COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00421-CR

OSCAR GUERRERO APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 211ST DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION1

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I. INTRODUCTION

Appellant Oscar Guerrero appeals his conviction for aggravated sexual 

assault of a child. In two issues, Guerrero complains of the trial court’s permitting 

a lay witness to give expert opinion testimony and of the jury instruction on good 

conduct time. We will affirm. 

 

1See Tex. R. App. P. 47.4.
2

II. FACTUAL AND PROCEDURAL BACKGROUND 

Amber came to the United States from Mexico and lived with her infant 

daughter, Emma, and a family friend, Jorge Limones.2 Amber began living with 

Guerrero, whom Emma referred to as “Papa.” Approximately two years later, in 

2006, Amber’s other daughter, Ana, came to the United States from Mexico. At 

the time, Ana was seven years old, and Emma was two years old. Amber 

testified that Ana was jealous of Emma and Guerrero’s relationship. 

In 2007, when Emma was about three years old, she made an outcry of 

sexual abuse against Limones. Amber testified that just before Emma made the

outcry, she started kissing on Amber’s neck at night, breathing heavily, trying to 

kiss Amber on the mouth, and putting her legs over Amber. When Emma did 

these things, she would suddenly urinate on herself. After Emma’s outcry, Ana 

asked Amber and Guerrero why Emma was receiving so much attention.

Guerrero told Ana that Emma was going through a very difficult process and not 

to bug her. 

In 2008, when Ana was nine years old, she also made an outcry of sexual 

abuse against Limones. Amber testified that Ana did not exhibit the same 

behavior that Emma had prior to her outcry. 

 

2

To protect the anonymity of the children in this case, we will use aliases to 

refer to some of the individuals named herein. See Daggett v. State, 187 S.W.3d 

444, 446 n.3 (Tex. Crim. App. 2005); McClendon v. State, 643 S.W.2d 936, 936 

n.1 (Tex. Crim. App. [Panel Op.] 1982). 
3

In preparation for trial against Limones, Amy Derrick, a Dallas County 

District Attorney’s Office felony prosecutor, interviewed Ana about her allegation 

against Limones.

3

 During the interview, Ana broke down in tears and made an 

outcry of sexual abuse against Guerrero. Ana said that he had “been doing 

things to her,” such as putting his finger into her “private” and that he had done

such things six or seven times. Ana said that Guerrero would tell her to go take a 

bath while Emma was watching television. Ana said that he would then come 

into the bathroom, touch her all over her body, take her to the bedroom, and put 

his finger inside her private area. Ana would yell, her sister would come in the 

room, and then Guerrero would leave. Ana said that she did not tell her mother 

because her mother loved Guerrero, he paid the bills, and Ana was afraid that 

her mother would get mad at her. 

Detective Abel Lopez with the Dallas Police Department interviewed 

Guerrero and videotaped the interview.4 Guerrero told Detective Lopez that he 

would bathe Ana, and when Detective Lopez asked why he was bathing a tenyear-old girl, Guerrero replied, “I don’t know. . . . I . . . struggle to not do anything 

but I feel that there is something in me that is not well.” Detective Lopez asked 

Guerrero how many fingers he put inside Ana and which part of the finger. 

Guerrero indicated his right index finger down to the first knuckle. Guerrero said 

 

3

Limones ultimately pleaded guilty to injury to a child. 

4Detective Lopez testified that the north Dallas apartment where Guerrero 

and Amber lived was in Denton County. 
4

that Ana had some boils on her vagina and that he used his finger to put 

medicating cream on them. 

Dora Casas, a Dallas Children’s Advocacy Center employee, testified 

about an interview she conducted with Ana following her outcry against Guerrero. 

Ana told Casas that she was nine years old the first time that Guerrero did 

something to her. She was asleep in the living room but woke up because she 

felt her clothes being pulled down. Guerrero put his finger inside her. When 

Guerrero heard Amber coming, he covered Ana with a blanket. Ana also told 

Casas about a separate occasion in the bedroom in which Guerrero asked Ana 

to see something, and he spread her legs apart. Ana said that Guerrero put his 

fingers inside her vagina, and she described something white and sticky that he 

took out of her and showed to her. 

Guerrero’s defense at trial was that Ana fabricated the allegations against 

both him and Limones after seeing the attention that Emma received from her 

outcry against Limones. Amber testified that after Guerrero was arrested, Ana 

told her on two separate occasions that Guerrero never did anything to her. 

The jury convicted Guerrero of aggravated sexual assault of a child under 

the age of fourteen and assessed punishment at forty years’ confinement. The 

trial court sentenced him accordingly.
5

III. ADMISSION OF DETECTIVE LOPEZ’S TESTIMONY

In his first issue, Guerrero complains that the trial court abused its 

discretion by allowing Detective Lopez to express his belief about how individuals 

who abuse children target their victims. 

