Jerome T. Green v. The State of Texas--Appeal from 351st District Court of Harris County

Affirmed and Memorandum Opinion filed August 9, 2007

Affirmed and Memorandum Opinion filed August 9, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00535-CR

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JEROME T. GREEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris  County, Texas

Trial Court Cause No. 1054355

M E M O R A N D U M O P I N I O N

Appellant, Jerome T. Green, pleaded not guilty to the State=s indictment for sexual assault, and not true to an enhancement for a prior conviction for felony Acarnal abuse@ in Arkansas. A jury trial was held, and at the conclusion the jury found appellant guilty. The trial court assessed punishment at life in prison. Appellant complains of the legal and factual sufficiency of the evidence to support the finding that appellant knew the complainant was incapable of appraising the nature of the act or of resisting the act as a result of a mental disease or defect. He also complains that the State failed to admit fingerprint evidence, and thus failed to prove that appellant was the person in the enhancement conviction. Finally, he complains that the State failed to obtain a judicial finding that the elements of the enhancement crime are substantially similar to the elements of the present offense. We affirm.

Factual and Procedural Background

Complainant, Jamal Moore, was nineteen years old at the time of the offense, and he suffers from moderate mental retardation.[1] His IQ of 42 gives him a mental capacity similar to a six to eight year old child and puts him in the lowest ten percent of all retarded people, who are already in the lowest three percent of the population as a whole. Complainant graduated from high school in the special education program, and, despite needing close supervision, has worked most of his life doing physical labor and performing janitorial and maintenance services. At the time of the alleged assault, complainant worked at Reliant Stadium for Aramark Concession Services.

On March 7, 2005, complainant went to Reliant Stadium to work his shift during the Houston Livestock Show and Rodeo. At the end of his shift, complainant went into an employee bathroom to defecate. The bathroom contained a single toilet and sink and had a lock on the bathroom door rather than a stall. Complainant forgot to lock the door, and while he was in the bathroom, appellant entered the bathroom and subjected complainant to oral sex and anal penetration.

Complainant reported the incident to a police officer working outside the stadium, and was later taken by his father to a hospital to have a rape exam performed on him. Appellant was arrested and charged with sexual assault, enhanced by an alleged prior penitentiary sentence from Arkansas for carnal abuse, a first-degree felony offense. Appellant pleaded not guilty to the sexual assault charge, and the case was tried to a jury, which found appellant guilty. Punishment was tried to the court, which found the enhancement paragraph true, and sentenced appellant to life in prison. Appellant filed a written notice of appeal on the same day the court assessed punishment.

Analysis

I. Proof of the Sexual Assault Was Legally and Factually Sufficient

A. Standards of Review

Evidence is legally insufficient if, when viewed in a light most favorable to the verdict, a rational jury could not have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence. Jones, 944 S.W.2d at 647. Thus, when performing a legal sufficiency review, we may not re evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App.1999). We must resolve any inconsistencies in the testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.2000).

In reviewing factual sufficiency of the elements of the offense, the court of appeals views all the evidence without the prism of Ain the light most favorable to the prosecution@ and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust, or if the verdict is against the great weight and preponderance of the evidence. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). In reviewing factual sufficiency we are permitted to substitute our judgments for those of the jury on questions of weight and credibility, but only to a Avery limited degree.@ Id.

B. Evidence Was Legally and Factually Sufficient to Show Appellant Knew that As a Result of Mental Disease or Defect Complainant Could Not Appraise the Nature of the Act or Resist It

Appellant argues that the evidence at trial was legally and factually insufficient to show that he knew the complainant was incapable of appraising the nature of the act or resisting it as a result of mental disease or defect, as required by the Penal Code. See Tex. Pen. Code ' 22.011(b)(4) (stating that in order to show lack of consent under section 22.011(b)(4) of the Texas Penal Code, the State must prove that Athe actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable of appraising the nature of the act or of resisting it@). First, we consider whether the State showed that complainant could not appraise the nature of the act or resist it.

