OPINION ON STATE’S MOTION FOR REHEARING
MILLER, Judge.This Court granted one ground of rehearing in this cause to consider the State’s contention that “the Court erred in holding that the search of the Peterbilt tractor-truck was illegal because the search was legally conducted pursuant to a valid consent to search of a third party.” The State asserts the Court “recognized and raised the issue of third party consent” in footnote 7 of its opinion on original submission, but made no disposition of the issue. In this motion for rehearing, the State contests for the first time appellant’s standing to assail the search of the truck and asserts that the third party consent obtained from the owner of the trucking company was valid, thereby making the search a legal one. The State further asserts that its failure to contest the appellant’s standing in the trial court does not preclude it from raising this issue for the first time on direct appeal. Appellant contends the State’s position is not properly before this Court.
In footnote 7, on original submission, the majority opinion stated, at p. 129:
Notwithstanding that the owner of the Jewett Scott Truck Lines, Inc., executed a consent to search, the State does not contest the appellant’s standing to assail the search of the Peterbilt tractor in question, nor will we do so sua sponte. Nor does the State claim that this alone was sufficient to constitute a legal search.
By this footnote, we merely “recognized” that the State had not “raised” the issue of third party consent in its reply brief and that is why it was not addressed in the opinion on original submission. Acting upon this footnote, in its motion for rehearing, the State has now raised and argued the third party consent issue as a legal basis for the search which this Court held on original submission was fatally tainted by the appellant’s illegal arrest. Thus, we first determine whether the third party consent issue is properly before us for review.
In Wilson v. State, 692 S.W.2d 661 (Tex.Cr.App.1984) (Opinion on State’s Motion for Rehearing), the Court held that the State could challenge for the first time on appeal a defendant’s standing to complain of an illegal search or seizure. In Wilson, the State raised the standing issue for the first time in the court of appeals, and, after addressing the standing issue and the merits of the search issue, the court of appeals affirmed the appellant’s conviction. On petition to this Court, we determined that there was no general rule prohibiting the State from raising the issue of standing for the first time on appeal. The implicit hold*141ing of Wilson is that the “first time on appeal” means “direct appeal”, and not on “petition for discretionary review.” Cf. Angel v. State, 740 S.W.2d 727 (Tex.Cr.App.1987).
The present cause, of course, has not been considered by the court of appeals because the conviction here was for capital murder and the death penalty was assessed as punishment, making direct appeal to this Court automatic. Art. 37.071(h), V.A.C.C.P. As we noted, the State did not raise third party consent on original submission on direct appeal, but rather raised the issue on motion for rehearing on direct appeal. Thus, the question remains whether the State may raise the issue of third party consent for the first time in this motion for rehearing.
Rule 74 of the Texas Rules of Appellate Procedure governs the preparation and filing of briefs in direct appeals to this Court. See Tex.R.App.Pro. 210(b). In Rochelle v. State, 791 S.W.2d 121 (Tex.Cr.App.1990), we discussed the interplay of the various appellate procedural rules and, pertinent to this ground for rehearing, determined the clear import of Rule 74(p) was “that all points of error sought to be reviewed and all replies thereto are to be included in the original brief.” Id. at 124. (emphasis added). We then noted further that supplemental briefs “bringing new matters to the appellate court may be filed later, but only ‘as justice requires’ or ‘in the interest of justice’ and under reasonable terms imposed by the [appellate] court.” Id. Whether to discuss new matters raised in a supplemental brief is left to the sound discretion of the court. Id. While recognizing these principles specifically applied to briefs on original submission, we found them equally applicable to a motion for rehearing. Rochelle, 791 S.W.2d at 124, citing Tallant v. State, 742 S.W.2d 292 (Tex.Cr.App.1987). Thus, whether to consider a new ground raised for the first time on a motion for rehearing is a decision left to the sound discretion of the court.
