May-June 2015

A powerful tool in sexual assault of a child prosecutions

Chris Gatewood

Assistant Criminal ­District ­Attorney in Smith County

Leslie McLean

Assistant Criminal ­District ­Attorney in Smith County

Jacob Putman

Assistant Criminal ­District ­Attorney in Smith County

In 2013, the Legislature amended CCP Art. 38.37 so prosecutors can introduce evidence of a defendant’s sexual crimes against other children in the State’s case in chief. Smith County prosecutors recently utilized this statute for the first time.

Some of the most difficult and important cases we prosecute are those where children have been sexually abused. Defendants who victimize vulnerable children need to face justice. However, there is more than just the case at hand to worry about. A “not guilty” verdict will give a child molester another opportunity to hurt an innocent life. The pressure to convict is even greater when the defendant has been previously convicted of sexually abusing a child. Unfortunately, the burden of proof usually rests on the shoulders of these traumatized children.
    In its 83rd Regular Session, the Texas Legislature addressed the difficulties prosecutors face in handling child sex cases where a defendant has previously sexually abused another victim. In 2013, the Legislature amended Art. 38.37 of the Texas Code of Criminal Procedure to permit prosecutors to introduce evidence—during the State’s case in chief—that the defendant had previously committed separate sexual offenses against other children. New §2(b) greatly expands the State’s ability to successfully prosecute offenders for sexual crimes against children.

How it used to be
If your caseload includes sexual crimes against children, then you are familiar with Art. 38.37. Before September 1, 2013, Art. 38.37 addressed other sexual acts the defendant committed only against the child named in the State’s indictment. Once a prosecutor complied with the statutory notice requirement, the victim could testify about the defendant’s sexual acts alleged in the indictment and extraneous acts of sexual abuse. However, the statute indicated that the jury could consider the extraneous evidence only for its bearing on 1) the state of mind of the defendant and the child; and 2) the previous and subsequent relationship between the defendant and the child.
    Article 38.37 was helpful because it gave prosecutors a vehicle to further develop the victim’s testimony before the jury. However, due to the nature of the offense and the type of criminal involved, several issues still plagued prosecutors. Sexual assault of a child is a crime of secrecy, manipulation, and control. Oftentimes, the child identified in the indictment is not the first victim, but due to the constraints of the Texas Rules of Evidence and Art. 38.37, the jury would be led to believe that this was the only time the defendant had acted on his perversions. Accepting that sexual crimes against children actually occur and rendering a guilty verdict on the word of a child alone can be difficult for jurors. Before Art. 38.37 was amended, prosecutors could be left frustrated when thinking of trial: If only the defendant’s prior vic-tim(s) could testify, the State’s case would appear much clearer.

The new statute
In 2013, the Texas Legislature passed Senate Bill 12, which provided prosecutors with much-needed assistance. The legislative intent for the amendment was clear:
Because of the nature of child sex offenses, there is typically very little evidence to assist prosecutors with proving their cases. Victims, especially children, are many times so scarred by the physical and emotional trauma of the event that there are often long delays in the reporting of the crime, and these delays can lead to the destruction or deterioration of what little physical evidence exists. As a result, the primary piece of evidence in most child sexual abuse cases is a traumatized child. …
    “Evidence of prior, similar offenses against other victims will provide prosecutors with a much-needed tool to assist them in showing a defendant’s propensity for committing these types of crimes. This, in conjunction with the evidence presented in the current case, may help to prove beyond a reasonable doubt in a juror’s mind that the defendant is in fact guilty.1
    Section 2(b) specifically permits the prosecutor to offer evidence—after a required hearing and favorable ruling by the court—of other sexual acts committed by the defendant against other victims. Furthermore, the jury is permitted to consider such evidence for any purpose, and §2(b) clearly allows the jury to interpret the extraneous sexual acts as evidence of the defendant’s character and that he acted in conformity with that character. Section 2(b) is an unambiguous and necessary departure from Rules 404 and 405 of the Texas Rules of Evidence.
    Recently, we were able to apply §2(b) and secure a guilty verdict on a difficult case.

