Brandon Robisheaux v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-14-00329-CR

Brandon Robisheaux, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT

NO. CR2012-042, HONORABLE R. BRUCE BOYER, JUDGE PRESIDING

OPINION

Brandon Robisheaux was arrested for sexually assaulting A.B., who was the daughter

of his then girlfriend, C.Y. The indictment alleged one charge for continuous sexual abuse of a child

and two charges for sexual assault of a child, see Tex. Penal Code § 21.02(b) (setting out elements

of offense of continuous sexual abuse), 22.011(a) (governing offense of sexual assault), and the

indictment also contained an enhancement paragraph alleging that Robisheaux had previously been

convicted of the felony offense of arson, see id. § 28.02(a)-(a-2) (outlining offense of arson), (d)-(f)

(setting out offense level for different types of arson). At the end of the guilt-or-innocence phase,

the jury acquitted Robisheaux of the continuous-sexual-abuse charge but convicted him of the two

sexual-assault-of-a-child charges. During the punishment phase, Robisheaux entered a plea of true

to the enhancement allegation, and the district court sentenced him to 50 years’ imprisonment for

both offenses. See id. § 22.011(f) (specifying that sexual assault is, in general, second-degree

felony); see also id. §§ 12.32(a) (listing permissible punishment range for first-degree felony), .42(b)

(enhancing punishment range for second-degree felony to that of first-degree felony if defendant

was previously convicted of felony offense). In four issues on appeal, Robisheaux asserts that

article 38.37 of the Code of Criminal Procedure, which authorizes the introduction of evidence of

prior sexual offenses, “is unconstitutional on its face”; that the admission of evidence of his prior

extraneous offenses “violated the prohibition against ex post facto and retroactive laws”; that the

district court erred when it overruled his Rule 403 objection to the admission of that evidence; and

that the district court erred by not allowing him to admit evidence regarding an interaction between

A.B. and C.Y. on the day that A.B. made an outcry about him. We will affirm the district court’s

judgments of conviction.

DISCUSSION

Article 38.37

In his first issue on appeal, Robisheaux argues that section 2 of article 38.37 of the

Code of Criminal Procedure is “unconstitutional on its face because it wholly denies defendants due

process and due course of law.” See In re Winship, 397 U.S. 358, 364 (1970) (providing that “[t]he

Due Process Clause protects the accused against conviction except upon proof beyond a reasonable

doubt of every fact necessary to constitute the crime with which he is charged”).

“A party raising a facial challenge to the constitutionality of a statute must demonstrate

that the statute operates unconstitutionally in all of its applications.” State ex rel. Lykos v. Fine,

330 S.W.3d 904, 908 (Tex. Crim. App. 2011). “In a facial challenge to a statute’s constitutionality,

2

courts consider the statute only as it is written, rather than how it operates in practice.” Id.

Accordingly, “a facial challenge to a statute is extremely difficult to prove as all courts presume

that the Legislature enacted a constitutional law and all courts must seek to uphold the facial

constitutionality of legislative enactments.” Id. at 909.

The provision at issue applies to trials for certain sexual offenses, including the

sexual assault of a child, and authorizes the admission of evidence showing that the defendant has

committed a separate sexual offense, “[n]otwithstanding Rules 404 and 405, Texas Rules of

Evidence, . . . 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); however, before evidence may be admitted under that section, the trial court

is obligated to “conduct a hearing outside the presence of the jury for” the purpose of determining

whether “the evidence likely to be admitted at trial will be adequate to support a finding by the jury

that the defendant committed the separate offense beyond a reasonable doubt,” id. art. 38.37, § 2-a.

In addition, before the evidence may be admitted, the State has to “give the defendant notice” of its

“intent to introduce” the evidence “not later than the 30th day before the date of the defendant’s

trial.” Id. art. 38.37, § 3.

When asserting that section 2 of article 38.37 is facially unconstitutional, Robisheaux

chronicles how character-propensity evidence has historically been held to be inadmissible out of

concern that a defendant might be convicted based on that evidence rather than the evidence

pertaining to the charged offense, see, e.g., Boyd v. United States, 142 U.S. 450, 458 (1892)

(explaining that “[h]owever depraved in character, and however full of crime their past lives may

3

have been, the defendants were entitled to be tried upon competent evidence and only for the offense

charged”); Brinegar v. United States, 338 U.S. 160, 174 (1949) (determining that evidence of prior

similar acts was not admissible and noting that decision was supported by “historically grounded

rights of our system, developed to safeguard men from dubious and unjust convictions”), and notes

that courts have held that the admission of character-propensity evidence violated the defendant’s

due-process rights, see, e.g., McKinney v. Rees, 993 F.2d 1378, 1385 (9th Cir. 1993) (determining

that admission of “emotionally charged” evidence regarding defendant’s alleged fascination with

weapons “was not relevant to the questions before the jury . . . [and] served only to prey on the

emotions of the jury”). Further, Robisheaux highlights that courts in other states have determined

that similar statutes were unconstitutional. See State v. Ellison, 239 S.W.3d 603, 606, 607-08

(Mo. 2007) (declaring unconstitutional statute allowing evidence of previous sexual offenses and

noting that “[e]vidence of prior criminal acts is never admissible for the purpose of demonstrating

the defendant’s propensity to commit the crime with which he is presently charged”); State v. Cox,

781 N.W.2d 757, 772 (Iowa 2010) (determining that admitting evidence of “defendant’s sexual

abuse of other victims . . . based only on its value as general propensity evidence violates the due

process clause of the Iowa Constitution”).

However, after Robisheaux filed his brief in this case, two of our sister courts of

appeals addressed the constitutionality of section 2 of article 38.37 and concluded that the statutory

provision is constitutional and does not violate defendants’ due-process rights. See Belcher v. State,

No. 12-14-00115-CR, 2015 Tex. App. LEXIS 9352, at *12 (Tex. App.—Tyler Sept. 2, 2015, no pet.);

Harris v. State, No. 14-14-00152-CR, 2015 Tex. App. LEXIS 8723, at *14 (Tex. App.—Houston

4

[14th Dist.] Aug. 20, 2015, pet. ref’d). When making its determination, our sister court in Belcher

noted that the ban against propensity evidence “is over three hundred years old” but determined

that just because “‘the practice is ancient does not mean [] it is embodied in the Constitution.’”

2015 Tex. App. LEXIS 9352, at *5 (quoting United States v. Enjady, 134 F.3d 1427, 1432 (10th Cir.

1998)). In fact, the court highlighted that over the last 100 years every state has allowed, through

the adoption of rules like Texas Rule of Evidence 404 or by judicial determination, prosecutors “to

introduce prior bad act evidence, including sexual misconduct” for limited purposes such as “proof

of motive, opportunity, intent, identity, or absence of mistake or accident.” Id. at *5-6; see Tex. R.

Evid. 404(b) (providing non-exhaustive list of permissible uses for evidence of extraneous offenses).