Clearly, Rochelle concerned the orderly and timely presentation of issues on direct appeal to the court of appeals. We find, however, that the principles announced in that decision are no less applicable to the presentation of issues on direct appeal to this Court. Thus, it is left to our sound discretion to determine whether we will consider a new ground raised for the first time on motion for rehearing. In making this decision, we look to the same circumstances which compel an appellate court to accept a supplemental brief raising a new ground for consideration, viz: “as justice requires” or “in the interest of justice” and under reasonable terms imposed by the court. Rochelle, 791 S.W.2d at 124, 125. It is with those circumstances in mind that we grant the State’s motion for rehearing. A review of the facts pertinent to this ground for rehearing is therefore appropriate.
Appellant filed three motions to suppress the evidence seized during the search following his arrest on the material witness attachment and while he was incarcerated in Potter County. A pretrial hearing was held on the motions, and the State, in its brief on motion for rehearing, has directed us to testimony in the record of the pretrial hearing and the trial which supports the validity of the third party consent. At the pretrial hearing, Deputy Dennis Horn testified he visited with Jewett Scott, the owner of the trucking company, on October 17, 1985, and obtained his voluntary consent to search the truck appellant was driving. Scott told Horn he was the owner of all the trucks that the company operated. The consent form was admitted into evidence at the hearing and also later at trial. Jewett Scott testified at trial that the truck appellant was driving was the property of “our corporation.” Jewett’s son, Stephen Scott, also testified at trial that appellant was assigned to “our tractor No. 52” when he (appellant) was an employee of the company in September/October 1985. On the basis of this testimony, the State contends Jewett Scott, as owner of the tractor-truck in question, had sufficient authority and control over the vehicle to give a valid consent to search.
We find further testimony in the record of the trial which is illuminative of the *142employment relationship between the trucking company and appellant. According to Jewett Scott, each driver who works for him is given a manual of regulations to follow and a company credit card with which to purchase fuel while on the road. Daily records of the credit card charges for fuel are made at the corporate office. Moreover, Stephen Scott testified appellant was paid a percentage of the gross revenue generated by him while driving the truck for the company. Stephen also stated that drivers were occasionally allowed to park their rigs at home, but only with company consent.
In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1973), the Supreme Court reiterated the principle from Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), that the search of property, without warrant or probable cause, is valid under the Fourth Amendment with proper consent voluntarily given. The question in Mat-lock, 415 U.S. at 166, 94 S.Ct. at 990, was whether the voluntary consent of a third party was legally sufficient. The Supreme Court concluded that when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it may show that consent was “obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” Matlock, 415 U.S. at 171, 94 S.Ct. at 993.
The Court explained the concept of “common authority” in a footnote. Common authority is “not to be implied from the mere property interest a third party has in the property.” Matlock, 415 U.S. at 171, n. 7, 94 S.Ct. at 993, n. 7. See e.g. Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (landlord could not validly consent to search of house he had rented to another); and Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (night hotel clerk could not validly consent to search of customer’s room). A legal property interest is not sufficient or necessary because common authority derives from the “mutual use of the property by persons generally having joint access or control for most purposes ...” Id. Such mutual use leads to the conclusion that the third party has “the right to permit inspection [of the property] in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” Id. See also Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (defendant assumed the risk that cousin would allow someone to search bag which he shared with cousin and allowed cousin to use).
Relying on these principles discussed in Matlock, the Fourth Circuit addressed the third party consent issue in a fact situation similar to the case at bar. In United States v. Carter, 569 F.2d 801 (4th Cir.1977), cert. denied, 435 U.S. 973, 98 S.Ct. 1618, 56 L.Ed.2d 66 (1978), the defendant was an employee of an oil company, and his duties involved servicing oil burners. In connection with his duties, he was assigned a van which belonged to the oil company. Carter, the defendant, had no authority to use the van for any purpose not connected with oil company business, but he was allowed to take the van home in the evening. Carter was a suspect in a bank robbery in which an oil company van was involved. The FBI obtained the consent of Escann, the owner of the oil company, to search the van driven by Carter. On appeal, Carter challenged the legality of the search of the van and subsequent seizure of a weapon.
