                                                                                          ACCEPTED
                                                                                     05-14-01118-CR
                                                                          FIFTH COURT OF APPEALS
                                                                                    DALLAS, TEXAS
                                                                              3/27/2015 12:27:01 PM
                                                                                          LISA MATZ
                                                                                              CLERK

                            No. 05-14-01118-CR
                                  IN THE
                                                                   FILED IN
                                                            5th COURT OF APPEALS
                       FIFTH COURT OF APPEALS                    DALLAS, TEXAS
                                                            3/27/2015 12:27:01 PM
                               AT DALLAS                           LISA MATZ
                                                                     Clerk
_______________________________________________________________
                             DAVID FRONEK
                                     vs.
                          THE STATE OF TEXAS
____________________________________________________________
   Appealed from the 382nd Judicial District Court, Rockwall County, Texas
 _______________________________________________________________
                          BRIEF OF APPELLANT
______________________________________________________________
                                   Ted Sansom
                                   State Bar No. 17642000
                                   P.O. Box 1178
                                   Rockwall, Texas 75087
                                   Attorney for David Fronek
                                   Court appointed on appeal only




ORAL ARGUMENT REQUESTED
                               No. 05-14-01118-CR

                             David Fronek, Appellant

                                        Vs.

                           The State of Texas, Appellee

__________________________________________________________________

                          Identity of Parties and Counsel

_________________________________________________________________

      Appellant certifies that the following is a complete list of the parties,
attorneys and any other person who has any interest in this case:

PARTIES                                COUNSEL
State of Texas                         Kenda Culpepper
                                       Rockwall County District Attorney
                                       1111 E. Yellowjacket Lane, Suite 201
                                       Rockwall, Texas 75087
                                       972-204-6800


                                       Lauren Ellis
                                       Rockwall County Asst. District Attorney
                                       1111 E. Yellowjacket Lane, Suite 201
                                       Rockwall, Texas 75087
                                       972-204-6800
                                         i
PARTIES              COUNSEL


The State of Texas   Felicia Oliphant
                     Rockwall County Asst. District Attorney
                     1111 E. Yellowjacket Lane, Suite 201
                     Rockwall, Texas 75087
                     972-204-6800


                     Jeffrey Shell
                     Rockwall County Asst. District Attorney
                     1111 E. Yellowjacket, Lane, Suite 201
                     Rockwall, Texas 75087
                     972-204-6800


Appellant            David Fronek
                     Presently Incarcerated


Trial Attorney       Tom Novak
                     8710 Greenville Avenue
                     Dallas, Texas 75243
                     214-405-1179




                       i
PARTIES                              COUNSEL


Court-appointed attorney on appeal   Ted Sansom

                                     P.O. Box 1178

                                     Rockwall, Texas 75087

                                     972-771-2410




                                       i
                  TABLE OF CONTENTS

                                         PAGE

IDENTITY OF PARTIES & COUNSEL …………………….. i

INDEX OF AUTHORITIES ………………………………….. ii

STATEMENT OF CASE ……………………………………         1

STATEMENT REGARDING ORAL ARGUMENT ……….   2

ISSUE PRESENTED ……………………………………….         3

STATEMENT OF FACTS ………………………………….        4 - 13

SUMMARY OF THE ARGUMENT ………………………..      14

ARGUMENT ………………………………………………..            15 - 29

CONCLUSION AND PRAYER ……………………………        30

CERTIFICATE OF SERVICE ………………………………      31

CERTIFICATE OF COMPLIANCE…………………………      31
                         INDEX OF AUTHORITIES

CASES                                             PAGE
Albrecht v. State 486 SW2d 97 ……………………………………..    18
    (Tex. Crim. App. 1972)
Alford v. State 866 SW2d 619 ………………………………………. 17
    (Tex. Crim. App. 1993)
Bachover v. State 633 SW2d 869 ……………………………………. 28
    (Tex. Crim. App. 1982)
Billodeaux v. State 277 SW3d 34 ……………………………………. 23
    (Tex. Crim. App. 2009)
Carroll v. State 916 SW2d 494 ……………………………………….. 23
    (Tex. Crim. App. 1996)
Colvin v. State 54 SW3d 82 ……………………………………………28
    (Tex. App. Texarkana, 2001, no pet.)
Conrad v. State 10 SW3d 43 ………………………………………….. 18
    (Tex. App. Texarkana 1999, no pet.)
Crank v. State 761 SW2d 328 ………………………………………… 17
    (Tex. Crim. App. 1988)
Davis v. Alaska 415 U.S. 308 (1974) ……………………………… 22, 23
Galvez v. State 962 SW2d 203 ……………………………………… 17
    (Tex. App. Austin 1998, pet. ref.)
Garcia v. State 149 SW3d 135 ………………………………………. 23
    (Tex. Crim. App. 2004)
                                         ii
CASES                                                            PAGE
Gigliobianco v. State 210 SW3d 637 …………………………………. 28
     (Tex. Crim. App. 2006)
Ex Parte Granviel 561 SW2d 503 …………………………………… 15
     (Tex. Crim. App. 1978)
Hammer v. State 296 SW3d 555 ……………………………………… 19, 23
     (Tex. Crim. App. 2009)
Hinds v. State 970 SW2d 33 ………………………………………….. 18
     (Tex. App. Dallas 1998, pet. ref.)
Hitt v. State 53 SW3d 697 ……………………………………………. 18
     (Tex. App. Austin 2001, pet. ref.)
Howland v. State 966 SW2d 98 ………………………………………. 18
     (Tex. App. Houston 1st Dist. 1998, affirmed other grounds
     900 SW2d 274)
Jenkins v. State 993 SW2d 133 ……………………………………….. 15
     (Tex. App. Tyler, 1999, pet. ref.)
Koenler v. State 679 SW2d 6 …………………………………………. 23
     (Tex. Crim. App. 1984)
Mellinger v. City of Houston 3 S.W. 249 (188)……………………… 28
Michelson v. United States 335 U.S. 469 (1948) …………………… 17, 27
Montgomery v. State 810 SW2d 372 ………………………………… 17, 28
     (Tex. Crim. App. 1990)
Pawlak v. State 420 SW3d 807 ………………………………………. 18
     (Tex. Crim. App. 2013)
                                          ii
CASES                                                     PAGE
Pointer v. Texas 380 U.S. 400, 85 S.Ct. 1065 ……………………… 22, 28
     12 L.Ed 2d 923 (1965)
Ex Parte Scott 581 SW2d 181 ……………………………………….. 28
     (Tex. Crim. App. 1979)
Strickland v. State 466 U.S. 668, 104 S.Ct. 2052…………………….. 20
     80 L.Ed 2nd 674 (1984)
Templin v. State 711 SW2d 30 ……………………………………….. 18
     (Tex. Crim. App. 1986)
United States vs. Foskey 636 F.2d 517 ……………………………….. 27, 28
     (D.C. Cir. 1980)
Ex Parte Varelas 45 SW3d 627 ………………………………………. 27
     (Tex. Crim. App. 2001)
Wheeler v. State 67 SW3d 879 ……………………………………… 19

