Abraham Herrera Solis v. The State of Texas

Appellant Abraham Herrera Solis was charged with aggravated sexual assault and

aggravated kidnapping. Solis was acquitted by a jury of kidnapping but found guilty of

aggravated sexual assault, which is a first-degree felony. See TEX. PENAL CODE ANN. §§

12.32, 22.021(e) (West, Westlaw through 2015 R.S.). Finding the enhancement

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paragraphs to be true, the trial court sentenced Solis to life in the Texas Department of

Criminal Justice—Institutional Division. In three issues on appeal, Solis argues that the

trial court erred because: (1) Solis’s decision to go to trial was not made knowingly and

voluntarily; (2) Solis was improperly limited in his cross examination of the complainant;

and (3) the State did not provide adequate notice of its intent to introduce extraneous acts

of misconduct by Solis. We affirm.

I. BACKGROUND

On July 22, 2013, S.G.1 was at her aunt’s home. S.G. had previously dated Solis

but had ended the relationship. She testified that as of July she was dating Victor Flores.

S.G. testified that she was hanging out with friends when Solis and several of his friends

arrived at her aunt’s home. S.G. testified that Solis was “pushy” and “intoxicated.” S.G.

and Solis began arguing loudly outside. S.G. testified that police arrived because of

complaints of how loud the argument became; Solis’s friends testified that they believed

the police were responding to a report of loud music. After the police left, S.G. claimed

that she was forced into Solis’s vehicle. According to S.G., Solis then beat her all over

her body as his friends drove around town. S.G. testified that she was driven back to her

home, then punched, kicked, and dragged by her hair to her own room, where she was

sexually assaulted by Solis.

Yvonne Lopez, a nurse, conducted a sexual assault examination. She testified

that S.G.’s bruising was consistent with S.G.’s story. She also stated that S.G. had

bruising on the inside of her vagina, which could either be consistent with her claim of

sexual assault or with consensual sex. A forensic test was also conducted. Solis’s DNA

1 We refer to the sexual assault complainant and others by their initials to protect their identities.

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was present on the vaginal swabs submitted for testing, along with DNA belonging to an

unknown individual.

Solis was charged by indictment with the offenses of aggravated sexual assault

and aggravated kidnapping. Each count also set forth an enhancement paragraph,

alleging that Solis had two previous convictions for sexual assault. At arraignment, Solis

turned down the State’s offer of twenty five years’ imprisonment in exchange for a guilty

plea and instead pled not guilty. The jury found Solis guilty of aggravated sexual assault

but acquitted him of aggravated kidnapping.

Originally, Solis elected for punishment to be assessed by the jury. However, Solis

changed his election to punishment by the trial court immediately before commencement

of voir dire. Before the trial started, Solis filed a request for notice of the State’s intent to

introduce evidence of extraneous acts. See TEX. R. EVID. 404(b)(2); TEX. CODE CRIM.

PROC. ANN. art. 37.07 Sec. 3(g) (West, Westlaw through 2015 R.S.). The State filed its

notice of intent to introduce extraneous acts. In its amended notice, the State informed

Solis that it intended to introduce the following extraneous act: “Pending-Criminal Sexual

Conduct (1st Degree); ICR #03026985; committed August 1, 2003 against [C.M.K.];

Stearns County, Minnesota.” During trial, the State called C.M.K., Solis’s former

girlfriend, to testify concerning this alleged sexual assault.

Solis sought to cross-examine S.G. regarding an allegedly false report of rape she

made in the past. Both the State and Solis had filed a motion in limine regarding that

topic. After holding a hearing outside of the jury’s presence, the trial court ruled that Solis

could not ask S.G. about the allegedly false rape accusation. The trial court found both

enhancement allegations to be true, and accordingly assessed a mandatory life sentence

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in the Texas Department of Criminal Justice—Institutional Division with no eligibility for

parole until thirty-five years of confinement have been served. See TEX. PENAL CODE ANN.