The Fourth Circuit upheld the search on the basis of the consent given by the owner of the van,1 although the court “recognize[d] the fact that Escann owned the truck[2] may not be alone sufficient ground to justify his consent to the search ...” Carter, 569 F.2d at 804. Escann’s ownership of the van was significant, however, because it formed the basis of the relationship between him and the defendant, and because of that relationship, “Carter could not expect to use the vehicle free *143from inspection by either his employer or by the police acting with his employer's consent.” Id. (emphasis added). The facts of Carter’s employment indicated he used the van solely at the owner’s sufferance. Thus, Escann “possessed common authority over or sufficient relationship to” the van, and the search was justified. Id. at 803, quoting Matlock, 415 U.S. at 171, 94 S.Ct. at 993.
This Court likewise adheres to the rule that third persons can give valid consent to search when they exercise control over and have authority to use the premises being searched. Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973). Lowery concerned a warrantless search of an apartment pursuant to the consent of a seventeen year old woman who apparently was a resident. The Court said the woman had “the capacity to consent” to the search only if she had the right to use and occupy the apartment. 499 S.W.2d at 166. The only evidence of her right to use the apartment was her presence and the presence of women’s clothing and “other items” in the apartment. The Court found this evidence was insufficient to establish the requisite capacity to consent to the search. Id. See also Swinney v. State, 529 S.W.2d 70 (Tex.Cr.App.1975).
This Court expressly applied the rule from Lowery, regarding third party consent, to automobiles in Sharp v. State, 707 S.W.2d 611, 617 (Tex.Cr.App.1986) (no reason why rule for homes and buildings should not apply to automobiles). See also Swinney v. State, 529 S.W.2d 70 (Tex.Cr.App.1975) (wife’s consent to search her car which defendant was driving and their house was valid). Sharp too is factually similar to the present cause. In Sharp, a capital murder case, the appellant challenged the legality of the warrantless search of his company truck which was conducted pursuant to his supervisor’s consent. The appellant’s supervisor testified that he had “unconditional authority to assign or reassign trucks to all the tool pushers under his supervision, one of whom was appellant.” 707 S.W.2d at 617. The Court found this degree of control exhibited by the supervisor was sufficient to establish a valid third party consent. Id.
On the basis of Matlock, 415 U.S. 164, 94 S.Ct. 988, Carter, 569 F.2d 801,3 and Sharp, 707 S.W.2d 611, we are persuaded to conclude that the third party consent to search the Peterbilt truck given by Jewett Scott was valid and justified the search. The record clearly indicates that appellant was an employee of Scott, who was the owner of the truck in question. Appellant was assigned a specific truck to drive for the corporation, used a company credit card to pay for his fuel while on the road, and received his paychecks from the company. These facts indicate the supervisory authority and control that Jewett Scott, as owner of the trucking line, had over appellant and the truck he drove. The fact that appellant was allowed occasionally to park his rig at his residence in the evenings is not dispositive because appellant could only do so with company permission. As a result of this employment relationship, appellant could not “expect to use the [truck] free from inspection by either his employer or by the police acting with his employer’s consent.” United States v. Carter, 569 F.2d at 804.
Based on the facts concerning the consent given that were narrated in the opinion on original submission, we conclude the State has adequately shown that the consent to search was obtained from a third party who possessed common authority over and a sufficient relationship to the vehicle sought to be inspected. Therefore, the search of the Peterbilt tractor-truck was legal. Accordingly, the State’s motion for rehearing is granted, and appellant’s first four points of error, addressed on original submission, are overruled. Therefore, we now will consider appellant’s remaining points of error which were not addressed on original submission.
*144In his fourteenth and fifteenth points of error, argued together, appellant asserts the trial court erred in allowing a witness to testify as an expert to the legality of the material witness attachment issued for his arrest. We have reviewed these two points of error and find no merit. Thus, these two points of error are overruled.
