## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S

N O. AP-77,087
DILLION GAGE COMPTON, Appellant

v. THE STATE OF TEXAS O N DIRECT APPEAL FROM CAUSE NO. 011545 I N THE 259TH DISTRICT COURT JONES COUNTY W A L K E R 

### , J., filed a concurring opinion.

CONCURRING OPINION

W h ile I ag ree with the Court’s decision to affirm A p pellant Dillion G ag e Compton’s conviction and sentence, I cannot join Part I .C. o f the Court’s opinion, on Appellant’s seventh and eig hth points of error relating to the prosecutor’s improper comments d uring v oir dire to six of the jurors. I also wish to comment on his ninth point of error that c ounsel provided ineffective assistance of counsel for failing

to object to those improper comments.

I — The Com m ents in This Case Duringindividual voir dire, the State told juror Tittle:2

You know, I think at the end of the day if the Defendant was convicted in this c ase, I think one thing for sure the Defense wants to make sure they have a juror that can consider life without parole, and certainly the Prosecuti o n a nd the victim’s family wants to make sure we have a juror that can also consider the death penalty

. The State also asked Tittle: Q.

. . . [d] o y ou h a v e an y concerns that you mig ht not b e able to vote for the death penalty

when that moment comes? A. Ihave no concerns, no.

. . . Q. B ut do y ou ag ree with me that’s something I ’ve g ot to know – A. Yes, sir. Q. – as the prosecutor? That’s somethingthat the victims have to know? A. Uh-huh. Q. Rig h t? That if that moment came it wouldn’t b e j u stice for this victim’s family to k

now that that m o m e nt came and you weren’t a ble to g o throug h with it, rig ht? To juror Mitchell, the State said: “Victims obviously a re g oing to be looking for justice in this case. And I worry a

bout that situation where yo u’re not sure a bout that. I t sounds like you may be a little bit conflicted [ about whether Mitchell could sentence someone to death] .” The State asked juror Gambrell: W o uld it be fair to the people of the great State of Tex a s and the victim’s family in this case if we sat twelve people over here that said, even t h o u g h we found the Defendant gu ilty beyond a reasonable doubt and even thoug h we f ind he’s a future dang er to society and he’s a c ontinuing threat to society we will never g ive the death penalty ? The State asked juror Vinson: Q. And f

r om our standpoint, it wouldn ’ t b e f air to have a jury – you k now, we’ve g ot several weeks of trial and the v ictim’s family w anting closure a nd we’ve g o t a juror that say s, “You know what? I thoug ht I could d o the death penalty , but now that I ’m rig ht at that point, I don ’ t t hink I can g o throug h with it.” That wouldn’t be a fair trial either, would it? A. No, sir. Q. W ould that be fair to the victims or the State to let someone’s personal beliefs come in and say , “Man, I

just – Ican’t do it”? So I ’ll ask yo u that question:3 I s there any concern that you c ould be the ty pe that as you’re sitting up there that y o ur p ersonal feeling s about the death penalty one w ay or the other mig ht interfere w ith y our ability to make a decision based on the evidence i n this courtroom? To juror J ones, the State asked “It’s not fair to the State or the victims. W ould you agree with

me that they thoug ht they had g otten to this point of closure and then this [ juror who cannot impose a death sentence] pops up, rig ht? ” And the State asked juror May field: And would y o u a gr e e w i t h me that it wouldn’t be f air to the victim or the victim’s family o r some would say society if we had twelve people sitting o ver here that said, “I don’t care how bad the case was, I don’t care how b ad of a person this is, I could never, ever, ever vote death penalty.” That wouldn’t be fair either, would it? In h is seventh and eig h th points of error, Appellant complains that these six j u r o rs were implicitly told that the victim’s family wanted the death penalty

. II — Draughon The Court concludes that Appellant’s seventh and eig hth points of error ar e n o t p reserved for review because he did not object to the improper prosecutor’s comments in v oir dire. To support the requirement of a contemporaneous objection, the Court quotes the o pinion in Draughon v. State , in which the Court held that a point of e rror relating to an improper comment during v oir dire was not p reserved by a

n objection. 831 S.W .2d 331, 336–37 (Tex

. Crim

. Ap p . 1992). In that case, the Court stated that “a curative instruc t i o n could easily have dissipated any potential f or prejudice visited upon [ Draughon] .” Id. at 337. In the abstract, this makes sense: we have long emphasiz ed that [ t] o avoid forfeitinga complaint on appeal, the party must “let the trial judg e know what he wants, why h e thinks he is entitled to it, and to do so clearly enough f or the judg e to understand h im at a time when the judg e is i n t h e p r o p e r position to do something about it.”4

Pena v. State , 285 S.W .3d 4 59, 464 (Tex

. Crim. App. 2009); Lankston v. State , 827 S.W .2d 907, 909 (Tex

. Crim. App. 1992). “This g ives the trial judg e and the opposing p arty an opportunity to correct the error.” Pena , 2 85 S.W

. 3d at 464 (citing Reyna v . State , 168 S.W .3d 173, 1 79 (Tex

. Crim. App. 2005)). I f a prosecutor makes an improper comment during voir dire, the defense should call it to the trial c ourt’s attention at that time because the trial court can take c ertain measures, including g iving the venire panel an instruction to remedy the problem. Draughon , 831 S.W

. 2d at 337. T h e trial court could also afford counsel an opportunity to ask the venire panel whether the prosecutor’s improper comment would affect their deliberations. Id. Certainly , that could be said for the improper comment in Draughon

