Affirmed and Opinion Filed May 28, 2014




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00373-CR

                           CHARLES WILLIAM DOSS, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 7
                                   Dallas County, Texas
                           Trial Court Cause No. F12-58147-Y

                                          OPINION
                        Before Justices Moseley, O’Neill, and FitzGerald
                                 Opinion by Justice FitzGerald
        A jury convicted appellant of continuous sexual abuse of a child under fourteen years of

age and sentenced him to life imprisonment. In four issues on appeal, appellant asserts the trial

court erred in admitting extraneous offense evidence and there is insufficient evidence to support

the trial court’s assessment of costs. Concluding appellant’s arguments are without merit, we

affirm the trial court’s judgment.

                                       BACKGROUND

       Appellant is the brother of HJ’s grandmother. When she was a little girl, HJ visited

appellant in Tennessee along with her twin cousins, N and T, her grandmother, and her aunt. HJ,

N, and T stayed in the guesthouse, and the adults stayed in the big house. At night, when HJ and

her cousins were in bed, appellant would come to the guesthouse and “touch on” them. HJ said
that appellant would take her pajamas off and touch her private part with his private part. He

would also touch her “boobs” with his hands and his mouth. This all occurred while her cousins

were in the same room. HJ also saw appellant put his hands on her cousins’ private parts. HJ

testified that appellant would also make her kiss her cousin N and touch N on her private part

while appellant touched T. HJ stated that this happened on more than ten occasions. HJ was

fourteen at the time she testified, and stated that she was eight or nine years old when the events

in Tennessee occurred.

       Appellant subsequently moved to Dallas and began living with HJ and her family. HJ

recalled that when she was watching television in the bedroom, appellant would come in, remove

her clothes, and touch her private part with his private part and hands. Appellant would tell HJ

not to tell anyone, and “it’s going to be o.k.” On one occasion, appellant told HJ he would kill

her if she told anyone. HJ also recalled that when she was eleven years old, she awakened one

night with no clothes on and appellant on top of her. Her pajamas had been on when she went to

bed. The sexual abuse stopped when HJ was eleven years old. HJ knew she was eleven because

that is when appellant moved out.

       When HJ was thirteen years old, she told her sister that appellant had raped her, but did

not provide any details. HJ’s sister told HJ’s parents, and the police got involved. HJ provided

the details of appellant’s sexual abuse to the Children’s Advocacy Center.

                                           ANALYSIS

Admission of Extraneous Evidence

       In his first issue, appellant asserts the trial court erred in admitting extraneous offense

evidence; specifically, testimony concerning the sexual abuse of HJ’s cousins, N and J.

       We review a trial court’s decision to admit or exclude extraneous offense evidence for an

abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). We will affirm

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a trial court’s ruling that an extraneous offense has relevance apart from proving conformity with

the defendant’s character if the ruling is within the zone of reasonable disagreement. Id. (citing

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)). Likewise, we give

deference to a trial court’s determination that the probative value of the evidence is not

outweighed by the danger of unfair prejudice. Id.

          A defendant may not be tried for a collateral crime or for being a criminal generally, and

Rule 404(b) prohibits the admission of extraneous offenses to prove a defendant’s character or to

show that the defendant acted in conformity with that character. TEX. R. EVID. 404(b). But

extraneous offenses may be “admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” TEX. R. EVID.

404(b).

          Extraneous offense evidence may also be admissible for purposes other than those

expressly listed in Rule 404(b). Such evidence may be admissible as same transaction contextual

evidence, which has been defined as evidence of other offenses connected with the offense

charged. Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000); Rogers v. State, 853 S.W.2d

29, 33 (Tex. Crim. App. 1993). Same transaction contextual evidence may be admissible where

“several crimes are intermixed, or blended with one another, or connected so that they form an

indivisible criminal transaction, and full proof by testimony . . . of any one of them cannot be

given without showing the others.” Rogers, 853 S.W.2d at 33. “[E]vents do not occur in a

vacuum, and the jury has a right to hear what occurred immediately prior to and subsequent to

the commission of that act so that it may realistically evaluate the evidence.” Wesbrook v. State,

29 S.W.3d 103, 115 (Tex. Crim. App. 2000). As such, the facts and circumstances surrounding

the commission of an offense are relevant and necessary for the jury to have a complete picture

of what occurred. See Burks v. State, 876 S.W.2d 877, 900 (Tex. Crim. App. 1994).

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       Prior to impaneling the jury, the court conducted a hearing on the admissibility of N’s

and T’s testimony. HJ testified about appellant’s simultaneous abuse of HJ and her cousins and

herself while in Tennessee. Defense counsel argued that the cousins’ testimony was not

admissible because it described extraneous offenses and because it was capable of being

separated from the testimony of HJ. The State responded that the facts are inextricably

interwoven and the testimony all involved one incident that cannot be separated. The court ruled

that the testimony of N and T was transaction contextual evidence. In the alternative, the trial

judge also stated, “if the Court is incorrect . . . the Court finds that the evidence is admissible

under Rule 404(b) as evidence of plan or intent or both.” Finally, the court found that the

testimony is more probative than prejudicial. Both N and T were permitted to testify.

       T was thirteen years old at the time she testified. She was seven or eight years old when

she accompanied her twin sister, HJ, her mother and grandmother to visit appellant in Tennessee.

