Danny Lee Mixon v. The State of Texas--Appeal from 262nd District Court of Harris County

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Affirmed and Majority and Dissenting Opinions filed November 3, 2005

Affirmed and Majority and Dissenting Opinions filed November 3, 2005.

In The

Fourteenth Court of Appeals


NO. 14-04-00027-CR






On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 969,414



I disagree with two aspects of the majority opinion. The first is its conclusion that the State=s punishment phase closing argument, describing appellant=s tattoo, was a reasonable deduction from the evidence:

But you can=t live in this world and not recognize that there are a group of people who are taking that label, ASouthern good ol=boys,@ and flashing it over a big Confederate flag and meaning something, whatever they wanted that expression to mean. . . .

You can say to yourself that it=s a coindence [sic] that the victim in this case was an African-American man. If the shooter comes over there with the shaved head and flag on his shoulder, you can think that=s a coincidence if you want to, but I submit to you it is no coincidence. What happens in this case is that that man was hanging out at that house behind that trailer and went over there and shot himself a black man and probably had an audience when he did it. Don=t you know all those other kids over there with the Southern boys= tattoos and skinheads were standing over there cheering him on? Don=t you know they were? I have no doubt.

(emphasis added). Although this closing argument described appellant=s tattoo as being a flag on his shoulder and having the label, ASouthern good >ol boys@ over a big Confederate flag, the record contains no testimony, photo, exhibit, or any other evidence providing any image or description whatever of his tattoo=s appearance.

The majority opinion concludes that the argument was nevertheless a reasonable deduction of the evidence because the jury saw the tattoo. Whether the jury actually saw the tattoo is not clear from the record. However, even if they did, this court cannot see the tattoo, and we have no evidence showing or describing it with which to independently and objectively determine whether the State=s argument is a reasonable deduction from what the jury saw, if anything.

Despite this, the majority also relies on statements the prosecutor and defense counsel made during arguments as reflecting that the State=s argument was a reasonable deduction from the evidence. Apart from the fact that even the prosecutor=s own statements describing the tattoo were in fundamental conflict regarding its appearance,[1] the obvious fallacies of this approach are that: (1) it uses argument to bootstrap the existence and content of information that was not in evidence with which to then determine the validity of other argument as if the information was in evidence; (2) it purports to perform a correct and meaningful appellate review of whether the argument was a reasonable deduction from any actual evidence while instead abandoning our responsibility to do so; and (3) it concludes, in effect, that Aevidence@ can exist for appellate purposes even though it is outside the record (and possibly non-existent),[2] and (incredibly) that appeals courts may speculate on what such non-evidence might show, even without any actual basis from outside the record from which any such conclusion could reasonably be drawn.

I further disagree with the majority opinion in that, even if the evidence properly reflected that appellant had a swastika or Confederate flag tattoo (as well as a shaved head, which the evidence does reflect), there is no evidence that appellant ever behaved in a racially derogatory manner of any kind or otherwise that this murder was in any way racially motivated. It does not follow logically that, because a person has a shaved head and tattoo, he wants to kill African-Americans. Yet there is nothing else in our record to support a causal connection between the murder and a racist motive other than appellant=s appearance and the victim=s ethnicity. Therefore, rather than being a reasonable deduction from any evidence, the State=s argument of racial motivation was merely an invitation to use highly-charged emotional indignation, combined with stereotypical assumptions, as a substitute for actual evidence.

With regard to harm, appellant had no prior felony convictions, and the range of punishment was extremely wide, from community supervision to life imprisonment. The evidence showed that the murder was committed in a brutal and premeditated manner. However, depending on the perspectives of the jurors, the perceived motive for the murder (as between racial hatred and jealousy regarding a woman, which the evidence did support) could have had a material influence on the length of sentence imposed, particularly in that the sentencing verdict required a unanimous decision of the jury. The racial motivation contention was a central part of the State=s punishment argument, and, in addition to the portions of the punishment argument complained of, the prosecutor further emphasized:

But you all know what Danny Mixon did, and the rest of them will have to deal with that reality: the Southern boy=s attitude, this kind of South. I grew up in the South. I married a Southern boy. I come from a long line of good >ol boys and I=m trying to raise one.

In overruling appellant=s objections that this racial motivation was not supported by evidence, the trial court not only failed to take curative measures, it affirmatively compounded the error by telling the jury, in effect, that this motive was, in fact, supported by evidence. In light of these considerations, it would be purely speculative to conclude that the jury would have imposed the maximum life sentence without the error.

In conclusion, rather than serving our most vital function to preserve the integrity of the justice system, endorsing the State=s argument in this case invites abuse and, in turn, unjust decisions. I would therefore sustain appellant=s second issue, reverse the judgment as to punishment, and remand that portion of the case to the trial court for further proceedings.

/s/ Richard H. Edelman


Judgment rendered and Majority and Dissenting Opinions filed November 3, 2005.

Panel consists of Justices Yates, Edelman, and Guzman. (Yates, J., majority.)

Publish B Tex. R. App. P. 47.2(b).

[1] The prosecutor described appellant=s tattoo as a swastika in a bench conference outside the hearing of the jury; but the only testimony regarding appellant=s tattoo sought, but failed, to show that it was a confederate flag, not a swastika; and the prosecutor stated during argument that it was a Confederate flag.

[2] See, e.g., Jack v. State, 149 S.W.3d 119, 121 n.1 (Tex. Crim. App. 2004) (noting that an appellate court may not consider factual assertions that are outside the record).