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

[A]rguments which de-humanize an accused do not aid jurors in their 

task; rather, they discredit a criminal justice system founded on the 

basic beliefs that an accused stands before a jury as an equal peer and 

that the State’s prosecutors seek as their first goal justice, not 
2

convictions at any cost. . . . [W]hen arguments degrade to likening 

litigants to animals, it is appropriate for the . . . court to . . . intervene.[1]

A jury found appellant, Damon Orlando Milton, guilty of the offense of 

robbery.

2

 After finding true the allegations in two enhancement paragraphs that he

had twice been previously convicted of felony offenses, the jury assessed his 

punishment at confinement for fifty years. In his first issue, appellant contends that 

the trial court erred in overruling his objection, made at the punishment phase of 

trial, to the portion of the State’s closing argument during which it played a videotape

recording titled, “Lion tries to eat baby PART 1” (the “lion-tries-to-eat-baby 

video”),

3 which contains the following two still frames:

 

1 Alexander v. State, No. 04-95-00154-CR, 1996 WL 382984, at *4 (Tex. App.—San 

Antonio July 10, 1996, pet. ref’d) (not designated for publication).

2 See TEX. PENAL CODE ANN. § 29.02(a)(2) (Vernon 2011).

3 A copy of the videotape recording appears in the record but may also be found on 

YouTube. See Jpbsmama, Lion tries to eat baby PART 1, YOUTUBE (May 2, 2012),

https://www.youtube.com/watch?v=6fbahS7VSFs.
3

Because the panel errs in holding that the trial court did not err in overruling 

appellant’s objection, I respectfully dissent from the Court’s order denying en banc 

reconsideration in this case. See TEX. R. APP. P. 41.2(c).

Background

The complainant, LaSondra Robertson, testified that she previously worked 

as a store clerk and cashier at a CVS Pharmacy located in Harris County, Texas. On 

June 22, 2015, appellant came into the store and looked around for about ten or 

fifteen minutes. While appellant walked around the store, he behaved like “any other 

customer,” and the complainant was not alarmed or afraid. Appellant, after 
4

apparently waiting for “no one else [to be] around,” approached the complainant and 

placed several inexpensive “food items”4 on the counter. Again, she was not afraid

of appellant nor alarmed by his actions. As the complainant began to scan the items 

that appellant had placed on the counter, he “leaned over” and told her, “[T]his is a 

stick up, give me whatever is in the [cash] register, do not try anything, or I will kill 

you.” Although appellant had told the complainant that he had a weapon, she did 

not see one. She then felt nervous and scared, and she gave him “the money out of 

the register.” Appellant picked up the “food items” that he had previously placed on 

the counter and grabbed “four beers,” “a bag of Starburst[s],” and “some chips” 

before walking out of the store.

The complainant explained that during the entire time that appellant stood at 

the counter with her, his hands stayed on the counter within her sight. He did not 

have a weapon in his hands, did not “mess[] with [the] waistband” of his pants, and 

did not place a weapon on the counter. He also did not touch her or cause her to 

sustain any scratches, bruises, or any bodily injury. The complainant did not know 

how much money appellant had taken from the cash register, but the only dollar bills 

in the register were in denominations of twenty dollars or less. She also explained 

that she did not tell any of the law enforcement officers, who arrived at the scene 

after the robbery, that appellant had told her he was going to “kill” her. The first 

 

4 The complainant noted that the “food items” consisted of candy and a soda.
5

time that she had ever stated that appellant threatened to kill her was in her trial 

testimony.

Houston Police Department (“HPD”) Officer C. Inocencio testified that 

following the incident, appellant was found to be in possession of a CVS Pharmacy

bag, “some kind of food products,” “cash money,” “rolled coins,” and “assorted 

[loose] change.” The “food products” found in appellant’s possession had a total 

value of $17.53. Inocencio explained that the complainant never reported that 

appellant had threatened to “kill her.”

HPD Officer A. Huckabee testified that when he detained appellant shortly 

after he had left the CVS Pharmacy, he did not have in his possession a firearm, a 

knife, or any type of weapon.5 And appellant fully cooperated with law enforcement 

officers.

At the punishment phase of trial, the trial court admitted evidence of 

appellant’s criminal record, revealing that on August 17, 1993, he was convicted of 

two separate offenses of robbery6and sentenced to confinement for seven years for 

each offense, to run concurrently; on September 26, 1994, he was convicted of the 

 

5 HPD Officer P. Pac similarly testified during the punishment phase of trial that 

appellant was not in possession of a weapon when he was detained by law 

enforcement officers.