1. Evidence that Complainant Could Not Appraise the Nature of the Act Is Sufficient

a) Legal Sufficiency

Dr. Mann, a psychologist practicing in the area of mental retardation, testified that he did not believe complainant was capable of making an informed decision regarding sex because he does not have the cognitive skills to understand the long-range consequences of his actions, such as the risk of sexually transmitted diseases or pregnancy. Appellant claims that this testimony is not sufficient to show incapacity to appraise the nature of the act because the statute does not require Ainformed consent.@ We disagree.

Appellant does not cite any cases, nor can we find any, that define what is meant by Athe nature of the act@ in the statute. Dr. Mann=s testimony reveals, not that complainant was uninformed of the potential consequences of sex, but that he could not appreciate them with his limited cognitive facilities. Clearly this testimony reveals that complainant was incapable of appraising certain highly significant aspects of the sexual act. We see no need to read the statute to say that a complainant must be unable to understand anything about the sexual act. Evidence that a complainant cannot understand the consequences of the sexual act is probative of whether the complainant could appraise the Anature@ of the act. Therefore, based on Dr. Mann=s testimony alone, the jury could have found complainant incapable of appraising the act.

Moreover, the jurors also saw complainant take the stand and were able to judge for themselves from his manner of speech, his demeanor, and his testimony whether he was capable of appraising the sexual act. This is also evidence, sufficient to overcome a legal sufficiency challenge, that complainant could not appraise the sexual act. See Wootton v. State, 799 S.W.2d 499, 501B02 (Tex. App.CCorpus Christi 1990, pet. ref=d); Martinez v. State, 634 S.W.2d 929, 934B35 (Tex. App.CSan Antonio 1982, pet. ref=d).

b) Factual Sufficiency

In his factual sufficiency argument, appellant points to evidence that the complainant is sexually active with women. This evidence came from complainant=s father, who said he believed complainant had been sexually active with women, and from social worker Nicole Drake, who said complainant had told her he had been with women, but she could not confirm it. Appellant also points to Dr. Mann=s testimony that complainant has a similar concept of right and wrong as most people, but just a little less complex. Finally, appellant points out that complainant had Aconsiderable street knowledge,@ which demonstrates that he could appraise the nature of the act.

Appellant does not elaborate on what street knowledge is germane to complainant=s appraisal of the sexual act. Appellant cites to the record, but presumably to the wrong page, since the cited page says nothing about street knowledge. Nicole Drake testified that complainant had considerable street knowledge, but she did not elaborate on this statement. It is true that complainant used coarse, Astreet@ language to describe the sexual assault, and it is also true that he purported to know what homosexuals were, and that he did not like them. However, Dr. Mann testified that complainant would mimic words and actions that he found appropriate from people with whom he spent time. Likewise, Nicole Drake testified that complainant mimics the behavior of others. Therefore, the jury could have found that any course language or opinions regarding sexuality were the product of his mimicking behavior, rather than an indication that he could appraise the nature of a sexual act.

Appellant=s argument that complainant has a similar concept of right and wrong as non-retarded individuals does not offer much proof of his ability to appraise the nature of a sexual act. Whether or not he has the same concept of right and wrong has nothing to do with complainant=s capacity to understand the nature of a sexual act. To say that once he understands the event he would judge it the same way a non-retarded person would is not the same as saying complainant has the ability to understand the event the way a non-retarded person does.

The evidence that complainant may have had sexual relations with women would be some evidence that he could appraise the nature of a sexual act, but it is not conclusive. The jury would be free to disbelieve any evidence that complainant had been intimate with a woman. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000) (AThe jury may choose to believe some testimony and disbelieve other testimony.@). The jury would also be free to believe that any sexual encounters with women would not have made him capable of appraising the nature of a homosexual act. Furthermore, even if complainant had been intimate with a woman, it is not conclusive evidence that he understands the nature of the sexual act in the manner contemplated by the statute. If the word Anature@ in the statute means ramifications and consequences in addition to the mechanics of the act, there was evidence that complainant did not understand the nature of the act, regardless of whether he had been intimate with a woman.

