Opinion issued June 26, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00922-CR ——————————— JAROD LOUBSER, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Case No. 19-DCR-088502A
MEMORANDUM OPINION
A jury convicted Jarod Loubser of the second-degree felony offense of sexual
assault and assessed his punishment at five years’ confinement.1 In two issues on
1 See TEX. PENAL CODE § 22.011(a)(1)(A), (C), (b)(1). appeal, Loubser contends that (1) the State failed to present sufficient evidence to
support his conviction; and (2) the trial court erred by allowing evidence of three
extraneous bad acts.
We affirm.
Background
Loubser and the complainant E.S. (“Ester Sikes”)2 met in between class
periods at Foster High School during the spring semester of 2017. Ester was fifteen
years old and in her freshman year. Loubser was eighteen years old and in his junior
year. Ester and Loubser had mutual friends, and she had heard of him, but they had
not directly interacted. One day, Ester was running late to class, and Loubser saw
her in the hallway. He made a funny comment to her, and they exchanged contact
information and began getting to know each other.
Although Ester was attracted to Loubser from the beginning, their relationship
did not immediately turn romantic or sexual. Instead, they finished the school year
“as really just being friends.” During summer 2017, Ester and Loubser started having
a consensual sexual relationship that Ester described as “[m]ore exclusive, not really
talking to anybody else.” They would sometimes go on lunch or dinner dates, but
2 “Ester Sikes” is the pseudonym that the complainant chose to use during the trial proceeding. 2 they typically spent time together smoking marijuana in Loubser’s backyard before
going up to his bedroom to have sex.
At some point during the summer, an ex-girlfriend of Loubser’s reached out
to Ester and explained “that they were still in contact with each other.” Ester decided
to distance herself from Loubser for a while. They continued to have “casual
conversations,” but they did not hang out like they had before and “there was no
physically seeing each other.”
When the next school year started, the romantic and sexual aspect of Ester and
Loubser’s relationship was still on pause. However, towards the end of the fall
semester, Ester and Loubser discussed “him talking to other people,” and they agreed
to “just forgive and forget, and move on from then.” Their sexual relationship
resumed, but Ester did not consider it to be exclusive. They had sex “[m]aybe once
or twice a week,” and they would usually skip school to go to Loubser’s house.
Marijuana was “almost always” involved when they were together.
During this school year—Ester’s sophomore year and Loubser’s senior year—
two incidents occurred that caused discord in their relationship. In the first incident,
Loubser slapped Ester in the face while they were having sex. Ester reflexively
slapped him back, and they had an argument “because [they] had never talked about
anything in that nature before,” meaning rough sex. Loubser never again slapped
Ester during sex. They continued having “consensual sexual encounters” after this
3 incident, but “not as many as before.” Ester “felt very disrespected, and [she] kind
of felt like [they] were on different pages of what [they] wanted.”
In the second incident, Ester learned from a mutual friend that Loubser had
taken a video of them having sex and then showed that video to some of his friends.
Ester confronted Loubser about this in between class periods. The ensuing argument
involved yelling and Loubser throwing a trash can down the hallway. After teachers
told them to get to class, Loubser took Ester to a stairwell to continue the argument.
Ester told Loubser that she did not appreciate his actions, and she did not want that
to happen again. At Ester’s request, Loubser both showed her the video and deleted
it from his phone.
After the incident with the video, Ester and Loubser “stopped having sex with
each other, and it turned more into just a mutual friendship again.” They would
occasionally hang out with a group of friends, skipping class to smoke marijuana.
Ester testified that they had a “good relationship,” but it was not “as close and
trustworthy as before.” They would check in with each other by text message once
or twice a week, which was a significant decrease from their communication before
the video “where it was all the time every day.” However, Ester did hand-make a
Valentine’s Day card for Loubser, and they ended up having sex on Valentine’s Day
2018.
4 During the spring semester of 2018, Ester began dating a girl she had met
during junior high school. Ester called this an “exclusive relationship.” Ester did not
spend one-on-one time with Loubser while she was dating her girlfriend. She and
Loubser occasionally sent each other text messages, and Ester would sometimes
share information about her relationship, but she did not characterize their
conversations during this period as “deep.”
When the summer holidays arrived, Ester was still dating her girlfriend. Ester
and Loubser “hardly talked”; instead, their interactions were “more just kind of like
a little catch-up and then not talk for a couple more weeks.” In mid-June 2018, Ester
and Loubser began “talking about how [they] hadn’t hung out in a while, and hadn’t
smoked in a while, and [Loubser] had asked [Ester] if [she] wanted to come over
and smoke” and catch up. During this conversation, Loubser “brought up how [they]
can’t keep [their] hands off of each other.”3 Ester told Loubser: “I’m not coming
over to have sex with you. I want to hang out with you, I want to catch up with you,
and just smoke.” They agreed to meet later that afternoon.
