                   NO. 07-10-00161-CR; 07-10-00162-CR; 07-10-00163-CR

                                IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL D

                                        APRIL 27, 2012


                             PAULIN SOTO SORIA, APPELLANT

                                              v.

                             THE STATE OF TEXAS, APPELLEE


                   FROM THE 31ST DISTRICT COURT OF GRAY COUNTY;

              NO. 7619, 7620, 7621; HONORABLE STEVEN RAY EMMERT, JUDGE


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                           OPINION

          Appellant Paulin Soto Soria appeals from his jury convictions of aggravated

sexual assault of a child and the resulting sentences of ninety-nine years of

imprisonment. Appellant challenges his convictions through four points of error. We will

affirm.

                                         Background

          Appellant was charged with sexual assault of his daughter F.S.,1 in three

separate indictments, each alleging a different manner of assault.         One indictment

          1
              See Tex. Penal Code Ann. art. 22.021(a)(2)(B) (West 2010).
alleged vaginal penetration, another alleged anal penetration, and the third, contact

between the child’s mouth and appellant’s sexual organ. Appellant plead not guilty and

the three causes were tried together.

       Appellant does not challenge the sufficiency of the evidence to support his

convictions. Accordingly, we will relate only those facts necessary to our disposition of

appellant’s four points of error.

       F.S. is one of appellant’s four children, two boys and two girls. Appellant’s wife,

the mother of the four children, died in 1996 when F.S. was four years old. F.S. was

seventeen years old at the time of trial.        She testified her father began sexually

assaulting her when she was four, not long after her mother died, and continued doing

so until she was eleven. She gave graphic descriptions of instances of vaginal and anal

intercourse, and of appellant’s requiring oral sex of her. According to F.S.’s testimony,

he assaulted her often, eventually two or three times a week. Appellant did not sexually

assault F.S.’s younger sister, nor did any of the other children witness any of his

assaults on F.S.

       Testimony showed appellant’s strong control over the household and his

children.   Both F.S. and her sister testified that appellant treated them differently,

favoring F.S.   Her sister further described F.S. as “fit,” “thin” and “beautiful.”   F.S.

testified appellant often told her she reminded him of her mother. At the same time,

F.S. testified that, as the older daughter, she was made to feel responsible for her

sister, to the point of being punished for her sister’s misdeeds. The “punishment,” she

testified, on at least one occasion involved “rape.”




                                             2
       F.S. first told an aunt, her mother’s sister, of appellant’s assaults in 2004 when

she was eight. She and the other children were removed from the home and lived with

their grandparents for three weeks. The aunt testified appellant told her then that he

had “only touched” F.S. F.S. recanted her story to Child Protective Services (CPS),

however, and the children were returned to their father. F.S. again made an outcry to

the same aunt two years later, leading to interviews of all four children at The Bridge, an

Amarillo child advocacy center, and appellant’s January 2007 indictment. The case was

tried in March 2010.

       Appellant’s position before the jury was that F.S. fabricated her accusations

against him. He told the jury in his opening statement that all the accusations ultimately

were founded on statements made by F.S., and that “this case doesn’t exist except in

the mind of [F.S.]”

                                         Analysis

Admission of Extraneous Wrongs or Acts

       In appellant’s first point of error, he challenges the trial court’s admission of

evidence of extraneous bad acts that came through the testimony of F.S., her sister,

and her brother.      They testified to appellant’s harsh physical discipline, sometimes

described as “beating” his children with a belt buckle. A psychologist testified to F.S.’s

statements to her that appellant had a temper and beat the children as punishment.

F.S.’s sister further testified that appellant withheld food from her out of concern for her

weight, and she “had to steal food from the kitchen” to avoid his punishment.

       Another witness recalled her impression that the children “were thin” when she

met them. She also testified she went to the house in which appellant lived with the

                                             3
children, and found it “dark” with “lots of stuff, lots of stuff everywhere.” She referred

specifically to “lots of can goods in the kitchen,” and also referred to “piles of can

goods.”