But the court also noted that “child sex abuse cases present evidentiary problems not resolved by any

of the extraneous bad acts exceptions” because “the prosecution typically must rely on the largely

uncorroborated testimony of the child victim” and because “the child’s credibility becomes the

focal issue.” Belcher, 2015 Tex. App. LEXIS 9352, at *6. With the evidentiary concerns present

in sexual-offense cases in mind, the court also chronicled how the majority of states, including

Texas, and the federal government began developing “lustful disposition exception[s] to the rule

against propensity evidence” for cases involving the sexual abuse of children. Id. at *7-8; see Act of

May 28, 1995, 74th Leg., R.S., ch. 318, § 48(a), 1995 Tex. Gen. Laws 2734, 2748-49 (enacting

prior version of article 38.37), amended by Act of May 24, 2005, 79th Leg., R.S., ch. 728, § 4.004,

2005 Tex. Gen. Laws 2188, 2192, amended by Act of April 7, 2011, 82nd Leg., ch. 1, § 2.08,

2011 Tex. Gen. Laws 1, 6, amended by Act of May 17, 2013, 83rd Leg., ch. 387, § 1, 2013 Tex. Gen

Laws 1167, 1167-68.

5

After discussing the evolution of state laws allowing for the admission of extraneous-

offense evidence for sexual offenses, the court analogized article 38.37 to Federal Rule of Evidence

414. Belcher, 2015 Tex. App. LEXIS 9352, at *8. That Rule allows for the admission of “Similar

Crimes in Child-Molestation Cases” and allows the evidence to be considered for “any matter to

which it is relevant” provided that the defendant is given notice fifteen days before trial. Fed. R.

Evid. 414(a)-(b). Moreover, the court noted that federal courts have determined that Federal Rule

414 does not present due-process concerns and is constitutional “because of the protection provided

by Federal Rule of Evidence 403.” Belcher, 2015 Tex. App. LEXIS 9352, at *8 (discussing United

States v. LeMay, 260 F.3d 1018, 1027 (9th Cir. 2001), and United States v.Castillo, 140 F.3d 874,

883 (10th Cir. 1998)); see also United States v. Mound, 149 F.3d 799, 800-01 (8th Cir. 1998)

(determining that Federal Rule 413, which allows propensity evidence for cases involving rape and

sexual assault, was constitutional provided that protections of Federal Rule 403 applied). Federal

Rule 403, like the Texas counterpart, allows a trial court to exclude relevant evidence “if its

probative value is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.” Fed. R. Evid. 403; see Tex. R. Evid. 403. Moreover, the court

reasoned that “[t]he policy concerns that served to justify the federal decision to admit propensity

evidence in child molestation cases are equally applicable to state prosecutions.” Belcher, 2015 Tex.

App. LEXIS 9352, at *12; see also House Comm. on Criminal Proc. Reform, Bill Analysis, Tex.

S.B. 12, 83rd Leg., R.S. (2013) (explaining that supporters of change to article 38.37 asserted that

“[p]rosecuting sex crimes committed against children can be difficult due to the physical and

6

emotional trauma suffered by the victims,” that there are often “long delays in reporting these crimes

during which physical evidence can deteriorate or be destroyed,” and that “[o]ften the only evidence

at a trial may be the testimony of the traumatized” children who may be targeted “in part because

they tend to make poor witnesses”); Hammer v. State, 296 S.W.3d 555, 561-62 (Tex. Crim. App.

2009) (noting that “[s]exual assault cases are frequently ‘he said, she said’ trials in which the

jury must reach a unanimous verdict based solely upon two diametrically different versions of an

event, unaided by any physical, scientific, or other corroborative evidence”); Jenkins v. State,

993 S.W.2d 133, 136 (Tex. App.—Tyler 1999, pet. ref’d) (stating that “[t]he special circumstances

surrounding the sexual assault of a child victim outweigh normal concerns associated with evidence

of extraneous acts”).

Although the court noted that the language of article 38.37 is different from the

language of Federal Rule 414, the court explained that both “have virtually the same effect” and

“make admissible evidence of the defendant’s other sex crimes against children other than the

complainant in order to show his propensity to commit the act of child sexual abuse alleged.”

Belcher, 2015 Tex. App. LEXIS 9352, at *10. In addition, the court explained that, like in the

federal practice, before that type of evidence is admitted, “the trial court must still conduct a

balancing test under Rule 403.” Id. at *11; see Tex. Code Crim. Proc. art. 38.37, § 2(b) (providing

that evidence is admissible “[n]otwithstanding Rules 404 and 405” but not excluding Rule 403).

Further, the court observed that article 38.37 contains various procedural safeguards and affords the

defendant the “ability to investigate and prepare to confront evidence of other sexual misconduct”

by requiring, as described above, that the trial court “conduct a hearing out of the jury’s presence to

7

determine that the evidence likely to be admitted will support a jury finding that the defendant

committed the separate offense beyond a reasonable doubt” and “that the [S]tate give the defendant

thirty days’ notice of its intent to introduce such evidence.” Belcher, 2015 Tex. App. LEXIS 9352,

at *11 (citing Tex. Code Crim. Proc. art. 38.37, §§ 2-a, 3).

Similarly, our sister court in Harris analogized article 38.37 to Federal Rule 413,

which allows for the admission of evidence of “Similar Crimes in Sexual-Assault Cases,” Fed. R.

Evid. 413, and noted that federal courts have determined that Rule 413 does not violate due-process

rights. 2015 Tex. App. LEXIS 8723, at *9; see also Senate Comm. on Criminal Justice, Bill Analysis,

Tex. S.B. 12, 83rd Leg., R.S. (2013) (explaining that amendment to article 38.37 was designed to

move law “closer to” Federal Rules of Evidence and to “give prosecutors additional resources to

prosecute sex crimes committed against children” due to heinous nature of those crimes and given

“the importance of protecting children from sexual predators”). Further, the court also noted that

there are exceptions to the general prohibition against the admission of extraneous offenses,

including the exception located in section 1 of article 38.37, which allows “‘evidence of other

crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged

offense’ for its bearing on relevant matters, including the state of mind of the defendant and the

child and the previous and subsequent relationship between the defendant and the child.” Harris,

2015 Tex. App. LEXIS 8723, at *10 (quoting Tex. Code Crim. Proc. art. 38.37, § 1(b)). Moreover,

the court highlighted that several courts of appeals have determined that section 1 is constitutional

and does not violate defendants’ due-process rights. Id. at *10-11 (citing Martin v. State, 176 S.W.3d

887, 902 (Tex. App.—Fort Worth 2005, no pet.); Brantley v. State, 48 S.W.3d 318, 329-30 (Tex.

8

App.—Waco 2001, pet. ref’d); Jenkins, 993 S.W.2d at 136). In addition, the court pointed to the

procedural safeguards contained in article 38.37 and commented that the defendant “has the right

to challenge any witness’s testimony by cross-examination at the hearing” held outside the presence

of the jury. Id. at *12. Finally, the court reasoned that article 38.37 “does not lessen [a defendant]’s

presumption of innocence” and “does not alter the State’s burden of proof because the State is

still required to prove every element of the charged offense beyond a reasonable doubt.” Id. at *13;

see also Jenkins, 993 S.W.2d at 136 (concluding that section 1 of article 38.37 was constitutional,

in part, because it did “not impermissibly lessen the State’s burden of proof”).

