TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00025-CR NO. 03-17-00026-CR NO. 03-17-00027-CR
Charles Fischer, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT NOS. D-1-DC-12-900145, D-1-DC-12-900147 & D-1-DC-16-904072 HONORABLE KAREN SAGE, JUDGE PRESIDING
MEMORANDUM OPINION
Charles Fischer appeals his convictions on multiple indictments for six counts of
indecency with a child by contact, four counts of sexual assault of a child, and three counts of
indecency with a child by exposure committed against D.W., J.G., and A.M. when Fischer was their
treating psychiatrist at Austin State Hospital. See Tex. Penal Code § 21.11(a)(1), (2).1 After a three-
and-a-half week trial, the jury assessed Fischer’s punishment at twenty years’ imprisonment for each
1 Charges in three causes were consolidated for trial. In cause number D-1-DC-12-900145, the jury convicted Fischer of two counts of indecency with a child by contact and one count of indecency with a child by exposure against D.W. In cause number D-1-DC-12-900147, the jury convicted Fischer of two counts of indecency with a child by contact, one count of indecency with a child by exposure, and four counts of sexual assault of a child against J.G. In cause number D-1-DC-16-904072, the jury convicted Fischer of two counts of indecency with a child and one count of one count of indecency with a child by exposure against A.M. count of indecency with a child by sexual contact; twenty years’ imprisonment for each count of
sexual assault of a child;2 and ten years’ imprisonment for each count of indecency with a child by
exposure, but recommended suspension of the ten-year sentences and placement on community
supervision.3 The district court rendered judgments of conviction on the jury’s verdicts.
In sixteen issues on appeal, Fischer contends that the district court violated his
constitutional rights to an impartial jury, to counsel, and to effective assistance of counsel by
preventing his attorney from asking the venire two questions: whether they could maintain the
presumption of innocence, and whether they could consider probation, in light of a multiplicity of
accusations. Fischer also contends that the statute concerning evidence of extraneous acts or
offenses in article 38.37 of the Texas Code of Criminal Procedure is unconstitutional on its face and
as applied to him, that the district court abused its discretion by admitting extraneous evidence of
sexual misconduct, and that article 38.37 violates the Ex Post Facto Clause. We will affirm the
district court’s judgments of conviction.
BACKGROUND
The jury heard that Charles Fischer committed the charged offenses against D.W.,
J.G., and A.M. when Fischer was their treating psychiatrist at Austin State Hospital. Fischer’s
patients in the Child and Adolescent Psychiatric Services Unit were primarily adolescent boys with
2 In cause number D-1-DC-12-900147, involving the sexual assault of a child offenses against J.G., count 3 was subsumed by count 1, and count 5 was subsumed by count 4. 3 The district court ordered that the sentences in cause numbers D-1-DC-16-900145 and D-1-DC-16-904072 would run concurrently. But the court ordered that the sentences in cause number D-1-DC-16-900147 would run consecutively to the sentences in the other two causes.
2 severe behavioral problems, intellectual disabilities, mental illness, depression, pervasive
developmental disorders, or a serious history of physical, sexual, and mental abuse. In 2011, the
Department of Family and Protective Services investigated a sexual abuse allegation made against
Fischer. After the Department confirmed that allegation, the Austin Police Department reexamined
other allegations against Fischer, eventually resulting in his charges for the offenses at issue here.4
During Fischer’s trial for the offenses against D.W., J.G., and A.M., the jury heard
testimony from four additional victims, Z.L., W.C., B.R., and D.W.R. The district court admitted
evidence from those four victims under article 38.37 of the Code of Criminal Procedure. At the
conclusion of the trial, the jury convicted Fischer of six counts of indecency with a child by contact,
four counts of sexual assault of a child, and three counts of indecency with a child by exposure and
assessed punishment. The district court rendered judgments in accordance with the jury’s verdicts.
Fischer filed a motion for new trial that was overruled by operation of law. This appeal followed.
