Brandon Robisheaux v. State, 483 S.W.3d 205

Background

Defendant Brandon Robisheaux was indicted on one count of continuous sexual abuse of a child and two counts of sexual assault of a child; jury convicted on the two sexual-assault counts and acquitted on the continuous-abuse count. At punishment he pleaded true to a prior felony-arson conviction and received 50-year terms.
The State sought to introduce extraneous sexual-offense testimony (L.E.) under Tex. Code Crim. Proc. art. 38.37 §2 (propensity/character-conformity evidence in child-sex cases); the court held the required out-of-jury §2-a hearing and admitted L.E.’s testimony after complying with notice requirements.
Robisheaux raised four appellate issues: (1) facial due-process challenge to art. 38.37 §2; (2) ex post facto/retroactivity challenge to admitting prior acts that occurred before §2’s enactment; (3) Rule 403 challenge to admission of L.E.’s testimony; and (4) exclusion under R. 412 of testimony about a pregnancy test and an alleged twenty-year-old that might explain a motive to fabricate.
The trial court excluded portions of L.E.’s proffer (e.g., certain violence, threats, drug specifics) and excluded the proposed testimony about the twenty-year-old/pregnancy-test after an in-camera R.412 hearing.
The court of appeals affirmed: it rejected the facial and ex post facto/retroactivity challenges, held the Rule 403 ruling was not an abuse of discretion, and found admission/exclusion decisions under Rules 403/412 and confrontation/due-process principles were proper given the record.

Issues

Issue	Robisheaux's Argument	State's Argument	Held
1. Facial due-process challenge to art. 38.37 §2	§2 is facially unconstitutional because it permits propensity evidence that can lead to conviction without proof beyond a reasonable doubt	§2 is constitutional; contains procedural safeguards (notice, §2-a hearing) and Rule 403 balancing limits unfair prejudice	Rejected — defendant failed to show §2 is unconstitutional in all applications; court follows sister courts analogizing §2 to Fed. Rules 413/414 and upholding it with Rule 403 protections
2. Ex post facto/retroactivity challenge	Admission of extraneous acts that occurred before §2’s enactment retroactively changes evidentiary rules and lowers the quantum of proof; thus unconstitutional	§2 does not change elements or burden of proof; it only enlarges admissible evidence while preserving proof requirements; procedural change not a vested substantive right	Rejected — no ex post facto violation; statute did not alter elements or required quantum of proof and did not invade a vested substantive right
3. Rule 403 challenge to admission of L.E.’s testimony	L.E.’s testimony was remote, dissimilar, inflammatory and its prejudicial effect substantially outweighed probative value	The State needed the evidence because case otherwise was largely uncorroborated he-said/she-said; similarities (victim ages, drug offers, condom use, locations, duration) increased probative value; limited scope and brevity reduced prejudice	Rejected — trial court did not abuse discretion; balancing factors and presumption favoring admissibility supported overruling the 403 objection
4. R.412/confrontation challenge to exclusion of testimony about pregnancy test and alleged 20‑year‑old	Excluding C.Y.’s testimony prevented showing a motive to fabricate, violated confrontation and due-process rights; it was admissible under R.412(b)(2)(C)/(E)	The proffered testimony had minimal probative value, was based on secondhand information from defendant, and risked unfair prejudice and stigmatizing the victim; R.412 balancing favored exclusion	Rejected — exclusion was within trial court’s discretion; probative value was slight while prejudicial risk and lack of corroboration supported exclusion; confrontation/due-process claims fail because proper evidentiary rulings were available and defense could otherwise attack credibility

Key Cases Cited

In re Winship, 397 U.S. 358 (U.S. 1970) (due process requires proof beyond a reasonable doubt)
Boyd v. United States, 142 U.S. 450 (U.S. 1892) (historic caution against propensity evidence)
Brinegar v. United States, 338 U.S. 160 (U.S. 1949) (limitations on admission of similar-act evidence)
Calder v. Bull, 3 U.S. 386 (U.S. 1798) (classification of ex post facto categories)
Carmell v. Texas, 529 U.S. 513 (U.S. 2000) (ex post facto analysis discussion)
State ex rel. Lykos v. Fine, 330 S.W.3d 904 (Tex. Crim. App. 2011) (facial challenge standard; presume constitutionality)
Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009) (scope of confrontation and limits on excluding evidence relevant to motive)
Pawlak v. State, 420 S.W.3d 807 (Tex. Crim. App. 2013) (Rule 403 presumption favoring admissibility)
Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006) (factors for Rule 403 balancing)
Davis v. State, 329 S.W.3d 798 (Tex. Crim. App. 2010) (abuse-of-discretion standard for evidentiary rulings)