Smith County case
In February 2014, William Smith was indicted by a Smith County grand jury for aggravated sexual assault of a child under 6 years of age. Like many sexual abuse cases, the evidence consisted primarily of the statement of a small and fragile child. There was no DNA evidence, eyewitnesses, or confession at the State’s disposal. The victim, whom we will call Brittany, made an outcry shortly after an instance of abuse. Brittany identified her abuser as William Smith, a man who lived in her family’s home. Smith was not a family member or close friend; in fact, he was a registered sex offender with a prior conviction for sexual abuse of a child.
    In 2012, Brittany, her mother Nicole, her stepfather Jimmy, and her three stepsiblings were living in a four-bedroom brick house in Lindale. Brittany was 4 years old at the time. Nicole was employed as a cashier at a local gas station. Smith pulled into the gas station because he was having car trouble, and he struck up a conversation with Nicole. After learning about Smith’s troubles, Nicole called and asked Jimmy to come lend a hand. Jimmy and Smith immediately hit it off, and they began to spend time together.
    Smith had no consistent place to live, and he eventually told Jimmy that he needed somewhere to stay. Nicole and Jimmy were both aware that Smith had served time in prison, but both denied knowing the specific charge when our investigators spoke with them. Sometime around November 2012, Jimmy and Nicole allowed Smith to move into one of the bedrooms in their house.
    Smith lived with the family for approximately 10 months. Nicole began to leave the children alone with him, and as time progressed, Smith regularly supervised the children with no other adults present. Sadly, an unstable family or a neglectful parent often surrounds sexual assault victims, and Brittany’s case was no exception. While Brittany was in Smith’s care, Nicole was buying and using methamphetamine. In July 2013, Nicole’s drug usage escalated to the point that Jimmy decided to take his children and leave. That left Brittany, Nicole, and Smith in the house.
    Brittany’s outcry of sexual abuse came in August when Nicole returned home one evening. As usual, Smith was the one who watched Brittany while Nicole was out. When Nicole entered the house, Brittany grabbed her by the leg and said, “I need to tell you something.” The two went into Nicole’s bedroom to talk, and Brittany told Nicole that Smith had touched her “down there.” Brittany was able to demonstrate what she meant by moving her finger back and forth on her private part.
    Nicole immediately confronted Smith about the allegation, but he denied touching Brittany. In an effort to diffuse the situation, Smith agreed to leave the house for the night. Nicole then called her sister, Samantha, who lived in Dallas; Samantha drove to Lindale the next morning and took Brittany back to Dallas.

Reviewing evidence
As we reviewed the evidence and prepared this case for trial, we were certain of Smith’s guilt, but we knew that convincing a jury would be a difficult task. For every favorable piece of evidence we had, there was something that a defense lawyer could use to create doubt in jurors’ minds. Brittany’s outcry to Nicole was clear and unmistakable, but at the time of trial, Nicole was still using methamphetamine. Furthermore, CPS records revealed that a couple years before Brittany’s outcry, Nicole had falsely accused Jimmy of sexually abusing his biological children. Nicole’s reliability and credibility as a witness was clearly a problem.
    Shortly after Brittany moved in with her aunt Samantha in Dallas, the Collin County Children’s Advocacy Center conducted a forensic interview. During the interview, Brittany recounted in great detail how Smith had touched her private part when she was on the couch and when she was in the bathroom. She referred to Smith as “William in the brick house.” However, Brittany also referenced another William, “William in the apartments.” Brittany stated that “William in the apartments” had touched her butt with a stick. During the interview, Brittany went back and forth between the different Williams, which complicated matters. The interviewer had a difficult time keeping the facts straight.
    The obvious concern was that the defense would use this other William to muddy the waters, even though the lead investigator had been able to positively identify and distinguish between the two different Williams and the two different incidents. When trial came around, we would need to prove that our 4-year-old victim could accurately distinguish between the two Williams and the two separate instances of abuse.
    After Brittany’s forensic interview, she underwent a sexual assault medical forensic examination at Children’s Hospital in Dallas. According to the medical documentation, Brittany had a severe case of labial adhesion (labial adhesion is when the labia minora are fused together). In preparing for trial, we spoke with the Sexual Assault Nurse Examiner (SANE), who said she could testify that a labial adhesion is consistent with repeated sexual abuse. However, Brittany had spoken of only two instances of sexual abuse. The defense would likely use the nurse practitioner to establish that the adhesion was likely (although not definitively) caused by poor hygiene. The nurse practitioner’s testimony did not promise to be compelling evidence.

Meeting with Brittany
We prefer to meet with child victims long before trial, and Brittany was no exception. Our initial goal was to determine if Brittany would be able to testify, and we needed to know how she would come across to a jury. Luckily, Brittany was living with her paternal grandparents in a small town about 45 minutes from our office in Tyler, and Brittany’s grandmother agreed to bring her to our office.
    When they arrived at our office, our victim services coordinator, Sherry Magness, escorted her and the grandmother to our victim’s area, which is child-friendly. The lead prosecutor on the case, Jacob Putman, sat down with her. Brittany was a 5-year-old, blonde-haired girl. She was unusually calm and quiet compared to most of the young children with whom we have worked. After Jacob introduced himself, Brittany looked him straight in the eyes and immediately asked if he wanted to talk about what Smith had done to her.
    As a general rule, we do not discuss the facts of a case with a child victim during the first meeting, especially a child as young a Brittany. We prefer to build a rapport with her, give her the opportunity to relax, and (we hope) develop enough trust in us to tell her story. The stories these children have to tell are traumatizing, so it is nice to briefly focus on just getting to know them. Even though Brittany was forward about the abuse, Jacob decided it would be better to wait until our next meeting before we discussed the facts. Brittany’s physical demeanor was unusual for someone her age: She maintained direct eye contact for the duration of our meeting, and she seemed distant and emotionless.
    Jacob was confident that Brittany would be competent to testify because her level and degree of communication was mature. However, we were concerned that a jury would interpret her lack of emotion as a sign of coaching or rehearsal. We planned to meet with her on a few more occasions to talk about the abuse and discuss what testifying in trial involved, and we wanted to show her the courtroom. Unfortunately, shortly after the first meeting with Brittany, she moved in with her father who lived nine hours away. While living with her father was a positive arrangement, the geographical distance made meeting with her impractical. In light of the evidentiary hurdles and our lack of access to Brittany, we knew that Art. 38.37, §2(b) would be crucial during the trial.

