Gustavo De Jesus Lopez v. State

Opinion issued January 15, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00991-CR

GUSTAVO DE JESUS LOPEZ, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1,085,785

MEMORANDUM OPINION

A jury convicted appellant, Gustavo De Jesus Lopez, of capital murder. See

Tex. Pen. Code Ann. § 19.03(a)(7)(A) (Vernon Supp. 2008). The trial court assessed

punishment at life in prison without parole. In four issues, appellant contends that:

(1) the evidence supporting his conviction was legally and factually insufficient; (2)

the trial court erred in admitting autopsy photographs of the deceased; and (3) the

trial court erred in overruling appellant’s objections to improper jury argument by the

State. We affirm.

Facts

At about 1 p.m. on January 10, 2006, in a strip center at Hardwicke and Airline,

a woman flagged down Aldine Independent School District police officer Alfred

Salazar and told him that two people were dead in a nearby record shop. Officer

Salazar entered the shop, where he found a man lying about two feet from the door

and a woman lying behind the sales counter. Both were dead. He secured the scene

until Houston Police Department (“HPD”) investigators arrived. Nine-millimeter and

.380 caliber bullets and shell casings were found at the scene and during the autopsies

of the deceased. At trial, investigators testified that robbery did not appear to be the

motive for the crime, as neither person’s wallet had been emptied or stolen and no one

had tampered with the record shop’s cash register.

Appellant’s live-in girlfriend testified that appellant left their apartment in the

morning on the day of the shootings and returned at approximately 3:00 p.m. with his

Taurus nine-millimeter pistol in his hand and blood on his shoes. She further testified

that, when a news report on the shootings aired on television later that day, appellant

called her into the living room. She “asked him if he had done that,” and appellant,

after first shaking his head no, said yes. That night, the girlfriend overheard a

conversation in the living room between appellant and a friend about splitting money.

The next day, appellant left the apartment and returned in a Cadillac Escalade.

Immediately after telling his girlfriend that “some man” had given him the Escalade,

appellant left and returned without it. He told his girlfriend that he had returned the

car because he did not want to “catch the neighborhood’s attention.”

In May of 2006, appellant’s girlfriend attempted to obtain a restraining order

against appellant. She testified that she told officers she was “kind of scared” of

appellant because “supposedly he had done—he had killed people before.” She

further testified that she specifically mentioned “the killing on Airline” of a man and

a woman and “the 9-millimeter.” Based on her statements, homicide investigators

went to appellant’s apartment to interview her. Appellant, who was in the apartment,

consented to a search of the apartment. Investigators found nine-millimeter and .380

caliber ammunition and a Taurus nine-millimeter pistol, which ballistics tests

indicated was used in the shootings.

Legal Sufficiency

In his first issue, appellant contends that the evidence is legally insufficient to

support his conviction.

Standard of Review

We review the legal sufficiency of the evidence by viewing the evidence in the

light most favorable to the verdict and determining whether any rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt.

See Cruz v. State , 238 S.W.3d 381, 386 (Tex. App.—Houston [1st Dist.] 2006, pet.

ref’d) (citing King v. State , 29 S.W.3d 556, 562 (Tex. Crim. App. 2000)). The trier

of fact is the sole judge of the weight and credibility of the evidence. See Margraves

v. State , 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal

sufficiency review, we may not re-evaluate the weight and credibility of the evidence

and substitute our judgment for that of the factfinder. See Dewberry v. State , 4

S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the

evidence in favor of the verdict. See Curry v. State , 30 S.W.3d 394, 406 (Tex. Crim.

App. 2000).

The Evidence

Under the law applicable in this case, a person commits the offense of capital

murder if he intentionally or knowingly causes the death of an individual and murders

more than one person during the same criminal transaction. See Tex. Pen. Code Ann.

§§ 19.02(b)(1), 19.03(a)(7)(A) (Vernon 2003 & Supp. 2008). The medical examiner

testified that the deceased were killed by multiple gunshot wounds. The State’s

ballistics expert testified that a Taurus nine-millimeter pistol seized during a

consensual search of appellant’s apartment fired several of the bullets that were

recovered at the crime scene and during the autopsies of the deceased. Investigators

also found .380 caliber ammunition during the search of appellant’s apartment. The

State’s ballistics expert testified that .380 caliber bullets were also recovered at the

crime scene and during the autopsies.