We agree with the holdings and analyses from our sister courts of appeals.

Accordingly, we conclude that Robisheaux has not demonstrated that section 2 of article 38.37 is

facially unconstitutional because he has not shown that it “operates unconstitutionally in all of its

applications.” See Fine, 330 S.W.3d at 908. For these reasons, we overrule Robisheaux’s first

issue on appeal.

Ex Post Facto and Retroactive Laws

In his second issue on appeal, Robisheaux contends that the admission of extraneous-

offense evidence under section 2 of article 38.37 violated “the prohibition against ex post facto and

retroactive laws.” See U.S. Const. art. I, § 9, cl. 3 (providing that no “ex post facto law shall be

passed”); Tex. Const. art. I, § 16 (mandating that “[n]o bill of attainder, ex post facto law, retroactive

law, or any law impairing the obligation of contracts, shall be made”); see also Grimes v. State,

807 S.W.2d 582, 583-84, 586-87 (Tex. Crim. App. 1991) (explaining that law is ex post facto if it

is “passed ‘after the fact’ or commission of an act” and retrospectively changes consequences

9

pertaining to act and that Texas courts have adopted federal definition of ex post facto when

interpreting Texas constitutional provision by determining “whether a statute assigns more

disadvantageous criminal or penal consequences to an act than did the law in place when the act

occurred”). The extraneous-offense evidence at issue was introduced through the testimony of L.E.,

who testified regarding conduct that occurred before section 2 of article 38.37 went into effect.

See Act of May 17, 2013, 83rd Leg., R.S., ch. 387, § 1, 2013 Tex. Gen. Laws 1167, 1167-68

(enacting section 2 of article 38.37). In particular, L.E. explained that she and Robisheaux began

a “sexual relationship” twelve years before the offenses at issue in this case and fourteen years before

the trial, that she was thirteen and that Robisheaux was twenty at the start of the relationship, that

the relationship lasted for a couple of years, and that she became pregnant two years after the

relationship started.

When asserting on appeal that this evidence should not have been admitted,

Robisheaux notes that there are four types of impermissible ex-post-facto laws, see Calder v. Bull,

3 U.S. 386, 390 (1798) (setting out types of ex-post-facto laws); see also Carmell v. Texas,

529 U.S. 513, 522 (2000) (using list of ex-post-facto laws from Calder); Ex parte Heilman,

456 S.W.3d 159, 163 (Tex. Crim. App. 2015) (describing Calder as “the seminal case on the Ex Post

Facto Clause”), and asserts that the admission of the extraneous-offense evidence in this case fell

under the first and fourth categories. The first type “makes an action done before the passing of

the law, and which was innocent when done, criminal,” and the fourth type “alters the legal rules

of evidence, and receives less, or different, testimony than the law required at the time of the

commission of the offense, in order to convict the offender.” Calder, 3 U.S. at 390-91. Regarding

10

the first type of ex-post-facto law, Robisheaux acknowledges that the sexual assault of a minor was

not “innocent” before section 2 became effective, but he asserts that the admission of evidence

pertaining to prior offenses under section 2 allowed those extraneous offenses to be considered as

“substantive evidence of guilt to support a conviction” and permitted the jury to convict him “solely,

or at least in part, based on extraneous act evidence that occurred” before section 2 went into effect.

Regarding the fourth type, Robisheaux contends that the admission of extraneous-offense evidence

under section 2 allowed the jury to determine his guilt “simply by believing the testimony of” L.E.

who was not named “in the indictment . . . about external criminal acts that [he] is alleged to have

committed . . . independent of the evidence presented in support of the charged criminal conduct

against the complainant named in the indictment.” Accordingly, Robisheaux urges that the admission

of the evidence “reduce[d], if not altogether eliminate[d], the quantum of evidence previously required

to convict someone” because the jury may now convict a defendant “solely on its determination,

beyond a reasonable doubt, that” the defendant committed an extraneous-sexual offense.

After Robisheaux filed his brief in this case, one of our sister courts of appeals

rejected claims that the admission of extraneous-offense evidence under section 2 falls into either

of the categories of impermissible ex-post-facto laws relied on by Robisheaux. See Baez v. State,

No. 04-14-00374-CR, 2015 Tex. App. LEXIS 10540, at *19-21 (Tex. App.—San Antonio Oct. 14,

2015, no pet. h.). Specifically, the court determined that section 2 “does not allow extraneous-offense

evidence to be offered as substantive evidence of guilt” and that “[t]he State must still satisfy its

burden of proof as to each element of the crime.” Id. at *19. In addition, the court concluded that

section 2 does not alter “the legal rules of evidence to allow less or different testimony than the law

11

required at the time of the commission of the offense in order to convict the defendant.” Id. Further,

the court explained that “‘the quantum of evidence remains the same before and after the enactment

of article 38.37. No element is eliminated from the offense to be proved; neither is the amount or

measure of proof necessary for conviction reduced, altered, or lessened.’” Id. at *20 (quoting

McCulloch v. State, 39 S.W.3d 678, 684 (Tex. App.—Beaumont 2001, pet. ref’d)); see also

Dominguez v. State, 467 S.W.3d 521, 526 (Tex. App.—San Antonio 2015, pet. ref’d) (determining

that admission of evidence under section 2 did not fall under fourth category because statute “neither

changes the State’s burden of proof to support a conviction for sexual assault of [a] child nor lessens

the amount of evidence required to sustain a conviction”); McCulloch, 39 S.W.3d at 683-85

(determining that admission of evidence under prior version of article 38.37, which did not contain

section 2 but did allow admission of evidence of extraneous offenses committed by defendant against

same victim alleged in indictment to show state of mind of defendant and previous relationship

between defendant and victim, did not fall under fourth category of impermissible ex-post-facto

law). Further, the court reasoned that although the statute removed the restrictions from Rule of

Evidence 404 that had only allowed the admission of evidence of extraneous offenses for certain

purposes and although the statute enlarges the scope of admissible testimony, it does not alter the

amount of proof needed for conviction. Baez, 2015 Tex. App. LEXIS 10540, at *20.

We agree with the analysis of our sister court and conclude that no ex-post-facto

violation occurred.

As set out above, Robisheaux also contends that the admission of the extraneous-

offense evidence violated the prohibition against retroactive laws. See Tex. Const. art. I, § 16;

12

see also Grimes, 807 S.W.2d at 587 (discussing difference between prohibition against ex-post-facto

law and prohibition against retroactive law and assuming for sake of argument that “proscription

against retroactive legislation is applicable to criminal cases”). “The retroactive laws provision of

the Texas Constitution operates only to prohibit the application of statutes which disturb vested,

substantive rights.” Ibarra v. State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999). “Laws altering

procedure do not generally fall within the prohibition.” Id.

