                                                                                         ACCEPTED
                                                                                     01-14-00862-CR
                                                                          FIRST COURT OF APPEALS
                                                                                  HOUSTON, TEXAS
                                                                                6/22/2015 4:54:32 PM
                                                                               CHRISTOPHER PRINE
                                                                                              CLERK



                          01-14-00862-CR
                 In the First Court of Appeals of Texas             FILED IN
                                                             1st COURT OF APPEALS
                                                                 HOUSTON, TEXAS
                                                             6/22/2015 4:54:32 PM
                                                             CHRISTOPHER A. PRINE
                      Andre Demont Thompson,                         Clerk
                             Appellant
                                   v.
                          The State of Texas,
                              Appellee



                    On Appeal from Cause 1364962
              In the 178th District Court of Harris County



                          Brief for Appellant


Oral Argument Requested                   Franklin Bynum
                                          Texas Bar Number 24069451
                                          fgb@lawfgb.com
                                          Bynum Law Office PLLC
                                          2814 Hamilton Street
                                          Houston, Texas 77002
                                          (713) 343-8844
                                          Counsel for Appellant
                      Identity of Parties and Counsel

Appellant                               Andre Demont Thompson
                                        TDCJ Number 01959294
                                        Nathaniel J. Neal Unit
                                        9055 Spur 591
                                        Amarillo, Texas 79107

Defense Counsel at Trial                Jules Johnson
                                        Eric Davis
                                        Harris County Public Defenders
                                        1201 Franklin Street, 13th Floor
                                        Houston, Texas 77002

Prosecutor at Trial                     David Abrams
                                        Assistant District Attorney
                                        Harris County District Attorney’s Office
                                        1201 Franklin Street, 6th Floor
                                        Houston, Texas 77002

Judge Presiding                         The Honorable David Mendoza
                                        178th District Court
                                        1201 Franklin Street, 18th Floor
                                        Houston, Texas 77002

Appellant’s Counsel                     Franklin Bynum
                                        Bynum Law Office PLLC
                                        2814 Hamilton Street
                                        Houston, Texas 77004




                                    2
                                            Table of Contents
Identity of Parties and Counsel ............................................................................ 2!

Table of Contents ............................................................................................... 3!

Index of Authorities ............................................................................................ 4!

Statement of the Case......................................................................................... 5!

Issue ................................................................................................................. 5!

Statement of Facts .............................................................................................. 5!

Summary of the Argument .................................................................................. 9!

Argument .......................................................................................................... 9!

  Issue: A prosecutor, during punishment argument, may not call the
  defendant a wild animal or a monster. Did the trial court commit error
  allowing the State, repeatedly over defense objection, to compare the
  defendant to a zoo animal and the homicidal shark from Jaws? ............... 9!

Prayer ..............................................................................................................12!

Certificate of Compliance ..................................................................................13!

Certificate of Service .........................................................................................13!




                                                           3
                                            Index of Authorities

                                                           Cases!

Brown v. State, 978 S.W.2d 708 (Tex. App.—Amarillo 1998, pet. ref’d)................. 10

Gonzalez v. State, 115 S.W.3d 278 (Tex. App.—Corpus Christi 2003, pet. ref’d) ... 10

Rocha v. State, 16 S.W.3d 1 (Tex. Crim. App. 2000) ..................................................9

Stell v. State, 711 S.W.2d 746 (Tex. App.—Corpus Christi 1986, no pet.) ............... 11

Thompson v. State, 729 S.W.2d 132 (Tex. App.—Beaumont 1987, pet. ref’d) ......... 11

Thompson v. State, 89 S.W.3d 843 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)
  ....................................................................................................................... 11, 12

Williams v. State, 417 S.W.3d 162 (Tex. App.—Houston [1st Dist.] 2013) .............. 11




                                                              4
                                Statement of the Case
         A Harris County grand jury indicted Andre Demont Thompson
on January 26, 2013 for murder.1 Thompson pleaded not guilty and the
case proceeded to jury trial on October 1, 20142 On October 7, 2014, the
judge found Mr. Thompson guilty as charged in the indictment3 and the
next day imposed a sentence of thirty years in prison.4 Mr. Thompson
gave notice of appeal on the date he was sentenced.5
                                           Issue
                   A prosecutor, during punishment argument,
                   may not call the defendant a wild animal or a
                   monster. Did the trial court commit error
                   allowing the State, repeatedly over defense
                   objection, to compare the defendant to a zoo
                   animal and the homicidal shark from Jaws?