     (Tex. Crim. App. 2002
STATUTES
Texas Code of Criminal Procedure …………………………………… 26
     Section 38.03
Texas Code of Criminal Procedure …………………………………… 6, 10, 11
     Article 38.37, Section 1
Texas Code of Criminal Procedure …………………………………… 3, 15
     Article 38.37, Section 2
Texas Penal Code …………………………………………………...... 25
     Section 1.04
                                  ii
STATUTES                                          PAGE
Texas Penal Code …………………………………………………….. 26
    Section 2.01
Texas Penal Code ……………………………………………………... 1,4,5,13,18
    Section 21.02
Texas Penal Code ……………………………………………………... 5
    Section 21.11
Texas Penal Code …………………………………………………….. 4,5
    Section 22.011
Texas Penal Code …………………………………………………….. 4,5
    Section 22.021
Texas Rules of Appellate Procedure …………………………………. 29
    44.2(a)
Texas Rules of Evidence……………………………………………… 27
    Rule 105
Texas Rules of Evidence ……………………………………………… 12, 19
    Rule 403
Texas Rules of Evidence ……………………………………………… 16, 18, 23
    Rule 404 & 405
CONSTITUTION                                      PAGE
Texas Constitution ……………………………………………………. 20, 22, 28
    Article 1, Section 10, Section 19
United States Constitution ……………………………………………. 20,22,28
    Fifth, Sixth and Fourteenth Amendment
                                        ii
                          STATEMENT OF THE CASE

      Appellant was indicted in Rockwall County for the First Degree Felony of
Continuous Sex Abuse of Child Younger Than 14 years of age, Texas Penal Code
Section 21.02, punishable by sentence of 25-99 years or life. CR 7

      The case was tried before a jury on guilt-innocence and punishment in the
382nd Judicial District Court, Honorable Brett Hall presiding.

      The jury returned a verdict of Guilty as charged CR 76 and assessed
punishment at 99 (sic). CR 79

      Appellant filed a Motion for New Trial and Motion in Arrest of Judgment 6
days after the date of Judgment CR 88 which were overruled by operation of law.

      Notice of Appeal was filed 21 days after date of Judgment CR 96 and the
Trial Court certified right of appeal CR 80. Final Judgment was entered Nunc Pro
Tunc CR 94, the original judgment having incorrectly designated the Degree of
Offense as State Jail Felony and age of victim as 99 years. CR 81




                                         1
                STATEMENT REGARDING ORAL ARGUMENT

      Oral Argument is requested because of severity of punishment and issue
raised of constitutionality of statute.




                                          2
                               ISSUE PRESENTED

      Texas Code of Criminal Procedure Article 38.37 Section 2 is
unconstitutional in its application to the facts of this case, denying Appellant his
fair trial and constitutional right to due process, effective assistance of counsel,
right of confrontation and compulsory process for obtaining witnesses in his favor.




                                         3
                            STATEMENT OF FACTS

      Penal Code Section 21.02 sets out the definition of Continuous Sexual
Abuse of Young Child:

      (a)   “child” has the meaning assigned by Section 22.011(c) i.e. younger
than 17 years.

      (b)   The offense is committed if (1) during a period that is 30 days or more
in duration, a person commits 2 or more acts of sexual abuse ….and (2) at the time
each offense was committed, the actor is 17 years of age or older and the victim is
younger than 14 years of age.

      (c)   Acts of sexual abuse includes a violation:

      ……

      (2)   indecency with a child, Section 21.11 (a)(1)…

      (3)   sexual assault Section 22.011.

      (4)   aggravated sexual assault Section 22.021 ….

      Indecency with a child, Section 21.11(a)(1) (17 years or younger), is
committed if a person engages in sexual contact with a child or causes the child to
engage in sexual contact, meaning, if done with intent to arouse or gratify the
sexual desire of any person, (1) touching any part of the genitals of a child or (2)
touching any part of the body of a child with any part of the genitals of a of a
person.

      Sexual assault under Section 22.011 (relevant parts) includes to intentionally
or knowingly… (B) cause penetration of the mouth of a child by the sexual organ


                                         4
of the actor or (C) cause the sexual organ of a child to contact or penetrate the
mouth of another person.

      Aggravated Sexual Assault, Penal Code Section 22.021 (relevant parts)
includes intentionally or knowingly (B)(ii) to cause penetration of the mouth of a
child by the sexual organ of the actor or (B)(iii) to cause the sexual organ of a child
to contact or penetrate the mouth of another person or (v) to cause the mouth of a
child to contact the sexual organ of another person if the child is younger than 14
years of age.

      The indictment in this case alleges sexual abuse in four (4) forms: (1)
contact of child’s mouth with defendant’s sexual organ (2) contact of defendant’s
mouth with child’s sexual organ (3) contact of child’s sexual organ with
defendant’s hand and (4) contact of defendant’s sexual organ with child’s hand.

      All four (4) acts alleged would constitute a violation of the Indecency
statute, Penal Code 21.11. The 2 mouth-sexual organ contacts would constitute
violations of the Sexual Assault statute, Penal Code Section 22.011 although the 2
hand-sexual organ contacts would not. The 2 mouth-sexual organ contacts would
also be violations of the Aggravated Sexual Assault offense, Penal Code 22.021
although the 2 hand-sexual organ contacts would not.

