MEMORANDUM OPINION
Nos. 04-11-00522-CR & 04-11-00523-CR
Isauro SOLIS, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 83rd Judicial District Court, Val Verde County, Texas
Trial Court Nos. 11,625CR & 11,626CR
Honorable Carl Pendergrass, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: September 5, 2012
AFFIRMED
Isauro Solis, Jr. was convicted by a jury of multiple counts of aggravated sexual assault
and sexual assault of his two nephews, M.C. and F.C. 1 The assaults began when F.C. and M.C.
were eight and seven years old, respectively, and continued for a period of ten years. Solis
presents six issues on appeal challenging the jury charge, the failure to require an election by the
1
The indictment in trial court cause number 11,625CR contained three counts charging Solis with offenses
involving F.C.; however, the State elected to proceed on only two of the counts. The indictment in trial court cause
number 11,626CR contained six counts charging Solis with offenses involving M.C. The jury found Solis guilty of
both counts involving F.C. and five counts involving M.C.
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State, the admissibility of certain evidence, and a restriction placed on cross-examination of the
victims. We affirm the trial court’s judgment.
JURY CHARGE: APPLICATION PARAGRAPHS
In his first issue, Solis contends the jury charge contained “no application or a defective
application of the law to the facts of the case.”
“The meaning of a jury charge must be taken from the whole charge, and jurors are not
authorized to return a verdict except under those conditions given by the application paragraph of
the charge.” Wingo v. State, 143 S.W.3d 178, 190 (Tex. App.—San Antonio 2004), aff’d, 189
S.W.3d 270 (Tex. Crim. App. 2006). “The application paragraph applies the law to the facts,
and asks an ultimate question of the jury about whether the defendant is guilty.” Id. “A jury
charge is adequate if it either contains an application paragraph specifying all of the conditions to
be met before a conviction [ ] is authorized, or contains an application paragraph authorizing a
conviction under conditions specified by other paragraphs of the jury charge to which the
application paragraph necessarily and unambiguously refers, or contains some logically
consistent combination of such paragraphs.’” Id. (quoting Plata v. State, 926 S.W.3d 300, 302
(Tex. Crim. App. 1996), overruled on other grounds, Malik v. State, 953 S.W.2d 234 (1997)).
In this case, the jury charge initially quotes each count of the two indictments verbatim
before setting forth the abstract portion of the charge. The application paragraphs of the charge
then provide:
Now, therefore, bearing in mind the foregoing definitions and instructions,
you are to consider separately and distinctly each count as presented in each
indictment individually before proceeding to the next count in the indictment.
If you believe from the evidence beyond a reasonable doubt that the
defendant, ISAURO SOLIS, JR., in the County of Val Verde, the State of Texas,
did then and there commit the offense as alleged in Count 1 and/or Count 2 and/or
Count 3 and/or Count 4 of the indictment, in Cause No. 11,626, you will find the
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defendant “Guilty” of the offense(s) of Sexual Assault and so say by your verdict.
If, however, you have a reasonable doubt thereof, you will find the defendant
“Not Guilty” of the offense of Sexual Assault and so say by your verdict.
If you believe from the evidence beyond a reasonable doubt that the
defendant, ISAURO SOLIS, JR., in the County of Val Verde, the State of Texas,
did then and there commit the offense as alleged in Count 5 and/or Count 6 of the
indictment, in Cause No. 11,626, you will find the defendant “Guilty” of the
offense(s) of Aggravated Sexual Assault and so say by your verdict. If, however,
you have a reasonable doubt thereof, you will find the defendant “Not Guilty” of
the offense of Aggravated Sexual Assault and so say by your verdict.
If you believe from the evidence beyond a reasonable doubt that the
defendant, ISAURO SOLIS, JR., in the County of Val Verde, the State of Texas,
did then and there commit the offense as alleged in Count 1 of the indictment in
Cause No. 11,625, you will find the defendant “Guilty” of the offense(s) of
Sexual Assault and so say by your verdict. If, however, you have a reasonable
doubt thereof, you will find the defendant “Not Guilty” of the offense of Sexual
Assault and so say by your verdict.
