      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-17-00025-CR
                                       NO. 03-17-00026-CR
                                       NO. 03-17-00027-CR



                                    Charles Fischer, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
            NOS. D-1-DC-12-900145, D-1-DC-12-900147 & D-1-DC-16-904072
                 HONORABLE KAREN SAGE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Charles Fischer appeals his convictions on multiple indictments for six counts of

indecency with a child by contact, four counts of sexual assault of a child, and three counts of

indecency with a child by exposure committed against D.W., J.G., and A.M. when Fischer was their

treating psychiatrist at Austin State Hospital. See Tex. Penal Code § 21.11(a)(1), (2).1 After a three-

and-a-half week trial, the jury assessed Fischer’s punishment at twenty years’ imprisonment for each


       1
          Charges in three causes were consolidated for trial. In cause number D-1-DC-12-900145,
the jury convicted Fischer of two counts of indecency with a child by contact and one count of
indecency with a child by exposure against D.W. In cause number D-1-DC-12-900147, the jury
convicted Fischer of two counts of indecency with a child by contact, one count of indecency with
a child by exposure, and four counts of sexual assault of a child against J.G. In cause number
D-1-DC-16-904072, the jury convicted Fischer of two counts of indecency with a child and one
count of one count of indecency with a child by exposure against A.M.
count of indecency with a child by sexual contact; twenty years’ imprisonment for each count of

sexual assault of a child;2 and ten years’ imprisonment for each count of indecency with a child by

exposure, but recommended suspension of the ten-year sentences and placement on community

supervision.3 The district court rendered judgments of conviction on the jury’s verdicts.

               In sixteen issues on appeal, Fischer contends that the district court violated his

constitutional rights to an impartial jury, to counsel, and to effective assistance of counsel by

preventing his attorney from asking the venire two questions: whether they could maintain the

presumption of innocence, and whether they could consider probation, in light of a multiplicity of

accusations. Fischer also contends that the statute concerning evidence of extraneous acts or

offenses in article 38.37 of the Texas Code of Criminal Procedure is unconstitutional on its face and

as applied to him, that the district court abused its discretion by admitting extraneous evidence of

sexual misconduct, and that article 38.37 violates the Ex Post Facto Clause. We will affirm the

district court’s judgments of conviction.


                                         BACKGROUND

               The jury heard that Charles Fischer committed the charged offenses against D.W.,

J.G., and A.M. when Fischer was their treating psychiatrist at Austin State Hospital. Fischer’s

patients in the Child and Adolescent Psychiatric Services Unit were primarily adolescent boys with



       2
          In cause number D-1-DC-12-900147, involving the sexual assault of a child offenses
against J.G., count 3 was subsumed by count 1, and count 5 was subsumed by count 4.
       3
        The district court ordered that the sentences in cause numbers D-1-DC-16-900145 and
D-1-DC-16-904072 would run concurrently. But the court ordered that the sentences in cause
number D-1-DC-16-900147 would run consecutively to the sentences in the other two causes.

                                                 2
severe behavioral problems, intellectual disabilities, mental illness, depression, pervasive

developmental disorders, or a serious history of physical, sexual, and mental abuse. In 2011, the

Department of Family and Protective Services investigated a sexual abuse allegation made against

Fischer. After the Department confirmed that allegation, the Austin Police Department reexamined

other allegations against Fischer, eventually resulting in his charges for the offenses at issue here.4

                During Fischer’s trial for the offenses against D.W., J.G., and A.M., the jury heard

testimony from four additional victims, Z.L., W.C., B.R., and D.W.R. The district court admitted

evidence from those four victims under article 38.37 of the Code of Criminal Procedure. At the

conclusion of the trial, the jury convicted Fischer of six counts of indecency with a child by contact,

four counts of sexual assault of a child, and three counts of indecency with a child by exposure and

assessed punishment. The district court rendered judgments in accordance with the jury’s verdicts.

Fischer filed a motion for new trial that was overruled by operation of law. This appeal followed.


                                           DISCUSSION

Issues 1-12: Voir dire questions as to presumption of innocence and community supervision

                In his first twelve issues, Fischer contends that the district court violated his

constitutional rights to an impartial jury, to counsel, and to effective assistance of counsel by

preventing his attorney from asking the venire two questions: whether they could maintain the

presumption of innocence, and whether they could consider the minimum sentence, in light of a

multiplicity of accusations.5 We review a trial court’s ruling limiting voir dire questioning for an

       4
           Charges concerning a fourth victim, B.W., were dismissed because B.W. refused to testify.
       5
           The court split the 150-person panel into two groups of 75 for the sake of convenience.