In short, appellant asks us to reweigh the evidence on this close issue. However, we cannot usurp the role of the jury to such a degree. See Marshall, 210 S.W.3d at 625. Factual sufficiency review is barely distinguishable from legal sufficiency review. Id. We may only find evidence factually insufficient if it is shown that the verdict is manifestly unjust or against the great weight and preponderance of the evidence. Id. We hold that the evidence was factually sufficient to support a finding that complainant could not appraise the nature of the act.

 2. Evidence Complainant Could Not Resist Was Sufficient

Appellant also attacks the sufficiency of the evidence that complainant could not resist the sexual act. We hold that the evidence of this prong was both legally and factually sufficient.

a) Legal Sufficiency

There was testimony from Dr. Mann that complainant had the mental ability of a six to eight year old child. He testified that retarded individuals generally, and complainant specifically, did not have the mental resources to deal with a change to his routine, and that individuals like the complainant, whenever faced with something like an assault, would need time to think about whether what was done to them was right or wrong. He also testified that in his opinion, complainant would be at a loss as to how to respond to a sexual advance from someone he perceived as being more powerful or having more authority than him.

When complainant testified about the assault, he said that during the encounter he was hurt and crying. He testified that he thought appellant was stronger than he, and that he did not say anything when appellant walked in the bathroom because he was scared. This testimony would allow a rational jury to conclude beyond a reasonable doubt that complainant=s mental defect rendered him unable to resist appellant=s sexual advances. See Jones, 944 S.W.2d at 647.

b) Factual Sufficiency

Appellant argues that the evidence of complainant=s inability to resist is insufficient in light of other evidence that complainant had fought with people in the past, that complainant would think of physically defending himself first in a situation where he thought he could overpower the assailant, and that if someone was treating complainant in a manner he considered wrong, it would aid him in stopping the attack. However, the jury also heard evidence that if complainant thought his attacker was more powerful than he, complainant would not know what to do.

Appellant=s evidence does not render the verdict clearly wrong and unjust or show that it is against the great weight and preponderance of the evidence. See Marshall, 210 S.W.3d at 625. It actually does not even contradict the verdict. The jury could have fully believed the facts relied on by appellant. However, if they also believed that complainant thought appellant was stronger than him, the jury could have still reasonably believed that complainant was unable to resist due to mental disease or defect. Therefore, the evidence was factually sufficient to support a finding that complainant could not resist appellant=s sexual advances.

 3. Evidence Was Legally and Factually Sufficient to Show Appellant=s Knowledge

a) Legal Sufficiency

Appellant also claims that there was no evidence that he knew that complainant=s mental disease or defect would prevent him from appraising the act or resisting. See Tex. Pen. Code ' 22.011(b)(4). We disagree. The psychologist, Dr. Mann, testified that complainant operated at the level of a six to eight year old. The social worker, Nicole Drake, testified that his mental abilities were Ano more than elementary.@ In fact, complainant=s level of intellect was so low, that it was immediately apparent to all who met him that he was retarded. Both police officers who had dealings with complainant in investigating this case testified that his mental retardation is obvious upon meeting him. Ms. Drake and complainant=s father both also testified that his condition is immediately evident.

Appellant had talked to complainant before the day of the incident. In fact, the evidence shows that appellant had touched, grabbed, and harassed complainant at work. Complainant testified that he saw appellant everywhere he went. This evidence, coupled with the evidence that complainant=s moderate mental retardation is immediately evident, provides enough proof for a reasonable jury to conclude beyond a reasonable doubt that appellant knew the complainant could not appraise a sexual act or resist sexual advances. See Smith v. State, 555 S.W.2d 747, 749 (Tex. Crim. App. 1977); Sanchez v. State, 479 S.W.2d 933, 941 (Tex. Crim. App. 1972); see also Cruz v. State, No. 14-98-01231-CR, 2000 WL 1289347, at *2 (Tex. App.CHouston [14th Dist.] Sept. 14, 2000, no pet.) (not designated for publication).