DISCUSSION
Issues 1-12: Voir dire questions as to presumption of innocence and community supervision
In his first twelve issues, Fischer contends that the district court violated his
constitutional rights to an impartial jury, to counsel, and to effective assistance of counsel by
preventing his attorney from asking the venire two questions: whether they could maintain the
presumption of innocence, and whether they could consider the minimum sentence, in light of a
multiplicity of accusations.5 We review a trial court’s ruling limiting voir dire questioning for an
4 Charges concerning a fourth victim, B.W., were dismissed because B.W. refused to testify. 5 The court split the 150-person panel into two groups of 75 for the sake of convenience.
3 abuse of discretion. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002); see Samaripas v.
State, 454 S.W.3d 1, 5 (Tex. Crim. App. 2014) (“A trial court has broad discretion over the voir dire
process, including setting reasonable limits and determining the propriety of a particular question.”).
In this context, a trial court abuses its discretion only when a proper question about a proper area of
inquiry is prohibited. Samaripas, 454 S.W.3d at 5. Further, the Texas Court of Criminal Appeals
has concluded that even if a voir dire question is erroneously denied, no harm results when the record
reflects that counsel was able to ask the venire a question that was “essentially the same” as the
denied question or that elicited the same information that the denied question sought to elicit. Woods
v. State, 152 S.W.3d 105, 110 (Tex. Crim. App. 2004); Rachal v. State, 917 S.W.2d 799, 815 (Tex.
Crim. App. 1996).
1. Presumption of innocence
Here, defense counsel proposed asking the venire whether they could maintain the
presumption of innocence given the many charges against him. After hearing the parties’ arguments,
the court refused defense counsel’s precise question but allowed him to ask other questions that were
nearly the same as counsel’s proposed question:
[Defense counsel]: Solely on the issue of presumption of innocence, I propose to inform the jury of how many charges he’s charged with, the title of charges, not go into the elements or any facts of the charges, and then question them in light of the fact that he is charged with that many charges, can you still maintain the presumption of innocence.
....
THE COURT: What if—here’s what I’m willing to do: Ask them about the presumption of innocence, and without going into specifically
4 the number of counts, what if there [was] more than one count, does that change your view. Without discussing specifically the number of counts, but making it clear that the presumption applies, like you say, whether it’s zero to a hundred counts. I mean, you can say it applies if there’s more than—and if there’s more than one count, without going specifically into the number of counts, but putting it out there.
[Defense counsel]: Let me be very clear about the question I propose. I propose to ask the jurors, again, explain the law to them on presumption of innocence, that the charging instruments are not evidence that the fact that a person has been indicted and charged is not evidence of guilt. The law is they have to maintain presumption of innocence. Even though someone is indicted, that presumption applies regardless of how many charges there are in the indictment. In this case, there are—I would list the charges by name only, not the elements, no facts, and I would then ask the jury, [“]In light of the fact that those charges are against the defendant in this case, can you still maintain the presumption of innocence?[”]
THE COURT: I think that’s going to create the impression there are more victims. I mean, is there—would you not be okay by saying, [“]The presumption applies no matter how many counts[”] and without asking for a commitment question and just ask them if it would change their view if there were numerous counts[?]
[Defense counsel]: I think I’m entitled to ask the questions I just stated into the record.
THE COURT: I’ll allow you to ask the question I just stated.
During voir dire, defense counsel asked several variations of the presumption question, including
with reference to “multiple offenses” and “multiple charges,” as he had proposed:
5 • This is kind of a tough question, but, again, I want to ask you to be honest about it. Frankly, it scares me to death. The presumption of innocence applies when a person is charged with one charge in a trial or whether they’re charged with a hundred. And my fear is that if someone is charged with more than one offense, that may affect the presumption of innocence. And if it does, that’s fine. There’s nothing wrong with that. It may be human nature. But I want to hear your answers to that. I’ll start down here. Number 1, if someone is charged with more than one offense, do you feel like because they’re charged with multiple offenses that they may be guilty to some degree just because they’re charged with more than one?
• Do you think if somebody is charged with more than [one] offense, whether it’s two or a hundred, that if you find out they are charged with more than one, you might think they were guilty of something just because they were charged—6
• Just the fact there are multiple charges, would that affect the presumption of innocence for you?
• Can you separate out the charges and just say if the person is accused of one or a hundred charges, how would that affect your view of whether he might be guilty just based on the charges?
