The opinion
Opinion issued January 23, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00434-CR
———————————
DAMON ORLANDO MILTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1472750
OPINION DISSENTING FROM DENIAL OF EN BANC
RECONSIDERATION
[A]rguments which de-humanize an accused do not aid jurors in their
task; rather, they discredit a criminal justice system founded on the
basic beliefs that an accused stands before a jury as an equal peer and
that the State’s prosecutors seek as their first goal justice, not
convictions at any cost. . . . [W]hen arguments degrade to likening
litigants to animals, it is appropriate for the . . . court to . . . intervene.[1]
A jury found appellant, Damon Orlando Milton, guilty of the offense of
robbery.2 After finding true the allegations in two enhancement paragraphs that he
had twice been previously convicted of felony offenses, the jury assessed his
punishment at confinement for fifty years. In his first issue, appellant contends that
the trial court erred in overruling his objection, made at the punishment phase of
trial, to the portion of the State’s closing argument during which it played a videotape
recording titled, “Lion tries to eat baby PART 1” (the “lion-tries-to-eat-baby
video”),3 which contains the following two still frames:
1
Alexander v. State, No. 04-95-00154-CR, 1996 WL 382984, at *4 (Tex. App.—San
Antonio July 10, 1996, pet. ref’d) (not designated for publication).
2
See TEX. PENAL CODE ANN. § 29.02(a)(2) (Vernon 2011).
3
A copy of the videotape recording appears in the record but may also be found on
YouTube. See Jpbsmama, Lion tries to eat baby PART 1, YOUTUBE (May 2, 2012),
https://www.youtube.com/watch?v=6fbahS7VSFs.
2
Because the panel errs in holding that the trial court did not err in overruling
appellant’s objection, I respectfully dissent from the Court’s order denying en banc
reconsideration in this case. See TEX. R. APP. P. 41.2(c).
Background
The complainant, LaSondra Robertson, testified that she previously worked
as a store clerk and cashier at a CVS Pharmacy located in Harris County, Texas. On
June 22, 2015, appellant came into the store and looked around for about ten or
fifteen minutes. While appellant walked around the store, he behaved like “any other
customer,” and the complainant was not alarmed or afraid. Appellant, after
3
apparently waiting for “no one else [to be] around,” approached the complainant and
placed several inexpensive “food items”4 on the counter. Again, she was not afraid
of appellant nor alarmed by his actions. As the complainant began to scan the items
that appellant had placed on the counter, he “leaned over” and told her, “[T]his is a
stick up, give me whatever is in the [cash] register, do not try anything, or I will kill
you.” Although appellant had told the complainant that he had a weapon, she did
not see one. She then felt nervous and scared, and she gave him “the money out of
the register.” Appellant picked up the “food items” that he had previously placed on
the counter and grabbed “four beers,” “a bag of Starburst[s],” and “some chips”
before walking out of the store.
The complainant explained that during the entire time that appellant stood at
the counter with her, his hands stayed on the counter within her sight. He did not
have a weapon in his hands, did not “mess[] with [the] waistband” of his pants, and
did not place a weapon on the counter. He also did not touch her or cause her to
sustain any scratches, bruises, or any bodily injury. The complainant did not know
how much money appellant had taken from the cash register, but the only dollar bills
in the register were in denominations of twenty dollars or less. She also explained
that she did not tell any of the law enforcement officers, who arrived at the scene
after the robbery, that appellant had told her he was going to “kill” her. The first
4
The complainant noted that the “food items” consisted of candy and a soda.
4
time that she had ever stated that appellant threatened to kill her was in her trial
testimony.
Houston Police Department (“HPD”) Officer C. Inocencio testified that
following the incident, appellant was found to be in possession of a CVS Pharmacy
bag, “some kind of food products,” “cash money,” “rolled coins,” and “assorted
[loose] change.” The “food products” found in appellant’s possession had a total
value of $17.53. Inocencio explained that the complainant never reported that
appellant had threatened to “kill her.”
