David Allen Fronek v. State, 05-14-01118-CR

Background

Appellant David Fronek was indicted and convicted of Continuous Sexual Abuse of a Child (Tex. Penal Code §21.02) after a jury trial in Rockwall County; punishment assessed at 99 years. The indictment alleged four types of acts (oral contact, manual contact) over a multi‑year period.
The State introduced testimony from F.B., an adult California resident, about decades‑old sexual contact with Fronek (1987–1993) as extraneous offenses under Tex. Code Crim. Proc. art. 38.37 §2. The extraneous acts alleged were similar in nature to the charged acts.
Trial court held Article 38.37 §2 satisfied: it conducted an out‑of‑jury hearing, found the extraneous evidence adequate to support a jury finding beyond a reasonable doubt, and admitted F.B.’s testimony with limiting instructions.
Defense argued Article 38.37 §2 is unconstitutional as applied: it permits propensity evidence, undermines due process, impairs confrontation and compulsory‑process rights, and denied effective assistance by preventing adequate pretrial preparation and access to out‑of‑state impeachment witnesses.
Key procedural points: State served notice (roughly 30 days before trial, with amendments). Defense objected to timing, remoteness, out‑of‑state origin, and applicability of Texas vs. foreign law; trial court found timing/hearing during trial appropriate and admitted the evidence.

Issues

Issue	State's Argument	Fronek's Argument	Held
Constitutionality of Art. 38.37 §2 (admitting separate child‑sex offenses for any bearing on relevant matters)	§38.37 is a legislative accommodation to admit relevant extraneous child‑sex evidence; court should defer to statute and apply its standards.	§38.37 §2 permits propensity evidence that violates due process by allowing conviction for being a "bad person" rather than for the charged offense.	Trial court applied §38.37 §2 and admitted the extraneous testimony after a §2‑a hearing.
Adequacy and timing of §2‑a hearing / notice (30‑day requirement and when admissibility must be decided)	Notice given and court may determine admissibility after hearing the State’s and victim’s testimony; statute does not mandate pretrial resolution.	Hearing and late notice deprived defense of reasonable opportunity to investigate, obtain out‑of‑state witnesses, and prepare cross‑examination (ineffective assistance).	Trial court found the in‑trial hearing timely and sufficient and admitted the evidence.
Use of out‑of‑state extraneous acts: standard for treating acts occurring in other states as admissible offenses	Evidence of similar acts is admissible under §38.37 regardless of forum; State need not prove foreign law—acts are crimes in any jurisdiction (per prosecutor’s argument).	Due process requires assessing whether acts were crimes under the law where committed and consideration of statutes of limitations; absence of foreign law prevents court from determining whether the extraneous acts satisfy §2(a) elements.	Trial court admitted the out‑of‑state testimony; defendant’s objection remained preserved for appeal.
Confrontation / compulsory process / effective assistance concerns arising from remoteness and foreign witnesses	Confrontation was satisfied by cross‑examination at trial; notice satisfied statutory requirements.	Cross‑examination was insufficient because counsel lacked reasonable access to potential impeachment witnesses or records in other states; compulsory process ineffective for out‑of‑state witnesses; overall ineffective assistance.	Trial court allowed testimony to be cross‑examined and gave limiting instructions; defense preserved constitutional objections for appeal.

Key Cases Cited

Ex Parte Granviel, 561 S.W.2d 503 (Tex. Crim. App. 1978) (presumption of statute validity and review standard for constitutionality)
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (propensity evidence and limits on admissibility)
Michelson v. United States, 335 U.S. 469 (U.S. 1948) (rationale for excluding character/propensity evidence due to unfair prejudice)
Pointer v. Texas, 380 U.S. 400 (U.S. 1965) (right to compulsory process and confrontation implications)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel)
Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002) (application of Rule 403 balancing in evidentiary rulings)