Court of Appeals Tenth Appellate District of Texas
10-25-00003-CR
Dana Loment Pettigrew, Appellant
v.
The State of Texas, Appellee
On appeal from the 85th District Court of Brazos County, Texas Judge Kyle Hawthorne, presiding Trial Court Cause No. 23-01989-CRF-85
JUSTICE SMITH delivered the opinion of the Court.
MEMORANDUM OPINION
After a jury trial, Dana Loment Pettigrew was convicted of one count of
indecency with a child by contact and one count of indecency with a child by
exposure committed against A.S. See TEX. PENAL CODE ANN. §§ 21.11(a)(1),
(a)(2).1 Three of Pettigrew’s appellate issues address the extraneous-offense
1 The jury, finding one felony enhancement paragraph to be “true,” assessed his punishment at forty-
five years in prison with a $10,000 fine and twenty years in prison with a $10,000 fine, respectively. testimony of L.H., which was admitted under article 38.37, section 2(b) of the
Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.37,
§ 2(b). He argues that article 38.37 was unconstitutional as applied to him,
that the trial court erred by overruling his Rule 403 objection to the extraneous
testimony, and that the article 38.37 jury charge instruction was erroneous.
In his fourth issue, Pettigrew claims that his trial counsel’s failure to request
to reopen evidence during the guilt-innocence phase prevented him from
exercising his constitutional right to testify and entitles him to a new trial. We
affirm.
As-Applied Constitutional Challenge
In his first issue, Pettigrew makes an as-applied constitutional challenge
to L.H.’s extraneous-offense testimony pursuant to article 38.37, section 2(b) of
the Code of Criminal Procedure, specifically asserting a violation of his right
to due process under the United States Constitution and to due course of law
under the Texas Constitution. Id.; U.S. CONST. amend. XIV; TEX. CONST. art.
I, § 19. We disagree.
RELEVANT FACTS
The trial court held a hearing outside of the jury’s presence to determine
the admissibility of extraneous-offense testimony from L.H. See TEX. CODE
CRIM. PROC. ANN. art. 38.37, § 2-a. L.H. was thirty-five years old at the time
Dana Loment Pettigrew v. The State of Texas Page 2 of trial. She explained that when she was thirteen or fourteen years old, she
moved into Pettigrew’s residence in Ohio. She testified that Pettigrew came
into her bedroom one night and got on top of her. L.H. described how Pettigrew
sucked on her neck and her breasts and put his hand inside of her pants. She
stated that after Pettigrew went into the kitchen to get a cigarette, he told her
that “what happened made him sober up.”
Pettigrew’s trial counsel conceded that L.H.’s testimony met the
requirements for admissibility under article 38.37. However, he objected to its
admission under Rules of Evidence 403, 404(b), and 405, and argued that the
testimony violated Pettigrew’s rights under the United States and Texas
Constitutions to due process and to a fair and impartial jury. See U.S. CONST.
amends. V, VI, XIV; TEX. CONST. art. I, §§ 13, 15, 19; TEX R. EVID. 403, 404(b),
405. The trial court overruled Pettigrew’s statutory and constitutional
objections, specifically finding that the probative value of L.H.’s testimony was
not substantially outweighed by the danger of unfair prejudice. See TEX. R.
EVID. 403.
ANALYSIS
A statute may be challenged as unconstitutional either “on its face” or
“as applied.” McCain v. State, 582 S.W.3d 332, 346 (Tex. App.—Fort Worth
2018, no pet.). Under either type of challenge, we begin with the presumption
Dana Loment Pettigrew v. The State of Texas Page 3 that the Legislature acted both rationally and validly in enacting the law under
review. See Estes v. State, 546 S.W.3d 691, 698 (Tex. Crim. App. 2018). In an
as-applied constitutional challenge, the appellant “concedes the general
constitutionality of the statute, but asserts that the statute is unconstitutional
as applied to his particular facts and circumstances.” Id. The party
challenging the statute has the burden to establish its unconstitutionality.
State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013).
