Kristen Eileen Brown v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 9, 2022
• Docket: 10-19-00385-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00385-CR

KRISTEN EILEEN BROWN, Appellant v.

THE STATE OF TEXAS, Appellee

From the 19th District Court McLennan County, Texas Trial Court No. 2017-937-C1

MEMORANDUM OPINION

Kristen Eileen Brown was charged with, and convicted of, compelling the

prostitution of her own child. See TEX. PENAL CODE § 43.05(a)(2). In one issue, Brown

asserts the trial court abused its discretion in permitting the introduction of extraneous

offense evidence without the State having provided notice to Brown as required by article

38.37 of the Texas Code of Criminal Procedure. Because the trial court did not abuse its

discretion, the trial court’s judgment is affirmed.

During trial, the State moved to offer the medical report of the medical advisor at the Advocacy Center for Crime Victims and Children who had conducted a medical

examination of Brown’s child. Brown objected to the third paragraph on the first page of

the report and its reference to an incident that happened in the State of Wisconsin. Brown

objected on the basis that the incident was an extraneous offense which may be

admissible under article 38.37 of the Code of Criminal Procedure, but that the required

notice was not given by the State. The objection was overruled. Brown argues on appeal

that the trial court abused its discretion in overruling this objection.

We review the trial court's decision to admit or exclude evidence, even extraneous

offense evidence, for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex.

Crim. App. 2016); De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). The trial

court abuses its discretion when its decision falls outside the zone of reasonable

disagreement. Henley, 493 S.W.3d at 83.

The State argues, as it did in the trial court, that because the Wisconsin incident

was not committed by Brown, but by another individual, the evidence is not governed

by article 38.37 and no notice was required.

Article 38.37 provides that evidence of other crimes, wrongs, or acts committed by

the defendant against the child who is the victim of the alleged offense shall be admitted

for its bearing on relevant matters, including the state of mind of the defendant and the

child; and the previous and subsequent relationship between the defendant and the child.

TEX. CODE CRIM. PROC. art. 38.37, sec. 1, (b). Notice of the State’s intent to introduce such

evidence in its case in chief is required. Id. sec. 3.

The operative phrase in this statute which is at issue in this appeal is, “by the

Brown v. State Page 2 defendant.” Other crimes or wrongs or acts committed by the defendant against the child

requires notice. In this case, the crime, wrong, or act against the child in Wisconsin was

not committed by Brown—it was committed by another individual. Thus, it is not

governed by article 38.37 and its notice requirement. Brown has not provided us with

any authority that notice is required under article 38.37 when the crime, wrong, or act is

committed by someone other than the defendant. Accordingly, the trial court did not

abuse its discretion in admitting the evidence over Brown’s article 38.37 notice objection,

and Brown’s sole issue is overruled.

Because we have overruled Brown’s sole issue on appeal, we affirm the trial

court’s judgment.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed February 9, 2022 Do not publish [CRPM]

Brown v. State Page 3