Harris v. State, 475 S.W.3d 395

David Dean Harris was convicted by a jury of aggravated sexual assault of a child and sentenced to 50 years' imprisonment.
Before trial the State gave notice under Tex. Code Crim. Proc. art. 38.37(§2) of intent to use extraneous sexual-offense evidence; a Section 2-a hearing was held outside the jury.
At the hearing five witnesses testified about extraneous incidents; the court admitted testimony from three and excluded two; the three testified at guilt-innocence.
The jury was instructed that extraneous-offense evidence could be considered only if the jury found beyond a reasonable doubt the defendant committed those other offenses and could consider them only for relevant matters (including character/propensity as allowed by art. 38.37 §2).
Harris moved for a new trial alleging ineffective assistance of counsel; the trial court denied the motion without an evidentiary hearing. Harris appealed, raising three issues: (1) §2 of art. 38.37 is unconstitutional; (2) erroneous admission of extraneous-offense witnesses; (3) denial of a hearing on the motion for new trial.

Issue	Plaintiff's Argument (Harris)	Defendant's Argument (State)	Held
Constitutionality of Art. 38.37 §2	§2 renders trial fundamentally unfair, lessens presumption of innocence, permits propensity evidence without adequate limits	§2 is a legislative, limited exception to exclusionary rules with procedural safeguards (notice, pretrial §2-a hearing, jury instructions); does not alter burden of proof	§2 is constitutional; no due process violation
Admission of extraneous-offense witnesses	Trial court abused discretion by admitting three witnesses; evidence was unfairly prejudicial under Rule 403	Harris failed to preserve a Rule 403 objection at trial for the three witnesses	Issue not preserved for appellate review; no reversal
Motion for new trial — hearing on ineffective-assistance claim	Trial court abused discretion by denying hearing; affidavits show reasonable grounds for relief	Trial court may assess affidavits and was familiar with the case; affidavits were conclusory or rebutted by trial counsel's affidavit	No abuse of discretion; hearing not required

Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App. 1978) (presumption of statute's validity and burden to show unconstitutionality)
Jackson v. Virginia, 443 U.S. 307 (1979) (State must prove guilt beyond a reasonable doubt)
United States v. Mound, 149 F.3d 799 (8th Cir. 1998) (Federal Rule 413 does not violate due process)
United States v. Enjady, 134 F.3d 1427 (10th Cir. 1998) (Rule 413 constitutional in light of safeguards)
Jenkins v. State, 993 S.W.2d 133 (Tex. App. — Tyler 1999) (admission of extraneous sexual-offense evidence in child-sexual-assault context did not violate due process)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance-of-counsel standard)