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Milton v. State

Court of Criminal Appeals of Texas

April 3, 2019

DAMON ORLANDO MILTON, Appellant
v.
THE STATE OF TEXAS

          ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY

          OPINION

          Newell, J.

         Can a demonstrative video for an otherwise proper closing argument go too far? In this case, yes. During closing argument for the punishment phase of a non-violent robbery case, the State played a YouTube video of a lion at a zoo trying to eat a human baby through protective glass. A copy of the video was included in the record and is available for viewing on the Court's website here. Additionally, here are three screen captures from the video that were also included in the record:

         (Image Omitted)

         The State argued that Appellant deserved a lengthy sentence in light of his crime and criminal background. This was certainly a proper plea for law enforcement. But the demonstrative video went beyond that argument because it encouraged the jury to make its decision upon matters outside the record by inviting a comparison between Appellant and a hungry lion. Consequently, we reverse the court of appeals opinion and remand for that court to perform a harm analysis.

         Background

         The relevant facts here are undisputed on appeal. In 2015, Appellant entered a CVS drug store and looked around the store for about 10 to 15 minutes. At first, Appellant acted like "any other customer." He waited "until no one else was around" and then approached the counter with some "candy" and "soda." The cashier scanned the items, placed them in a bag, and handed the bag to Appellant. Then, with his hands on the counter, Appellant leaned over and told the cashier: "[T]his is a stick up, give me whatever is in the register, do not try anything, or I will kill you."[1] Appellant also told the cashier he had a weapon, though he never displayed one.

         Appellant then reached his arm over the counter and grabbed another plastic bag. The cashier opened the register and handed the bills to Appellant, who stuffed them in his pockets. Next, Appellant held open the plastic bag while the cashier filled it with the coins from the register. Appellant took the bag with his food items and the bag with the coins and walked over to the beverage aisle, where he grabbed additional food and drink items. The cashier "calmly waited" until Appellant walked out of the store before calling the manager who, in turn, called the police.

         During the entire incident, Appellant's hands stayed within the cashier's sight. Appellant did not display a weapon or "mess" with the waistband of his pants. Shortly after leaving the drug store, Appellant was apprehended in the area. In Appellant's backpack, officers found plastic CVS bags containing assorted rolls of coins as well as $17.53 worth of food and drink products. The backpack also contained some of Appellant's personal items (i.e., clothes, reading glasses, and parole papers). Appellant had "a very large wad of American cash stuffed" in his pocket. He had no weapons.

         Appellant was charged with robbery. At trial, the State introduced evidence that Appellant had previously robbed the same CVS the day before the charged robbery. The facts of the extraneous robbery were nearly identical to the charged robbery and involved the same cashier.[2]The jury found Appellant guilty.

         During the punishment phase, the State introduced evidence of Appellant's criminal history. This included: a 2013 conviction for forgery with a sentence of 10 months in state jail; a 2007 conviction for attempted unauthorized use of a motor vehicle with a sentence of eight months in county jail; a 2002 conviction for evading arrest with a sentence of 10 months in state jail; a 1994 conviction for theft from a person enhanced to a third degree felony and resulting in a sentence of 14 years' imprisonment; and two 1993 convictions for robbery by threat, each with a sentence of seven years' imprisonment. Though he had two convictions for robbery by threat, Appellant's criminal history predominately featured crimes of theft rather than violence. There is no indication that any of his past convictions involved crimes that were particularly brutal or gruesome. Neither is there any indication that Appellant's past convictions involved crimes against children.

         For its closing argument at punishment, the State sought the trial court's permission to play for the jury a YouTube video "as a demonstrative." The video is 35 seconds long and depicts a lion trying to eat a human baby through a glass wall at the zoo.[3] Appellant objected to playing the video, arguing that it was irrelevant and highly prejudicial.

         The State responded that the video illustrated that "motive plus opportunity equals behavior" (i.e., Appellant's desire to commit crime would be irrelevant if Appellant were in prison because it removes his opportunity). The State described the video as "comical," stating that there are "people laughing light-heartily about the lion trying to get to a baby." Significantly, the State assured the trial court that it was "not going to compare the defendant to the lion, or society to the baby, no comparisons like that." The trial court overruled Appellant's objection without viewing the video itself.

         During closing argument, the State played the video for the jury and then argued:

Ladies and gentleman, I know you're thinking, that was weird, what was that about? Anybody would think that. But that 30-second clip is exactly what this punishment phase is about.
. . .
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 innate. 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 is] 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 [Appellant is] never changing his motive.
. . .
This isn't a 25-year case, this isn't a 35-year case, maybe it's a 40-year case. The Legislat[ure] 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 for every second that he deserves.