         Lastly, appellant complains that the trial court permitted the children’s aunt to

testify appellant and his wife had a “bad” relationship.


         The admission of extraneous bad conduct evidence is reviewed for an abuse of

discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005). If the

decision to admit evidence is within the "zone of reasonable disagreement," there is no

abuse of discretion in its admission. Montgomery v. State, 810 S.W.2d 372, 391

(Tex.Crim.App. 1990) (op. on reh'g); see Osbourn v. State, 92 S.W.3d 531, 537

(Tex.Crim.App. 2002) (no abuse of discretion if decision on admission of evidence is

supported by the record).

         Appellant relies on evidence rules 403 and 404(b). Tex. R. Evid. 403, 404(b).

The State argues some of the extraneous acts of which appellant complains were

admissible under article 38.37 of the Code of Criminal Procedure. Tex. Code Crim.

Proc. Ann. art. 38.37, § 2 (West 2012). Appellant’s argument does not address article

38.37.

         Under Rule 404(b), evidence of other crimes, wrongs, or bad acts is inadmissible

if it is offered to prove the character of a person in order to show action in conformity

therewith, though it may be admissible for other purposes. TEX. R. EVID. 404(b). Article




                                             4
38.37 of the Code of Criminal Procedure, however, applied to appellant’s prosecution.2

Article 38.37, section 2, provides:

       Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other
       crimes, wrongs, or acts committed by the defendant against the child who is the
       victim of the alleged offense shall be admitted for its bearing on relevant matters,
       including:

       (1) the state of mind of the defendant and the child; and
       (2) the previous and subsequent relationship between the defendant and the
       child.

       Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (West 2012).

       Evidence that is admissible under article 38.37 may excluded, however, under

evidence rule 403, if its probative value is substantially outweighed by the danger of

unfair prejudice or confusion of the issues. Tex. R. Evid. 403; Hitt v. State, 53 S.W.3d

697, 706 (Tex.App.—Austin 2001, pet. ref’d) (trial court required to conduct rule 403

balancing test even when evidence relevant under article 38.37); see Montgomery, 810

S.W.2d at 389 (stating the presumption relevant evidence is more probative than

prejudicial). In considering a rule 403 challenge, courts must balance (1) the inherent

probative force of the evidence -- that is, how strongly it serves to make more or less

probable the existence of a fact of consequence to the litigation, with (2) the proponent's

need for that evidence against (3) any tendency of the evidence to suggest a decision

on an improper basis, commonly, an emotional one, (4) any tendency of the evidence to

confuse or distract the jury from the main issues, (5) any tendency of the evidence to be

given undue weight by a jury that has not been equipped to evaluate the probative force


       2
         Among the proceedings to which article 38.37 applies are those in the
prosecution of offenses under Penal Code Chapter 22 committed against a child under
17 years of age. Tex. Code Crim. Proc. Ann. art. 38.37, § 1 (West 2012).


                                            5
of the evidence, and (6) the likelihood that presentation of the evidence will consume an

inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v.

State, 210 S.W.3d 637, 641-42 (Tex.Crim.App. 2006). We should reverse the trial

court's balancing determination "rarely and only after a clear abuse of discretion."

Montgomery, 810 S.W.2d at 392 (quoting United States v. Maggitt, 784 F.2d 590, 597

(5th Cir. 1986)). In addition, because rule 403 permits the exclusion of admittedly

probative evidence, "it is a remedy that should be used sparingly, especially in 'he said,

she said' sexual-molestation cases that must be resolved solely on the basis of the

testimony of the complainant and the defendant." Hammer v. State, 296 S.W.3d 555,

568 (Tex.Crim.App. 2009).

