Juan Alberto Castro v. the State of Texas

• Court: Texas Court of Appeals, 1st District (Houston)
• Decided: February 27, 2026
• Docket: 01-24-00138-CR
• Status: Published

Opinion

Opinion issued February 27, 2026

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-24-00138-CR ——————————— JUAN ALBERTO CASTRO, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court Harris County, Texas Trial Court Case No. 1564724

MEMORANDUM OPINION

A jury found appellant, Juan Alberto Castro, guilty of the felony offense of

continuous sexual abuse of a child,1 and the trial court assessed his punishment at

confinement for thirty years. In five issues, appellant contends that the State

1 See TEX. PENAL CODE ANN. § 21.02. engaged in prosecutorial misconduct, his trial counsel provided him with

ineffective assistance of counsel, and the trial court erred in admitting certain

evidence, denying his motion for new trial without a hearing, and denying his

motion for mistrial.

We affirm.

Background

Houston Police Department (“HPD”) Officer J. Torres testified that on

February 26, 2017, N.S., the complainant, and her mother came to an HPD station

to file a “sexual abuse report.” They were both upset. The complainant identified

“Juan Castro” as the perpetrator of the offense and stated that it had occurred at an

apartment in Harris County, Texas.2

B.S. testified that she had three siblings: the complainant, T.S., and S.V.3

They shared the same mother. Appellant was S.V.’s father. When appellant came

into B.S.’s life, she was less than ten years old and living at her grandmother’s

house. Appellant was not “very nice” to her. Eventually, B.S. moved into an

apartment with appellant, her mother, the complainant, T.S., and S.V.

According to B.S., the apartment had two bedrooms. B.S. slept in a

bedroom with T.S. and the complainant. B.S. and T.S. shared a bunk bed, and the

2 Officer Torres testified as to the specific address of the apartment. 3 In the record, S.V. is also referred to as S.C., but for clarity, the Court will refer to her as S.V. throughout this memorandum opinion.

2 complainant had a separate bed in the room. S.V. slept in the other bedroom with

appellant and the complainant’s mother.

B.S. further testified that her mother worked overnight, and appellant

worked during the day at his mechanic’s shop. When her mother was at work,

appellant was at the apartment with B.S. and her siblings. B.S. noted that appellant

“always cho[se] to be around [the complainant] more often.” The complainant

would often babysit S.V. at night when their mother was at work, and this meant

that she would sleep in appellant’s bedroom. According to B.S., appellant

“sexually abused” the complainant.

The complainant’s mother testified that she had four daughters. The

complainant was the oldest, then B.S., then T.S., and then S.V. The complainant’s

mother started dating appellant around 2011. At the time, she was living with her

parents, along with B.S., the complainant, and T.S. The complainant’s mother and

appellant had a child together, S.V., in 2013.

At some point, the complainant’s mother and her children moved into an

apartment with appellant, and they lived together for about four years.4 The

complainant was about nine years old when she moved into the apartment with

appellant. The apartment had two bedrooms. B.S., the complainant, and T.S.

4 The complainant’s mother testified as to the address of the apartment.

3 shared one bedroom, and appellant and the complainant’s mother used the other

bedroom. There was one bed in appellant’s bedroom.

While living at the apartment, the complainant’s mother worked overnight

from 11:00 p.m. to 7:00 a.m. at a hospital. She also worked during the day at

appellant’s mechanic’s shop. Appellant worked during the day. Appellant took

care of the children while the complainant’s mother worked. No one else looked

after the children.

The complainant’s mother further testified that in 2013, the complainant

became “quieter, more distant.” The complainant’s mother became worried when

appellant would ask “the girls to stay [up] late night to watch movies when they

had to go to school the next day.” Because the complainant’s mother was working

at night, she could not do anything more than to tell her children “to go to sleep

early” or “to go to sleep after they finished watching the movie.” The

complainant’s mother also noted that in 2013, the complainant had “a hickey on

her neck,” and she asked the complainant about it. At that time, the complainant’s

mother continued living with appellant, but their relationship became more distant,

and she did not feel “safe” around appellant. However, she was still working with

appellant at the mechanic’s shop, although she was not being paid for her work.

The complainant’s mother’s only source of income was her overnight job at the

hospital.

4 In 2015, the complainant’s mother and her children moved out of the

apartment she shared with appellant. The complainant was fourteen years old at

the time. The complainant’s mother and her children moved into a house together

for about eight months, but she could not afford to keep the house. They then

moved in with the complainant’s mother’s parents.

The complainant testified that when she was in fifth grade, her mother

introduced her to appellant, and initially, the complainant considered appellant to

be “a father figure” to her. In 2011, when the complainant was about ten years old,

she began living at appellant’s apartment. While the complainant lived at the

apartment, her mother worked at night, and appellant worked during the day at a

mechanic’s shop. The complainant went to the shop frequently because her mother

also worked there. When the complainant’s mother was at work overnight, the

complainant and her siblings stayed at the apartment with appellant. No one else

babysat the complainant other than appellant.

The complainant testified that she remembered a time when she was eleven

years old, and in the sixth grade, that she was asleep in her bed in her bedroom at

the apartment and she woke up during the night with her shorts and underwear

pulled down toward her ankles. Appellant was rubbing her vagina. B.S. and T.S.

were asleep in their bunk bed at the time. The complainant froze and did not want

to move.

5 Another time, the complainant was lying on the couch watching a movie

with appellant and appellant put a blanket over her. Appellant then touched her

underneath her clothes by putting his hand in her pants and rubbing her vagina.

The complainant’s mother was not home at the time. The touching of her vagina

by appellant while the complainant was on the couch at the apartment occurred

multiple times—probably ten or more times.

The complainant further explained that on one occasion appellant left “[a]

hickey” on her neck. According to the complainant, appellant “had molested [her]

in the morning before [she] went to school” and left the hickey on her neck. The

complainant told her mother that appellant had caused the hickey, but appellant

denied it.

Additionally, there was another incident that took place at appellant’s

mechanic’s shop. Appellant hid the complainant “in one of [the] blind spots of the

cameras” and he “touch[ed]” her under her pants. The complainant also recalled

that another time, in appellant’s bedroom, “he tried to penetrate” her and she

“pushed him off.” Appellant “got pretty upset, so he just left the bed.”

According to the complainant, appellant inappropriately touched her from

2011 to 2015. In 2015, the complainant moved out of appellant’s apartment, and

she had not lived with him since.

6 In 2017, she told her sister “what [appellant] had d[one] . . . to [her],” and

her sister became upset. The complainant’s sister told their mother, and after the

complainant’s mother asked the complainant “if [it] was true,” they went to speak

with law enforcement officers.

The trial court admitted into evidence Exhibit 7, which was a copy of the

Children’s Assessment Center’s records related to the complainant’s sexual assault

examination and the alleged sexual abuse by appellant. The records state that the

complainant disclosed during her medical examination that her “mom’s ex[,] Juan

[C]astro” touched her in a way that she did not like or want. He touched her

“down there, [her] front part” under her clothing. He touched her with his hand

and his penis. He touched her about twenty times overall, and the first time it

occurred, the complainant was eleven or twelve years old. The complainant was in

seventh or eighth grade the last time that appellant touched her inappropriately.

Appellant also made her touch his penis with her hand.