HPD Officer A. Huckabee testified that when he detained appellant shortly
after he had left the CVS Pharmacy, he did not have in his possession a firearm, a
knife, or any type of weapon.5 And appellant fully cooperated with law enforcement
officers.
At the punishment phase of trial, the trial court admitted evidence of
appellant’s criminal record, revealing that on August 17, 1993, he was convicted of
two separate offenses of robbery6 and sentenced to confinement for seven years for
each offense, to run concurrently; on September 26, 1994, he was convicted of the
5
HPD Officer P. Pac similarly testified during the punishment phase of trial that
appellant was not in possession of a weapon when he was detained by law
enforcement officers.
6
See TEX. PENAL CODE ANN. § 29.02(a).
5
offense of theft7 and sentenced to confinement for fourteen years; on August 27,
2002, he was convicted of the offense of evading arrest8 and sentenced to
confinement for ten months; on May 31, 2007, he was convicted of the misdemeanor
offense of attempted unauthorized use of a motor vehicle9 and sentenced to
confinement for eight months; and on January 22, 2013, he was convicted of the
offense of forgery10 and sentenced to confinement for ten months.
During its closing argument at the punishment phase of trial, the State, after
playing the lion-tries-to-eat-baby video for the jury, stated:
[T]hat 30-second clip is exactly what this punishment phase is
about. . . .
. . . I’m asking you to start at 40 [years]. I’m not ashamed to ask you
that, I’m not hesitant to ask for that. Start at 40 [years], consider the
range of punishment.
....
I’m not an expert on human behavior, and probably there are a couple
on the panel more qualified to talk about this than I am. But I believe
in the simplest form, human behavior is motive, plus opportunity, and
that equals behavior. . . .
Let me talk to you about that video. That lion was cute, and it was
laughable, and it was funny because he’s behind that piece of glass.
That motive of that lion is never changing, never changing. It’s enate.
Given the opportunity, remove that glass, it’s no[] longer funny, it’s a
7
See id. § 31.03(a) (Vernon Supp. 2016).
8
See id. § 38.04(a) (Vernon 2016).
9
See id. § 15.01(a) (Vernon 2011), § 31.07(a) (Vernon 2016).
10
See id. § 32.21(b) (Vernon 2016).
6
tragedy. That’s what’s going to happen, that’s a tragedy. That’s what
[is] going on with this case.
....
. . . In a vacuum, that resume right there, a sterile courtroom, it’s almost
laughable because we know [appellant]’s such a bad guy. It’s almost
laughable, just like that lion. You’re laughing at that lion because he’s
behind that piece of glass. Nothing funny about that lion when he’s
outside that piece of glass, that’s a tragedy. Nothing funny when
[appellant] is outside of prison, that’s a tragedy. That’s what I meant
when I said that video has everything to do with this case, because he’s
never changing his motive.
Remember the good old days? Everybody here is over 20 years old and
used to talk about the good old days, how everyone played outside until
it was dark, and then kids came home for dinner. And I never even had
to lock my house, my neighbors would just come and go. [Appellant]
is why we don’t have the good old days. He’s the reason you lock[ed]
your house when you left, he’s the reason you locked your car when
you came to court today, [appellant] is the reason we don’t have the
good old days.
....
. . . I’m not going to thank you for your verdict that you return on
punishment. Because quite frankly, I’m envious of your position.
Every one [of] you can go home tonight and turn on the news, and
you’re going to see the nightly news, and say, man, our city has really
gotten violent. I wish somebody would do something about that.
....
Man, I wish I could do something about that. . . . You, 12, have the
opportunity to when you turn on that news, say, man, it’s gotten bad,
but I finally did something about it. . . .
This isn’t a 25-year case, this isn’t a 35-year case, maybe it’s a 40-year
case. The Legislator [sic] said two convictions, 25, that’s where you
start. When you’ve got five and another one reduced, quit giving him
7
chances, quit removing that glass. Keep that glass there, remove the
opportunity, and send him to prison for every second that he deserves.
He surely doesn’t deserve less than 40.
(Emphasis added.)