      The offense alleged, Continuous Sexual Abuse of a Child, Penal Code 21.02
became effective September 1, 2007. Some of the sexual abuse alleged by the
State occurred prior to that effective date.     The State method of proving the
allegations took the form of questioning of the child complainant about school
years and grades, combined with the street addresses of the child’s residence.




                                          5
       Somewhat conveniently that effective date of the statute coincided with the
child’s entering the second grade at a time when he was 7 years of age (13 years
old at time of trial).

       The child complainant testified that inappropriate touching, Defendant’s
hand on the child’s front private part, began at the child’s residence in Rockwall
from age 4 to age 10. RR 3 73-74 The child also touched defendant in the same
way. RR 3-79 These kinds of incidents began after the first grade, before second
grade (thus age 7, immediately prior to statute enactment and continued until age 8
or 9, possibly 10 years, grade 2 into grade 4) RR 3-82-83

       “It” also happened twice in Arizona, RR 3-84 prompting defense counsel to
object to such extraneous offenses. RR 3-85, 88 The Court ruled the Arizona
incidents admissible under Article 38.37 Section 1, T.C.C.P. and the child then
testified of hand contact with genitals, both persons on the other and defendant
mouth contact to child front private part RR 3 93-95, all of this in the summer, age
9 or 10 probably 4th grade, between 1-5 times. RR 3-96-97

       Defendant’s mouth contact with the child front private part occurred in
Rockwall at the residence mentioned, more than 10 times, RR 3-97-99 nightly or at
least every other night. At some point, the defendant made the child’s mouth
contact defendant’s private part RR 3-102, at least 5 times, RR 3-105, this
beginning between first and second grade (age 7) RR 3-106, and ending at his age
9 or 10 (third and fourth grades).

       Most instances, of the 4 kinds of contact alleged, were defendant’s hand on
the child’s private part, “almost every other night” RR 3-108, but the child hand
contact on defendant also occurred “almost every other night.” RR 3-109 The



                                         6
child did not report these incidents out of fear, RR 3-110, but eventually told the
forensic examiner although not truthfully on the first interview. RR 3-111-112

      On cross-examination the child testified all incidents involving Appellant
were from the time he was in kindergarten (age 5-6 ending Spring of 2006) up to
but not including the 5th grade (age 9-10 in 4th grade, school year began September
2009, 2 years after effective date of the statute). He did often go into his own
bedroom after his bath at night, usually he went to Appellant’s bedroom at night.
RR 3-161, 165 The child was uncertain about and did not recall precise details of
the touching incidents. RR 3 167-172 At times he denied anything inappropriate
was happening. RR 3-176, 178, 181-182, 184, 192, 195, 199, 201

      On further questioning by the Prosecutor, the child testified

      1.    In the second grade (school year began around time statute was
passed, September 2007), Appellant and the child touched each other’s penis. RR
205-206

      2.    In the third grade (began September 2008), Appellant and the child
touched each other’s penis, normally Appellant touching child. RR 3-207

      3.    In the fourth grade (school year began September 2009, child age 9
years old), Appellant made child put his mouth on Appellant’s penis and Appellant
and the child continued touching each other’s penis. RR 3 207-208

      4.    Nothing further happened during the 5th grade year (began September
2010, 3 years after the statute passed). RR 3-208

      Rockwall police officer Christopher Cleveland testified briefly that Linda
Roan, the child’s Mother, called in a delayed sexual assault which he responded to
and he considered her as the outcry person as she gave him a basic overview of
                                         7
what occurred. RR 3 217,220 Ms. Roan was not determined to be the first outcry
witness in further trial proceedings (not contested here).

      Ms. Roan herself testified that the child slept with Appellant beginning at his
age 6 ½ -7 years until he was 9 years old, thus for approximately 2 ½ years, at a
frequency of about every other day (for 1 year prior to statute, 1½ years
subsequent) . RR 4 6-8 She told Officer Cleveland her suspicions upon being told
by F.B. (later to be extraneous offense witness against Appellant) that Appellant
had molested him as a child. RR 4-24-25

      She and the child moved from one residence to another in December 2009,
about the time the child reached the age of 10 years RR 4-87 and in the 4th grade,
and no further incidents occurred with Appellant after that move. RR 3-137

      The child’s Father testified that while awaiting trial and in jail Appellant
apologized to him for what he did. RR 4 127, 133 The Father took the apology as
an admission of guilt. RR 3-138 State Exhibit 10, responding.

      Janetta Michaels was a forensics interviewer for the Children’s Advocacy
Center who conducted 2 interviews with the child, on August 8, 2013, and October
24, 2013. The first interview was not considered satisfactory because of the child’s
reticence. RR 4 186-187 She testified the abuse occurred when the child was 5, 6,
7, 8 years old, roughly, in the first interview, RR 4-162, although 7, 8, 9 or 10 in
the second interview. RR 4-166 Appellant and the child touched each other, in all
4 ways alleged in the indictment, and it happened very frequently at the Rockwall
residence as well as on trips to Arizona. RR 4-166

      Heather Sims of the Dallas Child Advocacy Center, who had no contact with
the case or the witnesses, answered general questions related to grooming, reasons


                                          8
for delayed outcries, stages of disclosure of sexual abuse. details and reasons a
child may insist on “don’t remember” answers or outright lying

. RR 5 69-71, 80

      After court-ordered redactions, portions of the second forensic interview
were played for the jury. State Exhibit 9. Appellant’s counsel objected as hearsay;
the Court ruled admissible as redacted as showing the child’s statements to be
consistent with his testimony to rebut the express or implied defense in cross-
examination that the child was fabricating. RR 5 25-27



      The State’s last witness at guilt-innocence was F.B., who was 33 years of
age at the time and a resident of the State of California. He became acquainted
with Appellant in California in 1987 or 1988. RR 5-103 (Child complainant’s
Mother lived with the witness’ Father). The witness, when 7 or 8 years old,
usually on weekends, would sometimes go to Appellant’s house and sleep there
with him in the same bed. RR 5 105-106 Appellant and the witness gave oral sex
to each other. Appellant would ejaculate from the oral sex. RR 5 107-108 The
two likewise engaged in mutual masturbation when Appellant ejaculated.       RR 5
110-112

