Damon Orlando Milton v. State

Opinion issued January 23, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00434-CR
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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
Because the State introduced a video clip during its closing argument that was
not evidence in the case, thus injecting facts from outside the trial record for the
purpose of increasing the defendant’s punishment, we should grant en banc review
and reverse for a new punishment hearing.
Proper closing arguments (1) summarize the evidence; (2) make reasonable
deductions from the evidence; (3) respond to arguments of opposing counsel; or (4)
plead for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App.
2000). Even when an argument exceeds the permissible bounds of these approved
areas, it will not constitute reversible error unless the argument is extreme or
manifestly improper, violates a mandatory statute, or injects new facts harmful to
the accused into the trial proceeding. Id.
In Dang v. State, the Texas Court of Criminal Appeals noted that “[t]he
statutory right to argue at the close of the evidence is derived by inference from
Articles 36.07 and 36.08.” 154 S.W.3d 616, 619 (Tex. Crim. App. 2005) (referring
to TEX. CODE CRIM. PROC. arts. 36.07, 36.08). The Court further noted:
Article 36.07 gives broad discretion to the trial court regarding
the general order of arguments with the caveat that the State has the
right to present the concluding argument. Because the legislature
addressed the order in which arguments should be presented, we can
assume that an implicit right to closing argument exists.
Under Article 36.08, the court is prohibited from restricting
arguments in felony cases to less than two on each side. This Court has
interpreted this to mean that a defendant is entitled to two arguments if
he is represented by more than one lawyer. If a defendant has the right
to two closing arguments, then we can presume that he has the right to
one closing argument.
Id. at 619–20.
In the civil context, Rule 269 of the Texas Rules of Civil Procedure provides:
“Arguments on the facts should be addressed to the jury, when one is impaneled in
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a case that is being tried, under the supervision of the court. Counsel shall be
required to confine the argument strictly to the evidence and to the arguments of
opposing counsel.” TEX. R. CIV. P. 269(e).
None of these authorities provide for presenting extraneous material beyond
counsel’s rhetorical summation of the evidence. The complained-of conduct was
not the argument of counsel at all—it was a video clip played before the jury during
the State’s closing argument. The introduction of that 35-second video showed: a
toddler sitting near a lion confined in a zoo, with the lion repeatedly lunging and
pawing at the child from behind the glass. These facts were concededly completely
unrelated to the facts of this case. The State used the video to equate the defendant
to that of a predatory animal, who, like that animal, should be caged to protect
innocent children. Given that the video presented facts outside the record and would
never have been admitted into evidence, the trial court erred in allowing its
admission during closing argument. See Wesbrook, 29 S.W.3d at 115.
The video clip was central to the State’s plea for a lengthy confinement as
punishment for this recidivist defendant. Its introduction before the jury caused
harm. The State used the video to begin its rebuttal: “Ladies and gentlemen, I know
you’re thinking, that was weird, what was that about? But that 30-second clip is
exactly what this punishment phase is about.”
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The State later referred to the video a second time: “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 [in]nate. Given the opportunity, remove that glass, it’s no longer
funny, it’s a tragedy. That’s what’s going to happen, that’s a tragedy. That’s what’s
going on with this case.”
A brief allusion to something outside the record to make a metaphorical plea
for law enforcement is not viscerally the same as introducing facts from outside the
record in the form of a video clip like this one; the former is easily categorized as
argument by analogy in the minds of jurors, coming, as it does, directly from
counsel’s summation. Compare Murphy v. State, No. AP-74851, 2006 WL
1096924, at *22 (Tex. Crim. App. Apr. 26, 2006) (not designated for publication)
(holding analogy to military ambush not harmful where evidence established
defendant was lookout and analogy helped emphasize and explain evidence), and
Broussard v. State, 910 S.W.2d 952, 959 (Tex. Crim. App. 1995) (concluding
argument comparing defendant to volcano was permissible analogy that emphasized
and explained evidence where evidence supported conclusion that defendant
behaved peacefully sometimes but had propensity towards violence), with Alejandro
v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973) (noting that “[i]t is the duty
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of trial counsel to confine their arguments to the record; reference to facts that are
neither in evidence nor inferable from the evidence is therefore improper”).
The video recording of the event at the zoo is not counsel’s argument, but is
instead the display of inadmissible facts—unrelated to this case, never introduced as
evidence, and never tested by cross-examination. The video was not merely
argument by analogy, but instead placed central emphasis on a wholly collateral
matter through a powerful medium, to incite the protective instincts of the jury. A
world of video happenings now is at any lawyer’s fingertips, but the law requires
that a jury make its decision based on the evidence relevant to sentencing. See TEX.
CODE CRIM. PROC. art. 37.07, § 3(a)(1) (during punishment phase of trial “evidence
may be offered by the state and the defendant as to any matter the court deems
relevant to sentencing”). Videos that are not introduced as evidence should not be
played during closing argument—our statutes and rules do not allow for it. The
State’s choice to introduce an inadmissible video clip was a calculated effort to
increase the punishment level in this case. As such, it constitutes reversible error.
See Wesbrook, 29 S.W.3d at 115.
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Because the State’s jury argument in this case went beyond the bounds of
proper argument by introducing a video that was not evidence in the case, we should
reverse and remand for a new punishment hearing. Because we do not, I respectfully
dissent.
Jane Bland
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.
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).
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