cn-ts
NO. PD-0619-15
ORIGINAL
COURT OF APPEALS NO. 06-14-00165-CR
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
icui&iviht
CGURrOFCRiiBIALAPPi-AiS
BARNEY SAMUEL BRADSHAW,
Appellant/Petitioner JUL 2 7 2015
v.
Abe. A*nsfe?., Clm-
THE STATE OF TEXAS,
Appellee/Respondent
FILED \N
"SOURT OF CRIMINAL APPEALS
On appeal from the Sixth Court of Appeals ini q~ n^r
Texarkana, Texas JUL4 7cjiO
Abel Acosta, Clerk
PETITION FOR DISCRETIONARY REVIEW
BARNEY SAMUEL BRADSHAW
PETITIONER
TDCJ No. 01942978
Mark W. Michael Unit
2664 FM 2054
Tennessee Colony, Texas 75886
TABLE OF CONTENTS
Page
Index of Authorities ii
Statement Regarding Oral Argument 1
Statement of the Case 1
Statement of Procedural History 2
Questions Presented for Review 2
Argument 2
Question No. 1 4
Question No . 2 8
Prayer 13
Certificate of Service 13
Appendix
Court of Appeals' Memorandum Opinion
INDEX OF AUTHORITIES
CASES Pgge
Elkins v. State., 647 S.W.2d 663 (Tex.Crim.App. 1983) 10
Gigliobianco v. State, 210 S.W.3d 637 (Tex.Crim.App. 2006)9,10,11
Hitt v. State, 53 S.W.3d 697 (Tex.App.-Austin 2001)... 8
King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) 7
Manning v. State, 114 S.W.3d 922 (Tex.Crim.App. 2003) 6
Mayes v. State, 816 S.W.2d 79 (Tex.Crim.App. 1991) 10
Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App. 1991)..9,10,11
Moses v. State, 105 S.W.3d 622 (Tex.Crim.App. 2003) 6
Sandoval v. State, 409 S.W.3d 259 (Tex.App.-Austin 2013) 6
STATUTES
Tex. Code Crim. Proc. art. 38.37 3,5,8,9
TEXAS RULES OF EVIDENCE
Tex. R. Evid. 402 3
Tex. R. Evid. 403 3,8,9
Tex. R. Evid. 404 3
TEXAS RULES OF APPELLATE PROCEDURE
Tex. R. App. P. 44.2(b) 3
li
NO. PD-0619-15
COURT OF APPEALS NO. 06-14-00165-CR
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
BARNEY SAMUEL BRADSHAW,
Appellant/Petitioner
v.
THE STATE OF TEXAS,
Appellee/Respondent
On appeal from the Sixth Court of Appeals
Texarkana, Texas
PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
BARNEY SAMUEL BRADSHAW, Appellant/Petitioner, petitions the
Court to review the decision affirming his judgment and sentence
in case number 06-14-00165-CR.
STATEMENT REGARDING ORAL ARGUMENT
Petitioner believes that oral argument would assist the Court
in discerning the applicable case law and the pertinent facts.
Petitioner, therefore, requests oral argument.
STATEMENT OF THE CASE
This case involves a prosecution for Continuous Sexual As
sault of a Child. Barney Samuel Bradshaw, Petitioner, was indicted
by the Rusk County grand jury at the November - December Term,
2013.
A jury trial was conducted on July 21-24, 2014. The jury
found Mr. Bradshaw guilty of the indicted offense. The jury as
sessed punishment at 60 years' confinement in the Institutional
Division of the Texas Department of Criminal Justice.
Mr. Bradshaw filed a notice of appeal on September 9, 2014.
STATEMENT OF PROCEDURAL HISTORY
The Court of Appeals for the Sixth District of Texas issued
a memorandum opinion on May 5, 2015. The Court affirmed Mr. Brad-
shaw's judgment and sentence. Bradshaw v. State, No. 06-14-00165-
CR (Tex.App.-Texarkana May 5, 2015).
QUESTIONS PRESENTED FOR REVIEW
1. Did the trial court abuse its discretion by admitting
extraneous offense evidence that Petitioner sexually assaulted
a child because the evidence would not be adequate to support a
finding by the jury that the defendant,committed the separate
offense beyond a reasonable doubt?
2. Did the trial court abuse its discretion by admitting
extraneous evidence that Petitioner sexually assaulted three
children because any probative value of that evidence was sub
stantially outweighed by the danger of unfair prejudice?
ARGUMENT
This case presents two questions ripe for review. In over
ruling Petitioner Barney Samuel Bradshaw's first point, which con
cerns the admission of extraneous offense evidence, the Sixth
Court of Appeals issued a decision that conflicts with the appli-
cable decisions of the Court of Criminal Appeals. In overruling
Mr. Bradshaw's second point, which also concerns the admission, of
extraneous offense evidence, the Sixth Court of Appeals issued a
decision that conflicts with the applicable decisions of the Court
of Criminal Appeals.
Factual Background
It was alleged that in the beginning of the summer of 2012
and continuing through the summer of 2013, Petitioner engaged in
certain sexual acts with Susan Soul (pseudonym). Complainant was,
at the time of those alleged acts, under 14 years of age. (RR5:150)
A pretrial hearing was held on the issue of whether certain
extraneous acts should be.admitted under Tex. Code Crim. Proc. art.
