Bradley Gregg v. State, 02-16-00117-CR

Appellant Bradley Gregg, accused of sexually assaulting his 15-year-old niece A.V., was convicted and sentenced to six years’ imprisonment; this appeal challenges admission of a topless photograph of A.V. found on Gregg’s phone.
A.V. testified to a sexual encounter at Gregg’s home (kissing, mutual oral sex, and two instances of penile penetration), but she gave multiple recanted or inconsistent statements to a counselor, a Children’s Advocacy Center investigator, Detectives, and the prosecutor.
Forensics showed A.V. accidentally sent a topless photo to Gregg; Gregg saved the photo twice on his phone and did not delete it; detectives retrieved the photo under a search warrant.
The trial court admitted the photograph under Tex. Code Crim. Proc. art. 38.37 (extraneous-offense evidence in child-sexual-offense trials) over Gregg’s Rule 403 objection and gave a limiting instruction on permissible uses.
Gregg argued (1) article 38.37 is unconstitutional as a violation of due process and (2) the trial court abused discretion admitting the photo under Texas Rule of Evidence 403; the court rejected both arguments and affirmed the conviction.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Gregg)	Held
Constitutionality of art. 38.37 §1 (admitting extraneous acts against the child)	Statute is constitutional; it addresses unique evidentiary needs in child-sexual-assault cases and includes safeguards (notice, hearing, limiting instruction)	Statute violates substantive due process and the right to a fair trial by permitting prejudicial extraneous-offense evidence	Court held art. 38.37 constitutional under rational-basis review; safeguards and jury instructions protect fairness; issue overruled
Admission under Rule 403 (balancing probative value vs. unfair prejudice)	Photo was relevant to state of mind, prior relationship, opportunity, intent; forensics established Gregg kept the photo; limited jury instruction and minimal trial time mitigated prejudice	Photo was irrelevant because it was accidentally sent and therefore highly prejudicial; admission unfairly influenced jury	Court held trial judge did not abuse discretion: probative value outweighed prejudice given relationship evidence, forensic proof, limited testimony, and comparison to more disturbing charged acts

Johns v. State, 236 S.W.2d 820 (Tex. Crim. App. 1951) (extraneous acts in incest/under‑age rape cases admissible to show attitude and relationship)
Albrecht v. State, 486 S.W.2d 97 (Tex. Crim. App. 1972) (traditional reasons for excluding extraneous-offense evidence: prejudice and confusion)
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (abuse‑of‑discretion standard for evidentiary rulings)
Jenkins v. State, 993 S.W.2d 133 (Tex. App. — Tyler 1999) (upholding constitutionality of art. 38.37 in child‑sexual‑assault context)
Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009) (noting 'he said, she said' nature of many sexual‑assault trials and the relevance of contextual evidence)
Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App. 1978) (presumption of statute validity; burden on challenger to prove unconstitutionality)
Jackson v. Virginia, 443 U.S. 307 (1979) (due process requires State prove every element beyond a reasonable doubt)
Washington v. Glucksberg, 521 U.S. 702 (1997) (framework for identifying fundamental liberty interests)