b) Factual Sufficiency

Appellant does not point to any evidence in the record that would tend to show he did not know that complainant could not resist the act or appraise its nature because of complainant=s mental defect. The only evidence that would tend to rebut this finding is evidence from complainant=s father that he acts like a person between the age of ten and thirteenChigher than the estimates of six to eight and elementary age, given by Dr. Mann and Nicole Drake. Also, complainant=s father testified that complainant looked physically normal.

This evidence, however, once again does nothing more than present a question of weight of the evidence. The jury could choose which estimate of complainant=s mental age to believe. Moreover, the jurors were favored with testimony by complainant himself and were able to see for themselves both how manifest and how profound complainant=s retardation was. An appellate court may not reweigh the evidence and set aside a verdict just because it thinks a different result is more reasonable. See Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). We cannot say that the verdict was manifestly unjust or against the great weight and preponderance of the evidence.

Having found the evidence both legally and factually sufficient, we overrule appellant=s challenges to the sufficiency of the evidence showing that appellant knew that because of mental disease or defect, complainant was unable to appraise the nature of the act or resist.

C. Evidence Was Factually Sufficient to Show Appellant Had Sex With Complainant

Even though the wording of his second issue on appeal attacks the factual sufficiency of only the evidence supporting the consent portion of the crime, the argument in support of this issue seems to also raise an issue of factual sufficiency of the evidence supporting the finding that a sexual act took place at all. Appellant points to a great deal of evidence to support the proposition that he did not even have sex with complainant, much less non-consensual sex.

 1. Appellant Points to Evidence Impeaching Complainant=s Credibility

First, appellant points to evidence that complainant had a motive to falsely accuse complainant of a sexual assault. This includes testimony from complainant that appellant bothered him at work, that his boss would do nothing about it, that he knew the police would be able to stop appellant from bothering him, and that he disliked gay men. Appellant also points to evidence that complainant had twice previously accused others of sexual assault. On one occasion complainant changed his story several times, and neither accusation resulted in charges being filed. Appellant also mentions that complainant likes to tell people he is on probation even though he is not, and that the area around the bathroom was crowded with people, yet complainant did not tell any of them about the assault immediately after it occurred.

However, as with other evidence appellant has relied on in this appeal, this evidence was tempered by other evidence in the case. Some evidence at trial showed that complainant may not have known that he was not on probation, and other evidence showed that he mimics those around him. There was also testimony that complainant had been told to contact police if he needed helpCnot stadium security guards. Although no testimony rebutted the false accusations complainant made in the past, the jury heard complainant testify, and was free to believe him or not. The court must afford due deference to a jury's determinations in a factual sufficiency review. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). The jury found complainant credible, even after hearing the above impeaching evidence, and we do not have sufficient justification to disturb the jury=s finding on appeal. See Marshall, 210 S.W.3d at 625.

2. Appellant Points to Lack of Physical Evidence of Sexual Assault

Appellant also complains of a lack of hard physical evidence that a sexual assault occurred. He points to evidence that he was not seen on the stadium=s video camera, no DNA evidence or forensic evidence supports that anal intercourse took place, no sperm was found on the rectum, thigh, or underwear of complainant, an attempted kiss could have been the source of appellant=s DNA in complainant=s mouth, and he claims that complainant=s version of events is physically impossible. However, the evidence that a sexual assault did occur is substantial. The complainant himself testified to the sexual assault. Appellant=s DNA was present in complainant=s mouth and on complainant=s penis. There are individuals that could be appellant and complainant on the video surveillance tape of the area outside the bathroom. There was testimony from the nurse who performed the rape exam that the fact complainant had defecated shortly before the assault could have contributed to the lack of forensic evidence of a sexual assault. There was testimony from Dr. Mann that complainant was behaving appropriately for someone who had been the victim of a sexual assault. Testimony from complainant=s father indicated his story had been consistent since the time of the alleged rape.