Ester’s parents dropped her off at Loubser’s house on their way into Houston
to celebrate their anniversary. After Ester arrived at Loubser’s house, they spent
3 When asked how she reacted to this statement by Loubser, Ester testified: “I got defensive, because I knew that not every single time that we hung out, we were being intimate with each other. So, I just simply stated that that wasn’t what I was going over there for. And that I had a girlfriend, and that was none of my intentions at all.” 5 around thirty to forty-five minutes in the backyard, smoking marijuana and
discussing what had been happening in their lives. The tone of their conversation
was “[v]ery light” and “uplifting.” There was no touching beyond passing a joint
back and forth, and they did not flirt with each other.
After they finished smoking, they went inside the house and got some water
before heading to Loubser’s bedroom. Ester laid on Loubser’s bed—the “normal”
place where she would sit when she was in his bedroom—and started looking at her
phone while Loubser went into the attached bathroom. Ester was face-down on the
bed with her feet dangling off the end of the bed.
Ester heard the door to the bathroom open, and Loubser walked over to the
bed, where he stood with his legs on either side of Ester’s. She testified:
Just not fully on me yet, but he was standing there. And I could almost like hear him kind of mess around with like his pants. And after a few seconds, he got on top of me while I was still on my stomach, and I was asking him what he was doing. And he was—he was like, “It’s okay, it’s what we always do,” and stuff like that. And I was trying to flip myself over to be facing towards him more, and that’s when he started to get a lot more aggressively, physical with me. The more I started to kind of squirm under him. And the next thing you know, my shorts were being moved over from my crotch, and he forcefully put himself inside of me.
At the beginning of the assault, Loubser grabbed both of Ester’s wrists and held them
pinned behind her back. She was “completely restrained” and unable to turn over.
Ester told Loubser to stop and questioned what he was doing, but the more she spoke
or tried to move, the more aggressive he became. Loubser sometimes pushed Ester’s 6 head “down into the covers,” and she had to turn her head to the side to breathe.
Eventually, Ester “just laid there” and stopped moving, figuring that “it would
maybe go on fast” if she “just cooperated with what was happening.”
Afterwards, Loubser went back into the bathroom and brought Ester a towel
to clean herself up. She did so and then curled up into the fetal position on the bed,
“completely like spaced out,” and looked at her phone. Loubser took a picture of
Ester, put a caption on it that said “I loved you,” and sent it to her.
They sat in Loubser’s bedroom in silence for several minutes before a mutual
friend arrived at the house to smoke. Ester “followed to the backyard and got as high
as [she] possibly could” in the hope that it would make her feel better. She did not
leave because she did not have a ride home: her parents were out celebrating their
anniversary, and she “was not about to be the reason that their dinner was ruined or
not be able to eat.”
Ester, Loubser, and their friend then went to a local barbecue restaurant. Ester
spent most of the time on her phone rather than eating. The three of them then went
to a nearby park. On the way to the park, Loubser took a picture of them. In the
picture, Ester was holding a joint.4 She testified that by this point she was “feeling
high” and was “kind of starting to get into a more talkative state” instead of “being
4 Loubser introduced a short video and a screenshot taken at the same time as the picture. Ester is smiling in the screenshot. 7 in a very disassociated state.” The three of them smoked again at the park. Loubser
was behaving “[l]ike nothing was different.” Ester was trying to behave in a way
that their friend would not notice that anything was wrong because she “didn’t want
to believe what just happened by saying it out loud.” They returned to Loubser’s
house around sunset, and Ester’s parents were there waiting to pick her up. She
hugged Loubser before getting in her parents’ car so they would not suspect that
anything had happened.
Ester did not inform her parents about what had happened, nor did she report
the assault to law enforcement. Following the assault, Ester “fell into manic
depression,” started smoking marijuana even more heavily, and self-harmed. She
eventually told her girlfriend about what had happened after she had a panic attack
at school. Ester’s girlfriend did not believe her; instead, she believed Ester was “just
making up an excuse to have sex with [Loubser], which was not the case.” They
ended their relationship that same day.
In May 2019, nearly one year after the assault, Ester was arrested for
shoplifting. She spoke with a counselor at the Fort Bend County Jail as part of a risk
assessment during the booking process. The counselor asked whether Ester had ever
been sexually assaulted, and Ester’s demeanor changed. After being asked again,
Ester reported that she had been sexually assaulted, and she provided Loubser’s
8 name. Ester later spoke about the assault more in depth with a detective, and this
detective testified as an outcry witness.
The jury found Loubser guilty of the offense of sexual assault and assessed
his punishment at five years’ confinement. This appeal followed.
