AFFIRMED as MODIFIED and Opinion Filed March 22, 2021
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01099-CR
ANTOINE DOMINIC POWELL II, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F-1775327-P
MEMORANDUM OPINION Before Justices Molberg, Reichek, and Nowell Opinion by Justice Reichek Antoine Dominic Powell II appeals his conviction for aggravated sexual
assault of a child. In two issues, appellant contends his punishment violates the
objectives of the penal code and the trial court erred in sustaining the State’s
objections to questions about drug use in the complainant’s home. In a single cross-
issue, the State requests the judgment be modified to reflect the age of the
complainant at the time of the offense. We agree with the State that the judgment
should be corrected. As modified, we affirm the trial court’s judgment. Background
Appellant was indicted for the offense of aggravated sexual assault of a child
under the age of fourteen. Appellant waived his right to a jury trial and entered an
open plea of guilty. The trial court conducted a sentencing hearing at which the
complainant, the complainant’s mother, and appellant testified.
At the time of the hearing, the complainant, H.C., was seventeen years old and
appellant was twenty-one. H.C. testified that, when she was thirteen years old,
appellant, who is her cousin, came into her room while she was asleep and “forced
himself on [her.]” H.C. stated she was scared and did not know what to do. She
further stated she kept “pushing him and pushing him” until he got off of her. She
did not tell anyone at the time what appellant had done.
Sometime later, H.C. told her mother, C.J., that her stomach was hurting.
When the pain continued to get worse, C.J. took her daughter to the emergency room.
At the hospital, both H.C. and C.J. learned that H.C. was pregnant. H.C. then told
her mother what had happened with appellant. A DNA test confirmed that appellant
was the father of the child.
H.C. testified that, after she had the baby, she was “kicked out of school”
because she did not have child care and missed too many classes. She further
testified she could no longer see her friends because she was “just stuck at home
taking care of the baby.” According to C.J., H.C. had been an outgoing person before
the assault, but she was now depressed and did not want to do anything. C.J. stated
–2– appellant had taken both H.C.’s virginity and her future and she asked that appellant
be sentenced to time in prison.
Appellant testified that, when he was a child, his mother moved to Dallas and
left him with his grandmother in Florida. When appellant was eleven or twelve years
old, his grandmother’s boyfriend accused him of stealing. As a result, appellant left
his grandmother’s house and moved from place to place until he eventually joined
his mother in Dallas at the age of thirteen or fourteen.
While in Dallas, appellant became close with H.C.’s older sister, Avalon, and
would spend time with her at C.J.’s house. Appellant testified he would drive C.J.
so that she could buy drugs including cocaine, marijuana, Ecstasy, and Xanax, and
he eventually started using drugs with her. Appellant stated H.C. was usually in her
bedroom while he and C.J. did drugs, but occasionally she would be “sitting around.”
Although appellant conceded he must have had sexual intercourse with H.C.,
he stated he had no memory of the offense. Appellant stated that, on the date he
thought it might have occurred, he took C.J. to her “supplier” to get some cocaine.
That evening, appellant and C.J. consumed cocaine, Ecstasy, and Xanax and
appellant stated he blacked out. Appellant remembered using the bathroom upstairs
and going into H.C.’s room to see if she had soap. He also remembered getting
angry with H.C. when she said she did not have any. But appellant said he then left
H.C.’s room and went back downstairs to continue getting high. Appellant stated
the next thing he remembered was finding himself driving his car in Arlington.
–3– Appellant admitted he had blacked out on other occasions. He also conceded
he had been charged with other offenses including assault family violence,
unauthorized use of a motor vehicle, possession of marijuana, and failure to identify.
In at least one case, appellant was placed on probation and had his probation
revoked. In addition, while in prison for the current offense, appellant was “written
up” multiple times for incidents including fighting with another inmate.
Following appellant’s testimony, the defense read two letters of support for
appellant; one written by his mother and the other by a friend. After hearing the
evidence, the trial court sentenced appellant to thirty-five years in prison. Appellant
filed a motion for new trial that was overruled by operation of law. He then brought
this appeal.
