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State of Texas

In the _ District Court

_ County, Texas
Defendants Trial Brief:
Objections to Character-propensity evidence

Judge _:
_ files this brief regarding introduction of character-propensity evidence.
The defendant categorically objects to introduction of any evidence that
would, but for the operation of Texas Code of Criminal Procedure article
38.37, section 2, be inadmissible at the guilt-innocence phase of trial. In
support, the defendant would show:
Article 38.37
Article 38.37, section 2 of the Texas Code of Criminal Procedure purports to
provide trial courts with broad authority to admit evidence of prior bad acts
for the purpose of showing action in conformity therewith, in certain cases.
The statute provides, in pertinent part:
Sec. 2. (a) Subsection (b) applies only to the trial of a defendant for:
(1) an offense under any of the following provisions of the Penal Code:
(A) Section 20A.02, if punishable as a felony of the first degree under Section
20A.02(b)(1) (Sex Trafficking of a Child);
(B) Section 21.02 (Continuous Sexual Abuse of Young Child or Children);
(C) Section 21.11 (Indecency With a Child);
(D) Section 22.011(a)(2) (Sexual Assault of a Child);
(E) Sections 22.021(a)(1)(B) and (2) (Aggravated Sexual Assault of a Child);
(F) Section 33.021 (Online Solicitation of a Minor);

(G) Section 43.25 (Sexual Performance by a Child); or

(H) Section 43.26 (Possession or Promotion of Child Pornography), Penal Code; or
(2) an attempt or conspiracy to commit an offense described by Subdivision (1).
(b) Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject to Section 2-a,
evidence that the defendant has committed a separate offense described by Subsection (a)(1)
or may be admitted in the trial of an alleged offense described by Subsection (a)(1) or (2) for
any bearing the evidence has on relevant matters, including the character of the defendant and
acts performed in conformity with the character of the defendant.
Sec. 2-a. Before evidence described by Section 2 may be introduced, the trial judge must:
(1) determine that the evidence likely to be admitted at trial will be adequate to support a
finding by the jury that the defendant committed the separate offense beyond a reasonable
doubt; and
(2) conduct a hearing out of the presence of the jury for that purpose.

The defendant has reason to believe that the State will seek to introduce
evidence at his trial that would otherwise be inadmissible but for the
purported authority granted by Article 38.37 2.
Admission of evidence for the purpose of demonstrating
general character propensity violates due process.
The defendant objects to the admission of any such evidence on the grounds
that, notwithstanding the terms of the statute, its admission violates the
defendants right to due course of law under the Texas Constitution and due
process under the United States Constitution. The defendant further objects
that admission of such evidence violates his right to trial by an impartial jury,
his right to be informed of the nature and cause of accusations against him,
his right to effective assistance of counsel, his right to be presumed innocent
until proven guilty, and other rights guaranteed to him under established
principles of law.

The existence of due process rights can be established by showing a

settled historical usage in the United States and in England. In order to
determine whether a particular right constitutes a portion of the due
process accorded to a party, the Supreme Court of the United States has
long held that historical precedent ought to be the principal guide. Murray v.
Hoboken Land & Improvement Co., 59 U.S. 272, 276-7 (1856). The Court
reaffirmed this principle in Hurtado v. California, 116 U.S. 516, 528 (1884),
observing that if due process protections are to be any restraint whatsoever
on legislative power, they must be understood to go beyond the current law
of the land as embodied in statute.
A legal process, according to the Court, must be taken to be due
process of law, if it can show the sanction of settled usage in England and in
this country. Id. Much more recently, the Court has rearticulated the
boundaries of due process rights as the fundamental conceptions of justice
which lie at the base of our civil and political institutions. Dowling v. United
States, 493 U.S. 342, 353 (1990). Here the Court cautions against judicial
creation of new due process rights, but holds to the principle that historicallyestablished rights should be respected.
Exclusion of Character-Propensity Evidence in History
The inadmissibility of character-propensity evidence is a long-settled rule in
the common law of the United States and England. Thus, this principle bears

