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Click here for the full text of this decision FACTS:Q.K. was 11 years old at the time of the offense. She testified that on March 25, 2004, she lived with her mother and stepfather Edward Earl Johnson in Temple. Q.K. had been diagnosed by her doctors as having an attention deficit disorder. She had been prescribed Concerta and a sleeping medicine to be taken at night. Q. K. testified that appellant Reo Dell Wright, her mother’s cousin, came to the house where she lived on the night of March 24, 2004. Q.K. related that she slept that night on a couch in the living room. Appellant was also to sleep in that room. Q.K. took her sleeping medication before going to bed, but she woke up during the night to find appellant on top of her. Her nightgown had been pulled up, her panties pulled down and appellant was raping her. She told appellant to get off of her but dozed off again as a result of the medication. Sometime later in the night, she awakened and found appellant on top of her again, doing the same thing. She insisted that he get off of her but succumbed again to the medication and fell asleep. When she woke up the next morning, she ran to tell her mother and stepfather what had happened and heard appellant leaving the house. Q.K. was allowed to go to school that morning, but the assistant principal Donna Lammert noticed a change in Q.K.’s normal demeanor and took steps to intervene. Q.K.’s mother and stepfather came to the school and met with Lammert. Q.K. was angry and upset and told what had happened during the night. The Temple Police Department was called. Q.K.’s mother left the school, because she had outstanding felony arrest warrants for cocaine possession. After talking to police officers, Q.K. was taken to the Scott and White Hospital for an examination by Alice Linder, a sexual assault nurse examiner. According to Linder, the examination was consistent with Q.K.’s recollection of the previous night’s events. Linder took swabs from the various areas in the genital and anal portions of Q.K.’s body which were submitted to the Department of Public Safety laboratory in Waco along with other items taken by the police from the Johnson home where Q.K. lived. The jury found appellant guilty of the offense of aggravated sexual assault of a child and assessed his punishment at 36 years’ imprisonment. Appellant appealed. He contended that the trial court committed egregious harm by failing to include sua sponte a jury instruction on the burden of proof as to the extraneous offenses in the penalty stage of the trial and earlier in the guilt-innocence stage of the trial. The jury charge issues related only to two extraneous evidence matters introduced at the guilt-innocence stage of the trial. One extraneous unadjudicated offense involving the possession and use of crack cocaine was elicited by appellant. The other “bad act” evidence (that appellant was kicked out of his brother’s residence for an unknown reason) did not in fact reveal misconduct deemed a “bad act.” HOLDING:Affirmed. The court noted that appellant was the proponent of the evidence regarding the extraneous offense of possessing and using crack cocaine. He elicited this evidence from the complainant on cross-examination and on direct examination of his own witness, her stepfather. Appellant did not offer the extraneous evidence as an excuse or reason for the alleged conduct but to support his defensive theory of fabrication, an unsuccessful attempt to show a conspiracy between the complainant and her stepfather to frame him on the sexual assault charge, because they thought that he had encouraged the wife and mother to “fall off the wagon” and use crack cocaine. The state did not pursue the extraneous offense evidence at the guilt stage nor did it use the evidence at the penalty stage of the trial. Because the evidence was elicited by appellant for his own purposes, the court concluded that the trial court did not err in failing sua sponte to give at the penalty stage, a reasonable doubt instruction concerning this evidence and placing the burden of proof on the state. The court then addressed whether an additional jury instruction at the guilt phase would have been proper. Under Texas Code of Criminal Procedure Art. 37.07, �3(a)(1), a court must instruct the jury that it may not consider extraneous offense and bad act evidence in determining punishment unless the jurors have found that the state has proven beyond a reasonable doubt that the defendant committed said extraneous offenses or bad acts. But the court found this directive inapplicable to the guilt stage. Upon timely request or objection, the court stated that a defendant may be entitled to certain jury instructions on reasonable doubt as to extraneous offense evidence at the guilt stage of the trial, but not because of Art. 37.07, �3(a) and Huizar v. State, 12 S.W.3d 479 (Tex. Crim. App. 2000), the decision that interpreted that statute. OPINION:Onion, J.; Law, C.J., and Puryear and Onion, J.J.

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