Assuming without deciding that the prohibition against retroactive laws could apply

to statutes governing the permissible uses of evidence, see Fowler v. State, 991 S.W.2d 258, 261

(Tex. Crim. App. 1999) (concluding that applying harm analysis under new Rule of Appellate

Procedure in effect at time of appeal did not constitute violation of prohibition against retroactive

laws because procedural mechanisms for reviewing convictions are not “a vested and substantive

right”); Ex parte Davis, 947 S.W.2d 216, 220 (Tex. Crim. App. 1996) (determining that legislative

restriction on number of applications for writ of habeas corpus was “procedural and . . . thus outside

the purview of the ‘retroactive law’ prohibition”), we do not believe that the statutory change at issue

in this case ran afoul of that prohibition because Robisheaux did not have a vested and substantial

right to the prior limitation on the permissible uses of extraneous-offense evidence.

On appeal, Robisheaux also contends that applying the recently added section 2

of article 38.37 to allow the admission of extraneous-offense evidence for character-propensity

purposes “deprived him of substantial constitutional rights to a fair trial and due process and severely

limited his ability to mount a proper and effective defense to the indicted charges.”

Regarding his ability to mount a defense, we note that during his opening statement,

Robisheaux urged that the police failed to thoroughly investigate the case and that he offered to help

13

prove his innocence by submitting to a lie-detector test, to a drug test, and to DNA testing but that

the police never performed any of those tests. Moreover, Robisheaux repeatedly emphasized that

there was no physical evidence to corroborate “any part of” A.B.’s allegations. Further, Robisheaux

argued that A.B. was “a troubled, mentally unstable and mentally ill young woman,” that A.B. was

“good at lying” and “manipulating”; and that A.B. was lying about the allegations against Robisheaux.

Similarly, during his cross-examination of A.B., Robisheaux questioned her about

whether anyone could “corroborate any of the claims of sexual abuse” and emphasized that the only

evidence of the activity was her testimony, and A.B. admitted that no one else ever witnessed any

inappropriate behavior. In response to questions by Robisheaux, A.B. also admitted that she started

smoking marijuana before she met Robisheaux, discussed her history of mental illness and

mental-health treatment, and detailed her suicide attempt that occurred before she met Robisheaux.

Regarding the events leading up to A.B. telling her mother about the abuse, Robisheaux asked A.B.

about whether she had been given any medication after having been rushed to the hospital and when

she was treated at a mental-health hospital and questioned A.B. about whether she told her treating

physicians that she had been hearing and seeing things that were not real. In addition, Robisheaux

asked A.B. about why she did not tell her mother sooner, and A.B. admitted that she did not

know if her mother would believe her given their difficult history. Further, Robisheaux pointed out

inconsistencies between A.B.’s testimony at trial and her statements to a forensic interviewer at the

Children’s Advocacy Center, questioned how these events could have happened without people

witnessing them, asked A.B. why she agreed to go on an out-of-town trip with Robisheaux while the

abuse was occurring and why she did not try to get away from him on that trip when he would leave

14

the hotel to go to work, and questioned why A.B. would ever let herself be alone with Robisheaux

after the first alleged incident. Moreover, after A.B. testified that Robisheaux did not wear condoms

and did ejaculate, Robisheaux questioned her about whether any DNA was collected.

When Robisheaux was cross-examining C.Y., she admitted that she had a turbulent

relationship with A.B. before she started dating Robisheaux and explained that shortly before A.B.

made the outcry, she took A.B.’s phone away because A.B. would not divulge the identity of the

people that she was talking to. C.Y. also testified that A.B. got upset before making the outcry

after seeing Robisheaux at the house, that A.B. asked why he was there, that A.B. appeared to be on

drugs and was angry, and that A.B. started hitting C.Y. In addition, Robisheaux asked C.Y. if A.B.

volunteered the allegations, and C.Y. explained that A.B. only talked about the assault in response

to C.Y.’s questions. Moreover, Robisheaux questioned C.Y. about whether the police ever took

samples of A.B.’s clothing or sheets for testing or did a forensic examination of the house. During

his cross-examination of the sexual-assault-nurse examiner who examined A.B., Noella Hill,

Robisheaux emphasized that no evidence was collected during the exam and that A.B. did not have

any injuries.

In a further attempt to undermine A.B.’s credibility, Robisheaux called one of his

former co-workers, Michael Alcorta, to the stand to testify, and in his testimony, Alcorta explained

that he shared a hotel room with Robisheaux when they were working out of town during the time

in which the abuse was alleged to have been occurring and that he never saw Robisheaux interact

with a teenage girl and never saw anyone else in the room.

In addition, during his closing, Robisheaux emphasized the presumption of innocence,

argued that “[t]here is a serious lack of credible evidence,” urged that there was “zero law enforcement

15

investigation evidence presented,” asserted that A.B.’s version of events changed depending on who

she talked with, commented that there is no evidence to corroborate her testimony, mentioned A.B.’s

“serious mental health issues that go directly to her credibility,” pointed to the testimony from C.Y.

stating that A.B. became physically violent with her, questioned A.B.’s version by asserting that A.B.

did not have to be around Robisheaux, argued that A.B. would not have asked to go out of town with

Robisheaux if he was sexually abusing her, and noted that A.B. did not make any claim about an

incident out of town until trial and that Alcorta testified that he never saw a teenage girl with

Robisheaux when Robisheaux went out of town.

Given the preceding, we cannot conclude that the admission of evidence through

article 38.37 limited Robisheaux’s ability to present a defense, particularly in light of the fact that

the jury acquitted him of the charge of continuous sexual abuse. Furthermore, in light of our discussion

regarding the purpose of the amendment, regarding the procedural protections imbedded in article

38.37 that must be complied with (and were complied with) before evidence of extraneous offenses

may be admitted, and regarding the protections afforded by Rule of Evidence 403, we cannot

conclude that the admission of the evidence in dispute deprived Robisheaux of any due-process

rights or of the right to a fair trial.

For the reasons previously given, we overrule Robisheaux’s second issue on appeal.

Rule 403 Objection

In his third issue on appeal, Robisheaux contends that the district court erred by

overruling his Rule 403 objection to the admission of evidence concerning his prior sexual

relationship with L.E. See Tex. R. Evid. 403.

16

When reviewing a trial court’s ruling on the admission of evidence, appellate courts

use an abuse-of-discretion standard of review. Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim.

App. 2010). Under that standard, a trial court’s ruling will only be deemed an abuse of discretion

if it is so clearly wrong as to lie outside “the zone of reasonable disagreement,” Lopez v. State,

86 S.W.3d 228, 230 (Tex. Crim. App. 2002), or is “arbitrary or unreasonable,” State v. Mechler,

153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Moreover, the ruling will be upheld provided that

the trial court’s decision “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).

Under Rule 403, a trial “court may exclude relevant evidence if its probative value

is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing

the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Tex.

R. Evid. 403 (emphasis added). “Under Rule 403, it is presumed that the probative value of relevant

evidence exceeds any danger of unfair prejudice. The rule envisions exclusion of evidence only

when there is a clear disparity between the degree of prejudice of the offered evidence and its

probative value.” Hammer, 296 S.W.3d at 568 (footnotes and internal quotation marks omitted).

Accordingly, “the plain language of Rule 403 does not allow a trial court to exclude otherwise

relevant evidence when that evidence is merely prejudicial. Indeed, all evidence against a defendant

is, by its very nature, designed to be prejudicial.” Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim.

App. 2013) (internal citation omitted).