the required sanction of settled usage for consideration as a due process

In Pre-1776 England
Disfavor of character-propensity evidence is expressed in the common law of
England over 300 years ago. In Hampdens Trial (Kings Bench, 1684), Lord
Chief Justice Withins discusses the exclusion of evidence of prior forgeries in
a prosecution for forgery. In Harrisons Trial (Kings Bench, 1692), Lord
Chief Justice Holt famously interrupted the examination of a witness when
propensity evidence was offered, exclaiming Hold! Are you going to arraign
his whole life? Away, away, that ought not to be; that is nothing to the
In Pre-Revolutionary America
Inadmissibility of propensity evidence was established early in the history of
American jurisprudence. For instance, prior to the American Revolution, a
Massachusetts court held that evidence of prior bawdy behavior at a
residence was inadmissible in the defendants current prosecution for
operating a house of ill repute. Rex v. Doaks, Quincys Mass. Reports 90
(Mass. Super. Ct. 1763).
In Post-Revolutionary America
The principle that character-propensity evidence must be excluded has been
repeatedly recognized by U.S. courts throughout the countrys history. In
Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892), the

defendants were charged with murder following an attempt to rob, and the
prosecution introduced evidence that the defendants had committed other
robberies before the one involved in the crime charged. The Court, in an
opinion by the first Mr. Justice Harlan, held the evidence of other crimes
inadmissible: Those robberies may have been committed by the defendants
in March, and yet they may have been innocent of the murder of Dansby in
April. Proof of them only tended to prejudice the defendants with the jurors,
to draw their minds away from the real issue, and to produce the impression
that they were wretches whose lives were of no value to the community, and
who were not entitled to the full benefit of the rules prescribed by law for the
trial of human beings charged with crime involving the punishment of
death. 142 U.S., at 458, 12 S.Ct., at 295. The opinion reaffirmed the
principle that [h]owever depraved in character, and however full of crime
their past lives may have been, the defendants were entitled to be tried upon
competent evidence and only for the offense charged. Id.
In Brinegar v. United States, 338 U.S. 160, 174 (1949), the Supreme
Court ruled in a whiskey smuggling case that evidence of prior similar acts
was inadmissible. In so deciding, the Court noted that the standards it was
applying were historically grounded rights of our system, developed to
safeguard men from dubious and unjust convictions, with resulting
forfeitures of life, liberty, and property. The Court went further in Michelson
v. United States, 335 U.S. 469, 475 (1948), observing that courts that follow
the common law tradition almost unanimously have come to disallow resort

by the prosecution to any kind of evidence of a defendant's evil character to

establish the probability of his guilt The state may not show defendant's
prior trouble with the law, specific criminal acts, or ill name among his
neighbors, even though such facts might logically be persuasive that he is by
propensity a probable perpetrator of the crime. The inquiry is not rejected
because character is irrelevant; on the contrary, it is said to weigh too much
with the jury and to so over persuade them as to prejudge one with a bad
general record and deny him a fair opportunity to defend against a particular
In an opinion dissenting in part and concurring in part in Spencer, Chief
Justice Warren noted that our jurisprudence indicates that character
propensity evidence is offensive to due process:
While this Court has never held that the use of prior convictions to show nothing more than a
disposition to commit crime would violate the Due Process Clause of the Fourteenth
Amendment, our decisions exercising supervisory power over criminal trials in federal courts,
as well as decisions by courts of appeals and of state courts, suggest that evidence of prior
crimes introduced for no purpose other than to show criminal disposition would violate the Due
Process Clause. Evidence of prior convictions has been forbidden because it jeopardizes the
presumption of innocence of the crime currently charged. A jury might punish an accused for
being guilty of a previous offense, or feel that incarceration is justified because the accused is a
bad man, without regard to his guilt of the crime currently charged.