. There, the p rosecutor characteriz ed the victims and their families as the p rosecutor’s “clients.” Id. at 336. The trial court could have, in response to an objection, told the jury to d isreg ard the comment or even told the jury that the victims and their families were not the prosecutor’s clients. The trial court could have also allowed d efense c ounsel to question the jury about how the remark c ould have affected them. Id. at 337. III — Death is Dif f erent B ut the improper comment i n D r a ughon —that the victims a nd their families were the prosecutor’s “clients”—is worlds’ apart from a comment, in a death penalty case , sug g esting that the v ictim’s family wants the defendant to get the death penalty

. Not only is that kind of information inadmissible, Simpson v. State , 119 S.W .3d 262, 272 ( Tex

. Crim. App. 2003), it violates the Eig hth Amendment of the Constitution. A s the Supreme C o urt ex plained, information about the family members’ opinions and characteriz ations of the crimes violates the Eighth Amendment, because:5

the formal presentation of this information b y the State can serve n o o ther purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning

the crime and the defendant. As we have noted, any decision to impose the death sentence must “be, and appear to be, based o n reason rather than caprice or emotion.” T h e a dmission o f these emotionally charg ed o p i n ions as to what conclusions the jury should draw from the evidence clearly is inconsistent with the reasoned decisionmaking we require in capital cases. Booth v. Maryland, 482 U.S. 4 96, 5 08–09 (1987), overruled in part by Payne v. Tennessee , 501 U.S. 808, 8 2 9 ( 1 991) (quoting Gardner v . Florida , 430 U.S. 349, 358 (1977) (plurality op.)); see a lso B osse v. Oklahoma , 508 U.S. 1, 3 (2016) (courts “remain[ ] bound by Booth ’s prohib i t i o n o n characteriz ations and opinions from a victim’s family members about the crime, the defendant, and the appropriate sentence”). I do not share the Court’s optimism that, in a death penalty case, a c urative instruction could easily dispel any

potential prejudice caused by a prosecutor’s improper comment that the victim’s f a m i l y w ants the death penalty

. J urors in a death penalty case cannot so easily shrug off w h a t t h e victim’s family or friends want s i m p l y because the trial court tells them to. Information that the victim’s family and friends—the people who have been harmed by the defendant—want the death penalty appeals t o a n i n n a t e, primal sense of justice and g ets away from reasoned, d ispassionate decision making

. I t is e motionally charg ed and inflammatory

. Booth , 4 8 2 U

. S

. at 509. Such information is the proverbial skunk in the jury box

. The same cannot be said about a prosecutor’s remark that the v ictims and their families are t h e prosecutor’s “clients.” That improper remark did not and c ould n ot rise to the level o f a constitutional v iolation; it was simply incorrect. Draughon , 831 S.W .2d at 336 (“The prosecuting

a t t o rney in a criminal action does n ot represent a private interest.

. . . Any contrary sug g est i o n , communicated to a juror or prospective juror in the case, therefore, is erroneous[

. ] ”). N o emotions.6

No inflaming . No skunks. IV — But Still Not P reserved Althoug h I disag ree that Draughon ’s statement directly translates to a death penalty case, I nevertheless ag ree that Draughon ’ s holding applies, and Appellant’s seventh and eig hth points of

error were not preserved for review because he failed to object. S e e D r aughon , 831 S.W .2d at 336–37. Indeed, because the intro d u c t i o n o f actual evidence o f the victim’s f amily ’ s desires is subject to preservation requirements, see Simpson , 119 S.W

. 3d at 272 n .9, a prosecutor’s improper comment in voir dire should also require an objection. V — Def icient P erf

orm ance I briefly want to address Appellant’s ninth point of error, which faults counsel for failing to object to the prosecutor’s improp e r c o m m e n t s . The Court resolves this p oint based on the lack of prejudice under Strickland , and I a g ree that the failure to o bject was not prejudicial. Althoug h the prosecution made the improper comments to six of the jurors, e ach juror heard it only o n ce, during voir dire, and never ag ain throug hout the trial. Bu t I w o u ld not let trial c ounsel off the hook. I f counsel had objected the first tim e , t h e prosecutor hopefully would have stopped making the improper remark resulting in only one tainted juror which Appellant could have used a strike on. Instead, by not objecting , the error affected six jurors, and, if this were voir dire before the e ntire panel and not individual voir d ire, that would have multiplied the prejudice. I f that w ere the case, I w ould have found both deficient performance and prejudice. V I — Conclusion Death is different. Gardner v. Florida , 430 U.S. 349, 357 (1977). Even if D raughon was7

rig ht that a c urative instruction could have “ easily” diss i p a ted “any” p otential prejudice by the prosecutor’s comment in that case, the same cannot be said about a prosecutor’s sug g estion that the victim’s family wants the death penalty in a death penalty c ase. Prosecutors must be careful not to tell the jury or e v en potential jurors that the victim’s family or friends want the d eath penalty

. W hen it comes to death, a simple instruction cannot cure-all. The smell of the skunk will ling e r, and the

cure must be made of sterner stuff than a mere i n s t ru c t i o n from the trial court. B ecause the Court relies upon Draughon ’s observation that “a curati v e i n s truction could easily have d issipated any potential for prejudice visited upon Appellant”, I cannot join the Court’s opinion. W ith these thoug h ts, Irespectfully concur with the Court’s judgment.

F iled: April 12, 2023 Publish