Bryan Alvin Holland v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00012-CR

BRYAN ALVIN HOLLAND,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 413th District Court
Johnson County, Texas
Trial Court No. DC-F202200311

OPINION

Bryan Holland appeals from two convictions for Continuous Sexual Abuse of a

Child. TEX. PENAL CODE §21.01. Holland complains that the trial court erred by admitting

evidence of prior juvenile adjudications pursuant to article 38.37 of the Code of Criminal

Procedure and Rule of Evidence 403, and that the statute pursuant to which he was

convicted is facially unconstitutional. Because we find no reversible error, we affirm the

judgments of the trial court.
ADMISSION OF EVIDENCE

In his first issue, Holland complains that the trial court abused its discretion by

allowing the admission of evidence relating to an adjudication of delinquent conduct

from approximately sixteen years before the trial of the offenses for which he was

convicted.

STANDARD OF REVIEW—ABUSE OF DISCRETION

We review a trial court's decision to admit or exclude extraneous offense evidence

under an abuse-of-discretion standard. Perkins v. State, 664 S.W.3d 209, 217 (Tex. Crim.

App. 2022); Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). A trial court

abuses its discretion if its ruling is so clearly wrong as to lie outside the zone of reasonable

disagreement. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). We uphold

a trial court's ruling if it is reasonably supported by the record and is correct under any

theory of law applicable to the case. Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim.

App. 2005); see also Perkins, 664 S.W.3d at 217 (cautioning that when reviewing trial court's

Rule 403 balancing-test determination, appellate court reverses trial court's judgment

"rarely and only after a clear abuse of discretion" (quoting Mozon v. State, 991 S.W.2d 841,

847 (Tex. Crim. App. 1999))).

BACKGROUND FACTS

The juvenile adjudication was for aggravated sexual assault of a child and

indecency with a child. The State sought to admit the evidence pursuant to article 38.37(2)

of the Code of Criminal Procedure to show that Holland had a propensity of committing
Holland v. State Page 2
sexual offenses against male children of a certain age range. TEX. CODE CRIM. PROC. art.

38.37, § 2(b). The trial court conducted a hearing outside of the presence of the jury to

determine the admissibility of this evidence as required by article 38.37. TEX. CODE CRIM.

PROC. art. 38.37, §2-a. Holland objected to the admission of the adjudication because it

should not be admissible pursuant to Family Code Section 51.13 and that it was not

relevant, was too remote, and the "probative value being greatly outweighed by the

unfair prejudice." After hearing the arguments of counsel, the trial court determined that

the evidence was admissible.

At trial, the two victims from the juvenile proceedings testified about what

Holland had done to them as children. They had not testified at Holland's juvenile

adjudication hearing because Holland had stipulated to the evidence and pled true to the

allegations against him. The stipulation of evidence signed by Holland and the order of

disposition that placed Holland on probation until his 18th birthday were admitted into

evidence.

CODE OF CRIMINAL PROCEDURE ARTICLE 38.37, SECTION 2

Article 38.37, Section 2 provides that "evidence that the defendant has committed

a separate offense may be admitted in the trial of an alleged offense 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. Holland argues that juvenile adjudications are not included in the meaning of

"separate offense" because of the Family Code's prohibition against the use of juvenile
Holland v. State Page 3
adjudications and disposition in other than punishment in adult criminal proceedings.

Section 51.13(b) states in relevant part that:

(b) The adjudication or disposition of a child or evidence adduced in a
hearing under this title may be used only in subsequent:
…
(2) sentencing proceedings in criminal court against the child to the extent
permitted by the Texas Code of Criminal Procedure, 1965; …

TEX. FAM. CODE §51.13(b).

Holland has cited to no authority, nor have we found any authority that has

determined that juvenile adjudications are exempt from article 38.37. Holland does cite

to two unpublished intermediate appellate court memorandum opinions that found that

evidence of extraneous offenses committed by a defendant while the defendant was

under the age of 17 and still considered a juvenile was admissible pursuant to article 38.37

in the guilt-innocence phase of a trial. See Denelsbeck v. State, No. 06-21-00067-CR, 2022

Tex. App. LEXIS 678, 2022 WL 274120 (Tex. App.—Texarkana Jan. 28, 2022, no pet.) (mem.

op., not designated for publication); Perez v. State, No. 02-19-00163-CR, 2020 Tex. App.