Once again, this is a situation in which the jury weighed the evidence that showed rape and the evidence that there was no rape, and made its determination that a rape in fact occurred. The fact finder is the sole judge of credibility of witnesses and weight of evidence, and we must employ appropriate deference to avoid substituting our opinion for that of the fact finder. Johnson, 23 S.W.3d at 7.

3. Appellant Attempts to Show Insufficiency by Distorting the Record

At several points in his factual insufficiency argument, appellant also tries to show factual insufficiency by citing the record for evidence that is not contained therein. Appellant argues that the police had a hard time pursuing charges and it was complainant=s persistence that got the charge filed. Appellant fails to mention that this statement by complainant=s father was not in reference to the sexual assault, but to an incident where complainant had something stolen from him at a bus stop. Appellant takes another line of complainant=s father=s testimony out of context, when the father said that he did not want to pursue charges, but complainant persisted. Again, complainant=s father was talking about pursuing charges for the bus-stop theft. The statement was not in reference to the sexual assault.

Similarly, appellant argues that complainant=s father Ahad questions about the losses his son claimed.@ This is not in the record either. Complainant=s father testifies, on the page of the record cited by appellant, that with disabilities it is hard to provide solid proof to police so that they can pursue charges, and that he is accustomed to letting things like theft fall by the wayside because of this difficulty of proof. He certainly never testified that he did not believe that things were stolen from his son, or that he otherwise doubted complainant=s truthfulness.

Appellant argues that complainant did not phone his father that night after the incident. The page cited by appellant reflects no such thing, and the record clearly shows that police contacted complainant=s father on the night of the assault after complainant reported it to police. Thus, appellant=s statement, while technically true, misrepresented the issue of whether complainant spoke to his father on the night of the assault.

At one point in his brief, appellant invents evidence that if complainant had screamed, security guards in the area could have assisted him. There is nothing in the record about what security guards in the area could or could not have heard from their positions. Clearly, none of this misstated evidence is actually in the record, and, therefore, it cannot be included in our factual sufficiency review. See Johnson, 23 S.W.3d at 8.

The evidence that appellant relies on which is not misrepresented is also insufficient to show factual insufficiency. As stated above, appellant has done nothing more than point out issues of credibility and weight of the evidence. We cannot usurp the jury=s role and reverse their decision unless it was clearly wrong and unjust or against the great weight and preponderance of the evidence. See Marshall, 210 S.W.3d at 625. Although we admit this case presented a close factual issue, we do not think the jury=s determination was clearly wrong and unjust. To the extent it was raised, we overrule appellant=s factual sufficiency challenge to whether a sexual assault occurred.

II. Evidence Was Sufficient to Prove Appellant Was the Person in the Enhancement Conviction

In his third issue, appellant complains that the proof is insufficient to show that appellant is the person in the enhancement conviction because appellant=s fingerprints were not admitted into evidence, and no pictures were included with the enhancement judgement, sentence or fingerprint card. It is unclear whether appellant is attacking the legal or factual sufficiency of the evidence. Therefore, utilizing the standards of review from Section I above, we will address both. See, e.g., Burns v. Rochon, 190 S.W.3d 263, 267 (Tex. App.CHouston [1st Dist.] 2006, no pet.) (addressing both factual and legal sufficiency when it was unclear from appellant=s issue which he was challenging); Dever v. State, No. 14-99-01151-CR, 2000 WL 1591120, at *1 n.1 (Tex. App.CHouston [14th Dist.] Oct. 26, 2000, pet. ref=d) (not designated for publication) (same).