In his sixteenth point of error, appellant contends the trial court reversibly erred when it allowed his wife to testify for the State at both stages of his trial in violation of the husband-wife privilege. Besides filing a motion to suppress based on the husband-wife privilege, appellant strenuously objected numerous times to his wife’s testimony at both stages of the trial. At a pretrial hearing on appellant’s motion to suppress, appellant contended the privilege as stated in Art. 38.11, V.A.C.C.P. (repealed), applied to this cause because the acts and conversations which were the basis of his wife’s testimony occurred prior to September 1,1986, the effective date of the Texas Rules of Criminal Evidence, specifically Rule 504 which replaced Art. 38.11.4 In response, the State asserted Rule 504 removed the disqualification of the spouse as a witness. The prosecutor recognized that communications of a confidential nature could not be brought out, but replied the State did not intend to elicit that type testimony. The prosecutor stated he “[did] intend to call the wife as a witness and have her testify as to any and all things she observed, any action and conduct and things of that sort, that are of a nontesti-monial nature or noncommunicative nature.” The trial judge overruled the motion to suppress and all subsequent objections to the wife’s testimony.
The threshold issue confronting this Court is which privilege rule applies to this cause. The wife’s testimony concerned events occurring prior to September 1,1986, the evidence rules became effective September 1, 1986, and appellant’s trial began in October of 1986. It is generally recognized by this Court that procedural statutes control litigation from their effective dates and apply to both pending and future actions. See Zimmerman v. State, 750 S.W.2d 194, 202 (Tex.Cr.App.1988), and cases cited therein. In Zimmerman, 750 S.W.2d at 201, the question was the admissibility of a letter pursuant to Art. 38.22, V.A.C.C.P., written by the defendant to his wife while he was in custody. The 1967 version of Art. 38.22, in effect at the time the defendant wrote the letter, precluded its admissibility, while the 1977 version, in effect at the time of trial, allowed for its admissibility. Under the general principle regarding applicability of procedural statutes, as stated above, the 1977 version would have controlled at trial. In Zimmerman, however, there was an exception to this general rule because the amendatory act providing for the 1977 version expressly stated that that act “applie[d] only to statements made on or after the effective date” of the act. Id. at 202. Thus, the 1967 version of Art. 38.22 was applicable at the defendant’s trial.
In the present cause, there is no express provision in the rules of evidence regarding the applicability of the rules to statements made before their promulgation. In the absence of an express intent to the contrary, a procedural statute controls litigation from its effective date. Wilson v. State, 473 S.W.2d 532, 535 (Tex.Cr.App.1971). At the risk of overstating the obvious, a rule of evidence addressing admissibility sets forth a rule of procedure. See e.g. Wilson, 473 S.W.2d at 535 (Art. 38.22 addressing admissibility of oral confessions is rule of procedure). Thus, we conclude Rule 504, in effect at the time of appellant’s trial, controls. Cf. Willard v. State, 719 S.W.2d 595 (Tex.Cr.App.1986) (conviction reversed for violation of Art. 38.11 in effect at time of trial; in event of retrial, after effective date of rules of evidence, Rule 504 applies).
We may now address the merits of appellant’s point of error. Appellant, however, has limited his argument to the law *145and authorities pursuant to Art. 38.11, which we have held inapplicable. Yet, a comparison of Art. 38.11 and Rule 504 is instructive in addressing this point of error. Former Art. 38.11 provided that, during the existence of the marital relationship, a spouse was incompetent to testify adversely to an accused spouse. Goode, Wellborn, and Sharlot, 33 Texas Practice, Guide to the Texas Rules of Evidence: Civil and Criminal, § 504.6 (1988). Article 38.11 provided in relevant part that:
Neither husband nor wife shall, in any case, testify as to communications made by one to the other while married. Neither husband nor wife shall, in any case, after the marriage relation ceases, be made witnesses as to any communication made while the marriage relation existed except in a case where one or the other is on trial for an offense and a declaration or communication made by the wife to the husband or the husband to the wife goes to extenuate or justify the offense. The husband and wife may, in all criminal actions, be witnesses for each other, but except as hereinafter provided, they shall in no case testify against each other in a criminal prosecution.