Pettigrew acknowledges that the courts of appeals, including this Court,
have held that article 38.37, section 2(b) is facially constitutional, satisfying
due process because of the procedural protections set forth in article 38.37,
sections 2-a and 3, along with the requirement that the trial court conduct a
Rule 403 balancing test. See Gates v. State, No. 10-15-00078-CR, 2016 WL
936719, at *4 (Tex. App.—Waco Mar. 10, 2016, pet. ref’d) (mem. op., not
designated for publication). In his as-applied challenge to the statute, he does
not contend that these procedural processes did not occur in this case; rather,
he claims that they have proven “illusory” because L.H.’s allegation was
“uncorroborated, twenty years removed from its alleged occurrence and not
reported to the police[,]” and was found to be unsubstantiated by the child
protection agency that investigated the allegations in Ohio.
Dana Loment Pettigrew v. The State of Texas Page 4 The State notes that this Court has twice considered and rejected
virtually identical as-applied challenges to article 38.37, section 2(b). See
Deggs v. State, 646 S.W.3d 916, 921-24 (Tex. App.—Waco 2022, pet. ref’d);
Gonzales v. State, No. 10-21-00294-CR, 2022 WL 3453138, at *5-6 (Tex. App.—
Waco Aug. 17, 2022, pet. ref’d) (mem. op., not designated for publication).2
Here, as in those cases, the trial court followed article 38.37, section 2-a’s
requirements and determined, after hearing evidence and the arguments of
counsel, that the evidence was sufficient for a reasonable juror to find that
Pettigrew committed the extraneous offense beyond a reasonable doubt. See
TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2-a. Though Pettigrew takes issue
with the trial court’s ultimate decision to admit the evidence despite affording
the procedural protections outlined above, we do not find that article 38.37,
section 2(b) is unconstitutional as applied to him.
Accordingly, we overrule Pettigrew’s first issue.
Rule 403
Pettigrew asserts in his second issue that the trial court should have
excluded L.H.’s testimony under Rule 403 of the Rules of Evidence. See TEX.
R. EVID. 403; Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App.
2006). We disagree.
2 Appellate counsel in this case was also appellate counsel in each of those cases.
Dana Loment Pettigrew v. The State of Texas Page 5 STANDARD OF REVIEW AND RELEVANT LAW
We review the trial court's decision to admit contested testimony under
an abuse of discretion standard. Walters v. State, 247 S.W.3d 204, 217 (Tex.
Crim. App. 2007). We will uphold the trial court's decision if it is within the
zone of reasonable disagreement. Id.
The admission of evidence under article 38.37 is limited by Rule 403’s
balancing test. Bradshaw v. State, 466 S.W.3d 875, 882 (Tex. App.—
Texarkana 2015, pet. ref’d). Rule 403 allows the exclusion of relevant evidence
if its probative value is substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative
evidence. TEX. R. EVID. 403.
When conducting a Rule 403 balancing test, trial courts should consider:
(1) the evidence's probative force; (2) the proponent's need for the evidence; (3)
the evidence's potential to suggest a decision on an improper basis; (4) the
evidence's tendency to distract the jury from the main issues; (5) any tendency
for the jury to give the evidence undue weight because it has not been fully
equipped to evaluate the evidence's probative force; and (6) the likelihood that
presenting the evidence will consume an inordinate amount of
time. See Gigliobianco, 210 S.W.3d at 641-42.
Dana Loment Pettigrew v. The State of Texas Page 6 ANALYSIS
All testimony and physical evidence will likely be prejudicial to one party
or the other. Jones v. State, 944 S.W.2d 642, 653 (Tex. Crim. App. 1996). We
presume that the probative value of relevant evidence exceeds any danger of
unfair prejudice, and it is only when there exists a “clear disparity” between
the degree of prejudice of the evidence offered and its probative value that Rule
403 is applicable. Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App.
2009).
As to the first factor, evidence of a separate sexual offense against a child
is probative of a defendant’s character or propensity to commit sexual assaults
on children. See Deggs, 646 S.W.3d at 925-26. Pettigrew acknowledges that
the probative value of L.H.’s testimony is “self-evident.” He argues, however,
that the remoteness of L.H.’s allegation lessened its probative value. The trial
court reasonably could have found that the remoteness of the extraneous
allegation did not so significantly weaken the probative value of the evidence
as to favor its exclusion. See id. The extraneous-offense testimony was
substantially similar to one of the charged offenses committed against A.S.