• I just want to talk with you about—several of you said, well, depends on the circumstances. . . Can you think of circumstances where there could be multiple charges, multiple victims, and be false outcries?
• If a person is charged with multiple charges, the presumption of innocence still applies. . . . But what I’d like to know from you is, in a case where there’s multiple charges, where the person is accused of—you know, you pick a number. Does that affect your opinion of the presumption of innocence? Do you feel like if there’s multiple charges, that person must have done something and therefore he may be guilty some what because he’s been charged with multiple crimes?
On this record, Fischer has not shown harm from the court’s ruling as to the
presumption-of-innocence question because defense counsel was able to ask essentially the same
question that he proposed. See Woods, 152 S.W.3d at 110; Rachal, 917 S.W.2d at 815.
6 Defense counsel’s question was interrupted by a prospective juror responding, “No.”
6 2. Consideration of probation
Defense counsel also proposed informing the prospective jurors that “in this case, the
charges include two counts of aggravated sexual assault of a child, seven counts of indecency with
a child by contact, five counts of indecency with a child by exposure, and nine counts of sexual
assault of a child” and that they “ha[d] the option of giving probation [i.e., community supervision]
on each and every count.” He proposed asking the venire “whether they could consider probation
on multiple counts of indecency” and “as the appropriate punishment under some circumstances for
all counts in the indictment[s] that are joined for trial on the case.” The court denied the request,
stating that “the venireman only needs to be willing to consider the full range of punishment for the
offenses committed” and “committing a panelist to consider community supervision if they were to
convict on multiple counts is improper and would be fact specific.”
The Court of Criminal Appeals has stated that a prospective juror must be able to
“consider the full range of punishment for the offense generally, and not for some specific manner
and means of committing the offense.” Johnson v. State, 982 S.W.2d 403, 406 (Tex. Crim. App.
1998). The Court has further stated that counsel “veers into impermissible commitment questions
when [counsel] attempts to commit a veniremember to consider the minimum sentence based on
specific evidentiary facts.” Cardenas v. State, 325 S.W.3d 179, 184 (Tex. Crim. App. 2010); see
Shot with Two Arrows v. State, 64 S.W.3d 606, 607 (Tex. App.—Fort Worth 2001, no pet.) (noting
that juror “must only be able to consider the minimum sentence in an appropriate case, not a fact
specific hypothetical involving multiple convictions for separate offenses”).
7 Here, defense counsel proposed informing the prospective jurors of Fischer’s specific
charges in this case and then asking them whether they could consider probation as punishment on
multiple counts of indecency and on all counts of the indictments in the causes joined for trial. By
this question, counsel intended to go beyond the minimum requirement of confirming whether jurors
could consider probation for a particular charged offense, and instead ask about a group of separately
indicted offenses in this specific case. See Shot with Two Arrows, 64 S.W.3d at 608.
Further, we note that as to the most serious counts Fischer faced—aggravated sexual
assault of a child7—defense counsel was not prevented from asking prospective jurors individually
whether they could consider facts that would make probation appropriate:
The count of Aggravated Sexual Assault or the charge of Aggravated Sexual Assault basically means a person intentionally or knowingly causes penetration of the anus of a child by any means, and the child is younger than 14 years of age. I’m not doing—what was done earlier is lumping a lot of stuff together. I’m talking about these particular elements. Can you conceive of a set of facts where you would think probation would be appropriate for these elements?
That question was asked after the venire had been informed of the multiple counts against Fischer,
and the prospective jurors who responded that they could not consider probation for those
elements of aggravated sexual assault were not seated on the jury. See, e.g., Alvarez v. State,
No. 11-05-00100-CR, 2006 Tex. App. LEXIS 2824, at *8 (Tex. App.—Eastland Apr. 6, 2006, no
pet.) (mem. op., not designated for publication) (noting that even if trial court erred in permitting
commitment questions that included reference to victim’s age, defendant was not harmed where
7 The jury acquitted Fischer of these counts.
8 none of panel members who said that they could not consider probation served on jury). Moreover,
those who were seated on Fischer’s jury showed their ability to consider probation, despite having
convicted him of multiple offenses against multiple victims, by ultimately recommending probation
for each of the counts of indecency with a child by exposure.
