Court of Appeals of Texas Finds Evidence of Prior Sexual Assault Was Admissible to Prove Defendant’s Modus Operandi
Federal Rule of Evidence 413(a) provides that
In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.
While Congress controversially passed Rule 413 as part of the Violent Crime Control and Law Enforcement Act of 1994, most states have not followed suit. As a result, when the prosecution wants to present evidence that a defendant charged with a sex crime committed prior sex crimes, they have to prove admissibility under state counterparts to Federal Rule of Evidence 404(b).
For example, Texas Rule of Evidence 404(b)(2) provides that
[Evidence of a crime, wrong, or other act] may be admissible for
another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. On timely request by
a defendant in a criminal case, the prosecutor must provide reasonable notice before
trial that the prosecution intends to introduce such evidence—other than that arising
in the same transaction—in its case-in-chief.
A good example of this can be found in the recent opinion of the Court of Appeals of Texas in Foreman v. State, 2026 WL 44132 (Tex. App. 2026).
In Foreman,
On January 14, 1995, “Cynthia’s” parents discovered her handcuffed, semi-nude body in the bathroom of her townhouse, where Cynthia had been sexually assaulted and murdered. Although the investigation did not initially identify [Clayton] Foreman as a suspect, DNA evidence collected during Cynthia’s autopsy later led law enforcement authorities to arrest Foreman in 2021.
At Foreman’s trial, the prosecution presented evidence of his 1981 sexual assault of “Patty.” On appeal, Foreman claimed that this was improper propensity character evidence.
The Court of Appeals disagreed, finding that the evidence was admissible for permissible purposes, such as proving modus operandi. As support, it noted that there were no less than twelve factual common denominators between the cases:
1. Foreman knew both victims as they all graduated from the same high school;
2. The acts are similar;
3. The offense location (Beaumont, Texas);
4. Offense time (night);
5. Victims’ similarity in age to Foreman;
6. Victims resembled each other in appearance;
7. Foreman used a weapon;
8. Foreman used or threatened force;
9. Victims’ hands restrained behind their backs;
10. Victims were assaulted both anally and vaginally;
11. Foreman convinced each victim to trust him, thus enabling him to commit the offenses;
12. “[E]ach victim was futilely trying to resist.”