Each complainant described Pettigrew entering their bedroom, licking their
breasts, and touching their vagina underneath their clothes. Both L.H. and
A.S. testified that when Pettigrew stopped touching them, he claimed that he
Dana Loment Pettigrew v. The State of Texas Page 7 was drunk. Further, L.H. and A.S. were nearly the same age when the alleged
offenses occurred. We find that this factor weighs in favor of admission.
Regarding the second factor, Pettigrew asserts that the State’s need for
the extraneous-offense evidence was diminished because three expert
witnesses testified to corroborate A.S.’s testimony. The State points out that
the expert witness testimony was limited to general observations and opinions
about whether A.S.’s behavior was “consistent with” being a victim of child
sexual abuse and did not factually corroborate her allegations. As such,
according to the State, this remained a “he said, she said” case with a great
need for L.H.’s factually-similar extraneous-offense testimony. Considering
the lack of factually corroborating evidence, coupled with Pettigrew’s defensive
theory that A.S. lied about Pettigrew’s sexual abuse in order to save herself
and her mother from his ongoing physical abuse, we agree with the State that
the second factor weighs in favor of admitting the extraneous-offense
testimony.
Both parties acknowledge that the inherently inflammatory nature of
extraneous sexual offenses against children tends to suggest a verdict on an
improper basis, leading the third factor to weigh against admission. See id. at
926. We agree.
Dana Loment Pettigrew v. The State of Texas Page 8 Pettigrew contends that the State distracted the jury from the main
issues in the case through the following statement in its final argument:
I’ll tell you why we brought [L.H.]: We reviewed those records, we reviewed that case, we spoke with [L.H.], and we believed her. She did not get the justice she deserved 19 years ago. She was not treated fairly until yesterday when she finally had the opportunity to sit here and tell you what happened to her. That is why we brought you [L.H.].
The State explains that this statement was in response to a portion of
Pettigrew’s closing argument in which he contended that the State presented
L.H.’s testimony despite disbelieving her allegation. Regardless, the trial court
mitigated any tendency of the extraneous-offense evidence to confuse or
distract the jury through its article 38.37 instruction in the jury charge.3 The
jury instruction expressly reminded the jury that Pettigrew was not on trial
for the offense against L.H. and explained the purposes for which her
testimony could be considered in resolving the ultimate issue of whether
Pettigrew committed the charged offenses. The fourth factor weighs in favor
of admission.
Regarding the fifth factor, “the evidence in question was neither
scientific nor technical and pertained to matters including victim credibility
3 The entirety of the article 38.37 instruction is included in our analysis of Pettigrew’s third issue, in
which he attacks the propriety of including the instruction in the jury charge.
Dana Loment Pettigrew v. The State of Texas Page 9 that could easily be understood by a jury.” Deggs, 646 S.W.3d at 927. This
factor weighs in favor of admission.
Finally, Pettigrew complains that L.H.’s testimony consumed almost as
much time as A.S.’s testimony in front of the jury. As such, he argues that this
factor weighs against admission. The State responds that L.H.’s testimony
comprised approximately fifteen percent of the total testimony in front of the
jury. In our review of the record, we cannot say that the extraneous-offense
evidence consumed such an inordinate amount of time that exclusion was
warranted.
In light of our standard of review, our resolution of each factor above,
and the presumption of admissibility, we conclude that the trial court did not
abuse its discretion by overruling Pettigrew’s Rule 403 objection. Accordingly,
we overrule Pettigrew’s second issue.
Jury Charge Instruction
In his third issue, Pettigrew argues that the trial court’s article 38.37
jury instruction constituted an impermissible comment on the weight of the
evidence. We disagree.
STANDARD OF REVIEW
We review a claim for jury charge error using the two-step procedure set
out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). We first
Dana Loment Pettigrew v. The State of Texas Page 10 consider whether error occurred, and if so, whether sufficient harm occurred
to justify a reversal. See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App.
2012).