On this record, Fischer has not shown harm—i.e., a substantial and injurious effect
or influence on the jury’s verdict—from the court’s rulings on the specific questions defense counsel
proposed to ask the venire as to the presumption of innocence and consideration of probation in the
context of multiple charges. See Tex. R. App. P. 44.2(b); Woods, 152 S.W.3d at 109–10. Contrary
to Fischer’s contention, the court did not “categorical[ly] deny” defense counsel’s inquiries, and
Fischer has not shown that the court’s rulings violated his constitutional rights to an impartial jury,
to counsel, and to effective assistance of counsel. We overrule Fischer’s first twelve issues.
Issues 13: Facial constitutionality of Texas Code of Criminal Procedure art. 38.37
In his thirteenth issue, Fischer contends that article 38.37 of the Code of Criminal
Procedure pertaining to evidence of extraneous offenses is unconstitutional on its face because it
violates constitutional due-process protections. Fischer complains specifically about section 2(b)
of article 38.37, which applies to trials for certain sexual offenses—including indecency with a child
and sexual assault of a child as charged here—and allows admission of evidence showing that the
defendant committed a separate sexual offense “for any bearing the evidence has on relevant
matters,” including the defendant’s character:
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
9 in 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.
Tex. Code Crim. Proc. art. 38.37, § 2(b); id. § 2(a)(1)(C)–(D); Robisheaux v. State, 483 S.W.3d 205,
210 (Tex. App.—Austin 2016, pet. ref’d). Before that type of evidence may be introduced, article
38.37 requires the trial judge to conduct a hearing outside the presence of the jury to determine
whether the evidence “will be adequate to support a finding by the jury that the defendant committed
the separate offense beyond a reasonable doubt.” Id. § 2-a. The State must give a defendant 30
days’ notice before trial of its intent to use such extraneous-offense evidence in its case in chief. Id.
§ 3.
“A party raising a facial challenge to the constitutionality of a statute must
demonstrate that the statute operates unconstitutionally in all of its applications.” State ex rel. Lykos
v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011); see Estes v. State, 546 S.W.3d 691, 697–98
(Tex. Crim. App. 2018). “In a facial challenge to a statute’s constitutionality, courts consider the
statute only as it is written, rather than how it operates in practice.” Lykos, 330 S.W.3d at 908.
However, in Robisheaux v. State, we held that section 2(b) of article 38.37 was not shown to operate
unconstitutionally in all its applications, and we rejected the contention that the statute denied
defendants due process and due course of law. 483 S.W.3d at 209, 213; see Burke v. State,
No. 04-16-00220-CR, 2017 Tex. App. LEXIS 4248, at *2–4 (Tex. App.—San Antonio May 10,
2017, pet. ref’d) (mem. op., not designated for publication) (applying Robisheaux to case transferred
from this Court); see also Waters v. State, No. 02-17-00368-CR, 2018 Tex. App. LEXIS 10304, at
*4 (Tex. App.—Fort Worth Dec. 13, 2018, no pet. h.) (mem. op., not designated for publication)
10 (noting that court’s previous rejection of facial challenge to constitutionality of article 38.37 alleging
due process and fair trial violations). Accordingly, we overrule Fischer’s thirteenth issue.
Issues 14–15: Constitutionality of article 38.37 as applied and admission of extraneous
evidence
In his fourteenth and fifteenth issues, Fischer contends that article 38.37 of the Code
of Criminal Procedure is unconstitutional as applied to him and that the district court abused its
discretion by admitting extraneous evidence of sexual misconduct involving Z.L., W.C., B.R., and
D.W.R. Fischer states that article 38.37 has withstood constitutional challenges because in many
cases there is no evidence of the offense besides the child’s accusation, but in his view, that concern
is not applicable here because the jury was presented with multiple indictments of child sexual
abuse. Under these circumstances, Fischer contends that admission of the extraneous evidence of
sexual misconduct was unfairly prejudicial, violating his constitutional right to due process and his
right to a fair trial.