We review a trial court’s decision to admit or exclude evidence under an 

abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101–02 (Tex. 

Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997); Montgomery v. State, 810 

S.W.2d 372, 379–80 (Tex. Crim. App. 1990). We will not reverse a trial court as 

long as its ruling was within the “zone of reasonable disagreement.” Green, 934 

S.W.2d at 102; Montgomery, 810 S.W.2d at 391. The appropriate inquiry is 

whether the court acted without reference to any guiding rules and principles. 

Montgomery, 810 S.W.2d at 380.

Texas Rule of Evidence 701 provides that a lay witness may testify in the 

form of opinions or inferences limited to those opinions or inferences that are (1) 

rationally based on the perception of the witness and (2) helpful to a clear 

understanding of the witness’s testimony or the determination of a fact in issue. 

Tex. R. Evid. 701. As a general rule, “observations which do not require 

significant expertise to interpret and which are not based on a scientific theory 

can be admitted as lay opinions if the requirements of Rule 701 are met. This is 

true even when the witness has experience or training.” Osbourn v. State, 92 

S.W.3d 531, 537 (Tex. Crim. App. 2002). Even events not normally encountered 

by most people in daily life do not necessarily require expert testimony to be 
6

understood. Id. Thus, a lay witness may be capable, due to personal experience 

and knowledge, of expressing an opinion on a subject outside the realm of 

common knowledge. Id. “It is only when the fact-finder may not fully understand 

the evidence or be able to determine the fact in issue without the assistance of 

someone with specialized knowledge that a witness must be qualified as an 

expert.” Id. 

In this case, the following exchange occurred between the prosecutor and 

Detective Lopez on direct examination: 

Q. Obviously, in this particular instance, we have a scenario where 

you have one child saying more than one individual has sexually 

abused her. Correct?

A. Yes.

Q. Is that something that unfortunately you encounter with some 

regularity in your job?

A. Yes, we do.

Q. Detective, explain for me in your experience how that happens or 

why that is.

A. In the cases that I have personally been involved in and helped 

other detectives in my unit be involved in, usually what happens is 

when there’s a second or a third suspect that abuses a child, it 

seems that they find a weakness or they take the previous abuse as 

a weakness in the child. And my experience has been that they take 

advantage of that weakness. 

Q. Has it been your experience that—and just to kind of follow up 

on what you just said, has it been your experience that individuals 

who sexually abuse children are fairly specific in which children they 

target?
7

[DEFENSE]: Objection, Judge. There’s been no showing that he’s 

an expert on psychology or the therapy of child abuse victims.

THE COURT: Sustained. 

. . . .

Q. And based on that training and experience over the last seven 

years, do you have an opinion as to how individuals who target 

children—or abuse children target those particular children?

[DEFENSE]: Judge, same objection. He’s—he’s—has a lot of 

experience as a policeman, as an interrogator. Still, he’s not 

showing any expertise relating to the psychology or any of the 

therapeutic issues with the child. 

THE COURT: He can offer his lay opinion on the subject. 

Overruled.

Q. Do you have an opinion on that, detective?

A. Yes, sir, I do.

Q. Would you please tell me what that is.

A. Again, in investigating these cases and especially in talking to 

the suspects in the cases, again, it’s—it’s—it becomes apparent 

during my interviews that they look for those weaknesses. Even 

though sometimes they don’t actually state that, but just based on 

statements that they make, it does become apparent that they look 

for weaknesses in the victims. [Emphasis added.]

Detective Lopez later opined that Guerrero knew of Ana’s vulnerabilities and prior 

sexual assault allegations against Limones and that Guerrero targeted those

weaknesses. 

Detective Lopez testified that he had nearly seven years of experience as 

a child abuse detective and that part of his job is to investigate child abuse 

allegations and interview people charged with sexual abuse of children. 
8

Detective Lopez said that he is trained on how to investigate and interrogate child 

abusers and that he has personally dealt with hundreds of child abuse cases and 

has interviewed the perpetrators on hundreds of occasions. 

Detective Lopez’s testimony established that he possessed extensive 

practical experience as a child abuse detective and that, due to his personal 

experience and knowledge, he was capable of expressing an opinion of how 

child abusers target children. See id.; Hollis v. State, 219 S.W.3d 446, 467 (Tex.

App.—Austin 2007, no pet.); Roberson v. State, 100 S.W.3d 36, 39 (Tex. App.—

Waco 2002, pet. ref’d); see also Thomas v. State, 916 S.W.2d 578, 580–81 (Tex. 

App.—San Antonio 1996, no pet.) (noting that a police officer’s personal 

knowledge may come from past experience). Further, his testimony was not 

based on a scientific theory and did not require significant expertise to interpret. 

See Osbourn, 92 S.W.3d at 537; Scott v. State, 222 S.W.3d 820, 828–29 (Tex. 