      With regard to the evidence concerning appellant’s discipline and treatment of

F.S., after review of the record, we find the trial court reasonably could have regarded

the testimony as bearing on his relationship with her, and thus admissible under article

38.37. See McCulloch v. State, 39 S.W.3d 678, 681 (Tex.App.--Beaumont 2001, pet.

ref'd) (holding similar evidence admissible under article 38.37); Conrad v. State, 10

S.W.3d 43, 46 (Tex.App.—Texarkana 1999, pet. ref'd) (finding evidence of defendant’s

extraneous mistreatment of child victim admissible under article 38.37). See also Ernst

v. State, 971 S.W.2d 698, 700 (Tex.App.—Austin 1998, no pet.) (noting authority that

observes that wording of article 38.37 is "strongly tipped in favor of admissibility");

Flores v. State, No. 07-06-0340-CR- 07-06-0343-CR, 2008 Tex.App. LEXIS 6580, at *5

(Tex.App.—Amarillo Aug. 27, 2008, no pet.) (mem. op., not designated for publication)

(finding evidence defendant engaged in sexual contact with three great-nephews

admissible under article 38.37). As the cited cases note, such evidence is relevant to


                                            6
explain how such an unnatural relationship came to exist between a father and his

daughter, involving actions the jury otherwise may have considered “illogical and

implausible.”   McCullough, 39 S.W.3d at 681, citing Ernst, 971 S.W.2d at 700-01,

quoting Johns v. State, 236 S.W.2d 820, 823 (1951).

       We also see no abuse of discretion in the trial court’s admission of testimony of

appellant’s harsh discipline of his other children.        The children’s aunt testified

appellant’s children feared him. Courts have found such evidence admissible over a

rule 404(b) objection to explain why a victim of sexual assault did not make a prompt

outcry.   See Brown v. State, 657 S.W.2d 117, 119 (Tex.Crim.App. 1983) (victim’s

testimony defendant threatened to kill her family admissible to show reason for delayed

outcry); Ayala v. State, No. 02-06-0110-CR, 2007 Tex.App. LEXIS 3625 (Tex.App.—

Fort Worth May 10, 2007, pet. ref’d) (mem. op., not designated for publication)

(evidence defendant beat victim’s mother admissible over rule 404 objection for same

reason). See also Mayer v. State, No. 02-07-0293-CR, 2008 Tex.App. LEXIS 9483

(Tex.App.—Fort Worth Dec. 18, 2008, pet. ref’d) (mem. op., not designated for

publication) (in sexual assault case, finding no abuse of discretion in admission under

article 38.37 of evidence of violent act against victim’s brother committed in front of

victim, as bearing on defendant’s relationship with victim).

       In its evaluation under rule 403 of the relative probative value and prejudicial

nature of the evidence of appellant’s treatment of F.S. and his other children, the trial

court reasonably could have concluded such evidence served to explain to the jury how

appellant perpetrated frequent sexual assaults on his young daughter over a period of

years, continuing to do so even after his other children and members of their extended


                                             7
family were told of his actions, and had significant probative value for that purpose. See

McCullough, 39 S.W.3d at 681. The trial court also reasonably could have determined

the State had a significant need for such evidence to explain the relationships that

enabled appellant’s assaults over that time, and could have considered there was little

risk the evidence would confuse or distract the jury, suggest a decision on an improper

basis or occupy an inordinate place among the evidence. Gigliobianco, 210 S.W.3d at

641-42.   The court did not abuse its discretion by overruling appellant’s rule 403

challenge to the evidence of harsh discipline imposed on the four children.

      We do agree with appellant that the trial court erred by allowing the children’s

aunt to testify appellant and his wife had a bad relationship. The State’s need for such

testimony is anything but apparent on this record, and any probative value it had to the

issues before the jury was substantially outweighed by the danger of confusing and

distracting them from the main issues.3 Gigliobianco, 210 S.W.3d at 641-42.

      Erroneous admission of extraneous act testimony constitutes non-constitutional

error subject to a harm analysis under appellate procedure rule 44.2(b). Tex. R. App. P.

44.2(b); Casey v. State, 215 S.W.3d 870, 885 (Tex.Crim.App. 2007). Rule 44.2(b)

requires that we disregard an error “that does not affect substantial rights.” Tex. R. App.

