The rules of evidence generally prohibit the use of crimes, wrongs, or other bad acts to prove a person’s character to show that a person acted accordingly on a particular occasion. This rule assures that the person accused is tried based on the evidence of the case rather than past bad character, which is highly prejudicial. 


Texas courts generally recognize that extraneous offense evidence is any act of prior misconduct not shown in the charging indictment or information. This misconduct does not have to have resulted in a conviction. Legally speaking, there is no significant difference between an extraneous bad act and an extraneous offense. Both constitute extraneous offense evidence. 


Extraneous Offense Evidence in Sex Cases


Historically, Texas law recognized that evidence of extraneous offenses in sex cases was inadmissible evidence. But in 1911, the Court of Criminal Appeals carved out a narrow exception to this general rule in Battles v. State. That narrow exception was that a trial judge could use their discretion to determine whether extraneous offense evidence was “relevant” to the issue being tried in a given case. 


Texas prosecutors took advantage of this so-called narrow exception over the next six decades to introduce a wide range of extraneous acts in child sex cases, which often rely solely on the testimony of one witness. Prosecutors knew what they were doing. The introduction of extraneous bad acts has a singular purpose—to paint the defendant as a “child molester” and prejudice the minds of the jury.


In 1975, the U.S. Congress established the Federal Rules of Criminal Evidence. One of the most important, if not the most important, of these Rules was 404(b).


Rules of Evidence 404(b)


Writing in the 1985 Villanova Law Review, Professor of Law Emeritus Edward J. Imwinkeiried UC Davis School of Law and the most cited legal academic in the country in the area of Evidence law, explained why: 


“The first sentence of rule 404(b) forbids the proponent, usually a prosecutor, from offering evidence of the defendant’s uncharged misconduct to support a general inference of bad character. The prosecutor may not introduce the evidence to establish the defendant’s immoral, law-breaking character and then rely upon the defendant’s demonstrated bad character to increase the probability that the defendant committed the crime alleged in the indictment or information. The second sentence of rule 404(b) does, however, permit the proponent to offer such evidence when it has ‘independent’ logical relevance. That is, the second sentence of the rule permits the proponent to introduce evidence that is relevant under a non-character theory, such as proving the defendant’s motive, intent, or identity.


“These two sentences of rule 404(b) codify the “uncharged misconduct” doctrine. The doctrine is of enormous importance in civil and criminal practice. For example, in products liability cases, proof of other accidents involving the defendant’s product often is the most cogent proof of the product’s hazardous character. Similarly, in criminal practice, the admissibility of the defendant’s other crimes is the premier evidentiary issue. In most jurisdictions, alleged errors in the admission of evidence of uncharged misconduct are the most common ground for appeal, and in many states they are the most frequent ground for reversal. In federal courts, rule 404(b) has generated more reported decisions than any other subsection of the Federal Rules.”


Texas 404(b)


Texas Rule of Evidence 404(b) is virtually identical to its federal counterpart; in short, extraneous offense evidence is admissible if shown to be relevant. The Texas Court of Criminal Appeals in Montgomery v. State in 1990, however, established the firm rule that extraneous evidence not relevant is “absolutely inadmissible.”


Thus, the two subsections of Texas Rule 404, (a) and (b), were specifically intended to prohibit the use of extraneous offenses, including other wrongs or acts, to prove the defendant’s character or conduct. Rule 404(b)(2) nonetheless authorized the use of extraneous offense evidence to prove other relevant issues such as “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”


This subsection offered a procedural protection that, upon timely request by defense counsel, the prosecution had to provide “reasonable notice” of its intent to use such evidence. Such notice allowed the defense to object and argue for the trial court to conduct a relevancy hearing under Rule 403 to determine if the probative value of the extraneous offense evidence outweighed its inherent prejudice. The Rule 403 analysis rested exclusively within the purview of the trial judge’s discretion and was subject to reversal only for an abuse of that discretion.


Texas Code of Criminal Procedure 38.37 


That remained pretty much the lay of the “extraneous offense” land until 1995 when the Texas Legislature, comprised of many former prosecutors, enacted Article 38.37 of the Texas Code of Criminal Procedure. This statute allowed for the admission of evidence of extraneous sexual misconduct by a defendant against a victim named in the indictment “for its bearing on relevant matters.” Criminal defense attorneys immediately criticized the statute as a return to the pre-Rule 404(b) era when prosecutors could pretty much at will offer extraneous evidence against a criminal defendant.


