In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-23-00218-CR ___________________________
HECTOR MARTINEZ PERALEZ JR., Appellant
V.
THE STATE OF TEXAS
On Appeal from the 213th District Court Tarrant County, Texas Trial Court No. 1740511
Before Sudderth, C.J.; Bassel and Womack, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION
I. INTRODUCTION
A jury convicted Appellant Hector Martinez Peralez Jr. of two counts of
aggravated sexual assault of a child and acquitted him of another count of aggravated
sexual assault of a child. See Tex. Penal Code Ann. § 22.021(a)(2)(B). The jury found
that Peralez had previously been convicted of sexual assault of a child, and it assessed
his punishment at life imprisonment for each conviction. The trial court sentenced
him accordingly with the sentences to run concurrently. In three issues, Peralez
argues that (1) the trial court abused its discretion by excluding a prior consistent
statement from a witness, (2) the trial court’s jury charge contained error, and (3) he
was denied effective assistance of counsel at trial. We will affirm.
II. BACKGROUND
A. The Relationship Between Peralez and the Complainant’s Grandmother and the Complainant’s Outcry of Abuse
A.B. (Aubrey)1—the complainant in this case—lived with her mother, father,
and older sister in an apartment in Fort Worth. Aubrey’s paternal grandmother
(Grandmother) lived in a nearby unit in the same apartment complex. Grandmother
managed the apartment complex.
1 To protect the complainant’s anonymity, we use aliases to refer to her, her paternal grandmother, and another victim of Peralez’s abuse. See Tex. R. App. P. 9.8 cmt., 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
2 In or around 2016, Grandmother started dating Peralez, and he moved into her
apartment, where the two of them shared a bedroom. Once or twice a month,
Aubrey and her sister would go over to Grandmother’s apartment, and Grandmother
would look after them while their parents did other things. Aubrey and her sister
called Peralez “[P]apa.”
In May 2022—when Aubrey was seven—she made an outcry of sexual abuse
to her parents. Aubrey relayed that Peralez had “put his tongue between her legs,”
that she had been “told to put her mouth on it,”2 and that he had “put his fingers
inside of her.” Aubrey indicated that the abuse had occurred “multiple times.” Police
were called to respond to Aubrey’s outcry, and she was referred to Alliance for
Children, a children’s advocacy center.
B. The Forensic Interview
In June 2022, Aubrey was forensically interviewed at Alliance for Children.
During the interview, she was asked about the “first” and “last” times that she was
sexually abused by Peralez.
As to the first time Aubrey was abused by Peralez, she stated that she had gone
into Grandmother and Peralez’s bedroom to get under a blanket on the bed because
2 Aubrey’s father testified that when Aubrey relayed that she had been told to “put her mouth on it,” he understood that to refer to Peralez’s “private area.”
3 she was cold, and Peralez then got into the bed.3 Aubrey told the interviewer that
Peralez used his finger to touch her “private part” underneath her clothing. She
stated that Peralez then had her go into the bathroom, where he put his “private part”
in her mouth. Aubrey told the interviewer that Peralez stopped putting his “private
part” in her mouth when Grandmother came in the room. Aubrey then clarified that
Grandmother had not seen Peralez abusing her.4 Aubrey stated that Peralez told her
not to tell anyone about the abuse.
As to the last time she was abused by Peralez, Aubrey’s description of the
abuse to the forensic interviewer largely mirrored her description of the first time she
was abused.5 To that end, Aubrey again stated that she had gone into Grandmother
and Peralez’s bedroom because she was cold. She stated that Peralez “stuck his finger
in her private part,” he told her to go into the bathroom, and he put his “private part”
in her mouth while they were in the bathroom. Aubrey told the interviewer that
Peralez stopped when Grandmother “walked in,” and he told Aubrey to “pretend to
wash . . . her hands.” Aubrey again clarified that Grandmother did not know that
3 At one point during the interview, Aubrey stated that she was six years old the first time she was assaulted by Peralez, although during a later point in the interview, she indicated that she had been five years old when the abuse started.
The forensic interviewer testified that it was her understanding that the assault 4
stopped because Peralez had heard Grandmother approaching. 5 Aubrey stated that she was six years old the last time she was assaulted by Peralez.
4 Peralez was abusing her and that Grandmother had never seen the abuse happen.
Aubrey also stated that Peralez had never touched her “private part” with something
other than his finger.
C. The Sexual Assault Examination
In July 2022, Aubrey was taken to Cook Children’s Medical Center for a sexual
assault examination. Aubrey told the sexual assault nurse examiner (SANE nurse)
that Peralez had “touched [her] privates” and had “made [her] put his private in [her]
mouth.” Aubrey indicated that these incidents had occurred on “[m]ultiple”
occasions in Grandmother and Peralez’s bedroom whenever Grandmother “was busy
or in the kitchen.” In her notes, the SANE nurse noted that Aubrey had described
“vaginal contact” by Peralez’s “finger/hand” and “oral copulation of genitals” of
“patient by assailant” and of “assailant by patient.” The SANE nurse found no
physical injury to Aubrey and no physical evidence of sexual abuse.
