## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00072

- CR

JAMES MICHAEL FELDMAN , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 8th District Court Hopkins County, Texas Trial Court No. 2027827

Be fore Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION A Hopkins County jury convicted James Michael Feldman of the aggravated sexual
assault of S.F

. , 1 a child younger than fourteen y e a rs of age, 2 an d the trial court sentence d him to sixty years’ imprisonment. In this appeal, Feldman co mplains that the trial court erred in admitting extraneous

- off ense evidence under Article 38.37 of the Texas Code o f C rim inal
Procedure 3 b ecause (1) it v iol ated his ri ght to due process and a fair trial under the Fourteenth
Amendment and (2) the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Because (1) the admission o f t he evidence under Ar ticle 38.37 di d

no t violate Fe ldman’s right to due process and a fair trial and (2) the evidence was admissi ble under Rule 403 of the T exas Rules o f Evidence , we will affirm the trial court’s judgment.
I. Background
In February 2019, S.F. m ade an outcry of sexual abus e b y Feldman to an in vestigator for
the Child Protection and Permanency Division of the New Jersey Department of Children and
Families

. 4 Consistent with her outcry , S.F. testified tha t , when she was nine ye ars of age , she vis ited Fe ldman in Sul ph ur Springs, Te xas , for several weeks during th e summer. She testified
that , one night , Feldman called her into his bedro om, whe re he lay on his bed unclothed

. He told

1 We ref er to any pe rson who was a minor at the time an offense was committed by their initials. See T EX . R. A PP . P. 9.10.

2 See T EX
. P ENAL C ODE A NN
. § 2 2

. 0 21( a) (1 ) ( B) ( iii ) , ( 2)(B ).

3 See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 38.37 , § 2 (S u pp.)

.
4 S.F. resided in New Jersey.3

her to take off her p ants and to ge t on top of him , and he caused her sexual organ to c on t act his sexual organ. 5
Du ring the gu ilt

/innocenc e phase of the trial, the State introduced the testimony of A.F., S.F.’s half

- sister

. A.F. t estified about several instances of sexual c ontact of her by Feldman that

occurre d w hile she resided with him and hi s family

. Those include d an instance in which he made her give him oral sex, two instances when Feldman contact ed her sexual org an wi th his finger, and an instance when F eldman fondl ed and suck ed her breasts

. II. No Abus e of Discretion in the Admission of t he Extraneou s - Offense Ev idence A. Standard of Review “[A] trial court’s ruling on the admissibility of extraneou s offenses is reviewed u nder an
abuse

- of

- discretion standard

. ” Price v. S tate , 594 S.W.3d 674, 679 (Te x. App.

— T ex a rkana 2019, no pet.) (alteration in original ) (quoting B radshaw v. State , 466 S.W.3d 875, 878 (Tex. App.

— Texarkana 2015, pet. ref’d)). “A tr ial court does not abuse its discretion if the
decision to a d mit evidence is within the ‘zone of reasonab le di sa gr e ement.’” Id

. (quoting Bradshaw , 466 S.W.3d at 878). “I f the trial court’s decision on the admission of evidence is supported by the r ecord, there is no abuse of di scretion, and th e trial court will n o t be reversed .” Id

. (quoting Bradshaw , 466 S.W.3 d at 878). “In determining whether t he trial cou rt abused it s discretion, ‘[w]e may not substitute our own decision for that of the trial c ourt.’ ” Id

. (alteration
in or iginal) (quoting Bradshaw , 466 S.W.3 d at 878).

5 S.F. also t old the outcry witness that there had been penetration of her sexual organ.4

In the trial of certain offenses a g ains t ch i ldren, Article 38.37 “permits th e in troducti on of eviden ce . . . ‘ that the defendant has committed certain offenses against a nonvictim of th e charged offense. ’ ” Ha rty v. State , 55 2 S.W.3d 928, 933 ( Te x. App.

— Texar kana 2018, no pet.) (quoting Be lcher v . S tate , 474 S.W.3d 840, 844 (Tex. App.