Sufficiency of the Evidence
In his first issue, Loubser argues that the State failed to present sufficient
evidence to support his conviction. Specifically, he argues that he and Ester had a
consensual sexual relationship, and the State did not present sufficient evidence that
Ester did not consent to the sexual contact that occurred in June 2018.
A. Standard of Review
When addressing a sufficiency of the evidence complaint, we consider the
evidence in the light most favorable to the verdict and determine whether, based on
the evidence and reasonable inferences from the evidence, a rational factfinder could
have found the essential elements of the offense beyond a reasonable doubt.
Baltimore v. State, 689 S.W.3d 331, 341 (Tex. Crim. App. 2024) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). The factfinder has “full responsibility” to
resolve conflicts in the testimony, weigh the evidence, and draw reasonable
inferences from basic facts to ultimate facts. Id. We consider the “cumulative force
of all evidence” in determining whether the evidence was sufficient to establish each
element of the offense. Id.
9 The factfinder is the sole judge of the credibility of the witnesses, and it may
choose to believe all, some, or none of the testimony presented. Garcia v. State, 667
S.W.3d 756, 762 (Tex. Crim. App. 2023). We may not sit as a “thirteenth juror” and
substitute our judgment for that of the factfinder by reevaluating the weight and
credibility of the evidence. Id. The factfinder “may use common sense and apply
common knowledge, observation, and experience gained in ordinary affairs when
drawing inferences from the evidence.” Id. (quoting Acosta v. State, 429 S.W.3d
621, 625 (Tex. Crim. App. 2014)). When the record supports conflicting inferences,
we presume that the factfinder resolved the conflict in favor of the prosecution and
defer to that factual determination. Id.
B. Analysis
To obtain a conviction in this case, the State was required to prove that
Loubser intentionally or knowingly sexually assaulted Ester by either (1) causing his
sexual organ to penetrate Ester’s sexual organ without Ester’s consent or (2) causing
his sexual organ to contact Ester’s sexual organ without her consent. TEX. PENAL
CODE § 22.011(a)(1)(A), (C). “‘Consent’ means assent in fact, whether express or
apparent.” Id. § 1.07(a)(11). With respect to the consent element of this offense, the
State was required to prove that Loubser compelled Ester to submit or participate by
use of physical force, violence, or coercion. Id. § 22.011(b)(1); see Delarosa v. State,
677 S.W.3d 668, 675 (Tex. Crim. App. 2023) (“But when a defendant is charged
10 under § 22.011(a)(1), lack of consent is an essential element that the State must
prove.”).
In establishing lack of consent, the statute places the emphasis on “the actor’s
compulsion rather than the victim’s resistance.” Carbajal v. State, 659 S.W.3d 164,
180 (Tex. App.—El Paso 2022, pet. ref’d); Gonzales v. State, 2 S.W.3d 411, 415
(Tex. App.—San Antonio 1999, no pet.) (“The degree of physical resistance by a
victim does not render the evidence insufficient to prove the lack of consent.”). “The
State is not required to demonstrate any certain threshold of force used to compel
the victim’s submission, only that the defendant used some force.” Carbajal, 659
S.W.3d at 180. Bodily injury to the complainant is not an element of the offense. Id.;
Mathis v. State, 443 S.W.3d 391, 396 (Tex. App.—Austin 2014, no pet.) (op. on
reh’g). The facts of each individual case determine whether the defendant used force.
Gonzales, 2 S.W.3d at 415.
A sexual assault conviction is supportable on the uncorroborated testimony of
the victim of the offense if the victim informed any person, other than the defendant,
of the alleged offense within one year after the date of the alleged offense. TEX.
CODE CRIM. PROC. art. 38.07(a). The requirement that the victim inform another
person of the alleged offense does not apply if at the time of the alleged offense, as
in this case, the victim was seventeen years of age or younger. Id. art. 38.07(b)(1).
11 Loubser argues that the State failed to present sufficient evidence that Ester
did not consent to the sexual activity that occurred at Loubser’s house in June 2018.
He argues that “[i]t was clearly understood that sex was always typical between”
them. He points out that after Ester was allegedly sexually assaulted, she remained
in Loubser’s company for several more hours, going to a nearby restaurant and then
a park before her parents picked her up. Furthermore, Ester did not mention the
assault to anyone until she was arrested almost one year later.
Ester testified that she had a sporadic sexual relationship with Loubser from
summer 2017 through Valentine’s Day 2018. Their relationship typically involved
them skipping class, smoking marijuana at Loubser’s house, and then going to his
bedroom to have sex. After Valentine’s Day 2018, they did not spend much time
together. Instead, while they occasionally shared brief life updates via text message,
Ester spent much of her time with a new girlfriend.
On the day of the assault in June 2018, Ester and Loubser started texting. They
discussed the fact that they had not talked much lately, and Loubser invited Ester
over to his house to smoke marijuana and catch up. During this conversation, he
commented that they “can’t keep [their] hands off of each other.” Ester informed
him that she intended to come over to smoke and talk, not to have sex.