6 See TEX. PENAL CODE ANN. § 29.02(a).
6

offense of theft7and sentenced to confinement for fourteen years; on August 27, 

2002, he was convicted of the offense of evading arrest8and sentenced to 

confinement for ten months; on May 31, 2007, he was convicted of the misdemeanor 

offense of attempted unauthorized use of a motor vehicle9and sentenced to 

confinement for eight months; and on January 22, 2013, he was convicted of the 

offense of forgery10 and sentenced to confinement for ten months.

During its closing argument at the punishment phase of trial, the State, after 

playing the lion-tries-to-eat-baby video for the jury, stated:

[T]hat 30-second clip is exactly what this punishment phase is 

about. . . .

. . . I’m asking you to start at 40 [years]. I’m not ashamed to ask you 

that, I’m not hesitant to ask for that. Start at 40 [years], consider the 

range of punishment.

. . . .

I’m not an expert on human behavior, and probably there are a couple 

on the panel more qualified to talk about this than I am. But I believe 

in the simplest form, human behavior is motive, plus opportunity, and 

that equals behavior. . . .

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 enate. 

Given the opportunity, remove that glass, it’s no[] longer funny, it’s a 

 

7 See id. § 31.03(a) (Vernon Supp. 2016).

8 See id. § 38.04(a) (Vernon 2016).

9 See id. § 15.01(a) (Vernon 2011), § 31.07(a) (Vernon 2016).

10 See id. § 32.21(b) (Vernon 2016).
7

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]’s 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 he’s 

never changing his motive.

Remember the good old days? Everybody here is over 20 years old and 

used to talk about the good old days, how everyone played outside until 

it was dark, and then kids came home for dinner. And I never even had 

to lock my house, my neighbors would just come and go. [Appellant] 

is why we don’t have the good old days. He’s the reason you lock[ed]

your house when you left, he’s the reason you locked your car when 

you came to court today, [appellant] is the reason we don’t have the 

good old days.

. . . .

. . . I’m not going to thank you for your verdict that you return on 

punishment. Because quite frankly, I’m envious of your position. 

Every one [of] you can go home tonight and turn on the news, and 

you’re going to see the nightly news, and say, man, our city has really 

gotten violent. I wish somebody would do something about that.

. . . .

Man, I wish I could do something about that. . . . You, 12, have the

opportunity to when you turn on that news, say, man, it’s gotten bad, 

but I finally did something about it. . . .

This isn’t a 25-year case, this isn’t a 35-year case, maybe it’s a 40-year 

case. The Legislator [sic] said two convictions, 25, that’s where you 

start. When you’ve got five and another one reduced, quit giving him 
8

chances, quit removing that glass. Keep that glass there, remove the 

opportunity, and send him to prison for every second that he deserves. 

He surely doesn’t deserve less than 40.

(Emphasis added.)

Improper Argument

In his first issue, appellant argues that the trial court erred in overruling his 

objection to the portion of the State’s closing argument at the punishment phase of 

trial during which it played the lion-tries-to-eat-baby video for the jury because the 

video was “not admitted into evidence during . . . trial”; was not relevant; “portrayed 

images that were highly prejudicial and inflammatory”; “suggested a punishment on 

an improper basis”; and “compare[d] [a]ppellant’s presence out of prison to that of 

a lion that would be mauling an infant but for a piece of glass.” And he asserts that 

the State’s misconduct in playing the video affected his substantial rights. 

The law provides for, and presumes, a fair trial free from improper argument 

by the State. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991); Thompson 

v. State, 89 S.W.3d 843, 850 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). The 

Court reviews a trial court’s ruling on an objection to improper jury argument for an 

abuse of discretion. Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004).

Although the State is afforded wide latitude in its jury arguments, proper jury 

argument is generally limited to: (1) summation of the evidence presented at trial; 

(2) reasonable deductions drawn from that evidence; (3) answers to opposing 
9

counsel’s argument; and (4) pleas for law enforcement. Wesbrook v. State, 29 

S.W.3d 103, 115 (Tex. Crim. App. 2000); Acosta v. State, 411 S.W.3d 76, 93 (Tex.

App.—Houston [1st Dist.] 2013, no pet.).