38.37. (RR5:4-132). The State offered testimony of three witnesses
who accused Petitioner of sexually assaulting them when they were
children. (RR5:6-27, 73-103, 103-120). Defense counsel objected to
the admissibility of these extraneous offenses at trial under Tex.
R. Evid. 402, 403 and 404. (RR5:5, 130-131). The State argued that,
notwithstanding the prejudicial effect of the extraneous offenses,
the evidence is admissible under Tex. Code Crim. Proc. art. 38.37.
(RR5:4, 131-132).
Defense counsel also objected to the admission of one of the
extraneous acts specifically because the evidence before the trial
court was insufficient for a finding that the jury could find be
yond a reasonable doubt that the offense had been committed. (RR5:
5, 130-131).
The trial court ruled that testimony regarding all extraneous
acts covered in that hearing would be admitted at trial, and the
3
Court specifically founci that "the evidence is adequate to support
a finding by the jury that the defendant committed each seperate
offense, as set forth in the subject of today's hearing, beyond a
reasonable doubt." (RR5:132).
Counsel was granted a running objection to any reference to,
or admission of, extraneous acts that were the subject matter of
that hearing. (RR5:215, 230, 240, 260; RR6:21). Evidence was pre
sented by the State and Petitioner, and the jury found Petitioner
guilty. (RR6:191).
QUESTION NO. 1
Did the trial court abuse its discretion by admitting
extraneous offense evidence that Petitioner sexually
assaulted a child because the evidence would not be ace
adequate to support a finding by the jury that the
defendant committed the seperate offense beyond a reas
onable doubt?
r
In affirming the trial court's decision to permit the State
to present certain extraneous offense evidence, the Sixth Court
of Appeals issued a decision that conflicts with the applicable
decisions of the Court of Criminal Appeals. When analyzing this
issue, the Sixth Court of Appeals overlooked the case law most on
point, and relied instead on inapposite decisions.
In this case, the trial court admitted testimony of several
witnesses that they were sexually assaulted by Petitioner when
they were children. Trial counsel for Petitioner argued that the
prosecution failed to meet its burden of proving that the extran
eous offense offered by one of the witnesses was accompanied by
sufficient proof to support a finding by the jury that the defend
ant committed the seperate offense beyond a reasonable doubt.
(RR5:5, 130-131). In the pretrial hearing in which this evidence
was offered, the State argued that the extraneous offense would
be admissible under Tex. Code Crim. Proc. art. 38.37 to show the
character of Petitioner, and that he has a propensity to commit
the kind of offense charged in the indictment. (RR5:131-132).
Counsel for Petitioner objected to the admission of this evi
dence on the grounds that it did not satisfy Tex. Code Crim. Proc.
art. 38.37 § 2(a)., which requires that a court conduct a hearing
outside the presence of the jury to "determine that the evidence
likely to be admitted at trial will be adequate to support a find
ing by the jury that the defendant committed the seperate offense
beyond a reasonable doubt."
Petitioner's trial counsel specifically objected to the ex
traneous evidence offered by one of the victims, which was event-
tually admitted at trial. Trial counsel pointed out that the al
leged offense was not supported by sufficient proof to lead to an
indictment after it was presented to a grand jury in an adjoining
county, and therefore would not have the proof necessary for the
trial court to determine that it would support a finding by the
jury that Petitioner committed the offense beyond a reasonable
doubt. (RR5:5, 130-131). After the hearing was held on the admis
sibility of the extraneous evidence, the trial court issued a
ruling that the testimony of the three witnesses be admitted at
trial. (RR5:132). The trial court stated that it specifically
found that the evidence is adequate to support a finding by the
jury that the defendant committed each seperate offense beyond a
reasonable doubt. (RR5.-132).
Petitioner argues the trial court abused its discretion in
finding the extraneous evidence alleged by Brianna Parra is ade
quate to support a finding, by the jury that the defendant committed
that act beyond a reasonable doubt. Ms. Parra was allowed to test
ify about an alleged incident wherein she claimed Petitioner sex
ually assaulted her when she was a child. (RR6:21-43). That al
leged incident had previously been presented to a Gregg County
grand jury and was no-billed. (RR5:20-21, 35-36).
A complaint about the admission of extraneous offense evi
dence is reviewed under an abuse of discretion standard. See Moses
v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003). The test for
abuse of discretion is whether the trial court's action falls with
in the zone of reasonable disagreement. Manning v. State, 114 S.W.
3d 922, 926 (Tex.Crim.App. 2003). Because a grand jury had pre
viously found that there was no probable cause that the allegation
occurred, it can be said with some confidence that this trial
court's finding - that the evidence before it was adequate to sup
port a finding by the jury that the defendant committed that act
beyond a reasonable doubt - falls beyond the zone of reasonable
disagreement.
If the trial court abused its discretion by admitting evidence
of the extraneous offense alleged by Ms. Parra, the reviewing court
must determine whether the error is reversible. Tex. R. App. P.
44.2(b). The error here is not constitutional, so we must deter
mine if it affects substantial rights. Sandoval v. State, 409 S.W.