— Tyler 2 015, no pet. ) )

. Article 38.37 provides , (b) Notwithstanding Rules 404 and 405, Texas Rules of Ev idence, and subject to S ection 2

- a, evide nce that the defend an t has committ ed a separate offense described by Su bs e ction (a)(1) or (2) may be admit t ed in the tr ial of an a lleged offense described by Subsection (a)(1) or (2) for any bearing the e vidence has on relevant matters, in cluding the chara cter of the defenda nt and acts per formed in conformity with the c hara ct er of the defendant.
T EX
. C ODE C RIM
. P ROC
. A NN
. art. 38.37 , § 2(b)

. B. The Trial Court Did Not Violate Feldman ’ s Due Process Rights In his first issue, Fel dman complain s that his rights to due process and a fair trial we re violated by the ad mission of the e vi de n ce of extraneous offense s against A.F

. Feldman argues
t hat , beca u se the extra neous offenses occurred more than fifteen years before trial 6 and had been reported bu t not prosecuted , it was a violation of due proc ess t o admit the evidence

. Initia lly, w e n ote that nothin g in Ar ticle 38.37 bars the introduction of non

- a djudicated
offenses and that the statute does not place a limitation on how far in the past the off enses may have occurred. In addition, as Feldma n c on cedes , Texas courts, including this o ne , ha ve previously held that Article 38.37 does not violat e due p rocess. Se e Belcher v. State , 474 S.W.3d 840, 847 (Tex. App.

— Tyler 2015, no pet.) ; Hill v. State , N o. 06

- 15

- 00168

- CR , 2016 WL

6 Although the trial occurred in 2023, S.F.’ s o ut cry was in 201 9 , and the offense against her occurred in 2016.5

3382195, at *4 (Te x. App

. — Texarkana June 17, 2016 , pet. ref’d ) (m e m. op., not designat ed for publication)

. This same issue was addressed by the Tyler Court of Appeals in Belcher and by this Court in Hill and again in Harty

. I n Hill , we reviewed the reasoning in Belch er , wh i ch
concluded that “ Section 2(b ) [ of Articl e 38

. 37 ] does not viola te an accused’s due

- process rights
and t h at the statu te is constitutional. ” Hill , 2016 WL 3382195 , at * 3 ( citing Belc her , 474 S.W.3d
at 847 )

. We found the Tyl er court’s reasoning pe rsuasiv e beca use, as noted by that co urt, Article
38 .3 7 is constrained b y Rule 403 of the Texas Rules of Eviden ce , “ which prot e ct [s] the
de fendant’s due

- process rights by requiring a balancing of probative value against the danger of unfair prejudice that might otherwi se depr i ve a defendant of a fair tria l. ” Id

. at * 4

. I n Harty , we reaffirmed our holding in Hill

. Harty , 552 S.W

. 3d at 933

– 34

. In that case , the appellant relied on th e same authority as Feld man relies on in this case. 7 A s in that cas e, Feldman “ has failed to provide any authority to under mi ne the reasonin g of Belcher

. Moreover, the authority on wh ich he relies ‘ does not take into consideration the .

. . history and a nalysis presented in Bel cher

. ’ ” Id

. at 934 (quoting Hill , 2016 WL 33 82195 , at * 4)

. Further, none of the

7 As noted in H

art y : Harty relies on United State s ’ [sic] Supreme Cour t precedent in support of his position . See Michelson v. United States , 335 U.S. 469, 475

– 46, 69 S.Ct. 213, 93 L.Ed. 168 ( 19 48 ) (common

la w tradition disallows propensity evidence to prove guilt); see als o Marshall v. Lonber ger , 459 U .S. 42 2, 449 n.1, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) (Stevens, J., dissenting) (“The common law has long deemed it unfair to argue that, bec a u se a person has co mmitted a crime in the past, he is more li kely to have commit ted a similar, more rec ent crime. ”); Sp encer v. [ Texas ] , 385 U.S. 554, 574, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967) (Warren, C.J ., dissenting) (prior decisions suggest “tha t evide nc e of prior c rime s introduced for no purpose other [t]h an to show criminal di spo sitio n would viol ate the Du e Proc ess Clause”). Harty , 552 S.W.3d at 933

– 34 ( last alteration in original)