Appellant testified that he started dating the complainant’s mother in 2011.

He also met the complainant in 2011, when she was ten years old. The

complainant, B.S., and T.S. had the same father. In October 2013, the

complainant’s mother and appellant had a child, S.V.

In August 2011, the complainant’s mother and her children moved into

appellant’s apartment with him. The apartment had two bedrooms. The

7 complainant, B.S., and T.S. slept in the primary bedroom because it was bigger,

and appellant, the complainant’s mother, and S.V., after she was born, shared the

other bedroom. The complainant, B.S., and T.S. did not sleep in appellant’s

bedroom overnight. The complainant’s room had a bunk bed and a separate

queen-sized bed.

After the complainant and her siblings moved in with appellant, they

attended school. During the summer, the complainant and her siblings would stay

at the apartment during the day or go to their grandmother’s home. When the

complainant’s mother first moved in with appellant, she worked during the day and

was home at night. Appellant did not arrive back at the apartment until after the

complainant and her siblings were in bed. After S.V. was born in 2013, the

complainant’s mother began working overnight, and appellant worked as an

automotive technician during the day. When this occurred, appellant and the

complainant’s mother stopped sleeping in the same bed at the same time because

the mother was not there.

Appellant further testified that the complainant’s mother worked overnight

at a hospital from 2013 until 2015. And during that time, he was the only adult at

the apartment during the evenings with the complainant and her siblings.

Appellant explained that he thought of the complainant, B.S., and T.S. as his

“own kids.” And while the complainant and her siblings lived with him, he made

8 sure that the family was financially taken care of and that the complainant’s mother

“could at least always attend all of their school activities, PTA meetings, [and]

anything like that.” The complainant’s mother was financially dependent on

appellant; he paid the rent for the apartment and the apartment’s utilities.

Appellant recalled that on one occasion he fell asleep on the queen-sized bed

in the complainant’s bedroom with the complainant while he was watching

television with the complainant and her siblings. However, he stated that he was

never alone with the complainant in her bedroom, with the complainant on the

couch in the apartment, or with the complainant at the apartment. Appellant

agreed that the complainant had slept in his bed in his bedroom, but he stated that

he was not there when that happened. No guests ever stayed the night at the

apartment.

According to appellant, he and the complainant’s mother broke up for the

first time in 2014 because they argued too much. Appellant “kick[ed]” the

complainant’s mother and her children out of the apartment in 2014. After they

broke up, the complainant’s mother still allowed him to see S.V. The complainant

did not make her outcry related to the alleged sexual abuse until 2017.

Appellant stated that he had never touched the complainant inappropriately.

He had never grabbed her or tickled her.

9 Admission of Evidence

In his first issue, appellant argues that the trial court erred in allowing the

admission of Exhibit 7, the Children’s Assessment Center’s records related to the

complainant’s sexual assault examination and the alleged sexual abuse by

appellant, into evidence because the records “contained multiple hearsay

statements from the complainant,” specifically the sections of the records titled,

“Referral Report” and “Questions to the Child.” (Internal quotations omitted.)

Appellant further asserts that Exhibit 7 was not admissible under the “medical

treatment exception” to the hearsay rule and its admission into evidence harmed

appellant.

A trial court’s ruling on the admission of evidence is reviewed for an abuse

of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). A

trial court abuses its discretion if it acts arbitrarily, unreasonably, or without

reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d

372, 380 (Tex. Crim. App. 1990). A trial court’s decision to admit evidence will

be upheld if it is “within the zone of reasonable disagreement.” Green v. State,

934 S.W.2d 92, 102 (Tex. Crim. App. 1996) (internal quotations omitted).

“If an issue has not been preserved for appeal, neither the court of appeals

nor [the Texas Court of Criminal Appeals] should address the merits of that issue.

Ordinarily, a court of appeals should review preservation of error on its own

10 motion.” Ford v. State, 305 S.W.3d 530, 532–33 (Tex. Crim. App. 2009) (internal

footnotes omitted). To preserve a complaint for appellate review, a defendant must

show that he first presented to the trial court a timely request, objection, or motion

stating the specific grounds for his desired ruling. TEX. R. APP. P. 33.1(a); Griggs

v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). Texas Rule of Appellate

Procedure 33.1 requires that a defendant have “stated the grounds for the ruling

that [he] sought from the trial court with sufficient specificity to make the trial

court aware of [his] complaint.” TEX. R. APP. P. 33.1(a)(1)(A); see also Pena v.

State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (it is imperative to avoid

forfeiting complaint on appeal that defendant “let the trial [court] know what he

wants, why he thinks he is entitled to it, and to do so clearly enough for the [trial

court] to understand him at a time when the [court] is in the proper position to do

something about it” (internal quotations omitted)). For this reason, “shotgun

objections,” which cite many grounds for the objection without argument, do not

preserve a complaint for appellate review. Johnson v. State, 263 S.W.3d 287, 290

(Tex. App.—Houston [1st Dist.] 2007, pet. dism’d); Webb v. State, 899 S.W.2d

814, 818 (Tex. App.—Waco 1995, pet. ref’d).

At trial, the State moved to admit Exhibit 7, the complainant’s records from

the Children’s Assessment Center related to her sexual assault examination.

11 Appellant then objected to the admission of Exhibit 7, stating that it “[c]ontain[ed]

hearsay”5 and for “inability to confront.”6 In response, the State argued:

[J]ust to respond to . . . defense’s objection about hearsay and the confrontation clause or the authenticity of these documents -- the medical record[s] exception allows these documents to come in for treatment and diagnosis,[7] and the business record affidavit authenticates these documents. And we certainly can make . . . the complainant . . . available for cross-examination.

The trial court overruled appellant’s objection.

Although appellant’s general hearsay objection would preserve his

complaint for appellate review in most cases, the State, in the trial court, identified

the exception to the hearsay rule on which it relied in its response to appellant’s

hearsay objection. See TEX. R. EVID. 803(4); see also Ponce v. State, 89 S.W.3d

110, 119–20 (Tex. App.—Corpus Christi–Edinburg 2002, no pet.) (“Texas Rule[]

of Evidence 803(4) excepts from the hearsay rule statements made for the purpose

of medical diagnosis or treatment. This exception is based on the assumption that

the patient understands the importance of being truthful with the medical personnel

5 See TEX. R. EVID. 801(d) (defining hearsay), 802 (hearsay not admissible). 6 In its briefing, the State asserts that appellant did not preserve his Confrontation Clause objection to Exhibit 7. Although appellant objected to the admission of Exhibit 7 for “inability to confront” at trial, appellant’s briefing does not appear to argue that the trial court erred in admitting Exhibit 7 because it violated his Sixth Amendment right to confrontation. See TEX. R. APP. P. 38.1(i). Thus, we do not address preservation of any Confrontation Clause complaint. 7 See TEX. R. EVID. 803(4) (exception to hearsay rule, when statement made for purpose of medical diagnosis or treatment).