                                     Statement of Facts
         On October 5, 2013, Jackie Bergeron—the State’s star witness—
and the complainant were sitting around an apartment complex in Hou-
ston waiting for a ride, having just committed an aggravated robbery
with a firearm earlier that day.6




1
  (C.R. at 28)
2
  (2 R.R. at 207-08)
3
  (5 R.R. at 117)
4
  (6 R.R. at 38-42)
5
  (C.R. at 113)
6
  (3 R.R. at 164-66; 4 R.R. at 48)




                                             5
          Bergeron said he saw Andre Thompson in the playground area of
the apartment complex talking to people, hanging out.7 Bergeron said
that Thompson walked up to him and the complainant with a gun visibly
tucked into his pants.8 Bergeron and the complainant started cursing at
Thompson, and calling names.9 The complainant said to Thompson:
“we’re not worried about your gun” because “we got guns too.”10
          The confrontation continued until, as Bergeron put it, “the next
thing I know, gunshots came.”11 Bergeron ran around the block, thinking
the complainant was running, too.12 Bergeron circled back to the scene,
where he found the complainant’s body.13 Bergeron took the gun off the
complainant’s body for himself, “because guns are hard to come by,”
and ran.14
          A resident of the apartment complex had heard “three or four”
shots before looking out the window and seeing a man chasing another
man across the courtyard.15 He saw one of the men fall, and the other




7
  (3 R.R. at 170)
8
   (3 R.R. at 175)
9
   (3 R.R. at 176)
10
    (3 R.R. at 177)
11
    (3 R.R. at 182)
12
    (3 R.R. at 183)
13
    (3 R.R. at 186)
14
    (3 R.R. at 187)
15
    (4 R.R. at 94, 97)




                                      6
shot him.16 The resident testified that he was not sure if the person who
he saw shoot was the defendant in the courtroom or not.17
         The State called a DNA analyst that testified that she tested “a
backpack, old T-shirts, a phone, a hat, a bicycle, swabs” from the scene
and “Andre Thompson was excluded as a contributor to any item.”18
The analyst said that she was not asked to test any shell casings, so she
did not test any.19
         Thompson raised an alibi defense. The mother of his children
testified that she, the children, and Thompson all went to Galveston
that day, and that he could not have been at the apartment complex.20
         At closing argument on punishment, the prosecutor on several
occasions called Mr. Thompson a wild animal: first a lion, then a man-
eating shark.
                     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 hold-
                     ing this baby near the lion cage.
                     And there was a clear plastic barrier between
                     this baby and the lion, and the baby is sitting
                     there dancing, moving around, and the lion




16
   (4 R.R. at 97)
17
   (4 R.R. at 109)
18
   (4 R.R. at 132)
19
   (4 R.R. at 145)
20
   (5 R.R. at 60)




                                           7
                      comes out. It’s gnawing right there. Every-
                      body thinks, oh, it's hilarious. It’s cute. It's so
                      great mom’s filming it, sends it to CNN, eve-
                      rybody watches it. But was that really cute?
                      What would have happened if that glass bar-
                      rier was not there? That baby is a goner. Be-
                      cause 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 defendant is a killer. 21
            The prosecutor continued to invoke the classic film Jaws.
                      MR. ABRAMS: Have you seen the movie,
                      Jaws? I mean, for those who haven’t seen it,
                      it’s a about a man-eating shark, right?
                      This man is a shark. We have to decide if we
                      want to let him back in the waters in our com-
                      munity.
                      MR. JOHNSON: Objection, Your Honor;
                      improper argument.
                      THE COURT: It's overruled.
                      MR. ABRAMS: Do we want to remove that
                      clear plastic barrier between the lion and the
                      baby?
                      Do we want to do that?
                      MR. JOHNSON: Objection, Your Honor;
                      improper, calls for law enforcement.
                      THE COURT: It's overruled.




21
     (6 R.R. at 32)




                                              8
                    MR. ABRAMS: That's your decision. You
                    get to decide because he'll get out eventually.
                    He will. You get to decide when you feel com-
                    fortable having this predator, this killer back
                    with our families on our streets. 22
                             Summary of the Argument
           The prosecutor repeatedly referred to the defendant as a monster
or a wild animal throughout his closing, violating strong precedent lim-
iting prosecutors’ arguments, and forbidding name calling.
                                           Argument
                    Issue: A prosecutor, during punishment
                    argument, may not call the defendant a wild
                    animal or a monster. Did the trial court
                    commit error allowing the State, repeatedly
                    over defense objection, to compare the
                    defendant to a zoo animal and the homicidal
                    shark from Jaws?

           The four acceptable areas of jury argument are (1) summation of
the evidence; (2) reasonable deduction from the evidence; (3) answer
to argument of opposing counsel; and (4) plea for law enforcement.23
Appellate courts across the state have repeatedly disapproved of prose-
cutors who make inflammatory comparisons outside the record.