Evidence Rule 504 abandoned this marital disqualification. Rule 504(2)(a) states in pertinent part:
(2) Privilege not to be called as a witness against spouse.
(a) General rule of privilege. The spouse of the accused has a privilege not to be called as a witness for the state. This rule does not prohibit the spouse from testifying voluntarily for the state, even over objection by the accused ...
With the promulgation of Rule 504, the absolute disqualification of former Art. 38.11 was removed and replaced with a privilege to not be called as a witness for the State. Johnson v. State, 803 S.W.2d 272 (Tex.Cr.App.1990). This privilege may be asserted only by the defendant’s spouse, and the defendant has no power to prevent his or her spouse from testifying for the State. Id. at 281. Thus, a spouse may testify even over the defendant spouse’s objection.
In the trial of the present cause, the State called Elneta Boyle, appellant’s wife, to testify in its behalf at both stages of this trial. Although appellant strenuously objected, Mrs. Boyle did not assert her “privilege not to be called as a witness for the state.” There is nothing in the record which even suggests Mrs. Boyle did not voluntarily take the stand for the State. We therefore hold, under Rule 504(2)(a), the trial court did not err in permitting Mrs. Boyle to testify. Appellant’s sixteenth point of error is overruled.
In the seventeenth point of error, appellant asserts the trial court erred in permitting the deceased’s mother to testify as to the victim’s identity. Appellant argues the mother was called solely for the purpose of having the witness “breakdown” before the jury. In the eighteenth point of error, appellant contends the trial court erred in admitting into evidence a crude cartoon. We have reviewed both these points and find that neither has merit. Thus, points of error seventeen and eighteen are overruled without further discussion.
For the sake of brevity, appellant argues three points of error together, each of which addresses the exclusion of evidence offered by the appellant during guilt/innocence. In point of error twenty-two, appellant contends the trial court erred in excluding the victim’s diary; and in points of error twenty-three and twenty-four, appellant complains of the exclusion of testimony from two witnesses, Roy McCarty and Gary Casida respectively, regarding prior sexual acts with the deceased. Appellant claims the evidence is admissible under Rule 402, Tex.R.Crim.Evid., because it is relevant to the issue of consent and because its probative value outweighs “the danger of unfair prejudice due to its admissibility pursuant to Texas Rules of Evidence, Rule 412(b)(3), as it was necessary to rebut and explain the scientific or medical evidence offered by the State.”
In the indictment, the State charged appellant with two counts of capital murder, to-wit: murder in the course of aggravated sexual assault, and murder in the course of kidnapping, of which the former is perti*146nent to this discussion.5 During trial, the doctor who performed the autopsy on the deceased testified he could not give an opinion as to whether the deceased had been sexually assaulted because he did not take any smears from her mouth. Additionally, an FBI serologist testified he conducted tests to identify blood and semen from the deceased’s vagina and thigh, and neither was identified. The serologist also conducted tests on swabs taken from the victim’s mouth, and he identified semen on them. However, the serologist could not testify the semen came from appellant, nor was he qualified to testify whether the semen was there as a result of consensual sex or a sexual assault.
The appellant called the victim’s sister, Margaret Rose Smith, to testify at trial. Out of the jury’s presence and through a bill of exception, defense counsel questioned Smith regarding entries in her sister’s diary which discussed several male companions. One specific entry stated she had sex several times during August and September of 1985 with “Perry B.”, who was a former boyfriend of the victim. Defense counsel asked Smith about six other men mentioned in the diary, but with no other reference to sexual encounters. Finally, defense counsel asked Smith if her sister, the victim, “ever engaged voluntarily or consentually (sic) in oral sex with any of these individuals or with any other individuals”, to which Smith answered she did not know. That testimony concluded the first bill of exception.
The State objected to the admission of this evidence on the ground the defense had shown “absolutely no relevance.” The State pointed out the lack of testimony regarding the temporal proximity of any sexual encounters and the victim’s death, and the lack of testimony that the victim had in fact engaged in oral sex. The trial judge sustained the State’s objection.