P. 44.2(b). Thus, to show harm, the error in admitting the evidence must have had a

substantial and injurious effect in determining the jury's verdict. Hernandez v. State, 176

S.W.3d 821, 824 (Tex.Crim.App. 2005).        A substantial right is not affected by the



      3
         At a bench conference, the State told the court it would develop the relevance
of the line of questioning, but its further questioning, inquiring about surgery the wife
had before her death, did nothing but deepen the confusing nature of the inquiry.


                                            8
erroneous admission of evidence "if the appellate court, after examining the record as a

whole, has fair assurance that the error did not influence the jury, or had but a slight

effect." Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002). Here, the evidence

pertaining to the “bad” relationship between appellant and his wife was collateral to the

main issue in the case, which was the credibility of F.S.’s testimony of appellant’s

assaults. The State explored the relationship with only one witness, the aunt, and did

not repeatedly mention the testimony.     Having examined the entire record, we are

satisfied the testimony did not have a substantial and injurious effect on the jury’s

verdict. Its erroneous admission was not harmful.

      Lastly, we address the testimony concerning the conditions the witness observed

when she came to the residence appellant and his children occupied. As noted, she

found the home “dark” with “lots of stuff, lots of stuff everywhere,” referring to “can

goods in the kitchen.” She also once said that, to her, the children seemed “thin” when

she met them. The State argues her statements did not describe “bad acts” and were

not subject to exclusion under rule 404(b). Extraneous offense evidence is that showing

a crime or bad act and showing the defendant was connected to it. Castillo v. State, 59

S.W.3d 357, 361 (Tex.App.—Dallas 2001, pet. ref’d), citing Lockhart v. State, 847

S.W.2d 568, 573 (Tex.Crim.App. 1992).       The evidence must include some sort of

extraneous conduct on behalf of the defendant forming part of the alleged extraneous

offense.   Castillo, 59 S.W.3d at 361, citing Moreno v. State, 858 S.W.2d 453, 463

(Tex.Crim.App. 1993). We agree with the State that the trial court reasonably could

have regarded the witness’s testimony concerning the conditions she observed in the




                                           9
residence and her impression the children were “thin” did not show conduct on behalf of

appellant. For that reason, the trial court did not abuse its discretion by admitting it.

       We overrule appellant’s first issue.

Victim’s Presence in Courtroom at Trial

       In appellant’s second point of error, he challenges the trial court’s ruling, over

appellant’s objection, allowing F.S. to remain in the courtroom during the trial, despite

his invocation of Rule of Evidence 614, commonly referred to simply as “the rule.” Rule

of Evidence 614 is designed to prevent witnesses from altering their testimony,

consciously or not, based on other witnesses' testimony. Webb v. State, 766 S.W.2d

236, 239 (Tex.Crim.App. 1989).

       Rule of Evidence 614 provides for exclusion of witnesses from the court room “so

that they cannot hear the testimony of other witnesses,” but states that it does not

authorize exclusion of certain witnesses, among them “the victim in a criminal case,

unless the victim is to testify and the court determines that the victim's testimony would

be materially affected if the victim hears other testimony at the trial.” Tex. R. Evid. 614.


       The presence of the victim at trial of a criminal offense also is the subject of

article 36.03 of the Code of Criminal Procedure, enacted in 2001,4 which reads, in

relevant part:

       4
        Article 36.03 was enacted as a part of 2001 legislation strengthening the ability
of crime victims to participate in criminal justice proceedings. Acts 2001, 77th Leg., ch.
1034 (H.B. 1572), § 1 (effective September 1, 2001). Note that the statute also
expanded the list of persons who, despite Rule 614, may be excluded from the
courtroom only on the required findings to include a close relative of a deceased victim
and the guardian of a victim.