LEXIS 8966, 2020 WL 6788196 (Tex. App.—Fort Worth Nov. 19, 2020, pet. ref'd) (mem.

op., not designated for publication). Holland argues that neither case adequately

addresses the issue before us and should not be considered as they have no precedential

value. See TEX. R. APP. P. 47.7(a). We agree that the opinions do not have precedential

value, but we may properly consider their analysis in our resolution of this issue as there

is no precedential authority cited to by either Holland or the State that is determinative

of this issue. Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana 2017, pet. ref'd)
Holland v. State Page 4
("Although unpublished cases have no precedential value, we may take guidance from

them as an aid in developing reasoning that may be employed.") (quotations omitted).

Holland also disagrees with the holding in each case.

Denelsbeck involved the admission of a juvenile adjudication (improperly referred

to as a "conviction") for indecency with a child by contact that had taken place over 20

years prior to his current charge of indecency with a child by contact. See Denelsbeck, 2022

Tex. App. LEXIS 678 at *9-10. The challenge to the evidence was limited to the juvenile

adjudication, which the trial court found to be admissible pursuant to article 38.37. See

id. The analysis of the issue was limited to the following:

Yet, nothing in Article 38.37 bars the introduction of a juvenile conviction.
"If the legislature had intended Article 38.37 to apply only to those
extraneous offenses committed by the defendant [after reaching] the age of
majority, it would have said so." Perez v. State, No. 02-19-00163-CR, 2020
Tex. App. LEXIS 8966, 2020 WL 6788196, at *5 (Tex. App.—Fort Worth Nov.
19, 2020, pet. ref'd) (mem. op., not designated for publication) (citing Miles
v. State, 506 S.W.3d 485, 487 (Tex. Crim. App. 2016)). As a result, we cannot
conclude that the trial court abused its discretion by determining that the
juvenile extraneous-offense evidence was admissible under Article 38.37.

Denelsbeck, 2022 Tex. App. LEXIS 678 at *10.

In Perez, which was cited in Denelsbeck, the issue was whether or not evidence of

sexual conduct of the defendant committed while he was a juvenile was admissible

pursuant to article 38.37 in a continuous sexual abuse of a child case. See Perez, 2020 Tex.

App. LEXIS 8966 at *11-15. In Perez, the allegations of sexual misconduct committed by

the defendant took place both before and after his 17th birthday although the indictment

alleged the defendant's 17th birthday as the earliest date the continuous sexual abuse
Holland v. State Page 5
occurred. Perez argued that only evidence of conduct committed after a defendant turns

17 should be admissible pursuant to article 38.37. The court of appeals disagreed, stating

as follows:

Perez avers that Article 38.37 can only apply to those extraneous offenses
committed by the non-juvenile defendant because an individual cannot be
convicted of continuous sexual abuse unless they are over the age of
seventeen; in other words, they were not a "defendant" at the time they
committed the juvenile extraneous offenses. But he cites no support for his
argument, and we have not found any such support in our own research.
Rather, his argument asks us to read something into the plain wording of
the statute that is not there—an invitation that we are legally obligated to
decline. See Lopez v. State, 600 S.W.3d 43, 45 (Tex. Crim. App. 2020)
("Statutory construction depends on the plain meaning of the statute's
language unless it is ambiguous or the plain meaning would lead to absurd
results . . . . If the plain meaning is not ambiguous or does not lead to absurd
results, we do not consider extra-textual factors."). If the legislature had
intended Article 38.37 to apply only to those extraneous offenses committed
by the defendant once they reached the age of majority, it would have said
so. Miles v. State, 506 S.W.3d 485, 487 (Tex. Crim. App. 2016) ("[W]e assume
that the legislature means what it said and derive the statute's meaning
from the words that the legislature used.").

Perez's argument that this exception swallows the State's burden of proof is
fatally undermined by the fact that—as the State candidly admitted—a
continuous-sexual-abuse conviction may only be upheld by sufficient
evidence that the accused was seventeen when he committed two or more
acts of sexual abuse against the child over a period of thirty days or more.
See TEX. PENAL CODE ANN. 21.02. Tellingly, Perez makes no complaint
regarding the sufficiency of the evidence underlying his conviction.
Finally, Article 38.37 goes to the admissibility of the evidence—a concept
that is separable from the weight to be assigned to the evidence by the
factfinder in determining the sufficiency of the evidence to support each
element of the crime. See Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim.
App. 2017).