Appellant’s live-in girlfriend testified that, on the day of the shootings,

appellant left their apartment in the morning and returned at about 3:00 in the

afternoon with his Taurus nine-millimeter pistol in his hand and blood on his shoes.

She further testified that, later that day, appellant had told her he committed the crime

and that she overheard appellant discuss splitting money with another man. Finally,

she also testified that appellant drove a Cadillac Escalade to the apartment the next

day and that he returned it to avoid “attention.” Prior to the day of the shootings, she

stated, appellant had told her that he was going to “do something and make a lot of

money” but would not tell her what it was.

Other witnesses corroborated the girlfriend’s testimony. The girlfriend’s sister

testified that appellant told her that he returned the Escalade because “he didn’t want

nobody to suspect that he had had some—he was involved in a killing.” Two men

who were in a tire shop near the record shop on the day of the shootings heard

gunshots and saw a man get into a blue car on the passenger side; another person was

in the driver’s seat. The girlfriend testified that, on the day of the killings, appellant

had a blue Lexus.

After reviewing this evidence in the light most favorable to the verdict, we hold

that a rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. See Bousquet v. State , 47 S.W.3d 131, 137 (Tex.

App.—Houston [1st Dist.] 2001, pet. ref’d). Accordingly, we hold that the evidence

was legally sufficient to support appellant’s conviction and overrule appellant’s first

issue.

Factual Sufficiency

In his second issue, appellant contends that the evidence is factually

insufficient to support his conviction.

Standard of Review

When conducting a factual sufficiency review, we view all of the evidence in

a neutral light. See Brown v. State , 212 S.W.3d 851, 859 (Tex. App.—Houston [1st

Dist.] 2006, pet. ref’d) (citing Ladd v. State , 3 S.W.3d 547, 557 (Tex. Crim. App.

1999)). We will set the verdict aside only if (1) the evidence is so weak that the

verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great

weight and preponderance of the evidence. Brown , 212 S.W.3d at 859 (citing Johnson

v. State , 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). Under the first prong of Johnson ,

we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply

because, on the quantum of evidence admitted, we would have voted to acquit had we

been on the jury. Brown , 212 S.W. 3d at 859 (citing Watson v. State , 204 S.W.3d 404,

417 (Tex. Crim. App. 2006)). Under the second prong of Johnson , we cannot declare

that a conflict in the evidence justifies a new trial simply because we disagree with

the jury’s resolution of that conflict. Id. Before finding that evidence is factually

insufficient to support a verdict under the second prong of Johnson , we must be able

to say, with some objective basis in the record, that the great weight and

preponderance of the evidence contradicts the jury’s verdict. Id. In conducting a

factual sufficiency review, we must also discuss the evidence that, according to the

appellant, most undermines the jury’s verdict. Brown , 212 S.W.3d at 859 (citing Sims

v. State , 99 S.W.3d 600, 603 (Tex. Crim. App. 2003)).

We may not re-weigh the evidence and substitute our judgment for that of the

fact-finder. King v. State , 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The

fact-finder alone determines what weight to place on contradictory testimonial

evidence because that determination depends on the fact-finder’s evaluation of

credibility and demeanor. Cain v. State , 958 S.W.2d 404, 408-09 (Tex. Crim. App.

1997). As the determiner of the credibility of the witnesses, the fact-finder may

choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5.

The Evidence

Appellant contends that the testimony of appellant’s girlfriend was unreliable

for several reasons: (1) she told appellant’s mother that she had lied to police; (2) she

admitted on the stand that she had made statements to the authorities under the threat

of losing her children; (3) she admitted to investigators that the police provided

information for her to put in her statement; (4) she admitted to investigators that she

implicated appellant because she was angry at him; (5) she had fabricated a police

complaint about a former boyfriend; and (6) she admitted on the stand that she had

been offered help in immigration proceedings in exchange for her testimony. The jury

is the exclusive judge of the credibility of the witnesses and of the weight to be given

their testimony. Barnes v. State , 876 S.W.2d 316, 321 (Tex. Crim. App. 1994).