After smoking marijuana in Loubser’s backyard, they went to Loubser’s
bedroom. Ester settled on Loubser’s bed, which was normal for her if they were
12 alone in his bedroom, and Loubser went to the attached bathroom. Ester laid face-
down, with her legs partially hanging off the bed. While she was on her phone, she
heard Loubser leave the bathroom. Loubser stood at the end of the bed with his legs
on either side of Ester’s. She continued looking at her phone, but she could hear
Loubser “mess around” with his belt buckle or the zipper of his pants.
While Ester was still face-down on the bed, Loubser climbed on top of her.
Ester asked him what he was doing, and he responded, “‘It’s okay, it’s what we
always do,’ and stuff like that.” Ester tried to turn over so she could face Loubser,
but he “started to get a lot more aggressively, physical with” her. He pinned both of
her wrists behind her back, “completely restrain[ing]” her and preventing her from
turning over. Ester testified that she told Loubser to stop, but the more she spoke or
physically struggled, the more aggressive Loubser became. Ester was unable to
breathe at some points because Loubser pushed her head down into the covers, and
she had to turn her head to the side to catch her breath. Eventually, Ester stopped
struggling, hoping that if she cooperated, “it would maybe go on fast.” Loubser
pushed Ester’s shorts aside and engaged in vaginal intercourse.
Based on Ester’s testimony alone,5 a rational jury could have concluded
beyond a reasonable doubt that Ester did not consent to sex in June 2018 because
5 Detective Kara Roberts testified as the outcry witness. Ester’s statements during their interview were consistent with her later trial testimony. For example, Roberts testified that Ester “stated while she was laying there [on the bed], and didn’t know 13 Loubser compelled her “to submit or participate by the use of physical force,
violence, or coercion.” See TEX. PENAL CODE § 22.011(b)(1); Carbajal, 659 S.W.3d
at 180.
In arguing that the State failed to prove lack of consent, Loubser also points
to Ester’s testimony that, following the assault, she stayed on Loubser’s bed and
then, when their friend arrived, she joined them in smoking marijuana and going to
a nearby restaurant and park. He further points out that when Ester’s parents picked
her up from Loubser’s house, she did not mention the assault. In fact, she did not
mention the assault until nearly one year later, after she was arrested.
Ester described her mental state after the assault as “completely like spaced
out.” When their friend arrived at Loubser’s house, she joined them in the backyard
“and got as high as [she] possibly could” to try to feel better. The friend’s presence
made Ester feel “a bit comfortable,” but she did not feel like herself. She testified
that she tried to act like everything was fine while interacting with their friend
because she did not want him to know that something had happened, and she also
did not want to believe what had happened.
[Loubser] had returned, she felt Mr. Loubser grab the shorts she was wearing, and pull them and move them to the side” before engaging in intercourse. Roberts also testified that Ester “immediately was saying, ‘No, no, this can’t happen’”; she “[t]ried to fight him off using her arms and her legs”; and “after fighting as long as she could, she eventually just stopped moving and laid there until he was completed doing what he was doing.” 14 Ester had not driven herself to Loubser’s house, and she was reluctant to call
her parents to pick her up because they were in Houston celebrating their
anniversary, and she did not want to ruin their evening. When her parents picked her
up, she hugged Loubser like she normally did so they would not question her. 6
Although Ester eventually told her girlfriend what had happened—which led to an
accusation that Ester had simply wanted an excuse to have sex with Loubser and to
the end of her relationship with her girlfriend—she did not tell an adult about the
assault until nearly one year later, when she underwent a risk assessment with a
counselor after being arrested.
The jury also heard testimony from Lori Long, a forensic nurse in the
Memorial Hermann healthcare system, who testified about topics including sexual
assault examinations, the neurobiology of trauma and how trauma can manifest in
people, interpersonal violence, sexual abuse disclosures, and delayed outcries.7 Long
explained some rationales behind delayed outcries:
If we are going to talk, specifically, about like the teenage adolescent population, a lot of it is tied to what their consequences will be. They are driven 100 percent by their peer acceptance, by things that, as adults, we find kind of probably not as significant as they do. You know, how this will impact them in their friend group. What would
6 Ester testified that her family is “very loving” and “very supportive.” Nevertheless, she also stated: “[T]hey would never wish any bad on me. And like I know that, and I still do to this day, but I didn’t even want to try and relive or think or have my parents know what I had been through.” 7 Long had never met Ester. 15 happen—you know, being ostracized if they would be made fun of. If they would be talked about. So, those things kind of drive them to keep things more close to the vest. They won’t necessarily share with family or people of authority, because of the consequences of being grounded or [told], “You can’t be around that person.” It changes their actions. So, they feel like they have nowhere to turn. So, ultimately, what ends up happening is an outcry is made to someone else. They feel comfortable at school, and they tell a counselor, who’s then obligated to get the ball rolling to something else. They tell someone with their church. They tell a friend, and that friend gets freaked, and they tell their mother. And, so, it is usually by this snowballing event that started elsewhere, because they just don’t feel comfortable sharing. And there is a lot [of] guilt and shame associated with their actions.