It has long been established that the State cannot use its closing argument to 

place matters before the jury that are outside the record and prejudicial to the 

accused. Everett v. State, 707 S.W.2d 638, 641 (Tex. Crim. App. 1986); Thompson, 

89 S.W.3d at 850. 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 v. State, 787 

S.W.2d 53, 57 (Tex. Crim. App. 1990); Thompson, 89 S.W.3d at 850. 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.” Campbell v. State, 

610 S.W.2d 754, 756 (Tex. Crim. App. [Panel Op.] 1980) (internal quotations

omitted).

Here, the panel held that the trial court did not err in overruling appellant’s 

objection to the State’s playing of the lion-tries-to-eat-baby video for the jury 

because the video was played in “response to the theme of appellant’s closing 

argument” and constituted a plea for law enforcement. In doing so, the panel relied 

exclusively on this Court’s prior decision in Thompson v. State, No. 
10

01-14-00862-CR, 2015 WL 9241691 (Tex. App.—Houston [1st Dist.] Dec. 17, 

2015, no pet.) (mem. op., not designated for publication). See TEX. R. APP. P.

47.7(a).

In Thompson, the defendant and the complainant, a fifteen-year-old boy, 

confronted each other at an apartment complex. 2015 WL 9241691, at *1. As the 

defendant approached the complainant, he showed the complainant a firearm tucked 

into his pants. Id. The complainant then told the defendant that he was not “worried” 

about the firearm because he had a firearm as well. Id. (internal quotations omitted). 

A verbal confrontation ensued, and when it escalated, the complainant turned to run 

away. Id. The defendant then shot the complainant as he was running away, 

resulting in the complainant’s death. Id.

After the jury found the defendant guilty of murder, the State, during its 

closing argument in the punishment phase of trial, referenced the same 

lion-tries-to-eat-baby video at issue in the instant case. Id. at *1–2. Specifically, the 

State, over the defendant’s objection, argued:

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 [was] holding this baby near the 

lion cage. And there was a clear plastic barrier between the baby and 

the lion, and the baby is sitting there dancing, moving around, and the 

lion comes out. It’s gnawing right there. Everybody thinks, oh, it’s 

hilarious. It’s cute. It’s so great [the] mom’s filming it, sends it to 

CNN, everybody watches it. But was that really cute? What would 

have happened if the glass barrier was not there? That baby is a goner. 
11

Because 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 [d]efendant is a killer. He is a predator.

. . . .

. . . Do we want to remove that clear plastic barrier between the lion and 

the baby? Do we want to do that?

. . . .

. . . That’s your decision. You get to decide because he’ll get out 

eventually. He will. You get to decide when you feel comfortable 

having this predator, this killer back with our families on our streets.

For the sake of all of us, for the sake of your community, I ask that you 

send him away for as long as you feel comfortable with. I ask that [it] 

be a long time. I ask that you refer to either the first or second page of 

your verdict sheets, and you give him a number of years that you feel 

comfortable telling your family that you kept a murderer out of our 

waters.

Id. at *1–2 (first, second, third, and tenth alterations in original). The jury then 

sentenced the defendant to confinement for thirty years. Id. at *1.

On appeal, the defendant asserted that the trial court had erred in overruling 

his objection to the State’s closing argument to the jury, particularly the State’s 

reference to the lion-tries-to-eat-baby video. Id. at *2. This Court, however, noting 

the particularly gruesome nature of the crime, i.e., the murder of a fifteen-year-old 

boy as he was fleeing, held that the trial court did not err because the State’s 

argument, including its “use of the analogy of [the defendant] as a lion that must 

remain caged,” constituted a proper plea for law enforcement given “the context of 
12

th[e] case.” Id. at *3. Notably, in reaching its holding, the Court looked to other 

cases, which had also held that the reference to a defendant as “an animal” was not 

improper because of the extremely violent and gruesome nature of the criminal 

offenses that had been committed. See id. (citing Burns v. State, 556 S.W.2d 270, 

285 (Tex. Crim. App. 1977) (holding reference to defendant as animal not improper 

where defendant brutally tortured and murdered fifty-eight-year-old man); Belton v. 