Analysis
In his first issue, appellant contends the trial court abused its discretion in
sentencing him to thirty-five years in prison because the sentence violates the
objectives of the penal code. Appellant argues that, based on his youth and the fact
that the offense was a “one-time incident” that occurred while he was high on drugs,
he should have been placed on community supervision.
Generally, to preserve error, the appellant must make a timely request,
objection, or motion in the trial court. Castaneda v. State, 135 S.W.3d 719, 723
(Tex. App.—Dallas 2003, no pet.); Littlebird v. State, No. 05-17-00709-CR, 2018
WL 2926811, at *2 (Tex. App.—Dallas June 7, 2018, no pet.) (mem. op., not
–4– designated for publication). Appellant made no objection at the time his sentence
was imposed. Nor did he raise this issue in his motion for new trial. Accordingly,
appellant did not preserve his complaint for our review.
Even if appellant had preserved this issue, we conclude his argument is
without merit. Trial courts have great discretion to determine the appropriate
punishment in the cases before them. Foster v. State, 525 S.W.3d 898, 911 (Tex.
App.—Dallas 2017, pet. ref’d). As long as a sentence is within the proper range of
punishment, it generally will not be disturbed on appeal. Id.
Appellant does not dispute that his sentence is within the proper range of
punishment for the offense he committed. He argues only that his sentence does not
comport with one of the primary objectives of the criminal justice system, which is
rehabilitation. In addition to rehabilitation, however, the penal code’s two other
stated objectives are deterrence and punishment as necessary to prevent recurrence
of criminal behavior. TEX. PENAL CODE ANN. § 1.02(1). Incarceration does not
mean a defendant will be denied the opportunity for rehabilitation. Foster, 525
S.W.3d at 911.
Before announcing the sentence in this case, the trial judge indicated he was
disturbed by appellant’s claimed inability to remember the offense and the number
of times appellant stated in his testimony that the assault was a “stupid mistake.”
The record indicates that appellant committed several previous criminal offenses and
had not successfully completed probation.
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AFFIRMED as MODIFIED and Opinion Filed March 22, 2021
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01099-CR
ANTOINE DOMINIC POWELL II, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F-1775327-P
MEMORANDUM OPINION Before Justices Molberg, Reichek, and Nowell Opinion by Justice Reichek Antoine Dominic Powell II appeals his conviction for aggravated sexual
assault of a child. In two issues, appellant contends his punishment violates the
objectives of the penal code and the trial court erred in sustaining the State’s
objections to questions about drug use in the complainant’s home. In a single cross-
issue, the State requests the judgment be modified to reflect the age of the
complainant at the time of the offense. We agree with the State that the judgment
should be corrected. As modified, we affirm the trial court’s judgment. Background
Appellant was indicted for the offense of aggravated sexual assault of a child
under the age of fourteen. Appellant waived his right to a jury trial and entered an
open plea of guilty. The trial court conducted a sentencing hearing at which the
complainant, the complainant’s mother, and appellant testified.
At the time of the hearing, the complainant, H.C., was seventeen years old and
appellant was twenty-one. H.C. testified that, when she was thirteen years old,
appellant, who is her cousin, came into her room while she was asleep and “forced
himself on [her.]” H.C. stated she was scared and did not know what to do. She
further stated she kept “pushing him and pushing him” until he got off of her. She
did not tell anyone at the time what appellant had done.
Sometime later, H.C. told her mother, C.J., that her stomach was hurting.
When the pain continued to get worse, C.J. took her daughter to the emergency room.
At the hospital, both H.C. and C.J. learned that H.C. was pregnant. H.C. then told
her mother what had happened with appellant. A DNA test confirmed that appellant
was the father of the child.
H.C. testified that, after she had the baby, she was “kicked out of school”
because she did not have child care and missed too many classes. She further
testified she could no longer see her friends because she was “just stuck at home
taking care of the baby.” According to C.J., H.C. had been an outgoing person before
the assault, but she was now depressed and did not want to do anything. C.J. stated
–2– appellant had taken both H.C.’s virginity and her future and she asked that appellant
be sentenced to time in prison.