3d 259, 304 (Tex.App.-Austin 2013, no pet.). A substantial right
is violated when the error made the subject of complaint had a
substantial and injurious effect or influence in determining the
jury's verdict. King v. State, 953 S.W.3d 266, 271 (Tex.Crim.App.
1997).
The extraneous offense alleged by Ms. Parra substantially
affected the jury's verdict because of the similarity between the
extraneous offense and the indicted offense. Ms. Parra's trial
testimony was that Petitioner digitally penetrated her in a bath
room during a party at Petitioner's house when she was 13 years
old. (RR6:28-32). This testimony is"strikingly similar to the un
derlying facts of the indicted offense, wherein the complainant
testified that Petitioner sexually assaulted her in a bathroom
during a party at Petitioner's house when she was 12 or 13 years
old. (RR5:149-152). Additionally, this type of extraneous evidence
is especially devastating when presented to the jury in a case of
continuous sexual assault of a child, and Petitioner will elabor
ate on that point in the following argument of Petitioner's peti
tion.
In sum, the Sixth Court of Appeals' decision is in conflict
with the applicable decisions of the Court of Criminal Appeals.
The admission of the extraneous offense evidence affected Peti
tioner's substantial rights. The trial court abused its discretion
in admitting the extraneous offense evidence. Consequently, Mr.
Bradshaw respectfully asks the Court of Criminal Appeals to grant
review in this matter.
QUESTION NO. 2
Did the trial court abuse its discretion by admitting
extraneous evidence that Petitioner sexually assaulted
three children because any probative value of that evi
dence was substantially outweighed by the danger of un
fair prejudice?
In overruling the extraneous evidence issue raised by Mr.
Bradshaw, the Sixth Court of Appeals issued a decision that con
flicts with the applicable decisions of the Court of Criminal Ap
peals. Once again, when analyzing the extraneous evidence issue,
the Sixth Court of Appeals overlooked the case law most on point,
and relied instead on inapposite decisions.
During the trial in this cause, the court admitted testimony
of various witnesses consisting of allegations of extraneous of
fenses committed by Petitioner against three children. The trial
court admitted the evidence after a pre-trial hearing was held
outside the presence of the jury. (RR5:6-132). The trial court
ruled in favor of the State's proposition that the evidence should
be admitted under Tex. Code Crim. Proc. art. 38.37 § 2. That sec
tion provides that evidence that the defendant has committed cer
tain seperate offenses may be admitted in a trial such as this
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. Id.
Evidence that is admissible under Article 38.37 may be ex
cluded under Tex. R. Evid. 403 if its probative value is substan
tially outweighed by the danger of unfair prejudice or confusion
of the issues. Tex. R. Evid. 403; Hitt v. State, 53 S.W.3d 697,-
706 (Tex.App.-Austin 2001, pet. ref'd). When a rule 403 objection
8
is made, the trial court must engage in a balancing process. Mont
gomery v. State, 810 S.W.2d 372, 381 (Tex.Crim.App. 1991). In con
ducting this balancing test, courts should consider the following:
(1) the inherent probative force of the proffered evidence along
with (2) the proponent's need for that evidence against (3) any
tendency of the evidence to suggest a decision on an improper bas
is, (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
its probative force, 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, 641 (Tex.Crim.App. 2006).
Petitioner asserts that, based on the analysis set forth
above, the trial court abused its discretion in permitting test
imony that Petitioner committed seperate, extraneous sexual as
saults against the three witnesses. Petitioner made various writ
ten and verbal objections to the admission of the extraneous evi
dence, all of which were overruled by the court. (RR5:215, 230,
240, 260; RR6:21). Petitioner not only argued that the evidence
could not fall under Tex. Code. Crim. Proc. art. 38.37 § 2 as it
was offered by the State, but that it would be so prejudicial that
it would poison the minds of the jury and lead to a conviction
based on that evidence alone. (RR5:130).
The first factor for consideration under Rule 403 is the in
herent probative force of the evidence. If true, any evidence that
Petitioner had sexually assaulted other children is certainly
relevant to his character in a general sense and his propensity
to commit crimes such as the one for which he was tried in this
case.
Also, the trial court must consider the likelihood that the
evidence in question will cause the jury to base their verdict
not on evidence relating to the elements of the charged offenses,
but instead on an improper basis, such as an emotional response
to, or bias against, the defendant. Gigliobianco, 210 S.W.3d 641-
642. Unfair evidence is that which has an undue tendency to sug
gest that a decision be made on an improper basis, commonly an
emotional one. Montgomery, 810 S.W.2d at 389. Evidence that a
defendant has a propensity to commit sexual assaults on children
is very likely to cause a conviction in a trial for that very of
fense; however, it is not material to whether he is guilty of the
specified conduct which is charged. See Elkins v. State, 647 S.W.
2d 663, 665 (Tex.Crim.App. 1983); see also Mayes v. State, 816
S.W.2d 79, 86 (Tex.Crim.App. 1991) (noting that evidence of a
defendant's bad character traits possesses such a devastating im
pact on a jury's rational disposition towards other evidence, and
is such poor evidence of guilt, that an independant mandatory rule
was created for its exclusion).