State, 900 S.W.2d 886, 898–99 (Tex. App.—El Paso 1995, pet. ref’d) (reference to 

defendant as animal not improper where defendant broke into family’s home, 

terrorized them, shot mother and two children, and killed one child)); but see Rangel 

v. State, No. 01-92-01128-CR, 1994 WL 362796, at *5 (Tex. App.—Houston [1st 

Dist.] July 14, 1994, pet. ref’d) (not designated for publication) (State’s calling 

defendant “an animal and a creep” improper (internal quotations omitted)).

The problem with the panel’s reliance on Thompson, and the cases cited in 

Thompson which involve seriously violent criminal offenses, is that, here, the Court 

is not faced with a gruesome or incredibly violent criminal offense. See Thompson, 

2015 WL 9241691 at *1 (murder of child fleeing scene); see also Burns, 556 S.W.2d 

at 273, 280–81 (beating, torturing, murder, and rape of elderly man); Belton, 900 
13

S.W.2d at 898 (robbery of family home and murder of child in front of mother and 

siblings).

11

When appellant came into the CVS Pharmacy where the complainant was 

working, she was not afraid of him nor alarmed by his actions, as appellant behaved

like “any other customer.” After being in the store for about ten or fifteen minutes, 

appellant, who had apparently waited for “no one else [to be] around,” then 

approached the complainant, placing several inexpensive “food items” on the 

counter. Again, she was not afraid of appellant nor alarmed by his actions. After 

 

11 In Burns v. State, the defendant and another man drove the complainant, a 

fifty-eight-year-old man, to “a caliche pit” where they took his money, clothes, 

boots, watch, and false teeth. 556 S.W.2d 270, 273, 280 (Tex. Crim. App. 1977). 

They then beat the complainant, the other man “screwed [the complainant] in the 

ass,” and they left him in the pit, naked except for socks. Id. at 280 (internal 

quotations omitted). When the defendant and the other man later returned to the pit, 

the complainant “looked like he was almost dead[,] his face was black and blue and 

bloody,” and his jawbone was broken. Id. at 280–81 (internal quotations omitted). 

They then put the complainant on the hood of their car and continued to beat him, 

including kicking him in the head. Id. at 281. When the complainant fell to the 

ground, the defendant picked him up, put him back on the car, and continued to beat 

him. Id. at 273, 281. They then grabbed the complainant by each leg and pulled 

him off the car “real fast,” “let[ting] him fall to the ground.” Id. at 281 (internal 

quotations omitted). The defendant “gigg[led],” “act[ed] like [what he was doing] 

was fun,” and thought what he had done was “funny.” Id. at 280–81 (internal 

quotations omitted). One witness also testified that the defendant and the other man 

made the complainant eat his own feces. Id. at 281.

In Belton v. State, the defendant and another man, carrying firearms, broke into a 

family’s home where a mother and her three children were present. 900 S.W.2d 

886, 892 (Tex. App.—El Paso 1995, pet. ref’d). The defendant used his firearm to 

beat one of the children in the head. Id. After rampaging through the family’s 

home, the defendant and the other man shot the mother and two of the children, 

ultimately killing one of the children in the presence of his mother and siblings. Id.
14

the complainant scanned the items that appellant had placed on the counter, he 

“leaned over” and told her that he had a weapon and to give him the money in the 

cash register. The complainant, however, never saw a weapon. And she noted that 

appellant’s hands remained on the counter within her sight the entire time, he did not 

“mess[] with [the] waistband” of his pants, and he did not place a weapon on the 

counter. He did not touch the complainant or cause her to sustain any scratches, 

bruises, or bodily injury. After the complainant gave appellant the money from the 

cash register, he picked up the “food items” that he had previously placed on the 

counter and grabbed “four beers,” “a bag of Starburst[s],” and “some chips” before 

walking out of the store. The complainant did not know how much money appellant 

had taken from the cash register, but the only dollar bills in the cash register were in 

denominations of twenty dollars or less. The “food items” taken by appellant had a 

total value of $17.53. When appellant was later detained by law enforcement 

officers shortly after leaving the CVS Pharmacy, he did not have in his possession a 

firearm, a knife, or any type of weapon. And he fully cooperated with law 

enforcement officers.

A surveillance videotape recording from the date of the offense, admitted into 

evidence as State’s Exhibit 6, shows appellant calmly walking up to the counter at

the CVS Pharmacy. No other customers are present when appellant approaches the 

counter. After the complainant scans several items that appellant places on the 
15

counter, he calmly leans forward and says something to her. What he says to her

cannot be heard on the videotape recording, but he does not make any threatening or 

violent gestures. And he does not touch the complainant. Appellant’s hands remain 

on the counter throughout the entire incident. After the complainant gives appellant 

the money from the cash register, he walks off-screen and then is seen calmly 

walking out of the store.

