Green v. The State Of Tex., 03-09-00718-CR

CourtCourt of Appeals of Texas
Writing for the CourtDiane M. Henson, Justice
PartiesJamaal Larome Green, Appellant v. The State of Texas, Appellee
Docket NumberNO. 03-09-00718-CR,03-09-00718-CR
Decision Date08 October 2010

Jamaal Larome Green, Appellant
The State of Texas, Appellee

NO. 03-09-00718-CR


Filed: October 8, 2010



Appellant Jamaal Larome Green was found guilty of aggravated sexual assault and sentenced to 60 years' imprisonment. See Tex. Penal Code Ann. § 22.021 (West Supp. 2009). On appeal, Green seeks a new trial, arguing that the trial court erred when it denied his motion for a mistrial after the prosecutor impermissibly offered her personal opinion of the evidence in final argument, and that the trial court erred by overruling Green's objection to the State's attempt to vouch for or bolster the credibility of the complaining witness during closing. In addition, Green seeks modification of the judgment, arguing that it improperly contained an order to pay court costs, attorney's fees, and restitution. We modify the judgment as it pertains to attorney's fees and affirm the judgment as modified.

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In December 2009, Green was indicted for aggravated sexual assault.1 See id. The incident giving rise to Green's prosecution occurred in Bell County shortly after midnight on April 9, 2008. According to her testimony at trial, the victim, Jane Doe, 2 was working as a prostitute in Killeen when Green drove up to her in a "silvery-colored" SUV and asked her to get in, instructing her to get into the back seat. After Doe told Green that her services would cost $20, Green drove to a bank and parked near the ATM machine. Green walked over to the ATM, withdrew cash, and returned to the SUV, giving Doe $20.3

Doe testified that they next drove to an apartment complex, where they attempted to have sex in the SUV. Green, however, was unable to maintain an erection. They then drove to the parking area of Zip Cleaners, located on Gilmer Street in Killeen. They again attempted to have sex in the SUV, but Green was once again impotent. Doe, who stated that the transaction had taken roughly one hour to that point, told Green that she would not engage in any further sexual relations with him. She then gave $8 back to him and exited the vehicle.

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Doe stated that Green exited the SUV and called after her, asking where he could find her in the future. According to Doe, Green then placed something elastic4 around her throat before slinging her face-first onto the asphalt parking lot. Green continued to choke her and throw her down onto the pavement, telling Doe that he wanted his money back. Though Doe then returned the $20 Green had given her, he continued to beat her, and then dragged her across the pavement to an area behind the cleaners. After continuing to beat her, he forced her to her knees and pushed her face down onto the pavement. He then attempted to penetrate her anus and genitals, wetting his penis and her anus with water from nearby puddles. After attempting to penetrate her for several hours, Green heard people nearby. He instructed Doe not to make any sound, telling her, "[D]on't say anything, don't move or you won't walk away from here." He then dragged Doe across the street to an area behind a mechanic's shop, where after additional attempts, he penetrated her anus and ejaculated.5

Doe testified that Green then asked her if she needed a ride anywhere. When she declined, he drove off in his SUV, and she walked to a friend's house. Her friend initially did not recognize her, as her normally light hair was wet with blood. Doe was also missing her shoes. Another friend went outside and hailed Todd Mallow, a patrol officer for the City of Killeen. Officer Mallow testified that he found Doe curled into a fetal position on the floor and covered by a jacket.6 Mallow, who had encountered Doe before, testified that she was so badly beaten that he also did not

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recognize her. After calling an ambulance for Doe, Mallow went to investigate the Zip Cleaners parking lot, where Doe said she had been beaten and raped. He found pools of blood and bloody drag marks in the parking lot. He also recovered bloody tennis shoes.

At the hospital, Doe was examined by Deborah Kleypas, a Sexual Assault Nurse Examiner (SANE). Kleypas testified that, at the time of the examination, Doe's face was actively bleeding and covered with blood. Her eyes were bruised and swollen shut. She had bruises and abrasions all over her body, including bruises on her face and neck consistent with being slammed to the ground, abrasions on her arm consistent with being dragged across pavement, and abrasions on her knees consistent with being forced to kneel on the ground. Kleypas also found sand, small rocks, and leafy debris inside and outside of Doe's genitals and anus, and her anus was bruised and torn. Swabs from Doe's anus and genitals contained evidence of semen and revealed a mixture of DNA consistent with that of the known DNA of Doe and of Green.

In July 2008, after being shown two photo lineups, one of which contained Green's picture, Doe identified a different man as her assailant. However, she identified Green's vehicle, a tan 1998 Chevrolet Blazer, as the vehicle she had been in before she was beaten and raped.

At trial, Green testified that he had engaged in sexual intercourse with Doe, but claimed that it had been with her consent. He denied having assaulted her.

During closing, the prosecutor stated that " I don't believe the evidence shows that" the intercourse was consensual. The defense objected and moved for a mistrial, stating that the argument was improper. The trial court sustained the objection, instructed the jury to disregard the statement, and denied the motion for a mistrial. Later in closing, the defense objected to the

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prosecution's statement that Doe was not "mistaken" or "confused" with regard to the events on the night in question. The trial court overruled the objection.

At the conclusion of trial, the jury found Green guilty of the offense of aggravated sexual assault, see Tex. Penal Code Ann. § 22.021, and the trial court sentenced him to 60 years' imprisonment. During sentencing, the trial court orally ordered Green to pay attorney's fees and court costs, with the written judgment including an order that Green pay court costs and designating those costs as "$512.00 Plus attorney fees $4835.41." In addition, the State asked that restitution be made a condition of the judgment. Green's counsel objected, saying that there had been no evidence as to the amount of restitution. The State called Brigitte Minica, who testified that the Crime Victims' Compensation Fund had contributed to Doe's medical bills in the amount of $4,595.10. Green's counsel renewed his objection, stating that there was insufficient evidence as to the amount of restitution. The trial court overruled the objection and ordered the defendant pay the amount requested. This appeal followed.


We review a trial court's denial of a motion for a mistrial for an abuse of discretion. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). We view the evidence in the light most favorable to the trial court's ruling and uphold the ruling if it is within the zone of reasonable disagreement. Id. at 112 (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable. Id.

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It is the duty of trial counsel to confine their arguments to the record; reference during closing to facts that are neither in evidence nor inferable from the evidence is therefore improper. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). Error exists when facts not supported by the record are interjected in the argument, but such error is not reversible unless, in light of the record, the argument is extreme or manifestly improper. Id.

The Texas Court of Criminal Appeals recently held that the trial court's determination of the defendant's ability to pay attorney's fees is a question of sufficiency of the evidence. Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Id. at 557; see Williams v. State, 301 S.W.3d 675, 683-84 (Tex. Crim. App. 2009) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Evidence that is legally sufficient, however, can be deemed factually insufficient in two ways: (1) the evidence supporting the conviction is "too weak" to support the factfinder's verdict, or (2) considering conflicting evidence, the factfinder's verdict is "against the great weight and preponderance of the evidence." Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009).



In his first issue, Green argues that the trial court erred in denying his motion for a mistrial following improper statements made by the prosecutor during closing argument. Specifically, Green contends that the prosecutor gave her personal opinion when discussing whether

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the sexual acts between Green and Doe were consensual. The motion for a mistrial was based on


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