§ 12.42(c)(2) (West, Westlaw through 2015 R.S.); TEX. GOV’T CODE ANN. 508.145(c)

(West, Westlaw through 2015 R.S.). This appeal followed.

II. DUTY TO ADMONISH DEFENDANT ON GUILTY PLEA

In his first issue, Solis contends that making the decision to go to trial and reject

the plea offered by the State, without being made fully aware of the possibility of a

mandatory life sentence, denied him due process.

A. Applicable Law

“Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall

admonish the defendant of the range of punishment attached to the offenses.” TEX. CODE

CRIM. PROC. ANN. art. 26.13(a)(1) (West, Westlaw through 2015 R.S.). Therefore, based

on the statute, a judge has no duty to admonish a defendant when he pleads not guilty.

See Williams v. State, 477 S.W.2d 607, 608 (Tex. Crim. App. 1972); see also Riley v.

State, No. 06-10-00130-CR, 2012 WL 5866651, at *1 (Tex. App.—Texarkana Nov. 20,

2012, no pet.) (reaching the same conclusion) (mem. op., not designated for publication);

Davis v. State, No. 02-07-037-CR, 2008 WL 281126, at *2 (Tex. App.—Fort Worth Jan.

31, 2008, pet. ref'd) (reaching the same conclusion) (mem. op., not designated for

publication).

B. Analysis

Solis acknowledges that a defendant has no right to admonishment unless he has

entered a plea of guilty or nolo contendere. See Williams, 477 S.W.2d at 608. Solis

entered a plea of not guilty. Therefore, the trial court was under no obligation to inform

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Solis of the potential consequences of pleading not guilty. See id. Nonetheless, the trial

court informed Solis on the record from the outset that the potential range of punishments

was up to ninety-nine years.

Solis further argues that rejecting the plea offered by the State without fully

knowing the consequences violated his due process rights. However, there is no right to

a plea bargain. See Morano v. State, 572 S.W.2d 550, 550–551 (Tex. Crim. App. 1978).

An accused cannot waive non-existent rights. See id. By rejecting the plea bargain and

insisting on being tried by a jury, Solis was exercising his right to a jury trial and was

properly afforded due process rather than denied due process. An accused may have a

claim for ineffective assistance of counsel if counsel erroneously recommended rejecting

the plea bargain or if the accused was never informed of the plea offer. See Lafler v.

Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376 (2012); Ex parte Argent, 393 S.W.3d 781,

784 (Tex. Crim. App. 2013). However, Solis did not raise an ineffective assistance of

counsel claim, nor is there any evidence that Solis’s counsel erroneously advised Solis in

the matter of accepting the plea bargain. The record indicates that Solis “knowingly and

intelligently” rejected the plea offer after his counsel informed him of the State’s offer. Id.

We overrule Solis’s first issue.

III. RIGHT TO CROSS-EXAMINE ABOUT PRIOR FALSE ACCUSATIONS

In his second issue, Solis argues that the trial court erred by limiting Solis’s cross

examination of the complainant, thereby excluding evidence that the complainant had

allegedly falsely reported rape in the past.

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A. Applicable Law

Generally, a trial judge has wide discretion in limiting the scope of cross

examination. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Evidence

regarding specific incidences of conduct cannot be introduced to broadly attack a

witness’s truthfulness. See TEX. R. EVID. 608(b). However, courts should be careful not

to exclude evidence that may shed light on “a witness’s specific bias, motive, or interest

to testify in a particular fashion.” See Hammer v. State, 296 S.W.3d 555, 562 (Tex. Crim.

App. 2009). For example, a witness may be cross-examined on specific past statements,

but only if they are used to establish a bias or motive in testifying. See id. at 563; TEX. R.