1. As applied challenge to article 38.37
“[I]n an as-applied challenge, the claimant ‘concedes the general constitutionality of
the statute, but asserts that the statute is unconstitutional as applied to his particular facts and
circumstances.’” Estes, 546 S.W.3d at 698 (quoting Lykos, 330 S.W.3d at 910). Because a statute
may be valid as applied to one set of facts but invalid as applied to another set of facts, a claimant
must show that, in its operation, the challenged statute was unconstitutionally applied to him. Lykos,
330 S.W.3d at 910. Our review of a statute’s constitutionality begins with the presumption that the
11 statute is valid and that the Legislature acted reasonably by enacting it. Faust v. State, 491 S.W.3d
733, 743–44 (Tex. Crim. App. 2015); see Estes, 546 S.W.3d at 698.
Fischer contends that the two aspects of article 38.37 designed to provide him with
due process—Rule 403 and the trial court’s sufficiency review—“were worthless” here and did not
protect him from an unfair trial. He points out that “Rule 403 excluded none of the extraneous cases
against [him]” and says that their cumulative effect was to weaken the State’s burden of proof as to
the allegations in the indictment. However, Fischer does not dispute that the procedural protections
in article 38.37—pretrial notice of intent to introduce an extraneous sexual offense and a hearing on
the evidentiary sufficiency of such extraneous offense—were followed before any evidence of
extraneous conduct was admitted and that the district court complied with Rule 403. As the State
notes, the mere fact that the application of Rule 403 did not result in the exclusion of any extraneous
evidence does not show that Fischer’s due-process rights were violated. We conclude that Fischer
failed to meet his burden of establishing that the statute operated unconstitutionally as applied to his
particular set of facts and circumstances. See Lykos, 330 S.W.3d at 910.
2. Rule 403 balancing
Fischer further contends that the district court abused its discretion by admitting the
“revolting” extraneous-conduct evidence offered at trial over his Rule 403 objections. As we have
noted, article 38.37 provides that evidence of separate sexual offenses, besides those for which the
defendant is being tried, may be admissible character-conformity evidence. See Tex. Code Crim.
Proc. art. 38.37, § 2(b). However, even extraneous-offense evidence admissible under article 38.37
may be excluded under Texas Rule of Evidence 403. See Robisheaux, 483 S.W.3d at 212 (noting
12 that article 38.37 section 2(b) allows admission of separate sexual offense evidence
“[n]otwithstanding Rules 404 and 405” but not excluding Rule 403). Rule 403 provides that even
relevant evidence may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury; by considerations of undue delay;
or by needless presentation of cumulative evidence. Id. When conducting a Rule 403 analysis, the
trial court must balance: (1) the inherent probative force of the proffered item of evidence along with
(2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest
decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from
the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not
been equipped to evaluate the probative force of the evidence, and (6) the likelihood that
presentation of the evidence will consume an inordinate amount of time or merely repeat evidence
already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). These
factors may blend together in practice. Id. at 642.
We review a trial court’s decision to admit or exclude evidence, as well as its decision
as to whether the probative value of evidence was substantially outweighed by the danger of unfair
prejudice, under an abuse of discretion standard. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex.
Crim. App. 2018). The trial court does not abuse its discretion unless its determination lies outside
the zone of reasonable disagreement, and we may not substitute our own decision for that of the trial
court. Id.; see United States v. Fields, 483 F.3d 313, 354 (5th Cir. 2007) (noting that trial courts are
afforded “especially high level of deference” for Rule 403 determinations); Robisheaux, 483 S.W.3d
at 218 (citing Fields).
13 The State correctly notes that as to the extraneous acts involving Z.L., Fischer did not
raise an objection seeking to exclude Z.L.’s testimony on Rule 403 or on due-process grounds and
has thus failed to preserve his complaint as to the admission of extraneous acts involving Z.L. See
Tex. R. App. P. 33.1(a). As to the other three individuals, W.C., B.R., and D.W.R., the extraneous-
conduct evidence admitted at trial did not deprive Fischer of the right to be convicted only upon
proof beyond a reasonable doubt of every fact necessary to constitute the offenses he was charged
with committing, and the court could have reasonably concluded that the evidence of extraneous acts
in this case was not unfairly prejudicial.