      These acts continued until the witness was 12 or 13, around 1993. RR 5-112
They happened 1-3 times a weekend, in California and sometimes on trips to
Nevada or Arizona. RR 5-116

      The witness had told a friend and girlfriend when he was “way younger” RR
5-122 and told his Mother, brother, sister and 2 other family members including
the child complainant’s Mother in the previous year 2013. RR 5 123-124 The 2

                                        9
friends were told of these incidents when he was 15 or 16 (1995-1996) and another
friend 3-4 years ago (2010-2011). RR 5-126

      The acts testified to happened possibly hundreds of times RR 5-138. The
witnesses’ testimony consists of pages 100-145. RR 5

      The F.B. testimony was a major issue at the trial. The Trial Court conducted
several non-jury discussions regarding it. Prior to beginning of testimony, a non-
jury hearing was begun to initiate determination of admissibility of the F.B.
testimony under Article 38.37 T.C.C.P. RR 2-223 Defense counsel stated an issue
of the statute’s constitutionality and the Court stated it would hear witnesses before
deciding anything under Article 38.37 at which point F.B. was called to present his
testimony outside the presence of the jury. RR 2-224 He testified he was 33 years
of age, a resident of California and that Appellant began a relationship with him
when the witness was 6 or 7 years old, in Los Angeles County. RR 2-230 F.B.
would go to Appellant’s residence and sleep there in the same bed with Appellant.
RR 2-232 Appellant molested him consisting of mutual masturbation and oral sex
RR 2-235-238 to the point of Appellant ejaculating. These incidents happened in
1986 or 1987 in Arizona, Nevada and California. F.B. remained silent about these
events for 20 years, RR 2-243 and they ended in 1993 when he was 13 years old.
RR 2 244. On weekends when he was with Appellant, between the ages of 6-13,
the incidents happened 1-3 times per weekend, varying. RR 2-248 Berry told his
Alcoholics Anonymous sponsor about these occurrences 2 years previous to the
trial testimony, RR 2-249, and told his Mother the year previous to the trial RR 2-
252, and then told the child complainant’s Mother. RR 2-254

      Continuing the non-jury hearing, Defense Counsel argued that the evidence
did not support a finding by the Trial Court that a jury could find guilt on the


                                         10
offenses testified to beyond a reasonable doubt and that the out-of-state element of
the witness and the offenses raised issues of effective assistance of counsel,
reasonable opportunity for cross-examination and right to present a defense and
denial of due process.    RR 2 258-260 The Prosecutor argued that the State
complied with Article 38.37 requirements in giving proper notice to the defense of
the extraneous offenses and Defense Counsel had no objection to the notice given.
RR 2-261-262

      The Trial Court withheld a ruling until it had heard the testimony of the
alleged victim. RR 3-50-51

      These proceedings relating to the Berry extraneous offense occupy the
appellate record form RR 2-223-278 and RR 3-5-51, to this point in the trial.

      Defense counsel here raised the argument that the statutory requirement that
30-day advance notice be given by the State of all extraneous offenses intended to
be offered under Section 1 and Section 2 meant that the determination of
admissibility should be done prior to trial so counsel would then know how to
prepare for opening statement and trial in general. The Trial Court found no
statutory requirement on timing of the admissibility determination other than prior
to introduction of the testimony. RR 3-50

      In between witnesses, the Court again took up Article 38.37 issues related to
the witness F.B. RR 5-6 The Prosecutor argued that Berry testified (non-jury) that
Appellant committed the same sexual offenses against him that were committed
against the child complainant, i.e. aggravated sexual assaults and indecency by
contact offenses as detailed in the indictment and that such offenses against F.B.
were proved beyond a reasonable doubt and should be admitted under 38.37
Section 2. RR 5-7 Defense counsel responded that the offenses were not proved

                                        11
beyond a reasonable doubt i.e. Court could not find that the evidence supported
such a jury finding. Further, that the statute denied due process in allowing out-of-
state extraneous offenses and that the applicable out-of-state laws were not known
and that the out-of-state element denied Appellant effective assistance of counsel.
RR 5-10 Further, that Texas Evidence Rule 403 requires a balancing between
probative and prejudicial effect and the prejudicial nature of the evidence should
preclude admissibility.     RR 5-11 The extraneous offenses were allegedly
committed 20 years ago which effectively raised the objection of remoteness.
Counsel argued that the statute violated the constitutional prohibition of ex post
facto laws and lessened the burden of proving the primary offense beyond a
reasonable doubt. RR 5-12 Further, that a ruling on this issue during the trial
prevented counsel from preparing adequately and knowledgeably Appellant’s
defense for the case. RR 5-15-16

      The Prosecutor responded that the offenses listed in Section 2 did not require
proof of guilt under the laws of the State where committed because the offenses
would be offenses no matter where committed. RR 5-19-20

      The Trial Court ruled that a hearing during the trial was timely as the Court
could not determine the admissibility issue properly without first hearing the
content of trial testimony and that any extraneous offense would not be the basis of
a conviction on the primary offense. RR 5-21-22

      The Trial Court believed that the statute contained its own balancing test,
namely bearing on relevant matters and the requirement of a finding of sufficiency
of the evidence to support a jury finding of guilt beyond a reasonable doubt. RR 5-
22 The final ruling was that the Court found that the evidence related to an offense
that could be found in Chapter 21 of the Texas Penal Code (Continuous Sexual

                                         12
Abuse of a Child Section 21.02 and Indecency with a Child Section 21.11), that the
testimony might be relevant to matters such as the character of the Defendant or
any acts performed in conformity with the character of the Defendant and that the
evidence would support a jury finding that the separate offense were committed
beyond a reasonable doubt. RR 5-24 This portion of the trial proceedings occupies
the appellate record from RR 5-6 to 5-25. The Prosecutor in jury argument at guilt-
innocence rebuttal stated that the evidence showed the same acts committed
against both F.B. and the child, “that it’s the same pattern, this is a pattern, this is
who he is,” RR 5-189, similar to testimony on direct from F.B. that he was
testifying to support the child and to show it as a pattern, that the child was not the
first and probably wouldn’t be the last. “I’m here to show a pattern and it’s been
going on for a long time.” RR 5-130




                                          13
                       SUMMARY OF THE ARGUMENT

      Appellant argues that he has been denied a fair trial, denied an opportunity
to present a defense to the charges and to the extraneous offenses; denied due
process the right of confrontation, right to compulsory process and effective
representation of counsel, contrary to the United States Constitution, Fifth, Sixth
and Fourteenth Amendments, and Texas Constitution Article I, Sections 10 and 19.