D. The Indictment
Peralez was arrested in July 2022. A grand jury indicted him on the following
three counts: (1) Peralez’s mouth contacting Aubrey’s sexual organ (Count One),
(2) his sexual organ contacting her mouth (Count Two), and (3) his finger penetrating
her sexual organ (Count Three).6 The case proceeded to a jury trial in August 2023.
6 Peralez was also indicted on a fourth count that was later waived.
5 E. Relevant Trial Testimony
At trial, Aubrey testified that the abuse had occurred on five occasions.7 As to
the first instance of abuse, Aubrey stated that Peralez had called her into his bedroom
while Grandmother was making lunch in the kitchen.8 Aubrey indicated that Peralez
had told her to get into the bed, so she got into the bed. She stated that Peralez “put
his finger” on her “private area” underneath her clothes and then told her to leave the
room. Aubrey testified that she told her parents about the abuse that day.
As to the other occasions of abuse, Aubrey stated that Peralez “kept doing the
same thing over and over again.” Aubrey initially stated that she did not remember
whether Peralez had ever put his mouth on her “private part,” but she later stated that
she did not want to talk about Peralez putting his mouth on her “private part.” She
also testified that Peralez had put his “private part” in her mouth “in the bedroom”
and that she had never been in the bathroom next to Peralez’s bedroom; later during
the trial, however, she stated that she had been in the bathroom when Peralez put his
“private” in her mouth.9 Aubrey testified that Peralez had touched her privates on the
7 Aubrey was nine years old at the time of trial. 8 At trial, Aubrey stated that she was “either six or five” when Peralez first abused her. 9 A couple of weeks before trial, Aubrey told prosecutors and an investigator that nothing had ever happened with Peralez in the bathroom and that Peralez had never put his “private part” in her mouth. An investigator testified that Aubrey had seemed “nervous” and “scared” during that meeting.
6 third, fourth, and fifth incidents; had put his “private part” in her mouth during all
five incidents; and had put his mouth on her privates during two of the incidents.
Aubrey also testified that Grandmother had never seen her in the bathroom with
Peralez.
Grandmother was a defense witness at trial. She testified that Peralez had told
her from “day one” that he was a sex offender. Due to his previous conviction, she
attempted to keep any children in her apartment separate from him. She maintained,
however, that she kept the children separated from Peralez to protect him, stating that
she “didn’t want him to ever, ever go through this again.” While she tried to keep the
children separate from Peralez, she acknowledged that she sometimes would have to
leave the apartment for “a few minutes” to deal with other tenants in the apartment
complex. Grandmother testified that she never saw Peralez in the bathroom with
Aubrey and that she never saw him sexually abusing Aubrey. While Grandmother
was no longer in a relationship with Peralez at the time of trial, she stated that she still
loved him, that she would always love him, and that he had “never hurt a child and he
never would.”10
Another witness, L.O. (Lindsay), testified about Peralez’s prior instances of
sexual abuse. Lindsay, who was thirty-seven at the time of trial, testified that Peralez
10 Grandmother also stated that Peralez had no hair on his genitals. Aubrey had told the forensic interviewer that she tasted Peralez’s hairs when he put his “private parts” in her mouth.
7 had been married to her aunt. Lindsay described to the jury how Peralez had sexually
abused her on multiple occasions beginning when she was around four years old.11
Lindsay testified that she did not initially tell anyone about the abuse because Peralez
had threatened her mother.
F. The Jury’s Verdict
The jury ultimately convicted Peralez of Counts Two and Three, but it
acquitted Peralez of Count One. After the trial court sentenced him to life
imprisonment in conformity with each guilty verdict, Peralez filed this appeal.
III. DISCUSSION
A. Exclusion of Prior Consistent Statement
In his first issue, Peralez argues that the trial court abused its discretion by
excluding a prior consistent statement from Grandmother that established that she
was not fabricating her testimony out of fear of Peralez.
1. Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018). Under that
standard, the trial court’s decision to admit or exclude evidence will be upheld as long
as it was within the “zone of reasonable disagreement.” Id. If the trial court’s
Lindsay also testified that she had once witnessed Peralez sexually abusing his 11
daughter while he was changing her diaper.
8 evidentiary ruling is correct on any applicable theory of law, we will not disturb it.
