Article 37.07 § 3(a) of the Texas Code of Criminal Procedure has long been considered one of the guiding principles concerning the admissibility of evidence during the penalty phase in a felony case. This article allows the state to offer evidence the court finds relevant to sentencing including but not limited to a defendant’s criminal history, their bad character, or extraneous evidence about other crime(s) the defendant may have committed.


This broad range of prosecutorial discretion inevitably leads to prosecutorial abuses of that discretion and professional misconduct by unprincipled prosecutors exploiting the discretion.


Damon Orlando Milton’s case falls somewhere between the two extremes.


Milton was convicted in Harris County for the June 22, 2015 robbery of a CVS Pharmacy. During the punishment phase of his trial, the prosecution introduced the following evidence about Milton’s criminal history:


  • 1993 – convicted of two separate robbery offenses;
  • 1994 – convicted of a single theft offense;
  • 2002 – convicted for the offense of evading arrest;
  • 2007 – convicted for the misdemeanor offense of attempted unauthorized use of a motor vehicle; and
  • 2013 – convicted for a forgery offense.


At this juncture in the trial, the prosecutor had established that Milton had served two prison terms and three jail terms for his criminal wrongdoing during that two-decade period. It was more than enough evidence for the jury to make an appropriate determination of what punishment should be imposed for the CVS robbery for which he was standing trial.


Demonstrative Video Overkill


The prosecution was not satisfied. They had to take it a step further, a headlong drive into the bizarre by introducing a 30-second demonstrative video of a lion at a zoo trying to eat a human baby through a protective glass. The “lion-tries-to-eat-baby” video was played by the prosecution during closing argument in the punishment phase.


The purpose of the video?


A dissenting opinion in the First District Court of Appeals recaptured the reasons the prosecutor offered to the jury for introducing the video:


“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 [sic]. 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]’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. Everyone [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.”


Prosecutor Improperly Casts Defendant as Predator, Killer


This sophomoric, convoluted logic about the zoo lion trying to eat a baby through a protective glass was not enough. The prosecutor took analogy to even higher heights of absurdity, adding this bizarre argument on the jury:


“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.


“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.”


The prosecutor had successfully transformed Milton from a thief, a small-time robber who had not even displayed a weapon during the CVS robbery into a killer lion ready to devour a human baby. And apparently sensing that human babies had to be protected from killer lions, the jury assessed a 50-year prison term of Milton.


The trial judge and a split panel of the Court of Appeals had no problem with the prosecution’s use of the “lion-tries-to-eat-baby” video being used at Milton’s trial.


Improper Use of Demonstrative Aid


Fortunately, the Texas Court of Criminal Appeals (CCA) on April 3, 2019 did have a problem with both the lion and the baby. In remanding Milton’s case back to the Court of Appeals for harm analysis, the CCA concluded:


“Playing a video of a lion trying to eat a baby to argue for a high prison sentence in a simple robbery case was an improper use of a demonstrative aid because the video invited an analogy that was not anchored to the evidence presented at trial. While the State’s intended argument was a proper plea for law enforcement, the State, by playing the video, improperly invited the jury to view Appellant’s crime and criminal history as more brutal than they were. Consequently, the trial court abused its discretion in allowing the State to play the video. We reverse the court of appeals and remand the case for a harm analysis.”


So goes the lion, the baby, and the prosecutor who spent too much time at the zoo.