                                        14
                                    ARGUMENT

      Standard of Review for Constitutionality of Statute. The Court reviews the
constitutionality of a statute in light of the presumption of the statute’s validity. It
must presume that the Legislature did not act unreasonably or arbitrarily in
enacting the statute. Appellant must show that the statute is unconstitutional. Ex
Parte Granviel 561 SW2d 503 (Tex. Crim. App. 1978); Jenkins v. State 993 SW2d
133 (Tex. App. Tyler, 1999, pet. ref.)

      Article 38.37 Texas Code of Criminal Procedure was substantially amended
effective September 1, 2013, for any criminal proceeding commencing after its
effective date. Appellant was indicted on February 12, 2014.

      The provisions of the law applicable to this appeal are:

      Section 1….
      Section 2(a). Subsection (b) applies only to the trial of a defendant for:
      (1)    an offense under any of the following provisions of the Penal Code:
      (A) Section 20A.02, if punishable as a felony of the first degree under
Section 20A.02(b)(1) (Sex Trafficking of a Child);
      (B)    Section 21.02 (Continuous Sexual Abuse of Young Child or
Children);
      (C)    Section 21.11 (Indecency with a Child);
      (D)    Section 22.011(a)(2) (Sexual Assault of a Child);
      (E)    Sections 22.021(a)(1)(B) and (2) (Aggravated Sexual Assault of a
Child);
      (F)    Section 33.021 (Online Solicitation of a Minor);
      (G)    Section 43.25 (Sexual Performance by a Child); or
      (H)    Section 43.26 (Possession or Promotion of Child Pornography), Penal
Code; or
                                          15
     (2) an attempt or conspiracy to commit an offense described by
Subsection (1)
      (b) Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and
subject to Section 2-a, evidence that the defendant has committed a separate
offense described by Subsection (a)(1) or (2) may be admitted in the trial of an
alleged offense described by Subsection (a)(1) or (2) for any bearing the evidence
has on relevant matters, including the character of the defendant and acts
performed in conformity with the character of the defendant.
        Section 2-a Before evidence described by Section 2 may be introduced, the
trial judge must:
      (1) determine that the evidence likely to be admitted at trial will be
adequate to support a finding by the jury that the defendant committed the separate
offense beyond a reasonable doubt; and
      (2)   conduct a hearing out of the presence of the jury for that purpose.
       Section 3. The state shall give the defendant notice of the state’s intent to
introduce in the case in chief evidence described by Section 1 or 2 not later than
the 30th day before the date of the defendant’s trial.
      Section 4. This article does not limit the admissibility of evidence of
extraneous crimes, wrongs, or acts under any other applicable law.
      Prior to these 2013 amendments to Article 38.37 the admissibility of
extraneous offenses at the guilt-innocence stage of a trial was generally governed
by Texas Rule of Evidence 404:

      “(a) Character Evidence Generally. Evidence of a person’s character or
character trait is not admissible for the purpose of proving action in conformity
therewith on a particular occasion …
       (b) Other Crimes, Wrongs, Acts. Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident, subject to prescribed notice upon request.”
      The rationale for the general rule of exclusion of a defendant’s bad character
was not based on irrelevance. As stated by U.S. Supreme Court Justice Jackson:
                                        16
“Courts that follow the common-law tradition almost unanimously have come to
disallow resort by the prosecution to any kind of evidence of a defendant’s evil
character to establish a probability of his guilt. Not that the law invests the
defendant with a presumption of good character, but it simply closes the whole
matter of character, disposition and reputation on the prosecution’s case-in-chief.
The state may not show defendant’s prior trouble with the law, specific criminal
acts, or ill name among his neighbors, even though such facts might logically be
persuasive that he is by propensity a probable perpetrator of the crime. The inquiry
is not rejected because character is irrelevant; on the contrary, it is said to weigh
too much with the jury and to so over persuade them as to prejudge one with a bad
general record and deny him a fair opportunity to defend against a particular
charge. The overriding policy of excluding such evidence, despite its admitted
probative value, is the practical experience that its disallowance tends to prevent
confusion of issues, unfair surprise and undue prejudice.” Michelson vs. United
States 335 U.S. 469 (1948)

      Such evidence, sometimes called “propensity evidence,” is inherently
prejudicial and inflammatory as a matter of law. Montgomery v. State 810 SW2d
372 (Tex. Crim. App. 1990) Evidence of bad character may distract the jury from
considering whether the accused is guilty of the crime charged and tempt it to
convict an individual for general bad behavior. Galvez v. State 962 SW2d 203
(Tex. App. Austin 1998, pet. ref.)

      The defendant has a legal right not to be tried for being a criminal generally.
Crank v. State 761 SW2d 328 (Tex. Crim. App. 1988), overruled on other grounds
Alford v. State 866 SW2d 619 (Tex. Crim. App. 1993) The law has generally
recognized that the exclusion from evidence of extraneous offenses or acts rightly
protected an accused from being convicted because he is a “bad person,” and that a

                                         17
defendant is entitled to be tried on the accusation in the State’s pleadings and not
for a collateral crime. Templin v. State 711 SW2d 30 (Tex. Crim. App. 1986);
Albrecht v. State 486 SW2d 97 (Tex. Crim. App. 1972)

      The 38.37 changes removed the protections and safeguards provided by
prior law and which were essentially matters of due process. Under 38.37 Section
2, a separate offense (not other crimes, wrongs or acts as permitted by Section 1)
if within the list of offenses given can now be admitted for any bearing the
evidence has on relevant matters, including the character of the defendant and acts
performed in conformity with the character of the defendant. This phrase, together
with the prefacing phrase to Section 2(b), “Notwithstanding Rules 404 and 405,
Texas Rules of Evidence…” evidence clearly the Legislature’s intention to
substantially change the law of extraneous offense admissibility in the child sex
abuse cases listed in Section 2(a), including the offense in the present case,
Continuous Sexual Abuse of Young Child, Penal Code Section 21.02