Long testified that delayed outcries are “[v]ery common” with teenagers and
adolescents. Long also testified that sexual assault victims are less likely to report
the assault when they know their assailant, in part because victims frequently want
to avoid causing problems for someone that they know.
As the factfinder, the jury could have believed Ester’s testimony about the
assault, as well as her explanations for why she did not immediately leave Loubser’s
house but instead spent the next several hours in his presence, why she did not want
their friend to realize what had happened, and why she did not inform her parents of
the assault. See Garcia, 667 S.W.3d at 762 (stating that jury is “the sole judge of the
credibility of the witnesses and may choose to believe all, some, or none of the
testimony presented”). We may not act as the “thirteenth juror” and substitute our
judgment for this credibility determination. See id.
16 Considering the evidence in the light most favorable to the verdict, we
conclude that a rational factfinder could have determined beyond a reasonable doubt
that Loubser acted without Ester’s consent and sexually assaulted her. See TEX.
PENAL CODE § 22.011(a)(1)(A), (C), (b)(1). We hold that sufficient evidence
supports Loubser’s conviction.
We overrule Loubser’s first issue.
Admission of Extraneous Bad Acts
In his second issue, Loubser contends that the trial court erred by admitting
evidence of the following extraneous bad acts: (1) Loubser once slapped Ester during
sex; (2) on another occasion, he secretly recorded them having sex and later shared
that recording with his friends; and (3) upon being confronted by Ester about the
recording, he became angry and threw a trash can.
A. Standard of Review and Governing Law
We review a trial court’s ruling on the admissibility of evidence for an abuse
of discretion. Inthalangsy v. State, 634 S.W.3d 749, 754 (Tex. Crim. App. 2021). A
trial court abuses its discretion when it acts without reference to any guiding rules
and principles or acts arbitrarily or unreasonably. Rhomer v. State, 569 S.W.3d 664,
669 (Tex. Crim. App. 2019). We will uphold a trial court’s ruling on admissibility
so long as it is within the zone of reasonable disagreement. Inthalangsy, 634 S.W.3d
at 754.
17 Ordinarily, 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 that character. TEX. R. EVID. 404(b)(1); State v. Nunez, 704
S.W.3d 598, 624 (Tex. App.—Houston [1st Dist.] 2024, pet. ref’d) (“An extraneous
offense is any act of misconduct, whether resulting in prosecution or not, which is
not shown in the charging instrument and which was shown to have been committed
by the accused.”) (quotations omitted). However, extraneous offense evidence may
be admissible for another purpose, “such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” TEX.
R. EVID. 404(b)(2). The purposes listed in Rule 404(b) “are neither mutually
exclusive nor collectively exhaustive” because the rule is one “of inclusion rather
than exclusion.” De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009)
(quotations omitted); see Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App.
2016) (stating that Rule 404(b) “excludes only evidence that is offered solely for
proving bad character and conduct in conformity with that bad character”).
Extraneous offense evidence may also be admissible to rebut defensive
theories such as fabrication, even if such defensive theories are raised during
opening statements. Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008);
Powell v. State, 63 S.W.3d 435, 438–39 (Tex. Crim. App. 2001). Defense counsel’s
opening statement “is not itself evidence,” but it does “inform the jury of ‘the nature
18 of the defenses relied upon and the facts expected to be proved in their support.’”
Bass, 270 S.W.3d at 563 n.7 (quoting TEX. CODE CRIM. PROC. art. 36.01(a)(5)).
When the defense makes its opening statement immediately after the State’s
opening, “the State may reasonably rely on this defensive opening statement as to
what evidence the defense intends to present and rebut this anticipated defensive
evidence during its case-in-chief as opposed to waiting until rebuttal.” Id.
Code of Criminal Procedure article 38.371 applies to a proceeding in the
prosecution of a defendant for an offense against a person in a dating relationship
with the defendant. TEX. CODE CRIM. PROC. art. 38.371(a); TEX. FAM. CODE
§ 71.0021(b) (defining “dating relationship” as “a relationship between individuals
who have or have had a continuing relationship of a romantic or intimate nature”).
Article 38.371 provides:
(b) In the prosecution of an offense described by Subsection (a), subject to the Texas Rules of Evidence or other applicable law, each party may offer testimony or other evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense described by Subsection (a), including testimony or evidence regarding the nature of the relationship between the actor and the alleged victim. (c) This article does not permit the presentation of character evidence that would otherwise be inadmissible under the Texas Rules of Evidence or other applicable law.