                                              10
       (a)          Notwithstanding Rule 614, Texas Rules of Evidence, a court at the
                 request of a party may order the exclusion of a witness who for the
                 purposes of the prosecution is a victim, close relative of a deceased
                 victim, or guardian of a victim only if the witness is to testify and the
                 court determines that the testimony of the witness would be materially
                 affected if the witness hears other testimony at the trial.
       (b)         On the objection of the opposing party, the court may require the
                 party requesting exclusion of a witness under Subsection (a) to make
                 an offer of proof to justify the exclusion.
       (c)         Subsection (a) does not limit the authority of the court on its own
                 motion to exclude a witness or other person to maintain decorum in the
                 courtroom.
       Tex. Code Crim. Proc. Ann. art. 36.03 (West 2011).

       We agree with the suggestion of the Texarkana court, applying Rule 614 in a

2000 opinion, that at trial the burden is on the party seeking to exclude the victim from

the courtroom “to offer some basis to the court on which the court could determine that

the victim’s testimony would be materially affected by hearing testimony from the other

witnesses.” Bunn v. State, No. 06-99-00022-CR, 2000 Tex.App. LEXIS 1841, at *3-4

(Tex.App.—Texarkana March 23, 2000, no pet.) (mem. op., not designated for

publication). And we think that burden is more clear under the language of article 36.03

stating the trial court, at the request of a party, may order the exclusion of the victim

only if the victim is to testify and the court determines her testimony would be materially

affected by hearing other testimony. The burden on the party seeking to exclude the

victim from the courtroom is further emphasized by subsection (b) of article 36.03,

specifically authorizing the trial court to require of that party an offer of proof justifying

the victim’s exclusion.

       When appellant invoked “the rule” at the outset of trial, the district attorney asked

that F.S., as the victim, be excused from the rule, and allowed to remain in the


                                             11
courtroom.    Appellant objected, asserting that victims are allowed to hear other

witnesses testify only after completing their own testimony.5 And, although appellant

generally argued that testifying witnesses are excluded “so they don’t hear each

other[‘]s testimony and try to match it up,” appellant gave the court no basis for

concluding that the testimony of F.S. would be materially affected if she heard other

testimony.6 In the absence of such a showing, the court did not abuse its discretion by

refusing to exclude her from the courtroom.

      We resolve appellant’s second point of error against him.




      5
          Appellant does not assert that position on appeal. Obviously, the danger that
her testimony will be materially affected is greater if a victim is allowed to hear others
testify before she takes the stand than if she is permitted to remain in the courtroom
only after she has testified in the State’s case-in-chief. See Scott v. State, No. 14-07-
01048-CR, 2008 Tex.App. LEXIS 9142, at *22-23 (Tex.App.—Houston [14th Dist.] Dec.
4, 2008, pet. ref’d) (mem. op., not designated for publication); 1 Steven Goode et al.,
Guide to the Texas Rules of Evidence, § 614.2 (3d ed. 2002) (both so noting). Equally
obviously, however, the exemption of victims from the operation of Rule 614 is not
limited to those who already have given their testimony for the State.
      6
         On appeal, appellant points to instances in which he asserts F.S. “matched up”
her testimony with that of previous witnesses whose testimony she heard. The State
points out nothing in the record shows how F.S.’s testimony would have differed if she
had not remained in the courtroom. See Rivas v. State, No. 13-05-601-CR, 2007
Tex.App. LEXIS 5623, at *34 (Tex.App.—Corpus Christi July 12, 2007, pet. ref’d) (mem.
op., not designated for publication) (concluding relief was precluded when appellant
failed to demonstrate how, if at all, the witness was influenced in her testimony by the
testimony she heard, citing Russell v. State, 155 S.W.3d 176, 179 (Tex.Crim.App.
2005)). We further note that none of the instances of “matching up” appellant cites
involve F.S.’s testimony describing the acts of sexual assault; all involve collateral
matters. Because we have found no error in the trial court’s ruling, however, we need
not further address the State’s contentions the error, if any, was harmless.


                                           12
Improper Jury Charge on Parole Eligibility

       In his third point of error, appellant raises an error in the court’s charge on

punishment, concerning appellant’s eligibility for parole. Although the State opposed

appellant’s objection to the charge at trial, now on appeal it concedes the charge

contained error.

