Affirmed as modified; Opinion Filed January 27, 2020




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-19-00036-CR

                            TOBI LAWAN DOUNLEY, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 204th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F15-56205-Q

                             MEMORANDUM OPINION
                          Before Justices Myers, Osborne, and Nowell
                                   Opinion by Justice Myers
       A jury convicted appellant Tobi Lawan Dounley of aggravated sexual assault of a child

and assessed punishment at fourteen years’ imprisonment. In one issue, he argues the trial court

erred by admitting evidence concerning a prior alleged incident of sexual abuse. The State also

brings a cross-point arguing we should modify the judgment to accurately reflect the degree of the

offense. As modified, we affirm.

                                          DISCUSSION

       In his issue, appellant contends the trial court erred by admitting evidence concerning a

prior alleged incident of sexual abuse as rule 404(b) evidence. Appellant argues that because the

only evidence offered in support of the alleged extraneous offense was the testimony of the

complaining witness, who was unsure whether the event had occurred, no rational juror could find

beyond a reasonable doubt that the extraneous incident had occurred. Thus, appellant argues, the
trial court abused its discretion in admitting this evidence.

       We review the trial court’s decision to admit or exclude evidence for abuse of discretion.

Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial court abuses its

discretion only if its decision is “so clearly wrong as to lie outside the zone within which reasonable

people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). The trial

court does not abuse its discretion if some evidence supports its decision. See Osbourn v. State,

92 S.W.3d 531, 538 (Tex. Crim. App. 2002). We uphold the trial court’s evidentiary ruling if it

was correct on any theory of law applicable to the case. See De La Paz v. State, 279 S.W.3d 336,

344 (Tex. Crim. App. 2009).

       When deciding whether to admit extraneous offense evidence during the guilt/innocence

phase of a trial, the trial court must make an initial determination that the jury could find beyond

a reasonable doubt that the defendant committed the extraneous offense. Harrell v. State, 884

S.W.2d 154, 160 (Tex. Crim. App. 1994). Furthermore, upon the defendant’s request, the trial

court must instruct the jury not to consider the admitted extraneous offense evidence unless it

believes beyond a reasonable doubt that the defendant committed the extraneous offense. Delgado

v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007). The jury is the ultimate trier of fact, and it

alone determines if an extraneous offense has been proven beyond a reasonable doubt. See

Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996) (the trial judge has the

responsibility of determining the threshold admissibility of extraneous offenses and the jury

determines whether or not the State has proven the extraneous offense beyond a reasonable doubt).

       Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a

person in order to show that on a particular occasion the person acted in conformity with the

character. TEX. R. EVID. 404(b)(1). Such evidence, however, may be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

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absence of mistake or accident. Martin v. State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005).

Also, in prosecutions involving certain offenses against children under the age of seventeen,

including sexual offenses and assaultive offenses, section 1 of article 38.37 of the code of criminal

procedure permits the admission of evidence of “other crimes, wrongs, or acts” committed by the

defendant against the child victim:

       Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other
       crimes, wrongs, or acts committed by the defendant against the child who is the
       victim of the alleged offense shall be admitted for its bearing on relevant matters,
       including:

       (1) the state of mind of the defendant and the child; and

       (2) the previous and subsequent relationship between the defendant and the child.

TEX. CODE CRIM. PROC. ANN. art. 38.37, §§ 1(a)(1)(A), (B), 1(b). Article 38.37 does allow for the

admission of other crimes, wrongs or acts when relevant. Phillips v. State, 193 S.W.3d 904, 911

(Tex. Crim. App. 2006).

       A grand jury indicted appellant for the offense of continuous sexual abuse of a young child.

The indictment alleged that on or about July 16, 2015, appellant did:

       [T]hen and there intentionally and knowingly, during a period that was 30 or more
       days in duration, when the defendant was 17 years of age or older, commit two or
       more acts of sexual abuse against [the complainant], a child younger than 14 years
       of age, hereinafter called complainant, namely by: by the penetration of the
       complainant’s female sexual organ by the Defendant’s finger AND by the contact
       between the hand of the Defendant and the genitals of the complainant with the
       intent to arouse and gratify the sexual desire of the Defendant[.]

