CROSSOVER: Waco Court Upholds Article 38.37 Child-Sex-Abuse Extraneous-Offense Evidence Despite Staleness, Lack of Corroboration, and Prior CPS ‘Unsubstantiated’ Finding

Pettigrew v. State, 10-25-00003-CR, April 16, 2026.

On appeal from 85th District Court of Brazos County, Texas

Synopsis

The Waco Court of Appeals held that article 38.37, section 2(b) was not unconstitutional as applied merely because the extraneous child-sex-abuse allegation was roughly twenty years old, uncorroborated, and previously deemed “unsubstantiated” by CPS. Where the trial court conducted the required section 2-a hearing, found the evidence sufficient for a reasonable juror to believe the extraneous act beyond a reasonable doubt, and performed Rule 403 balancing, the statute’s procedural safeguards were deemed adequate and the evidentiary ruling was affirmed.

Relevance to Family Law

Although Pettigrew is a criminal case, its practical force in family litigation is obvious: Texas courts remain willing to treat remote, minimally corroborated, and historically unsubstantiated sexual-abuse allegations as materially probative when the allegations are similar to the conduct in dispute. In SAPCRs, modification suits, divorces involving conservatorship restrictions, and protective-order adjacent litigation, family lawyers should expect opponents to use the logic of Pettigrew to argue that age, lack of prosecution, and prior “unsubstantiated” agency findings do not neutralize the evidentiary significance of a prior abuse narrative—particularly when the alleged conduct is factually similar and the case turns on credibility.

Case Summary

Fact Summary

Dana Loment Pettigrew was tried for indecency with a child by contact and by exposure involving A.S. Before the jury heard the case, the trial court conducted an article 38.37, section 2-a hearing regarding testimony from L.H., then age thirty-five, who described abuse that allegedly occurred when she was thirteen or fourteen and living in Pettigrew’s home in Ohio.

According to L.H., Pettigrew entered her bedroom, got on top of her, sucked on her neck and breasts, and put his hand inside her pants. She further testified that after stopping and going to get a cigarette, Pettigrew remarked that what happened had “made him sober up.” Defense counsel conceded that the testimony satisfied article 38.37’s threshold requirements, but objected under Rules 403, 404(b), and 405 and also asserted due-process and fair-trial objections under the federal and Texas constitutions. The defense emphasized that the allegation was uncorroborated, not reported to police, approximately twenty years old, and had been deemed “unsubstantiated” by an Ohio child-protection investigation.

The trial court overruled the objections, expressly finding that the testimony’s probative value was not substantially outweighed by unfair prejudice. On appeal, Pettigrew challenged the statute as applied, the Rule 403 ruling, the related jury instruction, and trial counsel’s alleged interference with his right to testify. The opinion excerpt provided focuses principally on the constitutional and Rule 403 issues surrounding L.H.’s testimony.

Issues Decided

• Whether article 38.37, section 2(b) of the Code of Criminal Procedure was unconstitutional as applied because it allowed admission of a twenty-year-old, uncorroborated, and previously “unsubstantiated” child-sex-abuse allegation.
• Whether the trial court abused its discretion by admitting the extraneous-offense testimony under Texas Rule of Evidence 403.
• The opinion also notes challenges to the article 38.37 jury-charge instruction and an ineffective-assistance/right-to-testify complaint, though the supplied excerpt centers on the first two issues.

Rules Applied

The court relied on the following authorities and principles:

• Article 38.37, section 2(b), which permits admission of certain extraneous child-sex-offense evidence.
• Article 38.37, section 2-a, which requires a hearing outside the jury’s presence and a threshold finding that a reasonable juror could find the extraneous act beyond a reasonable doubt.
• Rule 403, which permits exclusion of relevant evidence if its probative value is substantially outweighed by unfair prejudice or other listed dangers.
• The Gigliobianco factors governing Rule 403 balancing:
  1. Probative force
  2. Proponent’s need
  3. Potential to suggest decision on an improper basis
  4. Tendency to distract from the main issues
  5. Risk of undue weight
  6. Consumption of time
• The presumption that statutes are constitutional and that the challenger bears the burden to prove unconstitutionality.
• Prior Waco precedent, especially Deggs v. State and Gonzales v. State, rejecting materially similar as-applied constitutional attacks on article 38.37.
• Abuse-of-discretion review for evidentiary rulings, with affirmance if the ruling falls within the zone of reasonable disagreement.

