Robisheaux v. State

CourtCourt of Appeals of Texas
Citation483 S.W.3d 205
Decision Date07 January 2016
Docket NumberNO. 03–14–00329–CR,03–14–00329–CR
Parties Brandon Robisheaux, Appellant v. The State of Texas, Appellee

483 S.W.3d 205

Brandon Robisheaux, Appellant
The State of Texas, Appellee

NO. 03–14–00329–CR

Court of Appeals of Texas, Austin.

Filed: January 7, 2016

Susan Schoon, Schoon Law Firm, New Braunfels, TX, for Appellant.

Jennifer A. Tharp, Comal County Criminal District Attorney, Joshua D. Presley, Comal Criminal District Attorney's Office, New Braunfels, TX, for Appellee.

Before Justices Puryear, Goodwin, and Bourland


David Puryear, Justice

Brandon Robisheaux was arrested for sexually assaulting A.B., who was the daughter of his then girlfriend, C.Y. The indictment alleged one charge for continuous sexual abuse of a child and two charges for sexual assault of a child, see Tex. Penal Code § 21.02(b)(setting out elements of offense of continuous sexual abuse), 22.011(a) (governing offense of sexual assault), and the indictment also contained an enhancement paragraph alleging that Robisheaux had previously been convicted of the felony offense of arson, see id. § 28.02(a)–(a–2) (outlining offense of arson), (d)-(f) (setting out offense level for different types of arson). At the end of the guilt-or-innocence phase, the jury acquitted Robisheaux of the continuous-sexual-abuse charge but convicted him of the two sexual-assault-of-a-child charges. During the punishment phase, Robisheaux entered a plea of true to the enhancement allegation, and the district court sentenced him to 50 years' imprisonment for both offenses. See id. § 22.011(f) (specifying that sexual assault is, in general, second-degree felony); see also id. §§ 12.32(a) (listing permissible punishment range for first-degree felony), .42(b) (enhancing punishment range for second-degree felony to that of first-degree felony if defendant was previously convicted of felony offense). In four issues on appeal, Robisheaux asserts that article 38.37 of the Code of Criminal Procedure, which authorizes the introduction of evidence of prior sexual offenses, "is unconstitutional on its face"; that the admission of evidence of his prior extraneous offenses "violated the prohibition against ex post facto and retroactive laws"; that the district court erred when it overruled his Rule 403 objection to the admission of that evidence; and that the district court erred by not allowing him to admit evidence regarding an interaction between A.B. and C.Y. on the day that A.B. made an outcry about him. We will affirm the district court's judgments of conviction.


Article 38.37

In his first issue on appeal, Robisheaux argues that section 2 of article 38.37 of the Code of Criminal Procedureis "unconstitutional on its face because it wholly denies defendants due process and due course of law." See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)(providing that "[t]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged").

"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). "In

483 S.W.3d 210

a facial challenge to a statute's constitutionality, courts consider the statute only as it is written, rather than how it operates in practice." Id. Accordingly, "a facial challenge to a statute is extremely difficult to prove as all courts presume that the Legislature enacted a constitutional law and all courts must seek to uphold the facial constitutionality of legislative enactments." Id. at 909.

The provision at issue applies to trials for certain sexual offenses, including the sexual assault of a child, and authorizes the admission of evidence showing that the defendant has committed a separate sexual offense, "[n]otwithstanding Rules 404and 405, Texas Rules of Evidence, ... 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); however, before evidence may be admitted under that section, the trial court is obligated to "conduct a hearing outside the presence of the jury for" the purpose of determining whether "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," id. art. 38.37, § 2–a. In addition, before the evidence may be admitted, the State has to "give the defendant notice" of its "intent to introduce" the evidence "not later than the 30th day before the date of the defendant's trial." Id. art. 38.37, § 3.

