dissenting.
In this gang-rape case, a jury convicted appellant of aggravated kidnapping and assessed punishment at thirty years’ confinement and a $6000 fine. The aggravating factor was the intent to commit sexual abuse. The majority reverses and holds (1) that evidence of the complainant’s sexual conduct eight months after the event should have been admitted, and (2) that the court should have granted a new trial because the jury heard additional information about appellant during its deliberations. I dissent from those holdings.
The state’s evidence showed that on the night of March 26, 1988, the complainant was walking from a family party to her nearby home when four men, including appellant, approached her in a car. They asked her to go riding, but she declined. Two of them then got out of the car and forced her into the back seat. They then took her to a ranch where cockfights were taking place. There she was raped and otherwise sexually abused in and on the car by a number of men, including appellant. There was testimony that in addition to raping her, appellant held a flashlight on her while others raped her and also forced a beer bottle into her vagina. Appellant and the others who had originally brought the complainant to the ranch left her there and drove away. The complainant was then taken to a second car by other men at the ranch, where the sexual abuse continued.
According to appellant, the complainant accompanied the men and participated in the conduct willingly. The defense offered testimony from a number of men who were present at the ranch that the complainant consented to the activity and enjoyed it. Another defense witness testified that she saw the complainant get into a car on the night in question and that she did not see anyone use force.
Toward the end of the trial, outside the jury’s presence, appellant offered a bill of *641exceptions regarding the complainant’s sexual activity eight months after the alleged kidnapping. The pertinent events took place in the following sequence:
• alleged kidnapping: March 1988
• indictment: April 1988
• extraneous sexual conduct (excluded by court): November 1988
• trial: January 1989
Appellant offered the testimony of four witnesses who stated that they had observed or had participated in sexual encounters between the complainant and multiple men in November, 1988, which she initiated and enjoyed. The court had previously granted the state’s motion in limine seeking to exclude evidence of subsequent sexual conduct, and the court sustained the state’s objections.
In the jury’s presence, a psychiatrist testified for the defense about the medical condition of nymphomania. Appellant was allowed to ask a hypothetical question based on his version of the events on the night in question — specifically that the complainant consented to having sex with multiple partners while in close proximity to other people — and the psychiatrist agreed that such activities displayed characteristics of nymphomania. When appellant sought to ask additional hypothetical questions based on his previously offered bill of exceptions regarding subsequent sexual activity, he was allowed to do so only outside the hearing of the jury. In chambers, the doctor stated that the hypothetical were consistent with nymphomania and that it was possible, but improbable, that a person with this condition could refuse consent and be raped. The court sustained the state’s objections to the hypo-theticals.
I. SUBSEQUENT SEXUAL CONDUCT OF THE COMPLAINANT.
The majority sustains appellant’s first point of error, which contends that the court erred in denying him the right to present evidence or cross-examine the complainant about events of consensual group sexual conduct that occurred after the event in question. Appellant offered the testimony for the purpose of proving (1) that the complainant had consented on the occasion in question, and (2) that she had a motive to lie in the instant case because she wanted to hide her involvement in group sex from her husband and family. The majority holds that appellant had a Sixth Amendment right to offer the excluded evidence for each of these purposes.
Appellant’s first theory was that the evidence of consensual sexual relations with groups of men in November 1988 showed something about the complainant’s character, the inference being that in March 1988 she had acted in conformity with her character and had consented to the episode. Character evidence often has some probative value and is considered relevant, and that is true of the excluded evidence in this case. But the rules of evidence set limits on the circumstances under which character can be proved.1 The record supports three possible theories of admissibility:2 (1) that the evidence was admissible on the issue of consent under evidence rules 404 and 405; (2) that appellant was entitled *642under evidence rule 608 to impeach the complainant’s credibility by establishing a motive to lie; and (3) that apart from the evidence rules, he had a constitutional right to cross-examine about the extraneous sexual conduct. The rules of evidence have displaced prior Texas case law on this point.3
1. Consent.
Under rules 404 and 4054 the evidence was not admissible to prove consent. Rule 404 deals with the admissibility of character evidence. Rule 405 deals with how character may be proved if it is admissible under rule 404. Rule 405 sets out different principles for the proof of character by reputation or opinion, and proof of character by specific instances of conduct. The advisory committee’s note to federal rule 405, from which the Texas rule was taken, states the reasons for this distinction:
Of the three methods of proving character provided by the rule, evidence of specific instances of conduct is the most convincing. At the same time it possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time. Consequently the rule confines the use of evidence of this kind to cases in which character is, in the strict sense, in issue and hence deserving of a searching inquiry. When character is used circumstantially and hence occupies a lesser status in the case, proof may be *643only by reputation and opinion. These latter methods are also available when character is in issue.