If you believe from the evidence beyond a reasonable doubt that the
defendant, ISAURO SOLIS, JR., in the County of Val Verde, the State of Texas,
did then and there commit the offense as alleged in Count 2 of the indictment, in
Cause No. 11,625, you will find the defendant “Guilty” of the offense(s) of
Aggravated Sexual Assault and so say by your verdict. If, however, you have a
reasonable doubt thereof, you will find the defendant “Not Guilty” of the offense
of Aggravated Sexual Assault and so say by your verdict.
Although application paragraphs typically recite the factual allegations from the
indictment, a jury charge is adequate if the application paragraph authorizes a conviction “under
conditions specified by other paragraphs of the jury charge to which the application paragraph
necessarily and unambiguously refers.” Id. In this case, the application paragraphs necessarily
and unambiguously refer to the indictment counts which were quoted in the jury charge
verbatim. By quoting the indictment counts, the application paragraphs properly “appl[ied] the
law to the facts and ask[ed] an ultimate question of the jury about whether [Solis was] guilty” on
each separate count. Id. Accordingly, the application paragraphs were not erroneous, and
Solis’s first issue is overruled.
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JURY UNANIMITY
In his second issue, Solis argues that the trial court erred in submitting the separate
offenses disjunctively, “thereby running afoul of the unanimous verdict rule.” Solis contends
that by submitting the different counts of each indictment in “and/or” fashion, the jury was not
required to unanimously agree on each count. We disagree.
Jury unanimity is required in all criminal cases. Pizzo v. State, 235 S.W.3d 711, 714
(Tex. Crim. App. 2007). “Unanimity ensures that all jurors reach a consensus on the same act
for a conviction.” Id.
The jury charge instructed the jury to consider “separately and distinctly each count as
presented in each indictment individually before proceeding to the next count in the indictment.”
Unlike the verdict form in Francis v. State, 36 S.W.3d 121, 122-23,125 (Tex. Crim. App. 2005),
which Solis cites in his brief, separate verdict forms were submitted as to each count in the
instant case. See Martinez v. State, 225 S.W.3d 550, 555 (Tex. Crim. App. 2007) (noting
simplest way to ensure jury unanimity is to submit separate verdict forms). Finally, the jury was
instructed their verdict “must be by a unanimous vote of all members of the jury.” Because the
jury charge required the jury to reach a unanimous verdict as to each separate count, Solis’s
second issue is overruled. 2
ELECTION BY STATE
In his third issue, Solis contends the trial court abused its discretion by failing to require
the State to elect which act of intercourse it intended to rely upon for a conviction in each count.
2
Contrary to Solis’s argument in his reply brief, the jury’s note, asking “What happens if we are not able to reach a
unanimous vote on (1) count of the charges?” indicates that the jury understood a unanimous vote was necessary on
each separate count. In response, the trial judge directed the jury to the paragraph of the charge stating, “Now,
therefore, bearing in mind the foregoing definitions and instructions, you are to consider separately and distinctly
each count as presented in each indictment individually before proceeding to the next count in the indictment.” As
previously noted, the jury acquitted Solis of one count involving M.C.
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The record does not, however, reflect that Solis requested the State to make such an election.
Absent a motion or request by the defendant, the State is not required to make an election.
O’Neal v. State, 746 S.W.2d 769, 771 n.3 (Tex. Crim. App. 1988); Demps v. State, 278 S.W.3d
62, 67 n.4 (Tex. App.—Amarillo 2009, pet. ref’d). Accordingly, Solis’s third issue is overruled.
