                                   NO. 07-08-0348-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                  OCTOBER 14, 2009

                         ______________________________


                         CHRISTOPHER MILLS, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                       _________________________________

            FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

                NO. 07-03-6403; HONORABLE PAT PHELAN, JUDGE

                         _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                               MEMORANDUM OPINION


       Appellant, Christopher Mills, was convicted by a jury of the offense of aggravated

assault with a deadly weapon causing serious bodily harm. He was sentenced to forty-five

years confinement and fined $10,000. Appellant contends (1) the evidence at trial in

support of the element of serious bodily harm was legally insufficient, (2) the evidence of
serious bodily harm was factually insufficient, and (3) the trial court committed reversible

error by overruling Appellant’s objections to the State’s closing arguments comparing

Appellant to two notorious serial murderers and an infamous terrorist. We begin with an

analysis of Appellant’s third issue because we find it dispositive of the appeal. Based upon

that analysis, we reverse and remand for further proceedings consistent with this opinion.


                                       Background


       On March 22, 2007, Appellant was indicted by a Hockley County Grand Jury for

knowingly or recklessly causing serious bodily injury to Ariel Walden by stabbing her with

a knife. During the three day trial, witnesses testified that Appellant stabbed Ariel multiple

times near the Texas Dome on the South Plains College campus. Appellant’s core

defense was centered around the presentation of evidence tending to establish that he was

insane at the time of the stabbing. In furtherance of that defensive theory, he produced

three psychiatrists and two psychologists.


       Immediately prior to the submission of the case to the jury for deliberation during the

guilt-innocence phase of the trial, in concluding the State’s closing argument, the

prosecutor argued the following:


       STATE:        Not in his right mind. Yeah, we use that term, meaning it’s out
                     of the ordinary, meaning it’s not what the average person
                     would have done, not what you and I would have done.

                     You and I wouldn’t have stuck yourself in the throat with a
                     knife. That’s not right mind, but that’s not insanity. John

                                              2
                        Wayne Gacy, the clown murderer, was killing those boys and
                        putting them under the floor of his house.

        DEFENSE: Your honor, I will object. That’s improper argument, to bring
                 something that is not in evidence.

        COURT:          Overruled.

        STATE:          Wasn’t in his right mind. Sane. Jeffrey Dahmer, killing those
                        boys and eating them.

        DEFENSE: Your Honor, may I have a —

        COURT:          One minute.

        DEFENSE: — running objection to this line of argument?

        COURT:          Yes, sir.

        STATE:          Out of his mind to eat somebody. Sane. Muhammed Atta
                        flying a plane into the North Tower killing hundreds of innocent
                        men, women, and children. Not something somebody ordinary
                        would do, but those doctors would pat him on the back and
                        say, “Poor little Muhammed Atta.” Thank you.


        Thereafter, the jury found Appellant guilty of aggravated assault with a deadly

weapon causing serious bodily injury, and this appeal followed.1


                                             Discussion


        Appellant contends the State’s closing argument was improper because the State

argued facts not in evidence and compared Appellant’s state of mind to that of three


        1
         Appellant preserved jury argum ent error by m aking a contem poraneous objection and obtaining an
adverse ruling. See Cooks v. State, 844 S.W .2d 697, 727 (Tex.Crim .App. 1992); Dominguez v. State, 125
S.W .3d 755, 763 (Tex.App.–Houston [1 st Dist.] 2003, pet. ref’d).

                                                    3
notorious killers–John Wayne Gacy, Jeffrey Dahmer, and Mohammed Atta. As such,

Appellant asserts the State’s argument interjected prejudicial facts not in evidence to

repeatedly attack his insanity defense and improperly influence the jury.


       The State asserts that its arguments were a permissible response to Appellant’s

statements that Appellant was not in his “right mind” at the time of the incident and should

be found not guilty by reason of insanity.       The State contends its arguments also

responded to Appellant’s statements that one of his experts looked like Ernest Hemingway,

sounded like God, and was telling the truth.


       I.     Standard of Review


       There are four general areas of proper jury argument: (1) pleas for law enforcement,

(2) summations of the evidence, (3) reasonable deductions from the evidence, and (4)

responses to arguments from opposing counsel. Jackson v. State, 17 S.W.3d 664, 673

(Tex.Crim.App. 2000). An improper argument constitutes reversible error when, in light of

the record as a whole, it is extreme or manifestly improper, violates a mandatory statute,

or injects new facts harmful to the accused into the trial proceedings. Borjan v. State, 787

S.W.2d 53, 57 (Tex.Crim.App. 1990). See Barnes v. State, 70 S.W.3d 294 (Tex.App.–Fort

Worth 2002, pet. ref’d). Moreover, arguments referencing 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.” Borjan, 787 S.W.2d at 57.

That said, an instruction to the jury to disregard an improper jury argument is generally

                                             4
sufficient to cure error. Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996).

See LeClear v. State, No. 07-06-0185-CR, 2007 WL 3004589, at *6 (Tex.App.–Amarillo

2007, no pet.) (not designated for publication).