We are not persuaded that the trial court abused its discretion by
determining that the juvenile-extraneous-offense evidence was admissible
under Article 38.37.
Holland v. State Page 6
Perez, 2020 Tex. App. LEXIS 8966 at *14-15.

We agree with the analysis in Perez, that if the legislature had intended for conduct

that occurred while a defendant was a juvenile to be excluded from article 38.37, it could

have said so but did not. The relevant part of article 38.37 was enacted after Section 51.13

of the Family Code, thus the legislature knew of the restriction set forth in the family code

but chose not to address it. See Acts 2013, 83rd Leg., ch. 387 (S.B. 12), § 1, effective

September 1, 2013 (TEX. CODE CRIM. PROC. 38.37(b)); Acts 1973, 63rd Leg., ch. 544 (S.B.

111), § 1, effective September 1, 1973 (TEX. FAM. CODE §51.13). Article 38.37 was intended

to allow the admission of evidence that would otherwise be inadmissible with limited

exceptions expressly included, and we find that the trial court did not abuse its discretion

in the admission of Holland's conduct as a juvenile.

RULE OF EVIDENCE 403

Holland also complains that the evidence was inadmissible pursuant to Rule of

Evidence 403. Under Rule 403, even relevant evidence may be excluded if its probative

value is substantially outweighed by a danger of unfair prejudice, confusion of the issues,

or misleading the jury; by considerations of undue delay; or by needless presentation of

cumulative evidence. TEX. R. EVID. 403. Holland objected specifically on the basis of

unfair prejudice, not that the evidence was misleading, caused undue delay, or resulted

in the needless presentation of cumulative evidence.

When considering a Rule 403 objection, the trial court must balance: (1) how

Holland v. State Page 7
compellingly the extraneous offense evidence serves to make a fact of consequence more

or less probable (probative force); (2) the potential of the evidence to impress the jury in

some irrational, but nevertheless indelible way; (3) the time the proponent needs to

develop the evidence, during which the jury will be distracted from consideration of the

indicted offense; and (4) the proponent's need for the evidence. Perkins, 664 S.W.3d at

217; see Gigliobianco v. State, 210 S.W.3d 637, 641, 642 (Tex. Crim. App. 2006) (defining

"probative force" and addressing factors of Rule 403 analysis with greater detail).

As to the first factor, Holland contends that the probative force of the extraneous

offense was weak because it was remote and dissimilar from the charged offense. See

Gaytan v. State, 331 S.W.3d 218, 226 (Tex. App.—Austin 2011, pet. ref'd) (noting that

remoteness reduces probative value of extraneous offense because passage of time allows

things and people to change). Although the extraneous offenses occurred in 2004 and

2005, approximately 16 years before the charged offense, that time span alone does not

deplete the probative value of the evidence. See, e.g., Dies v. State, 649 S.W.3d 273, 285

(Tex. App.—Dallas 2022, pet. ref'd) (concluding that evidence of extraneous child sexual

abuse that "began approximately 19 years before trial" was not inadmissible); Deggs v.

State, 646 S.W.3d 916, 925-26 (Tex. App.—Waco 2022, pet. ref'd) (concluding that

extraneous offense from 1998, eighteen years before charged offense in 2016, was not

inadmissible but probative of defendant's character or propensity to commit indecent acts

with children around age of victim in charged offense and that "this factor weighed

strongly in favor of admission"); Robisheaux v. State, 483 S.W.3d 205, 219 (Tex. App.—
Holland v. State Page 8
Austin 2016, pet. ref’d) (concluding that extraneous offense from twelve years before

charged offense was admissible and noting that "remoteness is not the only factor to

consider when analyzing the probative value of evidence of an extraneous offense").

Additionally, while some aspects of the offenses differed, there were also significant

similarities, including that the victims of the prior offenses were males around the same

ages as the male victims in the charged offenses and Holland used similar tactics and

threats to ensure compliance by his victims in both sets of offenses. Thus, it was

reasonable for the trial court to have determined that the probative force of the evidence

was strong and weighed in favor of admission.