The trial court’s article 38.37 instruction in the jury charge stated:
During the trial, you heard evidence that the defendant may have committed an offense against L.H. other than the ones the defendant is currently accused of in the indictment. You are not to consider that evidence at all unless you find, beyond a reasonable doubt, that the defendant did, in fact, commit the offense against L.H. Those of you who believe beyond a reasonable doubt the defendant committed that extraneous offense may consider it.
You may consider this evidence for any bearing this evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant. Even if you consider it, however, the defendant is not on trial for any offenses not alleged in the indictment.
During the charge conference, Pettigrew objected to the instruction’s wording
because he believed “38.37 requires a unanimous decision by the entire jury
that the extraneous act occurred before the jury can use it at all.” The trial
court overruled the objection. Pettigrew added that he wanted to “incorporate
all the objections that I made after the 38.37 hearing[.]” The trial court also
overruled those objections.
Dana Loment Pettigrew v. The State of Texas Page 11 ANALYSIS
Because extraneous-offense evidence admitted under article 38.37 may
be used for “any bearing the evidence has on relevant matters,” Pettigrew
appears to contend that the article 38.37 instruction was unnecessary. See
TEX. CODE CRIM. PROC. ANN. art 38.37, § 2(b). As such, he claims that the
instruction inappropriately highlighted L.H.’s testimony and constituted an
improper comment on it. However, a trial court does not err by including an
article 38.37 instruction where the instruction is raised by the evidence and is
correctly stated. See Esparza v. State, 513 S.W.3d 643, 648 (Tex. App.—
Houston [14th Dist.] 2016, no pet.). L.H.’s testimony was admitted pursuant
to article 38.37, section 2(b), and the trial court’s instruction substantially
tracked the appropriate statutory language. See TEX. CODE CRIM. PROC. ANN.
art. 38.37, § 2(b).
Alternatively, Pettigrew singles out the sentence, “Those of you who
believe beyond a reasonable doubt the defendant committed that extraneous
offense may consider it,” and complains that by failing to include qualifying
language (i.e., “if any”), the instruction inappropriately assumed that some of
the jurors would believe L.H.’s testimony beyond a reasonable doubt. Taking
the sentence in context with the instruction as a whole, we disagree with
Pettigrew’s characterization. The jurors were specifically instructed that they
Dana Loment Pettigrew v. The State of Texas Page 12 were not permitted to consider the evidence that Pettigrew “may have”
committed an offense against L.H. “at all, unless you find, beyond a reasonable
doubt, that the defendant did, in fact, commit the offense against L.H.” The
instruction is not a comment on the weight to be given L.H.’s extraneous-
offense testimony. We find no error in the trial court’s inclusion of the
instruction. Accordingly, we overrule Pettigrew’s third issue.
Denial of Right to Testify
In his final issue, Pettigrew argues that he is entitled to a new trial
because his trial counsel prevented him from exercising his right to testify
during the guilt-innocence phase of trial. We disagree.
Pettigrew initially elected not to testify during the guilt-innocence phase.
Outside of the jury’s presence, before the defense rested its case, Pettigrew
gave sworn testimony about his decision. After the charge conference, the trial
court recessed the proceedings for the day.
The next morning, after the jury retired to deliberate, Pettigrew
informed the trial court that he changed his mind about testifying. Pettigrew
stated, “I told [trial counsel] this morning - - I told him earlier. I’m asking you:
Am I allowed to testify? I changed my mind.” The trial court responded, “Sir,
Dana Loment Pettigrew v. The State of Texas Page 13 the jury is deliberating. You can talk with your attorney about that.” The jury
subsequently found Pettigrew guilty as charged.
Pettigrew testified at the punishment phase of trial. He denied
inappropriately touching A.S. and exposing himself to her.
After Pettigrew was sentenced, his appellate counsel filed a motion for
new trial. The trial court held a hearing on the motion, at which Pettigrew’s
trial counsel was the only witness.4 At the hearing (and in an affidavit
attached to the motion), Pettigrew’s trial counsel attested that Pettigrew told
him that he had changed his mind about testifying during the guilt-innocence
phase before the trial court read the charge to the jury. Trial counsel believed
that it was too late for Pettigrew to change his mind and did not request to
reopen the evidence before the charge was read. He conceded in his affidavit
that he “made a mistake by not approaching the bench concerning [Pettigrew’s]
wish to testify[.]”