                                                  3
abuse of discretion. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002); see Samaripas v.

State, 454 S.W.3d 1, 5 (Tex. Crim. App. 2014) (“A trial court has broad discretion over the voir dire

process, including setting reasonable limits and determining the propriety of a particular question.”).

In this context, a trial court abuses its discretion only when a proper question about a proper area of

inquiry is prohibited. Samaripas, 454 S.W.3d at 5. Further, the Texas Court of Criminal Appeals

has concluded that even if a voir dire question is erroneously denied, no harm results when the record

reflects that counsel was able to ask the venire a question that was “essentially the same” as the

denied question or that elicited the same information that the denied question sought to elicit. Woods

v. State, 152 S.W.3d 105, 110 (Tex. Crim. App. 2004); Rachal v. State, 917 S.W.2d 799, 815 (Tex.

Crim. App. 1996).

               1. Presumption of innocence

               Here, defense counsel proposed asking the venire whether they could maintain the

presumption of innocence given the many charges against him. After hearing the parties’ arguments,

the court refused defense counsel’s precise question but allowed him to ask other questions that were

nearly the same as counsel’s proposed question:


       [Defense counsel]: Solely on the issue of presumption of innocence, I propose to
                          inform the jury of how many charges he’s charged with, the title
                          of charges, not go into the elements or any facts of the charges,
                          and then question them in light of the fact that he is charged
                          with that many charges, can you still maintain the presumption
                          of innocence.

       ....

       THE COURT:            What if—here’s what I’m willing to do: Ask them about the
                             presumption of innocence, and without going into specifically

                                                  4
                            the number of counts, what if there [was] more than one count,
                            does that change your view. Without discussing specifically the
                            number of counts, but making it clear that the presumption
                            applies, like you say, whether it’s zero to a hundred counts. I
                            mean, you can say it applies if there’s more than—and if there’s
                            more than one count, without going specifically into the number
                            of counts, but putting it out there.

       ....

       [Defense counsel]: Let me be very clear about the question I propose. I propose to
                          ask the jurors, again, explain the law to them on presumption of
                          innocence, that the charging instruments are not evidence that
                          the fact that a person has been indicted and charged is not
                          evidence of guilt. The law is they have to maintain presumption
                          of innocence. Even though someone is indicted, that
                          presumption applies regardless of how many charges there are
                          in the indictment. In this case, there are—I would list the
                          charges by name only, not the elements, no facts, and I would
                          then ask the jury, [“]In light of the fact that those charges are
                          against the defendant in this case, can you still maintain the
                          presumption of innocence?[”]

        ....

       THE COURT:           I think that’s going to create the impression there are more
                            victims. I mean, is there—would you not be okay by saying,
                            [“]The presumption applies no matter how many counts[”] and
                            without asking for a commitment question and just ask them if
                            it would change their view if there were numerous counts[?]

       [Defense counsel]: I think I’m entitled to ask the questions I just stated into the
                          record.

       THE COURT:           I’ll allow you to ask the question I just stated.


During voir dire, defense counsel asked several variations of the presumption question, including

with reference to “multiple offenses” and “multiple charges,” as he had proposed:




                                                 5
       •    This is kind of a tough question, but, again, I want to ask you to be honest about
            it. Frankly, it scares me to death. The presumption of innocence applies when
            a person is charged with one charge in a trial or whether they’re charged with a
            hundred. And my fear is that if someone is charged with more than one offense,
            that may affect the presumption of innocence. And if it does, that’s fine. There’s
            nothing wrong with that. It may be human nature. But I want to hear your
            answers to that. I’ll start down here. Number 1, if someone is charged with more
            than one offense, do you feel like because they’re charged with multiple offenses
            that they may be guilty to some degree just because they’re charged with more
            than one?

       •    Do you think if somebody is charged with more than [one] offense, whether it’s
            two or a hundred, that if you find out they are charged with more than one, you
            might think they were guilty of something just because they were charged—6

       •    Just the fact there are multiple charges, would that affect the presumption of
            innocence for you?