See TEX. PENAL CODE ANN. § 21.02. The State elected to proceed on the lesser-included offense

of aggravated sexual assault of a child younger than fourteen years of age. See id. § 22.021.

       The evidence at trial showed that on July 16, 2015, when she was thirteen years old, the

complainant was in the kitchen washing up after dinner. Her stepfather, appellant, gave her an

allergy pill. This confused the complainant because she did not have any allergies and “hardly

ever got sick.” Later that night, after she had gone to bed, appellant came into the complainant’s

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room, began rubbing her arms and legs, and left. He then returned and again rubbed her arms and

legs. The complainant pretended to be asleep as appellant rubbed her arms and legs and reached

up her basketball shorts. Appellant left the room and when he returned, he reached all the way up

to the complainant’s vagina and rubbed it on the outside of her underwear in a circular motion with

his thumb. The complainant testified she was confused and flooded with emotions, but she

pretended to be asleep. Appellant left the room and returned a third time, trying to remove the

complainant’s underwear as she shifted her body to stop him from touching her. Appellant

continued reaching up the complainant’s shorts and ultimately moved her underwear aside and

touched her vagina with his hand. Appellant touched “the hole” of her vagina with his finger or

thumb. The complainant could feel appellant’s fingernails as he touched her, and she wanted to

scream because it felt “[h]orrible.” The complainant moved again, appellant stopped, and he left

the room.

           When appellant left the room, the complainant went into her mother’s room and made an

outcry to her mother. After the complainant told her mother about what had happened, the

complainant’s mother called the police, and appellant was arrested that night.                                                       During her

testimony, the complainant also testified about a prior incident that occurred one night when she

was around eleven or twelve years old. According to the complainant, appellant touched her

vagina with his hand, over her clothes, and then reached into her pants and rubbed her vagina.1

           The trial court held an article 38.37 pretrial hearing to determine the admissibility of

evidence of the first incident. During that hearing, defense counsel argued the highly prejudicial

nature of this evidence substantially outweighed its probative value. The complainant testified

that the she thought the first incident occurred on the night before her sister’s fifth birthday party,



      1
        Initially, the two allegations formed the basis for the continuous sexual abuse charge against appellant. But prior to trial, the State elected
to proceed on the lesser-included offense of aggravated sexual assault of a child.

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when the complainant was around twelve years old. She described falling asleep on the couch and

appellant carrying her to bed. The complainant said she was “half asleep” when appellant placed

her in the bed she shared with her younger sister and started touching her. She testified that

appellant’s hand reached into her pants from the waist and touched her vagina, rubbing it.

Appellant then woke her up and asked for a hug, so she hugged him and went back to sleep. She

testified that “everything was normal the next morning,” so she thought what happened “was

probably just a dream.” She realized it was not a dream when appellant touched her again. The

complainant testified that she had a memory of the first time appellant touched her. Asked why

she did not tell anyone about it, the complainant replied, “I don’t know. I just––I thought it was a

dream. I didn’t wanna, yeah.”

       On cross-examination at the hearing, the complainant confirmed that part of the reason she

did not tell anyone about the first time appellant touched her was because she believed it was a

dream; she said the second incident convinced her that the first had not been a dream. Rejecting

defense counsel’s argument that the testimony regarding the first incident was unreliable because

“the complaining witness has consistently said it was a dream,” the trial court determined that the

complainant could testify regarding the incident. The trial court explained that “[t]he jury will

make a fact determination as to whether or not they believe it beyond a reasonable doubt, and the

Court will provide a limiting instruction at the conclusion of the testimony in that regard unless

you don’t want one.” Defense counsel replied, “I do.” Thereafter, the complainant testified before

the jury about both incidents.