During its case in chief, three witnesses for the prosecution
each seperately testified as follows regarding offenses committed
against them by Petitioner when they were children:
"He just -- he told me to turn around and bend over, but
I didn't. I just stood there. I was standing there cry
ing the whole time...[h]e told me to touch myself. He
said if I didn't, then he would."
10
(RR5:223)
"I think he was trying to penetrate me, not with his
other private parts. I told him to stop. I don't rememb
er how it stopped, but I just left."
(RR5:248)
"After I used the restroom, Sam walks in. And after he
walks in, he bends me over the sink and starts fingering
me.
(RR6:29).
There is no mistaking the highly prejudicial force of such
testimony, and Petitioner asserts that it was an abuse of the trial
court's discretion to allow the testimony in light of the unfair
prejudice and likelihood of confusion it created.
Next, the court in Gigliobianco, 210 S.W.3d at 641-642, con
siders any tendency of the evidence to be given undue weight by a
jury that has not been equipped to evaluate its probative force.
Both sexually related misconduct and misconduct involving children
are inherently inflamatory. Montgomery, 810 S.W.2d at 397. Here,
the trial court attempted to ameliorate the inherently inflamatory
extraneous evidence by including in the Charge of the Court an
instruction that Petitioner is on trial solely on the charges in
the indictment, and that extraneous evidence may be considered for
the limited purpose of showing the Defendant's intent or state of
mind. (CRl:151).
Despite the limiting language in the Charge of the Court,
the State spent significant time and testimony presenting evidence
of the extraneous evidence. During the State's case in chief,
thirty-two pages of the record are spent on direct examination of
the complainant. (RR5). Direct examination of the alleged victims
11
of the extraneous offenses cover fifty-eight pages of the record.
(RR5; RR6). The fact that the State spent a greater amount of time
with the extraneous evidence demonstrates the likelihood that the
jury gave it undue weight. The fact that the State spent so much
time developing the evidence also illustrates the tendency of the
evidence to confuse or distract the jury from the charged offense.
In conclusion, Petitioner asserts error on the part of the
trial court in its application of Tex. R. Evid. 403 for the fol
lowing reasons : (1) the extraneous evidence was only probative as
to the character of Petitioner, but not as to the elements of the
charged offense; (2) the State could not articulate a valid reason
why it needed to present evidence of the extraneous offenses other
than to prove Petitioner's character was in conformity with the
charged offense; (3) there was a significant likelihood that the
evidence would cause the jury to determine the verdict based on
Petitioner's character; (4) there was a significant likelihood
that the extraneous offenses would confuse or distract the jury
from theelemehts of the charged offense; (5) there was a great
probability that the jury would give undue weight to evidence of
the extraneous offense that a charge from the court could not
cure; and (6) the State consumed an inordinate amount of time de
veloping evidence of the extrabeous offenses.
In short, the Sixth Court of Appeals' decision is in conflict
with the applicable decisions of the Court of Criminal Appeals.
As a result, Mr. Bradshaw suggests that some guidance from the
Court of Criminal Appeals is needed.
12
PRAYER
For the reasons herein alleged, Petitioner Barney Samuel
Bradshaw prays that this Court grant this petition and, upon re
viewing the judgment entered below, reverse this cause and remand
this case for a new trial.
Respectfully submitted,
BARNEY SAMUEL BRADSHAW
PETITIONER
TDCJ No. 01942978
Mark W. Michael Unit
2664 FM 2054
Tennessee Colony, Texas 75886
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the fore
going petition has been served by placing same in the United
States Mail, postage prepaid, on the 22nd day of July, 2015, ad
dressed to:
State Prosecuting Attorney
Post Office Box 13046
Austin, Texas 78711-3046
Rusk County District Attorney
115 N. Main Street
Henderson, Texas 75652
BARNEY SAMUEL BRADSHAW
PETITIONER
13
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00165-CR
BARNEY SAMUEL BRADSHAW, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 4th District Court
Rusk County, Texas
Trial Court No. CR13-289
Before Morriss, C.J., Moseley and Burgess, JJ.
Opinion by Chief Justice Morriss
OPINION
In prosecuting Barney Samuel Bradshaw for the continuous sexual abuse of S.S.,1 a girl
less than fourteen years of age at the time of the offense, the State was allowed to use evidence of
three extraneous acts of sexual misconduct by Bradshaw, one against each of two other girls who
lived in the same house as Bradshaw and one against a girl who visited the house. See Tex. Code
Crim. Proc. Ann. art. 38.37 (West Supp. 2014). B.P., the visiting girl, testified to Bradshaw's
digitally penetrating her vagina after furnishing alcoholic beverages to her, then aged thirteen.
A.G. testified that, at age fifteen, she was forced by Bradshaw to disrobe for him. K.M. testified
that, when she was sixteen or seventeen years old, Bradshaw touched her breasts and private parts
under her clothing.
Bradshaw's appeal of his conviction and sixty-year sentence complains of the admission
of these extraneous offenses. We affirm the trial court's judgment, because, assessed by our abuse-
of-discretion standard of review, (1) under Article 38.37, sufficient evidence supported admission
of the evidence of B.P.'s sexual assault and (2) under Evidence Rule 403, the prejudicial effect of
the evidence from A.G. and K.M. did not outweigh its probative value.