Improper Argument
In his first issue, appellant argues that the trial court erred in overruling his
objection to the portion of the State’s closing argument at the punishment phase of
trial during which it played the lion-tries-to-eat-baby video for the jury because the
video was “not admitted into evidence during . . . trial”; was not relevant; “portrayed
images that were highly prejudicial and inflammatory”; “suggested a punishment on
an improper basis”; and “compare[d] [a]ppellant’s presence out of prison to that of
a lion that would be mauling an infant but for a piece of glass.” And he asserts that
the State’s misconduct in playing the video affected his substantial rights.
The law provides for, and presumes, a fair trial free from improper argument
by the State. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991); Thompson
v. State, 89 S.W.3d 843, 850 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). The
Court reviews a trial court’s ruling on an objection to improper jury argument for an
abuse of discretion. Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004).
Although the State is afforded wide latitude in its jury arguments, proper jury
argument is generally limited to: (1) summation of the evidence presented at trial;
(2) reasonable deductions drawn from that evidence; (3) answers to opposing
8
counsel’s argument; and (4) pleas for law enforcement. Wesbrook v. State, 29
S.W.3d 103, 115 (Tex. Crim. App. 2000); Acosta v. State, 411 S.W.3d 76, 93 (Tex.
App.—Houston [1st Dist.] 2013, no pet.).
It has long been established that the State cannot use its closing argument to
place matters before the jury that are outside the record and prejudicial to the
accused. Everett v. State, 707 S.W.2d 638, 641 (Tex. Crim. App. 1986); Thompson,
89 S.W.3d at 850. Arguments referencing matters that are not in evidence and may
not be inferred from the evidence are usually “designed to arouse the passion and
prejudices of the jury and as such are highly inappropriate.” Borjan v. State, 787
S.W.2d 53, 57 (Tex. Crim. App. 1990); Thompson, 89 S.W.3d at 850. The purpose
of closing argument is “to facilitate the jury in properly analyzing the evidence
presented at trial so that it may arrive at a just and reasonable conclusion based on
the evidence alone, and not on any fact not admitted in evidence.” Campbell v. State,
610 S.W.2d 754, 756 (Tex. Crim. App. [Panel Op.] 1980) (internal quotations
omitted).
Here, the panel held that the trial court did not err in overruling appellant’s
objection to the State’s playing of the lion-tries-to-eat-baby video for the jury
because the video was played in “response to the theme of appellant’s closing
argument” and constituted a plea for law enforcement. In doing so, the panel relied
exclusively on this Court’s prior decision in Thompson v. State, No.
9
01-14-00862-CR, 2015 WL 9241691 (Tex. App.—Houston [1st Dist.] Dec. 17,
2015, no pet.) (mem. op., not designated for publication). See TEX. R. APP. P.
47.7(a).
In Thompson, the defendant and the complainant, a fifteen-year-old boy,
confronted each other at an apartment complex. 2015 WL 9241691, at *1. As the
defendant approached the complainant, he showed the complainant a firearm tucked
into his pants. Id. The complainant then told the defendant that he was not “worried”
about the firearm because he had a firearm as well. Id. (internal quotations omitted).
A verbal confrontation ensued, and when it escalated, the complainant turned to run
away. Id. The defendant then shot the complainant as he was running away,
resulting in the complainant’s death. Id.
After the jury found the defendant guilty of murder, the State, during its
closing argument in the punishment phase of trial, referenced the same
lion-tries-to-eat-baby video at issue in the instant case. Id. at *1–2. Specifically, the
State, over the defendant’s objection, argued:
I don’t know if any of you saw that[;] it was in a video back on
CNN . . . where it was a mother, who had her little baby, and she was
holding—she was at the zoo—and she [was] holding this baby near the
lion cage. And there was a clear plastic barrier between the baby and
the lion, and the baby is sitting there dancing, moving around, and the
lion comes out. It’s gnawing right there. Everybody thinks, oh, it’s
hilarious. It’s cute. It’s so great [the] mom’s filming it, sends it to
CNN, everybody watches it. But was that really cute? What would
have happened if the glass barrier was not there? That baby is a goner.
10
Because the motivation of a lion, a lion is a killer. A lion is a predator.