Appellant’s tendered evidence consisted almost entirely of testimony from several young men about events of group sex with the complainant in November 1988, eight months after the event for which appellant was tried and convicted. While the witnesses alluded to her reputation as one who liked and invited sex with multiple partners, there is no indication that this reputation existed at any time other than November 1988. Appellant did not make a limited offer of the reputation evidence; he offered the specific instances of conduct generally. His point of error one complains only of the exclusion of evidence of the “subsequent acts of the alleged victim” and he has not contended that he offered reputation evidence. If appellant had offered evidence of the complainant’s reputation for nymphomania in March 1988, this case would present a different question.
But under rule 404(b) appellant had no right to introduce specific evidence of other acts — as distinguished from reputation or opinion evidence — to prove complainant’s character “in order to show that [she] acted in conformity therewith.” That is the clear command of rule 404(b). In other words appellant was not entitled to show complainant’s other acts of consensual sexual involvement in order to show that she consented to the episode — that is, “acted in conformity” with those prior acts.
Nor was the evidence of specific acts admissible under rule 405(b), which makes specific instances of conduct inadmissible unless the character of the person is an essential element of the charge or the defense. The complainant’s character was not an element of the case against appellant or his defense. Her consent was an issue but her character was not. Rule 405 does not say that specific instances of conduct may be introduced if one’s character is relevant to an element of the charge or defense; it says the person’s character must itself be an “essential element.”
Under the now-repealed criminal offense of seduction, unchastity of the victim was a defense and therefore was provable. See 2 R. RAY, TEXAS PRACTICE, LAW OF EVIDENCE, §§ 1506-1507 (1980). But that is not true of rape or, in this case, aggravated kidnapping. The complainant’s character simply was not an element of anyone’s case in chief. Certainly nothing was said in the court’s charge about her character being an element that either side had to prove.
For all these reasons, the evidence of specific acts of sexual conduct was not admissible under rules 404 and 405 to prove consent.
2. Motive.
Appellant did not offer the evidence to prove motive as part of his defense but to undermine the complainant’s credibility by showing that she had a motive to lie. In other words he offered it not to prove motive as an issue in the case but to impeach complainant. Her motive was not an issue that he could have proved except as it undermined her credibility. Even if motive had been a provable issue in the case apart from impeachment, the excluded evidence (November 1988) simply does not purport to establish that the complainant somehow had a motive to engage in consensual sex on the night in question (March 1988). For this reason the evidence was not admissible under rule 404, which states that evidence of other crimes, wrongs, or acts may be admissible to prove motive.
Nor was the evidence admissible for impeachment concerning motive. Rule 608(b) strictly limits the use of specific instances of conduct to attack a witness’s credibility:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.
The tendered evidence of specific acts was not admissible or subject to use in cross-examination.
*644 3. Constitutional right to cross-examine.
The majority cites Olden v. Kentucky, 488 U.S. 227,109 S.Ct. 480,102 L.Ed.2d 513 (1988), in support of its conclusion that the trial court violated appellant’s Sixth Amendment right to cross-examine the complainant about other acts of consensual group sex to show somehow that she had a motive to lie. The majority does not even begin to explain how the complainant’s conduct in November of 1988 sheds light on her motive to fabricate a rape charge eight months earlier in March (or when appellant was indicted in April 1988).
