Affirmed and Opinion Filed November 19, 2020

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01400-CR DARRELL LAMOND DAVIS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 6 Dallas County, Texas Trial Court Cause No. F-19-75008-X MEMORANDUM OPINION Before Justices Molberg, Reichek, and Nowell Opinion by Justice Nowell Darrell Lamond Davis was indicted for murder. He entered a guilty plea, judicially confessed, and proceeded to a jury trial. The jury found him guilty and sentenced him to life imprisonment. In a single issue, appellant argues the trial court abused its discretion by admitting autopsy photographs. We affirm the trial court’s judgment.

In his brief, appellant asserts that, as part of the punishment phase, the State offered “a slew of autopsy photos depicting the [complainant’s] injuries.” Without identifying any objectionable exhibits by number, appellant argues the State did not need the photographs because he did not contest guilt, and the unidentified exhibits only served to “inflame the jury.” Although he notes the State introduced two dozen autopsy photographs, the only exhibits appellant specifically identifies in his brief are State’s Exhibits 128 and 129.

At trial, in a hearing outside the presence of the jury, the lawyers and trial court judge discussed admissibility of autopsy photographs. With respect to State’s Exhibits 128 and 129, appellant’s counsel agreed “on some level the jury is entitled to know” how the complainant was injured. Appellant’s counsel continued: “I think some of the pictures would be admissible for those purposes. I just would like to keep them as few as possible.” He also asked whether State’s Exhibits 128 and 129 could be shown to the jury in black and white instead of in color, but the State, after consulting with the medical examiner, asserted the details would not be “as obvious” if the pictures were in black and white. The trial court judge then concluded State’s Exhibits 128 and 129 were relevant to show the graphic nature of the injuries, they were the only two photographs showing a particular injury, and the medical examiner stated she needed the photographs; the trial court determined the two exhibits were admissible.

On appeal, appellant argues State’s Exhibits 128 and 129 were unfairly prejudicial and should have been excluded pursuant to Rule 403. However, appellant did not raise this complaint in the trial court and appellant’s argument at trial did not make the judge aware that the basis for his objection to any of the –2– photographs, including State’s Exhibits 128 and 129, was that they should be excluded pursuant to Texas Rule of Evidence 403. See TEX. R. EVID. 403 (the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence). At trial, appellant asked that State’s Exhibits 128 and 129 be shown to the jury in black and white. As to the other “slew of autopsy photos,” appellant’s counsel stated he would “like to keep them as few as possible.”

Appellant’s complaints in the trial court do not comport with his argument on appeal. See Gibson v. State, 541 S.W.3d 164, 166 (Tex. Crim. App. 2017). Nothing about appellant’s arguments in the trial court were sufficient to make the trial judge aware that he believed any of the photographs were objectionable pursuant to evidentiary rule 403. Based on the record, we conclude appellant has not preserved this argument for appeal. See id.; see also TEX. R. APP. P. 33.1. We overrule appellant’s sole issue.

We affirm the trial court’s judgment.

/Erin A. Nowell/ ERIN A. NOWELL JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 191400F.U05 –3– Court of Appeals Fifth District of Texas at Dallas JUDGMENT DARRELL LAMOND DAVIS, On Appeal from the Criminal District Appellant Court No. 6, Dallas County, Texas Trial Court Cause No. F-19-75008-X.

No. 05-19-01400-CR V. Opinion delivered by Justice Nowell.

Justices Molberg and Reichek THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 19th day of November, 2020.

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