That lion would have eaten that baby and nothing would have changed.
The [d]efendant is a killer. He is a predator.
....
. . . Do we want to remove that clear plastic barrier between the lion and
the baby? Do we want to do that?
....
. . . That’s your decision. You get to decide because he’ll get out
eventually. He will. You get to decide when you feel comfortable
having this predator, this killer back with our families on our streets.
For the sake of all of us, for the sake of your community, I ask that you
send him away for as long as you feel comfortable with. I ask that [it]
be a long time. I ask that you refer to either the first or second page of
your verdict sheets, and you give him a number of years that you feel
comfortable telling your family that you kept a murderer out of our
waters.
Id. at *1–2 (first, second, third, and tenth alterations in original). The jury then
sentenced the defendant to confinement for thirty years. Id. at *1.
On appeal, the defendant asserted that the trial court had erred in overruling
his objection to the State’s closing argument to the jury, particularly the State’s
reference to the lion-tries-to-eat-baby video. Id. at *2. This Court, however, noting
the particularly gruesome nature of the crime, i.e., the murder of a fifteen-year-old
boy as he was fleeing, held that the trial court did not err because the State’s
argument, including its “use of the analogy of [the defendant] as a lion that must
remain caged,” constituted a proper plea for law enforcement given “the context of
11
th[e] case.” Id. at *3. Notably, in reaching its holding, the Court looked to other
cases, which had also held that the reference to a defendant as “an animal” was not
improper because of the extremely violent and gruesome nature of the criminal
offenses that had been committed. See id. (citing Burns v. State, 556 S.W.2d 270,
285 (Tex. Crim. App. 1977) (holding reference to defendant as animal not improper
where defendant brutally tortured and murdered fifty-eight-year-old man); Belton v.
State, 900 S.W.2d 886, 898–99 (Tex. App.—El Paso 1995, pet. ref’d) (reference to
defendant as animal not improper where defendant broke into family’s home,
terrorized them, shot mother and two children, and killed one child)); but see Rangel
v. State, No. 01-92-01128-CR, 1994 WL 362796, at *5 (Tex. App.—Houston [1st
Dist.] July 14, 1994, pet. ref’d) (not designated for publication) (State’s calling
defendant “an animal and a creep” improper (internal quotations omitted)).
The problem with the panel’s reliance on Thompson, and the cases cited in
Thompson which involve seriously violent criminal offenses, is that, here, the Court
is not faced with a gruesome or incredibly violent criminal offense. See Thompson,
2015 WL 9241691 at *1 (murder of child fleeing scene); see also Burns, 556 S.W.2d
at 273, 280–81 (beating, torturing, murder, and rape of elderly man); Belton, 900
12
S.W.2d at 898 (robbery of family home and murder of child in front of mother and
siblings).11
When appellant came into the CVS Pharmacy where the complainant was
working, she was not afraid of him nor alarmed by his actions, as appellant behaved
like “any other customer.” After being in the store for about ten or fifteen minutes,
appellant, who had apparently waited for “no one else [to be] around,” then
approached the complainant, placing several inexpensive “food items” on the
counter. Again, she was not afraid of appellant nor alarmed by his actions. After
11
In Burns v. State, the defendant and another man drove the complainant, a
fifty-eight-year-old man, to “a caliche pit” where they took his money, clothes,
boots, watch, and false teeth. 556 S.W.2d 270, 273, 280 (Tex. Crim. App. 1977).
They then beat the complainant, the other man “screwed [the complainant] in the
ass,” and they left him in the pit, naked except for socks. Id. at 280 (internal
quotations omitted). When the defendant and the other man later returned to the pit,
the complainant “looked like he was almost dead[,] his face was black and blue and
bloody,” and his jawbone was broken. Id. at 280–81 (internal quotations omitted).