Reconciliation of conflicts in the evidence is within the exclusive province of the

jury. Losada v. State , 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). The jury may

believe some witnesses and refuse to believe others, and it may accept portions of the

testimony of a witness and reject other portions. Id. In the instant case, the jury,

despite an extensive and thorough cross-examination, chose to believe the girlfriend’s

testimony implicating appellant. We cannot question the jury’s determination that that

testimony was credible.

Appellant further contends that there is no direct evidence in the form of

fingerprints, surveillance videotapes, or eyewitness testimony placing appellant at the

scene of the crime. Circumstantial evidence alone is sufficient to establish guilt.

Guevara v. State , 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). It is not necessary that

every fact point directly and independently to the defendant’s guilt; it is enough if the

conclusion is warranted by the combined and cumulative force of all the

incriminating circumstances. Johnson v. State , 871 S.W.2d 183, 186 (Tex. Crim. App.

1993). During a search of appellant’s apartment, investigators recovered a gun that

was used in the shootings. Appellant’s girlfriend testified that appellant came home

on the afternoon of the murders with that gun in his hand and blood on his shoes and

that he later admitted his role in the killings to her. The girlfriend and her sister both

testified that appellant told them that he returned the Escalade because he was

concerned about “[catching] the neighborhood’s attention” and causing people to

suspect that “he was involved in a killing.” Two men who were near the scene of the

crime testified that, just after they heard gunshots, they saw a man get into a car that

was the same color as appellant’s car. Viewing the relevant evidence in a neutral

light, favoring neither the State nor appellant, and with appropriate deference to the

jury’s credibility determinations, we conclude that the evidence supporting the verdict

is not too weak to support the jury’s finding of guilt beyond a reasonable doubt and

that the weight of the evidence contrary to the verdict is not so strong that the State

could not have met its burden of proof. Pena v. State , 251 S.W.3d 601, 609 (Tex.

App.—Houston [1st Dist.] 2007, pet. ref’d). Accordingly, we hold that the evidence

is factually sufficient to support appellant’s conviction and overrule appellant’s

second issue.

Rule 403

In his third issue, appellant argues that the trial court erred in admitting autopsy

photographs of the deceased. Appellant contends that the probative value of the

photographs was substantially outweighed by their prejudicial effect on the jury and

that the photographs were needlessly duplicative of other exhibits and testimony.

Standard of Review

The trial court’s decision to admit or exclude evidence is reviewed for an abuse

of discretion. Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op.

on reh’g). As a general rule, a photograph is admissible if it is relevant to a material

issue and is an accurate representation of its subject as of a given time. Holford v.

State , 177 S.W.3d 454, 463 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (citing

DeLuna v. State , 711 S.W.2d 44, 46 (Tex. Crim. App. 1986)). However, relevant

evidence, including a photograph, may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice or other Rule 403 counter-factors.

See Holford , 177 S.W.3d at 463 ; Threadgill v. State , 146 S.W.3d 654, 670-71 (Tex. Crim. App. 2004); Tex. R. Evid. 403. We apply Rule 403 to these

photographs and determine whether they assist the jury with its decision of guilt and

add something relevant, legitimate, and logical to the testimony that they accompany.

See Holford , 177 S.W.3d at 463 ; Erazo v. State , 144 S.W.3d 487, 491 (Tex. Crim.

App. 2004). If helpful, photographs are admissible unless “the emotional and

prejudicial aspects substantially outweigh the helpful aspects.” Erazo , 144 S.W.3d

at 491-92 .

Description of Exhibits

Appellant challenges the admission of three separate groups of photographs on

the grounds that the photographs were inflammatory, prejudicial, and cumulative.

All

of the challenged exhibits were admitted during the testimony of the medical

examiner.

State’s Exhibits 84, 85, 87, 88, and 89

Appellant first challenges the admission of State’s Exhibits 84, 85, 87, 88, and

89. Exhibits 84 and 85 depict a gunshot entrance wound on the male complainant’s

chest. The first, shot from farther away, shows the location of the wound. The second,

a close-up shot, enabled the medical examiner to explain to the jury how she was able

to determine that the wound was an entrance wound.