       The error is in the paragraphs required by section 4 of article 37.07 of the Code

of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 37.07 (West 2012). Because

the offenses of which appellant was convicted are “§ 3g” offenses, that is, offenses

listed in section 3g(a)(1) of article 42.12 of the Code of Criminal Procedure, the court

was required to give the instruction prescribed by section 4(a) of article 37.07. See Tex.

Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1)(E) (West 2012) (listing aggravated sexual

assault under § 22.021, Penal Code); Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a)

(West 2012) (prescribing penalty phase instruction for offenses listed in § 3g(a)(1)).

       The specific error in the charge appears in the paragraph describing the

defendant’s eligibility for parole. The other paragraphs of the instruction prescribed in §

4(a) of article 37.07 were correctly stated in the charge. The prescribed instruction

would have told the jury that, if sentenced to prison, appellant would be not eligible for

parole until he served half the sentence imposed or 30 years, whichever is less, without

consideration of any good conduct time earned. Instead, the court instructed the jury

with this sentence: “Under the law applicable in this case, if the Defendant is sentenced

to a term of imprisonment, he will not become eligible for parole until the actual time

served plus any good conduct time earned equals one-half of the sentence imposed.”

In accordance with the prescribed instruction, the court followed that sentence with one

                                             13
instructing the jury that “Eligibility for parole does not guarantee that parole will be

granted.”

        Instead of understanding that appellant would be eligible for parole after serving

the lesser of half his sentence or 30 years, without consideration of good conduct time,

the jury was given to understand he would be eligible after serving half his sentence,

taking any good conduct time into account. The charge thus contains two errors. The

jury erroneously was told good conduct time could speed appellant’s eligibility for parole

and was not told that he would be eligible in 30 years without regard to good conduct

time.

        Although the State concedes the trial court erred in its charge, it argues appellant

did not suffer harm requiring reversal.       Because appellant timely objected to the

erroneous charge, we must reverse his conviction if we find error was “calculated to

injure the rights of defendant.” Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.

1985); see Guillory v. State, 956 S.W.2d 135, 137 (Tex. App.--Beaumont 1997, no pet.)

(erroneous statements in jury charge do not rise to level of constitutional error). That

means reversal is required if there was “some harm” to appellant from the error. Ngo v.

State, 175 S.W.3d 738, 744 (Tex.Crim.App. 2005). We must find, however, that the

harm was actual, not merely theoretical. Almanza, 686 S.W.2d at 174.

        We assess the actual degree of harm in light of the entire jury charge, the state

of the evidence, including the 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. Almanza, 686 S.W.2d at 171; Castaneda-Lerma v. State, No. 04-07-




                                             14
00479-CR, 2008 Tex.App. LEXIS 4629, at *5-6 (Tex.App.—San Antonio June 25, 2008,

pet. ref’d) (mem. op., not designated for publication).

       In our consideration of the entire charge on punishment, we balance the

erroneous language telling the jury that parole eligibility would be affected by any good

conduct time earned with the charge’s other language bearing on good conduct time

and parole. The charge properly told the jury that it was not to consider the extent to

which good conduct time may be awarded to, or forfeited by, appellant, nor was it to

consider the manner in which the parole law may be applied to him. Such language has

been found “curative” of a similar charge error. See Guevara v. State, No. 14-97-

00555-CR, 1999 Tex.App. LEXIS 6799, at *7-9 (Tex.App.—Houston [14th Dist.] Sept. 9,

1999, pet. ref’d) (mem. op., not designated for publication) (egregious harm analysis).

See also Igo v. State, 210 S.W.3d 645, 647 (Tex.Crim.App. 2007); Lee v. State, No. 12-

09-00221-CR, 2010 Tex.App. LEXIS 3526 (Tex.App.—Tyler May 12, 2010, pet. ref’d)

(mem. op., not designated for publication); Guillory, 956 S.W.2d at 137 (all egregious

harm analyses referring to such language as “curative”).