As to the second factor, the potential of the evidence to impress the factfinder in

some irrational, but nevertheless indelible way, we note that article 38.37 expressly

authorizes admission of evidence showing that the defendant committed a separate

sexual offense "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). Evidence of Holland's prior sexual

assaults of minors was probative of his propensity to sexually assault children. See

Alvarez v. State, 491 S.W.3d 362, 371 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd)

(noting that "Rule 403 balancing test normally will not favor the exclusion of evidence of

the defendant's prior sexual assaults of children" that was admitted under article 38.37

§ 2(b)); Belcher v. State, 474 S.W.3d 840, 848 (Tex. App.—Tyler 2015, no pet.) (concluding

that evidence of prior sexual abuse of children admitted under article 38.37 § 2(b) "was
Holland v. State Page 9
especially probative of Appellant's propensity to sexually assault children").

Additionally, potential prejudice may be mitigated when, as here, the extraneous acts are

no more serious than the allegations that are the basis for the charged offense. See

Robisheaux, 483 S.W.3d at 220 (noting that although extraneous-offense testimony might

have had tendency to suggest decision on improper basis because testimony pertained to

previous sexual assault of minor, this potential was ameliorated somewhat because

sexual-misconduct testimony "discussed actions that were no more serious than the

allegations forming the basis for the indictment"). Thus, the second factor weighs in favor

of admission because article 38.37 expressly allows such evidence in prosecutions such

as these and the admitted evidence of the extraneous offenses was no more serious than

the charged offenses.

As to the third factor relating to the time needed to develop the evidence during

which a jury would be distracted from consideration of the indicted offense, Holland

argues that the fact that the State presented the testimony of the two victims and the

documentary evidence of the juvenile stipulation of the evidence and disposition first in

the trial prior to any evidence of the convicted offenses at issue in this appeal leads to the

likelihood that the jury was distracted from the current offenses. While certainly the

evidence was admitted for the purpose of establishing that Holland had the propensity

to sexually assault male children of a certain age range, that is the purpose of admitting

that type of evidence. The time the State took to present the evidence did not take up an

excessive amount of time. We find that this factor weighs in favor of admission.
Holland v. State Page 10
As to the fourth factor, Holland contends that the State's need for that evidence

was minimal because his propensity to commit the offenses was not related to an issue in

dispute. However, this case was largely a "he said, he said" question for the jury. There

was testimony from an outcry witness and medical records from a SANE exam admitted

into evidence that mostly followed the victims' description of the events. However, the

medical records did not show any physical evidence of the offenses. One of the victims

alleged that he was assaulted after he had been restrained by straps in the back of

Holland's vehicle, but the straps found in the back of Holland's vehicle did not have any

biological evidence on them. Holland attempted to show that the victims were not being

truthful in their assertions and that he did not commit the offenses. The challenges to the

victims' credibility increased the State's need for the extraneous-offense evidence. See

Newton v. State, 301 S.W.3d 315, 320 (Tex. App.—Waco 2009, pet. ref'd) (concluding that

extraneous-offense evidence was probative to rebut defensive theory of fabrication).

Thus, the trial court could have reasonably determined that the State's need for this

evidence was great and weighed in favor of admission.

We find that all the Rule 403 balancing factors favored admission of the extraneous

offenses. Accordingly, we conclude that the trial court did not abuse its discretion by

overruling Holland's Rule 403 objection and determining that the probative value of the

extraneous-offense evidence was not substantially outweighed by the danger of unfair

prejudice. We overrule Holland's first issue.

Holland v. State Page 11
CONSTITUTIONALITY OF SECTION 21.01 OF THE TEXAS PENAL CODE

In his second issue, Holland complains that Section 21.01 of the Texas Penal Code

is facially unconstitutional. Holland concedes that he did not preserve this issue by

objecting at trial and that this Court cannot properly address it. A facial challenge to the

constitutionality of a statute may not be raised for the first time on appeal. See Karenev v.

State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). Holland's second issue is overruled.1

CONCLUSION

Having found no reversible error, we affirm the judgments of the trial court.

TOM GRAY
Chief Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed October 24, 2024
Publish
[CRPM]

1
Although Holland acknowledges that we are constrained against addressing this issue, we do not believe
that this issue was raised frivolously. We acknowledge that a recognition by a higher court that
preservation should not be required prior to raising this issue on appeal is the only potential recourse
Holland has to raise his contentions.
Holland v. State Page 12