Out of the presence and hearing of the jury, the defense also presented the testimony of the two witnesses, McCarty and Casida.6 McCarty testified he had met the victim at a lake party the previous summer (1985). After knowing the victim only two to four hours, McCarty and the victim had oral sex in a friend’s Corvette. According to McCarty, the victim initiated this sexual encounter, which lasted only a few minutes due to the unexpected presence of a park ranger. After cross-examination by the State, but without formal objection, the trial judge denied admissibility of McCarty’s testimony. Casida then testified to substantially the same facts. He had also met the victim at the lake where, after knowing her for about “half a day”, they spent the night together at a lodge. Casi-da stated that he had had three sexual encounters with the victim, each including oral sex. According to Casida, these encounters occurred from August of 1985 to approximately two to three weeks before the victim’s death. Admission of this testimony was also denied by the trial judge.
In these three points of error, appellant urges the diary and the testimony from the two defense witnesses were admissible to show the semen found in the victim’s mouth resulted from a consensual sexual encounter between appellant and the victim and to rebut the medical evidence from the autopsy doctor and the serologist. The applicable statute is Rule 412 of the Texas Rules of Criminal Evidence which provides:
Rule 412. Evidence of Previous Sexual Conduct
(a) In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.
(b) In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific in*147stances of an alleged victim’s past sexual behavior is also not admissible, unless:
(1) such evidence is admitted in accordance with paragraphs (c) and (d) of this rule;
(2) it is evidence (A) that is necessary to rebut or explain scientific or medical evidence offered by the state; (B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged; (C) that relates to the motive or bias of the alleged victim; (D) is admissible under Rule 609 [Impeachment by Evidence of Conviction of Crime]; or (E) that is constitutionally required to be admitted; and
(3) its probative value outweighs the danger of unfair prejudice.
(c)If the defendant proposes to introduce any documentary evidence or to ask any question, either by direct examination or cross-examination of any witness, concerning specific instances of the alleged victim’s past sexual behavior, the defendant must inform the court out of the hearing of the jury prior to introducing any such evidence or asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible under paragraph (b) of this rule. The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits nor refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury.
(d) The court shall seal the record of the in camera hearing required in paragraph (c) of this rule for delivery to the appellate court in the event of an appeal.
(e) This rule does not limit the right of the accused to produce evidence of promiscuous sexual conduct of a child 14 years old or older as a defense to sexual assault, aggravated sexual assault, indecency with a child or an attempt to commit any of the foregoing crimes. If such evidence is admitted, the court shall instruct the jury as to the purpose of the evidence and as to its limited use.
Only sections (b), (c), and (d) are relevant to the evidence proffered by the defense in this cause.7 In determining the scope of admissibility of evidence of past sexual conduct under this rule, it is helpful to review the predecessor statutes addressing the same.
Section 21.13 of the Penal Code was the first codified “rape shield” provision in this State, and it was later modified slightly and recodified as Section 22.065, of the Penal Code.8 Acts 1983, 68th Leg., pp. 5311, *1485315, ch. 977, § 4, eff. Sept. 1, 1983. See also 33 Texas Practice, Guide to the Texas Rules of Evidence: Civil and Criminal, § 412.1, p. 210. The statute was largely a procedural device. See Ex parte Rose, 704 S.W.2d 751, 760 (Tex.Cr.App.1984) (Clinton, J., concurring) (Section 22.065 essentially a procedural device to shield testifying victim of sexual abuse — a sort of statutory order in limine). Section 22.065(b) required the defendant to inform the trial court that he planned to introduce evidence of the complainant’s previous sexual conduct, upon which the trial court had to conduct an in camera hearing to decide whether the evidence was admissible, i.e. it was relevant and its probative value exceeded its prejudicial nature. Rule 412(c) is substantially the same as § 22.065(b) and embraces these procedural provisions.
