Mamon v. State

Full title: DANNY LAMONTE MAMON, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 16, 2005

No. 05-04-01675-CR (Tex. App. Nov. 16, 2005)

Opinion

No. 05-04-01675-CR

Opinion issued November 16, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-0449937-HW. Affirmed.

Before Justices WRIGHT, LANG-MIERS, and MAZZANT.

OPINION

Opinion By Justice WRIGHT.

Danny Lamonte Mamon appeals his conviction for aggravated sexual assault of a child under the age of fourteen. See Tex. Penal Code § 22.021 (Vernon Supp. 2004-2005). After a jury found him guilty, the trial court assessed punishment at confinement for six years and an $800 fine. In four issues, appellant claims the prosecutor engaged in improper jury argument, the trial court erred in denying his motion for mistrial, and the evidence is factually insufficient to support his conviction. We overrule appellant's issues and affirm the trial court's judgment.

Background

D.T., who was ten years old at the time of trial, testified that sometime during the third grade she was at her grandmother's house with her grandmother, appellant, and appellant's girlfriend. She was watching cartoons in her nightgown when her grandmother and appellant's girlfriend left to go to the grocery store. Appellant was resting on a pallet on the floor of one of the bedrooms. D.T. decided she wanted to color in her coloring books, so she went into the bedroom where appellant was to get her crayons and her coloring books. She had to walk past appellant to retrieve them out of a basket and passed by him once without incident. When she walked by appellant a second time, he told her to "come here." D.T. did not respond and just stared at appellant. He then grabbed her and forced her down onto the pallet. He pinned her legs down with his knees and held her arms over her head with one of his hands. Appellant then touched D.T.'s "private part" by inserting his finger into her vagina. D.T. testified that this hurt her. When he was finished, appellant told D.T. not to tell anybody what he had done. D.T. then went to the bathroom and splashed water on her face so that her grandmother would not know she had been crying. She was both sad and scared. When D.T. returned home the next day, she told her younger sister, S.J., what had happened to her, but did not want to tell anyone else. Some time later, S.J. told their mother what appellant had done and the proper authorities were contacted. S.J. testified briefly that D.T. told her what appellant had done the day D.T. came home from her grandmother's house. S.J. later reported the occurrence to their mother when she was asked. D.T.'s mother, V.J., testified that approximately a year before the trial in this case, she was awakened by a dream that someone had "messed with" one of her daughters. She jumped out of bed and brought all of her daughters into her room. She asked if any of them had been touched inappropriately, and S.J. raised her hand. V.J. asked S.J. if someone had touched her and she said no, that D.T. had been touched. V.J. then took D.T. into D.T.'s room and asked her who touched her. Initially, D.T. would not tell her, but finally relented when V.J. explained that she was not in trouble. D.T. then tearfully told her mother that appellant had touched her while she was at her grandmother's house. She explained that while her grandmother was at the store, appellant had pinned her down on the floor and touched her with his finger. V.J. reassured D.T. that she had not done anything wrong and contacted the police. Irisch Burch, a forensic interviewer with the Dallas Children's Advocacy Center testified that she interviewed D.T. regarding this case. She explained the procedure and technique she used to obtain information from D.T. about what had happened to her. Without going into what D.T. said specifically, Burch related that during the interview, D.T. described her abuse and identified the person that inflicted it upon her. After Burch's testimony, the State rested. As his first witness, appellant called J.T., his aunt and D.T.'s grandmother to the stand. She testified that she buys night clothes for D.T., but has never bought her a night gown, and that despite D.T.'s testimony to the contrary, D.T. has never worn a night gown at her house. While appellant was always welcome in her home, J.T. denied ever leaving D.T. alone with appellant, and stated specifically that she had never left D.T. at her home to go to the grocery store with appellant's girlfriend. D.T.'s stepfather testified next that he learned D.T. had been touched inappropriately after his wife, V.J. had a dream. He witnessed his daughter, S.J., raise her hand when V.J. asked the girls if any of them had been "messed with." S.J. indicated that D.T. had been touched and learned from D.T. that appellant was the one who had touched her. He then called the police. He related that Child Protective Services later contacted them and they took D.T. to the Dallas Children's Advocacy Center to be interviewed. He also related that some time before V.J.'s dream, they noticed a discharge in D.T.'s underwear and took her to the doctor. Carolyn Stanzione, an investigator with Child Protective Services, testified that she met with D.T. and her family regarding the report of sexual abuse. Stanzione remembered V.J. telling her that she had noticed a discharge in D.T.'s underwear, but Stanzione did not remember V.J. telling her that she had a dream in which one of her daughters had been abused. After hearing all of the evidence, the jury found appellant guilty. This appeal followed.