Olden deals with cross-examination about motive to lie; it certainly does not establish a general right to prove extraneous sexual conduct in rape cases or other cases, such as kidnapping, in which consent may be an issue. In Olden the complainant testified that Olden and Harris raped her; the defendants testified that she consented. On the occasion in question, her boyfriend, a black man named Russell, saw her alight from Olden’s car after the event, and he testified at trial. Olden contended that the complainant accused him of rape in order to allay Russell’s suspicion that she had been unfaithful, which was aroused when he saw her get out of the defendants' car. Olden argued that she accused him of rape to protect her relationship with Russell, and that he should be able to cross-examine about their relationship. As the Court said, “[Olden’s] theory of the case was that Matthews [the complainant] concocted the rape story to protect her relationship with Russell, who would have grown suspicious upon seeing her disembark from Harris’s car.” 488 U.S. at 230, 109 S.Ct. at 482, 102 L.Ed.2d at 518. The complainant had testified that she was living with her mother, but Olden’s tendered proof showed that she was living with Russell.
The trial court prevented the Olden defendants from cross-examining on this question because of the danger of injecting racial prejudice into the case; the complainant was white and Russell was black. The Supreme Court held that the defendants were entitled to show the true relationship of the complainant and Russell.
The majority ignores the distinctions between the goals of the cross-examination in Olden and appellant’s goals in the present case. There the prosecutrix had a motive for fabricating the rape charges in the first place: her boy friend saw her leave the alleged rapists’ car. And the defendant did not seek to cross-examine about other sexual conduct, but to prove the existence of the relationship with the boy friend. In the present case, appellant seeks to cross-examine about subsequent sexual conduct, and I fail to see how sexual conduct in November 1988 could provide a motive to fabricate charges that resulted in an indictment on April 21, 1988, seven months earlier. In contrast to Olden, there is no indication that the complainant’s husband had seen her with appellant. If the complainant had wanted to hide the March 21 event from her husband, she would have kept the matter quiet instead of reporting it to the police.
Surely the majority does not mean to hold that Olden entitles a defendant to cross-examine on prejudicial matters simply by labeling the inquiry “motive.” On the contrary, the Olden Court stressed and reaffirmed its statement in an earlier case that trial courts may take into account and balance factors similar to those contained in TEX.R.CRIM.EVID. 403:
While a trial court may, of course, impose reasonable limits on defense counsel’s inquiry into the potential bias of a prosecution witness, to take account of such factors as “harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that [would be] repetitive or only marginally relevant,” ... the limitation here was beyond reason. Speculation as to the effect of jurors’ racial biases cannot justify exclusion of cross-examination with such strong potential to demonstrate the falsity of [the complainant’s] testimony.
Olden, 488 U.S. at 232, 109 S.Ct. at 483, 102 L.Ed.2d at 520 (emphasis added). In other words, the Court affirmed the trial court’s discretion to balance prejudice *645against probative value but concluded that the trial court’s balancing was “beyond reason” — the prejudice (possible racial bias of the jury) did not outweigh the probative value (a strong suggestion that the story was invented to allay the suspicions of the boyfriend who saw her with the alleged rapists). In the present case the prejudice is great and the probative value on motive to fabricate retroactively is difficult to comprehend.
I certainly agree that a defendant has a right to cross-examine about a witness’s involvement with the legal system that might give him a motive to alter his testimony. See e.g., Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (state had dismissed public drunkenness charge in return for witness’s talking with prosecutor); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (witness was on juvenile probation when he identified defendant and therefore had arguable motive to divert suspicion from himself and to avoid possible revocation of probation); Steve v. State, 614 S.W.2d 137 (Tex.Crim.App.1981); Evans v. State, 519 S.W.2d 868 (Tex.Crim.App.1975). And when there is a motive to fabricate the charges at the outset, as in Olden, the defendant must be allowed to cross-examine on that issue.
But the majority opinion goes much further and allows inquiry about extraneous sexual conduct in virtually all rape and sexual assault cases, because the defendant can always allege that the complainant has a “motive” to hide the “true” fact that she initiated the sexual encounter and was not really raped. The majority says, “The appellant was prevented from presenting the only defense [consent] he had.” In other words, a defendant who says the complainant consented has a constitutional right to cross-examine about other sexual conduct. Because the majority relies on constitutional principles, it has in effect held that rule 412, the rape shield rule, can probably never be applied in the face of a rape defendant’s assertion that the complainant consented and is alleging rape in order to protect her reputation. Significantly, the court of criminal appeals upheld the previous rape shield law’s constitutionality on its face and as applied in Allen v. State, 700 S.W.2d 924, 928-32 (Tex.Crim.App.1985). I do not agree that Olden undermines Allen.