12 involved to receive an accurate diagnosis and treatment.” (internal citations

omitted)). Appellant did not offer any response to the State’s argument that

Exhibit 7 was admissible under the “medical record[s] exception” to the hearsay

rule. See TEX. R. EVID. 803(4) By failing to respond to the State’s argument,

appellant has forfeited his complaint. See Bledsoe v. State, 479 S.W.3d 491, 495

(Tex. App.—Fort Worth 2016, pet. ref’d) (“Although [defendant’s] general

hearsay objection would preserve his complaint for appellate review in most cases,

the State identified the hearsay exception on which it relied in response to

[defendant’s] objection; therefore, [defendant] was required to further object that

the invoked exception did not apply.”); see also Johnson v. State, No. AP-77,030,

2015 WL 7354609, at *33 (Tex. Crim. App. Nov. 18, 2015) (not designated for

publication) (where defendant lodged generalized “hearsay” objection and State

respond that “complained-of statement met the excited-utterance exception to the

prohibition against hearsay,” defendant failed to preserve error for appellate review

by “neither arguing that the statement failed to meet the excited-utterance

exception nor asserting that her hearsay objection had another basis” (internal

quotations omitted)); Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App.

2009) (“[I]n order to preserve a complaint for appeal, the complaining party must

have done everything necessary to bring the relevant evidentiary rule and its

precise and proper application to the trial court’s attention.”); Lewis v. State, No.

13 02-16-00179-CR, 2017 WL 2686325, at *9 (Tex. App.—Fort Worth June 22,

2017, pet. ref’d) (mem. op., not designated for publication); Meyers v. State, 865

S.W.2d 523, 524–25 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d).

Further, to the extent that appellant, in his briefing, asserts that Exhibit 7 was

inadmissible because it contained “[h]earsay within hearsay,” he did not raise that

objection in the trial court, and it has not been preserved for appellate review. See,

e.g., Santschi v. State, No. 14-15-00771-CR, 2017 WL 3090001, at *7 (Tex.

App.—Houston [14th Dist.] July 20, 2017, no pet.) (mem. op., not designated for

publication); Ponce, 89 S.W.3d at 120 n.8; see also Wilson v. State, 71 S.W.3d

346, 349 (Tex. Crim. App. 2002) (complaint on appeal must comport with

objection made in trial court).

Based on the foregoing, we hold that appellant did not preserve his

complaint about the trial court’s admission of Exhibit 7 into evidence.

Motion for Mistrial

In his third issue, appellant argues that the trial court erred in denying his

motion for mistrial because the State engaged in improper closing jury argument

and appellant was harmed by the trial court’s denial of his motion for mistrial.

“Mistrial is an appropriate remedy in extreme circumstances for a narrow

class of highly prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880,

884 (Tex. Crim. App. 2009) (internal quotations omitted); see also Archie v. State,

14 340 S.W.3d 734, 739 (Tex. Crim. App. 2011) (granting motion for mistrial is

appropriate only when “the objectionable events are so emotionally inflammatory

that curative instructions are not likely to prevent the jury from being unfairly

prejudiced against the defendant” (internal quotations omitted)); Hawkins v. State,

135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (mistrial is trial court’s remedy for

improper conduct that is “so prejudicial that expenditure of further time and

expense would be wasteful and futile” (internal quotations omitted)). Otherwise,

when the prejudice is curable, an instruction by the trial court to disregard

eliminates the need for a mistrial. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim.

App. 2004); see also Davis v. State, 268 S.W.3d 683, 694 (Tex. App.—Fort Worth

2008, pet. ref’d) (noting in most cases injury from improper jury argument can be

cured when trial court instructs jury to disregard argument). We review the trial

court’s denial of a motion for mistrial for an abuse of discretion. Archie, 221

S.W.3d at 699.

In his briefing, appellant complains about the following statements made by

the State during its closing argument to the jury:

1. “We selected you all because you represent different ethnicities, different areas of town, different occupations. When we -- when you find him guilty of sexual assault of a child, we want him to know, and we want everybody else out there to know that they can’t go anywhere in Harris County and touch kids.”

2. “If I had asked everybody what we should do with people that molest children, I’m sure I’d have gotten a million different 15 answers during that jury selection: Castrate them, kill them, throw them under the jail. There is a person who molests children. What is Harris County gonna do? You’re Harris County, by the way.”

3. “If why I knew I can come to be on a jury, it’d be -- we -- we’d take care of a lot of people like [appellant].”

4. “It’s unrefuted that the only person in that house when [the complainant’s mother] was gone was [appellant].”

5. “[W]e shift the focus from the sexual abuse, and then we blame the child. Why didn’t you say anything? Why didn’t you speak up immediately when it happened?”

6. “I try these cases every week. In fact, I’m meeting with somebody on Friday. They don’t want you to pay attention to [appellant] putting his fingers on [the complainant’s] vagina.”

7. “There are a bunch of stats I could throw out to you about when children disclose. I can tell you that 83 percent --”

8. “It couldn’t have been him. Hear the same thing about Jared Fogle, the Subway guy.” 9. “[W]e don’t, you know, hand people the script to say on the stand to the jury.”

10. “We didn’t offer [the complainant] a scholarship.”

11. “What does [the complainant] win for doing this? She gets nothing except for justice for what happened at the hands of the defendant, because I assure you we -- we gave her nothing.”

12. “We don’t tell our witnesses what to say. We don’t feed them information. We don’t make them read the paper that they wrote the first time.”

“The right to a trial untainted by improper jury argument is forfeitable.”

Hernandez v. State, 538 S.W.3d 619, 622 (Tex. Crim. App. 2018). To preserve 16 error with respect to an improper jury argument, a defendant must:

(1) contemporaneously object to the statement made by the State; (2) if sustained,

request that the jury be instructed to disregard the statement; and (3) if the

instruction is given, move for a mistrial. Cook v. State, 858 S.W.2d 467, 473 (Tex.

Crim. App. 1993); see also TEX. R. APP. P. 33.1(a). Ordinarily, an instruction by

the trial court to disregard the remark is sufficient to cure error. Wesbrook v. State,

29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Failure to object to a jury argument

or failure to pursue an adverse ruling to a defendant’s objection to a jury argument

forfeits a defendant’s right to complain about the argument on appeal. See

Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004) (concluding

defendant forfeited improper-jury-argument complaint on appeal by failing to

object).

In his briefing, appellant concedes that he did not object to the second, third,

ninth, tenth, eleventh, and twelfth statements made by the State during its closing

jury argument. Because appellant did not object to those portions of the State’s

argument, we conclude that he has failed to preserve for appellate review his

improper-jury-argument complaint related to those particular statements. See

Cook, 858 S.W.2d at 473; see also Crotts v. State, No. 01-15-01108-CR, 2017 WL

3027657, at *5 (Tex. App.—Houston [1st Dist.] July 18, 2017, pet. ref’d) (mem.

op., not designated for publication).

17 As to the closing jury argument statements made by the State that are listed

above in numbers four, five, six, and seven, although appellant objected to those

statements in the trial court, he did not obtain a ruling from the trial court on his

objections. For instance, after appellant objected to statement number four, the

trial court responded: “The -- the jury’s heard the evidence and will be guided

thereby.” It did not overrule or sustain appellant’s objection. In response to

appellant’s objection to statement number five, the trial court also responded: “The

jury’s heard the evidence and will be guided thereby.” Again, it did not overrule or

sustain appellant’s objection. After appellant objected to statement number six, the

trial court responded: “What’s the legal objection?” And when appellant did not

respond, the trial court told the State: “You may continue.” This was not a ruling

on appellant’s objection. Finally, in response to appellant’s objection to statement

number seven, the trial court stated: “Ladies and gentlemen, you’ve heard the

evidence, and you will be guided by the evidence that you’ve heard in this case.