(1) Under Article 38.37, Sufficient Evidence Supported Admission of the Evidence of B.P. 's
Sexual Assault
Bradshaw claims error in the admission into evidence of testimony concerning the sexual
assault against B.P., because that evidence was not adequate to support a jury finding that, beyond
a reasonable doubt, he committed the separate offense. He centers his argument on the fact that a
'We identify all alleged minor victims by their initialsto protect their identities. See, e.g., TEX. R. APP. P.9.10.
2
grand jury no-billed him on that charge. But, because there was more evidence available to this
trial court than to the grand jury, we disagree.
Article 38.37 permits the introduction of "[e]vidence of extraneous offenses or acts" in
certain types of sexual abuse cases, including this one. See Tex. Code Crim. Proc. Ann. art.
38.37. The relevant portions of this Article provide,
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:
(B) Section 21.02 (Continuous Sexual Abuse of Young Child or
Children);
(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 (2) 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 thejury for that purpose.
Tex. Code Crim. Proc. Ann. art. 38.37, §§ 2, 2-a.
Evidence of the initial extraneous offense was presented to the trial court at a hearing
conducted outside the presence of the jury, as required by Section 2-a(2). At the conclusion of
3
the hearing, the trial court determined that the evidence relating to the sexual assault of B.P. was
adequate to support a finding by the jury that, beyond a reasonable doubt, Bradshaw committed
the offense. Bradshaw claims the trial court erred in this determination.
"[A] trial court's ruling on the admissibility of extraneous offenses is reviewed undsr an
abuse-of-discretion standard." Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011)
(citing Prible v. State, 175 S.W.3d 724,731 (Tex. Crim. App. 2005)). "A trial court does not abuse
its discretion if the decision to admit evidence is within the 'zone of reasonable disagreement.'"
Marsh v. State, 343 S.W.3d 475, 478 (Tex. App.—Texarkana 2011, pet. refd) (quoting
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g)). "If the trial
court's decision on the admission of evidence is supported by the record, there is no abuse of
discretion, and the trial court will not be reversed." Id. (citing Osbourn v. State, 92 S.W.3d 531,
537 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 379). In determining whether the trial
court abused its discretion, "[w]e may not substitute our own decision for that of the trial court."
Marsh, 343 S.W.3d at 478 (citing Moses v: State, 105 S.W!3d 622, 627 (Tex. Crim. App. 2003)).
At a hearing conducted outside the jury's presence, B.P. testified that, in October 2010,
when she was thirteen, she attended a sleepover birthday party at the home of Bradshaw's step
daughter, A.G. Bradshaw, who was living in the home with A.G.'s mother, provided alcohol to
the young teenagers at the party. Bradshaw was also drinking and "acting weird." At one point
in the evening, B.P. was left alone outside with Bradshaw, where the girls had been enjoying a
bonfire. While the two were alone, Bradshaw asked B.P. if "he could perv on [her]." Although
B.P. did not understand what Bradshaw meant, she told him that he could not. Bradshaw then
kissed B.P. on the lips, even though she protested. B.P. was scared and went into the house to use
the restroom. As she was at the sink washing her hands, Bradshaw entered the bathroom, bent
B.P. over the sink and inserted his fingers into her vagina, moving them in and out. Bradshaw told
B.P., while she was crying and protesting, that he was "going to f- the s- out of [her]." Bradshaw
eventually stopped and walked out of the bathroom.
B.P. explained that she did not immediately tell anyone of this encounter because she was
scared. Instead, B.P. and her friends decided to go to Walmart to purchase toilet paper for the
purpose of "TP'ing" trees "at people's houses." After the group returned to A.G.'s house, B.P.
called a friend to drive her home.2 Before she left, Bradshaw told B.P. that "he was going to f-
the s- out of [her] over and over again." Soon thereafter, B.P.'s friend arrived and took her home,3
whereon B.P. took a shower.
After B.P. told her mother about the assault that same morning, B.P.'s mother took her to
the police station, wherethe incident was reported to Officer Dee Ann Brownof the Kilgore Police
Department. B.P. was examinedby a sexual-assault nurse examiner(S.A.N.E.) at Good Shepherd
Hospital that day.4 After the examination, Brown followed B.P. and her mother home from the
hospital to collect the panties B.P. was wearing at the time of the incident5 and logged them into
2B.P. described her eighteen-year-old friend as someone who was like a brother to her. This friend died in an
automobile accident in 2013.
3Before returning home, B.P. and her friend sat in the Walmart parking lot for about an hour. B.P. was afraid toreturn
home to tell her mother what had happened.
4The examination failed to reveal anytrauma.
5A photograph of B.P.'s blood-stained underwear from the night of the abuse was introduced as an exhibit. B.P.
explained that theblood was a result of the abuse and that she was not having herperiod that day.
evidence. B.P. was subsequently interviewed by an employee of the Child Advocacy Center
(CAC) in Longview.6
Officer Kealsey Keahey, a detective with the Criminal Investigation Division of the
Kilgore Police Department, was assigned to investigate the aggravated sexual assault claim.
Keahey was able to observe, by television screen in a private room, B.P.'s CAC interview as it
occurred. During the interview, B.P. stated that, while at a friend's house, Bradshaw sexually
assaulted her in the bathroom of his home.