Exhibits 87 and 88 depict a gunshot exit wound on the male complainant’s

back. As with exhibits 84 and 85, one picture is shot from farther away and shows the

location of the wound, while the other enabled the medical examiner to explain how

the wound was characteristic of an exit wound.

Exhibit 89 shows all three gunshot entrance wounds on the male complainant’s

body, one on his chest and two on his face. The medical examiner used this

photograph to explain how blood loss and a skull fracture caused by the three wounds

combined to cause the male complainant’s death.

State’s Exhibits 94-98, 100, and 101

Appellant next challenges the admission of State’s Exhibits 94-98, 100, and

101. These exhibits depict multiple gunshot entrance and exit wounds on the head

and face of the female complainant. In explaining cause of death to the jury, the

medical examiner used these photographs in much the same way she used those of the

male complainant, employing wider angles to show the locations of the wounds and

tighter shots to show whether the wounds were entrance or exit wounds.

State’s Exhibits 104-110

Lastly, appellant challenges the admission of State’s Exhibits 104-110. These

exhibits depict multiple gunshot entrance and exit wounds on the hands and right arm

of the female complainant. The medical examiner used these photographs to show

that several bullets passed through the hands and arm of the female complainant.

Admissibility

We conclude that the autopsy photographs were probative of the nature of the

injuries to the complainants and that they were helpful to the jury in determining

appellant’s participation in the complainants’ deaths. See Erazo , 144 S.W.3d at 494

(finding photographs could be helpful to juries, in part, because they show wounds

suffered by victim for whose death defendants were on trial). We next determine

whether any unfair prejudicial effect of the photographs substantially outweighs their

relevance. We consider the probative value of the evidence, the potential of the

evidence to impress the jury in some irrational but nevertheless indelible way, the

time that the proponent needs to develop the evidence, and the proponent’s need for

the evidence. Id. at 489 . In the context of photographs, we also consider the number

of exhibits offered, their gruesomeness, their detail, their size, whether they are black

and white or color, whether they are close-up shots or of the whole body, whether the

body is naked or clothed, the availability of other means of proof, and other

circumstances unique to the individual case. Id. (citing Narvaiz v. State , 840 S.W.2d

415, 429 (Tex. Crim. App. 1992)). Autopsy photographs generally are admissible

unless they depict mutilation of the victim caused by the autopsy itself. Rojas v. State ,

986 S.W.2d 241, 249 (Tex. Crim. App. 1998). Here, the photographs, which were

taken after the bodies were cleaned, show no mutilation, and they are not otherwise

gruesome or wrenching in any way. While the jury saw color copies of the

photographs, the photographs do not show the complainants’ entire bodies and were

8 x 10 inches in size. Although there are nineteen challenged photographs, they are

not duplicative of other evidence in the case or of each other. The medical examiner

spent a substantial amount of time—approximately thirty pages out of fifty-one pages

of direct testimony—discussing the challenged photographs, but that time was not

unreasonable given the large number of injuries.

We conclude that the probative nature of the challenged photographs was not

substantially outweighed by any unfair prejudicial effect. The trial court thus did not

abuse its discretion in admitting the autopsy photographs into evidence. We overrule

appellant’s third issue.

Jury Argument

In his fourth issue, appellant contends that the trial court erred in overruling

appellant’s objections to improper jury argument by the State.

Standard of Review

Permissible jury argument falls within one of four categories: (1) summation

of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument

of opposing counsel; and (4) pleas for law enforcement. Strain v. State , 126 S.W.3d

207, 209 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (citing Felder v. State , 848

S.W.2d 85, 94-95 (Tex. Crim. App. 1992). If we determine that the argument fell

outside these four categories, we must then determine whether, in light of the record

as a whole, there is a reasonable probability that the improper argument might have

contributed to appellant’s conviction or punishment. Goldberg v. State , 95 S.W.3d

345, 388 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (citing Orona v. State , 791

S.W.2d 125, 128 (Tex. Crim. App. 1990)). If the argument exceeds the bounds of

proper jury argument, reversible error occurs only when, in light of the record as a

whole, the argument is extreme, is manifestly improper, injects new facts into the

proceeding which are harmful to the accused, or violates a mandatory statutory

provision. Simpson v. State , 886 S.W.2d 449, 454 (Tex. App.—Houston [1st Dist.]