[The State] may continue.” The trial court did not overrule or sustain appellant’s

objection.

A defendant’s failure to pursue an adverse ruling to his objection to the

State’s closing jury argument forfeits the defendant’s right to complain about the

purportedly improper argument on appeal. See Threadgill, 146 S.W.3d at 670; see

also Washington v. State, 16 S.W.3d 70, 73 (Tex. App.—Houston [1st Dist.] 2000,

18 pet. dism’d). Notably, a trial court’s statement that “[t]he jury’s heard the evidence

and will be guided thereby” is not an adverse ruling on a defendant’s objection and

will not preserve error for appeal. See Mayberry v. State, 532 S.W.2d 80, 84 (Tex.

Crim. App. 1975); Humphrey v. State, No. 02-20-00017-CR, 2021 WL 3085751, at

*9 (Tex. App.—Fort Worth July 22, 2021, no pet.) (mem. op., not designated for

publication) (“A trial court’s statement that ‘the jury will remember the evidence’

is not an adverse ruling on an objection and does not serve to preserve error.”);

Rice v. State, Nos. 05-08-00605-CR, 05-08-00606-CR, 2011 WL 4140921, at *3

(Tex. App.—Dallas Sept. 16, 2011, no pet.) (mem. op., not designated for

publication) (trial court’s response that “[t]he jury will remember what the

evidence was” was “not a ruling on the objection” and was “insufficient to

preserve error” (alteration in original) (internal quotations omitted)). Here, we

conclude that appellant failed to obtain an adverse ruling on his objections to the

State’s arguments listed above in numbers four, five, six, and seven, and thus, he

failed to preserve for appeal his complaints as to those allegedly improper

statements.

As to the State’s eighth statement listed above, appellant, following the

State’s remark about “Jared Fogle, the Subway guy,” stated: “I’m gonna object to

who wanted a -- talking about a Subway guy.” In response to appellant’s

objection, the trial court stated: “It’s arguing outside the record. Ladies and

19 gentlemen, disregard the last statement made by the [State]. Do not consider it for

any purpose. You may continue.” Appellant did not request an express ruling on

his objection, and apparently satisfied with the trial court’s instruction, did not

move for a mistrial following the State’s purportedly improper argument.

A trial court implicitly sustains an objection to an improper jury argument

by instructing the jury to disregard the State’s statement. See Routt v. State, No.

01-22-00607-CR, 2023 WL 7135674, at *7 (Tex. App.—Houston [1st Dist.] Oct.

21, 2023, pet. ref’d) (mem. op., not designated for publication); Brockway v. State,

853 S.W.2d 174, 176 (Tex. App.—Corpus Christi–Edinburg 1993, pet. ref’d) (trial

court “implicitly sustained the objection by instructing the jury to disregard the

prosecutor’s comment”); see also Thomas v. State, No. 14-18-00115-CR, 2019 WL

3227546, at *1 (Tex. App.—Houston [14th Dist.] July 18, 2019, no pet.) (mem.

op., not designated for publication) (holding trial court implicitly sustained

objection to improper jury argument by asking State to rephrase and instructing

jury to disregard State’s comment). Because, in response to appellant’s objection

to the State’s eighth statement, the trial court gave what was functionally an

instruction to disregard the State’s remark about “Jared Fogle, the Subway guy,”

we conclude that the trial court implicitly sustained appellant’s objection and

instructed the jury to disregard the statement. To preserve his complaint for our

review, however, appellant was then required to move for a mistrial and obtain an

20 adverse ruling on his motion. He did not do so. See Cook, 858 S.W.2d at 473;

Routt, 2023 WL 7135674, at *7; see also Mathis v. State, 67 S.W.3d 918, 927

(Tex. Crim. App. 2002) (reaffirming rule that even if argument is such that it could

not be cured by instruction, defendant is required to object and request mistrial).

We conclude that without an adverse ruling on his motion for mistrial,

appellant’s complaint about the State’s statement listed in number eight is not

preserved for our review. See Archie, 221 S.W.3d at 699 (“To preserve error in

prosecutorial argument, a defendant must pursue to an adverse ruling his

objections to jury argument.”).

Finally, appellant’s last jury-argument complaint, listed first above, concerns

the following remark by the State during its closing argument: “When we -- when

you find him guilty of sexual assault of a child, we want him to know, and we want

everybody else out there to know that they can’t go anywhere in Harris County and

touch kids.”8 In response, appellant objected, stating: “Improper argument

asking -- talking about other people that aren’t in the room, in the city.” The trial

court sustained appellant’s objection and instructed the jury to “disregard the last

8 The quoted portion of the State’s argument is longer in appellant’s briefing, but it appears that appellant’s complaint really centers on the State’s invocation of “the community” of Harris County and not the other portions of the quotation.

21 comment made by the [State]” and to “not consider it for any purpose whatsoever.”

Appellant then moved for a mistrial, which the trial court denied.9

On appeal, appellant argues that the State’s argument to the jury was

improper because it told the jury “[t]hat the people [were] asking the jury to

convict [appellant]” and “[t]hat the community would want [appellant] sent to

prison if the people knew what he had done.”

Although the State is afforded wide latitude in its jury arguments, proper

jury argument falls within four general categories: (1) summation of the

evidence, (2) reasonable deduction from the evidence, (3) answer to argument of

opposing counsel, and (4) plea for law enforcement. Gallo v. State, 239 S.W.3d

757, 767 (Tex. Crim. App. 2007). Proper jury argument is not objectionable. See,

e.g., Carter v. State, No. 01-22-00197-CR, 2022 WL 17813756, at *4 (Tex.

App.—Houston [1st Dist.] Dec. 20, 2022, no pet.) (mem. op., not designated for

9 In his briefing, appellant asserts that his request for a mistrial related not only to the State’s remark listed in number one above, to which appellant objected and received a ruling, but instead, his motion was “a response to the repeated improper arguments mounting to a level that risked dominating the jury’s attention and overtopping [its] ability to focus on the evidence instead of the other improper focuses introduced and urged by the State’s continued improper arguments.” Essentially, appellant asserts that his motion for mistrial related to the “rapid succession of [purportedly] improper arguments” made by the State—arguments for which appellant failed to preserve error. Appellant has not provided any legal authority to support his contention that we may consider any non-preserved error in determining whether the trial court erred in denying his motion for mistrial. See TEX. R. APP. P. 38.1(i). Additionally, the record indicates only that appellant requested a mistrial following the State’s remark listed in number one above.

22 publication); Vasquez v. State, No. 01-19-00031-CR, 2020 WL 3969721, at *6

(Tex. App.—Houston [1st Dist.] July 14, 2020, pet. ref’d) (mem. op., not

designated for publication).

The complained-of remark made by the State during its closing argument

constituted a plea for law enforcement, which is a permissible form of jury

argument. See Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990). As

courts have previously concluded, a statement by the State during closing

argument that asks the jury to send a message to the community that violence will

not be tolerated is permissible, and it is proper for the State to argue on behalf of

children during closing and to remind jurors of the effect their verdict may have on

that segment of the community.10 See, e.g., McGee v. State, 774 S.W.2d 229, 240

(Tex. Crim. App. 1989); Goocher v. State, 633 S.W.2d 860, 864 (Tex. Crim. App.