       •    Can you separate out the charges and just say if the person is accused of one or
            a hundred charges, how would that affect your view of whether he might be
            guilty just based on the charges?

       •    I just want to talk with you about—several of you said, well, depends on the
            circumstances. . . Can you think of circumstances where there could be multiple
            charges, multiple victims, and be false outcries?

       •    If a person is charged with multiple charges, the presumption of innocence still
            applies. . . . But what I’d like to know from you is, in a case where there’s
            multiple charges, where the person is accused of—you know, you pick a number.
            Does that affect your opinion of the presumption of innocence? Do you feel like
            if there’s multiple charges, that person must have done something and therefore
            he may be guilty some what because he’s been charged with multiple crimes?


                On this record, Fischer has not shown harm from the court’s ruling as to the

presumption-of-innocence question because defense counsel was able to ask essentially the same

question that he proposed. See Woods, 152 S.W.3d at 110; Rachal, 917 S.W.2d at 815.


       6
           Defense counsel’s question was interrupted by a prospective juror responding, “No.”

                                                  6
               2. Consideration of probation

               Defense counsel also proposed informing the prospective jurors that “in this case, the

charges include two counts of aggravated sexual assault of a child, seven counts of indecency with

a child by contact, five counts of indecency with a child by exposure, and nine counts of sexual

assault of a child” and that they “ha[d] the option of giving probation [i.e., community supervision]

on each and every count.” He proposed asking the venire “whether they could consider probation

on multiple counts of indecency” and “as the appropriate punishment under some circumstances for

all counts in the indictment[s] that are joined for trial on the case.” The court denied the request,

stating that “the venireman only needs to be willing to consider the full range of punishment for the

offenses committed” and “committing a panelist to consider community supervision if they were to

convict on multiple counts is improper and would be fact specific.”

               The Court of Criminal Appeals has stated that a prospective juror must be able to

“consider the full range of punishment for the offense generally, and not for some specific manner

and means of committing the offense.” Johnson v. State, 982 S.W.2d 403, 406 (Tex. Crim. App.

1998). The Court has further stated that counsel “veers into impermissible commitment questions

when [counsel] attempts to commit a veniremember to consider the minimum sentence based on

specific evidentiary facts.” Cardenas v. State, 325 S.W.3d 179, 184 (Tex. Crim. App. 2010); see

Shot with Two Arrows v. State, 64 S.W.3d 606, 607 (Tex. App.—Fort Worth 2001, no pet.) (noting

that juror “must only be able to consider the minimum sentence in an appropriate case, not a fact

specific hypothetical involving multiple convictions for separate offenses”).




                                                 7
                Here, defense counsel proposed informing the prospective jurors of Fischer’s specific

charges in this case and then asking them whether they could consider probation as punishment on

multiple counts of indecency and on all counts of the indictments in the causes joined for trial. By

this question, counsel intended to go beyond the minimum requirement of confirming whether jurors

could consider probation for a particular charged offense, and instead ask about a group of separately

indicted offenses in this specific case. See Shot with Two Arrows, 64 S.W.3d at 608.

                Further, we note that as to the most serious counts Fischer faced—aggravated sexual

assault of a child7—defense counsel was not prevented from asking prospective jurors individually

whether they could consider facts that would make probation appropriate:


        The count of Aggravated Sexual Assault or the charge of Aggravated Sexual Assault
        basically means a person intentionally or knowingly causes penetration of the anus
        of a child by any means, and the child is younger than 14 years of age. I’m not
        doing—what was done earlier is lumping a lot of stuff together. I’m talking about
        these particular elements. Can you conceive of a set of facts where you would think
        probation would be appropriate for these elements?


That question was asked after the venire had been informed of the multiple counts against Fischer,

and the prospective jurors who responded that they could not consider probation for those

elements of aggravated sexual assault were not seated on the jury. See, e.g., Alvarez v. State,

No. 11-05-00100-CR, 2006 Tex. App. LEXIS 2824, at *8 (Tex. App.—Eastland Apr. 6, 2006, no

pet.) (mem. op., not designated for publication) (noting that even if trial court erred in permitting

commitment questions that included reference to victim’s age, defendant was not harmed where




       7
           The jury acquitted Fischer of these counts.

                                                  8
none of panel members who said that they could not consider probation served on jury). Moreover,

those who were seated on Fischer’s jury showed their ability to consider probation, despite having

convicted him of multiple offenses against multiple victims, by ultimately recommending probation

for each of the counts of indecency with a child by exposure.