       Neither the State nor appellant’s counsel mentioned parole or good time credit

during their arguments to the jury.     The arguments were brief, appellant’s counsel

emphasizing that appellant was a good provider for his family and that his parenthood

had other good aspects. The State emphasized the effect of his sexual assaults on his

children and other family members, and asked for the maximum imprisonment. The

arguments of counsel thus did not exacerbate the erroneous parole instruction

language, but neither did they serve to ameliorate the error.




                                            15
       The punishment evidence was brief and unremarkable. Appellant did not testify

but presented his mother as a punishment witness to testify to his eligibility for

probation. The State put F.S. and her sister back on the stand to describe, briefly, the

effect of appellant’s actions on their family. Both said they loved their father but both

indicated he should be held accountable.         As evidence bearing on punishment,

however, it is difficult to overstate the seriousness of evidence that appellant engaged in

a thorough-going sexual relationship with his daughter during years of her childhood,

lied about it to a family member, then continued the assaults for two more years. The

jury imposed the maximum sentence in each of the three cases, including the maximum

fine. The court in Guevara, 1999 Tex.App. LEXIS 6799, at *9, noting the jury’s decision

in that case, supported by strong evidence, to punish the defendant to the fullest extent

of the law, found that action “indicative that the jurors did not consider the impact of

parole or good conduct time on the sentence.”        This record leads us to the same

conclusion.

       The seriousness and long-term nature of appellant’s actions, the uncertainty of

good conduct time, the presence of correct “curative” language in the charge and the

lack of focus on parole in jury arguments support the conclusion appellant suffered no

actual harm from the erroneous statement in the charge that good conduct time could

affect his eligibility for parole. Accordingly, we find the error harmless and overrule

appellant’s third point of error.

Limitation of Cross-Examination of Victim Regarding Motive to Lie

       Appellant’s complaint in his last point of error is based in part on the same

evidence of which he complained in his first point. He argues the State’s evidence that

                                            16
appellant harshly disciplined his children just as well could have indicated to the jury

that F.S. had a motive to lie. He argues the court improperly disallowed his attempt to

cross-examine F.S. on a matter relevant to her motive to lie, denying him his Sixth

Amendment right of confrontation of the witnesses against him. U.S. CONST. amend.

VI; see Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974);

Lopez v. State, 18 S.W.3d 220, 222 (Tex.Crim.App. 2000) (both addressing

confrontation right).

       During cross-examination, counsel for appellant asked F.S., “Now, your

sister…she had a sexual assault allegation against one of her friend’s fathers; is that

correct?” Before F.S. responded, the State objected and after hearing argument and a

further objection, the trial court sustained the objections in a bench conference, stating

“It’s too far removed, too remote. You’re trying to get the jury to speculate.”

       We will overrule appellant’s point of error, for two reasons. The first relates to

preservation of error. Because appellant sought to cross-examine F.S. regarding her

knowledge of a specific event involving her sister, rather than on the general subject of

his discipline as a motive for her to accuse him wrongly, preservation of his complaint

required him to perfect an offer of proof.    TEX. R. EVID. 103(a)(2); Mays v. State, 285

S.W.3d 884, 889 (Tex.Crim.App. 2009); Garner v. State, No. 05-10-00195-CR, 2011

Tex.App. LEXIS 5991, at *17-18 (Tex.App.—Dallas Aug. 2, 201, no pet.) (mem. op., not

designated for publication) (citing Virts v. State, 739 S.W.2d 25, 29 (Tex.Crim.App.

1987)).

       Offers of proof may take the form of questions-and-answers or a concise

statement by counsel. TEX. R. EVID. 103(a)(2), (b); Mays, 285 S.W.3d at 889. If counsel

                                             17
makes the offer by statement, it must include a reasonably specific summary of the

proposed testimony. Mays, 285 S.W.3d at 890. The primary purpose of an offer of proof

is to enable an appellate court to determine harmful error; a secondary purpose is to

permit the trial judge to reconsider the ruling in light of the actual evidence. Id.