When performing a Rule 403 analysis, courts should balance the following factors:

(1) the inherent probative force of the proffered item of evidence along with (2) the

proponent’s need for that evidence against (3) any tendency of the evidence to

17

suggest decision on an improper basis, (4) any tendency of the evidence to confuse

or distract the jury from the main issues, (5) any tendency of the evidence to be

given undue weight by a jury that has not been equipped to evaluate the probative

force of the evidence, and (6) the likelihood that presentation of the evidence will

consume an inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006) (footnote omitted); see

Davis, 329 S.W.3d at 806 (explaining that “probative value” refers to how strongly evidence makes

existence of “fact of consequence” “more or less probable” and to how much proponent needs

evidence and that “unfair prejudice” refers to how likely it is that evidence might result in decision

made on improper basis, including “an emotional one”). Although appellate courts review a trial

court’s ruling on Rule 403 grounds for an abuse of discretion, see Pawlak, 420 S.W.3d at 810,

reviewing courts should bear in mind that trial courts are given “an especially high level of

deference” for Rule 403 determinations, see United States v. Fields, 483 F.3d 313, 354 (5th Cir. 2007).

On appeal, Robisheaux contends that the danger of unfair prejudice is even more

present in a case like this one where evidence of extraneous offenses is admitted under section 2 of

article 38.37 rather than under Rule of Evidence 404 because the jury is not provided with a limiting

instruction setting out the permissible uses for extraneous-offense evidence and is instead allowed

to use the evidence for any relevant matter including character conformity. Compare Tex. Code

Crim. Proc. art. 38.37, § 2, with Tex. R. Evid. 404(b). In addition, Robisheaux urges that the danger

of unfair prejudice was exacerbated by the fact that the State repeatedly emphasized in its closing

that Robisheaux previously assaulted L.E. and that he was “attracted to 13-year-old girls, middle

school girls.”

18

Finally, Robisheaux primarily argues that the inherent probative force is weak

because “the extraneous conduct evidence . . . is both remote from and dissimilar to the charged

offense[s].” In particular, Robisheaux notes that the extraneous offenses involving L.E. were alleged

to have started twelve years before the offenses at issue and fourteen years before the trial, that there

was no allegation of intervening misconduct, and that he had the permission of L.E.’s mother to

date L.E. See Reyes v. State, 69 S.W.3d 725, 740 (Tex. App.—Corpus Christi 2002, pet. ref’d)

(noting that remoteness of prior offenses affects their probative value); see also Bachhofer v. State,

633 S.W.2d 869, 872 (Tex. Crim. App. 1982) (determining that offense occurring four years before

trial was too remote to be admissible when there were no intervening incidents). But see Corley v.

State, 987 S.W.2d 615, 620-21 (Tex. App.—Austin 1999, no pet.) (noting that cases like Bachhofer

in which courts decided that extraneous offense was too remote if it took place more than few years

before trial were decided before enactment of Rules of Evidence, which favors admission of

evidence, and under common-law principles, which favored exclusion of evidence); Gonzales v.

State, 838 S.W.2d 848, 863 (Tex. App.—Houston [1st Dist.] 1992, pet. dism’d), (questioning

whether Bachhofer is still good law after enactment of Rule of Evidence 404), disapproved of on

other grounds by Tate v. State, 981 S.W.2d 189, 193 n.5 (Tex. Crim. App. 1998) (explaining that

contrary to language in Gonzales, “a victim’s character is not an essential element of a claim of

self-defense”). Moreover, Robisheaux contends that remoteness is even more of a problem when

evidence “is admitted for its bearing on character conformity, as opposed to the other purposes

permitted by” Rule of Evidence 404, because events that occur in the distant past are a poor indicator

of an “accused’s present character.” See Gaytan v. State, 331 S.W.3d 218, 226 (Tex. App.—Austin

19

2011, pet. ref’d) (explaining that remoteness reduces probative value of extraneous offense “because,

logically, the passage of time allows things and people to change”); cf. Ex parte Miller, 330 S.W.3d

610, 620-21 (Tex. Crim. App. 2009) (discussing rationale behind remoteness limitation on

impeachment evidence used to attack witness’s character); Tex. R. Evid. 609(b) (limiting use of

witness’s prior conviction for impeachment purposes if more than ten years have passed since

conviction or release unless probative value substantially outweighs prejudicial effect).

As pointed out by Robisheaux, the extraneous offenses at issue occurred over a

two-year period and started twelve years before the offenses alleged in the indictments and

fourteen years before the underlying trial, and courts have determined that similar time gaps reduced

the probative force of the evidence of extraneous offenses. See Gaytan, 331 S.W.3d at 226-27

(explaining that trial court could have determined that “inherent probative force was significantly

reduced” where evidence showed that extraneous offenses occurred 28 and 24 years before trial);

Newton v. State, 301 S.W.3d 315, 317, 320 (Tex. App.—Waco 2009, pet. ref’d) (commenting

that probative value of extraneous offense was “significantly lessen[ed]” by fact that prior offense

occurred 25 years before charged offenses).

However, remoteness is not the only factor to consider when analyzing the probative

value of evidence of an extraneous offense. Gaytan, 331 S.W.3d at 226-27. Although Robisheaux

asserts that the evidence pertaining to the extraneous offenses differed from the evidence of the

charged offenses, our review of the record shows that there were significant similarities. During the

article 38.37 hearing held outside the presence of the jury and after A.B. testified during the trial,

see Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (stating that appellate courts

20

review trial court’s ruling on admissibility of evidence “in light of what was before the trial court

at the time the ruling was made”), L.E. testified that she had a sexual relationship with Robisheaux

that started when she was thirteen years old and continued until she was fifteen years old, that

Robisheaux took her to a secluded area to have sex with her, that Robisheaux did not use a condom

when they had intercourse, that Robisheaux encouraged L.E. to smoke marijuana during some of

these encounters, and that she did smoke. L.E. repeated those assertions during the trial. Similarly,

in her testimony, A.B. explained that Robisheaux started sexually assaulting her when she was

thirteen years old; that the improper conduct continued until she was fourteen when she made him

stop; that Robisheaux did not wear a condom during these encounters; that the offenses occurred in

Robisheaux’s apartment, in a creek bed, in a hotel in another town, and in his truck; that Robisheaux

offered her cocaine and marijuana during some of the encounters; and that she used those drugs

when they were offered. See Newton, 301 S.W.3d at 318 (explaining that extraneous offense was

sufficiently similar, in part, because both victims were same age when abuse started and because

abuse lasted for several years).

Although the remoteness of the extraneous offenses undermines their probative

value, we believe that the district court could have reasonably determined that the remarkable

similarities between the extraneous offenses and the charged offenses strengthened the probative

force of the evidence. Accordingly, we believe that the first factor is either neutral or, “at most, . . .

somewhat favors exclusion.” See Gaytan, 331 S.W.3d at 227; see also Newton, 301 S.W.3d at 320

(determining that inherent probative value of remote but similar extraneous offense weighed “only

slightly in favor of admissibility”).