[Panel Op.] 1982) (“I am asking you to enforce it. I’m asking you to do what

needs to be done to send these type[s] of people a message to tell them we’re not

tolerating this type of behavior in our county.” (internal quotations omitted));

10 We note that a prosecutorial argument is improper if it induces the jury to reach a particular verdict based upon the demands, desires, or expectations of the community. See, e.g., Cortez v. State, 683 S.W.2d 419, 421 (Tex. Crim. App. 1984) (holding improper argument: “Now, the only punishment that you can assess that would be any satisfaction at all to the people of this county would be life.” (emphasis omitted)). However, mere reference to “the community” by the State during its closing argument does not constitute an improper appeal to community expectations. Harris v. State, 122 S.W.3d 871, 888 (Tex. App.—Fort Worth 2003, pet. ref’d).

23 Murray v. State, No. 03-09-00541-CR, 2011 WL 2162864, at *6–7 (Tex. App.—

Austin June 1, 2011, pet. ref’d) (mem. op., not designated for publication); see also

Borjan, 787 S.W.2d at 56 (arguments on behalf of children are permissible because

“the jury is reminded of the effect that their verdict may have on the rights of a

particular segment of the community”); Caballero v. State, 919 S.W.2d 919, 924

(Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) (“A prosecutor may argue the

impact of a verdict on the community.”).

“An argument constitutes a proper plea for law enforcement if it urges the

jury to be the voice of the community, rather than asking the jury to lend its ear to

the community.” Harris v. State, 122 S.W.3d 871, 888 (Tex. App.—Fort Worth

2003, pet. ref’d). And a request by the State for the jury to “‘represent the

community’ and ‘send a message’ falls within the parameters of proper argument

as a plea for law enforcement.” Id.; see also Barcenes v. State, 940 S.W.2d 739,

749 (Tex. App.—San Antonio 1997, pet. ref’d) (holding proper State’s argument:

“You know, you’re here because you have been chosen by the community to make

the decision, and that’s it. . . . [D]on’t send a message to the community that

you’re going to believe.”); Caballero, 919 S.W.2d at 924 (holding proper State’s

argument: “[J]urors are sick and tired of this. Jurors are tired of crime because

jurors such as yourself are members of the community you represent. You

represent the community.” (alteration in original) (internal quotations omitted)).

24 Here, we conclude that the State’s argument listed in number one above was

not improper, and as such, we hold that the trial court did not err in denying

appellant’s motion for mistrial based on the complained-of jury argument. See,

e.g., Carter v. State, No. 10-22-00375-CR, 2024 WL 2076475, at *13 (Tex.

App.—Waco May 9, 2024, pet. ref’d) (mem. op., not designated for publication)

(“Since the prosecutor’s argument . . . in this case was not improper, the trial court

did not err in denying [defendant’s] motion for mistrial.”).

We overrule appellant’s third issue as to the portion that has been preserved.

Prosecutorial Misconduct

In his fourth issue, appellant argues that the State engaged in prosecutorial

misconduct because it “repeatedly resorted to improper arguments” during its

closing jury argument. Appellant further asserts that “this pattern of prosecutorial

misconduct deprived [him] of a fair trial.”

Appellant’s prosecutorial misconduct complaint is premised on the allegedly

improper closing jury arguments he complained about in his third issue, listed

above as numbers one through twelve. We have already concluded that the State’s

first statement did not constitute an improper jury argument, and thus, it cannot

serve as a basis for appellant’s prosecutorial-misconduct complaint. See, e.g.,

Jumper v. State, No. 02-22-00286-CR, 2024 WL 3059060, at *15 (Tex. App.—

Fort Worth June 20, 2024, pet. ref’d) (mem. op., not designated for publication)

25 (where record did not show that State engaged in improper behavior, defendant

could not prevail on prosecutorial-misconduct complaint). We have also

concluded that appellant did not preserve his complaints as to the State’s

purportedly improper arguments listed above in numbers two through twelve.11

Because appellant has forfeited his right to complain on appeal as to those jury

arguments, they cannot serve as the basis for his prosecutorial-misconduct

complaint either. See, e.g., Powell v. State, No. 04-24-00302-CR, 2025 WL

2793221, at *11 (Tex. App.—San Antonio Oct. 1, 2025, pet. filed) (mem. op., not

designated for publication); Cantu v. State, 678 S.W.3d 331, 351–52 (Tex. App.—

San Antonio 2023, no pet.) (concluding court need not decide whether State’s

closing argument amounted to prosecutorial misconduct because defendant did not

object so “the question of whether the [State’s] conduct was improper [was] not

before” court); see also Forsyth v. State, No. 01-17-00506-CR, 2018 WL 5544423,

at *4 (Tex. App.—Houston [1st Dist.] Oct. 30, 2028, no pet.) (mem. op., not

designated for publication) (“Prosecutorial misconduct is an independent basis for

objection that must be specifically urged to preserve error.”).

11 Appellant also complains about the following statement made by the State during its closing jury argument: “If I had asked everybody what we should do with people that molest children, I’m sure I’d have gotten a million different answers during that jury selection: Castrate them, kill them, throw them under the jail.” Appellant did not object to this portion of the State’s closing jury argument at trial.

26 Further, to the extent that appellant argues that he did not need to object to

the State’s purportedly improper statements during its closing jury argument

because they amounted to fundamental error, we note that the Texas Court of

Criminal Appeals has rejected that argument. In Hernandez, the court explained

that the “right to a trial untainted by improper jury argument is forfeitable” and

“[e]ven an inflammatory jury argument is forfeited if [a] defendant does not pursue

his objection to an adverse ruling.” 538 S.W.3d at 622–23. In doing so, the court

noted that the defendant in Hernandez had argued on appeal that the court should

“hold that error preservation was not required . . . due to the egregious nature of the

[State’s] argument.” Id. at 623. The court declined the defendant’s invitation

though, emphasizing that it would “not elevate the right to be free of improper jury

argument to the status of an absolute requirement like jurisdiction.” Id. Thus, the

court held that “[e]rroneous jury argument must be preserved by objection pursued

to an adverse ruling; otherwise, any error from it is waived.” Id.; see also

Compton v. State, 666 S.W.3d 685, 729 (Tex. Crim. App. 2023) (rejecting

defendant’s argument on appeal that State’s closing arguments “that are so

improper that they rise to the level of prosecutorial misconduct in violation of due

process should be reviewable on appeal even in the absence of a trial-level

objection” (internal quotations omitted)); Morris v. State, 460 S.W.3d 190, 197

(Tex. App.—Houston [14th Dist.] 2015, no pet.) (rejecting defendant’s argument

27 that State’s closing jury argument was “incurable fundamental error” by explaining

that “[e]ven if the State’s argument were incurable and rose to the level that it

deprived [defendant] of his right to due process of law, [defendant] waived []his

complaint by failing to object in the trial court”); Temple v. State, 342 S.W.3d 572,

603 (Tex. App.—Houston [14th Dist.] 2010) (“A defendant must object each time

an improper argument is made, or he waives his complaint, regardless of how

egregious the argument.”), aff’d on other grounds, 390 S.W.3d 341 (Tex. Crim.