The panel in its opinion does note the difference between the circumstances

of the present case and those present in Thompson and “other cases permitting 

comparisons of defendants to predatory animals,” particularly because such cases 

have involved murder “or other violent behavior.”12 And the panel admits that “[t]he 

appropriateness of the [lion-tries-to-eat-baby video] analogy in this case is tenuous 

given the nature of the crime” committed by appellant. See Alexander v. State, No. 

 

12 See Burns, 556 S.W.2d at 273, 280–81; Thompson, 2015 WL 9241691, at *1; 

Belton, 900 S.W.2d at 892; see also Stringfellow v. State, No. 05-02-00475-CR, 

2003 WL 152760, at *3–4 (Tex. App.—Dallas Jan. 23, 2003, no pet.) (not 

designated for publication) (reference to defendant as “animal” reasonable 

deduction where he brutally attacked complainant, hit her, shoved her, ripped her 

clothes, forced her to perform oral sex, threatened to kill her, repeatedly raped her, 

and robbed her); Resendez v. State, No. 14-99-01374-CR, 2001 WL 777861, at *1–

3 (Tex. App.—Houston [14th Dist.] July 12, 2001, pet. ref’d) (not designated for 

publication) (reference to defendant as “animal” and “monster” reasonable 

deduction where defendant sexually molested and had sexual intercourse with 

complainant, a female relative, beginning when she was five or six years old and 

continuing over a period of years); Navarro v. State, No. 08-99-00214-CR, 2000 

WL 1476638, at *8–9 (Tex. App.—El Paso Oct. 5, 2000, no pet.) (not designated 

for publication) (reference to defendant as “monster” reasonable deduction where 

defendant broke into home of pregnant woman, beat her “about the face, torso, and 

stomach, and then proceeded to rape her in front of her two children”).
16

04-95-00154-CR, 1996 WL 382984, at *3–4 (Tex. App.—San Antonio July 10,

1996, pet. ref’d) (not designated for publication) (argument likening defendant to 

animal improper in case where defendant convicted of delivery of controlled 

substance); cf. Stringfellow v. State, No. 05-02-00475-CR, 2003 WL 152760, at *3–

4 (Tex. App.—Dallas Jan. 23, 2003, no pet.) (not designated for publication) (only 

in cases involving “[p]articularly brutal facts” may there be “a reasonable deduction 

to justify a prosecutor’s reference to a defendant as an animal”). Regardless, the 

panel reasons that because appellant had prior convictions, the trial court did not err 

in allowing the State to play the lion-tries-to-eat-baby video for the jury during its 

closing punishment argument.

Notably though, just as the criminal offense committed by appellant in the 

instant case is neither gruesome nor violent, rendering the State’s playing of the 

lion-tries-to-eat-baby video improper, the criminal offenses of which appellant had 

previously been convicted are also of a non-violent nature.13 Simply put, nothing in 

 

13 The trial court admitted evidence of appellant’s criminal record, revealing that on 

August 17, 1993, he was convicted of two separate offenses of robbery and 

sentenced to confinement seven years for each offense, to run concurrently; on 

September 26, 1994, he was convicted of the offense of theft and sentenced to

confinement for fourteen years; on August 27, 2002, he was convicted of the offense 

of evading arrest and sentenced to confinement for ten months; on May 31, 2007, 

he was convicted of the misdemeanor offense of attempted unauthorized use of a 

motor vehicle and sentenced to confinement for eight months; and on January 22, 

2013, he was convicted of the offense of forgery and sentenced to confinement for 

ten months. See TEX. PENAL CODE ANN. §§ 15.01(a), 29.02(a), 31.03(a), 31.07(a), 

32.21(b), 38.04(a).
17

appellant’s prior criminal history warrants a comparison between him and a 

predatory animal attempting to eat an innocent baby.14 See Tompkins v. State, 774 

S.W.2d 195, 217 (Tex. Crim. App. 1987) (State’s reference to defendant “as an 

animal” “served no legitimate purpose except to jeopardize the State’s case on 

appeal” (internal quotations omitted)).