This Court utilized a two-step test in determining the admissibility of previous sexual conduct evidence under §§ 21.13 and 22.065. See Allen v. State, 700 S.W.2d 924, 929 (Tex.Cr.App.1985), and Pinson v. State, 778 S.W.2d 91, 93-94 (Tex.Cr.App.1989) (citing Allen). First, the trial judge examines the proffered evidence in light of a specific fact at issue in the trial, and then determines if some or all of the proffered evidence is material to that fact. If the trial judge determines the evidence is material, he secondly decides whether its probative value exceeds its prejudicial nature. Allen, 700 S.W.2d at 929; Holloway v. State, 751 S.W.2d 866, 870 (Tex.Cr.App.1988). Texas courts have been reluctant to find prior sexual history evidence to be material. See e.g. Pinson, 778 S.W.2d 91 (victim’s admission of intercourse 48 hours before sexual assault, opinion that defendant ejaculated during assault, and doctor’s testimony regarding non-motile sperm properly excluded); Holloway, 751 S.W.2d 866 (victim’s reputation as common prostitute not material to consent issue); Boutwell v. State, 719 S.W.2d 164 (Tex.Cr.App.1985) (victim’s extraneous sexual conduct irrelevant to nonconsensual offenses under § 21.13); Allen, 700 S.W.2d 924 (prior sexual conduct inadmissible on consent issue); and Capps v. State, 696 S.W.2d 486 (Tex.App.—El Paso 1985, pet. ref’d.) (consent issue alone inadequate to support inquiry into victim’s sexual behavior; evidence victim engaged in sex parties and group sex inadmissible in aggravated rape case).
With the promulgation of Rule 412 came more elaborate substantive terms as to the admissibility of a complainant’s past sexual behavior. Pursuant to section (b)(2), Rule 412 expressly provides for the admissibility of specific instances of an alleged victim’s past sexual behavior but only for certain enumerated purposes. Of course, the probative value of that evidence must outweigh its prejudicial effect to complete the test for admissibility.9 Thus, disregarding the procedural requisites of section (b)(1), we find that the admissibility of past sexual behavior evidence is still subject to a two-part test, viz: (1) the evidence must fall within one of the five enumerated circumstances in Rule 412(b)(2); and (2) its probative value outweighs the danger of unfair prejudice.
A comparison of this two-part test with that employed pursuant to former Penal Code §§ 21.13 and 22.065 indicates that this Court, in promulgating Rule 412, specifically section (b), statutorily defined when evidence of past sexual behavior is “material” to a prosecution for a sexually assaultive offense. Rather than determining materiality on a case-by-case basis, we look to Rule 412(b)(2). With this in mind, we now *149turn to the merits of appellant’s points of error.
Appellant raises two arguments in support of admission of the diary and the testimony from McCarty and Casida. First, appellant argues this evidence of the victim’s past sexual conduct is admissible to show the alleged act of oral sex between them was consensual. In essence, appellant offers this testimony to prove that the victim acted in conformity with this behavior when she was a passenger in his truck. Rule 412(b)(2)(B) provides that specific instances of the victim’s past sexual behavior is admissible if it is evidence of past sexual behavior with the accused and is offered by the accused upon the issue of consent. The rationale for this rule has been succinctly stated:
Comprising [Rule 412(b)(2)(B)] is evidence of the complainant’s past sexual activity with the defendant, if offered to prove consent. While evidence of previous sexual relations with others is ordinarily not probative on the issue of consent, this category recognizes that such behavior between the complainant and the defendant is of greater relevance. The probative value of the evidence flows not from an inference regarding the complainant’s character, but rests instead on the nature of the specific relationship between the complainant and the defendant. Whether its probative value will outweigh the danger of unfair prejudice will depend on a variety of factors, such as the similarity in circumstances and the proximity in time of the previous sexual relations to the alleged assault, (footnotes deleted)
33 Texas Practice, § 412.2, pp. 213-214. Clearly, appellant’s proffered evidence as to the victim’s past sexual conduct did not encompass any acts with him. Thus, this evidence is not material to the consent issue and is not admissible pursuant to Rule 412(b)(2)(B).