Improper Jury Argument

In his first and second issues, appellant claims the prosecutor engaged in improper jury argument. Specifically, he argues that the prosecutor argued outside the record and attempted to bolster her witnesses's testimony when she stated the following:

You guys are completely unbias[ed]. But you know what you get to do? You get to judge bias, and you get to determine what you believe. I cannot bring you, again, under law, every prior time that [D.T.] or any other witness has been consistent in their statements. I'm not permitted to. That would be bolstering the witness. So, I can't tell you every time that [D.T.] has said the same thing over and over again. I'm not permitted to do that.

Appellant's objections that the prosecutor's comments were outside the record and were made in an attempt to bolster her witness's credibility were overruled. The prosecutor continued, "That's my point. I can't bring that to you. All I can do is bring [D.T.] to you for you to determine whether you believe her or not." There are four areas of proper jury argument: (1) summation of the evidence, (2) reasonable deductions drawn from the evidence, (3) answer to opposing counsel's argument, and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944 (2001). The State contends that the prosecutor's comments were proper because they were aimed at answering defense counsel's argument. We agree. During closing argument, defense counsel stated that Burch, the forensic interviewer, did not testify to the substance of D.T.'s statement or to the facts of D.T.'s initial outcry. He argued further that the State did not show the jury the videotape of Burch's interview with D.T. and did not call the detective assigned to the case to testify. In the complained-of portion of her argument, the prosecutor responded by informing the jury that she was not allowed to call every witness D.T. told her story to, but had brought D.T. to the jury so that they could decide whether she was telling the truth or not. The prosecutor did not reference any specific consistent statements D.T. made, nor did she imply that D.T. was more credible because of any prior consistent statements. She simply explained that the law did not permit her to present the evidence defense counsel argued should have been presented. This falls under one of the proper areas of jury argument, namely answering opposing counsel's argument. See Id. at 115. Even assuming arguendo that the prosecutor's comments did not fall within the proper bounds of jury argument, appellant is entitled to a reversal only if he can show his substantial rights were adversely affected. Tex.R.App.P. 44.2(b). A substantial right is affected "when the error has a substantial or injurious effect or influence in determining the jury's verdict." Simpson v. State, 119 S.W.3d 262, 266 (Tex.Crim.App. 2003), cert. denied, 124 S.Ct. 2837 (2004). In cases of alleged harm resulting from improper jury argument, we apply a standard balancing the following three factors: (1) the severity of the misconduct, (2) whether any curative measures were taken, and (3) the certainty of the conviction absent the misconduct. Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000). The misconduct, if any, is minimal in this case. It appears that the prosecutor was attempting to respond to an argument made by counsel. In fact, appellant concedes that "the prosecutor apparently had a good faith basis for telling the jurors there was other evidence out there that she could not present to them during trial." As for curative measures, while the trial court overruled appellant's objection to the State's argument, the jury was instructed to disregard any argument by counsel that was not supported by the evidence. Finally, appellant has not shown that absent the prosecutor's argument in question, he would not have been convicted. As discussed above, the prosecutor emphasized to the jury that because she was not permitted to present cumulative testimony that D.T.'s story was consistent, they were to judge D.T.'s credibility on her testimony alone. Even so, there was some evidence presented which showed D.T.'s statement was consistent. Her sister, mother, and stepfather all testified that D.T. told them that appellant inserted his finger into her vagina at her grandmother's house. The jury did not need to rely on speculative confirmation of D.T.'s story. That evidence was already before them, and therefore, the prosecutor's reference to additional testimony of that nature most likely did not result in his conviction. Appellant has not shown that the prosecutor's comments were improper. Even assuming they were, appellant is not entitled to relief because he has failed to show a violation of a substantial right. See Id. Accordingly, his first and second issues are overruled.