Spencer v. Texas, 385 U.S. 554, 573-575, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967)
(Warren, C.J., dissenting in part and concurring in part) (footnotes omitted).
Several United States courts have specifically held that admitting
character-propensity evidence in a criminal trial can violate the defendants
right to due process. After detailed analysis of the historical grounding of the

right at issue, the Ninth Circuit Court of Appeals ruled in McKinney v. Rees,
993 F.2d 1378, 1385 (9th Circ. 1993) that the introduction of characterpropensity evidence had rendered the defendants trial fundamentally unfair
in violation of his due process rights. The First and Fourth Circuits have also
characterized the rule prohibiting character propensity evidence as
constitutional in dimension. See United States v. Ferrer-Cruz, 899 F.2d 135,
143 (1st Cir. Puerto Rico 1990) (The prohibition against the introduction of
[e]vidence of other crimes ... to prove the character of a person in order to
show action in conformity therewith, [is] mandated by Fed. R. Evid. 404(b)
as well as due process ); Lovely v. United States, 169 F.2d 386, 389 (4th
Cir.1948) (The rule which thus forbids the introduction of evidence of
other offenses having no reasonable tendency to prove the crime charged,
except in so far as they may establish a criminal tendency on the part of the
accused, is not a mere technical rule of law. It arises out of the fundamental
demand for justice and fairness which lies at the basis of our
jurisprudence.). Dissenting in Estelle v. McGuire, 502 U.S. 62, 79 (1991),
Justice OConnor reasoned that if introduction of propensity evidence
served to relieve the prosecution of its proper burden to prove all elements of
the offense beyond a reasonable doubt, then the introduction of such
evidence must violate the due process clause of the Fourteenth Amendment.
Two circuits have held that due process is implicated by the admission
of other crimes evidence, for purposes other than to show conduct in
conformity therewith, in the absence of a limiting instruction. See

Panzavecchia v. Wainwright, 658 F.2d 337, 341 (5th Cir.1981) (holding that it
violated due process for the jury to hear repeated references to the
defendant's criminal past without any limiting instruction to relate this
evidence only to the firearm violation and to disregard it altogether in
considering the murder count); Murray v. Superintendent, Ky. State
Penitentiary, 651 F.2d 451, 453 (6th Cir.1981) (noting that the Sixth Circuit
has held that [t]he logical converse of [Spencer] is that it is unfair and
violative of due process if evidence of other crimes is admitted without a
limiting instruction). The clear import of these cases is that the influence of
character propensity evidence on the jury is so prejudicial as to violate the
Cases Construing Statutes Permitting Character Propensity
Judicial acceptance of legislative changes to the propensity evidence rule
such as Article 37.38 2, Texas Code of Criminal Proceduredoes not mean
that the principle of excluding propensity evidence has been abrogated, nor
does it mean that protection of this right is no longer guaranteed by due
process. At the very least, admission of such evidence is still governed by
general strictures such as the requirement to weigh the probative value of
evidence against its potential for prejudice. See United States v. Guardia, 135
F.3d 1326, 1331 (1998), affirming a trial courts decision in a sexual assault

trial to exclude testimony of four women who alleged that the defendant had
sexually assaulted them in a fashion similar to the accusation.
Two states have struck down similar states, notwithstanding the judicial
discretion to exclude unduly prejudicial evidence. The Supreme Court of
Missouri declared a Missouri statute allowing admission of evidence of prior
sexual crimes unconstitutional under the Missouri Constitution even though
the statute contained a balancing clause similar to Federal Rule of Evidence
403. State v. Ellison, 239 S.W.3d 603, 60708 (Mo. 2007). The court noted
the long line of Missouri cases prohibiting admission of prior criminal acts as
propensity evidence and held [e]vidence of prior criminal acts is never
admissible for the purpose of demonstrating the defendant's propensity to
commit the crime with which he is presently charged. There are no
exceptions to this rule. Id. at 606 (citation omitted).
Likewise, the Iowa Supreme Court invalidated the admission of
evidence of sexual abuse of other victims pursuant to Iowa Code section
701.11. State v. Cox, 781 N.W.2d 757 (Iowa 2010). The court concluded that
evidence of the defendant's sexual abuse of other victims under Iowa Code
section 701.11 based only on its value as general propensity evidence violates
the due process clause of the Iowa Constitution. Id. at 772. However, such
evidence could be admitted as proof for any legitimate issues for which
prior bad acts are relevant and necessary, including those listed in [ Iowa Rule
of Evidence] 5.404(b) and developed through Iowa case law. Id. at 768.