Under Article 38.37, the prosecution still had to serve notice on the defendant of its intention to use extraneous acts involving the victim. The trial court, upon a timely and proper request by the defense, could instruct the jury that it could consider this evidence in the narrow context of 1) showing the state of mind of the defendant and the child and 2) establishing the previous and subsequent relationship between the defendant and the child.


Then things got worse. 


2013 Amendment to 38.37, Sec. 2


Texas prosecutors returned to a prosecution-friendly legislature in 2013 and secured an amendment to Article 38.37 that allowed prosecutors to introduce extraneous evidence of sexual misconduct with children other than the one named in the indictment. This evidence could be introduced in the prosecution’s case in chief for any bearing on relevant matters, including conformity with character. The new section 2(b) of the article greatly expanded the State’s ability to use what is commonly known as “extraneous crimes” evidence to demonstrate a defendant’s propensity for sexual misconduct with children.


The 2013 amendment served only to escalate tension between the prosecution and the defense over the use of extraneous offense evidence. Prosecutors know that in a close case, especially when there was only the word of the child to make its case, the mere allegation of sexual acts against other children would compel a jury to more readily find guilt in the charged offense. 


Legislature Intended to Stack the Deck, Tilt the Scales


The legislature’s intent to stack the deck was evidenced by a report from the Texas Senate Research Center that advised lawmakers about the proposed 2013 amendment:


“Evidence of prior, similar offenses against other victims will provide prosecutors with a much-needed tool to assist them in showing a defendant’s propensity for committing these types of crimes. This, in conjunction with the evidence presented in the current case, may help to prove beyond a reasonable doubt in a juror’s mind that the defendant is in fact guilty.” 


In ordinary language, the Texas Legislature rigged child sex cases to allow juries to find guilt based on the adage of “where there is smoke, there’s fire.”


The law on extraneous offense evidence in Texas overwhelmingly favors the prosecution in sex cases. A decision by the trial court to allow Article 38.37 evidence will be reversed only if the judge acts arbitrarily, unreasonably, or without any reference to any guiding rules or principle governing the use of such evidence. A trial court’s decision to admit extraneous offense evidence is generally within what is known as the “zone of reasonable disagreement” if the evidence shows that 1) an extraneous transaction is relevant to a material, non-propensity issue, and 2) the probative value of that evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”


While Rule 404(b) still stands as an evidentiary bar to prohibit the “child molester” type of extraneous offense evidence, Art. 38.37 Sec. 2 has encouraged its use in certain types of child sex offenses, such as continuous sexual assault of a child, indecency with a child, child pornography, etc. It then allows specific types of extraneous offense evidence to be admitted for any bearing that evidence has on relevant matters, including conformity with character. The First District Court of Appeal in Jeansonne v. State made this clear on April 20, 2021.


403 Objections and Analysis


But as the Court of Appeals pointed out on June 17, 2021 in Brown v. State, “even if extraneous offense evidence is admissible under Texas Code of Criminal Procedure article 38.37, a trial court has a nondiscretionary obligation to weigh the probative value of the evidence against any unfair prejudice of its admission when, as here, a defendant objects to the admission of extraneous offense evidence based on Texas Rule of Evidence 403 … When conducting rule 403 analysis, the trial court must balance the probative force of and the proponent’s need for the evidence against (1) any tendency of the evidence to suggest decision on an improper basis; and (2) any tendency of the evidence to confuse or distract the jury from the main issue; (3) 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 (4) the likelihood that presentation of the evidence will amount to undue delay … A rule 403 analysis favors admissibility of relevant evidence, and a trial court’s conclusion that the danger of unfair prejudice does not substantially outweigh the evidence’s probative value is entitled to deference.”


That is the procedural obstacle every defense lawyer faces in a child sex case when extraneous evidence is noticed for use. It is no easy hurdle. In such cases, it is vital that defense counsel object to extraneous evidence offered under Texas Code of Criminal Procedure article 38.37 and demand a hearing outside the jury’s presence. The object of the hearing is to assure compliance with the 38.37, which is very specific as to offenses that qualify. Further, before such evidence is admitted, the trial court must determine the evidence will be adequate to a support finding by a jury that the defendant committed the act beyond a reasonable doubt.  


Counsel must then object under Rule 403 and be prepared to demonstrate why the prejudicial impact of the evidence far exceeds any probative value.


This type of bad character evidence can be devastating in a criminal case involving allegations of a sex crime, which already carry a stigma of prejudice. Thus, defense counsel would be well advised to prepare to make the objections to admissibility and then craft a strategy if and when the court lets it in.