       Appellant’s counsel made an offer of proof after the trial court sustained the

State’s objection. He told the court the questions he sought to ask F.S. But, with one

exception, he did not tell the court how he expected she would answer the questions.

He said that if he were allowed to ask F.S., she would testify that her sister made

accusations against a friend’s father, and that the father was “removed from the home.”

The remainder of the offer consists of the questions counsel would then ask F.S.,

regarding whether that event “gave her the idea,” to accuse her father and “get [him] out

of the home” so she could obtain money her father had received from a settlement after

her mother died; and whether she and her siblings decided to make the sexual assault

allegation rather than kill their father as they had previously discussed. Because the

offer of proof primarily described the questions counsel would have asked and did not

provide the trial court, or this court, the answers counsel expected to receive, it does not

provide the same information that a question-and-answer offer of proof would provide,

and so does not provide us a basis to determine whether the trial court erred and if so

whether it was harmful. See Virts, 739 S.W.2d at 29 (requirements of offer of proof).

       Second, if we are mistaken regarding the sufficiency of the offer of proof to

preserve error, we conclude the trial court’s limitation on appellant’s cross-examination

did not violate his Sixth Amendment rights.




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         Texas courts generally provide great latitude in cross-examination to show any

fact revealing "possible biases, prejudices, or ulterior motives of the witness as they

may relate directly to issues or personalities in the case [on trial]." Hammer v. State,

PD-0786-08, 2009 Tex.Crim.App. LEXIS 513 (Tex.Crim.App. Apr. 8, 2009) (quoting

Davis, 415 U.S. at 316). A defendant may cross-examine a witness, most importantly a

prosecution witness, on any subject "reasonably calculated to expose a motive, bias or

interest for the witness to testify." Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App.

1996).

         Nonetheless, the trial court has discretion to impose reasonable limits on cross-

examination, based on concerns such as harassment, prejudice, confusion of the

issues, safety of the witness, or examination that is repetitive or only marginally

relevant. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674.

Similarly, the court has “considerable discretion in determining how and when bias may

be proved, and what collateral evidence is material for that purpose.” Ho v. State, 171

S.W.3d 295, 304 (Tex.App.--Houston [14th Dist.] 2005, pet. ref'd) (quoting Recer v.

State, 821 S.W.2d 715, 717 (Tex.App.—Houston [14th Dist.] 1991, no pet.)).

         As the State noted in its objection, appellant’s question related to an accusation

made by F.S.’s sister against another man.7 The trial court’s remark suggests it found

the question of no more than marginal relevance. We see no abuse of discretion in that




         7
         No mention is made in the record as to whether the allegation of which
appellant was inquiring was true or false. Cf. Hammer, 296 S.W.3d at 564 (addressing
admissibility of evidence of victim’s prior false accusation in sexual assault cases).


                                             19
assessment.       Further, the court could have concluded that injection of the sister’s

allegation into this case risked confusing the issues before the jury.

       The court's restriction on cross-examination "does not violate the defendant's

'right to confront a witness as long as (1) the possible bias and motive of the State's

witness is clear to the trier of fact and (2) the accused has otherwise been afforded an

opportunity for a thorough and effective cross-examination.'" Ho, 171 S.W.3d at 304

(quoting Stults v. State, 23 S.W.3d 198, 204 (Tex.App.--Houston [14th Dist.] 2000, pet.

ref'd)). The trial court reasonably could have considered both that appellant had been

afforded the opportunity for thorough cross-examination, and that F.S.’s possible motive

to accuse her father to escape her home life and obtain control of money received as a

result of their mother’s death had been made clear to the jury. Several witnesses,

including F.S., testified to the harsh disciplinary practices of appellant and the children’s

desire to be out of his control.     Further, appellant fully cross-examined the State’s

witnesses, including F.S., on every other aspect of the evidence.              We overrule

appellant’s last point of error.

       Having resolved each of appellant’s points of error against him, we affirm the

judgments of the trial court.




                                                         James T. Campbell
                                                              Justice




Do not publish.

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