      While the statute expressly abrogates Evidence Rules 404 and 405, cases
construing 38.37 have held that the statute likewise supersedes Evidence Rule 402:
“All relevant evidence is admissible, except as otherwise provided by the
Constitution, by statute, by these rules, or by other rules prescribed pursuant to
statutory authority. Evidence which is not relevant is inadmissible.”      Hinds v.
State 970 SW2d 33 (Tex. App. Dallas, 1998, no pet.); Hitt v. State 53 SW3d 697
(Tex. App. Austin 2001, pet. ref.); Conrad v. State 10 SW3d 43 (Tex. App.
Texarkana 1999, no pet.); Howland v. State 966 SW2d 98 (Tex. App. Houston 1st
Dist. 1998, affirmed other grounds 990 SW2d 274).       The rationale is that 38.37
sets its own standard for admissibility and prevails over an evidence rule to the
extent of any conflict.


                                        18
        Most cases construing Section 1 of 38.37 have held that Evidence Rule 403
has not been superseded by the statute. That rule provides that relevant evidence
may nevertheless be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative evidence.
Wheeler v. State 67 SW3d 879 (Tex. Crim. App. 2002)

        If Rule 403 must still be applied to this issue, nevertheless Rule 403 does not
protect the defendant from prejudicial testimony. The testimony must be unfairly
prejudicial and a Rule 403 analysis generally favors admissibility and is
unfavorable to exclusion. Hammer v. State 296 SW3d 555 (Tex. Crim. App.
2009)

        Some discussion in recent cases argue that 38.37 supersedes Rule 403
indirectly or impliedly, as it does Rules 404 and 405 expressly, on the theory that
38.37 sets up its own balancing test for admissibility. The article’s wording is
open to that interpretation in allowing admission of the extraneous offenses for any
bearing the evidence has on relevant matters including character of the defendant
and acts performed in conformity therewith. The words “any bearing” seem to
exclude a meaning of “any relevance” and allow admissibility without any
specified or apparent limitation.      The relevance required refers to “relevant
matters” and the wording seems to exclude a requirement that the evidence be
“relevant” to other relevant matters and simply requires a bearing upon relevant
matters and therefore appears to be an unlimited standard without restriction.

        It is clear that “Notwithstanding Rules 404 and 405….” eliminates any
previous requirement on the prosecution that it present any of the Rule 404(b)



                                          19
exceptions (motive, opportunity, intent, etc.) in order to avoid the prohibition of
character or propensity evidence.

      On its face, Article 38.37 eliminates one of the cornerstones of due process
universally recognized prior to the statute, and does so directly and specifically.
The public policy served by the change is obvious but the conflict with
constitutional due process principles is little less so. To advance its determination
to punish child sex abuse more severely and effectively, the legislature has
impinged on long-established constitutional principles of due process.

                         Sixth Amendment Right to Counsel

      The United States Constitution, Fifth and Sixth and Fourteenth Amendments
and Texas Constitution Article I Section 10, grant the right of counsel in all
criminal prosecutions and the right extends to reasonably effective assistance of
counsel. Strickland v. Washington 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed. 2nd 674
(1984) Any claim that effective assistance of counsel has been denied raises the
question of whether the judicial process has been undermined to the extent that the
trial cannot be relied on as having produced a just result or a fair trial.

      The context of the issue is normally accusatory against counsel, but
Appellant here argues that he has been denied effective assistance of counsel by
the circumstances through which Article 38.37 has been applied in this case.

      Numerous extraneous offenses allegedly committed against the witness F.B.
by Appellant were admitted into evidence during the State’s case-in-chief under
the authority of Article 38.37 Section 2.

      The State gave notice of the offenses on July 3, 2014, 31 days in advance of
trial (CR 18), and filed amended motions on that same day, (CR 24), on August 1,

                                            20
2014 (CR 47), on August 4, 2014 (CR 55), and on that same day again (CR 59).
Some of the offenses listed related to the child complainant and are not relevant to
the present point.

      The first notice on July 3, 2014, listed 9 sexual abuse allegations regarding
Appellant and F.B. between May 6, 1987 and May 6, 1993, in Los Angeles County
California and Mohave County, Arizona. (CR 18)

      The second notice appears to contain the same offense allegations as the
first. (CR 24) The third, fourth and fifth notices did not change the allegations
relevant to this point. (CR 47, 55, 59)

      In general terms the relevant allegations were that Appellant and F.B. while
a child under 14 years of age, engaged in contact or penetration of the mouth of
one with the sexual organ of the other, in Los Angeles County, California, contact
of the hand of one with the sexual organ of the other, in Los Angeles County, and
then repeated the same four (4) offenses as having occurred in Mohave County,
Arizona.   (CR 17)     These same four offenses were likewise alleged in the
indictment as having been committed upon the child complainant. CR 7

      F.B. remained a California resident at the time of trial (RR 5-101) and was
33 years of age, the allegations therefore having occurred in California and
Arizona when he was 6-12 years of age, i.e. 21-27 years prior to trial.

      Once the trial judge conducted a non-jury hearing and determined that the
evidence likely to be admitted would be adequate to support a jury finding that
Appellant committed the separate offenses against F.B. beyond a reasonable doubt,
and gave the jury limiting instructions regarding consideration of the evidence, the
jury was then free to consider the offenses as they related to the character of the
Appellant. In short, through application of 38.37, Section 2 the jury was free to
                                          21
consider the propensity of Appellant to be a child abuser in general and to convict
him accordingly, the supporting evidence of which was remote in time and
distance.

      Trial counsel had no reasonable opportunity to defend against the testimony
of these extraneous offenses. The witness had no apparent contacts with the State
of Texas other than his appearance at trial. The witness did testify that he had
mentioned the offenses to teenage friends and later to his parole officer but those
unnamed possible sources of information were not known of by defense counsel
prior to the trial testimony and likewise were out-of-state residents.