               On this record, Fischer has not shown harm—i.e., a substantial and injurious effect

or influence on the jury’s verdict—from the court’s rulings on the specific questions defense counsel

proposed to ask the venire as to the presumption of innocence and consideration of probation in the

context of multiple charges. See Tex. R. App. P. 44.2(b); Woods, 152 S.W.3d at 109–10. Contrary

to Fischer’s contention, the court did not “categorical[ly] deny” defense counsel’s inquiries, and

Fischer has not shown that the court’s rulings violated his constitutional rights to an impartial jury,

to counsel, and to effective assistance of counsel. We overrule Fischer’s first twelve issues.

Issues 13: Facial constitutionality of Texas Code of Criminal Procedure art. 38.37

               In his thirteenth issue, Fischer contends that article 38.37 of the Code of Criminal

Procedure pertaining to evidence of extraneous offenses is unconstitutional on its face because it

violates constitutional due-process protections. Fischer complains specifically about section 2(b)

of article 38.37, which applies to trials for certain sexual offenses—including indecency with a child

and sexual assault of a child as charged here—and allows admission of evidence showing that the

defendant committed a separate sexual offense “for any bearing the evidence has on relevant

matters,” including the defendant’s character:


        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

                                                  9
        in 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.


Tex. Code Crim. Proc. art. 38.37, § 2(b); id. § 2(a)(1)(C)–(D); Robisheaux v. State, 483 S.W.3d 205,

210 (Tex. App.—Austin 2016, pet. ref’d). Before that type of evidence may be introduced, article

38.37 requires the trial judge to conduct a hearing outside the presence of the jury to determine

whether the evidence “will be adequate to support a finding by the jury that the defendant committed

the separate offense beyond a reasonable doubt.” Id. § 2-a. The State must give a defendant 30

days’ notice before trial of its intent to use such extraneous-offense evidence in its case in chief. Id.

§ 3.

                “A party raising a facial challenge to the constitutionality of a statute must

demonstrate that the statute operates unconstitutionally in all of its applications.” State ex rel. Lykos

v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011); see Estes v. State, 546 S.W.3d 691, 697–98

(Tex. Crim. App. 2018). “In a facial challenge to a statute’s constitutionality, courts consider the

statute only as it is written, rather than how it operates in practice.” Lykos, 330 S.W.3d at 908.

However, in Robisheaux v. State, we held that section 2(b) of article 38.37 was not shown to operate

unconstitutionally in all its applications, and we rejected the contention that the statute denied

defendants due process and due course of law. 483 S.W.3d at 209, 213; see Burke v. State,

No. 04-16-00220-CR, 2017 Tex. App. LEXIS 4248, at *2–4 (Tex. App.—San Antonio May 10,

2017, pet. ref’d) (mem. op., not designated for publication) (applying Robisheaux to case transferred

from this Court); see also Waters v. State, No. 02-17-00368-CR, 2018 Tex. App. LEXIS 10304, at

*4 (Tex. App.—Fort Worth Dec. 13, 2018, no pet. h.) (mem. op., not designated for publication)

                                                   10
(noting that court’s previous rejection of facial challenge to constitutionality of article 38.37 alleging

due process and fair trial violations). Accordingly, we overrule Fischer’s thirteenth issue.

Issues 14–15: Constitutionality of article 38.37 as applied and admission of extraneous

evidence

                 In his fourteenth and fifteenth issues, Fischer contends that article 38.37 of the Code

of Criminal Procedure is unconstitutional as applied to him and that the district court abused its

discretion by admitting extraneous evidence of sexual misconduct involving Z.L., W.C., B.R., and

D.W.R. Fischer states that article 38.37 has withstood constitutional challenges because in many

cases there is no evidence of the offense besides the child’s accusation, but in his view, that concern

is not applicable here because the jury was presented with multiple indictments of child sexual

abuse. Under these circumstances, Fischer contends that admission of the extraneous evidence of

sexual misconduct was unfairly prejudicial, violating his constitutional right to due process and his

right to a fair trial.