De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
2. Applicable Law
Generally, a witness’s prior statement that is consistent with the witness’s trial
testimony is inadmissible hearsay. Bosquez v. State, 446 S.W.3d 581, 585 (Tex. App.—
Fort Worth 2014, pet. ref’d) (mem. op.); see Tex. R. Evid. 613(c) (“Unless
Rule 801(e)(1)(B) provides otherwise, a witness’s prior consistent statement is not
admissible if offered solely to enhance the witness’s credibility.”). A prior consistent
statement is admissible, however, to rebut an express or implied charge against the
declarant of recent fabrication. Bosquez, 446 S.W.3d at 585 (citing Tex. R.
Evid. 801(e)(1)(B)). “[T]here need be only a suggestion that the witness consciously
altered his testimony in order to permit the use of earlier statements that are generally
consistent with the testimony at trial.” Hammons v. State, 239 S.W.3d 798, 804 (Tex.
Crim. App. 2007). To trigger this hearsay exception, (1) the declarant must testify at
trial and be subject to cross-examination, (2) there must be an express or implied
charge of recent fabrication or improper influence or motive of the declarant’s
testimony by the opponent, (3) the proponent must offer a prior statement that is
consistent with the declarant’s challenged in-court testimony, and (4) the prior
consistent statement must be made before the supposed motive to falsify arose. Id.
(citing Tome v. United States, 513 U.S. 150, 156–58, 115 S. Ct. 696, 700–01 (1995)); see
also Bosquez, 446 S.W.3d at 585.
9 3. Analysis
Here, Grandmother testified that in October 2022, while Peralez was in jail, she
made a 911 call in which she reported that he had threatened to kill her on three
occasions. Grandmother told the jury, however, that Peralez had never directly
threatened to kill her; rather, that threat had been relayed by one of his children.
According to Grandmother, she was intoxicated when she made the 911 call, and she
could not remember making it. She also stated that no one had tried to influence her
testimony.
Following Grandmother’s testimony regarding the 911 call, Peralez offered into
evidence a portion of his recorded interview with police following his July 2022 arrest.
During that portion, Peralez and Grandmother spoke on the phone. In that
conversation, Grandmother expressed incredulity at Peralez’s being arrested for
sexually assaulting Aubrey. Grandmother stated that Peralez was never home long
enough to assault Aubrey, that Aubrey and the other kids in the apartment were
always by her side while they were in the apartment, and that committing an act of
sexual assault was time-consuming. Peralez offered that exhibit as a prior consistent
statement. The State objected to the recorded interview based on hearsay, and the
trial court sustained the State’s objection.
Here, there is no dispute that the recorded interview meets three of the four
required elements to fall within the hearsay exception. See Hammons, 239 S.W.3d at
804. To that end, (1) Grandmother testified at trial and was subject to cross-
10 examination, (2) there was an implied charge of recent fabrication or improper
influence in that she had made a 911 call in which she stated that Peralez had
threatened to kill her, and (3) the prior consistent statement (a recorded interview
from July 2022) was made prior to the time the supposed motive to falsify arose (the
911 call was made in October 2022). See id. The element that is in dispute is whether
the offered prior statement is consistent with Grandmother’s challenged in-court
testimony. See id. We will assume, without deciding, that this element has also been
met, and, thus, we will assume, without deciding, that the trial court abused its
discretion by excluding the proffered portion of the recorded interview.
Because the assumed error is not constitutional, we apply Rule 44.2(b). Tex. R.
App. P. 44.2(b); see Bosquez, 446 S.W.3d at 587. That Rule requires us to disregard any
nonconstitutional error that does not affect an appellant’s substantial rights. Tex. R.
App. P. 44.2(b). A substantial right is affected when the error had a “substantial and
injurious effect or influence in determining the jury’s verdict.” Haley v. State,
173 S.W.3d 510, 518 (Tex. Crim. App. 2005); see King v. State, 953 S.W.2d 266, 271
(Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct.
1239, 1253 (1946)). Conversely, an error does not affect a substantial right if the
appellate court has a fair assurance from an examination of the record as a whole that
the error did not influence the jury or that it had but a slight effect. Macedo v. State,
629 S.W.3d 237, 240 (Tex. Crim. App. 2021). In deciding that question, we consider
(1) the character of the alleged error and how it might be considered in connection
11 with other evidence, (2) the nature of the evidence supporting the verdict, (3) the
existence and degree of additional evidence supporting the verdict, and (4) whether
the State emphasized the complained-of error. Id.; Motilla v. State, 78 S.W.3d 352, 355
(Tex. Crim. App. 2002). We may also consider the jury instructions, the State’s theory
and any defensive theories, closing arguments, and even voir dire, if applicable. Haley,
173 S.W.3d at 518–19; Motilla, 78 S.W.3d at 355–56.
Here, the subject portion of the recorded interview simply reflected that
Grandmother did not believe the charges against Peralez and she believed that he
would not have had time to sexually assault Aubrey when Grandmother babysat her.