1994, pet. ref’d).

Prosecutor’s Statements

Appellant contends that the State made four improper arguments during its jury

argument.

Lineup

Two witnesses testified that they heard shots and then saw a man come from

inside the record shop or from the direction of the record shop and get into the

passenger side of a blue car. Both witnesses looked at a lineup but could not make a

positive identification. The State referred to the lineup in its closing argument:

Prosecutor: They could not identify the defendant. They said he could have

been in the lineup, maybe he wasn’t. They don’t know. They just didn’t get

good enough a look.

Defense counsel: Objection to mischaracterization of the testimony. They

simply said they couldn’t identify anyone.

The trial court overruled the objection. Appellant contends that the prosecutor’s

statement introduced new and harmful evidence, evidently because the statement

eliminated the possibility that the witnesses were certain that the man they saw

leaving the scene was not appellant. We disagree. One of the witnesses gave

testimony that was virtually identical to the prosecutor’s characterization:

Prosecutor: And do you say that the man you saw getting into the passenger’s

side was not in the lineup, or he could have been but you just didn’t see him

enough?

Witness: He could have been, but I don’t recognize him.

Prosecutor: Okay. Why do you think it is that you wouldn’t recognize him?

Witness: It is impossible to recognize a person if you have only seen him for

seconds.

The other witness testified that he only saw the man who left the record shop

“from the back” and was also unable to recognize anyone in the lineup. We hold that

the prosecutor’s statement was not an improper summation of the witnesses’

testimony.

Substance of Girlfriend’s Testimony

Appellant’s live-in girlfriend testified that appellant admitted his role in the

killings to her. Responding to appellant’s attacks on the girlfriend’s credibility, the

State argued in closing that there was “no evidence that anyone told her what she had

to say.” Appellant objected to the prosecutor’s statement as being a direct

contradiction of the evidence: “She did, in fact, say that people told her what to say.”

The court overruled appellant’s objection.

Despite extensive cross-examination, appellant’s girlfriend never testified that

she was coerced by investigators into fabricating testimony. This exchange, which

took place on cross-examination of the girlfriend, effectively encapsulates the

evidence presented during her testimony:

Defense counsel: I’m not saying the police told you, you have to put in this

information, but they talked about things and you felt—I believe this is what

you said, correct me if I’m wrong, that you felt you had to include these things

they told you about in your statement to satisfy them; is that correct?

Witness: To leave me alone.

The girlfriend’s initial implication of appellant arose through voluntary

statements made during her attempt in May 2006 to obtain a restraining order against

him. As discussed below, by the State’s own admission, there is evidence in the

record that the girlfriend was compelled to testify; but there is no direct evidence that

she was made to perjure herself. We hold that the trial court did not abuse its

discretion in overruling appellant’s objection to the prosecutor’s statement.

Compulsion of Girlfriend’s Testimony

The following exchange took place during the State’s argument:

Prosecutor: I’m sure they [investigators] did threaten her and tell her she had

to tell them what she knew, because we have to know what she knows. She

knows something and she’s in a position to know it, just like I have a duty to

bring her here to you. You need to hear from her.

Let me ask you this question. You are taxpayers in this county and citizens

here, and prosecutors and police officers are paid by the taxpayers of this

county. You ask yourself—

Defense counsel: Your Honor, I object to this as improper argument.

The Court: Overruled.

Prosecutor: You ask yourself what, in the same position, you would have us

do?

Appellant contends that the State’s argument was not a proper plea for law

enforcement.

Proper pleas for law enforcement include arguing the relationship between the

jury’s verdict and the deterrence of crime in general, arguing that juries should deter

specific crimes by their verdicts, and arguing the impact of the jury’s verdict on the

community. See Borjan v. State , 787 S.W.2d 53, 55-56 (Tex. Crim. App. 1990)). On

the other hand, the State is not permitted to argue that the community or any

particular group in the community demands or expects a verdict of guilty or a specific

punishment. Id. at 56 . In other words, the State cannot ask the jury to base a

conviction on public sentiment or desire rather than the evidence before it. Cortez v.