21

Turning to the State’s need for the evidence, we note that Robisheaux repeatedly

urged in his opening statement and in his cross-examination of A.B. that there was no physical

evidence demonstrating that any sexual offense occurred and that her claims about sexual abuse

were based on her “testimony alone.” In addition, Robisheaux emphasized during his cross-

examination of A.B. that she had made a prior suicide attempt, that she had received mental-health

treatment in the past, and that she started smoking marijuana before meeting Robisheaux. Moreover,

although the State called C.Y. to testify about A.B.’s outcry of sexual abuse and although the State

introduced medical reports prepared by Hill and the medical personnel who treated her, C.Y.’s

testimony and the reports “essentially simply repeated what [A.B.] told” C.Y. and the medical

personnel about the alleged abuse. See Gaytan, 331 S.W.3d at 227. Accordingly, the second factor

“weighs strongly in favor of admission” because without the evidence from L.E., “the State’s case

would have basically come down to” A.B.’s word against Robisheaux’s. See id.1

Additionally, although the testimony might have had a tendency to suggest a decision

on an improper basis because the testimony pertained to a previous sexual assault of a minor,

because that type of evidence is inflammatory and can be unfairly prejudicial, see Gigliobianco, 210

S.W.3d at 641 (stating that evidence might encourage decision on improper basis if it arouses

jury’s sympathy or hostility “without regard to the logical probative force of the evidence”); Martin,

176 S.W.3d at 897 (providing that evidence of sexual misconduct involving children is inherently

inflammatory), and because the evidence presented at trial also established that L.E. became pregnant

and that Robisheaux denied the baby and was ordered to submit to a paternity test, we note that this

1

In his closing, Robisheaux agreed that “[t]his entire case is” A.B.

22

potential was ameliorated somewhat by the fact that the testimony from L.E. concerning the sexual

misconduct discussed actions that were no more serious than the allegations forming the basis for

the indictment.2

Furthermore, the evidence regarding the extraneous offenses was not confusing or

technical in nature, see Gigliobianco, 210 S.W.3d at 641 (explaining that scientific evidence is type

of evidence that “might mislead a jury that is not properly equipped to judge the probative force of

the evidence”), and the evidence was relevant to whether Robisheaux abused A.B., see Gaytan, 331

S.W.3d at 228 (noting that evidence that defendant sexually abused other children is relevant to issue

of whether he abused victim alleged in indictment); see also Tex. R. Evid. 401 (providing that

evidence is relevant if it makes material fact more or less probable). Accordingly, the evidence

concerning L.E. did not have a tendency to distract the jury or to be given undue weight.

Finally, the evidence did not consume an inordinate amount of time or repeat

evidence that had already been admitted. The evidence regarding the extraneous offense was

only admitted through the testimony of L.E. Moreover, the guilt-or-innocence phase of the trial

was held over three days, and the record for that phase is hundreds of pages long; however, L.E.’s

testimony was only eight pages long. Compare Schiele v. State, No. 01-13-00299-CR, 2015 Tex.

App. LEXIS 1646, at *19-20, *21-22 (Tex. App.—Houston [1st Dist.] Feb. 19, 2015, pet. ref’d)

(mem. op., not designated for publication) (determining that fact that evidence in dispute spanned

2

During the article 38.37 hearing, L.E. testified regarding acts of violence committed by

Robisheaux against her, regarding threats that Robisheaux made to her, and regarding Robisheaux

offering her cocaine, but the district court ruled that L.E. could not testify regarding those topics

during the trial.

23

50 pages of 118-page record and was also admitted through two recordings weighed against

admissibility because evidence consumed “not insignificant” amount of time but still finding that

trial court did not abuse its discretion where half of factors relevant to Rule 403 analysis weighed

in favor of admissibility), and McGregor v. State, 394 S.W.3d 90, 121-22 (Tex. App.—Houston

[1st Dist.] 2012, pet. ref’d) (concluding that fact that evidence of extraneous offenses constituted one

third of trial weighed against admissibility but upholding trial court’s decision to admit evidence),

with Russell v. State, 113 S.W.3d 530, 544-49 (Tex. App.—Fort Worth 2003, pet. ref’d) (determining

that trial court erred by admitting evidence of extraneous offenses where evidence was 30 percent

of testimony, where State’s need for evidence was low “because ample evidence” existed regarding

intent, and where evidence of extraneous offense was “more heinous” than charged offense).

Given our standard of review, the presumption in favor of admissibility, and the

factors discussed above, we cannot conclude that the district court abused its discretion by overruling

Robisheaux’s Rule 403 objection. See Hammer, 296 S.W.3d at 568 (explaining that exclusion under

“Rule 403 . . . should be used sparingly, especially in ‘he said, she said’ sexual-molestation cases

that must be resolved solely on the basis of the testimony of the complainant and the defendant”).

Accordingly, we overrule Robisheaux’s third issue on appeal.

Evidence Pertaining to Conversation Between A.B. and her Mother

In his final issue on appeal, Robisheaux contends that the district court erred by

denying his request to admit evidence showing that on the same day that A.B. made an outcry about

Robisheaux, C.Y. found a pregnancy test and asked her daughter if she was involved with a man who

was twenty-years old and lived out of town.

24

The testimony at issue was discussed during a hearing that was held outside the

presence of the jury under Rule of Evidence 412. See Tex. R. Evid. 412. That Rule generally

prohibits the admission of evidence concerning “specific instances of a victim’s past sexual

behavior.” Id. R. 412(a). However, the Rule does contain exceptions and allows the admission of

that type of evidence if it “relates to the victim’s motive or bias” or if it “is constitutionally required

to be admitted,” but “the probative value of the evidence” must outweigh “the danger of unfair

prejudice.” Id. R. 412(b)(2)(C), (E), (3). Before evidence of the victim’s “past sexual behavior”

may be admitted, the trial court is required to conduct an “in camera hearing.” Id. R. 412(c).

During the hearing, C.Y. explained that Robisheaux told her that A.B. had confided

in him that A.B. was seeing a twenty-year-old man from another town; that after Robisheaux told

C.Y. about the older man, C.Y. found a pregnancy test in A.B.’s room and discovered some text

messages on A.B.’s phone that were not sexual in nature but were from someone that C.Y. did not

know; that C.Y. assumed that the text messages were from the man that Robisheaux had described;

that C.Y. questioned A.B. while Robisheaux was at the house about the text messages and about

whether she was seeing anyone; that A.B. never gave her any information about a twenty-year-old

man and never admitted to having any kind of relationship with a twenty-year-old man; that A.B.

asked C.Y. why Robisheaux was back in their lives and complained that he would never leave; that

A.B. overdosed on an over-the-counter medication after the conversation; that C.Y. took A.B. to the

hospital; that A.B. regained consciousness and asked if she “had a baby in my belly”; that C.Y.

answered, “no”; that A.B. went back to sleep for a couple of hours; that C.Y. asked A.B. when A.B.

woke up if Robisheaux had touched her inappropriately; and that A.B. said that Robisheaux had

been engaging in inappropriate sexual behavior with her.