T stayed in the same room as HJ and her twin sister N, and the three of them shared a bed. T

stated that when the three cousins were in bed at night, appellant came in and asked N to sit on

his lap. When she did so, appellant touched N’s private part with his hands. He also touched T’s

private part with his hands, and touched her chest with his mouth and hands, While this occurred,

appellant was telling HJ and N “to do stuff to him.” This happened on approximately three

different occasions.

       T testified that she saw appellant touch HJ’s private part and use his mouth on HJ’s chest.

HJ was sitting on the bed at the time. T and N were sitting on the same bed. T didn’t tell anyone

right away because she was afraid. Then, the cousins discussed it and decided not to tell anyone

because appellant told them he would “go to jail for a long time and be put away for life.”

       N also testified about the trip to Tennessee. She explained that appellant is her great

uncle. Appellant would come into the room where the girls were staying and touch them.

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Appellant touched N on her chest and her private part. Appellant would give the girls

instructions, and would tell N to touch T and HJ, and then he would touch himself on his private

part. When she was shown a picture of the female anatomy, N circled the parts of HJ’s body she

saw appellant touch, and described these areas as HJ’s chest and her private part. N further stated

that she saw this happen while they were in Tennessee, but that it also happened in Dallas when

they all stayed in the same house.

       The trial court did not err in concluding the testimony of N and T was contextual and

therefore admissible. The molestation of HJ and her cousins was contemporaneous.

Consequently, the sexual assault on T and N was so closely related, intertwined, and

intermingled with the sexual assault of HJ that any attempt to separate the assaults would prove

arbitrary and unrealistic. The jury’s understanding would have been obscured without the

testimony concerning these simultaneous acts; they were entitled to a comprehensive narrative of

the facts to allow them to reach and return a just and informed verdict.

       In addition to the requirements of Rule 404(b), extraneous offense evidence must also

satisfy the balancing test of Rule 403. See Nguyen v. State, 177 S.W.3d 659, 667 (Tex. App. —

Houston [1st Dist.] 2005, no pet.). Under Texas Rule of Evidence 403, otherwise relevant

evidence may be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice. TEX. R. EVID. 403. A Rule 403 analysis by the trial court should include, but is

not limited to, the following considerations: (1) the probative value of the evidence; (2) the

potential of the evidence to impress the jury in some irrational, indelible way; (3) the time the

proponent needs to develop the evidence; and (4) the proponent’s need for the evidence. Erazo v.

State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). Although a trial court must still perform a

balancing test to see if the same transaction contextual evidence’s probative value is substantially

outweighed by its prejudicial effect, the prejudicial nature of contextual evidence rarely renders

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such evidence inadmissible, as long as it sets the stage for the jury’s comprehension of the whole

criminal transaction. Swarb v. State, 125 S.W.3d 672, 681 (Tex. App.—Houston [1st Dist.] 2003,

pet. dism’d).

        Appellant asserts the extraneous offense testimony was more prejudicial than probative.

We disagree.

        We have already concluded that the extraneous evidence was contextual and necessary

for a complete understanding of the offense. In addition, appellant elected to testify, and claimed

HJ’s allegations were untrue. Therefore, HJ’s credibility was at issue. The challenged testimony

corroborated HJ’s assertions and facilitated the jury’s assessment of HJ’s credibility. Moreover,

HJ could not fully testify to the sexual assault against her without mentioning that her cousins

were in the same room in the same bed. Although all three children testified, the record does not

reflect that the State required an inordinate amount of time to develop the evidence. And finally,

any prejudice suffered by appellant by the introduction of the evidence does not rise to the level

of substantially outweighing the evidence’s probative value in providing context for the charged

offense. Under these circumstances, we conclude the trial court did not abuse its discretion in

admitting the evidence. Appellant’s first and third issues are overruled.1

Costs

        In his final issue, appellant contends the evidence is insufficient to support the trial

court’s assessment of court costs because the record does not contain a copy of the bill of costs.

After appellant filed his brief, we ordered the District Clerk’s office to file a supplemental bill of

costs and the clerk complied.




        1
            Our resolution of these issues obviates the need to consider appellant’s second issue. See TEX. R. APP. P. 47.1.




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       The record before us now contains a bill of costs. Appellant’s complaints have been

addressed and rejected. See Johnson v. State, 423 S.W.3d 385, 392–94 (Tex. Crim. App. 2014);

Coronel v. State, 416 S.W.3d 550, 555–56 (Tex. App.—Dallas 2013, pet. ref’d). Appellant’s

objection to the supplemental clerk’s record and his fourth issue on appeal are overruled.




Do Not Publish
TEX. R. APP. P. 47                                   /Kerry P. FitzGerald/
130373F.U05                                          KERRY P. FITZGERALD
                                                     JUSTICE




                                               –7–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

CHARLES WILLIAM DOSS, Appellant                   On Appeal from the Criminal District Court
                                                  No. 7, Dallas County, Texas
No. 05-13-00373-CR       V.                       Trial Court Cause No. F12-58147-Y.
                                                  Opinion delivered by Justice FitzGerald.
THE STATE OF TEXAS, Appellee                      Justices Moseley and O'Neill participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered May 28, 2014




                                                  /Kerry P. FitzGerald/
                                                  KERRY P. FITZGERALD
                                                  JUSTICE




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