22
     (6 R.R. at 34-36)
23
     Rocha v. State, 16 S.W.3d 1, 21 (Tex. Crim. App. 2000).




                                                   9
        A prosecutor may not compare a defendant to villains from media
like Osama bin Laden, al-Qaida, and the Mexican Mafia.24 The Gonzalez
court found that any name-calling was outside the record, and that the
Court of Criminal Appeals “has long been established that a prosecutor
cannot use closing argument to place matters before the jury that are
outside the record and prejudicial to the accused.”25 “Arguments refer-
encing 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.’”26 The Gonzalez court
found that even though a curative instruction was given, comparing the
defendant to infamous figures was harmful, reversible error.27
        In another case finding reversible error, the prosecutor compared
the defendant to Jeffrey Dahmer, John Wayne Gacy, and Ted Bundy.28
Courts have repeatedly found comparisons to notorious figures to be
unfair and improper, and often grounds for reversal regardless of
whether a curative instruction was given; a comparison to Lee Harvey




24
   Gonzalez v. State, 115 S.W.3d 278, 285 (Tex. App.—Corpus Christi 2003, pet. ref’d).
25
   Id. at 284 (citing Everett v. State, 707 S.W.2d 638, 641 (Tex. Crim. App. 1986)).
26
   Id. (quoting Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990)).
27
   Id. at 285-86.
28
   Brown v. State, 978 S.W.2d 708, 714 (Tex. App.—Amarillo 1998, pet. ref’d).




                                               10
Oswald was “highly improper and error.”29 In another case, a compar-
ison of the defendant to a venomous spider, along with a reference to a
spider tattoo on the defendant’s neck, was reversible.30
         This prosecutors’ office has a history of making improper jury
arguments.31
                  Improper arguments, especially those involv-
                  ing unsubstantiated accusations against op-
                  posing counsel, confirm for real jurors in real
                  Texas courtrooms the worst caricatures of
                  lawyers and our justice system that television
                  and movies have to offer. Ultimately, trial
                  judges have the duty to enforce “law and or-
                  der, as well as dignity, in their courtrooms.”32
         In this case, the prosecutor first described Andre Thompson as a
tiger who wanted to eat a young child at the zoo on cable television. This
is plainly improper. A cable-television segment is outside the record, as
is the caricature of a vicious animal contained within that segment. The
horror of a child being eaten alive at the zoo has no place in any of the
four permissible categories of argument.
         The comparison to Jaws, a bit less esoteric than a cable-news seg-
ment, is especially inflammatory. Villains and terrifying creatures take



29
   Stell v. State, 711 S.W.2d 746, 748 (Tex. App.—Corpus Christi 1986, no pet.).
30
   Thompson v. State, 729 S.W.2d 132, 133 (Tex. App.—Beaumont 1987, pet. ref’d).
31
   See Williams v. State, 417 S.W.3d 162, 174 (Tex. App.—Houston [1st Dist.] 2013), reh’g over-
ruled (Jan. 21, 2014), petition for discretionary review refused (May 7, 2014); see also Thompson v.
State, 89 S.W.3d 843, 848 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).
32
   Id. at 193 (Jennings, J., concurring).




                                                 11
on many forms; the inflammatory caricature of a terrorist is just the
same as the inflammatory caricature of the homicidal shark or the tiger
at the zoo.
           The error here is harmful. As noted above, even with a sustained
objection and a curative instruction as in Gonzalez, these kinds of im-
proper jury arguments are harmful. In this case, the trial judge neither
sustained the objection nor gave a curative instruction, doing nothing to
mitigate any harm caused by the improper argument. The error in this
case was harmful. Mr. Thompson deserves a punishment phase free of
name calling and improper argument.
           As Justice Jennings noted, the system pays particular attention to
error that reinforces the worst ideas of the system itself.33 We deserve
better from prosecutors than cable-news scaremongering.
                                    Prayer
           Andre Demont Thompson prays that this Honorable Court re-
verse the judgment of conviction and remand for a new trial, or in the
alternative for a new trial on punishment.




33
     Id.




                                       12
                   Certificate of Compliance
      The word-processing software used to write this brief reports its
length as 1806 words before subtracting for any of the contents that may
be excluded under Rule 9.4(i)(1).
                      Certificate of Service
      I provided this brief to the Harris County District Attorney by
electronic service to curry_alan@dao.hctx.net simultaneously with the
electronic filing of this document.

                                      Respectfully,


                                      /s/ Franklin Bynum
Bynum Law Office PLLC                 Franklin Bynum
2814 Hamilton Street                  Texas Bar Number 24069451
Houston, Texas 77002                  fgb@lawfgb.com
(713) 343-8844




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