No Texas appellate court has been called upon to determine whether

Article 38.37 2, 2-A offends due process by permitting consideration of








constitutionality of Section 38.37, 1(b) [permitting extraneous offense

evidence committed by the defendant against the child who is the victim of
the alleged offense to show the state of mind and relationship of the
defendant and the child] have upheld this section because such evidence has
relevance beyond character propensity. In Jenkins v. State, 993 S.W.2d 133
(Tex. App.-Tyler 1999, pet. ref'd), the court of appeals held that the provision
was constitutional because it permits introduction of evidence relevant to
several non-character-conformity purposes, such as to show the states of
mind of the defendant and child and their relationship; to show how one
in a position demanding care and guidance of a related person, has failed in
such duty and has adopted an unnatural attitude; to explain the charged
actan act that would otherwise seem wholly illogical and implausible to the
average juror; and to show that a peculiar relationship exists, but also how
and why the defendant achieved dominance over the child. Id. at 135. This
position was adopted by other courts. Brantley v. State, 48 S.W.3d 318, 329
30 (Tex.App.-Waco, 2001, pet.ref'd); Martin v. State, 176 S.W.3d 887, 900
(Tex.App.-Fort Worth 2005, no pet.).
One Texas court has implicitly held that a statute permitting
consideration of character propensity evidence would run afoul of due
process requirements. In Bush v. State, 958 S.W.2d 503, 505 (Tex. App.-Fort

Worth 1997), the court rejected the appellants argument that article 38.36 of
the Code of Criminal Procedure expands the admissibility of extraneous acts
in violation of rule 404(b):
Article 38.36 merely codifies the age-old res gestae, or same transaction contextual evidence,
exception and adds the catch-all phrases relationship between the defendant and the
deceased and "state of mind of the defendant at the time of the offense." These two phrases
necessarily encompass intent, opportunity, motive, plan, scheme, identity, absence of mistake
or accident and knowledge, as well as all other logical inferences which may arise from the
previous dealings between the victim and the defendant. Therefore, we hold that article 38.36
does not expand rule 404(b) and, thus, does not offend notions of due process.

Id.at 505 (emphasis added).

In sum, these cases demonstrate that the prohibition of evidence of
general character propensity is so deeply embedded in tradition and
historical jurisprudence as to create a substantive due process right.
Accordingly, the defendant asserts that evidence of extraneous conduct for
the sole purpose of general character propensity should be excluded on due
process grounds.
The extraneous conduct evidence should be excluded under
Texas Rule of Evidence 403.
Evidence that is relevant under article 38.37 is nevertheless subject to
exclusion if its probative value is substantially outweighed by the danger of
unfair prejudice. Tex. R. Evid. 403; Poole v. State, 974 S.W.2d 892, 897
(Tex.App.-Austin 1998, pet. ref'd); Sanders v. State, 255 S.W.3d 754, 760
(Tex.App.-Fort Worth 2008, pet. ref d); Hitt v. State, 53 S.W.3d 697, 706
(Tex.App.-Austin 2001, pet. ref'd).

A trial court, when undertaking a Rule 403 analysis, must balance (1)
the inherent probative force of the proffered item of evidence along with (2)
the proponent's need for that evidence against (3) any tendency of the
evidence to suggest decision on an improper basis, (4) any tendency of the
evidence to confuse or distract the jury from the main issues, (5) any
tendency of the evidence to be given undue weight by a jury that has not been
equipped to evaluate the probative force of the evidence, and (6) the
likelihood that presentation of the evidence will consume an inordinate
amount of time or merely repeat evidence already admitted. Gigliobianco v.
State, 210 S.W.3d 637, 64142 (Tex. Crim. App. 2006).
The inherent probative force of the extraneous conduct evidence is
weak because it is both remote from and dissimilar to the charged offense.
The remoteness of an extraneous offense does affect its probative value. See,
e.g., Reyes v. State, 69 S.W.3d 725, 740 (Tex. App.-Corpus Christi 2002, pet.
ref'd). The extraneous conduct may not be too remote from the charged
offense without affecting whether the probative value is substantially
outweighed by the danger of unfair prejudice. Id.; Corley v. State, 987 S.W.2d
615, 620 (Tex. App.-Austin 1999, no pet.).
In Bachhofer v. State, 633 S.W.2d 869 (Tex. Crim. App. [Panel Op.]
1982), the defendant appealed from a conviction of indecency with a child.
The charged offense involved fondling the breast of an 11-year-old during a
slumber party. When the defendant testified that the complainant might be
trying to frame him, the State introduced evidence of a fondling offense

