OPINION
Appellant, .Jason Wayne Belcher, appeals his conviction of the offense of aggravated assault of a child, enhanced by a prior conviction for the same type , of conduct. Appellant raises three issues on appeal. We .affirm..
Background
■ Appellant was accused of putting his finger inside the female sex organ of H.C., a child, on or about January 17, 2012. At trial, H.C. testified that ■ Appellant had done this on two occasions.
In February 2014, two months before triаl, Appellant’s daughter S. told her second grade teacher, Alicia Collier, that her father had been doing “sex things” with her. S. was taken to the Northeast Texas Child Advocacy Center where she was interviewed by Mary Spurlin. S. told Mary Spurlin that Appellant had anal and vaginal intercourse with her starting when she was four years of age and 'ending around Christmas 2013 when she was eight. S. also told Spurlin that Appellant had sexually abused her younger sister, R., who is severely disabled and cannot communicatе verbally.
Immediately prior to trial, the trial court conducted a hearing out of the presence of the jury to determiné if the evidénce of the extraneous sexual offenses alleged to have been committed by Appellant against' children would support a jury finding that Appellant committed the offenses beyond a reasonable doubt. At the hearing, the court also heard Appellant’s objection to the admission 'of that evidence. Appellant argued the evidence should be excluded, because (1) the extraneous offense evidence was irrelevant except to show his propensity to commit sex crimes against children, (2) its probative value was substantially outweighed by the danger of unfair prejudice, and (3) the admission of the evidence under Texas Code of Criminal Procedure Article 38.37, Section 2(b) denied him due process of law. The trial court found the evidence sufficient for admission, and overruled Apрellant’s objections.
' S. did not testify at trial. However, both Collier and Spurlin told the jury what S. had told them. Other evidence showed Appellant had a prior conviction for aggravated sexual of a child in another county.
Due Process
In his first issue, Appellant contends the trial court’s admission into evidence at the guilt-innocence stage of the trial of three extraneous sex offenses against children other than the complainant deprived him of due process of law. Therefоre, he contends that Texas Code of Criminal Procedure Article 38.37, Section 2(b), under which the evidence was admitted, is unconstitutional.
Standard of Review and Applicable Law
In reviewing the constitutionality of a statute, we must presume that the statute is valid and that the legislature did not act unreasonably or arbitrarily in enacting it. Ex parte Granviel,
“The Due Process Clause protects the accused against conviction except upon proоf beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship,
To establish a due process violation, it is the appellant’s burden to show that, the challenged statute or rule violates those “fundamental conceptions of justice which lie at the base of our civil and political institutions and which define the community’s sense of fair play and decency.” Dowling v. United States,
Effective September 1, 2013, the legislature amended Article 38.37 of the code of criminal procedure. Act of June 14, 2013, 83rd Leg., ch. 387, § 3, Tex. Session Law Serv. 1168, 1168-69 (current version at Tex. Code Crim. Proc. Ann art. 38.37 (West Supp.2014)). Section 2(b) now provides that in a trial of a defendant for the enumerated sexual crimes against children, evidenсe that the defendant has committed certain offenses against a nonvictim of the charged offense is admissible for anybear-ing it may have on relevant matters, including the character of the defendant and acts performed in ' conformity with the character of the defendant, Tex, Code Crim. Proc. Ann. art. 38.37 § 2(b) (West Supp.2014).
Appellant’s Argument
Appellant argues that it has been a fundamental principle of our judicial • system that an accused person must be tried only for the offense charged and not for being a criminal or bad pеrson generally. See Templin v. State,
History of Propensity Evidence
The ban against propensity evidence in our. jurisprudence is over three hundred years old dating back to seventeenth century cases. See United States v. Castillo,
Over the past one -hundred years, all states have, by rules similar to our Rule 404 and Federal Rule of Evidence 404 or by judicial adoption, allowed the prosеcution to introduce prior bad act evidence, including sexual misconduct. See Basyle
Over 150 years ago, some courts had begun to devise an exception to the general rule in cases charging sexual misconduct. In 1858, the Michigan Supreme Court stated as follows:
The general rule in criminal cases is well settled, that the commission of other, though similar offenses, by the defendant, can not be proved for the purpose of showing that he was more likely tо have committed the offense for which he is on trial[.] ... But the courts in several of the states, have shown a disposition .to relax the .rule in cases where the offense consists of illicit intercourse between the sexes[.] ...