       II.    Jury Argument


       Remarkably, this Court considered the propriety of the State’s jury argument, under

similar circumstances, a little over ten years ago, and found reversible error. See Brown

v. State, 978 S.W.2d 708, 713-14 (Tex.App.–Amarillo 1998, pet. ref’d). In Brown, the

prosecutor compared the accused to notorious murderers during closing argument for the

proposition that, although the accused claimed to be mentally ill or legally insane, so did

Jeffrey Dahmer, John Wayne Gacy, and Ted Bundy–all of whom either went to prison or

received the death penalty. Id. In finding reversible error, the Brown Court stated the

following:


       Comparing an accused or his acts to those of a notorious criminal is,
       according to the Texas Court of Criminal Appeals, an improper and
       erroneous interjection of facts not in the record. [citations omitted]. Here, the
       State’s comments are tantamount to comparing appellant and his defense
       to Jeffrey Dahmer, John Wayne Gacy, and Ted Bundy and the defenses
       they raised. Each of the three individuals to which he was compared was or
       is a notorious serial murderer whose despicable acts remain fresh in the
       collective mind of the public. And, in arguing as it did, the State not only
       invoked the memory of the horrific crimes they committed but also effectively
       asked the jurors to punish appellant like they were punished, that is, by the
       assessment of imprisonment. This violated Shell [v. State, 711 S.W.2d 746,
       748 (Tex.App.–Corpus Christi 1986, no pet.)].


978 S.W.2d at 714 (emphasis added).

                                              5
        The Brown Court reversed the accused’s conviction finding harmful error because:

(1) the error arose immediately prior to the jury retiring for deliberations; (2) over the

appellant’s objection, the trial court permitted the State to continue its argument possibly

lending its imprimatur to a sanity finding; and (3) the State did not stop once it had made

its point by reference to Dahmer but continued to invoke the names of two other heinous

murderers. “Each additional comparison added to the incendiary and emotional effect the

criminal acts of Dahmer, Gacy, and Bundy had on a reasonable juror’s psyche.” 978

S.W.2d at 715.2


        Here, again, the State’s argument is tantamount to comparing Appellant and his

defense to John Wayne Gacy, Jeffrey Dahmer, and Mohammed Atta and the defenses

they raised. Because the State’s argument relied on facts not in evidence and was highly

improper, we find the trial court erred when it overruled Appellant’s objection and permitted

the State to continue its improper comparisons.


        Although we have reviewed the entire record and found ample evidence to support

the jury’s verdict of guilt, however, as in Brown, we find the trial court’s error harmful

because: (1) the error arose immediately before the jury began deliberations, (2) the trial

court permitted the State to continue its line of argument over Appellant’s objection



        2
           That the State com pared the accused here to the notorious terrorist, Moham m ed Atta, rather than
Ted Bundy is of no m om ent. See Gonzalez v. State, 115 S.W .2d 278, 285-86 (Tex.App.–Corpus Christi 2003,
pet. ref’d) (reversible error where prosecutor com pared accused to Osam a bin Laden in connection with the
9/11 attack on Twin Towers in New York city). See also Massey v. State, No. 04-99-00040-CR, 1999 W L
792454, at *5-7 (Tex.App.–San Antonio 1999, pet. ref’d) (not designated for publication).

                                                     6
possibly lending its imprimatur to a sanity finding, (3) no curative instruction was issued,

(4) the State did not stop with a single reference to Gacy but continued with references to

Dahmer, and Atta, and (5) the State sought to use Atta’s notoriety in order to discredit, not

only Appellant’s core defense, but also his experts’ testimony.


        In response to the State’s assertions, it suffices to say simply that jury argument

unsupported by the record designed to arouse the jurors’ passion and prejudices is “no

response” to an opponent’s arguments.3 Quite the contrary, the State’s closing argument

was “an improper and erroneous interjection of facts not in the record.” Brown, 978 S.W.2d

at 714.


        Although an accused is not entitled to a perfect trial, he or she is entitled to a trial

that is at least “tolerably fair.” Id. at 716.4 “In assessing the potentialities at bar, we are

unable to say that the cumulative effect of each instance of misconduct was nil or only

slight.” Id. Because we cannot say with confidence that the error stemming for the

improper argument had no influence, or only a slight influence on the jury’s decision to

reject Appellant’s insanity defense, we hold that the prosecutor’s argument was both

improper and harmful. The prosecutor made the arguments and “must have believed that



        3
        The State’s reliance on Guerrero-Lara v. State, No. 13-01-099-CR, 2002 W L 1765543
(Tex.App.–Corpus Christi 2002, no pet.) (not designated for publication) is m isplaced. In Guerrero-Lara, the
prosecutor’s statem ent in closing did not com pare the defendant’s behavior with Adolph Hitler and Charles
Manson but was lim ited to a statem ent “that all persons have good and bad days.” Id. at *4.

        4
        Haddad v. State, 860 S.W .2d 947, 953 (Tex.App.–Dallas 1993, pet. ref’d) (quoting Brown v. State,
168 Tex.Crim . 67, 323 S.W .2d 954 (1959)).

                                                     7
the jury would place at least some weight on its improper argument; otherwise, the State

would not have included the references in its soliloquy to the jury.” Massey, 1999 WL

792454, at *6. Accordingly, we find the trial court erred in overruling Appellant’s objection

to the State’s improper jury arguments and the error was harmful. See Tex. R. App. P.

44.2(b). See also Gonzalez, 115 S.W.3d at 283-86; Brown, 978 S.W.2d at 714-16;

Massey, 1999 WL 792454, at *4-6. Appellant’s third issue is sustained and his remaining

issues are pretermitted. Tex. R. App. P. 47.1.


                                        Conclusion


       The trial court’s judgment is reversed and the cause is remanded for further

proceedings consistent with this opinion.



                                                  Patrick A. Pirtle
                                                       Justice

Do not publish.




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