Application

The court’s analysis is important less for doctrinal novelty than for its insistence that dissatisfaction with an admissibility ruling is not the same thing as an as-applied constitutional violation. Pettigrew did not argue that the trial court skipped the procedural safeguards embedded in article 38.37. To the contrary, the hearing occurred, the evidence was heard, and the trial court made the required section 2-a finding. The defense position was instead that those safeguards became functionally meaningless in this case because the allegation was stale, uncorroborated, never criminally reported, and previously tagged “unsubstantiated” by child-protection authorities. The Waco court rejected that move, holding that where the statutory safeguards are actually employed, their allegedly poor outcome for the defendant does not render the statute unconstitutional as applied.

On Rule 403, the court treated similarity as doing substantial work. The extraneous allegation and the charged conduct were described as notably parallel: both involved Pettigrew entering a young teen girl’s bedroom, touching her breasts and vagina beneath clothing, and later invoking intoxication as an explanation. That similarity preserved probative force despite the passage of time. The court also accepted the State’s argument that its need for the evidence remained high because the expert testimony merely described conduct “consistent with” abuse and did not factually corroborate A.S.’s allegations. In other words, this remained a credibility case, and similar-act evidence had heightened utility in that setting.

The court did acknowledge the obvious counterweight: allegations of sexual abuse against children are inherently inflammatory and carry real danger of prompting conviction on an improper basis. But the court concluded that this did not create the kind of “clear disparity” required for exclusion under Rule 403. The trial court could reasonably conclude that similarity, probative force, and prosecutorial need outweighed the prejudice, and that conclusion was enough to survive appellate review.

Holding

The court held that article 38.37, section 2(b) was not unconstitutional as applied to Pettigrew. The decisive point was procedural compliance: the trial court conducted the required hearing, found the extraneous-offense evidence sufficient for a reasonable juror to find the act beyond a reasonable doubt, and performed Rule 403 balancing. The court reaffirmed that prior decisions rejecting similar as-applied challenges controlled here, and that disagreement with the trial court’s ultimate admissibility decision does not transform a facially valid statute into an unconstitutional one as applied.

The court also held that the trial court did not abuse its discretion under Rule 403 by admitting L.H.’s testimony. The extraneous allegation was highly probative because it was substantially similar to the charged conduct, and the State’s need was significant in a case that remained fundamentally dependent on witness credibility. Even though the testimony was prejudicial and inflammatory, the appellate court concluded that the trial court’s balancing determination fell within the zone of reasonable disagreement.

Practical Application

For Texas family lawyers, Pettigrew is a cautionary opinion about how tribunals may evaluate historical abuse allegations when credibility is central and direct corroboration is limited. In conservatorship and possession litigation, one side will often argue that an old allegation should be discounted because it was never prosecuted, because CPS ruled it out or “unsubstantiated” it, or because the allegation surfaces only after litigation begins. Pettigrew gives the responding advocate a template: remoteness alone is not disqualifying, “unsubstantiated” is not exonerative, and lack of corroboration does not destroy probative value where the allegation is factually specific and closely resembles current accusations.

That matters in several family-law settings. In an original SAPCR or modification, a parent seeking restrictions may use Pettigrew-style reasoning to argue that an old allegation involving another child supports supervised possession, a no-overnights restriction, psychological evaluation, or protective orders concerning digital contact and third-party access. In a divorce with custody disputes, a party may attempt to frame older conduct as part of a pattern rather than as an isolated stale accusation. In property litigation, especially reimbursement, waste, or fraud-on-the-community disputes, the case has less direct doctrinal force, but it still reinforces a broader strategic lesson: prior agency determinations that stop short of substantiation are not litigation-ending events and may carry far less dispositive weight than clients assume.