Appellant testified that, when he was a child, his mother moved to Dallas and
left him with his grandmother in Florida. When appellant was eleven or twelve years
old, his grandmother’s boyfriend accused him of stealing. As a result, appellant left
his grandmother’s house and moved from place to place until he eventually joined
his mother in Dallas at the age of thirteen or fourteen.
While in Dallas, appellant became close with H.C.’s older sister, Avalon, and
would spend time with her at C.J.’s house. Appellant testified he would drive C.J.
so that she could buy drugs including cocaine, marijuana, Ecstasy, and Xanax, and
he eventually started using drugs with her. Appellant stated H.C. was usually in her
bedroom while he and C.J. did drugs, but occasionally she would be “sitting around.”
Although appellant conceded he must have had sexual intercourse with H.C.,
he stated he had no memory of the offense. Appellant stated that, on the date he
thought it might have occurred, he took C.J. to her “supplier” to get some cocaine.
That evening, appellant and C.J. consumed cocaine, Ecstasy, and Xanax and
appellant stated he blacked out. Appellant remembered using the bathroom upstairs
and going into H.C.’s room to see if she had soap. He also remembered getting
angry with H.C. when she said she did not have any. But appellant said he then left
H.C.’s room and went back downstairs to continue getting high. Appellant stated
the next thing he remembered was finding himself driving his car in Arlington.
–3– Appellant admitted he had blacked out on other occasions. He also conceded
he had been charged with other offenses including assault family violence,
unauthorized use of a motor vehicle, possession of marijuana, and failure to identify.
In at least one case, appellant was placed on probation and had his probation
revoked. In addition, while in prison for the current offense, appellant was “written
up” multiple times for incidents including fighting with another inmate.
Following appellant’s testimony, the defense read two letters of support for
appellant; one written by his mother and the other by a friend. After hearing the
evidence, the trial court sentenced appellant to thirty-five years in prison. Appellant
filed a motion for new trial that was overruled by operation of law. He then brought
this appeal.
Analysis
In his first issue, appellant contends the trial court abused its discretion in
sentencing him to thirty-five years in prison because the sentence violates the
objectives of the penal code. Appellant argues that, based on his youth and the fact
that the offense was a “one-time incident” that occurred while he was high on drugs,
he should have been placed on community supervision.
Generally, to preserve error, the appellant must make a timely request,
objection, or motion in the trial court. Castaneda v. State, 135 S.W.3d 719, 723
(Tex. App.—Dallas 2003, no pet.); Littlebird v. State, No. 05-17-00709-CR, 2018
WL 2926811, at *2 (Tex. App.—Dallas June 7, 2018, no pet.) (mem. op., not
–4– designated for publication). Appellant made no objection at the time his sentence
was imposed. Nor did he raise this issue in his motion for new trial. Accordingly,
appellant did not preserve his complaint for our review.
Even if appellant had preserved this issue, we conclude his argument is
without merit. Trial courts have great discretion to determine the appropriate
punishment in the cases before them. Foster v. State, 525 S.W.3d 898, 911 (Tex.
App.—Dallas 2017, pet. ref’d). As long as a sentence is within the proper range of
punishment, it generally will not be disturbed on appeal. Id.
Appellant does not dispute that his sentence is within the proper range of
punishment for the offense he committed. He argues only that his sentence does not
comport with one of the primary objectives of the criminal justice system, which is
rehabilitation. In addition to rehabilitation, however, the penal code’s two other
stated objectives are deterrence and punishment as necessary to prevent recurrence
of criminal behavior. TEX. PENAL CODE ANN. § 1.02(1). Incarceration does not
mean a defendant will be denied the opportunity for rehabilitation. Foster, 525
S.W.3d at 911.
Before announcing the sentence in this case, the trial judge indicated he was
disturbed by appellant’s claimed inability to remember the offense and the number
of times appellant stated in his testimony that the assault was a “stupid mistake.”