Appellant cites Davis v. State, 321 S.W.2d 873 (Tex. Crim. App. 1959) for the proposition that the State=s proof of identity was lacking. However, Davis provides no such authority. See Davis, 321 S.W.2d at 874B75. It simply states that when an expert has testified that the accused=s fingerprints match those pertaining to a prior conviction, and there is testimony that photographs attached to the enhancement judgments and sentences appear to be the defendant, such evidence is sufficient to prove prior convictions. Id. It does not state that all these steps must be taken in order to prove the identity of a defendant in an enhancement conviction. See id.

The Court of Criminal Appeals has held that prior convictions Amay be established by certified copies of a judgment and a sentence and authenticated copies of the Texas Department of Corrections records including fingerprints, supported by expert testimony identifying them as identical with known prints of the defendant.@ Beck v. State, 719 S.W.2d 205, 209 (Tex. Crim. App. 1986). This is precisely the procedure followed by the State here. A fingerprint expert from the Harris County Sheriff=s Department testified, without objection, that fingerprints he took from appellant matched the fingerprints attached to the prior judgments. The admission of the prior judgments, and the accompanying fingerprint cards, supported by the expert=s testimony, provided the required evidence showing that appellant was the person who committed the crime alleged in the prior judgment. See id.; see also Cleveland v. State, 814 S.W.2d 140, 142 (Tex. App.CHouston [14th Dist.] 1991, no pet.).

Viewed in the light most favorable to the verdict, the State=s evidence would clearly allow a finding beyond a reasonable doubt that appellant was the person convicted in the enhancement conviction. See Jones, 944 S.W.2d at 647. Appellant did not cross-examine the fingerprint expert, or offer any proof that would rebut his finding that appellant was the person in the enhancement conviction. The finding was not clearly wrong or unjust or against the weight and preponderance of the evidence. See Marshall, 210 S.W.3d at 625. We overrule appellant=s complaint that the evidence linking him to the enhancement conviction was insufficient.

III. No Error in Not Including a Conclusion of Similarity in the Record

Besides his legal and factual sufficiency issues, appellant presents a fourth issue, which argues that the enhancement in this case is invalid because there is no Afinding@ on the record of substantial similarity as required by the statute. See Tex. Pen. Code '12.42(c)(2)(B)(v).

The statute provides that a defendant shall be punished by imprisonment in the institutional division for life if he is convicted of one of several sexual offenses after previously having been convicted of one of several sexual offenses. See id. The pertinent portion of the statute provides that the prior enhancing conviction can be under one of the enumerated Texas statutes or Aunder the laws of another state containing elements that are substantially similar to the elements of [one of the enumerated Texas offenses].@ Id.

None of the cases cited by appellant support appellant=s contention that the trial court must announce on the record that he has concluded the statutes are sufficiently similar before pronouncing a defendant=s sentence. See Hardy v. State, 187 S.W.3d 232, 235B37 (Tex. App.CTexarkana 2006, pet. ref=d); Hulsey v. State, No. 06-03-00122-CR, 2004 WL 2002579, at *2B3 (Tex. App.CTexarkana Sept. 9, 2004, pet. ref=d) (not designated for publication); Cross v. State, 114 S.W.3d 92, 99B100 (Tex. App.CEastland 2003), aff=d in part and rev=d in part on other grounds, 144 S.W.3d 521 (Tex. Crim. App. 2004).

Hardy is similar to this case in that the court took judicial notice and made the determination of substantial similarity to a California offense off the record. Hardy, 187 S.W.3d at 236. The court of appeals in Hardy said that these actions were implicit in the fact that the court told the defendant and State that if the jury found the enhancement true, the court would impose a life sentence. Id. This case is similar, although here the court, rather than the jury, decided the truth of the enhancement allegations. In any event, the court impliedly found that the Texas and Arkansas statutes were substantially similar when it sentenced appellant to life in prison. Because the court=s finding was implied, it need not have been expressly stated in the record. Appellant=s fourth issue is overruled.

Conclusion

Having overruled each of appellant=s four issues, we affirm the judgment of the trial court.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed August 9, 2007.

Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] An average IQ is 100 and a person with an IQ below 70 is considered mentally retarded.