CHARLES KREGER Justice

On Appeal from the 75th District Court Liberty County, Texas
Trial Cause No. CR31311

MEMORANDUM OPINION

Joseph Randall Holcomb appeals the trial court's judgment on a jury verdict finding Holcomb guilty of indecency with a child by sexual contact, an offense for which he received a mandatory life sentence as a repeat sexual offender. See generally Tex. Penal Code Ann. §§ 12.42(c)(2); 21.11(a)(1) (West Supp. 2017). In Appellant's brief, Holcomb presents a constitutional challenge to the statute that allows for the admission of extraneous sexual offenses against children in the trial of a sexual offense against a child. See generally Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (West Supp. 2017). Additionally, Holcomb contends the trial court abused its discretion by allowing the admission of an unfairly prejudicial extraneous offense, abused its discretion by admitting extraneous offense evidence under Rule 404(b), and erred by denying Holcomb's motion for new trial based upon ineffective assistance of counsel. We affirm the trial court's judgment.

Background and Evidence

Holcomb was indicted for engaging in sexual contact with a person identified by the pseudonym Shelly Jo, by touching the genitals of Shelly Jo, a child younger than 17 years of age. The indictment alleged that Holcomb had a final conviction for sexual assault of a child in 1998. Before trial, the State gave notice of its intent to introduce at trial the 1998 conviction for sexual assault of a child and a 2010 deferred adjudication community supervision for assault family violence by impeding breath or circulation.

Fifteen-year-old Shelly Jo testified the offense occurred sometime around midnight while she was sleeping on the living room couch. According to Shelly Jo, Holcomb got behind her and used his hand to rub her buttocks and genital area under her underwear for several minutes, which caused her to wake up. She pushed Holcomb off of the couch, after which he laid on the floor as though he was asleep. Shelly Jo's mother testified that her daughter made an outcry to her the following day.

The trial court admitted into evidence the probable cause affidavit, indictment, judgment of conviction, and fingerprint card for the 1997 sexual assault of a child. Additionally, the complaining witness named in the indictment for Holcomb's 1998 sexual assault conviction testified in the present case that Holcomb was married to her step-sister in June 1997, when she was fourteen years old and Holcomb was between the age of eighteen and twenty-one. She slept on a couch during an overnight visit. In the early morning, she awoke to find Holcomb removing her clothing. Holcomb penetrated her sexual organ with his penis.

Facial Constitutional Challenge

In his first issue, Holcomb contends article 38.37, section 2(b) of the Texas Code of Criminal Procedure is facially unconstitutional because it allows for the admission of evidence of extraneous sexual offenses in violation of his due process right to be tried only for the charged offense. See generally Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b). To prevail on his facial challenge to the statute, Holcomb "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). "Whenever an attack upon the constitutionality of a statute is presented for determination, we commence with the presumption that such statute is valid and that the Legislature had not acted unreasonably or arbitrarily in enacting the statute." Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978) (internal citations omitted). The person challenging the statute must show that the statute is unconstitutional. Id. To establish a due process violation, Holcomb must show that the challenged statute violates those "fundamental conceptions of justice which lie at the base of our civil and political institutions and which define the community's sense of fair play and decency." Dowling v. United States, 493 U.S. 342, 352-53 (1990) (internal cites and quotations omitted).

Holcomb argues a prohibition against the admission of extraneous offenses is a long-settled rule that rises to the level of a due process right. A defendant is entitled to be tried "upon competent evidence, and only for the offense charged." Boyd v. United States, 142 U.S. 450, 458 (1892). "Because our system of justice recognizes that a defendant should be tried only for the charged crime and not for his criminal propensities, evidence of extraneous offenses is normally inadmissible." Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). However, "[t]he circumstances which justify the admission of evidence of extraneous offenses are as varied as the factual contexts of the cases in which the question of the admissibility of such evidence arises. Each case must be determined on its own merits." Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972). For instance, Rule 404(b) of the Texas Rules of Evidence sets out a non-exhaustive list of exceptions to the general prohibition against admitting extraneous offense evidence. Daggett v. State, 187 S.W.3d 444, 451 (Tex. Crim. App. 2005).

The challenged statute provides:

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 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.