The record indicates that appellant committed several previous criminal offenses and
had not successfully completed probation. Accordingly, given the nature of the
–5– offense, appellant’s apparent unwillingness to take full responsibility for his actions,
and his criminal history, we cannot conclude the trial court’s sentence was an abuse
of discretion. See Garza v. State, No. 05-11-01626-CR, 2013 WL 1683612, at *2
(Tex. App.—Dallas Apr. 18, 2013, no pet.) (mem. op., no designated for
publication). We overrule appellant’s first issue.
In his second issue, appellant contends the trial court erred in sustaining the
State’s objections to questions about drug use in the complainant’s home. During
defense counsel’s cross examination of the complainant, he asked if appellant and
others came to her house because her mother was providing them with drugs. The
State objected on the ground that the question called for speculation and was not
relevant. Later, during cross-examination of the complainant’s mother, defense
counsel again asked about her providing drugs to appellant. The State objected on
the basis of relevance. The trial court sustained the State’s objection, but discussed
with counsel recalling the witness if other testimony demonstrated the relevance of
the evidence the defense was seeking to introduce.
At the conclusion of appellant’s testimony, defense counsel sought to recall
the complainant’s mother to the stand. The trial court responded that “if the purpose
of recalling [C.J.], not saying you can’t, but if the purpose is to get out the same
information that your client has already testified to, the Court is well aware of what
was happening at the home.” Counsel responded, “Okay. That’s fine then, yes. We
will rest . . . .”
–6– Appellant argues the evidence that C.J. was providing appellant with illegal
narcotics was relevant to show C.J.’s potential bias as a witness and the facts and
circumstances of the offense. Even assuming error was preserved after defense
counsel chose to not recall C.J. as a witness, we conclude any error was harmless.
Error in excluding evidence is harmless if the same evidence is subsequently
admitted without objection. Khoshayand v. State, 179 S.W.3d 779, 784 (Tex.
App.—Dallas 2002, no pet.). Appellant testified extensively about taking C.J. to
purchase drugs and his own drug use at the house on the night of the offense. The
trial court, as the trier of fact in this case, indicated he was aware of this evidence
and it was unnecessary to have it repeated. In deciding to not recall C.J. as a witness,
defense counsel indicated that his questioning of C.J. would, in fact, elicit
substantially similar testimony to that provided by appellant. Accordingly, we
conclude any error in not allowing defense counsel to question H.C. and C.J. about
drug use in the home was harmless. Id. We resolve appellant’s second issue against
him.
In a single cross-issue, the State requests that we modify the trial court’s
judgment to include the complainant’s age. Appellant was convicted of aggravated
sexual assault which is a “reportable conviction” under chapter 62 of the Texas Penal
Code. See TEX. PENAL CODE ANN. art. 62.001(5)(A). A person with a reportable
conviction is required to register as a sex offender. Id. art. 62.051(a). Under article
42.01 of the penal code, a judgment of conviction for an offense which requires
–7– registration as a sex offender under chapter 62 must state the age of the victim of the
offense. Id. art. 42.01§ 1(27).
In this case, the judgment of conviction states “(For sex offender registration
purposes only) The age of the victim at the time of the offense was N/A.” We have
the power to modify a judgment to speak the truth when we have the necessary
information to do so. 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 (Tex. App.—
Dallas 1991, pet. ref’d) (en banc). Because the age of the victim is required to be
stated in the judgment, we modify the judgment by deleting the term “N/A” in the
section relating to sex offender registration and replace it with the number “13.”
As modified, we affirm the trial court’s judgment.
/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b) 191099F.U05
–8– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ANTOINE DOMINIC POWELL II, On Appeal from the 203rd Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F-1775327-P. No. 05-19-01099-CR V. Opinion delivered by Justice Reichek. Justices Molberg and THE STATE OF TEXAS, Appellee Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: The term “N/A” in the section relating to sex offender registration is DELETED and REPLACED with the number “13.” As REFORMED, the judgment is AFFIRMED.
Judgment entered March 22, 2021
–9–