Similar evidence was admitted during Grandmother’s testimony at trial; thus, any
error in excluding it was harmless. See Womble v. State, 618 S.W.2d 59, 62 (Tex. Crim.
App. [Panel Op.] 1981) (“This court has consistently held reversal is not required by
exclusion of evidence where the same testimony was later admitted without
objection.”); Pierce v. State, No. 05-12-00940-CR, 2013 WL 4017432, at *4 (Tex.
App.—Dallas Aug. 7, 2013, pet. ref’d) (not designated for publication) (“It is well
settled that an error in admission or exclusion of evidence is cured where the same
evidence comes in elsewhere without objection.”). Moreover, any suggestion that
Grandmother’s trial testimony regarding the assault was fabricated was discounted by
other testimony—Grandmother’s testimony that she had been intoxicated during the
911 call, her testimony that she had not been directly threatened by Peralez, her
testimony that she loved Peralez and did not believe that he would ever hurt a child,
12 and Aubrey’s statements that Grandmother did not know about the assault and had
not seen it occur.
In addition, the evidence demonstrating Peralez’s guilt was strong. During her
outcry, the forensic interview, the sexual assault examination, and the trial, Aubrey
maintained that Peralez’s sexual organ had contacted her mouth and that his finger
had penetrated her sexual organ. See Hutson v. State, No. 05-22-00662-CR, 2023 WL
3735229, at *4 (Tex. App.—Dallas May 31, 2023, no pet.) (mem. op., not designated
for publication) (“The testimony of a victim alone, even if that victim is a child, is
sufficient to support a conviction for sexual assault of a child.”); Arriaza v. State,
No. 02-21-00128-CR, 2023 WL 2806255, at *2 (Tex. App.—Fort Worth Apr. 6, 2023,
no pet.) (mem. op., not designated for publication) (“The testimony of a child victim
alone is sufficient to support a conviction for aggravated sexual assault.”).
We conclude that, in the context of the entire case against Peralez, the trial
court’s error, if any, in excluding the prior consistent statement from Grandmother
did not have a substantial or injurious effect on the jury’s verdict and did not affect
Peralez’s substantial rights. See King, 953 S.W.2d at 271–73. Thus, we must disregard
the error. See Tex. R. App. P. 44.2(b). We overrule Peralez’s first issue.
B. Charge Error
In his second issue, Peralez argues that the trial court’s jury charge “failed to
instruct the jury that it must be unanimous as to the particular event underlying each
of the counts alleged in the indictment.”
13 1. Standard of Review
We must review “all alleged jury-charge error . . . regardless of preservation in
the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In
reviewing a jury charge, we first determine whether error occurred; if not, our analysis
ends. Id.
2. Charge Analysis
A jury charge’s purpose is to inform the jury of the law applicable to the case
and to guide them in its application. Beltran De La Torre v. State, 583 S.W.3d 613, 617
(Tex. Crim. App. 2019). A trial court has a duty to instruct the jury on the law
applicable to the case regardless of any objection to the charge by the defendant.
Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); see Tex. Code Crim. Proc.
Ann. art. 36.14. The trial court is ultimately responsible for the accuracy of the jury
charge and the accompanying instructions. Vega, 394 S.W.3d at 518.
Jury unanimity is required in all felony cases by the Texas Constitution, and it is
required in all criminal cases by statute. See Tex. Const. art. V, § 13; Tex. Code Crim.
Proc. Ann. arts. 36.29(a), 37.02, 37.03, 45.034, 45.036; see also Ngo v. State, 175 S.W.3d
738, 745 (Tex. Crim. App. 2005). “This means that the jury must ‘agree upon a single
and discrete incident that would constitute the commission of the offense alleged.’”
Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011) (quoting Stuhler v. State,
218 S.W.3d 706, 717 (Tex. Crim. App. 2007)); see Ngo, 175 S.W.3d at 745 (“Unanimity
14 in this context means that each and every juror agrees that the defendant committed
the same, single, specific criminal act.”).
“[N]on-unanimity may occur when the State charges one offense and presents
evidence that the defendant committed the charged offense on multiple but separate
occasions.” Cosio, 353 S.W.3d at 772. In such a case, each of the multiple incidents
individually establishes a different offense. Id. To satisfy the unanimity requirement
in such a situation, “the jury must be instructed that it must unanimously agree on one
incident of criminal conduct (or unit of prosecution), based on the evidence, that
meets all of the essential elements of the single charged offense beyond a reasonable
doubt.” Id. at 776. The failure to include such an instruction in the jury charge is
error. See id. at 772, 774; Manrrique v. State, No. 02-19-00458-CR, 2021 WL 4205011,
at *11 (Tex. App.—Fort Worth Sept. 16, 2021, no pet.) (mem. op., not designated for
publication).