When asserting that section 2of article 38.37is facially unconstitutional, Robisheaux chronicles how character-propensity evidence has historically been held to be inadmissible out of concern that a defendant might be convicted based on that evidence rather than the evidence pertaining to the charged offense, see, e.g., Boyd v. United States, 142 U.S. 450, 458, 12 S.Ct. 292, 35 L.Ed. 1077 (1892)(explaining that "[h]owever depraved in character, and however full of crime their past lives may have been, the defendants were entitled to be tried upon competent evidence and only for the offense charged"); Brinegar v. United States, 338 U.S. 160, 174, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)(determining that evidence of prior similar acts was not admissible and noting that decision was supported by "historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions"), and notes that courts have held that the admission of character-propensity evidence violated the defendant's due-process rights, see, e.g., McKinney v. Rees, 993 F.2d 1378, 1385 (9th Cir.1993)(determining that admission of "emotionally charged" evidence regarding defendant's alleged fascination with weapons "was not relevant to the questions before the jury ... [and] served only to prey on the emotions of the jury"). Further, Robisheaux highlights that courts in other states have determined that similar statutes were unconstitutional. See State v. Ellison, 239 S.W.3d 603, 606, 607–08 (Mo.2007)(declaring unconstitutional statute allowing evidence of previous sexual offenses and noting that "[e]vidence of prior criminal acts is never admissible for the purpose of demonstrating the defendant's propensity to commit the crime with which he is presently charged"); State v. Cox, 781 N.W.2d 757, 772 (Iowa 2010)(determining that admitting evidence of "defendant's sexual abuse of other victims ... based only on its value as general propensity evidence violates the due process clause of the Iowa Constitution").

However, after Robisheaux filed his brief in this case, two of our sister courts of appeals addressed the constitutionality of section 2of article 38.37and concluded that the statutory provision is constitutional and does not violate defendants' due-process rights. See

483 S.W.3d 211

Belcher v. State, No. 12–14–00115–CR, 2015 WL 5139309, at *4–5, 2015 Tex.App. LEXIS 9352, at *12 (Tex.App.—Tyler Sept. 2, 2015, no pet.); Harris v. State, No. 14–14–00152–CR, 2015 WL 4984560, at *6, 2015 Tex.App. LEXIS 8723, at *14 (Tex.App.—Houston [14th Dist.] Aug. 20, 2015, pet. ref'd). When making its determination, our sister court in Belcher noted that the ban against propensity evidence "is over three hundred years old" but determined that just because " 'the practice is ancient does not mean [ ] it is embodied in the Constitution.' " 2015 WL 5139309, at *2, 2015 Tex.App. LEXIS 9352, at *5(quoting United States v. Enjady, 134 F.3d 1427, 1432 (10th Cir.1998)). In fact, the court highlighted that over the last 100 years every state has allowed, through the adoption of rules like Texas Rule of Evidence 404or by judicial determination, prosecutors "to introduce prior bad act evidence, including sexual misconduct" for limited purposes such as "proof of motive, opportunity, intent, identity, or absence of mistake or accident." Id. 2015 WL 5139309, at *2–3, 2015 Tex.App. LEXIS 9352, at *5–6; see Tex.R. Evid. 404(b)(providing non-exhaustive list of permissible uses for evidence of extraneous offenses). But the court also noted that "child sex abuse cases present evidentiary problems not resolved by any of the extraneous bad acts exceptions" because "the prosecution typically must rely on the largely uncorroborated testimony of the child victim" and because "the child's credibility becomes the focal issue." Belcher, 2015 WL 5139309, at *2–3, 2015 Tex.App. LEXIS 9352, at *6. With the evidentiary concerns present in sexual-offense cases in mind, the court also chronicled how the majority of states, including Texas, and the federal government began developing "lustful disposition exception[s] to the rule against propensity evidence" for cases involving the sexual abuse of children. Id. 2015 WL 5139309, at *3, 2015 Tex.App. LEXIS 9352, at *7–8; see Act of May 28, 1995, 74th Leg., R.S., ch. 318, § 48(a), 1995 Tex. Gen. Laws 2734, 2748–49 (enacting prior version of article 38.37), amended by Act of May 24, 2005, 79th Leg., R.S., ch. 728, § 4.004, 2005 Tex. Gen. Laws 2188, 2192, amended by Act of April 7, 2011, 82nd Leg.,...

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