Belcher v. State
474 S.W.3d 840
| Tex. App. | 2015Background
- Appellant Jason Wayne Belcher was convicted of aggravated assault of a child (alleged digital penetration of complainant H.C.).
- Two other children (Appellant’s daughters S. and R.) were alleged victims: S. disclosed long-term sexual intercourse by Appellant; S. did not testify but her teacher and a CAC interviewer recounted her statements.
- The State introduced evidence of multiple extraneous sexual offenses and a prior conviction for aggravated sexual assault of a child under Tex. Code Crim. Proc. art. 38.37 § 2(b).
- The trial court held a pretrial, out-of-jury hearing under art. 38.37 § 2-a and admitted the extraneous-offense evidence over Belcher’s objections (relevance, Rule 403 prejudice, and due process).
- Belcher appealed, raising: (1) art. 38.37 § 2(b) denies due process by allowing propensity evidence; (2) the evidence should have been excluded under Rule 403 as unfairly prejudicial/ unnecessary; (3) the amended art. 38.37 did not apply because his indictment predated the amendment; and (4) the State failed to give 30 days’ notice under art. 38.37 § 3.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of art. 38.37 § 2(b) (due process) | §2(b) improperly permits propensity evidence and thus denies fair trial | §2(b) is like Fed. R. Evid. 414 and, with Rule 403 safeguards, does not violate due process | §2(b) is constitutional; due process not violated because Rule 403 and §2-a hearing/notice safeguard fairness |
| Rule 403 exclusion of extraneous-offense evidence | The State had no need for the evidence; its prejudicial effect substantially outweighed probative value | The evidence was highly probative as to credibility/propensity and the primary issue was child-complainant credibility | Trial court did not abuse discretion; probative value not substantially outweighed by unfair prejudice |
| Applicability of amended art. 38.37 to this prosecution | Because indictment predated amendment, the amendment should not apply | "Criminal proceeding" covers the trial step; amendments apply to proceedings (trials) after effective date | Amendment applied to trial (trial commenced after Sept. 1, 2013); issue overruled |
| §3 notice requirement (30 days) | State failed to provide required 30-day notice of intent to introduce extraneous-offense evidence | Defense received pretrial hearing disclosure and had opportunity to litigate; no timely objection on notice ground was raised | Error not preserved; no reversal for lack of 30-day notice because defendant did not object on that ground at trial |
Key Cases Cited
- Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App. 1978) (presumption of statute validity)
- In re Winship, 397 U.S. 358 (U.S. 1970) (due process requires proof beyond reasonable doubt)
- Dowling v. United States, 493 U.S. 342 (U.S. 1990) (due process requires fundamental fairness)
- United States v. Lovasco, 431 U.S. 783 (U.S. 1977) (due process burden for statutory challenges)
- United States v. Castillo, 140 F.3d 874 (10th Cir. 1998) (upholding Fed. R. Evid. 414 in light of Rule 403)
- United States v. Enjady, 134 F.3d 1427 (10th Cir. 1998) (discussing historical ban on propensity evidence and constitutionality concerns)
- Jenkins v. State, 993 S.W.2d 133 (Tex. App.—Tyler 1999) (upholding earlier art. 38.37 against due process challenge)
- Howland v. State, 990 S.W.2d 274 (Tex. Crim. App. 1999) (interpreting "criminal proceeding" to apply to trial step for art. 38.37 applicability)