By Shapiro                                             S.B. No. 167
       74R2687 GWK-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to an affirmative finding of sexual motivation and to the
    1-3  admissibility of evidence of other crimes, wrongs, or acts
    1-4  committed against a child in certain criminal cases.
    1-5        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-6        SECTION 1.  Chapter 38, Code of Criminal Procedure, is
    1-7  amended by adding Article 38.02 to read as follows:
    1-8        Art. 38.02.  EVIDENCE OF EXTRANEOUS OFFENSES OR ACTS
    1-9        Sec. 1.  This article applies to a proceeding in the
   1-10  prosecution of an offense:
   1-11              (1)  in which the attorney representing the state has
   1-12  announced an intention to seek an affirmative finding under Article
   1-13  42.015; or
   1-14              (2)  that is defined by any of the following sections
   1-15  of the Penal Code if the offense is alleged to have been committed
   1-16  against a child who is under 17 years of age:
   1-17                    (A)  Section 21.11 (Indecency with a Child);
   1-18                    (B)  Section 22.011 (Sexual Assault);
   1-19                    (C)  Section 22.021 (Aggravated Sexual Assault);
   1-20                    (D)  Section 25.02 (Prohibited Sexual Conduct);
   1-21  or
   1-22                    (E)  Section 43.25 (Sexual Performance by a
   1-23  Child).
   1-24        Sec. 2.  In addition to the purposes for which evidence may
    2-1  be admissible under Rule 404(b), Texas Rules of Criminal Evidence,
    2-2  evidence of other crimes, wrongs, or acts committed against the
    2-3  child by the defendant charged with the offense may be admissible
    2-4  to:
    2-5              (1)  show the probability of the offense;
    2-6              (2)  aid in evaluating the child's testimony against
    2-7  the defendant if the defendant is responsible for the child's
    2-8  welfare or is in a position of authority or control over the child;
    2-9              (3)  explain the relationship between the defendant and
   2-10  the child if the defendant denies committing the charged offense or
   2-11  denies the defendant's relationship to the child;
   2-12              (4)  prove the defendant's specific intent to arouse
   2-13  and gratify the defendant's sexual desire in the charged offense;
   2-14              (5)  refute a defensive theory; or
   2-15              (6)  show the defendant's unnatural attention toward
   2-16  the child.
   2-17        Sec. 3.  On timely request by the defendant, the state must
   2-18  give to the defendant reasonable notice in advance of trial of the
   2-19  state's intent to introduce in the case in chief evidence described
   2-20  by Section 2 of this article other than evidence arising in the
   2-21  same transaction.
   2-22        SECTION 2.  Chapter 42, Code of Criminal Procedure, is
   2-23  amended by adding Article 42.015 to read as follows:
   2-24        Art. 42.015.  FINDING OF SEXUAL MOTIVATION.  In the trial of
   2-25  an offense, the court shall make an affirmative finding of fact and
   2-26  enter the affirmative finding in the judgment in the case if the
   2-27  court determines that the defendant committed the offense with an
    3-1  intent to arouse or gratify the sexual desire of:
    3-2              (1)  the defendant, if at the time of the offense the
    3-3  object of the desire was a person younger than 17 years of age; or
    3-4              (2)  any person who at the time of the offense was
    3-5  younger than 17 years of age.
    3-6        SECTION 3.  Article 42.01, Code of Criminal Procedure, is
    3-7  amended by adding Section 7 to read as follows:
    3-8        Sec. 7.  In addition to the information described by Section
    3-9  1, the judgment should reflect affirmative findings entered
   3-10  pursuant to Article 42.015.
   3-11        SECTION 4.  (a)  The change in law made by this Act applies
   3-12  only to an offense committed on or after the effective date of this
   3-13  Act.  For purposes of this section, an offense is committed before
   3-14  the effective date of this Act if any element of the offense occurs
   3-15  before the effective date.
   3-16        (b)  An offense committed before the effective date of this
   3-17  Act is covered by the law in effect when the offense was committed,
   3-18  and the former law is continued in effect for this purpose.
   3-19        SECTION 5.  This Act takes effect September 1, 1995.
   3-20        SECTION 6.  The importance of this legislation and the
   3-21  crowded condition of the calendars in both houses create an
   3-22  emergency and an imperative public necessity that the
   3-23  constitutional rule requiring bills to be read on three several
   3-24  days in each house be suspended, and this rule is hereby suspended.