Child sex abuse cases present evidentiary problems because the prosecution typically must rely on the largely uncorroborated testimony of the child victim and "the child's credibility becomes the focal issue." Belcher, 474 S.W.3d at 845. In enacting section 2 of article 38.37, the Legislature recognized that the physical and emotional trauma suffered by child victims made prosecuting sex crimes committed against children difficult and that children are targeted in part because they tend to make poor witnesses. Harris, 475 S.W.3d at 402 (quoting Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 12, 83d Leg. R.S. (2013)). "The statute recognizes that evidence of this type is, by definition, propensity or character evidence and that it is admissible notwithstanding those characteristics." Harris, 475 S.W.3d at 402. Section 2 of article 38.37 brings the Texas rule closer to the federal evidentiary rule and recognizes that the special circumstances surrounding the sexual assault of a child victim outweigh normal concerns associated with evidence of extraneous acts. Id. Because Rule 403 is not excluded from application, the trial court must still conduct a balancing test of probative value against the danger of unfair prejudice. Belcher, 474 S.W.3d at 847. Furthermore, Article 38.37 maintains additional procedural safeguards that protect the defendant's right to a fair trial, including the requirements

that the trial court determine at a hearing outside the presence of the jury that the evidence will be adequate to support a finding that the defendant committed the separate offense beyond a reasonable doubt, that the defense counsel has the right to cross-examine the witnesses at the hearing, and that the State provide notice of its intent to use such evidence in its case in chief at least thirty days before trial.

We join the other Courts of Appeals and hold that section 2(b) of article 38.37 of the Texas Code of Criminal Procedure does not violate the due process clause and is constitutional. See Buxton, 526 S.W.3d at 688-89; Robisheaux v, 483 S.W.3d at 213; Bezerra, 485 S.W.3d at 140; Belcher, 474 S.W.3d at 847; Harris, 475 S.W.3d at 403. We overrule issue one.

Rule 403

In issue two, Holcomb contends the trial court abused its discretion in admitting evidence of an extraneous sexual offense committed against a child not named in the indictment because the offense was not substantially similar to the offense charged in the indictment. Holcomb argues the decades-old offense was similar only in the relative age of the victim and the setting for the crime.

"The court may exclude 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, or needlessly presenting cumulative evidence." Tex. R. Evid. 403.

[A] trial court, when undertaking a Rule 403 analysis, 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.

Holcomb argues the State lacked a substantial need for the evidence because the complaining witness testified to the facts of the charged offense and her credibility was not attacked by the defense. Shelly Jo's mother corroborated Shelly Jo's testimony that Holcomb spent the night at their house on the date in question, but she was asleep in her bedroom and did not see Holcomb do anything to her daughter. Additionally, the State lacked physical and medical evidence of sexual contact between Holcomb and Shelly Jo.

Holcomb argues that his previous conduct is not rationally related to the charged offense because it was remote in time, his conduct in the extraneous offense was not substantially similar to the conduct alleged in the indictment, and the circumstances surrounding the offenses differed. Remoteness is a factor that reduces the inherent probative force of an extraneous offense. See Robisheaux, 483 S.W.3d at 219. There are, however, substantial similarities between the charged offense and the extraneous offense. In both instances, the teen-aged girl was sleeping on a couch in the common area of the house, and Holcomb touched the child sexually while she was asleep, then stopped when she protested. The extraneous offense demonstrated Holcomb's sexual interest in teen-aged girls. As was the case in Belcher, the extraneous offense in this case was prejudicial because it was especially probative of the appellant's propensity to sexually assault children. See Belcher, 474 S.W.3d at 848. An extraneous offense may be unfairly prejudicial when it arouses the jury's hostility or sympathy without regard to the logical probative force of the evidence. Gigliobianco, 210 S.W.3d at 641. Here, the prejudicial effect arises from the probative value of the evidence.

Furthermore, the trial court provided a limiting instruction to the jury in the jury charge. The limiting instruction served to avoid distracting the jury from the main issue in the case. See Price v. State, 351 S.W.3d 148, 153-54 (Tex. App.—Fort Worth 2011, pet. ref'd). We conclude that the trial court reasonably could have determined that the prejudicial effect of the extraneous offense evidence did not substantially outweigh its probative value. We therefore hold that the trial court did not abuse its discretion in admitting the evidence. Issue two is overruled.