Keahey subsequently interviewed Bradshaw, who claimed that B.P. fabricated the event as
an excuse to leave the house with the friend who came to pick her up. Bradshaw conceded that,
at one point during the evening, he was alone in the bathroom with B.P. According to Bradshaw,
he and B.P. were in the bathroom brushing their teeth, when B.P. shut the door. As Bradshaw was
leaving, he stated that B.P. backed up into him, but that he moved her away and left. Bradshaw
claimed he told B.P. to wait until she was eighteen.7
At the conclusion of his investigation, Keahey obtained an arrest warrant for Bradshaw
and submitted the evidence to the Gregg County District Attorney's Office. B.P. was never called
to testify before the grand jury, and the case against Bradshaw was ultimately no-billed.
Bradshaw contends that, because the case against him was no-billed by the grand jury, the
trial court abused its discretion in finding that the evidence before it was adequate to support a
6After the incident, B.P. began regular counseling at the CAC, which lasted for approximately one year. B.P.'s CAC
counselor testified that B.P.'s behavior was consistent with someone who had been sexually abused.
•7
Keahey also interviewed the friend who took B.P. home from Bradshaw's house. The friend explained that he thought
of B.P. as a sister and that there was never a romantic element to their relationship.
finding by the jury that, beyond a reasonable doubt, he committed the offense. Bradshaw does not
cite any authority in support of this contention. In the interests of justice, however, we will
nevertheless address his complaint.8
The fact that the grand jury did not indict Bradshaw for the alleged aggravated sexual
assault of B.P. is of no consequence to the trial court's determination of whether evidence of this
conduct was properly admitted under Article 38.37 of the Texas Code of Criminal Procedure. A
no-bill does not mean that Bradshaw did not commit the separate offense; rather, it "is merely a
finding that the specific evidence brought before the particular Grand Jury did not convince them
to formally charge a person with an offense." Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim.
App. 1996). Consequently, no-billed conduct can be admissible as an extraneous offense. See id.
(regarding admissibility at punishment phase).
Here, the State called four witness to testify at the Article 38.37 hearing regarding
Bradshaw's alleged sexual assault of B.P. in October 2010. Two of these witnesses were B.P. and
her mother, neither of whom testified before the Grand Jury. These witnesses, together with
Keahey—who likewise did not testify before the Grand Jury—offered detailed testimony
regarding B.P.'s encounter with Bradshaw and the ensuing investigation of that encounter. The
trial court also viewed a video-recorded statement from Bradshaw regarding the encounter and
was able to judge Bradshaw's credibility, along with the credibility of the other extraneous-offense
witnesses. After hearing this evidence, as previously outlined, the trial court determined that the
'Although evidence ofthree separate extraneous offenses was introduced at the Article 38.37 hearing, Bradshaw only
complainsthat the evidence involving the alleged assault on B.P. was not sufficient, if believed by the jury, to support
a finding that Bradshaw committed that offense beyond a reasonable doubt.
7
evidence likely to be admitted at trial, if believed, would be adequate to support a finding by the
jury that Bradshaw committed the extraneous offense of aggravated sexual assault of a child.
Under Section 22.021 of the Texas Penal Code, a person commits the offense of aggravated
sexual assault of a child if the person intentionally or knowingly causes the penetration of the
sexual organ of a victim younger than fourteen years of age. Tex. Penal Code Ann.
§ 22.021(a)(1)(B), (a)(2)(B) (West Supp. 2014). In light of the Article 38.37 hearing, we cannot
say that the trial court abused its discretion in finding that the evidence likely to be admitted at
trial would be adequate to support a finding by the jury that Bradshaw committed the offense of
aggravated sexual assault of B.P. in October 2010. We therefore overrule this point of error.
(2) Under Evidence Rule 403, the Prejudicial Effect ofthe Evidence from A.G. and K.M. Did
Not Outweigh Its Probative Value
Bradshaw also contends that evidence of each of the three Article 38.37 extraneous
offenses should have been excluded because the probative value of each was substantially
outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. Texas courts have yet to
address the issue of whether the Rule 403 balancing test must be applied when considering the
admission of evidence of extraneous offenses allegedly committed against a child other than the
victim of the charged offense, under Sections 2 and 2-a of Article 38.37.9 While the statute
'Section 1(b) of the Article allows for the admission of evidence "[notwithstanding Rules 404 and 405, Texas Rules
of Evidence, of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the
alleged offense," although for reasons different than those articulated in Section 2. TEX. CODE Crim. PROC. Ann. art.
38.37, § 1(b) (West Supp. 2014) (emphasis added). Extraneous-offense evidence offered under Section 1(b) is subject
to Rule 403 scrutiny. See Hitt v. State, 53 S.W.3d 697, 706 (Tex. App.—Austin 2001, pet. ref d); Walker v. State, 4
S.W.3d 98, 103 (Tex. App.—Waco 1999, pet. refd); Poole v. State, 974 S.W.2d 892, 897 (Tex. App.—Austin 1998,
pet. refd); Ernst v. State, 971 S.W.2d 698, 700-01 (Tex. App.—Austin 1998, no pet.).