State , 683 S.W.2d 419, 421 (Tex. Crim. App. 1984). The State did not do so here, but

rather asked the jury not to penalize the State for having compelled a witness’s

testimony. We hold that the trial court did not abuse its discretion in overruling

defense counsel’s objection.

Failure to Call Witnesses

Lastly, appellant contends that the following statements by the State constituted

impermissible argument because they shifted the burden of proof:

Prosecutor: We both have the right to call witnesses. He certainly doesn’t have

to and it’s all my burden and I’ve met it. And may I say to you fervently, the

State has no doubt, no doubt at all. We both have the right to call witnesses. He

didn’t call any witnesses to prove any of the stuff he just argued to you.

It is a well-settled rule that the State may comment in argument on the failure

of a defendant to call competent and material witnesses. Ellis v. State , 877 S.W.2d

380, 384-85 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (citing Carrillo v.

State , 566 S.W.2d 902, 912 (Tex. Crim. App. 1978)). The State may also argue that

the reason for such failure is that any such testimony would be unfavorable to the

defense. Id. We hold that the trial court did not abuse its discretion in overruling

defense counsel’s objection.

Appellant further contends that the prosecutor’s statement was an

impermissible comment on his own failure to testify. Although appellant did not

preserve this complaint at the trial court level, no objection is required if an error is

so egregious that it rises to constitutional dimensions. Boler v. State , 177 S.W.3d 366,

373 ( Tex. App.—Houston [1st Dist. ] 2005, pet. ref’d) (citing Jasper v. State , 61

S.W.3d 413, 420 (Tex. Crim. App. 2001)); Tex. R. Evid. 103(d) . To violate the right

against self-incrimination, the offending language must be viewed from the jury’s

standpoint and the implication that the comment referred to the defendant's failure to

testify must be clear. Bustamante v. State , 48 S.W.3d 761, 765 (Tex. Crim. App.

2001). The test is whether the language used was manifestly intended or was of such

a character that the jury would necessarily and naturally take it as a comment on the

defendant’s failure to testify. Id. If the language used can reasonably be construed as

referring to the defendant’s failure to produce testimony other than his own, it is not

improper. Nowlin v. State , 507 S.W.2d 534, 536 (Tex. Crim. App. 1974). It is not

sufficient that the language might be construed as an implied or indirect allusion to

the defendant’s failure to testify. Banks v. State , 643 S.W.2d 129, 134 (Tex. Crim.

App. 1982) (citing Nowlin ). The prosecutor’s statements require reversal if they call

attention to the absence of evidence that only the testimony of the defendant could

supply. Banks , 643 S.W.2d at 134 -35 (citing Myers v. State , 573 S.W.2d 19, 20-21

(Tex. Crim. App. 1978)).

In the instant case, the prosecutor stated that appellant had not called any

witnesses to support any of the arguments made by appellant during his closing.

Appellant’s closing argument propounded four primary defensive theories: (1) the

ballistics evidence indicating that the gun found in appellant’s apartment was used

in the shootings was unreliable; (2) appellant’s girlfriend was not a credible witness;

(3) there was no direct evidence that appellant was at the crime scene; and (4) the

prosecution’s theory that appellant committed murder for hire was inconsistent with

the evidence. None of these theories was dependent in its entirety on appellant’s

testimony for its establishment. The language used by the prosecutor could

reasonably be construed as referring to the defendant’s failure to produce testimony

other than his own and was not manifestly intended or of such a character that the

jury would necessarily and naturally take it as a comment on the defendant’s failure

to testify . Accordingly, we do not find any error so egregious as to rise to

constitutional dimensions.

We overrule appellant’s fourth issue.

Conclusion

We affirm the judgment of the trial court.

George C. Hanks

Justice

Panel consists of Justices Hanks, Bland, and Wilson.

Do not publish. See Tex. R. App. P. 47.2(b).