The evidence was not admissible under the rules of evidence and was not required by the United States Constitution. I would hold that the trial court did not abuse its discretion in excluding it. I reiterate that appellant offered evidence of specific acts eight months after the offense, not reputation prior to the event.
II. JURY MISCONDUCT
The majority also holds that appellant was entitled to a new trial because of jury misconduct. At the hearing on the motion, he presented the affidavits and live testimony of two jurors. This evidence showed that, during a recess in deliberations, one member of the jury told the others that appellant had escaped from jail, gotten his wife pregnant, and returned to jail. Apparently the other jurors laughed about this and considered it a joke. The comment was made during a break in deliberations and was not discussed further after one juror admonished the others not to talk about it. The evidence also shows that one juror informed the others that appellant was on parole.
Rule 30 of the rules of appellate procedure provides that an accused is entitled to a new trial “[wjhere after retiring to deliberate the jury has received other evidence....” TEX.R.APP.P. 30(b)(7) (formerly TEX.CODE CRIM.PROC.ANN. art. 40.03(7) (Vernon 1979)). In order to mandate a new trial under this rule, however, appellant must show that (1) “other testimony” or “other evidence” was actually received by the jury, and (2) such evidence was detrimental to him. Bennett v. State, 742 S.W.2d 664, 676 (Tex.Crim.App.1987); vacated, 486 U.S. 1051, 108 S.Ct. 2815, 100 L.Ed.2d 917 (1988), affirmed, 766 S.W.2d 227 (1989), cert. denied, — U.S. -, 109 *646S.Ct. 3229, 106 L.Ed.2d 578 (1989);5 Garza v. State, 630 S.W.2d 272, 274 (Tex.Crim.App.1981). Passing remarks of jurors do not necessarily constitute the receipt of “other evidence,” especially where they are not further discussed after an admonishment not to talk about them. Stephenson v. State, 571 S.W.2d 174, 176 (Tex.Crim.App.1978); Baldonado v. State, 745 S.W.2d 491, 495 (Tex.App.—Corpus Christi 1988, pet. ref’d); Kashfi v. State, 703 S.W.2d 312, 314 (Tex.App.—Waco 1985, pet. ref’d).
The majority assumes, without discussion, that the jury received other evidence within the meaning of the new-trial rule. I disagree. The comments concerning appellant’s purported escape and his wife’s pregnancy were made during a recess, were generally regarded as a joke, and were not mentioned again by the jurors after one of them told the others to quit talking about it. The statements, while improper, were made casually and incidentally during a break in deliberations and did not require the granting of a new trial. See Nacol v. State, 590 S.W.2d 481, 486 (Tex.Crim.App.1979) (mere mention of defendant’s failure to testify, without discussion, did not require new trial); Carrillo v. State, 566 S.W.2d 902, 915 (Tex.Crim.App.1978) (according to jurors, “the discussion of the information was brief, was of no significance, and did not affect their decision”); Aguirre v. State, 683 S.W.2d 502, 515 (Tex. App.—San Antonio 1984, pet. ref'd) (incidental comment that juror had heard defendant’s brother shot deceased); Rodriguez v. State, 661 S.W.2d 332, 336 (Tex.App.— Corpus Christi 1983, pet. ref’d) (comment that defendant came from mean, violent family). Significantly, no juror gave information that appellant was guilty in this case and the matters were not mentioned repeatedly. See, e.g., Stephenson v. State, 571 S.W.2d at 176 (juror said she knew the facts personally and that defendant was guilty); Garza v. State, 630 S.W.2d 272 (on two or three occasions statements were made and discussed that appellant “had a bad criminal record, that he had killed a man, was a murderer, should be put away, and should be locked up”).
The statement that appellant was on parole also appears to have been a passing remark rather than the subject of discussion. These statements do not constitute the receipt of other, detrimental evidence as that term is used in appellate rule 30(b)(7).
