Bradshaw, Barney Samuel

Opinion

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

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

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).