25

Moreover, although C.Y. admitted that she told the police that A.B. may have been

involved in a sexual relationship with a twenty-year-old man from out of town, she clarified that she

was basing that assertion on information that Robisheaux had previously told her and expressly

denied that A.B. ever said that she was involved with a twenty-year-old man. Furthermore, C.Y.

stated that when she talked with the police, she was still in the process of figuring out what had

happened and how much Robisheaux had been manipulating her. In addition, C.Y. explained that

A.B. told her shortly before the trial that she was never involved with a twenty-year-old man.3

During a prior Rule 412 hearing in which A.B. was called to testify, she specifically denied having

a sexual relationship with a twenty-year-old man. Ultimately, the district court determined that the

probative value of the testimony was “far outweighed by the potential prejudice of leaving a false

impression that apparently cannot be proven to the jury” and excluded “testimony that would relate

to some type of physical relationship with” a twenty-year-old man from out of town.

On appeal, Robisheaux contends “that the exclusion of this evidence was error, and

harmed his defense because he was unable to provide the jury with a clear and direct motive for

[A.B.] to fabricate the allegations against him.” In addition, Robisheaux urges that the “evidence

was directly relevant” to whether the offenses occurred and to A.B.’s credibility and concerned

events occurring “mere hours from the accusation of sexual assault against” him. Accordingly,

Robisheaux contends that the evidence was admissible under Rule of Evidence 412(b)(2)(C), which,

3

Regarding the conversation that she had with A.B. a few days before trial, C.Y. explained

that A.B. said that “there was never an older man” but did say that she had been involved with “a

boy that she went to high school with.” Also, C.Y. testified that she never found out the boy’s name

and provided no further information regarding the nature of the relationship.

26

as set out above, allows the admission of evidence regarding a victim’s past sexual history that

“relates to the victim’s motive or bias” if the probative value of the evidence outweighs the danger

of unfair prejudice. Id. R. 412(b)(2)(C), (3). Moreover, Robisheaux contends that the evidence

was admissible under Rule of Evidence 412(b)(2)(E) because the evidence was “constitutionally

required” to be admitted. See id. R. 412(b)(2)(E), (3). Specifically, Robisheaux asserts that the

exclusion violated his due-process right to have “a meaningful opportunity to present a complete

defense.” See United States v. Scheffer, 523 U.S. 303, 329 n.16 (1998) (Stevens, J., dissenting)

(explaining that Constitution guarantees meaningful opportunity to present defense). Similarly,

Robisheaux contends that the exclusion violated his confrontation rights because that right includes

being given an opportunity to cross-examine a witness to attack the witness’s credibility or to

establish the witness’s possible bias or motive. See Hammer, 296 S.W.3d at 561.4

4

When making his claim that the district court erred by not admitting the evidence,

Robisheaux primarily relies on Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009). In

Hammer, Hammer’s defensive theory was that the alleged victim “made up a tale of sexual

molestation to get out from under the heavy hand of her father [Hammer].” Id. at 566. Moreover,

the jury was able to hear evidence that the victim never liked Hammer “because he disciplined her

too much and yelled at her while doing so” and that she was angry with Hammer “because he

wouldn’t let her do whatever she wanted to,” and Hammer was able to generally question her about

any motive to falsely accuse him. Id. at 566-67. However, the trial court did not allow Hammer to

introduce evidence showing that the alleged victim “was particularly angry with [Hammer] when he

took her to the hospital for a sexual assault examination after she had run away from home,” that she

told the nurse examiner that Hammer “wants to prove that I had sexual intercourse with one of the

guys that I ran away with,” that she told the examiner that one of the guys had sexually assaulted her,

that she told a family friend that she really had sex with her boyfriend instead but said that it was one

of the guys who she ran away with because Hammer “was really strict about letting her see” her

boyfriend, that she attempted to commit suicide after the examination, that she was admitted into a

hospital for mental-health treatment, and that “[t]he charged offenses were alleged to have happened

about a month after she was released.” Id. at 567. The court of criminal appeals explained that this

evidence was “strong support for [Hammer]’s theory” that the alleged victim “had a motive to falsely

accuse him of sexual molestation” and demonstrated that the victim “was not above changing her

27

We review a trial court’s ruling regarding the admission or exclusion of evidence for

an abuse of discretion. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). “The

function of the balancing test of Rule 412(b)(3) is generally consistent with that under Rule 403,”

but “[t]he general balancing test under Rule 403 weighs in favor of the admissibility of evidence,

while Rule 412(b)(3) weighs against the admissibility of evidence.” Stephens v. State, 978 S.W.2d

728, 732-33 (Tex. App.—Austin 1998, pet. ref’d). “In light of the policies underlying Rule 412, the

unfair prejudice language contemplates prejudice not only to the State, but also to the victim, who

will potentially be stigmatized if the defendant is able to introduce evidence of prior sexual behavior.”

Gotcher v. State, 435 S.W.3d 367, 373 (Tex. App.—Texarkana 2014, no pet.). Moreover, “[t]he

proponent of evidence in a Rule 412 setting bears the burden of establishing that the probative value

outweighs the danger of unfair prejudice.” Id. at 373-74.

In addition, “[t]he Sixth Amendment right to confront witnesses includes the right to

cross-examine witnesses to attack their general credibility or to show their possible bias, self-interest,

story of a consensual sexual encounter with her boyfriend into a nonconsensual one with someone

else to prevent her father from learning the truth and . . . punishing her for running away and having

sex with” her boyfriend. Id. Ultimately, the court of criminal appeals ruled that the trial court abused

its discretion by excluding the evidence. Id. at 569.

We believe that Robisheaux’s reliance on Hammer is misplaced. As a preliminary matter,

we note that the analysis in Hammer focused on Rule of Evidence 403. In addition, unlike Hammer,

nothing in the record indicates that A.B. admitted to making any false sexual-abuse allegations.

See Hernandez v. State, No. 03-13-00186-CR, 2014 Tex. App. LEXIS 13826, at *13-15 (Tex.

App.—Austin Dec. 30, 2014, no pet.) (mem. op., not designated for publication) (distinguishing

Hammer). More importantly, as detailed above, the evidence that Robisheaux wanted to admit was

not strong evidence of a motive for A.B. to falsely claim that she had been sexually assaulted by

Robisheaux and did not demonstrate a “definite and logical link” between A.B.’s outcry and a

motive to fabricate allegations against Robisheaux. See Stephens v. State, 978 S.W.2d 728, 735

(Tex. App.—Austin 1998, pet. ref’d).

28

or motives in testifying.” Hammer, 296 S.W.3d at 561. “This right is not unqualified, however;

the trial judge has wide discretion in limiting the scope and extent of cross-examination.” Id.; see

Allen v. State, 700 S.W.2d 924, 930-31 (Tex. Crim. App. 1985) (stating that “[t]here have been

numerous attacks upon the so-called rape shield statutes as violative of the Sixth Amendment and

these generally have been rejected” because “‘the right to confront and to cross-examine is not

absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the

criminal trial process’” (quoting North Carolina v. Fortney, 269 S.E.2d 110, 113 (N.C. 1980))). In

general, a trial court does not abuse its discretion by limiting a defendant’s right to cross-examine

witnesses under the Rules of Evidence, Hammer, 296 S.W.3d at 561, and there is a distinction

between an attack on the general credibility of a witness and a more specific “attack on credibility

that reveals ‘possible biases, prejudices, or ulterior motives of the witness as they may relate directly

to issues or personalities in the case at hand,’” id. at 562 (quoting Davis v. Alaska, 415 U.S. 308, 316

(1974)). Further, confrontation rights are violated only “if the state evidentiary rule would prohibit

him from cross-examining a witness concerning possible motives, bias, and prejudice to such an

extent that he could not present a vital defensive theory.” Id. at 562-63. Accordingly, most questions

regarding cross-examination may be resolved by looking to the Rules of Evidence, id. at 561, and

“[c]ompliance with a rule of evidence will, in most instances, avoid a constitutional question

concerning the admissibility of such evidence,” id. at 566.