The first three factors the court had to consider in its Rule 403 balancing were the
inherent probative force of the proffered evidence, the proponent’s need for that evidence, and any
tendency of the evidence to suggest decision on an improper basis. The record shows that the
probative force of the evidence was strong, that the State needed the evidence to address attempts
to undermine the credibility of the victims who were Fischer’s institutionalized patients, and the
tendency of the evidence to suggest decision on an improper basis was no more so than in other
prosecutions involving child sexual abuse. Specifically, the jury heard evidence that:
• when D.W. was fifteen, Fischer masturbated in front of him and stimulated D.W.’s penis;
• when J.G. was fourteen, Fischer masturbated in front of him, had J.G. perform oral sex on Fischer, and touched J.G.’s penis; and
• when A.M. was between twelve and fourteen, Fischer masturbated in front of him, stroked A.M.’s penis, forced A.M. to touch Fischer’s penis, and anally penetrated A.M.
14 The extraneous-conduct evidence alleged similarly that:
• when Z.L. was sixteen, Fischer masturbated in front of him, performed oral sex on him, had Z.L. perform oral sex on Fischer, and penetrated Z.L.’s anus;
• when W.C. was fifteen or sixteen, Fischer exposed himself to W.C. and performed oral sex on W.C.;
• when B.R. was eight or nine and until he was sixteen, Fischer engaged in various forms of sexual contact with him, including touching B.R.’s penis, performing oral sex on B.R., and having B.R. perform oral sex on Fischer; and
• when D.W.R. was fourteen, Fischer performed oral sex on D.W.R., had D.W.R. penetrate him anally, and had D.W.R. perform oral sex on Fischer.
Fischer’s conduct towards Z.L., W.C., B.R., and D.W.R. bore strong similarity to the charged
conduct against D.W., J.G., and A.M. The victims were of similar ages, and in most instances, the
circumstances of the crime was nearly identical, involving institutionalized child victims who were
abused by a physician at that institution. Fischer acknowledges that W.C.’s and D.W.R.’s evidence
had probative value, but Fischer challenges B.R.’s testimony because of its relative dissimilarity and
remoteness. However, as we noted Robisheaux, remoteness is only one factor in determining the
probative value of an offense. 483 S.W.3d at 219. Further, the rationale for discounting remote
conduct is that people may change with the passage of time. Gaytan v. State, 331 S.W.3d 218, 226
(Tex. App.—Austin 2011, pet. denied). Here, the intervening extraneous acts indicate that Fischer
has not changed over time, rebutting the remoteness defense.
The court in this case could have also reasonably concluded that the State had a strong
need for this extraneous evidence because Fischer’s victims were children with mental illness, who
were particularly vulnerable to attacks on their credibility. Defense counsel raised the issue of their
15 mental illnesses and diagnoses during his opening statement, suggesting that the allegations were
not truthful. Moreover, although “sexually related bad acts and misconduct involving children are
inherently inflammatory,” Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013), “the plain
language of Rule 403 does not allow a trial court to exclude otherwise relevant evidence when that
evidence is merely prejudicial,” id., and the extraneous conduct was no more “revolting” or
fundamentally different in character than Fischer’s charged offenses. Thus, these first three factors
weighed in favor of the admissibility of the evidence.
As to the next factors the court had to consider, we note that the evidence as to the
extraneous offenses was not confusing or technical in nature and would not tend to mislead the jury,
which weighs in favor of admission of the evidence. See Gigliobianco, 210 S.W.3d at 641 (noting
that scientific evidence is of type that “might mislead a jury that is not properly equipped to judge
the probative force of the evidence”). Further, because the quality of the extraneous-conduct
evidence—firsthand recollections of events of abuse from the victims—was identical to that of the
charged offenses, the district court could have reasonably concluded that the jury was unlikely to
give it undue weight.
Finally, the court had to consider the likelihood that presentation of the evidence
would consume an inordinate amount of time or merely repeat evidence already admitted. As to this
factor, the court could have reasonably determined that the presentation of the extraneous conduct
evidence from these witnesses would be time-consuming to address but not merely duplicative or
prolonged such that it impacted the “efficiency of the trial proceeding.” Id.
