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Milton v. State

Court of Appeals of Texas, First District

January 23, 2018


         On Appeal from the 338th District Court Harris County, Texas Trial Court Case No. 1472750

          Panel consists of Chief Justice Radack and Justices Keyes and Massengale.


          Terry Jennings Justice

         [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:

          (Image Omitted)

         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).


         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 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 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 robbery[6] and sentenced to confinement for seven years for each offense, to run concurrently; on September 26, 1994, he was convicted of the offense of theft[7] and sentenced to confinement for fourteen years; on August 27, 2002, he was convicted of the offense of evading arrest[8] 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[9] and sentenced to confinement for eight months; and on January 22, 2013, he was convicted of the offense of forgery[10] 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 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 chances, quit removing that glass. Keep that glass there, remove the opportunity, and send him to prison ...

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