They then put the complainant on the hood of their car and continued to beat him,
including kicking him in the head. Id. at 281. When the complainant fell to the
ground, the defendant picked him up, put him back on the car, and continued to beat
him. Id. at 273, 281. They then grabbed the complainant by each leg and pulled
him off the car “real fast,” “let[ting] him fall to the ground.” Id. at 281 (internal
quotations omitted). The defendant “gigg[led],” “act[ed] like [what he was doing]
was fun,” and thought what he had done was “funny.” Id. at 280–81 (internal
quotations omitted). One witness also testified that the defendant and the other man
made the complainant eat his own feces. Id. at 281.
In Belton v. State, the defendant and another man, carrying firearms, broke into a
family’s home where a mother and her three children were present. 900 S.W.2d
886, 892 (Tex. App.—El Paso 1995, pet. ref’d). The defendant used his firearm to
beat one of the children in the head. Id. After rampaging through the family’s
home, the defendant and the other man shot the mother and two of the children,
ultimately killing one of the children in the presence of his mother and siblings. Id.
13
the complainant scanned the items that appellant had placed on the counter, he
“leaned over” and told her that he had a weapon and to give him the money in the
cash register. The complainant, however, never saw a weapon. And she noted that
appellant’s hands remained on the counter within her sight the entire time, he did not
“mess[] with [the] waistband” of his pants, and he did not place a weapon on the
counter. He did not touch the complainant or cause her to sustain any scratches,
bruises, or bodily injury. After the complainant gave appellant the money from the
cash register, he picked up the “food items” that he had previously placed on the
counter and grabbed “four beers,” “a bag of Starburst[s],” and “some chips” before
walking out of the store. The complainant did not know how much money appellant
had taken from the cash register, but the only dollar bills in the cash register were in
denominations of twenty dollars or less. The “food items” taken by appellant had a
total value of $17.53. When appellant was later detained by law enforcement
officers shortly after leaving the CVS Pharmacy, he did not have in his possession a
firearm, a knife, or any type of weapon. And he fully cooperated with law
enforcement officers.
A surveillance videotape recording from the date of the offense, admitted into
evidence as State’s Exhibit 6, shows appellant calmly walking up to the counter at
the CVS Pharmacy. No other customers are present when appellant approaches the
counter. After the complainant scans several items that appellant places on the
14
counter, he calmly leans forward and says something to her. What he says to her
cannot be heard on the videotape recording, but he does not make any threatening or
violent gestures. And he does not touch the complainant. Appellant’s hands remain
on the counter throughout the entire incident. After the complainant gives appellant
the money from the cash register, he walks off-screen and then is seen calmly
walking out of the store.
The panel in its opinion does note the difference between the circumstances
of the present case and those present in Thompson and “other cases permitting
comparisons of defendants to predatory animals,” particularly because such cases
have involved murder “or other violent behavior.”12 And the panel admits that “[t]he
appropriateness of the [lion-tries-to-eat-baby video] analogy in this case is tenuous
given the nature of the crime” committed by appellant. See Alexander v. State, No.
12
See Burns, 556 S.W.2d at 273, 280–81; Thompson, 2015 WL 9241691, at *1;
Belton, 900 S.W.2d at 892; see also Stringfellow v. State, No. 05-02-00475-CR,
2003 WL 152760, at *3–4 (Tex. App.—Dallas Jan. 23, 2003, no pet.) (not
designated for publication) (reference to defendant as “animal” reasonable
deduction where he brutally attacked complainant, hit her, shoved her, ripped her
clothes, forced her to perform oral sex, threatened to kill her, repeatedly raped her,
and robbed her); Resendez v. State, No. 14-99-01374-CR, 2001 WL 777861, at *1–
3 (Tex. App.—Houston [14th Dist.] July 12, 2001, pet. ref’d) (not designated for
publication) (reference to defendant as “animal” and “monster” reasonable
deduction where defendant sexually molested and had sexual intercourse with
complainant, a female relative, beginning when she was five or six years old and
continuing over a period of years); Navarro v. State, No. 08-99-00214-CR, 2000
WL 1476638, at *8–9 (Tex. App.—El Paso Oct. 5, 2000, no pet.) (not designated
for publication) (reference to defendant as “monster” reasonable deduction where
defendant broke into home of pregnant woman, beat her “about the face, torso, and
stomach, and then proceeded to rape her in front of her two children”).
