Appeal from the 338th District Court Harris County, Texas
Trial Court Case No. 1472750
consists of Chief Justice Radack and Justices Keyes and
OPINION DISSENTING FROM DENIAL OF EN BANC
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.
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.
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
Id. at 619-20.
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 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.
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.
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."
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."
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. ...