                 1. As applied challenge to article 38.37

                 “[I]n an as-applied challenge, the claimant ‘concedes the general constitutionality of

the statute, but asserts that the statute is unconstitutional as applied to his particular facts and

circumstances.’” Estes, 546 S.W.3d at 698 (quoting Lykos, 330 S.W.3d at 910). Because a statute

may be valid as applied to one set of facts but invalid as applied to another set of facts, a claimant

must show that, in its operation, the challenged statute was unconstitutionally applied to him. Lykos,

330 S.W.3d at 910. Our review of a statute’s constitutionality begins with the presumption that the




                                                   11
statute is valid and that the Legislature acted reasonably by enacting it. Faust v. State, 491 S.W.3d

733, 743–44 (Tex. Crim. App. 2015); see Estes, 546 S.W.3d at 698.

                Fischer contends that the two aspects of article 38.37 designed to provide him with

due process—Rule 403 and the trial court’s sufficiency review—“were worthless” here and did not

protect him from an unfair trial. He points out that “Rule 403 excluded none of the extraneous cases

against [him]” and says that their cumulative effect was to weaken the State’s burden of proof as to

the allegations in the indictment. However, Fischer does not dispute that the procedural protections

in article 38.37—pretrial notice of intent to introduce an extraneous sexual offense and a hearing on

the evidentiary sufficiency of such extraneous offense—were followed before any evidence of

extraneous conduct was admitted and that the district court complied with Rule 403. As the State

notes, the mere fact that the application of Rule 403 did not result in the exclusion of any extraneous

evidence does not show that Fischer’s due-process rights were violated. We conclude that Fischer

failed to meet his burden of establishing that the statute operated unconstitutionally as applied to his

particular set of facts and circumstances. See Lykos, 330 S.W.3d at 910.

                2. Rule 403 balancing

                Fischer further contends that the district court abused its discretion by admitting the

“revolting” extraneous-conduct evidence offered at trial over his Rule 403 objections. As we have

noted, article 38.37 provides that evidence of separate sexual offenses, besides those for which the

defendant is being tried, may be admissible character-conformity evidence. See Tex. Code Crim.

Proc. art. 38.37, § 2(b). However, even extraneous-offense evidence admissible under article 38.37

may be excluded under Texas Rule of Evidence 403. See Robisheaux, 483 S.W.3d at 212 (noting



                                                  12
that article 38.37 section 2(b) allows admission of separate sexual offense evidence

“[n]otwithstanding Rules 404 and 405” but not excluding Rule 403). Rule 403 provides that even

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

of unfair prejudice, confusion of the issues, or misleading the jury; by considerations of undue delay;

or by needless presentation of cumulative evidence. Id. When conducting a Rule 403 analysis, the

trial court must balance: (1) the inherent probative force of the proffered item of evidence along with

(2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest

decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from

the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not

been equipped to evaluate the probative force of the evidence, and (6) the likelihood that

presentation of the evidence will consume an inordinate amount of time or merely repeat evidence

already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). These

factors may blend together in practice. Id. at 642.

                We review a trial court’s decision to admit or exclude evidence, as well as its decision

as to whether the probative value of evidence was substantially outweighed by the danger of unfair

prejudice, under an abuse of discretion standard. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex.

Crim. App. 2018). The trial court does not abuse its discretion unless its determination lies outside

the zone of reasonable disagreement, and we may not substitute our own decision for that of the trial

court. Id.; see United States v. Fields, 483 F.3d 313, 354 (5th Cir. 2007) (noting that trial courts are

afforded “especially high level of deference” for Rule 403 determinations); Robisheaux, 483 S.W.3d

at 218 (citing Fields).



                                                  13
               The State correctly notes that as to the extraneous acts involving Z.L., Fischer did not

raise an objection seeking to exclude Z.L.’s testimony on Rule 403 or on due-process grounds and

has thus failed to preserve his complaint as to the admission of extraneous acts involving Z.L. See

Tex. R. App. P. 33.1(a). As to the other three individuals, W.C., B.R., and D.W.R., the extraneous-

conduct evidence admitted at trial did not deprive Fischer of the right to be convicted only upon

proof beyond a reasonable doubt of every fact necessary to constitute the offenses he was charged

with committing, and the court could have reasonably concluded that the evidence of extraneous acts

in this case was not unfairly prejudicial.