15
04-95-00154-CR, 1996 WL 382984, at *3–4 (Tex. App.—San Antonio July 10,
1996, pet. ref’d) (not designated for publication) (argument likening defendant to
animal improper in case where defendant convicted of delivery of controlled
substance); cf. Stringfellow v. State, No. 05-02-00475-CR, 2003 WL 152760, at *3–
4 (Tex. App.—Dallas Jan. 23, 2003, no pet.) (not designated for publication) (only
in cases involving “[p]articularly brutal facts” may there be “a reasonable deduction
to justify a prosecutor’s reference to a defendant as an animal”). Regardless, the
panel reasons that because appellant had prior convictions, the trial court did not err
in allowing the State to play the lion-tries-to-eat-baby video for the jury during its
closing punishment argument.
Notably though, just as the criminal offense committed by appellant in the
instant case is neither gruesome nor violent, rendering the State’s playing of the
lion-tries-to-eat-baby video improper, the criminal offenses of which appellant had
previously been convicted are also of a non-violent nature.13 Simply put, nothing in
13
The trial court admitted evidence of appellant’s criminal record, revealing that on
August 17, 1993, he was convicted of two separate offenses of robbery and
sentenced to confinement seven years for each offense, to run concurrently; on
September 26, 1994, he was convicted of the offense of theft and sentenced to
confinement for fourteen years; on August 27, 2002, he was convicted of the offense
of evading arrest and sentenced to confinement for ten months; on May 31, 2007,
he was convicted of the misdemeanor offense of attempted unauthorized use of a
motor vehicle and sentenced to confinement for eight months; and on January 22,
2013, he was convicted of the offense of forgery and sentenced to confinement for
ten months. See TEX. PENAL CODE ANN. §§ 15.01(a), 29.02(a), 31.03(a), 31.07(a),
32.21(b), 38.04(a).
16
appellant’s prior criminal history warrants a comparison between him and a
predatory animal attempting to eat an innocent baby.14 See Tompkins v. State, 774
S.W.2d 195, 217 (Tex. Crim. App. 1987) (State’s reference to defendant “as an
animal” “served no legitimate purpose except to jeopardize the State’s case on
appeal” (internal quotations omitted)).
As the Texas Court of Criminal Appeals has previously explained in regard to
the State’s arguments to juries: “This Court should not have to point out that
comments by the attorneys should always be confined to the record and the
legitimate deductions from the testimony of the witnesses.” Id. at 218. And “there
is abundant room for legitimate discussion of the testimony [in the case] and the law
applicable, without indulging in personal abuse of the man who is at the bar of
justice.” Swilley v. State, 25 S.W.2d 1098, 1099 (Tex. Crim. App. 1929). Notably,
“[i]t takes far less talent to indulge in abuse than in making an intelligent assessment
of the facts and the law to aid the jurors in their task.” Grant v. State, 472 S.W.2d
531, 534 (Tex. Crim. App. 1971).
14
Further, the request of appellant’s attorney that the jury sentence appellant to “a
lower sentence” does not justify the State’s comparison of appellant to a predatory
animal trying to eat an innocent baby.
17
Based on the foregoing, I would hold that the State’s playing of the
lion-tries-to-eat-baby video for the jury during its closing argument at the
punishment phase of trial was improper.15
When an argument exceeds permissible bounds, it constitutes reversible error
when an analysis of the record as a whole shows that the argument is extreme or
manifestly improper, is violative of a mandatory statute, or injects new facts harmful
to the defendant into the trial proceeding. Wesbrook, 29 S.W.3d at 115; see also
TEX. R. APP. P. 44.2(b). An appellate court, in assessing the harm of an improper
jury argument during the punishment phase of trial, looks to three factors:
(1) severity of the misconduct (the magnitude of the prejudicial effect of the State’s
remarks); (2) measures adopted to cure the misconduct (the efficacy of any
cautionary instruction by the judge); and (3) the certainty of the same punishment
being assessed absent the misconduct (the strength of the evidence supporting the
conviction). Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998); see also
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
15
Despite the panel’s decision in the instant case, the State should refrain from using
this lion-tries-to-eat-baby video in the future. See Grant v. State, 472 S.W.2d 531,
534 (Tex. Crim. App. 1971) (“It takes far less talent to indulge in abuse than in
making an intelligent assessment of the facts and the law to aid the jurors in their
task.”); Alexander, 1996 WL 382984, at *4 (“[A]rguments which de-humanize an
accused do not aid jurors in their task; rather, they discredit a criminal justice system
founded on the basic beliefs that an accused stands before a jury as an equal peer
and that the State’s prosecutors seek as their first goal justice, not convictions at any
cost.”).