As the Texas Court of Criminal Appeals has previously explained in regard to 

the State’s arguments to juries: “This Court should not have to point out that 

comments by the attorneys should always be confined to the record and the 

legitimate deductions from the testimony of the witnesses.” Id. at 218. And “there 

is abundant room for legitimate discussion of the testimony [in the case] and the law 

applicable, without indulging in personal abuse of the man who is at the bar of 

justice.” Swilley v. State, 25 S.W.2d 1098, 1099 (Tex. Crim. App. 1929). Notably, 

“[i]t takes far less talent to indulge in abuse than in making an intelligent assessment 

of the facts and the law to aid the jurors in their task.” Grant v. State, 472 S.W.2d 

531, 534 (Tex. Crim. App. 1971).

 

14 Further, the request of appellant’s attorney that the jury sentence appellant to “a 

lower sentence” does not justify the State’s comparison of appellant to a predatory 

animal trying to eat an innocent baby.
18

Based on the foregoing, I would hold that the State’s playing of the 

lion-tries-to-eat-baby video for the jury during its closing argument at the 

punishment phase of trial was improper.15

When an argument exceeds permissible bounds, it constitutes reversible error 

when an analysis of the record as a whole shows that the argument is extreme or 

manifestly improper, is violative of a mandatory statute, or injects new facts harmful 

to the defendant into the trial proceeding. Wesbrook, 29 S.W.3d at 115; see also 

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). Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998); see also

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).

 

15 Despite the panel’s decision in the instant case, the State should refrain from using 

this lion-tries-to-eat-baby video in the future. See Grant v. State, 472 S.W.2d 531, 

534 (Tex. Crim. App. 1971) (“It takes far less talent to indulge in abuse than in 

making an intelligent assessment of the facts and the law to aid the jurors in their 

task.”); Alexander, 1996 WL 382984, at *4 (“[A]rguments which de-humanize an 

accused do not aid jurors in their task; rather, they discredit a criminal justice system 

founded on the basic beliefs that an accused stands before a jury as an equal peer 

and that the State’s prosecutors seek as their first goal justice, not convictions at any 

cost.”).
19

In regard to the first Mosley factor, the State’s playing of the 

lion-tries-to-eat-baby video during its closing punishment argument was highly 

prejudicial. See Hawkins, 135 S.W.3d at 77–78 (when assessing severity of 

improper jury argument, primary focus is prejudicial effect of misconduct); Watts v. 

State, 371 S.W.3d 448, 459 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (must 

examine prejudicial effect of State’s remarks). Here, after playing the video for the 

jury, the State told the jury that the video was “exactly what th[e] punishment phase 

[of appellant’s trial was] about.” The State then characterized appellant as “a bad 

guy” and compared him to the lion in the video; namely, a lion who was attempting 

to eat an innocent baby. The State further argued: 

. . . 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 he’s never changing his motive.

Remember the good old days? Everybody here is over 20 years old and 

used to talk about the good old days, how everyone played outside until 

it was dark, and then kids came home for dinner. And I never even had 

to lock my house, my neighbors would just come and go. [Appellant] 

is why we don’t have the good old days. He’s the reason you lock[ed]

your house when you left, he’s the reason you locked your car when 

you came to court today, [appellant] is the reason we don’t have the 

good old days.

. . . .

This isn’t a 25-year case, this isn’t a 35-year case, maybe it’s a 40-year 

case. The Legislator [sic] 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 
20

opportunity, and send him to prison for every second that he deserves. 

He surely doesn’t deserve less than 40.

(Emphasis added.) 

The State’s comparison of appellant to a violent, predatory animal seeking to 

attack a defenseless baby was prejudicial, did not advance a legitimate purpose in 

this case, and was designed to arouse the passion and prejudices of the jury. See 

Tompkins, 774 S.W.2d at 217; Watts, 371 S.W.3d at 459; Thompson, 89 S.W.3d at 

850. And the State played the lion-tries-to-eat-baby video during the rebuttal portion 

of its closing argument and immediately prior to the jury’s deliberation. Thus, the 

harmful effect caused by the video could not have been attenuated by any argument 

of appellant’s counsel. See Brown v. State, 978 S.W.2d 708, 715 (Tex. App.—

Amarillo 1998, pet. ref’d); see also Bush v. State, No. 04-13-00466-CR, 2014 WL 

309780, at *5 (Tex. App.—San Antonio Jan. 29, 2014, no pet.) (mem. op., not 

designated for publication). The severity of the misconduct in this case weighs in 

favor of appellant. See Gonzalez v. State, 455 S.W.3d 198, 206 (Tex. App.—

Houston [1st Dist.] 2015, pet. ref’d) (first factor weighed in favor of defendant where 

State’s action “clearly improper”); cf. Graves v. State, 176 S.W.3d 422, 430 (Tex. 