.6

cases cited by Fel dm an hold that the introduction of extraneous

- offense evidenc e violates the defendant’s r ight s to due process and a fair trial. Fo llowing our prior decisio ns, we find that the
admission of the extraneo us - offense ev idence und er Article 38 .37 did not violat e Fe l dman’s right

t o due process. We overrule this issue. C. Th e Trial Court Did N ot Abuse Its Discr e tion Under Ru le 403
Feldm an also complains that the trial court abused its dis cretion in admitting the
extraneous

- offense evi dence in viol ation of Rule 403

. H e a rg ues that the proba tive value of the evidence was subst antially outwe ighed by the danger of u nfair prejudi ce. Article 38.37 allows evidence of extraneous offense s “ for any bearing the evidence h as on relevan t matters, including th e character of the d ef en d ant and acts performed in conformity with the character of the defendant .” T EX
. C ODE C RIM
. P ROC
. A NN . art. 3 8.37 , § 2(b). Nevertheless, “[t]his broad allowance for admission is limited by Rule 403’s balanci ng test, which permits a dmission of evidenc e as long as its p robative value is not substantially outweig hed by its potential for unfa i r prejudice. ” Bradshaw v. State , 466 S.W.3d 875, 8 82 (Tex. App.

— Texarkana 2 015, pet. ref’d) (citing T EX
. R. E VID . 403 )

. U nder the Rule 403 balanc ing test, we
must b al an c e (1) the inh erent probative force of the proffered item of evidence along with (2) t h e proponent ’ s need for that evidence against (3) any tendenc y of the evidenc e to suggest decision on an impro per basis, (4 ) any tenden cy of the ev idence to confuse o r di s tract the jur y from the main issues, (5) any tendency of the evidence to be given und u e weight by a jury that has not been equipped to evaluate th e probative forc e of the evidence, and (6) the li kelihood that presentatio n of the evi dence will consume an i n ordinate amou nt of time or merely repeat evidence alread y admitted.7

Price , 594 S.W.3 d at 680 (quot ing Giglio bianco v. State , 210 S.W.3d 637, 641

– 42 (Tex. Crim.
A pp. 2006)). “In any given case, ‘these factor s may well b lend togethe r in practice. ’ ” I d

. ( q uoting Giglio bianco , 210 S.W.3d at 642).
Feldman does not address the probative val u e of A.F.’s t estimony o r the State’s need for
that evidence. However, “[e]v idence of a separate sexual offe nse against a child admitt ed under
Art icle 38.37 is proba ti ve on the issues of intent and a defendant’s character or p ropensity to
commit sexual as s aults on chil dren.” Pr ice , 594 S.W.3d at 680 (citing Bradshaw , 466 S.W.3d a t 883; T EX
. C ODE C RIM
. P ROC
. A NN
. art . 38.37 , § 2(b )). In this case , the e vidence shows th at S.F.

was sexually assaulted by Feldman when she was nine years old and while she w a s staying in his
household

. For that reason, the testimony of A.F., w ho testified of assaults that occurred when
she was between seven and twelve years old , wa s particul arly probative of Feldman’s propensity to sexually assault young girls who we r e residin g wi th him. We f ind that the first factor weighed strongly i n favor of admission. We also find tha t the State’s need for the evidence we ighed in f avor of admiss ion. During v oir dire, Feldman asked the veniremembers how many th ought that the re could be false

a llegations of sexual abuse. He then prompte d the veniremembers to give reasons why someone

wo uld make a fal se allegation

. In cross

- exami na ti on of S.F.’s m other, Feldman elicited testimony that , when she returned from Texa s after the assault , S.F. conti nu ed her school activities and did well in school and that her mother had no suspicio n s that S.F. had suffered
trauma. In e xamining S. F., F el dm an sought to e stablish that she was motivated to make the

a llegations because Fel dman d id not want h er to have a boyfriend

. Furt her, in his direct8

te stimony, Feldman claimed that he moved back to New Jersey after the summer of the a ssault because S.F. “ be g ged” him to m ove back

. He maintained that S.F. continu ed her relationship with him a f

ter he moved back to New Jersey . He also testified that S.F. stoppe d communicating with him only after he lo st his temper over her boyfriend a fe w months bef ore her o ut cry . Feldman denied sexually assaulting S.F

