Opinion issued January 23, 2018




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-16-00434-CR
                            ———————————
                  DAMON ORLANDO MILTON, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


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


                     OPINION DISSENTING FROM
                DENIAL OF EN BANC RECONSIDERATION

      Because 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.
      Proper 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. Id.

      In 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 closing argument.

Id. at 619–20.

      In the 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
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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. 269(e).

      None of 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.

      The 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.”




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      The 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.”

      A brief 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. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973) (noting that “[i]t is the duty




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of trial counsel to confine their arguments to the record; reference to facts that are

neither in evidence nor inferable from the evidence is therefore improper”).

      The video recording of the event at the zoo is not counsel’s argument, but is

instead the display of inadmissible facts—unrelated to this case, never introduced as

evidence, and never tested by cross-examination.        The video was not merely

argument by analogy, but instead placed central emphasis on a wholly collateral

matter through a powerful medium, to incite the protective instincts of the jury. A

world of video happenings now is at any lawyer’s fingertips, but the law requires

that a jury make its decision based on the evidence relevant to sentencing. See TEX.

CODE CRIM. PROC. art. 37.07, § 3(a)(1) (during punishment phase of trial “evidence

may be offered by the state and the defendant as to any matter the court deems

relevant to sentencing”). Videos that are not introduced as evidence should not be

played during closing argument—our statutes and rules do not allow for it. The

State’s choice to introduce an inadmissible video clip was a calculated effort to

increase the punishment level in this case. As such, it constitutes reversible error.

See Wesbrook, 29 S.W.3d at 115.




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      Because the State’s jury argument in this case went beyond the bounds of

proper argument by introducing a video that was not evidence in the case, we should

reverse and remand for a new punishment hearing. Because we do not, I respectfully

dissent.




                                             Jane Bland
                                             Justice

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

En banc reconsideration was requested. See TEX. R. APP. P. 49.7.

A majority of the justices of the Court voted to deny the motion for en banc
reconsideration.

The en banc court consists of Chief Justice Radack and Justices Jennings, Keyes,
Higley, Bland, Massengale, Brown, Lloyd, and Caughey.

Justice Jennings, dissenting from the denial of en banc reconsideration with separate
opinion.

Justice Bland, dissenting from the denial of en banc reconsideration with separate
opinion.

Publish. TEX. R. APP. P. 47.2(b).




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