Regarding prejudice, Pettigrew’s trial counsel also opined that, based on
“many months of working with Mr. Pettigrew and his testimony proffered
during the punishment phase of trial[,]” as well as several of the State’s
witnesses presenting “credible and compelling” testimony for the jury’s
4 A different judge presided over the motion for new trial.The original trial judge voluntarily recused himself from hearing the motion for new trial after it was filed.
Dana Loment Pettigrew v. The State of Texas Page 14 consideration, he did not believe there existed a reasonable probability of a
different result if Pettigrew had testified during guilt-innocence.
The trial court denied the motion for new trial.
STANDARD OF REVIEW AND RELEVANT LAW
We apply the Strickland framework to an allegation that a defendant’s
right to testify was denied by defense counsel.5 Johnson v. State, 169 S.W.3d
223, 235 (Tex. Crim. App. 2005); Strickland v. Washington, 466 U.S. 668, 687
(1984). An appellant must show by a preponderance of the evidence that (1)
counsel’s representation fell below an objective standard of reasonableness and
(2) the deficient performance prejudiced the defense such that there is a
reasonable probability that the result of the proceeding would have been
different. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
The State does not contest that trial counsel failed to protect Pettigrew’s
right to testify by not requesting to reopen the evidence. Our analysis,
therefore, focuses on the prejudice prong of Strickland.
To show prejudice from professional errors during the guilt-innocence
phase, a defendant must prove that there was a reasonable probability that,
5 Pettigrew asserts that the Johnson framework should be re-evaluated. However, we are bound to follow the precedent of the Court of Criminal Appeals. See State v. Newton, 721 S.W.3d 339, 340 (Tex. Crim. App. 2025).
Dana Loment Pettigrew v. The State of Texas Page 15 but for his attorney’s professional errors, the jury would have had a reasonable
doubt about his guilt. See Perez v. State, 310 S.W.3d 890, 893-94 (Tex. Crim.
App. 2010). A “reasonable probability” is a probability sufficient to undermine
confidence in the outcome, meaning counsel’s errors were so serious as to
deprive the defendant of a fair trial with a reliable result. Smith v. State, 286
S.W.3d 333, 340 (Tex. Crim. App. 2009). While we review the ultimate
question of prejudice under a de novo standard, we afford deference to the trial
court’s historical fact determinations. Johnson, 169 S.W.3d 239. When, as
here, the trial court does not make express findings of fact, we imply fact
findings that support the trial court’s ruling as long as those findings are
reasonable and supported by the record. Id.
In his prejudice analysis, Pettigrew points out that by not testifying in
guilt-innocence, he was unable to personally address A.S.’s motive to lie about
the offenses charged and to refute L.H.’s extraneous-offense testimony.6 As
support for his argument, he notes that the jury was temporarily deadlocked
on a punishment decision and he attributes that impasse to his decision to
testify during that phase and deny the charges.
6 In Pettigrew’s affidavit attached to his motion for new trial, he explained that he changed his mind
about testifying because he “decided [he] needed to face the jury and let them hear [him] deny these false claims.”
Dana Loment Pettigrew v. The State of Texas Page 16 We find that Pettigrew has not met his burden to demonstrate prejudice
from the denial of his right to testify. His argument that the jury’s temporary
deadlock on punishment was due to his testimony denying the allegations – let
alone that it suggests that the jury would have had a reasonable doubt about
his guilt – is based on assumptions unsupported by evidence in the record.
“The likelihood of a different result must be substantial, not just conceivable.”
Harrington v. Richter, 562 U.S. 86, 112 (2011). Accordingly, we overrule
Pettigrew’s fourth issue.
Conclusion
Having overruled all of Pettigrew’s issues on appeal, we affirm the
judgments of the trial court.
STEVE SMITH Justice
OPINION DELIVERED and FILED: April 16, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed Do not publish CRPM
Dana Loment Pettigrew v. The State of Texas Page 17