People v. Jenness,
such other acts are relevant and admissible, to show the lustful disposition of defendant as well as to show the existence and continuance of the illicit relation, to characterize and explain the act charged, and to corroborate the testimony of the prosecutrix as to that act.
Id. (emphasis added).
By the early twenties, twenty-three states had adopted some form of lustful disposition exception to the rule against propensity evidence in statutory rape cases. United States v. Castillo,
Discussion
In Castillo, the Tenth Circuit held that Federal Rule of Evidence 414. does not
We addressed a similar due process challenge to the earlier, more restrictive version of Article 38.37 in Jenkins v. State,
In Jenkins, we rejected the appellant’s due process claim and upheld the constitutionality of the statute.
Article 38.37 as amended now provides for the admission of evidence of other sex crimes committed by the defendant against children other than the victim of the alleged offense “for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of defendant.” Tex. Code Crim. Prоc. Ann. art. 38.37 § 2(b). Though different in wording, the state statute and Federal Rule of Evidence 414 have virtually the same effect. Both make admissible evidence of the defendant’s other sex crimes against children other than the complainant in order to show his propensity to commit the act of child sexual abuse alleged. Compare Tex. Code Crim, Proc Ann. art. 38.37 § 2(b) with Fed. R. Evid 414(a) (“In a criminal case in which a defendant is accused of child molestation,
However, before such evidence is admitted, the trial court must still conduct a balancing test under Rule 403. See Tex. Code Ceim.' PROC. Ann. art. 38.37 § 2(b) (permitting’ admission of propensity evidence “[njotwithstanding Rules 404 and 405, Texas Rules of Evidence,” but not excluding from application of Rule '403)'. The trial may exclude the evidence if -its probative value is outweighed by a danger of unfair prejudice; confusing the issues, mislеading the jury, undue delay, or needlessly presenting cumulative evidence. Tex. R. Evid. 403. Analogous to federal practice, Article 38.37, Section 2-a requires that, before- evidence of prior sexual misconduct is admitted, the trial court must conduct a hearing out of the jury’s presence to determine that- the evidence likely to be admitted will support a jury finding that the defendant committed the separate offense beyond, a reasonable doubt. Tex. Code Crim. Proc. Ann. art. 38.37 § 2-a; see, e.g., LeMay,
Article 38.37, Section 2(b) is more narrowly drawn than Federal Rule of Evidence 414. Texas Rule of Evidence 403, like its federal counterpart, protects the dеfendant against the admission of evidence that is so prejudicial as to deprive the defendant of a fair trial. The policy concerns that served to justify the federal decision :to- admit propensity evidence in child molestation cases are equally applicable to state prosecutions. The admission of evidence of Appellant’s other sexual crimes or bad acts against children other than the -complainant, H.C., did not deprive Aрpellant of due process of law, and Article 38.37, Section 2(b) is constitutional. Appellant’s first issue is overruled insofar as it pertains, to the constitutionality of Article 38.37, Section 2(b).
Rule 403
Appellant also contends, as part of his first issue,.that even if evidence of his prior sexual offenses against children was admissible under Article 38.37, Section 2(b), the trial court erred in not excluding the evidence under Rule 403 because the State had no need for the evidence. Therefore, he maintains the probative value .of the -evidence was substantially outweighed by its prejudicial effect.
Standard of Review and Applicable Law
We review the trial court’s decision to admit evidence- for abuse of discretion. Winegarner v. State,
When evidence of a defendant’s extraneous acts 'is- íelévant under Article 38.37, Section 2(b), the trial ¡court is still required to conduct a Rule-403 balancing test upon proper objection or request: Hitt v. State,
Texas. Rule of Evidence 403 authorizes a trial court to exclude relevant evidеnce if its probative value is substantially outweighed by a danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.
“Probative value” is the measure of “how strongly [the evidence] serves
“Unfair prejudice” refers to a “tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged.” State v. Mechler,
Rule 403 does not require that the balancing test be performed on the record. Hitt,
Discussion
Appellant asserts that the State had no need for the evidence of the extraneous offenses ascribed to him. Therefore, he urges that its probative value was significantly reduced. Appellant argues that the trial court erred in assigning too much weight to the probative value of the evidence of the extraneous sexual offenses in conducting the Rule 403 balancing test. We disagree.