Criminal history
Before William Smith’s case was presented to the grand jury, we requested his criminal history. The information that we received proved helpful to the case. He had pled guilty to one count of sexual abuse of a child in November 2000 in Comanche County, Oklahoma. After his guilty plea, the court assessed punishment at 20 years’ confinement. However, after we examined the paperwork, we learned that Smith was initially charged with two cases of sexual abuse of a child—Brittany was his third victim. As a result of a plea agreement, Smith pled guilty to one charge and the State agreed to dismiss the remaining charge.
    One of the certified documents included in the paperwork was a copy of a probable cause affidavit, which contained the names of both  victims, whom we will call Laura and Claire. Our investigator was tasked with locating them, but we were concerned that now, 14 years after the offense, the two may have changed names, moved, or even passed away. Even if we could find them, we were worried that they might be unwilling to testify.
    After a few weeks and several unanswered messages, Jacob received a call from Laura. He identified himself as a prosecutor with the Smith County Criminal District Attorney’s Office and began the conversation with a simple question: “Do you know why I am calling?” He was surprised but encouraged by Laura’s response: “You’re calling about William Smith.” Apparently, Laura had kept track of Smith while he was in the Oklahoma prison system, and she knew that he had served 10 years of his 20-year sentence. Laura was even aware of his release date from prison, which happened to be on her birthday.
    During the conversation, Jacob described the circumstances of Smith’s new charges and clarified the problems that were present in the case. He then made a plea for Laura’s help. He explained that Art. 38.37, §2(b) would allow her to testify during the guilt phase of the trial, making clear that her testimony was essential to the case. He then asked if she would be willing to come to Tyler to testify at Smith’s trial. She paused for a moment and then told him that she would do everything in her power to help.

Laura’s story
We needed to know the details of Laura’s abuse so we could give proper notice under Art. 38.37, §2(b), and Laura agreed to tell her story. Sometime around 1990, when Laura and her sister, Claire, were 6 and 4, their mother married William Smith. At the time, they lived in Florida.
    Shortly after the marriage, Smith began a ritual of separately waking each girl during the night and sexually abusing them. Neither Laura nor Claire was aware of the abuse the other suffered. Not long after the abuse began, Laura made an outcry, and CPS began an investigation. During Laura’s interview with CPS, she recanted her statement because her mother told her that she and Claire would be taken away if she stuck to her story.
    Unfortunately, CPS closed the case, and Smith returned to his routine of sexual abuse. The family moved to Texas and later Oklahoma, and Smith continued to molest each girl three to four times a week. When Laura was 15, she decided that she could no longer endure the horror. She made an outcry to a friend, and police in Oklahoma began an investigation. Fortunately, when Laura was interviewed this time, she did not recant. Her sister, Claire, initially told law enforcement about the abuse she suffered, but she later refused to talk—again, the product of her mother’s intimidation.
    The State of Oklahoma charged Smith with the sexual assault on Laura, and he entered a guilty plea to 20 years in the Oklahoma prison system. Smith was sentenced in November 2000 and was released on parole in 2010. He then left Oklahoma and moved in with his mother in Lindale.
    Jacob asked Laura whether she thought Claire would be willing to testify. Laura agreed to contact Claire, but she was not optimistic. Laura’s concern was that even now, 14 years later, Claire would continue to refuse to discuss the subject.
    We immediately filed notice of intent to offer Laura’s testimony under Art. 38.37, §2(b) and began to prepare for the hearing required by Art. 38.37 §2-a, where the trial judge would need to make a finding that our proposed §2(b) evidence was sufficient to convince a jury beyond a reasonable doubt.2 Although we had Smith’s certified conviction for sexual assault of a child, we did not want to take any chances. We planned to present as much evidence at the §2-a hearing as possible to ensure that the judge would rule in our favor. Thus, we felt it necessary to have Laura make the six-hour drive to Tyler. To accommodate our witnesses, we asked the court to set the §2-a hearing on the morning of the trial’s voir dire, which was a Monday. The court and defense agreed to the setting.
    As the trial date approached, we made arrangements with Brittany’s father to make the nine-hour drive to Tyler the Saturday before trial. Laura also agreed to drive to Tyler on Sunday night so that everyone would be present for the hearing on Monday morning. Monday morning arrived and all the witnesses were present. We went to court for docket call while Brittany, her grandparents, and Laura waited in our victim’s area. However, we were frustrated to learn that the defense attorney was ill and unable to proceed with trial. Our witnesses had made the trip for nothing, and the court reset the case for a month.
    But there was a silver lining. About a week later, Jacob received a call from Laura. We were delighted to learn that Claire was now willing to testify. Laura gave Jacob Claire’s number and he immediately called. Claire had been hesitant to speak about the abuse; she had not spoken a word of it since childhood because it was too painful. Nevertheless, after talking with Laura, Claire felt empowered and was willing to tell her story. After a lengthy conversation, Claire agreed that she would do her part to guarantee that Smith would never have access to another child. She agreed to travel to Tyler for the trial setting, and we were more confident that we would secure a guilty verdict. Brittany’s testimony would be clear, the certified conviction would corroborate Laura’s testimony, and Claire was on board. Unfortunately, the §2(b) notice regarding Claire’s testimony would be untimely because the trial setting was less than 30 days away and we were committed to no further delays, so she couldn’t testify at the §2-a hearing.

