Can Prior Bad Acts Prove Rape in Texas?

Sexual assault and rape are perhaps the most serious crimes in Texas short of murder. Texas classifies many types of sexual assault as a first-degree felony, meaning a conviction carries the potential for a life prison sentence. And given the public outrage that typically accompanies rape cases–especially when the alleged victims are children–prosecutors will stop at nothing to get a conviction.

The Admissibility of “Extraneous Offenses”

But there are limits on how far a prosecutor may go. For instance, as a general rule a prosecutor may not tell a jury about any “extraneous offenses” the defendant may have previously committed. Specifically, the Texas Rules of Evidence state, “Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”

In other words, a prosecutor cannot prove a defendant raped Person A by letting the jury hear testimony from Person B that the defendant raped her years earlier, unless the indictment also charged the rape of Person B as an offense. However, if the defendant is accused of raping a child, then the prosecutor may introduce certain evidence of prior “extraneous offenses” that also involved children.

Also keep in mind, the rules limiting consideration of extraneous offenses only apply when determining a defendant’s guilt or innocence. The prosecution is largely free to introduce evidence of a defendant’s prior criminal history and misconduct during sentencing.

Prosecutors May Not “Open the Door”

Prosecutors may also attempt to introduce evidence of extraneous offenses to “rebut” a defense theory offered at trial. But this exception generally applies only when the defense introduces such a theory through direct testimony. Prosecutors are not supposed to “open the door” to extraneous offense evidence through trickery on cross-examination.

That is exactly what happened in a recent rape case from Texarkana. The defendant was convicted of raping his niece and sentenced to life in prison. A Texas appeals court ordered a new trial, however, because the prosecution was improperly allowed to introduce testimony from a second accuser.

The defendant chose to testify at trial. During direct examination, he told the jury he had a number of “medical problems” that required him to take several medications. One of the side effects of his medications was “impotence.”

On cross-examination, the prosecutor asked the defendant if his impotence “meant that he had lost all sexual desire.” The defendant replied, “Sure, mostly.” Based on this response, the prosecution offered the testimony of the second victim as “rebuttal,” arguing the defendant was now asserting his impotence as a defense to the rape charge.

While the trial judge sided with the prosecution, the appeals court said that was a legal error. The testimony regarding the defendant’s “impotence or lack of sexual desire is sparse,” the appeals court noted. More to the point, impotence is not a defense to rape. Sexual assault occurs when there is “contact” between sexual organs or penetration of the victim’s sexual organ with any object–in this case, it was allegedly the defendant’s finger.

In short, the appeals court said under Texas law, extraneous evidence “is not admissible to rebut a defensive issue elicited by the State on its cross-examination.”

Call a Galveston Criminal Defense Lawyer Today

If you are charged with rape, or any sex crime, expect the prosecution to pull out all the stops to convict you. You need to be prepared and hire an experienced Houston sexual assault defense attorney to zealously represent your interests. Call the Law Offices of Tad Nelson & Associates today at (281) 280-0100 if you need to speak with a lawyer today.