App. 2013).

Appellant relies on a previous opinion from this Court to support his

assertion that he need not have objected to the allegedly improper statements made

by the State during its closing jury argument because the comments deprived

appellant of fundamental fairness and due process of law. See Rogers v. State, 725

S.W.2d 350, 351–61 (Tex. App.—Houston [1st Dist.] 1987, no pet.). However,

Rogers did not concern an allegedly unobjected-to improper jury argument by the

State. Instead, in Rogers, the defendant asserted on appeal that the State’s extreme

conduct during the entirety of trial, “particularly [the prosecutor’s] sidebar

remarks, assumption of inflammatory facts not in evidence, prejudicial remarks

stating her personal opinion, and improper bolstering, was manifestly improper and

indicated a willful and calculated effort to deny the [defendant] a fair trial.” Id. at

351. In referencing the State’s improper questioning of witnesses at trial, this

28 Court explained that it must consider that the State “asked the question[s] in bad

faith,” and we emphasized that “[w]here there is serious and continuing

prosecutorial misconduct that undermines the reliability of the factfinding process

or, even worse, transforms the trial into a farce and mockery of justice, as occurred

[in Rogers], resulting in deprivation of fundamental fairness and due process of

law, the defendant is entitled to a new trial even though few objections are

perfected.” Id. at 359–60 (emphasis omitted).

We conclude that the facts of Rogers are distinguishable from the case at

hand. See, e.g., Khan v. State, No. 14-23-00231-CR, 2024 WL 4441034, at *7

(Tex. App.—Houston [14th Dist.] Oct. 8, 2024, pet. ref’d) (mem. op., not

designated for publication) (noting in Rogers “the court determined that

preservation was not necessary because the prosecutor questioned a witness in bad

faith and made inflammatory allegations during the questioning lacking any

evidentiary support”); Johnson v. State, 432 S.W.3d 552, 560–62 (Tex. App.—

Texarkana 2014, pet. ref’d) (holding prosecutorial-misconduct complaint not

preserved and distinguishing Rogers because it “involved flagrant and repeated

misconduct by the prosecutor who repeatedly made side-bar remarks and

suggested inflammatory facts which lacked evidentiary support while

cross-examining the defendant and his character witnesses” and State’s bad

behavior “could serve no purpose other than to inflame and prejudice the minds of

29 the jurors” (internal quotations omitted)); see also Forsyth, 2018 WL 5544423, at

*4–5 (same).

Further, we note that we must apply the binding authority from the Texas

Court of Criminal Appeals which recently held that the failure to object waives a

complaint about the State’s improper closing jury argument.12 See Compton, 666

S.W.3d at 730–31; see also Jumper, 2024 WL 3059060, at *15 (“Rogers was

decided before more recent cases from the Court of Criminal Appeals clarifying

error preservation. In Compton, the Court of Criminal Appeals held that even

prosecutorial misconduct that rises to the level of a due process violation may be

subject to procedural default.” (internal citations omitted)).

Based on the foregoing, we hold that appellant has not preserved his

prosecutorial-misconduct complaint for appellate review. See, e.g., Lopez v. State,

No. 14-23-00885-CR, 2025 WL 1109465, at *4 (Tex. App.—Houston [14th Dist.]

Apr. 15, 2025, pet. ref’d) (mem. op., not designated for publication).

12 We need not decide the extent, if any, to which the Rogers’s preservation exception survives recent Texas Court of Criminal Appeals’ cases because, as noted above, Rogers is distinguishable from the instant case. See, e.g., Jumper v. State, No. 02-22-00286-CR, 2024 WL 3059060, at *15 (Tex. App.—Fort Worth June 20, 2024, pet. ref’d) (mem. op., not designated for publication) (distinguishing Rogers, which concerned “serious and continuing prosecutorial misconduct that undermine[d] the reliability of the factfinding process” and “transform[ed] the trial into a farce and mockery of justice” (internal quotations omitted)).

30 Ineffective Assistance

In his fifth issue, appellant argues that his trial counsel provided him with

ineffective assistance of counsel because his counsel “failed to impeach the

complainant with her [prior] statement that she had never been touched

inappropriately” during the guilt phase of trial and counsel requested that appellant

be placed on community supervision during the punishment phase of trial.

Additionally, appellant asserts that “[t]he totality of trial counsel’s multiple

professional errors prejudiced [appellant’s] right to counsel and undermined

confidence in the outcome of his trial.”

The Sixth Amendment to the United States Constitution guarantees the right

to the reasonably effective assistance of counsel in criminal prosecutions. U.S.

CONST. VI; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); see also

TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.05; Hernandez v.

State, 726 S.W.2d 53, 55–57 (Tex. Crim. App. 1986) (test for ineffective assistance

of counsel same under both federal and state constitutions). To prove a claim of

ineffective assistance of counsel, appellant must show that (1) his trial counsel’s

performance fell below an objective standard of reasonableness and (2) there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687–88, 694 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).

31 Appellant has the burden to establish both prongs of the Strickland test by a

preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim.

App. 1998). “[A]ppellant’s failure to satisfy one prong of the Strickland test

negates a court’s need to consider the other prong.” Williams v. State, 301 S.W.3d

675, 687 (Tex. Crim. App. 2009); see also Strickland, 466 U.S. at 697.

“A reasonable probability is a probability sufficient to undermine confidence

in the outcome.” Strickland, 466 U.S. at 694. In reviewing counsel’s performance,

we look to the totality of the representation to determine the effectiveness of

counsel, indulging a strong presumption that counsel’s performance fell within the

wide range of reasonable professional assistance or trial strategy. See Robertson v.

State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006). To rebut that

presumption, a claim of ineffective assistance must be “firmly founded in the

record,” and “the record must affirmatively demonstrate” the meritorious nature of

the claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012)

(internal quotations omitted).

A. Failure to Impeach

In a portion of his fifth issue, appellant argues that his trial counsel’s

performance fell below an objective standard of reasonableness because counsel,

during the guilt phase of trial, did not “confront the [c]omplainant with her [prior]

inconsistent statement” that she “had never been touched inappropriately.”

32 Generally, a party may impeach a witness with evidence of a prior

inconsistent statement. TEX. R. EVID. 613(a); Lopez v. State, 86 S.W.3d 228, 230

(Tex. Crim. App. 2002). Here, appellant asserts that his trial counsel should have

cross-examined the complainant during her testimony about a statement she made

in 2017 to a Child Protective Services worker that “she had not been touched.”

During her direct examination, the complainant testified as follows:

Q. . . . [H]ad you ever been asked before whether or not something had happened to you?

A. Yes.

Q. When was that?

A. I’m not sure. I don’t remember.

Q. Do you remember what you said?

A. I had said no.

Q. Why did you say no?

A. Again, I didn’t wanna go through all of this.

Appellant’s counsel did not ask the complainant about her prior statement during

his cross-examination. However, the reasoning for counsel’s decision is not

developed in the record.

Allegations of ineffectiveness must be firmly founded in the record.

Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999) (appellate court

should be “highly deferential to trial counsel and avoid the deleterious effects of 33 hindsight”). This is because there is a strong presumption that counsel’s

performance fell within the wide range of reasonable professional assistance or

trial strategy. See Robertson, 187 S.W.3d at 482–83. In most cases, a direct

appeal is an inadequate vehicle for raising an ineffective-assistance-of-counsel

complaint because the record is undeveloped, and a silent record cannot adequately

reflect the motives behind trial counsel’s actions. See Rylander v. State, 101

S.W.3d 107, 110–11 (Tex. Crim. App. 2003) (“[T]rial counsel should ordinarily be

afforded an opportunity to explain his actions before being denounced as

ineffective.”). A silent record that provides no explanation for trial counsel’s

conduct, like the one here, will not overcome the strong presumption of reasonable

assistance. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

Here, trial counsel has not been given an opportunity to explain his actions,13

and we cannot conclude that the “challenged conduct was so outrageous that no

competent attorney would have engaged in it.” See Menefield, 363 S.W.3d at 593

(when trial counsel has not been given opportunity to explain his actions, “the

13 Although appellant filed a motion for new trial, he did not argue in his motion that his trial counsel provided him with ineffective assistance of counsel because counsel failed to impeach the complainant about her prior inconsistent statement. See Hall v. State, No. 02-09-00213-CR, 2010 WL 4570035, at *3 (Tex. App.— Fort Worth Nov. 4, 2010, no pet.) (mem. op., not designated for publication) (noting where defendant filed motion for new trial, but did not raise ineffective-assistance-of-counsel complaint in motion, “any trial strategy that [defendant’s] attorneys may have had for their challenged actions [was] not contained in the record”).

34 appellate court should not find deficient performance unless the challenged

conduct was so outrageous that no competent attorney would have engaged in it”

(internal quotations omitted)); see also Ex parte McFarland, 163 S.W.3d 743, 756

(Tex. Crim. App. 2005) (“Cross-examination is inherently risky, and a decision not

to cross-examine a witness is often the result of wisdom acquired by experience in

the combat of trial. It is frequently a sound trial strategy not to attack a

sympathetic []witness . . . .” (internal footnote omitted)); Dannhaus v. State, 928

S.W.2d 81, 88 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) (“If ineffective,

cross-examination can serve to bolster the credibility of the witness and underscore

the very points that are sought to be impeached. . . . In addition, cross-examining a

sympathetic witness . . . can offend jurors.”).

We hold that appellant has not met his burden of establishing that his

counsel provided him with ineffective assistance of counsel by failing to “confront

the [c]omplainant with [a prior] inconsistent statement.”

We overrule this portion of appellant’s fifth issue.

B. Range of Punishment

In another portion of his fifth issue, appellant argues that his trial counsel’s

performance fell below an objective standard of reasonableness because counsel,

during the punishment phase of trial, did not know “the range of punishment [for

35 the felony offense of] continuous sexual [abuse] of a child” and requested that the

trial court place appellant on “probation.”

The offense of continuous sexual abuse of a child constitutes a first-degree

felony offense, “punishable by imprisonment in the Texas Department of Criminal

Justice for life, or for any term of not more than 99 years or less than 25 years.”

See TEX. PENAL CODE ANN. § 21.02(h); see also Rios v. State, 665 S.W.3d 467,

471 n.9 (Tex. Crim. App. 2022) (defendants convicted of offense of continuous

sexual abuse of child not eligible for community supervision). During the

punishment phase of trial, appellant’s trial counsel “urge[d] the [trial] [c]ourt to

consider the lowest sentence, which, by law, [was] 25 years.”14 Thus, the record

does not reflect that appellant’s trial counsel did not understand the range of

punishment for the first-degree felony offense of continuous sexual abuse of a

child. Cf. Thompson, 9 S.W.3d at 813–14 (allegations of ineffectiveness must be

firmly founded in record).

Further, although trial counsel also “move[d] for a sentence of community

supervision,” the record reflects that counsel did so in connection with his request

for the trial court to find that the statutory scheme that required the punishment

range for the offense of continuous sexual abuse of a child to be assessed at no less

than twenty-five years’ imprisonment constituted cruel and unusual punishment

14 Appellant elected to have the trial court assess his punishment.

36 under the Texas and United States Constitutions. Ultimately, the trial court

considered, but denied, appellant’s request for community supervision in

connection with its denial of his request to find “the statute setting forth the

punishment scheme for . . . continuous sexual abuse of a child [was]

unconstitutional pursuant to both the Texas Constitution and the United States

Constitution.” Cf. Devenport v. State, Nos. 14-20-00292-CR to 14-20-00295-CR,

2021 WL 1972440, at *2–3 (Tex. App.—Houston [14th Dist.] May 18, 2021, no

pet.) (mem. op., not designated for publication) (holding Texas Penal Code section

21.02’s punishment scheme “does not violate federal and statute constitutional

prohibitions on cruel and unusual punishment” (emphasis omitted)).

As stated previously, a trial record alone is rarely sufficient to show

ineffective assistance of counsel. Williams v. State, 526 S.W.3d 581, 583 (Tex.

App.—Houston [1st Dist.] 2017, pet. ref’d). And a silent record that provides no

explanation for trial counsel’s actions will not overcome the strong presumption of

reasonable assistance. Goodspeed, 187 S.W.3d at 392; see also Mata v. State, 226

S.W.3d 425, 431 (Tex. Crim. App. 2007) (noting “presumption that trial counsel’s

performance was reasonably based in sound trial strategy”). Although appellant

filed a motion for new trial, he did not argue in his motion that his trial counsel

provided him with ineffective assistance of counsel during the punishment phase of

trial because counsel did not know “the range of punishment [for the felony

37 offense of] continuous sexual [abuse] of a child” or because counsel requested that

the trial court place appellant on community supervision.

Given that the record in this case does not clearly evidence the reason for

trial counsel’s conduct related to his request for community supervision, and we

cannot conclude that counsel’s conduct was so outrageous that no competent

attorney would have engaged in it, we hold that appellant has not met his burden of

establishing that his counsel provided him with ineffective assistance of counsel by

requesting that the trial court place appellant on “probation.” See Goodspeed, 187

S.W.3d at 392 (in cases where record silent as to trial counsel’s reasoning,

appellate court should find ineffective assistance only if challenged conduct so

outrageous that no competent attorney would have engaged in it).

C. Cumulative Effect of Alleged Errors

In the remaining portion of his fifth issue, appellant asserts that the

cumulative effect of the above alleged deficiencies in his trial counsel’s

performance, as well as trial counsel’s failure to object to the complained-of

portions of the State’s closing jury argument, constituted ineffective assistance of

counsel.

Here, we have concluded, based on the record, that appellant failed to meet

his burden to show that his counsel provided him with ineffective assistance of

38 counsel by failing to “confront the [c]omplainant with [a prior] inconsistent

statement” or by requesting that the trial court place appellant on “probation.”

As to appellant’s additional argument that his trial counsel provided him

with ineffective assistance of counsel because counsel failed to object to certain

allegedly improper statements made by the State during its closing argument,15 we

note that “[e]ven [where] the State’s [closing] argument [i]s improper, that does

not inexorably lead to the conclusion that [a] trial counsel was deficient for not

objecting because counsel may have had a strategic reason for not doing so.” Ex

parte Scott, 541 S.W.3d 104, 120 (Tex. Crim. App. 2017). Because the record is

silent as to trial counsel’s reasoning for failing to object to the purportedly

improper jury argument of the State, we cannot conclude that appellant has met his

burden of establishing that his counsel provided him with ineffective assistance of

counsel nor can we conclude that counsel’s conduct was so outrageous that no

competent attorney would have engaged in it. See Williams v. State, No.