committed by the defendant four years and four months prior to trial. Id. at
872. The court held the extraneous offense was too remote to be admissible
where there was no evidence of other intervening similar offenses, and no
final conviction for the extraneous offense. Id.
Remoteness is of particular significance when, as in this case, the prior
conduct occurred during a defendants youth. In Templin v. State, 711 S.W.2d
30 (Tex.Crim.App.1986), the only evidence of the 27yearold defendant's
guilt in the alleged murder of his wife by electrocution was circumstantial,
and the defense was accidental electrocution. To show opportunity, plan,
intent, and knowledge, the State offered statements made by the defendant
when he was 10 or 12 years old that he had electrocuted dogs and cats. While
the Court recognized the clear relevance of the evidence, the statements
were deemed more prejudicial than probative. The court found the admission
to be clear error in light of the defendants age at the time of the conduct.
Id. at 33-34.
In the case at bar, the extraneous conduct is alleged to have occurred
twelve years prior to the charged conduct, when _ was seventeen years old.
There is no allegation of any intervening misconduct. Accordingly, the prior
misconduct has little probative value regarding _s character at the time of
the charged conduct.
Cases validating the admission of remote prior misconduct have relied
upon the unique similarity of the prior misconduct and the particular need
for the evidence. For example, in Corley v. State, 987 S.W.2d 615, 620 (Tex.

App.-Austin 1999, no pet.), an attempted sexual assault prosecution, the

complainant testified that the defendant followed her home from a bar and
attacked her outside her apartment, where he attempted to force a chemicalsoaked rag into her mouth. Id. at 617. The attack was interrupted by a
neighbors intervention, and the defense characterized the incident as a mere
drunken misdemeanor. Id. To prove Corleys intent to commit sexual
assault, the trial court admitted evidence of an extraneous attempted sexual
assault occurred approximately thirteen years before charged attempt, in
which Corley followed the complainant home from a bar, attacked her
outside her apartment, shoved a rag into her mouth, dragged her into a
wooded area, threatened to rape her, pulled down his pants, and began to kiss
and fondle her. Id. at 618-619. The court found that the remoteness of the
extraneous offense did not render it inadmissible, but it based this decision
on several unique circumstances: (1) that defendant was incarcerated and
unable to commit additional assaults for three to five of intervening years; (2)
that the offenses were uniquely similar; (3) that the need for the evidence was
substantial in light of the defense of lack of intent; and (4) that the case was
bench trial with reduced likelihood of unfair prejudice. Id. at 619-20.
In the instant case, there was no intervening incarceration, and the case
will be tried to a jury. Moreover, the prior alleged conduct is not particularly
similar to the charged conduct. The allegations of prior misconduct involve
defendant, at age 17, making multiple physical advances upon his sisters 12year-old friend, including her kissing and touching her breasts, buttocks, and

vagina. This alleged conduct occurred over several visits to the defendants
home and while the complainant was awake. The charged conduct, in
contrast, involves touching the breast of the 14-year-old daughter of
defendants girlfriend, while the daughter was asleep. There are very few
similarities between the prior and charged conduct.
In Gaytan v. State, 331 S.W.3d 218, 228 (Tex.App.Austin 2011, pet.
ref'd), the defendant was charged with multiple counts of aggravated sexual
assault arising out of his sexual abuse of his niece. The charged offense
involved Gaytan touching his nieces vagina and anus. In opening statement
the defense argued that the complainant was mad at Gaytan because he
would not play with her. Id. at 221-222. The trial court admitted evidence
that Gaytan had sexually abused other female relatives when they were
around the same age by touching their vaginas. Id. at 222. The court of
appeals noted that the allegations of prior abuse were 24 and 28 years old,
rendering the probative value significantly reduced because the passage of
time allows people to change. Id. at 226-27. The court found that, although it
was a close case, the probative value was not substantially outweighed by the
danger of unfair prejudice because (1) the offenses were remarkably similar;
(2) the State needed to rebut a theory of fabrication. Id. at 228.
In the instant case, there are no compelling similarities to overcome the
effect of the passage of time, and there is no fabrication defense to rebut.
Accordingly, the inherent probative value and the need for the evidence are
both weak, and these factors favor exclusion.