. a nd maintained that her accusation w as a lie.
As we have pr eviously noted , “ B y adopting Article 38.37, Section 2, the Legislature recognized t hat in child sex offenses, ‘there is typically ve ry little evid en ce to assist pro secutors with proving their ca ses.’” Id

. at 680

– 81 (quoting Brad s h aw , 466 S.W. 3d at 884 )

. Because of
the lack of physical evidence and Feldman’s testimony and cross

- examina tion of other witnesses in which he sought to est ablish that S.F

. ma de a false all egation , we find that the Sta te had a significant need for A.F.’ s t estimony. In sexual

- assault trials , Rule 4 03 “ should be used sparingly to exclude relevant, otherwise ad missible evidence that might bear u pon the credib ility
of either t he d efendant or co mplainant in su ch ‘ he said, she said ’ cases. ” Hammer v. Stat e , 296 S.W.3d 555 , 562 (Te x . Crim. App. 20 09) (citing Lopez v. State , 18 S.W.3d 220, 22 7 (Tex. Crim. App. 2000) (Keller, J., concurring)). Conseq uently, the se cond factor also we ig h ed in fa vor o f admission.
Be cause evidence of Feldman’s extraneous sexual of fens es a gainst A.F . was inher ently
inf la mmatory and prejudicial , it “tend [ ed ] to suggest a verdict on an impr oper basis .” Price , 594 S.W.3d at 681 (citing Newt on v. State , 30 1 S. W.3d 315, 320 (Tex. App.

— Waco 2009, pet. ref ’ d ) (op. on remand) ). We find that t his facto r weigh e d against admission.9

Feldm an argues that , b ecause A.F. testified before S.F. , her testimony had a tendenc y to confuse or distract the jury from the main i ss ue s. However, t he trial cour t mitigated any such tendency in its charge to the jur y. In it s charge , the trial court (1) ide nti fied each ele ment the State was required to prove by its indictment , (2) in structed the jury that i t could only find Feldman g ui lt y if it found the allegat ions concerning the offense against S.F. were true bey on d a

rea sonable d oubt , (3) ins tructed the j ury that it was not to consider the evidence of offenses against A.F. unless i t found that Feldman com mitted them beyond a reason ab le doubt , (4) in st ructed the jury that Feldman was “not on trial for any offe nses n ot alleged i n the
indictment , ” a nd (5) instructed the jury that it “must determine if the state proved all the
elements for the offense alle ged in the indictment.” Becaus e th e jury charg e “ m itigated [ an y ] tendency of the extraneous

- offense evidence ” to “ d istract the j ury f rom the m ain issues , ” th e f ourt h factor weighed in favor of admission. Id. at 681.

“ The fifth factor refers to evidence su ch as highly techni cal or scie nt if ic evidence th at might mislead the jury because it is not equipped to weigh the p robat ive force of the evidence. ” Id

. (c iting G igliobian co , 210 S.W. 3d at 641 )

. The complained

- of evidence in this case was
neither scientifi c nor technical

. Rather, it pe rt ained to mat te rs that t he jury could easily understand, including witness credibi lity. As a result , we find that the fift h fa ctor we ighed in favor of admission. As to the sixth factor, the presentation of the extraneous

- offense evidenc e did not

consum e an inordinate am ount of time. A.F.’s direct testimony comprised approximately fift een pages of trans cript in a multi

- day trial

. The Stat e pre sented t he testimony of eight other10

witnesses, in addition to A.F. On this record, we find that the sixth fac to r also weigh ed i n favor of admission. After balancing the Rule 403 factors, we find that the trial c ourt c ould reasonably have

co nc lude d that the pr obative value of A.F.’s testimony was not substantially outweighed by the danger of unfair prejudice. Be c au se th e admissi on of the evidence was within the zone of reasonable disagreement , we find that the tria l c ourt d i d not abuse its di sc retion

. Id

. at 679

. We overrule this issue.
III. Disposition For the reasons stated, we affirm the trial court’s judgment.

Ch ar les van Clee f J ustice Date Submitted: October 23, 2023 Da te Decided: October 27 , 202 3
Do Not Pu blish