06-19-00272-CR, 2020 WL 7483956, at *4–5 (Tex. App.—Texarkana Dec. 21,

2020, pet. ref’d) (mem. op., not designated for publication) (“Because we can

fathom a reasonable trial strategy in counsel’s failure to object to the prosecutor’s

comment, we find that [defendant] has not met his [burden under] the first

15 These allegedly improper statements by the State about which appellant asserts his counsel should have objected to are listed above, numbers one through twelve, in our discussion of appellant’s third issue. See supra.

39 Strickland prong.”); Bryant v. State, 282 S.W.3d 156, 173 (Tex. App.—Texarkana

2009, pet. ref’d) (even where State engaged in improper jury argument, not finding

ineffective assistance of counsel where record silent as to counsel’s strategy and “it

[was] possible that [defendant’s] trial counsel did not wish to draw further

emphasis to the State’s improper remark by lodging a contemporaneous

objection”); Castoreno v. State, 932 S.W.2d 597, 603 (Tex. App.—San Antonio

1996, pet. ref’d) (counsel does not provide ineffective assistance of counsel

“merely because other counsel may have tried the case differently”).

Because we have concluded, based on the record, that appellant has failed to

meet his burden to show that any of the complained-of conduct by counsel alone

constituted ineffective assistance of counsel, we hold that the cumulative effect of

such actions does not rise to the level of ineffective assistance of counsel. See

Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999)

(acknowledging that non-errors may not, in their cumulative effect, amount to

error); Straight v. State, 515 S.W.3d 553, 576 (Tex. App.—Houston [14th Dist.]

2017, pet. ref’d) (cumulative effect of trial counsel’s actions did not amount to

ineffective assistance because trial counsel did not render ineffective assistance of

counsel in complained-of actions).

We overrule the remaining portion of appellant’s fifth issue.

40 Motion for New Trial Hearing

In his second issue, appellant argues that the trial court erred in denying his

motion for new trial without holding a hearing because appellant’s motion for new

trial “raised matters outside the trial record,” “was property verified,” and “was

timely filed and presented.” Specifically, appellant argues that his motion for new

trial “raised matters not determinable by the record” because it asserted that his

trial counsel was ineffective for “failing to investigate or call witnesses who could

provide mitigation testimony in the punishment phase of trial.”

A defendant in a criminal case “may file a motion for new trial before, but

not later than [thirty] days after, the date when the trial court imposes or suspends

sentence in open court.” TEX. R. APP. P. 21.4(a). But a defendant does not have an

absolute right to a hearing on the motion. Washington v. State, 394 S.W.3d 39, 42

(Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). The purpose of a hearing on a

motion for new trial is (1) to determine whether the case should be retried or (2) to

complete the record for presenting issues on appeal. Id.

A hearing on a motion for new trial is not required when the matters raised

in the motion are subject to being determined from the record. Smith v. State, 286

S.W.3d 333, 338 (Tex. Crim. App. 2009). Conversely, a trial court abuses its

discretion in failing to hold a hearing on a motion for new trial when that motion

raises matters which are not determinable from the record. Id. But, while

41 recognizing that an unrestricted requirement of a hearing on matters not

determinable from the record could lead to “fishing expeditions,” the Texas Court

of Criminal Appeals has also held that even a defendant who has raised such

matters is not entitled to a hearing on his motion for new trial unless he establishes

the existence of reasonable grounds showing that he could be entitled to relief. Id.

at 339 (internal quotations omitted). Thus, as a prerequisite to a hearing when the

grounds in the motion are based on matters not already in the record, the motion

must be supported by an affidavit, either of the defendant or someone else,

specifically setting out the factual basis for the claim. Id. The affidavit need not

establish a prima facie case, or even reflect every component legally required to

establish relief. Id. It is sufficient if a fair reading of it gives rise to reasonable

grounds in support of the claim. Id. But affidavits that are conclusory in nature

and unsupported by facts do not provide the requisite notice of the basis for the

relief claimed; thus, in that circumstance, no hearing is required. Id.

We review a trial court’s decision to deny a hearing on a motion for new

trial for an abuse of discretion. Gonzales v. State, 304 S.W.3d 838, 842 (Tex.

Crim. App. 2010). We will reverse “only when the trial [court]’s decision was so

clearly wrong as to lie outside that zone within which reasonable persons might

disagree.” Id. (internal quotations omitted). Our review is limited to the trial

court’s determination of whether the defendant has raised grounds that are both

42 undeterminable from the record and reasonable, meaning they could entitle the

defendant to relief. Smith, 286 S.W.3d at 340. This is because the trial court’s

discretion extends only to deciding whether these two requirements are satisfied.

Id. If the trial court finds that the defendant has met the criteria, the trial court has

no discretion to withhold a hearing. Id.

In his motion for new trial, the only ground asserted by appellant was that he

did not receive effective assistance of counsel during the punishment phase of trial

because his counsel “failed to interview witnesses” and “failed to call witnesses”

“to testify on [his] behalf.” This is not a complaint that appellant has raised on

appeal. Thus, we conclude that appellant has waived the issue of whether his trial

counsel provided him with ineffective assistance of counsel during the punishment

phase of trial because counsel “failed to interview witnesses” and “failed to call

witnesses” “to testify on [his] behalf.” See Brown v. State, No. 01-23-00197-CR,

2024 WL 3941067, at *1 n.1 (Tex. App.—Houston [1st Dist.] Aug. 27, 2024, no

pet.) (mem. op., not designated for publication) (explaining grounds raised in

motion for new trial that defendant did not then raise on appeal were waived);

Thomas v. State, 615 S.W.3d 552, 558 n.3 (Tex. App.—Houston [1st Dist.] 2020,

no pet.) (noting, because appellant did not raise on appeal certain issues that were

stated in her motion for new trial, she had waived those issues). Accordingly, we

need not consider whether the trial court erred in denying appellant’s motion for

43 new trial without holding a hearing, when the only issue he raised in his motion

has been waived on appeal. See, e.g., Fed. Deposit Ins. Corp. v. Lenk, 361 S.W.3d

602, 604 (Tex. 2012) (directing “[w]hen a party . . . waives an argument on appeal,

an appellate court may not consider the . . . waived issue”); see also Smith, 286

S.W.3d at 339 (trial court does not err in failing to hold hearing if defendant does

not establish existence of reasonable grounds showing he is entitled to relief);

Mitchell v. State, Nos. 09-19-00027-CR to 09-19-00031-CR, 2020 WL 4006151, at

*28 (Tex. App.—Beaumont July 15, 2020, pet. ref’d) (mem. op., not designated

for publication) (holding trial court did not err in denying motion for new trial

without holding hearing where defendant could not prevail on his

ineffective-assistance-of-counsel complaint on appeal, which had served as basis

for motion for new trial).

Conclusion

We affirm the judgment of the trial court.

Kristin Guiney Justice

Panel consists of Justices Rivas-Molloy, Guiney, and Dokupil.

Do not publish. TEX. R. APP. P. 47.2(b).