naked or clothed, and whether the body has been altered by autopsy. Reese v. State, 33 S.W.3d 238, 241 (Tex.Crim.App. 2000). Autopsy photographs are generally admissible unless they depict mutilation caused by the autopsy itself. Rayford v. State, 125 S.W.3d 521, 529 (Tex.Crim.App. 2003). Changes rendered by the autopsy process are of minor significance if the disturbing nature of the photograph is primarily due to the injuries caused by the appellant. Hayes v. State, 85 S.W.3d 809, 816 (Tex.Crim.App. 2002). When pictorial evidence will help the jury understand verbal testimony, such as technical language used by a medical doctor to describe injuries sustained by a victim of a crime, the photograph is generally admissible. Harris v. State, 661 S.W.2d 106, 107 (Tex.Crim.App. 1983). Photographs that depict the nature, location, and extent of a wound have been declared probative enough to outweigh any prejudicial effect. Legate v. State, 52 S.W.3d 797, 807 (Tex.App.-San Antonio 2001, pet. ref'd). Overall, the photograph must be helpful to the jury. "If there are elements of a photograph that are genuinely helpful to the jury in making its decision, the photograph is inadmissible only if the emotional and prejudicial aspects substantially outweigh the helpful aspects." Erazo v. State, 144 S.W.3d 487, 491-92 (Tex.Crim.App. 2004). The photographs at issue depict how the victim's body was received at the hospital, wounds which are not gunshot-related, the bullet wound to the back, and the frontal exit wound. Although the bullet wound to the back is shown in several photographs, the wound is displayed from both the front and back of the victim's body with close-up views of each side. Although the victim's nude body is displayed in several photographs, there is no indiction of gruesome injuries or autopsy procedures, such as the cutting and dissection of body parts. The photographs are clinical in nature and neither gruesome nor repetitive. In addition, the condition of the body, including the location of the entry and exit wounds, was relevant to show that the victim was shot in the back, probably while seated in the driver's seat of the vehicle. Because there is some probative value of the autopsy photos in helping the jury understand the nature of the victim's wounds, the trial court did not abuse its discretion in admitting the photos. Appellant's seventh issue is overruled. Jury Argument In his eighth issue, appellant alleges the trial court erred in denying his request to instruct the jury to disregard after sustaining his objection to the prosecutor's "unsworn jury argument." The incident occurred during defense counsel's closing argument in the guilt-innocence stage of the trial. Counsel was summarizing for the jury the contents of appellant's medical records. Defense counsel told the jury, "And he has got a broken nose. They thought maybe a fractured elbow . . ." The prosecutor objected, and the following occurred:
[PROSECUTOR]: Objection, Your Honor. It is clear in the medical records it is an error and it is crossed out. There is no inference anywhere else in the medical records of any X-rays done on this elbow. There is a line that says fractured elbow and it is crossed out and says error. No one at that hospital thought he had a fracture.
[DEFENSE COUNSEL]: Your Honor, I object to the speaking objection.
THE COURT: Sustained as to both of them.
[DEFENSE COUNSEL]: And ask the jury to be instructed to disregard the prosecutor's statement.
THE COURT: Denied.
[DEFENSE COUNSEL]: If he wants to be sworn in, let him be sworn in and let him testify . . .The prosecutor's comment was not unsworn testimony. Defense counsel was arguing to the jury that the medical records showed appellant might have had a fractured elbow. The prosecutor believed this was a factual misstatement. The medical records had already been admitted into evidence, and the prosecutor had to explain the specifics of his objection in order for the court to make a ruling. In objecting to defense counsel's jury argument, the prosecutor was merely pointing out what was contained in the medical records. The prosecutor was correct that the notation in appellant's medical records of a fractured elbow was crossed out with the notation "error." No medical documents of which we are aware indicate appellant had a fractured elbow. Therefore, no unsworn testimony or harmful facts were injected into the trial. Furthermore, no instruction to disregard was necessary because the subject of the prosecutor's objection merely concerned what was in the medical records, which the jury could review for themselves. We conclude the trial court did not err in denying appellant's request for an instruction to disregard. Appellant's eighth issue is overruled. We affirm the trial court's judgment.