TEX. CODE CRIM. PROC. art. 38.371(b)–(c).
19 Although article 38.371 states that it is “subject to the Texas Rules of
Evidence or other applicable law” and it “does not permit the presentation of
character evidence that would otherwise be inadmissible under the Texas Rules of
Evidence or other applicable law,” courts have interpreted this article as “expressly
provid[ing] for the admission of extraneous offense evidence regarding the nature of
the relationship between an accused and a complainant.” McDonnell v. State, 674
S.W.3d 694, 701–02 (Tex. App.—Houston [1st Dist.] 2023, no pet.) (quotations
omitted); Valdesgalvan v. State, 664 S.W.3d 407, 412 (Tex. App.—Fort Worth
2023, no pet.) (“[I]n cases in which the complainant is in a dating relationship with
the accused, Article 38.371 expressly allows for the admission of extraneous offense
evidence to show the nature of their relationship.”). Article 38.371 therefore
“provides another non-character-conformity purpose for admitting extraneous-
offense evidence.” James v. State, 623 S.W.3d 533, 545 (Tex. App.—Fort Worth
2021, no pet.); see Rodriguez v. State, 678 S.W.3d 375, 386 (Tex. App.—Dallas
2023, pet. ref’d).
“Areas of relevant and admissible extraneous-offense evidence that complies
with article 38.371 include evidence that: (1) explains why a victim of domestic
violence is unwilling to cooperate with prosecution; (2) confirms the victim’s
initial—and later recanted—statements to police; or (3) contextualizes the nature of
the relationship between victim and assailant.” Fernandez v. State, 597 S.W.3d 546,
20 566 (Tex. App.—El Paso 2020, pet. ref’d); Valdesgalvan, 664 S.W.3d at 413
(“[S]uch evidence can provide context that assists the trier of fact in understanding
the actions of both the accused and the complainant.”). Courts may permissibly
conclude that evidence is admissible under both Rule 404(b) and article 38.371 to
rebut a defendant’s defensive theory that the complainant fabricated the assault or
that no assault occurred. Gonzalez v. State, 541 S.W.3d 306, 312 (Tex. App.—
Houston [14th Dist.] 2017, no pet.) (disagreeing with defendant’s contentions that
Rule 404(b) and article 38.371 conflict and that prosecution’s reliance on article
38.371 to admit extraneous-offense evidence constitutes “an end-run around Rule
404(b)”).
Even if the evidence is admissible under Rule 404(b) and article 38.371, the
trial court may exclude the evidence if its probative value is substantially outweighed
by a danger of unfair prejudice, confusing the issues, misleading the jury, undue
delay, or needless presentation of cumulative evidence. TEX. R. EVID. 403; Perkins
v. State, 664 S.W.3d 209, 216 (Tex. Crim. App. 2022). Rule 403 favors the
admission of relevant evidence, and it “carries a presumption that relevant evidence
will be more probative than prejudicial.” Martinez v. State, 327 S.W.3d 727, 737
(Tex. Crim. App. 2010) (quotations omitted); James, 623 S.W.3d at 549 (“Rule 403
is concerned not with prejudicial evidence but with evidence that is unfairly
prejudicial.”). A Rule 403 analysis generally balances four non-exclusive factors:
21 (1) the probative value of the evidence; (2) the potential of the evidence to impress
the jury in some irrational yet indelible way; (3) the time needed to develop the
evidence; and (4) the proponent’s need for the evidence.8 Colone v. State, 573
S.W.3d 249, 266 (Tex. Crim. App. 2019).
In his opening statement, defense counsel began by asking: “Is it rape? Is it
regret? Or is it, ‘I need to get out of trouble, do whatever I can, get out of trouble.’”
Counsel asserted that after being arrested for shoplifting, Ester searched “for any
way out” and then “got sympathy” from the jail counselor when she stated she had
been sexually assaulted. Counsel also stated that while Ester was in a “committed
relationship [with her girlfriend] . . . she was having sex with Mr. Loubser that
whole summer. So, that committed relation[ship] didn’t mean much. And then, ‘Oh,
8 The Court of Criminal Appeals has also described the Rule 403 balancing test as involving six considerations:
[A] trial court, when undertaking a Rule 403 analysis, must balance (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 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). 22 you know, I had sex with him and now my girlfriend is mad at me. It must have been
rape.’” Thus, counsel’s defensive theory was that Ester and Loubser had a
consensual sexual relationship, and Ester fabricated the sexual assault for multiple
possible reasons: regret; to avoid relationship problems with her girlfriend; or to
garner sympathy and not be punished for shoplifting.