               The first three factors the court had to consider in its Rule 403 balancing were the

inherent probative force of the proffered evidence, the proponent’s need for that evidence, and any

tendency of the evidence to suggest decision on an improper basis. The record shows that the

probative force of the evidence was strong, that the State needed the evidence to address attempts

to undermine the credibility of the victims who were Fischer’s institutionalized patients, and the

tendency of the evidence to suggest decision on an improper basis was no more so than in other

prosecutions involving child sexual abuse. Specifically, the jury heard evidence that:


       • when D.W. was fifteen, Fischer masturbated in front of him and stimulated
         D.W.’s penis;

       • when J.G. was fourteen, Fischer masturbated in front of him, had J.G. perform
         oral sex on Fischer, and touched J.G.’s penis; and

       • when A.M. was between twelve and fourteen, Fischer masturbated in front of him,
         stroked A.M.’s penis, forced A.M. to touch Fischer’s penis, and anally penetrated
         A.M.




                                                 14
The extraneous-conduct evidence alleged similarly that:


        • when Z.L. was sixteen, Fischer masturbated in front of him, performed oral sex
          on him, had Z.L. perform oral sex on Fischer, and penetrated Z.L.’s anus;

        • when W.C. was fifteen or sixteen, Fischer exposed himself to W.C. and
          performed oral sex on W.C.;

        • when B.R. was eight or nine and until he was sixteen, Fischer engaged in various
          forms of sexual contact with him, including touching B.R.’s penis, performing
          oral sex on B.R., and having B.R. perform oral sex on Fischer; and

        • when D.W.R. was fourteen, Fischer performed oral sex on D.W.R., had D.W.R.
          penetrate him anally, and had D.W.R. perform oral sex on Fischer.


Fischer’s conduct towards Z.L., W.C., B.R., and D.W.R. bore strong similarity to the charged

conduct against D.W., J.G., and A.M. The victims were of similar ages, and in most instances, the

circumstances of the crime was nearly identical, involving institutionalized child victims who were

abused by a physician at that institution. Fischer acknowledges that W.C.’s and D.W.R.’s evidence

had probative value, but Fischer challenges B.R.’s testimony because of its relative dissimilarity and

remoteness. However, as we noted Robisheaux, remoteness is only one factor in determining the

probative value of an offense. 483 S.W.3d at 219. Further, the rationale for discounting remote

conduct is that people may change with the passage of time. Gaytan v. State, 331 S.W.3d 218, 226

(Tex. App.—Austin 2011, pet. denied). Here, the intervening extraneous acts indicate that Fischer

has not changed over time, rebutting the remoteness defense.

               The court in this case could have also reasonably concluded that the State had a strong

need for this extraneous evidence because Fischer’s victims were children with mental illness, who

were particularly vulnerable to attacks on their credibility. Defense counsel raised the issue of their

                                                  15
mental illnesses and diagnoses during his opening statement, suggesting that the allegations were

not truthful. Moreover, although “sexually related bad acts and misconduct involving children are

inherently inflammatory,” Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013), “the plain

language of Rule 403 does not allow a trial court to exclude otherwise relevant evidence when that

evidence is merely prejudicial,” id., and the extraneous conduct was no more “revolting” or

fundamentally different in character than Fischer’s charged offenses. Thus, these first three factors

weighed in favor of the admissibility of the evidence.

               As to the next factors the court had to consider, we note that the evidence as to the

extraneous offenses was not confusing or technical in nature and would not tend to mislead the jury,

which weighs in favor of admission of the evidence. See Gigliobianco, 210 S.W.3d at 641 (noting

that scientific evidence is of type that “might mislead a jury that is not properly equipped to judge

the probative force of the evidence”). Further, because the quality of the extraneous-conduct

evidence—firsthand recollections of events of abuse from the victims—was identical to that of the

charged offenses, the district court could have reasonably concluded that the jury was unlikely to

give it undue weight.

               Finally, the court had to consider the likelihood that presentation of the evidence

would consume an inordinate amount of time or merely repeat evidence already admitted. As to this

factor, the court could have reasonably determined that the presentation of the extraneous conduct

evidence from these witnesses would be time-consuming to address but not merely duplicative or

prolonged such that it impacted the “efficiency of the trial proceeding.” Id.




                                                 16
                Accordingly, we conclude that the district court could have determined, within the

zone of reasonable disagreement, that the probative value of the evidence of these separate sexual

offenses was not substantially outweighed by a danger of unfair prejudice under Rule 403. We

overrule Fischer’s fourteenth and fifteenth issues.