EXTRANEOUS OFFENSE LIMITING INSTRUCTION
In his third issue, Solis contends that the trial court erred in failing to instruct the jury
regarding the burden of proof concerning extraneous offenses at the punishment phase of the
trial. The State acknowledges that the trial court is required to sua sponte provide instructions on
the burden of proof for extraneous offenses offered at the punishment stage. Huizar v. State, 12
S.W.3d 479, 484 (Tex. Crim. App. 2000). The State asserts, however, that no extraneous
offenses were offered at the punishment phase of trial to trigger the duty to provide the
instruction. Solis replies that the State re-offered all of the evidence introduced during the guilt-
innocence phase of trial at the punishment stage.
The record clearly reflects that all of the evidence admitted during the guilt/innocence
phase of trial was re-admitted during the punishment phase of trial. Because the evidence
admitted during guilt/innocence included evidence of extraneous offenses, the trial court erred in
not instructing the jury regarding the applicable burden of proof. We review whether Solis was
harmed by the error under the standard set out in Almanza v. State, 686 S.W.2d 157 (Tex. Crim.
App. 1985). See Huizar, 12 S.W.3d at 484-85.
Because Solis did not object to the omission of the instruction in the charge, the record
must establish “egregious harm,” which requires a showing that Solis was denied a fair and
impartial trial, in order for Solis to be entitled to a reversal. Huizar v. State, 29 S.W.3d 243, 251
(Tex. App.—San Antonio 2000, pet. ref’d). “The actual degree of harm must be assayed ‘in
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light of the entire jury charge, the state of the evidence, including contested issues and weight of
probative evidence, the argument of counsel and any other relevant information revealed by the
record of the trial as a whole.’” Id. (quoting Almanza, 686 S.W.2d at 171).
In this case, the testimony presented for the first time during the punishment phase of trial
spanned only about thirty pages of the reporter’s record. The charge given during the
guilt/innocence phase of trial instructed the jury regarding the burden of proof applicable to
extraneous offenses, so the jury was aware of the burden. Although evidence of the extraneous
offenses was re-admitted by the inclusion of the prior testimony, no additional extraneous
offense evidence was admitted during the punishment phase of trial. Moreover, in referring to
the prior testimony regarding the extraneous offenses, the prosecutor informed the jury that it
could consider that testimony for purposes of punishment “just as long as you believe it to be
true beyond a reasonable doubt.” Based on the record as a whole, we hold that the omission of
the instruction from the jury charge did not result in “egregious harm.” Accordingly, Solis’s
fourth issue is overruled.
EXPERT TESTIMONY
In his fifth issue, Solis contends the trial court abused its discretion in admitting Chester 3
Harris’s testimony that Solis’s sexual abuse of M.C. was the root cause of M.C.’s substance
abuse problem. Solis asserts that Harris was not qualified to give the testimony.
A witness may be qualified as an expert based on knowledge, skill, experience, training
or education. TEX. R. EVID. 702. To be qualified to testify as an expert, the witness must have a
sufficient background in a particular field and that background must “fit” the subject matter of
his testimony. Vela v. State, 209 S.W.3d 128, 131-33 (Tex. Crim. App. 2006). “An expert must
possess some additional knowledge or expertise beyond that possessed by the average person,
3
Although the State called the witness Chad Harris, he testified that his name is Chester Harris.
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but the gap need not necessarily be monumental.” Davis v. State, 313 S.W.3d 317, 350 (Tex.
Crim. App. 2010). “Because the possible spectrum of education, skill, and training is so wide, a
trial court has great discretion in determining whether a witness possesses sufficient
qualifications to assist the jury as an expert on a specific topic in a particular way.” Rodgers v.
State, 205 S.W.3d 525, 527-28 (Tex. Crim. App. 2006). We review the trial court’s admission of
expert testimony for abuse of discretion, and “[i]f the trial court’s ruling is within the zone of
reasonable disagreement, then the trial court’s ruling will be upheld.” Sexton v. State, 93 S.W.3d
96, 99 (Tex. Crim. App. 2002).