Before Ester testified about the underlying assault, the State asked: “[A]t some
point during the times that you were having consensual sex with the Defendant, was
there anything ever that happened that was violent?” Over defense counsel’s
objection, Ester testified that she “got slapped in the face during intercourse once.”
She slapped Loubser in response and they then had an argument because they had
never discussed having rough sex before. Loubser never again slapped Ester during
sex. She testified that she continued having sex with Loubser after this incident, but
“[i]t was kind of more rare” because she “felt very disrespected, and [she] kind of
felt like we were on different pages of what we wanted.”
The State then asked Ester whether there was “anything else that stands out to
you during this time that you were having consensual sex with the Defendant?” Ester
responded that Loubser “secretly exploited [her] body, and [he] had shown mutual
friends pictures and videos of [her].” Defense counsel objected and argued that
“improper photography” was a felony offense and because Ester was a minor at the
time, “we are now opening the door to the jury to considering he committed child
23 pornography,” which would be highly prejudicial. The trial court allowed the
testimony.
Ester testified that she learned about the video from a mutual friend. She
confronted Loubser about the video in between class periods. The confrontation
included “a lot of yelling,” and at one point, Loubser picked up a nearby trash can
and threw it.9 Teachers told both Ester and Loubser to go to class, but they instead
went to a stairwell where they finished their conversation. Ester asked Loubser to
show her the video so she could determine if it was, in fact, her in the video. The
video depicted Ester and Loubser in bed and having sex. Ester informed Loubser
that she did not appreciate the video, and she did not want that to happen again. At
Ester’s request, Loubser deleted the video from his phone. Following this incident,
Ester and Loubser’s relationship “turned more into just a mutual friendship again,”
although they did have sex on at least one more occasion—Valentine’s Day 2018—
before the underlying assault.
1. Rule 404(b) and article 38.371
The extraneous acts evidence admitted in this case concerns “the nature of the
relationship between [Loubser] and [Ester]” and constitutes “relevant facts and
circumstances that would assist the trier of fact in determining whether [Loubser]
committed the offense” of sexual assault. See TEX. CODE CRIM. PROC. art. 38.371(b).
9 On cross-examination, Ester agreed that Loubser did not throw the trash can at her. 24 Article 38.371 “provides another non-character-conformity purpose for admitting
extraneous-offense evidence.” Rodriguez, 678 S.W.3d at 386 (quotations omitted);
James, 623 S.W.3d at 545; see also McDonnell, 674 S.W.3d at 703 (“The evidence
of McDonnell’s prior assaults and threats falls within the type of evidence courts
have recognized as falling under both article 38.371 and Rule 404(b).”).
Even if article 38.371 itself does not provide a non-character-conformity
purpose for evidence that falls within its scope, use of extraneous acts to rebut a
defensive theory is a permissible purpose under Rule 404(b). See Bass, 270 S.W.3d
at 563. Loubser’s defensive theory of the case was two-fold: (1) Ester consented to
sex with Loubser on the June 2018 occasion, as she had throughout their on-again-
off-again relationship; and (2) Ester later fabricated the allegations of sexual assault
either to get out of trouble with her girlfriend, who was not pleased that Ester and
Loubser were still having sex, or to alleviate her legal troubles after being arrested
in May 2019. As the State argues, Loubser’s opening statement made Ester’s consent
on the day of the assault a disputed issue, opening the door for the State to rebut
Loubser’s defensive theories with evidence that Loubser had, on two prior
occasions, tested Ester’s boundaries by introducing physical force into their sexual
relationship and by recording their sexual activities, two actions that they had not
previously discussed and that Ester did not appreciate.
25 We conclude that the trial court did not abuse its discretion by permitting the
extraneous acts evidence under Rule 404(b) and article 38.371. See McDonnell, 674
S.W.3d at 703; see also Gonzalez, 541 S.W.3d at 312–13 (concluding that “it is at
least within the zone of reasonable disagreement” that evidence of prior assault was
admissible to explain complainant’s recantation of allegations forming basis of
charged offense and to rebut defensive theory of fabrication).
2. Rule 403
Loubser argues that the danger of unfair prejudice from admitting the
extraneous acts substantially outweighed the probative value of this evidence. We
disagree.
It is undisputed that Ester and Loubser had been involved in a consensual
sexual relationship. Whether Ester consented to sex on the date of the alleged assault
was the primary question in dispute at trial. Ester’s credibility was therefore
paramount. See McDonnell, 674 S.W.3d at 703 (stating that probative force of
defendant’s other bad acts—including prior assaults and threats against
complainant—were “particularly relevant” when “the credibility of the witnesses
was a central issue in the case”). The State needed the evidence to rebut Loubser’s
defensive theories that Ester consented to sex and that she fabricated the allegations
of sexual assault to get out of trouble. See James, 623 S.W.3d at 548 (“[E]vidence
of prior assaults and abuse makes it less likely that a complainant has fabricated the
26 charged offenses.”). Additionally, the State needed the extraneous acts evidence
because no one—other than Ester—witnessed the charged offense of sexual assault,
no physical or DNA evidence was collected, Ester did not undergo a medical
examination after the assault, she had no visible injuries, and, as mentioned, her
credibility was at issue. See id.