      The Sixth Amendment Right of Confrontation and Cross-Examination was
partially satisfied in this case by counsel’s opportunity to cross-examine the
witness. Under the circumstances of this case, however, counsel had no reasonable
access to independent witnesses who might have known facts tending the show the
witness’s bias or motive in testifying as he did, nor did counsel have reasonable
access to any source of information which may have shown the witness had made
statements inconsistent with his trial testimony. Sixth Amendment U.S.
Constitution, Article I, Section 10, Texas Constitution.

      Appellant would be entitled, as a matter of confrontation, to introduce
extrinsic evidence bearing on the witness’s credibility, motive, bias, inconsistency,
if such evidence were available to him; however, the remoteness in time and
distance effectively precluded any investigation which might have developed such
evidence. That very deprivation likewise precludes him now from describing what
the evidence would be. An accused facing a 25-99 year possible sentence should
not as a matter of constitutional right be left to wonder at the nature of the defense
he would have had at trial to defend against this propensity evidence. Pointer v.


                                          22
Texas 380 U.S. 400, 85 S.Ct. 1065, 12 L.Ed 2d 923 (1965); Davis v. Alaska 415
U.S. 308 (1974); Garcia v. State 149 SW3d 135 (Tex. Crim. App. 2004); Carroll v.
State 916 SW2d 494 (Tex. Crim. App. 1996); Hammer, supra; Billodeaux v. State
277 SW3d 34 (Tex. Crim. App. 2009) Texas Rules of Evidence 404(a)(3), 608,
613 (extrinsic evidence via reputation or opinion testimony) Koenler v. State 679
SW2d 6 (Tex. Crim. App. 1984)

      Reputation or opinion evidence to impeach or confront an adverse witness is
not reasonably available to the defense if the witnesses to such are not known at
the time of trial and not available if known because residents of California. Article
38.37 and its application to this case allow this deprivation to the Appellant in this
case, while at the same time the State’s case is not only limited by the problem but
actually enhanced if permitted.

                                  Compulsory Process

      Had counsel somehow been made aware of any favorable witnesses in
California he would not have been able to use compulsory process to obtain their
testimony, a right otherwise granted to an accused by Article I, Section 10, Texas
Constitution.

                           Notice of Extraneous Offenses

      The notice given by the State to defense counsel the month prior to trial, as
required by the statute, stated that the offenses noticed related to F.B. were
described as being pursuant to a continuing course of criminal activity, apparently
an intention to show that the “activity” constituted the same offense as that alleged
in the indictment CR 20-22. Defense counsel raised at the jury charge conference
issues complicating this matter. The result then reached was to eliminate any
reference to continuous sexual assault related to the extraneous offenses. The
                                         23
Texas statute for continuous sexual assault as charged was not in effect during any
of the times testified to by F.B. (statute date September 1, 2007, F.B. incidents
allegedly from 1987-1993. RR 5 156-160)

                          State Criminal Law Applicable

      As to the underlying acts described in the State notice, which Appellant
concedes are the same acts alleged against Appellant in the case, the question
presents itself as to whether they were required to be shown as criminal offenses
under the laws of the State of California or Arizona, at the time, or whether the acts
allegedly committed in California or Arizona can legally be deemed offenses
according to the Texas criminal law at the time. The concept of a California
resident violating Texas criminal offense law 21-27 years previously should not be
considered valid and would represent a departure from the criminal justice system
as we know it.

      The Prosecutor argued at one point in the discussions about admissibility
that F.B. testified to being raped by the Defendant in Arizona and California, that
rape was an offense in all jurisdictions and that the State did not need to prove
offenses under California law. RR 5 19-20 If the State is correct on that point,
Appellant argues that due process has been denied if acts done in one state can be
considered criminal offenses in another state.

      If on the other hand, the criminal law of the state where the acts occurred is
the measure of the offense, as pointed out by counsel, neither he nor anyone else
involved in the case was familiar with the California law on the subject. RR 5-17,
158 (One-half of the extraneous offenses allegedly occurred in a third state,
Arizona).



                                         24
      Counsel further argued that if the criminal offense law of another state was
the proper standard to apply, the Trial Court could not properly perform its duty of
determining that evidence was adequate to support a jury finding that the separate
offense was proved beyond a reasonable doubt, as the elements of the crime
(assuming a crime did occur) according to California, or Arizona, law were not
before the Court. RR 5-9,17-18

      The appellate record contains no California or Arizona law on general
principles of criminal responsibility such as Chapter 6 of the Texas Penal Code.
Further, Section 1.04, Texas Penal Code precludes Texas jurisdiction over an
offense committed outside Texas (with exceptions not applicable here). It can be
argued that a distinction exists between prosecution of an offense on the one hand
and use of an extraneous offense as evidence; it should be recognized however that
the F.B. testimony was admitted for jury consideration at the guilt-innocence stage
of Appellant’s trial and contributed to his conviction and punishment.

      Counsel also mentioned that the statute of limitations applicable to the
extraneous offenses were relevant to the admissibility question but nevertheless
were not known as to the other states, RR 5-9, and the final result was that
Appellant had been denied effective assistance of counsel by applying 38.37 and
allowing the F.B. extraneous evidence to be admitted. RR 5-10

      To comply with the concept of due process the statute should specify what
state criminal law should be applied when the acts sought to be admitted did not
occur within the State of Texas, including some resolution of whether any statute
of limitations should or should not be taken into account in determining
admissibility.   Admissibility should not be subject to the state law questions
presented in this case. Further, considering that courts differ on whether the statute


                                         25
does or does not supersede Evidence Rule 403, because it has its own standard of
relevancy and its own balancing test, that question should be clarified by the
statute in the same way the statute clarified application of Rules 404 and 405. A
related question is whether the words “any bearing” in the article do or do not
contain any relevance requirements or limitations. The wording “any bearing”
raises more questions as to the meaning of the statute than it answers.

      Because Section 1 of Article 38.37 has been effective longer than Section 2,
Section 1 has been subject to constitutionality questions in more cases and
apparently withstood all. The 2 sections are substantially different in subject
matter. Section 1 is limited to extraneous crimes, wrongs or acts committed by the
defendant against the child who is the victim of the primary offense.