EVID. 613(b). More specifically, evidence of a prior false accusation of sexual abuse may

be admitted if it is offered to prove motive or bias. See Hammer, 296 S.W.3d at 565. But,

previous allegations of sexual abuse may be properly excluded if there is no evidence

that the allegations were actually false. See Lopez v. State, 86 S.W.3d 228, 230 (Tex.

Crim. App. 2002). Likewise, evidence of the alleged victim’s past sexual behavior is

normally inadmissible, but the trial court may admit the evidence if it “relates to the victim’s

motive or bias.” TEX. R. EVID. 412(b)(2)(C). The trial court’s rulings on such evidentiary

matters are reviewed for abuse of discretion and will be upheld as long as they are within

the zone of reasonable disagreement. See Lopez, 86 S.W.3d at 230.

B. Analysis

Solis’s theory on appeal is that S.G. falsely claimed rape in this case to avoid

revealing to her new boyfriend that she had consensual intercourse with Solis. Solis had

a right to cross-examine S.G. on her previous allegations if they tended to prove her bias

or motive for testifying in the present case. See Hammer, 296 S.W.3d at 565; TEX. R.

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EVID. 613(b). But S.G.’s past allegation of rape, true or false, does not tend to prove her

motive or bias in this case. The fact that S.G. previously made an allegedly false

accusation of rape against another individual does not tend to prove her motive to falsely

accuse Solis of sexual assault in the present case. Allowing cross-examination about her

previous allegation of rape would be a prohibited general attack on S.G.’s truthfulness.

See TEX. R. EVID. 608(b); cf. Billoleau v. State, 277 S.W.3d 34, 43 (Tex. Crim. App. 2009)

(finding that the child complainant’s past allegation of sexual abuse was admissible

because the evidence established that the child had previously threatened to accuse the

neighbors of abusing him, giving the child a motive to falsely report sexual abuse by those

same neighbors later). Therefore, the trial court did not err in limiting the cross

examination to exclude questioning about S.G.’s past allegation of sexual assault. We

overrule Solis’s second issue.

IV. REASONABLE NOTICE OF INTENT TO INTRODUCE EXTRANEOUS OFFENSES

In his third issue, Solis argues that the State did not give him adequate notice of

its intent to introduce evidence of Solis’s alleged extraneous offenses, specifically the

sexual assault allegedly committed by Solis on August 1, 2003 against C.M.K. in Stearns

County, Minnesota.

A. Applicable Law

“On timely request by a defendant in a criminal case, the prosecutor must provide

reasonable notice before trial that the prosecution intends to introduce such evidence—

other than that arising in the same transaction—in its case-in-chief.” TEX. R. EVID.

404(b)(2). The reasonable notice requirement of Rule 404(b)(2) is intended to prevent

surprise. See Hayden v. State, 66 S.W.3d 269 (Tex. Crim. App. 2001). When the

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prosecutor intends to introduce an extraneous bad act that has not resulted in a final

conviction, notice to the defendant will be reasonable only if it includes the date on which

the extraneous act occurred, the county in which it occurred, and the name of the alleged

victim. TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(g).

B. Analysis

Before trial, Solis requested the State to file a notice of intent to introduce

extraneous acts. Accordingly, the State filed a notice of intent that complied with the

statutory requirements of listing the date of the act, the county in which it occurred, and

the name of the alleged victim. See TEX. R. EVID. 404(b)(2); TEX. CODE CRIM. PROC. ANN.

art. 37.07 § 3(g). Nonetheless, Solis argues that his cross-examination of C.M.K. was

“short and unremarkable” because he was “blind-sided” at trial by C.M.K.’s testimony and

the accompanying offense report. According to Solis, the State should have provided him

with a copy of the offense report before trial. However, Texas rules do not require what

Solis desires.

The State provided “reasonable notice” to Solis of the extraneous act it intended to introduce that Rule 404(b) requires by including the name of the alleged victim, the county in which the offense occurred, and the date on which the offense was committed. We overrule Solis’s third issue.



We affirm the trial court’s judgment.