For the defense side in family court, Pettigrew underscores the need to attack not merely age and corroboration, but the reliability architecture of the allegation itself. That means drilling into inconsistency, motive, contamination, reporting pathways, prior denials, record retention gaps, and the absence of distinctive similarities between the old event and the present claim. The better argument is not simply that the accusation is old; it is that the accusation is too unreliable, too dissimilar, too underdeveloped, and too prejudicial to support meaningful fact-finding in the current case.

Checklists

Using Historical Abuse Allegations Affirmatively

• Identify whether the prior allegation shares distinctive facts with the present claim, not merely generalized allegations of abuse.
• Obtain agency, therapy, school, medical, and prior-court records to show narrative consistency over time.
• Separate “unsubstantiated” from “false” in both briefing and witness examination.
• Frame the prior allegation as probative of pattern, grooming behavior, access behavior, or credibility context.
• Explain why the current case is still fundamentally credibility-driven and why the historical allegation matters to risk assessment.
• Tie the allegation to concrete requested relief, such as supervised access, exchange restrictions, therapy, or temporary injunctions.

Defending Against Historical Abuse Allegations

• Secure the full CPS or agency file, not just the dispositive label.
• Determine precisely why the prior report was coded “unsubstantiated,” “unable to determine,” or administratively closed.
• Compare the old allegation and present claim line-by-line for dissimilarities in age, setting, mechanics, timing, and disclosure pattern.
• Develop contamination defenses, including family conflict, coaching risk, therapeutic suggestion, or litigation motive.
• Highlight missing reports, missing witnesses, missing physical evidence, and delayed disclosure, but do so as part of a reliability analysis rather than a mere staleness complaint.
• Request detailed findings, limiting instructions, and a focused reliability hearing where available.
• Preserve Rule 403-type objections in family court through clear arguments on unfair prejudice, confusion, and undue weight.

Preparing Family-Court Evidentiary Hearings

• Proffer the testimony with enough factual specificity for the court to evaluate similarity and probative force.
• Anticipate judicial concern about mini-trials and keep the evidentiary presentation disciplined.
• Use a chronology exhibit showing when the allegation arose, who received it, what was investigated, and what was actually concluded.
• Be ready to explain the distinction between absence of corroboration and affirmative evidence of fabrication.
• Address remoteness directly and connect it to pattern, opportunity, or child-safety concerns.
• If opposing admission, offer a practical alternative short of admission for all purposes, such as in camera review, narrower use, or limited relief pending further evaluation.

Preserving Error for Appeal

• Make constitutional objections separately from evidentiary objections.
• Obtain an express ruling on admissibility and, where possible, the court’s balancing rationale.
• Request that the court identify the purpose for which it is considering the historical allegation.
• Object to overbroad use in argument if the opposing party turns the allegation into a character-based invitation to decide on an improper basis.
• Request limiting instructions tailored to the actual theory of admissibility.
• Ensure excluded documents and testimony are included in the appellate record by formal offer of proof.

Citation

Pettigrew v. State, No. 10-25-00003-CR, 2026 WL ___ (Tex. App.—Waco Apr. 16, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

Family Law Crossover

In Texas divorce and custody litigation, this kind of ruling can be weaponized by casting a remote allegation as a pattern-evidence narrative rather than a one-off accusation. A party seeking tactical advantage may argue that an old, uncharged, or “unsubstantiated” allegation still justifies immediate restrictions on conservatorship, exclusive possession of the residence, supervised visitation, appointment of an amicus, forensic interviews, psychological testing, or leverage in temporary-orders negotiations. The danger is that once the allegation is framed as similar to current conduct, the other side may be forced to litigate two cases at once—the present family dispute and a historical accusation that was never previously resolved. That is why family-law counsel must attack admissibility, weight, and remedy separately: even if the court hears the allegation, the requested relief should still be cabined to reliable proof and demonstrable present risk.

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