Benjamin James Fox v. State
04-15-00618-CR
| Tex. App. | Jan 11, 2017Background
- Defendant Benjamin Fox was convicted by a jury of aggravated sexual assault of his daughter A.F. and sentenced to 45 years’ imprisonment.
- Incident prompting reporting: A.F.’s mother discovered Fox and A.F. nude in the bathroom; A.F. later disclosed months of sexual contact, including digital penetration and penetration with an electric toothbrush; other family witnesses corroborated some acts.
- The State filed a pretrial Article 38.37 notice that it would introduce evidence of multiple extraneous sexual offenses against A.F. spanning several months.
- Just after jury empanelment, Fox sought a continuance and exclusion of testimony, alleging the State failed to timely disclose its witness list under the trial court’s discovery order.
- The trial court denied the continuance, allowed the State’s witnesses to testify, admitted extraneous-offense testimony under Article 38.37, and the jury convicted Fox.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Fox) | Held |
|---|---|---|---|
| Admissibility of testimony by witnesses not timely disclosed | State: omission was inadvertent; witness identities were available in other discovery and one rebuttal witness need not be disclosed; no bad faith | Fox: lack of timely witness list violated discovery order and warranted continuance or exclusion | Court: No abuse of discretion; no bad faith, witnesses’ identities could be reasonably anticipated from reports, rebuttal witness disclosure not required; denial of continuance was proper |
| Admission of extraneous sexual-offense evidence at guilt/innocence | State: Article 38.37 permits extraneous sexual-offense evidence against child victims; evidence was highly probative and necessary to avoid a pure he-said/she-said case | Fox: volume and inflammatory nature of multiple extraneous offenses made the evidence unfairly prejudicial under Rule 403 | Court: No abuse of discretion; probative value and State’s need outweighed risk of unfair prejudice though evidence was inflammatory; volume not so great as to make it unfairly prejudicial |
Key Cases Cited
- Martinez v. State, 867 S.W.2d 30 (Tex. Crim. App. 1993) (discovery rule on State’s witness disclosure and bad-faith inquiry)
- Wood v. State, 18 S.W.3d 642 (Tex. Crim. App. 2000) (undisclosed witness review: bad faith and reasonable anticipation tests)
- Beets v. State, 767 S.W.2d 711 (Tex. Crim. App. 1987) (rebuttal witnesses generally not required to be prelisted)
- Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006) (factors for Rule 403 balancing)
- Pawlak v. State, 420 S.W.3d 807 (Tex. Crim. App. 2013) (sexually related offenses involving children are inherently inflammatory; unfair prejudice standard)
- Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009) (Rule 403 disfavors exclusion; relevance in sexual-assault he-said/she-said cases)