      Section 2 applies to any separate offense committed by the defendant within
the specified list of child sex abuse offenses. An act or crime against the child
victim in the case will inherently be closer to relevance than will be an offense
against another child. Extraneous act evidence under Section 1 is admitted for the
purpose of showing the state of mind of the defendant and the child and the
previous and subsequent relationship between the defendant and the child. Both
purposes are reasonable and logical, and do not depart substantially from prior law
because the acts or crimes could usually be shown to come within one or more of
the exceptions to exclusion in Rule 404(b) such as motive, intent or opportunity.

      Section 2 on the other hand represents a drastic change in the prior law of
extraneous offenses in that it eliminates the single most important reason under
prior law for excluding the evidence, a reason justified in the strongest language in
cases too numerous to count and a reason based primarily on the fundamental
fairness required by due process.


                                         26
      Penal Code Section 2.01 and T.C.C.P. 38.03 both mandate a presumption of
innocence for an accused. That presumption does not exist to the extent that
Article 38.37 allows the jury to consider propensity evidence in the determination
of guilt/innocence on the charged offense. Although 38.37 requires a finding that
the separate offense be supported by evidence satisfying the beyond reasonable
doubt burden of proof, the extraneous offense does not enjoy the same presumption
according to the actual wording of the statute.

      A limiting instruction is normally given when evidence is admitted for any
purpose other than generally, both when the evidence is initially admitted and in
the jury charge. The Trial Court properly did so in this case. Texas Evidence Rule
105 RR 5-100, CR 73 The Defense cannot reasonably dispense with the limiting
instruction for extraneous offenses and allow limited purpose evidence to be
admitted for general purposes.       However, in the present case, the limiting
instruction necessarily contains the language of the new law, namely that the
extraneous evidence may only be considered on the subject of the defendant’s
propensity to commit sexual abuse of children. The resulting effect obviously is
that the jury is told very specifically that it may consider inflammatory, prejudicial
propensity evidence in determining guilt or innocence.         Application of 38.37
therefore removes any advantage or strategy otherwise available to the defense
from limiting instructions. Ex Parte Varelas 45 SW3d 627 (Tex. Crim. App. 2001)
The net effect is a reversal of the purpose of the limiting instruction from
protecting the defendant to favor the State instead by telling the jury propensity
evidence is now proper and it is permissible to convict the defendant for being a
pedophile or criminal generally. Michelson, supra

      The overall net effect is that the extraneous offense admissibility denies a
defendant a fair opportunity to defend himself against the charged offense. United

                                         27
States v. Foskey 636 F.2d 517 (D.C. Cir. 1980) The opportunity is denied to an
even greater extent when 38.37 allows the extraneous offense to be admitted
despite its foreign origin.

      Appellant does not present his point as one involving an evidentiary ruling
only, however; if the factors stated in Montgomery, supra, were to be applied to
this case it requires to be recognized that the State, needing to prove 2 acts of
sexual abuse, and having proved “every other night” over a period of 2 years or
more, had no need for the extraneous F.B. testimony; it is not open to argument to
say that the jury could only have used the F.B. testimony to decide the primary
issue in an irrational, emotional way; the time devoted to the F.B. evidence unduly
delayed and interfered with the orderly progression of the trial; the evidence of acts
25 years previously to another person had little probative value to the primary
issue. Under the typical analysis of the propriety of extraneous act evidence prior
to Article 38.37 it likewise would be observed that acts 25 years in the past were
subject to the objection of remoteness, thus decreasing probative value.
Gigliobianco vs. State 210 SW3d 637 (Tex. Crim. App. 2006); Colvin v. State 54
SW3d 82 (Tex. App. Texarkana, 2001, no pet.); Bachover v. State 633 SW2d 869
(Tex. Crim. App. 1982) It should be noted that the State’s evidence was to the
effect that both the child and F.B. had been sexually abused multiple times when
the required element was 2 times or more. The volume of extraneous F.B. offenses
is an independent source of objection to that evidence. Pawlak v. State 420 SW3d
807 (Tex. Crim. App. 2013.

      For general application of the constitutional principles dismissed see:
Pointer, supra, Ex Parte Scott 581 SW2d 181 (Tex. Crim. App. 1979); Mellinger v.
City of Houston 3 S.W. 249 (188)


                                         28
                                  Error Analysis

      The case presents constitutional issues and error under the Fifth, Sixth and
Fourteenth Amendments, U.S. Constitution and Article I, Section10 and Section 19
of the Texas Constitution.    The Court of Appeals must reverse under those
circumstances unless it determines beyond a reasonable doubt that the error did not
contribute to the conviction or punishment. T.R.A.P. 44.2(a)

      The case law prior to Article 38.37 made clear that propensity evidence was
generally not permitted because it had a direct and substantial inflammatory
influence on the jury and therefore would contribute to the conviction. Since the
punishment was assessed at 99 years, it is difficult to argue that the propensity
evidence did not contribute to the severe punishment.




                                        29
                         CONCLUSION AND PRAYER

      In its application to the facts of this case, and especially the issues
surrounding the out-of-state element of the extraneous offenses, Article 38.37 has
denied Appellant specific and due process constitutional rights and in doing so has
deprived him of a fair trial and the right to defend himself. The legislature has not
properly addressed the issues presented by the circumstances of this particular
case. Appellant requests dismissal, reversal and rendition or reversal and remand.

                                              Respectfully submitted,



                                              /s/ Ted Sansom

                                              Ted Sansom

                                              P.O. Box 1178

                                              Rockwall, Texas 75087

                                              972-771-2410

                                              FAX 972-771-1946

                                              State Bar No. 17642000

                                              Court-appointed attorney on appeal

                                              for Defendant




                                         30
                          CERTIFICATE OF DELIVERY

      I certify that a true and correct copy of the above and foregoing Appellant’s
Brief was on this 27th day of March 2015, sent by U.S. mail, postage prepaid and
properly addressed to the Rockwall County District Attorney.



                                              /s/ Ted Sansom



                        CERTIFICATE OF COMPLIANCE

      Relying on the word count function in the Microsoft Word software used to
produce Appellant’s Brief, I certify that the number of words in this brief is 7137.



                                              /s/ Ted Sansom




                                         31