18
In regard to the first Mosley factor, the State’s playing of the
lion-tries-to-eat-baby video during its closing punishment argument was highly
prejudicial. See Hawkins, 135 S.W.3d at 77–78 (when assessing severity of
improper jury argument, primary focus is prejudicial effect of misconduct); Watts v.
State, 371 S.W.3d 448, 459 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (must
examine prejudicial effect of State’s remarks). Here, after playing the video for the
jury, the State told the jury that the video was “exactly what th[e] punishment phase
[of appellant’s trial was] about.” The State then characterized appellant as “a bad
guy” and compared him to the lion in the video; namely, a lion who was attempting
to eat an innocent baby. The State further argued:
. . . Nothing funny about that lion when he’s outside that piece of glass,
that’s a tragedy. Nothing funny when [appellant] is outside of prison,
that’s a tragedy. That’s what I meant when I said that video has
everything to do with this case, because he’s never changing his motive.
Remember the good old days? Everybody here is over 20 years old and
used to talk about the good old days, how everyone played outside until
it was dark, and then kids came home for dinner. And I never even had
to lock my house, my neighbors would just come and go. [Appellant]
is why we don’t have the good old days. He’s the reason you lock[ed]
your house when you left, he’s the reason you locked your car when
you came to court today, [appellant] is the reason we don’t have the
good old days.
....
This isn’t a 25-year case, this isn’t a 35-year case, maybe it’s a 40-year
case. The Legislator [sic] said two convictions, 25, that’s where you
start. When you’ve got five and another one reduced, quit giving him
chances, quit removing that glass. Keep that glass there, remove the
19
opportunity, and send him to prison for every second that he deserves.
He surely doesn’t deserve less than 40.
(Emphasis added.)
The State’s comparison of appellant to a violent, predatory animal seeking to
attack a defenseless baby was prejudicial, did not advance a legitimate purpose in
this case, and was designed to arouse the passion and prejudices of the jury. See
Tompkins, 774 S.W.2d at 217; Watts, 371 S.W.3d at 459; Thompson, 89 S.W.3d at
850. And the State played the lion-tries-to-eat-baby video during the rebuttal portion
of its closing argument and immediately prior to the jury’s deliberation. Thus, the
harmful effect caused by the video could not have been attenuated by any argument
of appellant’s counsel. See Brown v. State, 978 S.W.2d 708, 715 (Tex. App.—
Amarillo 1998, pet. ref’d); see also Bush v. State, No. 04-13-00466-CR, 2014 WL
309780, at *5 (Tex. App.—San Antonio Jan. 29, 2014, no pet.) (mem. op., not
designated for publication). The severity of the misconduct in this case weighs in
favor of appellant. See Gonzalez v. State, 455 S.W.3d 198, 206 (Tex. App.—
Houston [1st Dist.] 2015, pet. ref’d) (first factor weighed in favor of defendant where
State’s action “clearly improper”); cf. Graves v. State, 176 S.W.3d 422, 430 (Tex.
App.—Houston [1st Dist.] 2004, no pet.) (first factor did not weigh in favor of
defendant where State’s misconduct “small” and only “mildly inappropriate”
(internal quotations omitted)).
20
In regard to the second Mosley factor, no measures were taken to cure the
State’s misconduct. In fact, the trial court overruled appellant’s objection to the
State’s playing of the lion-tries-to-eat-baby video to the jury. See Good v. State, 723
S.W.2d 734, 738 (Tex. Crim. App. 1986) (overruling objection to improper
argument “puts the stamp of judicial approval on the improper argument” (internal
quotations omitted)); Watts, 371 S.W.3d at 460 (“When a trial court overrules an
objection to an improper argument, it implicitly places its imprimatur on the
argument, thereby magnifying the harm.”); see also Sneed v. State, No.