Here, the jury charge alleged three different counts of aggravated sexual assault
of a child: (1) Peralez’s mouth contacting Aubrey’s sexual organ, (2) his sexual organ
contacting her mouth, and (3) his finger penetrating her sexual organ. The State
presented evidence that Peralez had committed these various offenses on multiple but
separate occasions; accordingly, the trial court erred by failing to include more than a
general unanimity instruction in the charge.12 See Cosio, 353 S.W.3d at 772, 774; Brown
The State argues that a specific unanimity instruction was not required under 12
the facts of this case, pointing out that “the jury charge contained three different
15 v. State, No. 02-22-00190-CR, 2023 WL 4779490, at *6 (Tex. App.—Fort Worth
July 27, 2023, no pet.) (mem. op., not designated for publication) (“[B]ecause the State
presented evidence that [the appellant] had committed a variety of sexual acts with
[the complainant] on multiple but separate occasions, the trial court erred by failing to
include a more specific unanimity instruction in the sexual-assault and indecency jury
charges.”); Hopkins v. State, No. 03-16-00746-CR, 2018 WL 1660831, at *8 (Tex.
App.—Austin Apr. 6, 2018, no pet.) (mem. op., not designated for publication) (“The
State presented evidence that [the] appellant committed the various sexual abuse
offenses alleged on multiple but separate occasions over the course of [the
complainant’s] childhood. . . . Therefore, the trial court should have included an
incident-unanimity instruction in the jury charge.”).
In its brief, the State points out that “[t]he jury charge stated three separate
times that the jury’s verdict must be unanimous” and that “[t]he trial court orally
instructed the jury that its verdict must be unanimous.” But each of those
instructions merely spoke of unanimity in general; the instructions did not tell the jury
that “it must unanimously agree on one incident of criminal conduct (or unit of
prosecution), based on the evidence, that meets all of the essential elements of the
single charged offense beyond a reasonable doubt.” Cosio, 353 S.W.3d at 776. Thus,
counts, each relating to a single separate and distinct offense.” That argument misses the mark. The unanimity issue presented in this case is not merely that Peralez was charged with three distinct offenses; the issue is that the jury heard evidence that Peralez had committed each of the offenses on multiple but separate occasions.
16 the general unanimity instructions given by the trial court did not obviate the need for
a more-specific unanimity instruction. See id. at 773 (“Although the instruction’s
‘boilerplate’ section informed the jury that it must be unanimous, the jury could have
understood it to mean that they had to be unanimous about the offense in general,
not a particular incident comprising the offense.”); Rodriguez v. State, No. 02-18-00057-
CR, 2019 WL 406167, at *3 (Tex. App.—Fort Worth Jan. 31, 2019, no pet.) (mem.
op., not designated for publication) (“[T]he charge contained only a general unanimity
instruction that failed to alert the jurors that they needed to be unanimous about
which incident formed the basis of each of the counts of aggravated sexual assault of
a child. Based on the general unanimity instruction and the evidence showing that
there were multiple instances of aggravated sexual assault occurring on unspecified
dates, there was the possibility of nonunanimous verdicts.”); Hopkins, 2018 WL
1660831, at *8 (“Generic statements regarding unanimity . . . are insufficient to
prevent a non[]unanimous verdict.”).
3. Harm Analysis
Having determined that the trial court erred, we now turn to harm. Because
Peralez did not raise his unanimity complaint with the trial court, we will reverse only
if the trial court’s error resulted in egregious harm. See Nava v. State, 415 S.W.3d 289,
298 (Tex. Crim. App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1985) (op. on reh’g); see also Tex. Code Crim. Proc. Ann. art. 36.19. The
appropriate inquiry for egregious harm is fact- and case-specific. Gelinas v. State,
17 398 S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v. State, 332 S.W.3d 483, 489
(Tex. Crim. App. 2011).
Errors that result in egregious harm are those “that affect the very basis of the
case, deprive the defendant of a valuable right, vitally affect the defensive theory, or
make a case for conviction clearly and significantly more persuasive.” Taylor,
332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172). The purpose of this review is
to illuminate the actual, not just theoretical, harm to the accused. Almanza,
686 S.W.2d at 174. In examining the record to determine whether charge error has
resulted in egregious harm, we consider the actual degree of harm in light of (1) the
entirety of the jury charge; (2) the state of the evidence, including the contested issues
and weight of probative evidence; (3) the arguments of counsel; and (4) any other
relevant information revealed by the trial record as a whole. Id. at 171.
As to the entirety of the charge, as stated above, the jury charge permitted
nonunanimous verdicts based on the evidence presented in the case regarding
multiple instances of sexual abuse. Nothing in the charge mitigated this conclusion.