The potential probative value of the portion of C.Y.’s testimony at issue seems

relatively minor. As set out above, when discussing the possibility that A.B. might have been

involved with a twenty-year-old man from out of town, C.Y. emphasized that the only person who

29

told her that was Robisheaux and that A.B. never mentioned dating a twenty-year old. Moreover,

C.Y. did not mention in her testimony finding any evidence to support the idea that A.B. had been

dating a twenty-year-old man. Although C.Y. discussed finding text messages on A.B.’s phone

from someone that she did not know, she also clarified that those texts were not sexual in nature.

In addition, although C.Y. recalled finding a pregnancy test in A.B.’s room and although C.Y.

testified that the warning Robisheaux gave her about a twenty-year old made her wonder if the

pregnancy test had something to do with that unnamed man, C.Y. did not provide any further

testimony potentially linking that test to a twenty-year-old man. On the contrary, C.Y. related that

A.B. never mentioned being involved with a twenty-year-old man, and as discussed above, A.B.

denied in a prior hearing being involved with a twenty-year old. Furthermore, C.Y. did not testify

that she told A.B. that the twenty-year old would have to be punished for his actions. Accordingly,

C.Y.’s testimony would provide little support for the idea that A.B. was involved with a twenty-year-

old man or had a motive to falsely accuse Robisheaux of sexual assault in order to protect that man.

In contrast to the small probative force of the evidence, we believe that the admission

of the evidence had the potential to unfairly prejudice the State’s case. As set out above, even though

C.Y. explained the reason for it, C.Y. did testify that she told the police that A.B may have been

in a relationship with a twenty-year-old man from out of town. Accordingly, if the evidence was

admitted during trial, it had the potential to undermine A.B.’s credibility, which was crucial in this

case, and to support Robisheaux’s defensive theory that this case was not thoroughly investigated.

Moreover, those potential effects would have been unfairly prejudicial given the testimony from

C.Y. establishing that the source of the information regarding the twenty-year old was Robisheaux

30

himself and given the complete lack of evidence regarding the existence of that man. Moreover, we

must also bear in mind that this type of evidence had the potential to impact A.B. outside of the

courtroom. See Gotcher, 435 S.W.3d at 373.

Given that Rule 412 favors exclusion rather than admission of evidence of a

victim’s past sexual behavior, that Robisheaux bore the burden of establishing the admissibility of

the evidence, and that the potential prejudicial effect of the evidence outweighed the little probative

force that it possessed, we cannot conclude that the district court abused its discretion by determining

that the evidence should not be admitted under Rule of Evidence 412(b)(2)(C) as evidence relating

to A.B.’s potential bias or motive.

Turning to Robisheaux’s constitutional arguments, we do not believe that the ruling

by the district court contravened Robisheaux’s confrontation rights or impermissibly impaired his

right to present a defense to the allegations against him. As set out above, in general, if a ruling is

proper under the Rules of Evidence, the ruling will not violate a defendant’s confrontation rights.

See Hammer, 296 S.W.3d at 566. Moreover, although the right to confrontation includes the right

to question a witness regarding his or her credibility or possible bias or motive, see id. at 561, we

do not believe that the district court’s ruling prohibiting cross-examination on a subject with little

probative value was constitutionally infirm, particularly in light of the wide latitude trial courts are

given regarding the scope of cross-examination and given that Robisheaux was able to attack A.B.’s

credibility in other ways. Id.; see also id. at 568 (explaining that confrontation rights might have

required admission of evidence if appellant had not been able to present “general defensive theory”

through alternative testimony). Similarly, we cannot conclude that the district court’s ruling deprived

31

Robisheaux of the opportunity to present a meaningful defense. See Scheffer, 523 U.S. at 329 n.16.

In fact, as detailed in his second issue, Robisheaux was able to present a defense undermining

A.B.’s credibility, pointing out inconsistencies in her allegations, and attacking the probability and

logistics of those allegations actually having occurred, and the jury acquitted Robisheaux of the most

serious of the charged offenses. Accordingly, we can find no deprivation of due-process rights or

confrontation rights from the district court’s decision to prohibit Robisheaux from questioning

C.Y. about the pregnancy test and about the twenty-year-old man. See Hernandez v. State, No. 03

13-00186-CR, 2014 Tex. App. LEXIS 13826, at *16 (Tex. App.—Austin Dec. 30, 2014, no pet.)

(mem. op., not designated for publication); cf. James v. State, No. 03-12-00462-CR, 2014 Tex. App.

LEXIS 6994, at *17 (Tex. App.—Austin June 27, 2014, pet. ref’d) (mem. op., not designated for

publication) (noting that there was “no evidence or indication that [victim’s] brother was her

assailant instead of appellant, only that he was possibly an additional assailant” and explaining that

“[t]he dispositive issue is the absence of any connection made between her failure to report her

brother’s alleged assault to any issue relevant to the allegations against appellant”).

For all of these reasons, we overrule Robisheaux’s final issue on appeal.5

5

In his brief, Robisheaux notes that Rule of Evidence 608 generally prohibits the admission

of “specific instances of the witness’s conduct in order to attack or support the witness’s character

for truthfulness.” See Tex. R. Evid. 608. However, Robisheaux contends that Rule of Evidence

613(b) “creates an exception . . . and provides that a witness may be impeached using extrinsic

evidence to show bias or interest.” See id. R. 613(b) (setting out procedure for impeaching witness

with statement purportedly showing witness’s bias or interest). Although Robisheaux made one

mention of Rule 613 during the Rule 412 hearing pertaining to C.Y., the district court made no ruling

regarding whether the evidence was admissible under Rule 613, and Robisheaux did not request a

ruling. See Tex. R. App. P. 33.1(a) (explaining that to preserve error for appeal, record must show

that complaint was made to trial court and that trial court ruled on request or refused to rule and that

“complaining party objected to the refusal”); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App.

32

CONCLUSION

Having overruled all of Robisheaux’s issues on appeal, we affirm the district court’s

judgments of conviction.

__________________________________________

David Puryear, Justice

Before Justices Puryear, Goodwin, and Bourland

Affirmed

Filed: January 7, 2016

Publish

2002) (providing that appellate issue must comport with specific objection made at trial). Moreover,

Robisheaux sought to admit the evidence through the testimony of C.Y., not A.B., and has not

explained how the evidence concerning the pregnancy test and prior statements by C.Y. about a

twenty-year old would have helped establish C.Y.’s bias or interest. See Tex. R. App. P. 38.1(i)

(explaining that brief must contain clear and concise argument for contentions made).

33