10-11-00231-CR, 2012 WL 2866304, at *3 (Tex. App.—Waco July 12, 2012, no
pet.) (mem. op., not designated for publication) (trial court did not take “any curative
measures” where it overruled defendant’s objection to improper argument). Because
no curative measures were taken in this case, the second factor weighs in favor of
appellant. See Watts, 371 S.W.3d at 460.
In regard to the third Mosley factor, because the jury found true the allegations
in the two enhancement paragraphs that appellant had twice been previously
convicted of felony offenses, appellant was subject to the habitual offender
punishment range of not less than twenty-five years and not greater than ninety-nine
years or life. See TEX. PENAL CODE ANN. § 12.42(d) (Vernon Supp. 2016). The
State argued to the jury that appellant should not receive “less than 40” years due to
his predatory nature and the need for society to keep him behind “glass.” And the
21
jury assessed appellant’s punishment at confinement for fifty years. See Abbott v.
State, 196 S.W.3d 334, 349 (Tex. App.—Waco 2006, pet. ref’d) (considering
severity of defendant’s sentence and jury’s decision to assess severe sentence which
State had requested); cf. Lockett v. State, No. 06-05-00138-CR, 2006 WL 940648,
at *7 (Tex. App.—Texarkana Apr. 13, 2006, pet. ref’d) (mem. op., not designated
for publication) (improper jury argument did not affect defendant’s substantial rights
where jury assessed punishment at confinement “nearer the lower end of the
punishment range”). Here, there is doubt that the same sentence would have been
assessed had the trial court not overruled appellant’s objection to the
lion-tries-to-eat-baby video, especially considering that the circumstances of this
case and appellant’s prior criminal convictions do not show him to be a violent,
predatory offender. See Sneed, 2012 WL 2866304, at *4 (reversing judgment of trial
court and remanding for new trial on punishment where “some doubt that the same
sentence would have been assessed without the [trial court] overruling [defendant’s]
objection to the improper argument”). This third factor weighs in favor of appellant.
Balancing the three Mosley factors, due to the prejudice experienced by the
State’s playing of the lion-tries-to-eat-baby video during its closing punishment
argument to the jury, the lack of cure for the State’s misconduct, and the severity of
appellant’s sentence, I would further hold that the trial court’s error in allowing the
State to play the video to the jury was harmful.
22
Moreover, this Court’s approval of the State’s use of the lion-tries-to-eat-baby
video in this case will no doubt encourage the State to improperly use it in other
cases involving non-violent offenses. See Alexander v. State, No. 04-95-00154-CR,
1996 WL 382984, at *4 (Tex. App.—San Antonio July 10, 1996, pet. ref’d) (not
designated for publication) (“[A]rguments which de-humanize an accused do not aid
jurors in their task; rather, they discredit a criminal justice system founded on the
basic beliefs that an accused stands before a jury as an equal peer and that the State’s
prosecutors seek as their first goal justice, not convictions at any cost.”).
Accordingly, I would grant en banc reconsideration, sustain appellant’s first issue,
reverse the trial court’s judgment as to punishment, and remand for a new
punishment hearing in this case. See TEX. R. APP. P. 41.2(c) (extraordinary
circumstances require en banc reconsideration).
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Keyes and Massengale.
En banc reconsideration was requested. See TEX. R. APP. P. 49.7.
A majority of the justices of the Court voted to deny the motion for en banc
reconsideration.
The en banc court consists of Chief Justice Radack and Justices Jennings, Keyes,
Higley, Bland, Massengale, Brown, Lloyd, and Caughey.
23
Justice Jennings, dissenting from the denial of en banc reconsideration with separate
opinion.
Justice Bland, dissenting from the denial of en banc reconsideration with separate
opinion.
Publish. TEX. R. APP. P. 47.2(b).
24