16 Accordingly, we conclude that the district court could have determined, within the
zone of reasonable disagreement, that the probative value of the evidence of these separate sexual
offenses was not substantially outweighed by a danger of unfair prejudice under Rule 403. We
overrule Fischer’s fourteenth and fifteenth issues.
Issue 16: Application of article 38.37 did not violate Ex Post Facto Clause
In his sixteenth and final issue, Fischer contends that the application of article 38.37
of the Code of Criminal Procedure violates the Ex Post Facto Clause of the United States
Constitution, which states that “[n]o . . . ex post facto Law shall be passed.” U.S. Const. art. I, § 9.
The Ex Post Facto Clause prohibits:
• Every law that makes an action done before the passing of the law—and which was innocent when done—criminal, and punishes such action;
• Every law that aggravates a crime, or makes it greater than it was, when committed;
• Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed; and
• Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.
Peugh v. United States, 569 U. S. 530, 538 (2013) (citing Calder v. Bull, 3 U.S. 386, 390 (1798)).
Only the last prohibition, addressing changes in evidentiary rules to permit lesser or different
evidence than legally required at the time of the offense, is at issue here.
Fischer was charged with acts that occurred in 2001, 2002, and March 2003.
Effective September 1, 2003, the Legislature amended article 38.37, allowing the admission of
17 evidence showing that the defendant committed a separate sexual offense “for any bearing the
evidence has on relevant matters.” See Act of May 17, 2013, 83d Leg., R.S., ch. 387, §§ 1–3, 2013
Tex. Gen. Laws 1167, 1167–68 (codified at Tex. Code Crim. Proc. art. 38.37). Before that
amendment, Fischer notes that Texas Rule of Evidence 404(b) excluded evidence of a defendant’s
extraneous “bad acts” if it was offered to prove propensity but allowed admission of such evidence
for other purposes. See Tex. R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.
Crim. App. 1991) (op. on reh’g) (noting that for admission of evidence under Rule 404(b), trial judge
must conclude that evidence tends to serve some purpose other than character conformity to make
existence of fact of consequence more or less probable than it would be without such evidence).
Fischer states that Rule 404(b) was designed to preclude the propensity rationale a juror might
undertake with knowledge of multiple charges, and here, “the extraneous character evidence simply
proves that Appellant had a propensity for molesting boys.”
But as Fischer acknowledges, we rejected an ex post facto challenge to these statutory
provisions in Robisheaux. See 483 S.W.3d at 215; see also Burke, 2017 Tex. App. LEXIS 4248, at
*10 (following Robisheaux); Ryder v. State, 514 S.W.3d 391, 402 (Tex. App.—Amarillo 2017, pet.
ref’d) (rejecting ex post facto challenge to article 38.37). In Robisheaux, we agreed with our sister
courts’ conclusions that although article 38.37 enlarges the scope of admissible testimony, it makes
no change to the State’s burden of proof and no decrease to the amount of evidence necessary to
sustain a conviction and thus, does not violate ex post facto prohibitions. 483 S.W.3d at 215 (citing
Baez v. State, 486 S.W.3d 592, 600 (Tex. App.—San Antonio 2015, pet. ref’d) cert. denied, 2016
U.S. LEXIS 6202 (2016)). Other than the specific dates of his offenses and his jury charge—which
18 tracks article 38.37—Fischer presents no facts distinguishing his case from Robisheaux. Thus, he
has not met his burden of establishing the unconstitutionality of article 38.37 as applied to him here.
See Estes, 546 S.W.3d at 698; Lykos, 330 S.W.3d at 910. Additionally, we note that because these
indictments were joined for trial, the jury would have heard evidence indicating Fischer’s pattern of
sexual behavior—the referenced “propensity for molesting boys”—even without the evidence of the
extraneous acts against W.C., B.R., and D.W.R. admitted under article 38.37.8 See Tex. R. App. P.
44.2(b). We overrule Fischer’s sixteenth issue.
CONCLUSION
We affirm the district court’s judgments of conviction.
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Goodwin and Field
Affirmed
Filed: December 28, 2018
Do Not Publish
8 We further note that the jury acquitted Fischer of one count of sexual assault of a child, two counts of aggravated sexual assault of a child, and one count of indecency with a child by sexual contact.