The majority also states that the jury received other evidence because it was allowed to take exhibit one (the complainant’s affidavit expressing her desire to dismiss the case, which was not admitted into evidence) into the jury room. The exhibit was one of over sixty exhibits viewed by the jury during the guilt-innocence phase. Appellant has not made any showing that this exhibit was, in fact, considered (or “received”) by the jury. Further, it is apparent from a reading of the affidavit that it was not detrimental to appellant. In considering whether the exhibit was “detrimental” to appellant, the controlling factor is the character of the evidence in light of the issues before the jury. Garza v. State, 630 S.W.2d at 274-76. The affidavit merely stated that the complainant no longer wanted to testify because she felt harassed by the media. I do not see how this could have affected the jury’s decision on the issues in the case. The mere presence of this exhibit in the jury room did not entitle appellant to a new trial.
For the foregoing reasons, I dissent from the majority’s opinion reversing and ordering a new trial.
. Evidence that is "relevant” can be inadmissible if its probative value is substantially outweighed by its prejudicial effect, and the rules of evidence have made a conscious decision to give the trial court considerable discretion in assessing the balance. See Montgomery v. State, — S.W.2d -, -, slip op., at 2-11 (Tex.Crim.App. May 30, 1990, Nos. 1090-88 and 1091-88).
. The trial court stated that TEX.R.CRIM.EVID. 412 — the rape shield rule concerning evidence of sexual conduct of complainants in sexual assault cases — did not apply. The state challenges that decision, but the court was correct on this point. Rule 412 applies to "previous sexual conduct" and "past sexual behavior.” The evidence offered in the present case concerned subsequent sexual behavior. Moreover, by its express terms the rule applies to prosecutions for sexual assault, aggravated sexual assault, and attempts to commit those offenses. Appellant was on trial for aggravated kidnapping, in which the aggravating factor was the intent to commit sexual assault. Even though the tendered evidence certainly comes within the spirit of rule 412,1 agree that the rule by its express terms does not apply to evidence of subsequent sexual conduct in an aggravated kidnapping case, and that the court’s exclusion of the evidence cannot be upheld on rule 412’s authority.
. Before the 1975 rape shield law was enacted, the court of criminal appeals allowed introduction of evidence of the complainant’s reputation and specific acts with the defendant and other men.
When the consent of a prosecutrix becomes an issue in a rape case, her reputation for unchastity may be shown as well as specific acts of unchastity between the prosecutrix and others are generally admissible.
Burton v. State, 471 S.W.2d 817, 821 (Tex.Crim.App.1971). In 1975 the penal code was amended to allow such evidence only after a balancing decision by the trial court. See TEX.PEN.CODE § 21.13, renumbered as § 22.065 in 1983, repealed by Texas Rules of Criminal Evidence, eff. Sept. 1, 1986. See Allen v. State, 700 S.W.2d 924 (Tex.Crim.App.1985) (applying § 22.065 and upholding exclusion of evidence of victim’s extraneous sexual conduct).
. Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes
(a)Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of Accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;
(2) Character of Victim. Subject to Rule 412, evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of peaceable character of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(3) Character of Witness. Evidence of the character of a witness, as provided in Rules 607, 608 and 609.
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided, upon timely request by the accused, reasonable notice is given in advance of trial of intent to introduce the State's case in chief such evidence other than that arising in the same transaction.
(c) Character Relevant to Punishment. In the penalty phase, evidence may be offered by an accused or by the prosecution as to the prior criminal record of the accused. Other evidence of his character may be offered by an accused or by the prosecution. Nothing herein shall limit provisions of Article 37.071, Code of Criminal Procedure.
Rule 405. Methods of Proving Character
(a) Reputation or Opinion. In all cases in which evidence of character or trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. Provided however that in order to be competent to testify concerning the character or trait of character of the accused, a witness must, pri- or to the date of the offense, have been substantially familiar with the reputation of the accused. In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.
(b) Specific Instances of Conduct. In cases in which character or trait of character of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of his conduct.
. The subsequent history opinions concerned evidence of future dangerousness at the penalty phase of a capital murder case and have no effect on the proposition for which I cite Bennett.