H.C. was .the only eyewitness to the offense. There was no physical evidence to support her accusation. At the trial’s outset in his opening statement, Appellant’s counsel told the jury, that the question “for your decision is, is this child credible?” H.C.’s mother, acknowledged during cross examination that she had told someone that H.C. told a lot of lies. She conceded that she initially refused to believe H.C. Therefore, H.C.’s credibility was clearly the focal issue in the case.
■ -The evidence -that Appellant had anal and vaginal intercourse with his daughter S. for four years beginning when she was four years- old was more repugnant and inflammatory than the offense alleged against H.C.- Unquestionably, the testimony regarding S. was highly prejudicial as was the evidence of Appellant’s prior conviction of aggravated sexual assault agаinst a child.
The. extraneous offense evidence was highly prejudicial, principally bécause it was especially probative of ’ Appellant’s propensity to sexually assault' children. The trial court did not abuse its discretion in determining that the probative value of the extranéous offense evidence was not substantially outweighed by the danger of unfair prejudice. The remaining portion of Appellant’s first issue is overruled.
Effective Date of Article 38.37, Section 2(b)
■In his second issue, Appellant contends' that because he was indicted before the effective date of the changes in the law incorporated in Article 38.37, Section 2(b), those changes did not apply to any part of
Applicable Law
The enactment paragraph of the act adding the new Section 2 to Article 38.37 provides as follows:
The change in law made by this Act applies to the admissibility of evidence in a criminal proceeding that commences on or аfter the effective date [Sept. 1, 2013] of this Act. The admissibility of evidence, in a criminal proceeding that commences before the effective date of this Act is covered by the law in effect when the proceeding commenced, and the former law is continued in effect for that purpose.
Act of June 14, 2013, 83rd Leg., R.S., ch. 387, § 3, 2013 Tex. Sess. Law Serv. 1168, 1168-69. ' '
Discussion
Appellant construes the phrase a “criminal proceeding,” as used in the enactment paragraph, tó mean the сourse'of the prosecution as a whole commencing with the indictment. The State contends the phrase refers to each individual step in the prosecution.
In Howland v. State,
Articlе 38.37, Section 2(b), in its current form, applies to a- “criminal proceeding” that occurred after September 1, 2013. Based on the. definition of “criminal proceeding” adopted'by the court of criminal appeals in Howland, the trial court did not err in admitting evidence made admissible by Article 38.37. during Appellant’s trial in April 2014.
Appellants second issue is overruled.
Notice .of. Extraneous Offense Evidence
In. his .third issue, Appellant ,complains that the-State failed to give him thirty days’ notice that it intended to.use, in its case in chief, evidence-of the alleged assaults against his two daughters; 7 ■
Section 3 of Article 38.37 provides that “[t]he -state shall ’give the defendant notice of the state’s- intent ■ to introduce in the case in chief evidence described by Section 1 or 2 not later than the 30th day before the date of the defendant’s trial.” Tex. Code Ckim. Proc. Ann. art. 38.37 § 3.
On April 7, 2014, two weeks before trial, Appellant filed two motions in limine. In the first motion, Appellant stated “[defense anticipates that the’ State shall attempt to introduce evidence of aсts of sexual contact between the defendant and an
Immediately before trial began, the trial court conducted a hearing out of the presence of the jury to determine if the evidence of sexual offenses against other children likely to be admitted would support a jury finding that Appellant committed the separate offenses beyond a reasonable doubt. During the hearing, Appellant heard the substance of the allegations of his sexual misconduct against S. and R. At the close of the hearing, Appellant reiterated the objections urged in the two mоtions in limine. The trial court granted Appellant a running objection on the grounds raised in the two motions.
Appellant at no time objected to the admission of the evidence based upon the State’s failure to give the notice required by Article 38.37, Section 3. “To properly preserve an issue concerning the admission of evidence for appeal, a party’s objection must inform the trial court why or on what basis the otherwise admissible evidence should be excluded.” Ford v. State,
Disposition
Having overruled Appellant’s three issues, we affirm the judgment of the trial court.