Court of Appeals For The First District of TexasJun 11, 2019
NO. 01-16-00434-CR (Tex. App. Jun. 11, 2019)

NO. 01-16-00434-CR



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


On remand from the Texas Court of Criminal Appeals, this Court considers whether appellant's substantial rights were affected when the trial court erroneously permitted the prosecutor to show a video during closing argument that presented "a significant potential for unfair prejudice" because it "invit[ed] jurors to imagine [a] lion achieving its objective by closing its jaws around [a] small child's head." We remand for a new punishment hearing.

See TEX. R. APP. P. 44.2(b) ("Any other error defect, irregularity, or variance that does not affect substantial rights must be disregarded.").

See Milton v. State, No. PD-0207-18, 2019 WL 1461253, at *7, 8 (Tex. Crim. App. April 3, 2019)


Trial Facts

The background facts as set forth in the court of criminal appeals' opinion are as follows:

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."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. 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. 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.

, 2019 WL 1461253, at *1-3.

This Court's Opinion

On direct appeal, appellant argued that "use of the video to compare the prospect of appellant's presence outside of prison to that of a lion that would be mauling an infant was inflammatory and suggested to the jury an improper basis for determining appellant's punishment." Milton v. State, No. 01-16-00434-CR, 2017 WL 3633570, at * 13 (Tex. App.—Houston [1st Dist.] Aug. 24, 2017) (mem. op.), rev'd, 2019 WL 1461253 (Tex. Crim. App. April 3, 2019). This Court disagreed, holding that "[t]he State's analogy between the glass being necessary to restrain the lion and jail being necessary to restrain appellant was a plea for law enforcement and protection of the community in light of the sheer volume of appellant's prior offenses." Id. at *14. As such, this Court found no error by the trial court in permitting the video to be shown to the jury. Id.

The Court of Criminal Appeals' Opinion

The Court of Criminal Appeals disagreed with this Court, stating 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." Milton, 2019 WL 1461253, at *4. The Court of Criminal Appeals concluded that "the video invited an analogy that was not anchored to the evidence presented at trial" and presented a "significant potential for unfair prejudice[,]" creating the potential that "the jury might punish Appellant for a more heinous crime than the simple robbery he had committed." Id. at *8. The Court then reversed this Court's opinion and remanded the case for a harm analysis. Id.


Thus, we turn to the issue of whether the trial court's error affected appellant's substantial rights. See TEX. R. APP. P. 44.2(b). An appellate court, in assessing the harm of an improper jury argument during the punishment phase of trial, looks to three factors: (1) severity of the misconduct (the magnitude of the prejudicial effect of the State's remarks); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of the same punishment being assessed absent the misconduct (the strength of the evidence supporting the conviction). See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). We address each factor respectively.

Severity of the Misconduct

In assessing the first factor, we look to the Court of Criminal Appeals' opinion for guidance. The court stated that "[d]isplaying a video of a lion's efforts to bite through safety glass in order to eat a baby encouraged the jury to liken Appellant's intent to the lion's without a basis for such a comparison in the record." Milton, 2019 WL 1461253, at *7. The court also stated that "the video at issue here presents a significant potential for unfair prejudice" and carries a similar potential to "unconsciously mislead" the jury to "punish Appellant for a more heinous crime than the simple robbery he had committed." Id. at *8. The Court concluded that "the video invited an analogy that was not anchored to the evidence presented at trial" and "improperly invited the jury to view Appellant's crime and criminal history as more brutal than they were." Id.

In light of the Court of Criminal Appeals' assessment of the error, we conclude that the first factor weighs in favor of appellant.

Curative Measures

Regarding the second factor, we note that no curative measures were taken, and the trial court overruled appellant's objection to the video. See Good v. State, 723 S.W.2d 734, 738 (Tex. Crim. App. 1986) (overruling objection to improper argument "puts the stamp of judicial approval" on such improper argument). Because no curative measures were taken in this case, the second factor also weighs in favor of appellant.

Certainty of Same Punishment Absent Misconduct

In this case, the range of punishment was 25 to 99 years because the jury found two prior felony enhancements to be "true." See TEX. PENAL CODE § 12.42(d). The jury assessed punishment at 50 years' confinement, which is in the middle of the permissible range, but more than the 40 years requested by the State. Even though appellant's extensive criminal history would support a punishment in the middle of the range, we cannot necessarily conclude that the same sentence would have been assessed absent the video, which was shown to the jury immediately before deliberations. See Sneed v. State, No. 10-11-00231-CR (Tex. App.—Waco July 12, 2012, no pet.) ("We believe that there is some doubt that the same sentence would have been assessed without the overruling of the objection to the improper argument."). This is especially true here because the video injected the issue of violence into the case, which was not supported by the evidence because this was a simple robbery, not an aggravated robbery. See Milton, 2019 WL 1461253 at *8. Thus, we cannot be certain that the jury would have assessed the same punishment absent the erroneous showing of the video. This factor, too, weighs in appellant's favor.

Because of the severity of the State's misconduct in showing a video that created a "significant potential for unfair prejudice," the lack of curative measures, and the lack of certainty of the same punishment absent the State's misconduct, we reverse the trial court's judgment on punishment only and remand solely for purposes of a new punishment hearing.

See Milton, 2019 WL 1461253, at * 8. --------

Sherry Radack

Chief Justice Panel consists of Chief Justice Radack and Justices Higley and Hightower. Do not publish. TEX. R. APP. P. 47.2(b).