8
specifically provides that Rules 404 and 405 of the Texas Rules of Evidence10 do not render
inadmissible evidence of certain separate offenses described therein, it makes no such exception
for Rule 403.
"When the Legislature amends a statute, we presume the Legislature meant to change the
law, and we give effect to the intended change." Brown v. State, 915 S.W.2d 533, 536 (Tex.
App.—Dallas 1995), aff'd, 943 S.W.2d 35 (Tex. Crim. App. 1997). Likewise, we must presume
the Legislature employed each word for a particular purpose and similarly omitted each word for
a particular purpose. Id.; see State v. N.R.J., 453 S.W.3d 76, 77 (Tex. App.—Fort Worth 2014,
pet. filed) ("We presume that the legislature chooses a statute's language with care, deciding to
include or omit words for a purpose."); Mireles v. State, AAA S.W.3d 679, 684 (Tex. App.—
Houston [14th Dist.] 2014, pet. filed) (same).
We therefore conclude that, because the Legislature failed to include Rule 403 ofthe Texas
Rules of Evidence in the list of the evidentiary rules (404 and 405) that would not render evidence
of certain separate offenses inadmissible, this omission was intentional. Indeed, nothing in
Article 38.37 removes evidence, otherwise admissible under Sections 2 and 2-a, from Rule 403
scrutiny.
The legislative history of these amendments indicates that Sections 2 and 2-a were added
to Article 38.37 in 2013 to authorize "evidence of other sexual-related offenses allegedly
committed by the defendant against a child to be admitted in the trial of certain sexual-related
l0Rule 404 generally prohibits the use of character evidence to prove a person acted in accordance with a character
trait. Tex. R. Evid. 404. Rule 405 provides for specific methods of proving character, when evidence of a person's
character is admissible. Tex. R. Evid. 405.
offenses for any bearing the evidence has on relevant matters." House Comm. on Criminal
Procedure Reform, Select, Bill Analysis, Tex. S.B. 12, 83d Leg., R.S. (2013). In doing so, the
Legislature recognized that the revision of Article 38.37 "will bring the Texas Rules of Evidence
closer to the Federal Rules of Evidence, specifically Federal Rule 413(a), which allows evidence
of previous sexual assault cases to be admitted at trial." Senate Comm. on Criminal Justice. Bill
Analysis, Tex. S.B. 12, 83d Leg., R.S. (2013). Federal courts have likewise determined that the
Rule 403 balancing test must be applied when considering the admission of evidence under Rule
413(a)." See Martinez v. Cui, 608 F.3d 54, 60 (1st Cir. 2010); United States v. Dillon, 532 F.3d
379, 387 (5th Cir. 2008); United States v. Guidry, 456 F.3d 493, 503 (5th Cir. 2006); Seeley v.
Chase, 443 F.3d 1290, 1294-95 (10th Cir. 2006); see also United States v. Guardia, 135 F.3d
1326, 1330 (10th Cir. 1998) (collecting cases applying Rule 403 to Rules 413 and 414).
Article 38.37 instructs that evidence of prior sexual assaults may be admitted "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." Tex. Code Crim. Proc Ann. art.
38.37, § 2(b). This broad allowance for admission is limited by Rule 403's balancing test, which
permits admission of evidence as long as its probative value is not substantially outweighed by its
potential for unfair prejudice. See Tex. R. Evid. 403. In reviewing the trial court's admission of
this evidence for an abuse of discretion, we recognize that the amendments to Article 38.37 reflect
the stated intent to remove the propensity bar to the admissibility of certain evidence.
"Rule 413(a) of the Federal Rules of Evidence states, "In a criminal case in which a defendant is accused of a sexual
assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be
considered on any matter to which it is relevant." Fed. R. Evid. 413(a).
10
Here, the State sought to admit testimony regarding three uncharged sexual assaults
allegedly committed by Bradshaw against three different victims and gave timely notice pursuant
to Section 3 of the statute. See Tex. Code Crim. Proc. Ann. art. 38.37, § 3. On appeal, Bradshaw
.contends that "the trial court abused its discretion by admitting extraneous evidence that appellant
sexually assaulted three children because any probative value of that evidence was substantially
outweighed by the danger of unfair prejudice."
As to the alleged sexual assault of B.P., Bradshaw's only objection to extraneous-offense
testimony at the Article 38.37 hearing was as follows:
In connection with B.P.'s case, Your Honor, we certainly think the fact that it was
no billed is compelling, because somebody looked at it independent of us and made
the determination that there was insufficient evidence after a pretty thorough
investigation, it sounds to me like, to bring it to a grand ~ to bring it to trial, to a
jury, to return an indictment. So we would object to that on that basis.
When B.P. was called to testify at trial, Bradshaw objected, stating, "And we renew our objection
to that, Your Honor." That objection was overruled. Bradshawnever objected to this extraneous-
offense evidence as unfairly prejudicial under Rule 403. "The point of error on appeal must
correspond or comport with the objection made at trial." Wright v. State, 154 S.W.3d 235, 241
(Tex. App.—Texarkana 2005, pet. ref d) (citing Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim.