Accordingly, we conclude that this factor weighs in favor of a finding of egregious
harm. See Rodriguez, 2019 WL 406167, at *5 (concluding that entirety of charge
weighed in favor of egregious harm where it “permitted nonunanimous verdicts based
on the evidence presented in the case regarding multiple instances of sexual abuse”).
As to the state of the evidence, as detailed above, Aubrey maintained—during
her outcry, the forensic interview, the sexual assault examination, and the trial—that
18 Peralez’s sexual organ had contacted her mouth and that his finger had penetrated her
sexual organ. Peralez’s defensive theory was that there were inconsistencies in
Aubrey’s story and that no abuse had occurred. Under those circumstances—where a
complainant testifies about several instances of similar abuse and a defendant
maintains that none of the instances occurred—there is little risk of a nonunanimous
verdict. See Nguyen v. State, No. 14-18-00063-CR, 2021 WL 1881180, at *9 (Tex.
App.—Houston [14th Dist.] May 11, 2011, no pet.) (mem. op., not designated for
publication) (“The court of criminal appeals has repeatedly emphasized that there is
little risk of a non[]unanimous verdict in cases such as this, where one side argues a
theory of repeated sexual abuse, and the other side denies any abuse occurred.”);
Rodriguez, 2019 WL 406167, at *3 (“[B]ecause the evidence reflected that there was a
first incident (which [the complainant] testified about in detail) and almost-daily
incidents thereafter (for which [the complainant] did not provide much detail or
distinguish between), there is ‘no remotely significant risk’ of a nonunanimous
verdict.”); Ruiz v. State, 272 S.W.3d 819, 826–27 (Tex. App.—Austin 2008, no pet.)
(holding that state of the evidence weighed against finding egregious harm when
defendant did not argue that he was guilty of only some of complainant’s allegations
of sexual abuse but instead argued that he had not committed any of the alleged
conduct, leaving the jury with an all-or-nothing decision). We conclude that this
factor weighs against a finding of egregious harm.
19 As to the arguments of counsel, neither the State nor Peralez told the jurors
that they must be unanimous about which act of aggravated sexual assault constituted
each charged offense, nor were they told that they need not be unanimous. This
factor weighs neither for nor against a finding of egregious harm. See Rodriguez,
2019 WL 406167, at *7; Smith v. State, 515 S.W.3d 423, 431 (Tex. App.—Houston
[14th Dist.] 2017, pet. ref’d) (“Here, neither the State nor defense counsel made any
reference to a unanimity requirement; therefore, this factor does not weigh for or
against an egregious-harm finding.”).
As to any other relevant information revealed by the trial record as a whole, we
note that Peralez was acquitted of Count One. See Rodriguez, 2019 WL 406167, at *7
(“Other relevant evidence that we may consider is whether the jury rejected one of
multiple counts.”). But we note that the evidence pertaining to Count One was
markedly weaker than the evidence pertaining to Counts Two and Three. To that
end, Aubrey did not mention in her forensic interview that Peralez’s mouth had
contacted her sexual organ; indeed, she told the forensic interviewer that Peralez had
never touched her “private part” with something other than his finger. Moreover, at
trial, Aubrey initially testified that she could not remember whether Peralez had ever
put his mouth on her “private part,” but she later stated that she did not want to talk
about Peralez putting his mouth on her “private part” before stating that he had done
so on two occasions. Given that evidence, coupled with Peralez’s theory that he had
not committed any of the assaults, this factor weighs neither for nor against a finding
20 of egregious harm. See Maxwell v. State, No. 08-14-00027-CR, 2016 WL 6426784, at *8
(Tex. App.—El Paso Oct. 31, 2016, no pet.) (not designated for publication) (“If the
jury had believed Appellant’s theory [that the complainant had fabricated the
allegations against him], it would have found him not guilty of all of the counts of
indecency. Instead, in finding Appellant guilty of two of the four counts of indecency
towards [the complainant], the jury necessarily disbelieved Appellant’s defensive
evidence.”).
Only one of the four factors—the entirety of the charge—weighs in favor of a
finding of egregious harm. In light of our analysis of these four factors and after
reviewing the appellate record, we cannot conclude that the charge error affected the
very basis of the case, deprived Peralez of a valuable right, vitally affected the
defensive theory, or made a case for conviction clearly and significantly more
persuasive. Accordingly, we hold that he was not egregiously harmed by the
erroneous charge. See Arrington v. State, 451 S.W.3d 834, 839–40 (Tex. Crim.
App. 2015) (holding appellant was not egregiously harmed by charge that omitted
unanimity instruction when entirety of charge was the only factor weighing in favor of
egregious harm); Cosio, 353 S.W.3d at 777–78 (same); Rodriguez, 2019 WL 406167,
at *7 (same). We overrule Peralez’s second issue.