       Appellant argues that no rational juror could have found the first extraneous incident of

touching occurred based on the evidence presented at trial. The trial court, however, held a hearing

and heard the complainant’s testimony detailing an extraneous offense similar to the charged

offense before making the threshold determination that the evidence was admissible. The record

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shows that the alleged perpetrator and victim were the same, and both offenses involved sexual

contact between appellant’s hand and the complainant’s vagina. The complainant described the

alleged contact in detail, and she testified that she was approximately twelve years old when

appellant first touched her. Her testimony showed that she discounted the memory of that first

incident as a dream until appellant touched her a second time. The complainant testified that she

had a memory of the first incident and she provided a detailed account of that incident at trial. We

conclude the trial court did not abuse its discretion in impliedly determining the jury could find

beyond a reasonable doubt that appellant committed the extraneous offense. See Harrell, 884

S.W.2d at 160.

       Additionally, we note that the jury charge instructed the jury as follows:

       You are instructed that you may not consider the defendant’s commission of crimes,
       wrongs, or acts not alleged in the indictment, unless you first find and believe from
       the evidence beyond a reasonable doubt that the defendant committed such crimes,
       wrongs, or acts. Even then, you may only use that evidence for the limited purpose
       for which it was admitted, as instructed below.

       You are instructed that if there is any evidence before you in this case regarding
       other crimes, wrongs, or acts committed by the defendant against [the complainant]
       you may consider such evidence for its bearing on relevant matters, including the
       state of mind of the defendant and [the complainant], and the previous or
       subsequent relationship between the defendant and [the complainant].

       You are instructed that if there is any evidence before you in this case regarding the
       defendant having committed other crimes, wrongs, or bad acts, you may consider
       such evidence only in determining the motive, opportunity, intent, plan,
       preparation, knowledge, absence of mistake, or lack of accident of the defendant,
       and for no other purpose.

The trial court’s charge explained the purposes for which the jury could consider the evidence and

that the jury was required to find the offense occurred beyond a reasonable doubt before

considering the evidence for the allowable purposes. Therefore, to the extent the jury may have

considered the extraneous offense in determining appellant’s guilt, we defer to its judgment on

whether the State proved it beyond a reasonable doubt. See Mitchell, 931 S.W.2d at 954; Stulce v.


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State, No. 05–14–01226–CR, 2016 WL 4218594, at *3 (Tex. App.––Dallas Aug. 9, 2016, no pet.)

(mem. op., not designated for publication) (citing Mitchell). We overrule appellant’s issue.

       In a cross-point, the State argues we should modify the judgment to accurately reflect the

degree of the offense, i.e., that appellant was convicted of a first-degree felony. The indictment in

this case charged appellant with continuous sexual abuse of a child, but, as we noted earlier, the

State proceeded to trial on the lesser-included offense of aggravated sexual assault of a child, a

first-degree felony. See TEX. PENAL CODE ANN. § 22.021(e). However, the judgment inaccurately

states that the offense was a second-degree felony. Accordingly, we sustain the State’s cross-point

and modify the judgment to show that appellant was convicted of a first-degree felony offense.

See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993);

Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d).

       As modified, the judgment of the trial court is affirmed.




                                                   /Lana Myers/
                                                   LANA MYERS
                                                   JUSTICE



Do Not Publish
TEX. R. APP. P. 47.2(b)
190036F.U05




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

 TOBI LAWAN DOUNLEY, Appellant                      On Appeal from the 204th Judicial District
                                                    Court, Dallas County, Texas
 No. 05-19-00036-CR         V.                      Trial Court Cause No. F15-56205-Q.
                                                    Opinion delivered by Justice Myers.
 THE STATE OF TEXAS, Appellee                       Justices Osborne and Nowell participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as

follows:

       The part of the judgment that reads, “Degree of Offense: 2ND DEGREE
       FELONY,” should be changed to read: “Degree of Offense: 1ST DEGREE
       FELONY.”

As REFORMED, the judgment is AFFIRMED.

Judgment entered this 27th day of January, 2020.




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