Moreover, remoteness is even more pertinent where evidence is

admitted for its bearing on character conformity, as opposed to the other
purposes permitted by Rule 404(b). Courts have recognized that remote
conduct carries little probative value with regard to present character. The
rationale for excluding cross-examination of a character witness concerning
remote acts, events, or convictions, is the same as that for excluding evidence
of remote convictions to impeach the testifying defendant: The reason for the
adoption of the remoteness limitation on impeachment evidence is that a
remote conviction is a poor indication of the accuseds present character. Ex
parte Miller, 330 S.W.3d 610 Tex.Crim.App. 2009), quoting Sinegal v. State,
789 S.W.2d 383, 387 (Tex. App.Houston [1st Dist.] 1990, no pet.) This is
because there is a presumption that one is capable of rehabilitation and that
his character has reformed over a period of law abiding conduct. Morris v.
State, 67 S.W.3d 257, 263 (Tex. App.Houston [1st Dist.] 2001, pet. ref'd);
cf. Tex. R. Evid. 609(b) (providing that conviction greater than ten years old
generally may not be used to impeach witness). Accordingly, if the
extraneous conduct evidence in this case is admitted for purposes of showing
character conformity, remoteness must be given more weight in the 403
analysis than it was given in the cases discussed above.

The remaining factors also favor exclusion. The court must consider
any tendency of the evidence to suggest decision on an improper basis.
This factor is particularly troubling because, in contrast with the cases
discussed above, in which the defendants obtained the benefit of a limiting
instruction, in this case the State will likely request an instruction permitting
consideration of character conformity pursuant to Rule 38.37. If such an
instruction is given, there is nothing to prevent the jury from convicting on
the improper basis of bad character in general. The prejudice inherent in this
process is substantial. Additionally, the admission of the extraneous conduct
evidence, particularly in the absence of a limiting instruction, will likely
confuse or distract the jury from the main issue of deciding the defendants
guilt of the charged offense. Because the alleged prior conduct involved
several incidents and multiple manner and means, the jury will likely give
undue weight to the evidence, and the presentation of the evidence will
likely consume an inordinate amount of time. Accordingly, each factor favors
exclusion pursuant to Rule 403.
In this case, the defendant is substantially at risk of being unduly prejudiced
by admission of character-propensity evidence. Such evidence is likely to

inflame the passions of jury and produce an unfair trial. Such evidence is also
inherently unreliable: a few specific instances of conduct do not provide a
sufficient foundation from which to predict the future conduct of an
individual, and the lapse of time since the alleged prior acts may render
suspect their current predictive value. See United States v. RubioEstrada, 857
F.2d 845, 851 (1st Cir.1988) (dissent) (noting that prior conduct is a
scientifically poor predictor of behavior, citing Weissenberger, Making Sense
of Extrinsic Act Evidence: Federal Rule of Evidence 404(b), 70 Iowa L.Rev.
579 (1985) at n. 78; J. Monahan, Predicting Violent BehaviorAn
Assessment of Clinical Techniques, 4649 (1981)).
The defendant in this case is entitled to exclusion at trial of all
character-propensity evidence, that is, evidence of prior acts to show action
in conformity therewith. The admission of character-propensity evidence is
repugnant to the defendants right to due process. If the Court should decide
to admit evidence of prior bad acts for purposes other than showing action in
conformity therewith, the defendant is entitled to jury instructions which
clearly explain the purposes for which the evidence is permissibly considered.
Spencer v. Texas, 385 U.S. 554, 561 (1967).


Respectfully Submitted,

Mark Bennett
SBN 00792970
Bennett & Bennett
917 Franklin Street, Fourth Floor
Houston, Texas 77002
Attorney for Defendant