At the time of trial, Harris had been employed as a substance abuse counselor for four
years although he had only been a counselor for about a year and a half at the time M.C. was
being counseled. In training for his position, Harris completed a substance abuse course with the
Institute of Chemical Dependency Studies, a 300-hour practicum, and over 6,000 hours of
internship. Harris also has an associate’s degree in child clinical psychology. Harris had
counseled close to 400 patients, and his clients are 13 to 17 years old. Approximately ten
percent of the patients Harris had counseled had a history of physical or sexual abuse, and Harris
testified that he had received additional training on physical and sexual abuse. Harris stated that
he had referred at least 12 to 16 clients to Child Protective Services after identifying sexual abuse
as an underlying cause of their drug abuse problem. Harris testified that discovering the
underlying root core of a client’s drug addiction is a necessary step in treating each client. Based
on this evidence, we hold the trial court did not abuse its discretion in finding Harris qualified to
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testify that sexual abuse was the root cause of M.C.’s substance abuse problems. 4 Solis’s fifth
issue is overruled.
CROSS-EXAMINATION
In his final issue, Solis contends the trial court erred in preventing him from asking F.C.
if another person who babysat him was convicted of sexual assault. From the briefing, it appears
that the questioning related to sexual abuse of F.C. and M.C. by their godfather. Solis asserts
that the cross-examination could have revealed if F.C. and M.C. were “confusing [Solis’s] acts
with those perpetrated by their godfather.”
Although a defendant’s right to cross-examination is constitutionally safeguarded, the
right is not absolute. Smith v. State, 314 S.W.3d 576, 588 (Tex. App.—Texarkana 2010, no
pet.). “The trial court retains great latitude in imposing reasonable limitations on cross-
examination” and “may properly limit the scope of cross-examination to prevent harassment,
prejudice, confusion of the issues, harm to the witness, and repetitive or marginally relevant
interrogation.” Id. We review a trial court’s decision to limit cross-examination under an abuse
of discretion standard. Id.
In the instant case, Solis wanted to cross-examine F.C. about prior abuse by his godfather
in an effort to determine if F.C. was confusing the sexual abuse by his godfather with Solis’s
acts. The State objected because F.C. was visibly upset in testifying and requiring him to
recount other acts of sexual abuse would be harmful to F.C. F.C.’s testimony was clear with
regard to Solis being the perpetrator of the acts; accordingly, the trial court did not abuse its
discretion in limiting the cross-examination given the potential harm to F.C. See id.
4
We note that Harris’s testimony regarding the root cause of M.C.’s substance abuse problems was not central to the
resolution of the case. See Rodgers, 205 S.W.3d at 528 (noting expert’s qualifications are more important when the
testimony is more dispositive of the disputed issues).
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Even assuming the trial court erred in refusing to allow Solis to question F.C. about the
prior abuse, the error would be reversible only if the evidence excluded from cross-examination
would have made any significant impact upon the minds of an average jury considering the
context of the trial as a whole. Davis v. State, 203 S.W.3d 845, 850 (Tex. Cim. App. 2006). In
deciding that question, the reviewing court must determine whether it is convinced, beyond a
reasonable doubt, that the fact-finding process was reliable even if the improperly restricted or
excluded evidence is factored into the analysis. Id. at 851. In this case, evidence that F.C. was
molested by his godfather was introduced into evidence through the transcript of his interview
with the investigating detective. Moreover, defense counsel questioned the investigating
detective about the prior molestation at length. Finally, although F.C. and M.C. were reluctant to
recount the acts of sexual abuse perpetrated on them during their testimony, neither expressed
any confusion about the acts having been perpetrated by Solis. Accordingly, any error by the
trial court in restricting the cross-examination of F.C. with regard to this issue was harmless.
Solis’s sixth issue is overruled.
CONCLUSION
The judgments of the trial court are affirmed.
Catherine Stone, Chief Justice
DO NOT PUBLISH
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