Issue 16: Application of article 38.37 did not violate Ex Post Facto Clause

                In his sixteenth and final issue, Fischer contends that the application of article 38.37

of the Code of Criminal Procedure violates the Ex Post Facto Clause of the United States

Constitution, which states that “[n]o . . . ex post facto Law shall be passed.” U.S. Const. art. I, § 9.

The Ex Post Facto Clause prohibits:


        • Every law that makes an action done before the passing of the law—and which
          was innocent when done—criminal, and punishes such action;

        • Every law that aggravates a crime, or makes it greater than it was, when
          committed;

        • Every law that changes the punishment, and inflicts a greater punishment, than the
          law annexed to the crime when committed; and

        • Every law that alters the legal rules of evidence, and receives less, or different,
          testimony, than the law required at the time of the commission of the offence, in
          order to convict the offender.


Peugh v. United States, 569 U. S. 530, 538 (2013) (citing Calder v. Bull, 3 U.S. 386, 390 (1798)).

Only the last prohibition, addressing changes in evidentiary rules to permit lesser or different

evidence than legally required at the time of the offense, is at issue here.

                Fischer was charged with acts that occurred in 2001, 2002, and March 2003.

Effective September 1, 2003, the Legislature amended article 38.37, allowing the admission of

                                                  17
evidence showing that the defendant committed a separate sexual offense “for any bearing the

evidence has on relevant matters.” See Act of May 17, 2013, 83d Leg., R.S., ch. 387, §§ 1–3, 2013

Tex. Gen. Laws 1167, 1167–68 (codified at Tex. Code Crim. Proc. art. 38.37). Before that

amendment, Fischer notes that Texas Rule of Evidence 404(b) excluded evidence of a defendant’s

extraneous “bad acts” if it was offered to prove propensity but allowed admission of such evidence

for other purposes. See Tex. R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.

Crim. App. 1991) (op. on reh’g) (noting that for admission of evidence under Rule 404(b), trial judge

must conclude that evidence tends to serve some purpose other than character conformity to make

existence of fact of consequence more or less probable than it would be without such evidence).

Fischer states that Rule 404(b) was designed to preclude the propensity rationale a juror might

undertake with knowledge of multiple charges, and here, “the extraneous character evidence simply

proves that Appellant had a propensity for molesting boys.”

               But as Fischer acknowledges, we rejected an ex post facto challenge to these statutory

provisions in Robisheaux. See 483 S.W.3d at 215; see also Burke, 2017 Tex. App. LEXIS 4248, at

*10 (following Robisheaux); Ryder v. State, 514 S.W.3d 391, 402 (Tex. App.—Amarillo 2017, pet.

ref’d) (rejecting ex post facto challenge to article 38.37). In Robisheaux, we agreed with our sister

courts’ conclusions that although article 38.37 enlarges the scope of admissible testimony, it makes

no change to the State’s burden of proof and no decrease to the amount of evidence necessary to

sustain a conviction and thus, does not violate ex post facto prohibitions. 483 S.W.3d at 215 (citing

Baez v. State, 486 S.W.3d 592, 600 (Tex. App.—San Antonio 2015, pet. ref’d) cert. denied, 2016

U.S. LEXIS 6202 (2016)). Other than the specific dates of his offenses and his jury charge—which



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tracks article 38.37—Fischer presents no facts distinguishing his case from Robisheaux. Thus, he

has not met his burden of establishing the unconstitutionality of article 38.37 as applied to him here.

See Estes, 546 S.W.3d at 698; Lykos, 330 S.W.3d at 910. Additionally, we note that because these

indictments were joined for trial, the jury would have heard evidence indicating Fischer’s pattern of

sexual behavior—the referenced “propensity for molesting boys”—even without the evidence of the

extraneous acts against W.C., B.R., and D.W.R. admitted under article 38.37.8 See Tex. R. App. P.

44.2(b). We overrule Fischer’s sixteenth issue.


                                          CONCLUSION

               We affirm the district court’s judgments of conviction.




                                               Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed

Filed: December 28, 2018

Do Not Publish




       8
         We further note that the jury acquitted Fischer of one count of sexual assault of a child, two
counts of aggravated sexual assault of a child, and one count of indecency with a child by sexual
contact.

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