App.—Houston [14th Dist.] 2007, no pet.). Having examined the entirety of 

Detective Lopez’s testimony, we conclude that the trial court did not abuse its 

discretion by admitting his testimony as lay opinion testimony under Rule 701. 

See Tex. R. Evid. 701. We overrule Guerrero’s first issue. 

IV. ISSUANCE OF STATUTORILY-MANDATED JURY CHARGE 

In his second issue, Guerrero argues, as he did at trial, that the trial court’s 

charge to the jury concerning the possibility of good conduct time “[did] not fit 

within the constitutional safeguard of section 11(a) of the Texas [c]onstitution and 
9

therefore” violated the separation of powers doctrine of, and his right to due 

course of law under, the Texas constitution.5 

In crafting its charge to the jury at the punishment phase of trial, a trial 

court is bound to comply with the mandatory language of article 37.07, section 4 

of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 

37.07, § 4 (West Supp. 2012). That article requires that the trial court must 

inform the jury of the existence and mechanics of parole law and good conduct 

time. Id. The overall purpose of the instructions is to inform jurors of these 

concepts as a general proposition, but the instructions clearly prohibit the jury 

from considering how the concepts of “good conduct time” and parole might be 

applied to any particular defendant. Luquis, 72 S.W.3d at 360. 

A person convicted of certain enumerated offenses (including the offense 

of aggravated sexual assault of a child), however, is not eligible for release on 

mandatory supervision, regardless of how much good conduct time he might 

accrue; his good conduct time does not make him eligible for parole any sooner 

than he would be without the good conduct time credits. See Tex. Gov’t Code 

Ann. § 508.149(a) (West 2012); Tex. Penal Code Ann. § 22.021(a)(1)(B), (e) 

(West Supp. 2012); Luquis, 72 S.W.3d at 362. Thus, when the jury has found 

 

5Guerrero made no distinction between his rights under the Texas and 

federal constitutions; therefore, these rights may be treated as the same in this 

context. See Luquis v. State, 72 S.W.3d 355, 364 (Tex. Crim. App. 2002). 
10

the defendant guilty of one of the offenses set forth in government code section 

508.149(a), the portion of the statutorily-mandated jury charge discussing good 

conduct time only marginally applies to that defendant. See Luquis, 72 S.W.3d 

at 362. This has led some defendants to argue that the jury instruction on good 

conduct time is a misstatement of the law as it applies to them and is therefore a 

violation of due process rights; however, this argument has been rejected by the 

court of criminal appeals and this court. See id. at 365 n.29; see also, e.g., 

Sanders v. State, 255 S.W.3d 754, 765–66 (Tex. App.—Fort Worth 2008, pet. 

ref’d) (holding article 37.07, § 4(a) charge did not violate appellant’s due process 

rights); Cagle v. State, 23 S.W.3d 590, 594 (Tex. App.—Fort Worth 2000, pet. 

ref’d) (same).

Guerrero recognizes that the court of criminal appeals has held that article 

37.07, section 4(a) is constitutional under the due course of law provision of the 

Texas constitution and the due process of law provision of the United States 

Constitution. Luquis, 72 S.W.3d at 362–64, 368. Guerrero argues, however, that 

article 37.07, section 4(a), as applied to him, does not fall within the constitutional 

safeguard of article IV, section 11(a) of the Texas constitution and is 

unconstitutional for the reasons stated in Rose v. State, 752 S.W.2d 529 (Tex. 

Crim. App. 1987) (op. on reh’g). In Rose, the court of criminal appeals held that

article 37.07, section 4 violated the separation of powers and the due course of 

law provisions of the Texas constitution. 752 S.W.2d at 552–53. Since then,

however, Texas citizens voted to amend article IV, section 11(a) of the Texas 
11

constitution to explicitly authorize the Texas legislature to enact “laws that require 

or permit courts to inform juries about the effect of good conduct time and 

eligibility for parole or mandatory supervision on the period of incarceration 

served by a defendant convicted of a criminal offense.” See Tex. Const. art. IV, 

§ 11(a); Luquis, 72 S.W.3d at 361 (noting that article IV, section 11(a) was 

amended “presumably in reaction to this Court’s decision in Rose”); see also 

Edwards v. State, 807 S.W.2d 338, 340 (Tex. App.—Houston [14th Dist.] 1991, 

pet. ref’d) (holding that the constitutional amendment eliminated “the Rose 

issue”). 

Because the article 37.07, section 4(a) jury instruction neither violated 

Guerrero’s right to due course of law nor constitutes a separation of powers

violation, the trial court did not err by including it in its jury charge. We overrule 

Guerrero’s second issue.

V. CONCLUSION

Having overruled both of Guerrero’s issues, we affirm the trial court’s 

judgment.

PER CURIAM

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: October 25, 2012