Rule 404b

In issue three, Holcomb contends the trial court abused its discretion by admitting the extraneous offense evidence offered pursuant to Rule 404b of the Texas Rules of Evidence because the State failed to demonstrate the applicability of an exception to the general rule of exclusion. Under Rule 404(b), "the trial judge must conclude that the evidence tends in logic and common experience to serve some purpose other than character conformity to make the existence of a fact of consequence more or less probable than it would be without the evidence." Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). We must affirm the trial court's ruling if that ruling is within the zone of reasonable disagreement. Id.

The State offered documents from Holcomb's conviction for sexually assaulting a child in 1997 under Rule 404(b) in addition to article 38.37. See generally Tex. R. Evid. 404(b) (Extraneous offense evidence may be admissible for a purpose other than character conformity, such as "proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident."). Holcomb objected that the evidence would be unfairly prejudicial and that its admission would violate his due process rights but he did not object that the documents were not relevant. The State later presented the victim of that offense as a witness. Holcomb objected that her testimony would be "bolstering." The State stated it was offering the testimony under Rule 404(b) for, "Knowledge, MO," and to rebut a claim of fabrication raised by Holcomb in jury selection.

Holcomb did not expressly object that the evidence was not relevant, as is required to preserve a claim of error under Rule 404(b). See Montgomery, 810 S.W.2d at 387. However, an objection may be apparent from the context. See Tex. R. Evid. 103(a)(1)(B). Here, the trial court ruled that the evidence was admissible under Rule 404(b). Assuming that the trial court understood from the context that Holcomb was making a relevance objection, the evidence that Holcomb sexually assaulted a child in the past would support an inference that Holcomb did not inadvertently contact Shelly Jo's genitals while he was sleeping, but that he knowingly did so with the intent to gratify himself sexually. Montgomery, 810 S.W.2d at 394. But, because Holcomb was accused of sexually assaulting a child, the relevance of the evidence that he sexually assaulted another child did not depend on the exceptions in Rule 404 of the Texas Rules of Evidence. The evidence was admissible under article 38.37 of the Code of Criminal Procedure, a provision that allows such evidence even if the same evidence is inadmissible under Rule 404. Compare Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b), with Tex. R. Evid. 404(b)(2).We conclude that it was not an abuse of discretion for the trial court to have found that the evidence had relevance apart from character conformity. See Montgomery, 810 S.W.2d at 394. Issue three is overruled.

Ineffective Assistance of Counsel

In issue four, Holcomb claims he received ineffective assistance of counsel. In particular, Holcomb argues that his trial counsel failed to investigate and present evidence to support an alibi defense. Additionally, Holcomb complains that his trial counsel failed to challenge article 38.37 as unconstitutional under the Texas Constitution. Finally, he argues trial counsel was objectively unreasonable in failing to request a hearing on the qualifications of an expert witness who testified for the State.

After the trial, Holcomb obtained new counsel and filed a motion for new trial in which Holcomb alleged that he received ineffective assistance of counsel in his trial. The trial court denied the motion for new trial after conducting an evidentiary hearing. Holcomb testified at the hearing but his trial counsel was not called to testify. In the motion for new trial hearing, Holcomb presented his wife as an alibi witness and complained that his trial counsel failed to investigate an alibi defense based on information the Holcombs gave the lawyer before the trial. Holcomb's complaints regarding counsel's failure to challenge article 38.37 under the State Constitution and his failure to request a hearing on the qualifications of the State's expert were neither mentioned in the motion for new trial nor developed in the motion for new trial hearing.

To show ineffective assistance of counsel, a defendant must establish that: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that the result of the proceeding would have been different but for the attorney's deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). An allegation of ineffectiveness will be sustained only if it is firmly founded in the record and if the record affirmatively demonstrates the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). On a silent record, the reviewing court may conclude counsel's performance was deficient only if the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

The record contains no insight into trial counsel's strategy or reasoning. The record is not sufficiently developed for Holcomb to overcome the strong presumption on review by this Court that the actions of trial counsel were part of a reasoned trial strategy. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). We overrule issue four and affirm the trial court's judgment.

AFFIRMED.

/s/_________

CHARLES KREGER

Justice Submitted on June 15, 2017
Opinion Delivered January 31, 2018
Do Not Publish Before McKeithen, C.J., Kreger and Horton, JJ.