         After finding both enhancement provisions "true," the jury assessed Appellant's punishment at 50 years' imprisonment.

         On appeal, Appellant complained that the trial court abused its discretion by allowing the State to play the video.[4] The court of appeals analyzed the complaint as a challenge to the State's closing argument and affirmed Appellant's conviction and sentence. At the outset of its analysis, the court of appeals agreed that the video represented a demonstrative aid[5] in the summation of the evidence.[6] However, the court of appeals explained that the State's argument "was a plea for law enforcement and protection of the community in light of the sheer volume of appellant's prior offenses."[7] As the State summarizes the holding, "The First Court's holding was that it was acceptable in this case to argue that the appellant was a vicious lion trying to eat a baby and the jury needed to stop him."[8] The court of appeals was careful to note that this analogy was "tenuous" given the nature of the crime and only acceptable in this case because of Appellant's sustained record of re-offending upon release from confinement.[9] Appellant filed a motion for rehearing and a motion for en banc reconsideration. The court of appeals denied both, with two judges dissenting to the denial of en banc reconsideration.[10] Appellant then petitioned this Court for review.

         Before this Court, Appellant's main contention is that the trial court abused its discretion in allowing the State to play a video that was highly prejudicial and inflammatory because it presented facts outside the record.[11] The State responds that the trial court did not abuse its discretion in playing the demonstrative aid because the video corresponded with the trial prosecutor's proper plea for law enforcement. Notably, the State agrees with Appellant that it would not be acceptable in this case to argue that Appellant was like a lion trying to eat a baby.[12]The State argues instead that the prosecutor never made that argument and that the argument it did make was a proper plea for law enforcement.

         The State is correct that the trial prosecutor initially sought to make a proper plea for law enforcement in his closing argument. In support of his request to play the video, the State argued that it only intended to use the video to illustrate that Appellant's motive was unchanging; the State did not suggest that Appellant's crime or criminal history demonstrated a motive to eat babies. However, Appellant is also correct that the State's use of the video to make the intended argument was highly prejudicial because the video nevertheless encouraged the jury to draw the very analogy the State claimed it was not trying to draw-that Appellant was like a hungry lion trying to eat a small child. Consequently, we reverse the court of appeals.

         Standard of Review - Jury Arguments and Demonstrative Aids

         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."[13] It should not "arouse the passion or prejudice of the jury by matters not properly before them."[14] As we have often explained, proper jury argument generally falls within one of four areas: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to an argument of opposing counsel, and (4) plea for law enforcement.[15]

         But it appears our reliance upon these four areas of permissible argument was born out of the prohibition against introducing matters in argument that were not presented as evidence. In Alejandro v. State, we held that a State's punishment argument that injected facts outside the record was error even though it was a response to defense counsel's request that the jury assess probation.[16] The prosecutor argued that the "probation officer in this court right here should have no more than 75 probationers, and he's got 350-." Defense counsel objected to the improper argument.[17] We noted that trial counsel has a duty to confine arguments to the record, but went further by noting that "[t]o receive the stamp of approval of this court," jury arguments need to fall within the four areas of argument listed above: summations, deductions, responses, and pleas.[18] As support for these four categories, we listed cases upholding different types of arguments falling into each respective category.[19] Then we noted that "arguments that go beyond these areas too often place before the jury unsworn, and most times believable, testimony of the attorney."[20]

         The focus, therefore, has always been upon encouraging the jury to decide the case on the evidence in front of it rather than encouraging juries to reach a decision based upon information outside the record. This is because improper references to information outside the record are generally designed to arouse the passion and prejudice of the jury, and, as such, are inappropriate.[21] Generally, the bounds of proper closing argument are left to the sound discretion of the trial court.[22]

         This prohibition against arguing outside the record is equally present when evaluating the use of demonstrative aids to assist in argument. It is certainly proper to demonstrate evidence before the jury to clarify it for the jury.[23] In this way, demonstrative aids can be "offered to illustrate or explain the testimony of witnesses."[24] However, demonstrations and demonstrative aids "do not have independent probative value for determining the substantive issues in the case"; instead, they are relevant in theory "only because of the assistance they give to the trier in understanding other real, testimonial and documentary evidence."[25] While demonstrative aids may be admitted into evidence with a proper predicate, [26] they need not always be admitted into evidence to be shown to the jury.[27] But, as with jury argument, a demonstrative aid must not be overly inflammatory.[28] Though we have not explicitly said so before, we agree with courts of appeals that trial courts have discretion to permit ...


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