21 C. Ineffective Assistance of Counsel
In his third issue, Peralez argues that he was denied effective assistance of
counsel because his trial counsel “failed to effectively counter impermissible
arguments made by the State during closing argument.”
1. Standard of Review and Applicable Law
The Sixth Amendment guarantees a criminal defendant the effective assistance
of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const.
amend. VI. To establish ineffective assistance, an appellant must prove by a
preponderance of the evidence that his counsel’s representation was deficient and that
the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 2064 (1984); Nava, 415 S.W.3d at 307. The record must affirmatively
demonstrate that the claim has merit. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999). A reviewing court need not address both deficiency and prejudice if the
appellant makes an insufficient showing on one component, nor must a reviewing
court address deficiency and prejudice in any particular order. Strickland, 466 U.S. at
697, 104 S. Ct. at 2069.
In evaluating counsel’s effectiveness under the deficient-performance prong,
we review the totality of the representation and the particular circumstances of the
case to determine whether counsel provided reasonable assistance under all the
circumstances and prevailing professional norms at the time of the alleged error. See
id. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307; Thompson, 9 S.W.3d at 813–
22 14. Our review of counsel’s representation is highly deferential, and we indulge a
strong presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d at
307–08.
An appellate court may not infer ineffective assistance simply from an unclear
record or a record that does not show why counsel failed to do something. Menefield v.
State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425, 432
(Tex. Crim. App. 2007). Trial counsel “should ordinarily be afforded an opportunity
to explain his actions before being denounced as ineffective.” Menefield, 363 S.W.3d at
593. If trial counsel did not have that opportunity, we should not conclude that
counsel performed deficiently unless the challenged conduct was “so outrageous that
no competent attorney would have engaged in it.” Nava, 415 S.W.3d at 308. Direct
appeal is usually inadequate for raising an ineffective-assistance-of-counsel claim
because the record generally does not show counsel’s reasons for any alleged deficient
performance. See Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813–14.
2. Peralez’s Complaints
Peralez complains that he was denied effective assistance of counsel on three
occasions during the State’s closing argument.
First, Peralez complains that his trial counsel should have objected when a
prosecutor told the jury, “And, you know, they’ve spent this entire trial convoluting
what people have said, misrepresenting things to you. That’s -- that’s all they’re good
for. I’m not going to give that oxygen.” According to Peralez, this remark suggested
23 that the defense was “acting unethically and in bad faith” and was “perhaps an
egregious manifestation of striking at the defendant over the shoulder[] of defense
counsel.” See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on
reh’g) (“[I]t is fair to say that a prosecutor runs a risk of improperly striking at a
defendant over the shoulder of counsel when the argument is made in terms of
defense counsel personally and when the argument explicitly impugns defense
counsel’s character.”).
Second, Peralez complains that his trial counsel should have objected when a
prosecutor told the jury, “[O]ur job at the district attorney’s office is [to] do the right
thing. . . . That’s not [defense counsel’s] job.” According to Peralez, this remark was
“blatantly improper under well-settled precedent.” See Wilson v. State, 938 S.W.2d 57,
60 (Tex. Crim. App. 1996) (holding that prosecutor’s comment about his oath to seek
justice and defense counsel’s lack of oath was “manifestly improper”).
Third, Peralez points to the following exchange during the State’s closing
argument to suggest that a prosecutor improperly commented on his demeanor
during trial:
[Prosecutor]: . . . . And, you know, when [Aubrey] was on the stand, she identified this picture of [Peralez]. And he was -- you know, hunched down and couldn’t even -- he didn’t even have the guts to look at her while she testified.
[Defense Counsel]: Objection, Your Honor. That’s a misstatement of everything and an improper jury argument.
24 [Trial Court]: Well, I’m going to sustain the objection at this time. The jury will recall the evidence that they’ve seen.
[Prosecutor]: It’s because he’s scared. He’s scared of her. [Aubrey] was scared of him at one point, but now she has the power back. You guys are going to give her that power back.
Peralez argues that “[t]he State was plainly prohibited from this line of argument
under well[-]settled precedent in the Court of Criminal Appeals.” See Wead v. State,
129 S.W.3d 126, 130 n.8 (Tex. Crim. App. 2004) (“We have recognized that, during
closing argument at the guilt/innocence phase, a prosecutor may not properly
comment upon the defendant’s demeanor in the courtroom, since the defendant’s
demeanor in the courtroom is not evidence of guilt.”) (citing Good v. State, 723 S.W.2d
734, 737 (Tex. Crim. App. 1986)). According to Peralez, his trial counsel should have
asked the trial court to instruct the jury to disregard the prosecutor’s comment after
the trial court sustained his objection. Peralez further argues that his trial counsel
should have objected “when the State persisted on with the same line of argument
that the [trial court] had just sustained.”