The extraneous acts evidence also related to two instances that occurred
several months before the date of the assault10 and therefore the acts were not so
remote in time that the probative value of this evidence was lessened. See Brickley
v. State, 623 S.W.3d 68, 81 (Tex. App.—Austin 2021, pet. ref’d) (stating that prior
incident occurring between seven months and two years before charged incident was
not so remote that lapse in time “deplete[d] the probative value of the evidence”);
James, 623 S.W.3d at 547 (concluding that extraneous offenses had probative value
“as to [the defendant’s] intent to commit the charged offenses” when extraneous acts
and charged offenses all occurred within four-month period).
With respect to the potential for the extraneous acts evidence to impress the
jury in some irrational way, we note that the trial court did not give a limiting
instruction at the time Ester testified about the acts or in the jury charge. See
Rodriguez, 678 S.W.3d at 387 (“[A]ny tendency to draw impermissible inferences
10 On cross-examination, Ester testified that the slapping incident occurred between Christmas 2017 and Valentine’s Day 2018. The video incident also occurred before Valentine’s Day 2018. The underlying sexual assault occurred in June 2018. 27 of character conformity can be minimized through a limiting instruction, and the trial
court gave such an instruction.”) (quotations omitted). However, although the
extraneous acts—particularly the video recording and Loubser’s actions during the
ensuing confrontation over this video—did not involve acts that were similar to the
charged offense of sexual assault, these acts were not more serious than the charged
offense. See id.; Dies v. State, 649 S.W.3d 273, 286 (Tex. App.—Dallas 2022, pet.
ref’d) (concluding that potential for unfair prejudice was diminished when
extraneous allegations “were no more serious than complainant’s”); see also James,
623 S.W.3d at 549 (“[W]e hold that this third factor [the tendency of the evidence
to suggest a decision on an improper basis] weighs in favor of admission of the
extraneous-offense evidence that is not more heinous than the charged offenses.”).
Furthermore, the extraneous testimony did not involve scientific evidence or
a complex subject that risked confusing the jury; instead, it involved lay witness
testimony concerning factual matters. See Gigliobianco v. State, 210 S.W.3d 637,
641 (Tex. Crim. App. 2006) (noting that scientific evidence “might mislead a jury
that is not properly equipped to judge the probative force of the evidence”); James,
623 S.W.3d at 550 (“Our review of the record shows that the extraneous-offense
testimony was from lay witnesses, not experts, and it described the various abusive
incidents in a factual manner. None of the extraneous-offense evidence was
scientific or complex.”).
28 Presenting evidence of the extraneous acts did not take up a large amount of
time. See McDonnell, 674 S.W.3d at 704. This evidence constituted approximately
12 pages of testimony during Ester’s direct examination and 11 pages of testimony
during Ester’s cross-examination.11 The guilt-innocence phase of trial lasted for
three days and consisted of over 400 pages of testimony. See Rodriguez, 678 S.W.3d
at 387 (“The extraneous acts were developed over the course of twelve record pages,
not all of which were devoted to the acts. This represented a small fraction of the
roughly 400-page record for the State’s case-in-chief.”). The focus of the trial was
on Ester’s testimony about the date of the assault and her actions afterwards, not on
the extraneous acts.
The Court of Criminal Appeals has acknowledged that because sexual assault
cases tend to be “he said, she said” trials without physical or other corroborating
evidence, “the Rules of Evidence, especially Rule 403, should be used sparingly to
exclude relevant, otherwise admissible evidence that might bear upon the credibility
of either the defendant or complainant.” Hammer v. State, 296 S.W.3d 555, 561–62
(Tex. Crim. App. 2009). When balancing the relevant Rule 403 factors, we conclude
that the trial court’s decision that the prejudicial effect of the extraneous acts
evidence did not substantially outweigh the probative value of this evidence did not
11 Loubser called as a defense witness the friend who—according to Ester—allegedly told her about the video. This friend denied ever seeing such a video. This witness’s testimony lasted for approximately 4 pages. 29 fall outside the zone of reasonable disagreement. We therefore hold that the trial
court did not abuse its discretion in admitting this evidence.
We overrule Loubser’s second issue.
Conclusion
We affirm the judgment of the trial court.
David Gunn Justice
Panel consists of Chief Justice Adams and Justices Gunn and Guiney.
Do not publish. TEX. R. APP. P. 47.2(b).