The §2-a hearing
On the Monday morning of trial, the court held the §2-a hearing. We first offered Smith’s certified conviction through a fingerprint expert. We felt it necessary that Smith’s judicial admission to sexually abusing Laura be established immediately. The defense attorney was very aggressive with Laura because the hearing was outside the presence of the jury; he attacked her viciously, insinuating that her testimony was a fabrication, despite the fact that Smith’s certified conviction sat only a few feet from the witness stand. The defense attorney picked apart each detail of the abuse that Laura suffered over nine years. At the end, Laura was shaken and crying on the stand.
    The judge ruled that Laura’s testimony and the certified prior would both be allowed into evidence under §2(b). Laura was pleased with the ruling but now anxious about the second round of cross-examination. We assured Laura and Claire that the defense attorney could not afford to be so aggressive with the jury present.

The trial
Brittany and her grandparents had flown to Tyler for the trial. We were able to speak with Brittany before the §2-a hearing and after voir dire. On Tuesday morning, we called Brittany to the stand. As expected, she testified about the sexual abuse she had experienced at Smith’s hands. Without hesitation, she pointed to him, identified him, and bravely answered all the questions both sides had for her. Even though we had limited access to Brittany before trial, she was confident on the witness stand. Her mother, stepfather, the forensic interviewer, the nurse practitioner, her aunt, and the lead detective all testified.
    Our last witness for the guilt-innocence phase was Laura. Her testimony was unflinching. The jury learned about the horrors she experienced in the darkness over a nine-year period. The jury heard the similarities in the cases: Laura was around the same age as Brittany when the abuse began, and Smith would touch her the same way he touched Brittany. During cross-examination, the defense was not able to shake Laura. As she walked out of the courtroom, the jury was in tears.
    The jury deliberated for two hours and returned a guilty verdict. Smith had elected to have the jury assess punishment. Under §12.42(c)(2)(A) of the Texas Penal Code, a person convicted of a sexual offense against a child can receive a mandatory life sentence if he has been previously convicted under another state’s laws containing elements that are substantially similar to the elements of one of the enumerated offenses. The judge in our case determined that the Oklahoma statute under which Smith had been convicted was too broad to meet the requirements of §12.42(c)(2)(A), so his punishment range was 25 years to life instead of the mandatory life requirement. During the punishment phase, Claire testified to the sickening details of Smith’s actions—this was the first time that she had publicly talked about her abuse. Her story echoed Laura’s testimony, that Smith had sexually abused Claire three to four times a week for nine years.
    The jury returned a life sentence in four minutes. William Smith will never be eligible for parole.

In amending Art. 38.37, the Texas Legislature acknowledged the need for a new approach in child sexual abuse cases. Section 2(b) offers prosecutors a tool to lighten the heavy burden that child-abuse victims often suffer during trial. As previously explained, for every favorable piece of evidence we possessed in Brittany’s case, there was a piece of evidence that a defense lawyer could use to create doubt in the minds of jurors. We are thankful that §2(b) provided us with the corroboration necessary to ensure that justice was done. Section 2(b) will be an invaluable resource for those prosecutors who try these cases.


1 Senate Research Ctr., Bill Analysis, Tex. S.B. 12, 83rd Leg., R.S. (2013).
2  See Tex. Code Crim. Proc. art. 38.38 §2-a.