Rule 403 of the Texas Rules of Evidence provides that a court may exclude evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.


Article 38.37, Section 2 of the Texas Code of Criminal Procedure, allows the prosecution to use specific extraneous offenses or bad acts involving children for any relevant purpose, such as proof of the defendant’s character and their propensity to act in conformity of that character—so long as the charged offense alleges certain sex crimes against children.


For example, Section 2(b) permits the admission of evidence that the defendant committed a separate offense against a “child victim” who is not the victim in the case for which the defendant is being tried.


And that is where the tension begins with the two statutes.


The legislative purpose of Rule 403 is to exclude harmful, prejudicial evidence to ensure a fair trial with due process. Art. 38.37, Section 2(b) carves out exceptions to Rule 403’s purpose that not only undermines but guts a defendant’s long-held constitutional right to a fair trial.


To illustrate this point, Art. 38.37, Section 2(b) allows the admission of other child sexual offenses for which a defendant has not been charged, tried for, or convicted. This evidence admission rule is so extreme that it permits the introduction of uncharged allegations of sex crimes, even those not reported or investigated, allegedly committed against a victim other than the victim in the case for which the defendant is currently being tried.


Recognizing its potential to undermine the right to a fair trial, Texas courts have carved out some procedural safeguards to Art. 38.37, Section 2(b). For example, the article requires that such extraneous offense evidence is admissible only if the extraneous offense is one of the specific offenses enumerated in the article itself, all of which involve some sort of sexual misconduct.


Other safeguards require that before such extraneous offense evidence can be admitted under Art. 38.37, Section 2(b), the trial court 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 jury’s presence for that purpose.


Rule 403 provides some additional, although weak, evidentiary safeguards if the trial court determines under Art. 38.37, Section 2(b), that the extraneous offense evidence is admissible.


If the opponent of the evidence makes a proper objection, Rule 403 requires the trial court to undertake an analysis that must balance the probative value of the extraneous offense evidence and the prosecution’s need for it against:

  1. Any tendency of the evidence to suggest a decision on an improper basis.
  2. Any tendency of the evidence to confuse or distract the jury from the main issues.
  3. Any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the force of the evidence.
  4. The likelihood that the presentation of the evidence would amount to undue delay of the trial.


This is where the tension between the two statutes reaches a point where the right to a fair trial is at serious risk.


Once the trial court conducts the non-discretionary Rule 403 balancing analysis and decides to admit the Art. 38.37, Section 2(b) extraneous offense and/or bad acts evidence, the defendant must make (1) a timely, specific objection, request, or motion to the trial court stating the specific grounds for the ruling sought; and (2) the trial court must either rule or refuse to rule on the request triggering a responsibility on the defendant to object to the court’s refusal to rule.


Both requirements must be met to ensure that the issue will be preserved for appeal.


Texas courts of appeal review a trial court’s decision to admit or exclude extraneous offense evidence for an abuse of discretion.


So, precisely what is considered an abuse of discretion?


The Texas Court of Criminal Appeals says it’s any decision that “lies outside the zone of reasonable disagreement.”


Under this zone, the trial court may admit “prejudicial” extraneous offense or bad acts evidence so long as the prejudice is not “unfair.”


Against this backdrop, the Court of Criminal Appeals has said that the danger of unfair prejudice exists only when the evidence has “the potential to impress the jury in an irrational way.”


Finally, the Court of Criminal Appeals has held that a trial court’s decision to admit extraneous offense/bad acts evidence, even if “flawed, will be upheld “if it is correct on any theory of law that finds support in the record and is applicable to the case.”


This reasoning links to the court’s non-constitutional error standard—or what is more commonly referred to as the “harmless error” rule. Under this rule, the erroneous admission of evidence that does not result in a constitutional error will be disregarded (as though it did not happen) if the error did not affect the defendant’s substantial rights.


And, so, what is a substantial right?


That is a right that, when violated, the violation has a substantial or injurious effect or influence in determining the jury’s verdict.


And how is that appellate determination made?


The Court of Criminal Appeals has instructed Texas courts of appeals, when assessing whether a trial court’s wrongful admission of evidence adversely affected the jury’s decision that “they consider the entire record, including all the evidence presented at trial, the nature of the evidence supporting the jury’s verdict, the character of the alleged error and how it might be considered, together with the other evidence in the case, the trial court’s instructions to the jury, and whether the evidence of the defendant’s guilt is overwhelming.”


In effect, the issue is whether there is a “reasonable possibility” that the extraneous offense or bad acts evidence contributed to the jury’s guilty verdict. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.


Put simply, a child sexual assault conviction involving the use of extraneous offense or bad acts evidence will not be reversed on appeal only if the appellate review determines that the evidence did not influence or only slightly influenced the jury’s verdict.


The Court of Criminal Appeals has also firmly established the premise that in its judgment, the primary intent of Rule 403 is to admit relevant evidence based on the principle that such evidence is “more probative than prejudicial.”


In essence, prejudicial evidence, as extraneous offense evidence inherently is, is okay so long as the trial court thinks it’s admissible and the appellate court does not think its prejudicial impact influenced the jury’s guilty verdict.


We disagree with this entire judicial premise dealing with extraneous offense or bad acts evidence in child sexual assault cases.


The Texas Legislature enacted Art. 38.37, Section 2(b) full well knowing that it would make securing child sexual assault convictions easier, regardless of its prejudicial impact on the right to a fair trial. The Legislature did not enact Art. 38.37, Section 2(b), to protect the right to a fair trial. The lawmakers, many of whom were attorneys and former prosecutors, knew that the kind of extraneous evidence permitted by Art. 38.37, Section 2(b)—a propensity to sexually assault children, regardless of how unsubstantiated—would allow the jury to infer guilt on the offense they were seated to decide.


That was, is, and will remain the intent of Art. 38.37, Section 2(b).  Every legislative session, feel good legislation proclaiming the need to protect children from child predators makes it easier for prosecutors to achieve guilty verdicts.  These new statutes not only make it easier for prosecutors to win their cases, but also more likely that defendants will be wrongfully convicted of crimes they did not commit.  Defense attorneys must be vigilant and prepared to object to extraneous offense evidence and then be ready to confront that evidence when it is eventually admitted.  This is not a fight for the novice.