Secondly, appellant offers this evidence to show it was not his semen found in the victim’s mouth, since the medical evidence was inconclusive on this point, and thus he could not have sexually assaulted her as alleged. Appellant attempts to show that the victim had a different sexual partner prior to his meeting her. Rule 412(b)(2)(A) permits the admissibility of the victim’s past sexual behavior if the evidence is necessary to rebut or explain scientific or medical evidence offered by the state. We find, however, that the evidence offered by appellant does neither. The victim’s diary indicated she had sex with “Perry B.” sometime in August and September of 1985. Likewise, McCarty stated he had oral sex with the victim in August of 1985, one month prior to this offense. Casida had the more recent sexual encounter with the victim and that instance occurred, at the least, two weeks prior to her death. Without medical evidence that semen could exist for such prolonged periods of time, we find these instances are not sufficiently close in time to the commission of this offense to rebut or explain the State’s evidence. Moreover, in light of appellant’s consent argument, this evidence lacks any probative value. If appellant did in fact have consensual sex with the victim, then whether he was the source of the semen found in the victim’s mouth would no longer be important, as there would be no sexual assault and no need to prove the semen came from some other male. 33 Texas Practice, § 412.2, p. 213.
We hold the trial judge properly excluded the evidence of the victim’s past sexual behavior. Points of error numbers twenty-two through twenty-four are overruled.
In his final five points of error, numbers twenty-five through twenty-nine, appellant complains of jury arguments made by the State. We have reviewed these points and find that they have no merit. Thus, these five points of error are overruled.
In sum, we grant the State’s motion for rehearing, and, finding no merit in appellant’s points of error, we affirm the judgment of the trial court.
CLINTON, J., dissents.. The title to the van was in Calvert Oil Company, of which Escann was the sole owner.
. The court used the terms "van" and "truck” interchangeably.
. We recognize this Court is not bound by decisions of any lower federal court. Stewart v. State, 686 S.W.2d 118, 121 (Tex.Cr.App.1984), cert. denied, 474 U.S. 866, 106 S.Ct. 190, 88 L.Ed.2d 159 (1985), and cases cited therein.
. Appellant also argued on the motion to suppress that application of Rule 504 to the cause, instead of Art. 38.11, amounted to an ex post facto application of the rule. Appellant does not raise this same contention in his brief on appeal, and we therefore do not address it.
. The trial judge instructed the jury at guilt/innocence on both theories, and the jury returned a verdict of guilty on both counts, as we noted on original submission. See slip op. at p 29.
. The testimony was elicited, and the bill was thus made, in the trial judge’s chambers to prevent its availability to the media, thereby protecting the victim.
. Appellant does not claim the trial judge failed to comply with the provisions of subsections (c) and (d). Thus, for purposes of these points of error, we will assume subsection (b)(1) has been complied with and proceed to address the admissibility of this evidence pursuant to subsection (b)(2).
. Penal Code § 22.065, Evidence of Previous Sexual Conduct, provided:
(a) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim's sexual conduct may be admitted under [the sexual assault and aggravated sexual assault sections] of this code only if, and only to the extent that, the judge finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.
(b) If the defendant proposes to ask any question concerning specific instances, opinion evidence, or reputation evidence of the victim’s sexual conduct, either by direct examination or cross-examination of any witness, the defendant must inform the court out of the hearing of the jury prior to asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible under Subsection (a) of this section. The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits nor refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury.
(c) The court shall seal the record of the in camera hearing required in Subsection (b) of this section for delivery to the appellate court in the event of an appeal.
(d) This section does not limit the right of the state or the accused to impeach the credibility by showing prior felony convictions nor the *148right of the accused to produce evidence of promiscuous sexual conduct of a child 14 years old or older as a defense to sexual assault, aggravated sexual assault, or indecency with a child. If evidence of a previous felony conviction involving sexual conduct or evidence of promiscuous sexual conduct is admitted, the court shall instruct the jury as to the purpose of the evidence and as to its limited use.
. Contrast this test in Rule 412 with that contained in Rule 403, which provides:
Rule 403. Exclusion of Relevant Evidence on Special Grounds
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.