Denial of Mistrial

In his third issue, appellant alleges the trial court erred in denying his motion for mistrial. He claims he was entitled to a mistrial because on cross-examination, V.J. testified that appellant was in jail when she learned he had assaulted her daughter. Appellant objected. The trial court sustained his objection and instructed the jury to disregard V.J.'s statement. Appellant then moved for a mistrial, which the trial court denied. A mistrial is appropriate only in cases where "highly prejudicial and incurable errors" occur and where the "expenditure of further time and expense would be wasteful and futile." Simpson 119 S.W.3d at 272; quoting Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). We review the trial court's denial of appellant's motion for mistrial under an abuse of discretion standard. Id. Generally, in cases such as this, where testimony comes in, deliberately or inadvertently, which has no relevance to any material issue and carries with it some definite potential for prejudice to the accused, a prompt instruction to disregard will cure any error resulting from the admission of improper testimony. Id.; Waldo v. State, 746 S.W.2d 750, 752-53 (Tex.Crim.App. 1988). Here, the trial court promptly instructed the jury to disregard V.J.'s testimony. We presume that the jury obeyed the court's instruction. Waldo, 746 S.W.2d at 753. While that presumption is rebuttable, appellant presents nothing but his bare allegation that this was a "close case," in which the jury found him guilty because the impression left by V.J.'s testimony was that he was a criminal, to suggest that the jury did not follow the trial court's instruction to disregard. Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App. 1998). As such, he is unable to show any "highly prejudicial and incurable" error which would entitle him to a mistrial or that the trial court abused its discretion in denying his motion. See Simpson, 119 S.W.3d at 272. Accordingly, appellant's third issue is overruled.

Sufficiency of the Evidence

In his fourth issue, appellant contends that the evidence is factually insufficient to support the jury's verdict of guilt. When reviewing the factual sufficiency of the evidence, we review all of the evidence in a neutral light and will reverse only if the evidence supporting the verdict is too weak to support a finding of guilt beyond a reasonable doubt, or if the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 483-84 (Tex.Crim.App. 2004). The jury is the sole judge of the credibility of the witnesses and we afford great deference to the jury's findings on that issue. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App.), cert. denied, 522 U.S. 832 (1997). In order to find appellant guilty, the jury was required to find that appellant intentionally or knowingly penetrated D.T.'s sexual organ with his finger, and at the time of the offense, D.T. was younger than fourteen years old. See Tex. Penal Code § 22.021(a)(1)(A)(i) (a)(2)(B) (Vernon Supp. 2004-2005). D.T. testified that appellant pinned her down on a bedroom floor in her grandmother's house and inserted his finger in her vagina. This alone is sufficient to support the jury's verdict of guilt. Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd), cert. denied, 538 U.S. 963 (2000) (concluding that the testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault of a child). In addition to D.T.'s testimony, the State also presented evidence that D.T. told her younger sister, S.J., that appellant had assaulted her immediately after returning home from her grandmother's house. Some time later, when the girls were asked by their mother whether anyone had improperly touched any of them, S.J. reported to their mother that D.T. had been touched. D.T.'s mother testified that D.T. reluctantly told her that appellant had assaulted her. D.T.'s mother then contacted the proper authorities. Appellant countered with the testimony of D.T.'s grandmother, J.T., who refuted D.T.'s claim that she never left D.T. alone with appellant. J.T. also testified that she never went to the grocery store with appellant's girlfriend and that D.T. never wore night gowns at her house. However, as discussed above, the jury is the sole judge of the credibility of the witnesses. Johnson, 23 S.W.3d at 7; Jones, 944 S.W.2d at 648. We afford great deference to the jury's determination on that issue and will not substitute our own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003). It is clear from the jury's verdict that it found D.T. more credible than J.T. and we find no reason to disturb the jury's finding. See Id. Having reviewed all of the evidence under the proper standard, we conclude it is sufficient to support appellant's conviction. Zuniga, 144 S.W.3d at 483-84. Appellant's fourth issue is overruled. We affirm the trial court's judgment.