App. 1998)). "Where a trial objection does not comport with the issue raised on appeal, the
appellant has preserved nothing for review." Id.; see Tex. R. App. P. 33.1; Ibarra v. State, 11
S.W.3d 189, 197 (Tex. Crim. App. 1999). An objection thatB.P.'s case was no-billed by a grand
jury does not preserve the issue of whether extraneous-offense evidence regarding the alleged
sexual assault of B.P. was unfairly prejudicial to Bradshaw under Rule 403. Because Bradshaw
11
failed to raise a Rule 403 objection to this extraneous-offense evidence at trial, we find that
Bradshaw has failed* to preserve this issue for appellate review as to the B.P. evidence.
The two remaining extraneous offenses related to A.G., Bradshaw's stepdaughter, and
K.M., A.G.'s sister. Because Bradshaw objected to evidence regarding each of these offenses as
"highly prejudicial" and "wholly for purposes of poisoning the minds of the jury with extraneous
allegations," Bradshaw preserved his objection under the prejudice prong of Rule 403 regarding
this evidence.12
When A.G. was fifteen years old, Bradshaw allegedly forced her to disrobe for him in
exchange for a ride to volleyball practice. Bradshaw told A.G. that, if she did not undress for him,
something bad would happen to A.G.'s mother—Bradshaw's wife. A.G. complied and testified
that Bradshaw never actually touched her. Bradshaw then told A.G. "to turn around and bend
over," and to spread her legs, but she refused.
The final extraneous-offense witness was K.M., A.G.'s sister. Although K.M. lived in the
Bradshaw home with A.G.and the rest of the family, A.G. was K.M.'s only relative in the home.
K.M. testified that, when she was sixteen or seventeen, Bradshaw called her into his bedroom early
one morning. When K.M. positioned herself on the bed, Bradshaw reached under her clothes and
touched her breasts and her "private parts." After having done this, Bradshaw told K.M. that he
did not have "the best intentions." At that point, K.M. left the room. A few weeks later, when
K.M. told A.G. what happened with Bradshaw, A.G. confessed that both she and S.S., the victim
l2Bradshaw also briefly complains that this evidence was confusing to the jury. No objection was made on this basis
at trial. Consequently,any complaint regardingjury confusion was not preserved for appeal. See TEX. R. App. P. 33.1.
12
in this case, had "sexual problems" with Bradshaw as well. When the girls later visited their Aunt
Miranda in Fort Worth during the summer of 2013, they told her-of their encounters with
Bradshaw, stating that they wanted "this to stop." Miranda immediately called the police to report
the collective outcry.
The charged offense involves a claim that Bradshaw continuously sexually assaulted S.S.
during the summertime between her seventh and eighth grade years of school when she was
thirteen years old, and for some portion of the following school year. The assaults against S.S.
took place in the home where Bradshaw lived with his wife, who is S.S. and A.G.'s mother. Both
A.G. and K.M. described encounters with Bradshaw in this home as well. This testimony is
probative as it provides valuable context in which S.S.'s claims could be evaluated by the jury. It
further illuminates the circumstances in which S.S.'s outcry was made to her Aunt Miranda. The
collective outcry by A.G., K.M., and S.S. happened only when they disclosed to each other the
"sexual problems" Bradshaw caused each of them. The outcry happened in the midst of great
angst and emotion. The girls were described as "crying hysterically," at which time A.G. told
Miranda that "[Bradshaw has] been messing with us, and we can't take anymore, and [S.S.] has
been getting the brunt of it."
Bradshaw claims, though, that this evidence is unfairly prejudicial for the very reason the
statute—and the documented legislative history—allows for its admissibility. He contends that,
because this evidence indicates a propensity to commit sexual assaults on children, it should be
excluded. The statute recognizes that evidence of this type is, by definition, propensity, or
character evidence. It is admissible notwithstanding those characteristics. See Tex. Code Crim.
13
Proc. Ann. art. 38.37, § 2. This evidence was clearly prejudicial to Bradshaw's case. However,
"the plain language of Rule 403 does not allow a trial court to exclude otherwise relevant evidence
when that evidence is merely prejudicial." Pawlak v. State, 420 S.W.3d 807, 81.1 (Tex. Crim. App.
2013). Further, Rule 403 "should be used sparingly to exclude relevant, otherwise admissible
evidence that might bear on the credibility of either the defendant or complainant in such 'he said,
she said' cases [involving sexual assault]." Hammer v. State, 296 S.W.3d 555, 562 (Tex. Crim.
App. 2009). Here, the Legislature specifically acknowledged the fact that,
because of the nature of child sex offenses, there is typically very little evidence to
assist prosecutors with proving their cases. Victims, especially children, are many
times so scarred by the physical and emotional trauma of the event that there are
often long delays in the reporting of the crime, and these delays can lead to the
destruction or deterioration of what little physical evidence exists. As a result, the
primary piece of evidence in most child sexual abuse cases is a traumatized child.
Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 12, 83d Leg. R.S. (2013). In the
absence of the extraneous-offense evidence, this becomes a "he said, she said" case. Under the
appropriate standard of review, we are unable to conclude that the trial court abused its discretion
in admitting testimony of the extraneous offenses. See Pawlak, 420 S.W.3d at 810 (ruling on Rule
403 objection reviewed for abuse of discretion).
14
Bradshaw, Barney Samuel
Combined Opinion