App.—Houston [1st Dist.] 2004, no pet.) (first factor did not weigh in favor of 

defendant where State’s misconduct “small” and only “mildly inappropriate”

(internal quotations omitted)).
21

In regard to the second Mosley factor, no measures were taken to cure the 

State’s misconduct. In fact, the trial court overruled appellant’s objection to the 

State’s playing of the lion-tries-to-eat-baby video to the jury. 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 the improper argument” (internal 

quotations omitted)); Watts, 371 S.W.3d at 460 (“When a trial court overrules an 

objection to an improper argument, it implicitly places its imprimatur on the 

argument, thereby magnifying the harm.”); see also Sneed v. State, No. 

10-11-00231-CR, 2012 WL 2866304, at *3 (Tex. App.—Waco July 12, 2012, no

pet.) (mem. op., not designated for publication) (trial court did not take “any curative 

measures” where it overruled defendant’s objection to improper argument). Because 

no curative measures were taken in this case, the second factor weighs in favor of 

appellant. See Watts, 371 S.W.3d at 460.

In regard to the third Mosley factor, because the jury found true the allegations 

in the two enhancement paragraphs that appellant had twice been previously 

convicted of felony offenses, appellant was subject to the habitual offender 

punishment range of not less than twenty-five years and not greater than ninety-nine 

years or life. See TEX. PENAL CODE ANN. § 12.42(d) (Vernon Supp. 2016). The 

State argued to the jury that appellant should not receive “less than 40” years due to 

his predatory nature and the need for society to keep him behind “glass.” And the 
22

jury assessed appellant’s punishment at confinement for fifty years. See Abbott v. 

State, 196 S.W.3d 334, 349 (Tex. App.—Waco 2006, pet. ref’d) (considering 

severity of defendant’s sentence and jury’s decision to assess severe sentence which 

State had requested); cf. Lockett v. State, No. 06-05-00138-CR, 2006 WL 940648, 

at *7 (Tex. App.—Texarkana Apr. 13, 2006, pet. ref’d) (mem. op., not designated 

for publication) (improper jury argument did not affect defendant’s substantial rights 

where jury assessed punishment at confinement “nearer the lower end of the 

punishment range”). Here, there is doubt that the same sentence would have been 

assessed had the trial court not overruled appellant’s objection to the 

lion-tries-to-eat-baby video, especially considering that the circumstances of this 

case and appellant’s prior criminal convictions do not show him to be a violent, 

predatory offender. See Sneed, 2012 WL 2866304, at *4 (reversing judgment of trial 

court and remanding for new trial on punishment where “some doubt that the same 

sentence would have been assessed without the [trial court] overruling [defendant’s] 

objection to the improper argument”). This third factor weighs in favor of appellant.

Balancing the three Mosley factors, due to the prejudice experienced by the 

State’s playing of the lion-tries-to-eat-baby video during its closing punishment 

argument to the jury, the lack of cure for the State’s misconduct, and the severity of 

appellant’s sentence, I would further hold that the trial court’s error in allowing the 

State to play the video to the jury was harmful.
23

Moreover, this Court’s approval of the State’s use of the lion-tries-to-eat-baby

video in this case will no doubt encourage the State to improperly use it in other 

cases involving non-violent offenses. See Alexander v. State, No. 04-95-00154-CR, 

1996 WL 382984, at *4 (Tex. App.—San Antonio July 10, 1996, pet. ref’d) (not 

designated for publication) (“[A]rguments which de-humanize an accused do not aid 

jurors in their task; rather, they discredit a criminal justice system founded on the 

basic beliefs that an accused stands before a jury as an equal peer and that the State’s 

prosecutors seek as their first goal justice, not convictions at any cost.”). 

Accordingly, I would grant en banc reconsideration, sustain appellant’s first issue, 

reverse the trial court’s judgment as to punishment, and remand for a new 

punishment hearing in this case. See TEX. R. APP. P. 41.2(c) (extraordinary 

circumstances require en banc reconsideration).

Terry Jennings

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.
24

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).