Sex case set on Monday with TONS of extraneous stuff...we have defendant charged with two counts of sexual assault of a child, but he raped her almost daily for several years and also regularly physically assaulted her. The new section 2 of 38.37 requires the judge to hold a hearing on this stuff ahead of time to determine if the evidence is adequate to support a finding that the defendant committed the separate offenses beyond a reasonable doubt. Does this mean the judge has to believe those offenses occurred beyond a reasonable doubt or that he has to find that a JURY COULD BELIEVE them beyond a reasonable doubt? Does he become the fact-finder? Anyone done one of these? We don't want to try our whole case twice!

i'm not familiar with any cases on the new statute giving any guidance. the statute reads like it is merely requiring the court to do some kind of legal sufficiency "pre-check." maybe similar to the hearing required in 38.072. that's the interpretation I've gone with, at least.

in practice, though, I think it lets judges do whatever they want...

i'm emailing you a law review article that will at least provide some background. section 4 of the article is probably the most pressing since you have trial Monday.

My understanding is that section 2 deals only with admitting extraneous acts committed against a victim other than the victim named in the indictment (ex: sex assault against unrelated child, or possession of child pornography, etc..)

It sounds like you are trying to admit extraneous acts all committed against the same victim in your case. I don't think the amended portion of the statue changes that procedure. Section 1 essentially makes the acts relevant per se preventing a 401 objection. How the Court wants to handle other objections, like under 403, are up to the judge but there is no mandatory hearing required.