3. Analysis
In its brief, the State does not suggest that the complained-of arguments by the
prosecutor were proper. Rather, the State argues that “[t]he record is not sufficiently
developed for this court to make a determination of ineffective assistance of counsel”
and that Peralez “has not met his burden of proving deficient performance or
prejudice.” We agree.
25 Here, the record is silent regarding why Peralez’s trial counsel did not object to
the first two complained-of remarks by the prosecutor. As to the third complained-of
remark, the record is silent regarding why Peralez’s trial counsel did not ask the trial
court to instruct the jury to disregard the prosecutor’s comment after the trial court
sustained his objection, nor does it reflect why Peralez’s trial counsel did not object to
the comment from the prosecutor that followed the trial court’s sustaining of his
objection. Based on this record, we cannot say that Peralez’s trial counsel was
deficient. See Menefield, 363 S.W.3d at 593 (“Trial counsel should ordinarily be
afforded an opportunity to explain his actions before being denounced as ineffective.”
(quotation omitted)); Baugus v. State, No. 02-22-00015-CR, 2023 WL 3370718, at *13
(Tex. App.—Fort Worth May 11, 2023, pet. ref’d) (mem. op., not designated for
publication) (holding that because appellant “d[id] not point to anything in the record
indicating why his trial counsel failed to make . . . objections” to complained-of jury
arguments, appellate court “cannot say that [appellant’s] trial counsel’s performance
was deficient”); Panchol v. State, No. 02-12-00228-CR, 2013 WL 3874763, at *9 (Tex.
App.—Fort Worth July 25, 2013, pet. ref’d) (mem. op., not designated for
publication) (“The record is absolutely silent regarding counsel’s reasons for not
objecting to [the complained-of jury argument made by the State during closing]. . . .
That being the case, Appellant has failed to show by a preponderance of the evidence
that counsel was deficient.”).
26 Further, we are unable to say that no competent attorney would have acted as
Peralez’s trial counsel did during the State’s closing argument. Indeed, Peralez’s trial
counsel may have thought that objecting to the complained-of comments would draw
the jury’s attention to them, as would the trial court’s instructing the jury to disregard
the prosecutor’s comment after the trial court sustained the objection. See Bennett v.
State, No. 07-21-00223-CR, 2022 WL 2230473, at *2 (Tex. App.—Amarillo June 21,
2022, no pet.) (mem. op., not designated for publication) (“It could well be that
counsel’s decision to forgo an objection was a strategical decision. Indeed, courts
have recognized that withholding objection to avoid garnering more attention on a
matter can be reasonable trial strategy.”); Cueva v. State, 339 S.W.3d 839, 892 (Tex.
App.—Corpus Christi–Edinburg 2011, pet. ref’d) (holding that counsel’s decision not
to object to jury argument may have been a strategic decision “to avoid highlighting
such an argument”); see also Brantley v. State, No. 02-19-00349-CR, 2021 WL 3679239,
at *4 (Tex. App.—Fort Worth Aug. 19, 2021, pet. ref’d) (mem. op., not designated for
publication) (“[W]e may not speculate regarding why trial counsel acted as he did and
must presume that a reasonable trial strategy supported his conduct.”). Thus, we hold
that Peralez has not met his burden of showing by a preponderance of the evidence
that his trial counsel’s representation fell below the standard of prevailing professional
norms.13 See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. Because he has not shown
13 We recognize that an attorney’s isolated acts or omissions generally do not constitute deficient performance. See, e.g., Ingham v. State, 679 S.W.2d 503, 509 (Tex.
27 deficient performance, he necessarily cannot show prejudice by any deficiency. See
Nava, 415 S.W.3d at 307. We overrule Peralez’s third issue.
IV. CONCLUSION
Having overruled Peralez’s three issues, we affirm the trial court’s judgments.
/s/ Dana Womack
Dana Womack Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: April 25, 2024
Crim. App. 1984). We note that the record reflects that Peralez’s trial counsel filed several pre-trial motions, that he vigorously cross-examined the State’s witnesses, that he lodged objections to certain of the State’s evidence, and that he called several witnesses on Peralez’s behalf. We further note that Peralez was ultimately acquitted of one of the charges against him. See Chandler v. State, No. 01-08-01017-CR, 2010 WL 457444, at *3 (Tex. App.—Houston [1st Dist.] Feb. 11, 2010, pet. ref’d) (mem. op., not designated for publication) (“Appellant has not shown that counsel’s failure to object resulted in ineffective assistance; in fact, counsel’s efforts resulted in the acquittal of appellant for one of the charges against him.”).