In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00306-CR
OSBALDO GONZALES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 286th District Court Hockley County, Texas Trial Court No. 21-02-9974, Honorable Pat Phelan, Presiding
March 24, 2026 MEMORANDUM OPINION Before PARKER, C.J., and DOSS and YARBROUGH, JJ.
Appellant, Osbaldo Gonzales, appeals from his conviction for aggravated sexual
assault of a child, for which he received a fifty-year sentence of confinement.1 By two
issues, Appellant argues that (1) a material variance between the indictment and the proof
subjects him to double jeopardy, requiring acquittal, and (2) his trial counsel was
ineffective during the punishment phase. We affirm.
1 See TEX. PENAL CODE § 22.021(a)(1)(B)(i). MATERIAL VARIANCE
A. Background
A grand jury indicted Appellant for aggravated sexual assault of a child, alleging
that he intentionally and knowingly caused the penetration of the sexual organ of ML, the
complainant,2 a child who was younger than 14 years of age, by Appellant’s finger. At
trial, ML’s mother, who testified as an outcry witness,3 explained that ML told her:
“[Appellant] has been touching me. He’s been touching my private parts. He stuck his
finger in me.” ML’s mother asked if it only happened one time, and ML responded that it
happened twice.
ML similarly testified at trial. On direct examination, the following exchange
occurred with ML:
Q. Okay. There we go. So he touched you inside that part? A. Yes. Q. Yes? A. Yes. Q. Okay. How many times did he do this? A. Twice. Q. Were there any other times? A. Not that I recall.
2 We refer to the complainant using a pseudonym to protect the child’s identity. See TEX. R. APP. P. 9.8, cmt. 3 See TEX. CODE CRIM. PROC. art. 38.072.
2 ML’s mother kept a calendar and, in messages with an investigator, suggested the abuse
may have occurred “around” November 2, 2019. Appellant did not request that the State
be required to elect which of any alleged offenses for which it was seeking a conviction,
nor did he request a unanimity instruction in the charge of the court.
B. Applicable Law and Standard of Review
A variance occurs when there is a discrepancy between the allegations in the
charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex.
Crim. App. 2001). Only a material variance requires reversal because only a material
variance prejudices a defendant’s substantial rights. Id. at 257. A variance is material if
it fails to give the defendant sufficient notice of the charges against him or would not bar
a second prosecution for the same offense. Byrd v. State, 336 S.W.3d 242, 248 (Tex.
Crim. App. 2011).
Ordinarily, when one particular act of sexual assault is alleged in the indictment
and more than one incident of that same act is shown by the evidence, the State must
elect the act upon which it would rely for conviction. Owings v. State, 541 S.W.3d 144,
150 (Tex. Crim. App. 2017). Such a scenario implicates jury unanimity. Cosio v. State,
353 S.W.3d 766, 772 (Tex. Crim. App. 2011). If only one assault is charged but evidence
of more than one is presented and the defendant makes a timely request for the State to
elect the specific unit of prosecution, the trial court errs by failing to order it to do so. Id.
“A defendant’s decision to elect is purely strategic and may be waived or forfeited. A
defendant may choose not to elect so that the State is jeopardy-barred from prosecuting
3 on any of the offenses that were in evidence.” Cosio v. State, 353 S.W.3d 766, 775 (Tex.
C. Analysis
Appellant argues that because he was indicted for only one offense and evidence
of two was presented, a material variance occurred that subjects him to potential
prosecution for the same offense again. We disagree for three reasons.
First, the record does not unambiguously establish that the State presented
evidence of two separate incidents. Asked how many times Appellant touched her inside,
ML responded, “Twice.” But the immediate follow-up question, “Were there any other
times?”, and ML’s answer, “Not that I recall,” suggest ML may have been describing two
penetrations during a single incident rather than two separate occasions of abuse. The
State presented no evidence concerning the location, circumstances, or details of any
second incident. The mother’s calendar notations referencing two possible dates were
not clearly tied to ML’s testimony and may have reflected dates ML stayed overnight with
her grandparents rather than confirmed separate incidents.
Second, even assuming the evidence could be read to suggest two separate
incidents, Appellant’s claim still fails. We recently addressed a similar attempt to recast
a unanimity complaint in different doctrinal clothing. See Magdaleno-Garcia v. State, No.
07-24-00166-CR, 2026 Tex. App. LEXIS 2399, at *4–5 (Tex. App.—Amarillo Mar. 16,
2026, no pet. h.) (mem. op., not designated for publication). There, the appellant
challenged the sufficiency of the evidence based on testimony describing repeated sexual
assaults, arguing the jury could not have unanimously agreed on a specific act for each
4 count. Id. As here, Appellant did not request the State to elect one unit of prosecution.
We observed that the appellant was “attempt[ing] to present an unpreserved unanimity
argument wearing sufficiency clothing.” Id. The distinction mattered, we explained,
“because unanimity and sufficiency are governed by separate bodies of law, analyzed
under different standards, and remedied in fundamentally different ways.” Id.
The same analytical confusion is present here, though Appellant dresses his
unanimity complaint in variance clothing rather than sufficiency clothing. The State
presented evidence precisely matching the offense alleged: digital penetration of ML’s
sexual organ. See Gollihar, 46 S.W.3d at 246. To the extent the evidence can be
construed as showing more than one incident meeting the elements of the indicted
offense, that creates a potential unanimity problem, not a variance. See Cosio, 353
S.W.3d at 772.
Third, Appellant’s double jeopardy concern is misplaced. Because the State did
not elect which offense it proceeded under, it is now barred from prosecuting Appellant
on either offense should two have been shown. See Cosio, 353 S.W.3d at 775.
Appellant’s first issue is overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
By his second issue, Appellant argues that his trial attorney provided ineffective
assistance by failing to object to multiple closing arguments during the punishment phase.
In particular, Appellant cites the following arguments:
5 • “You heard absolutely nothing about our victim, [ML] being a bad person. You heard that, no, she’s a good person.”
• “You know, I’m just going to ask you to go back there and deliberate and to only consider life or 99 years.”
• “He’s not fixable.
Free access — add to your briefcase to read the full text and ask questions with AI
In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00306-CR
OSBALDO GONZALES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 286th District Court Hockley County, Texas Trial Court No. 21-02-9974, Honorable Pat Phelan, Presiding
March 24, 2026 MEMORANDUM OPINION Before PARKER, C.J., and DOSS and YARBROUGH, JJ.
Appellant, Osbaldo Gonzales, appeals from his conviction for aggravated sexual
assault of a child, for which he received a fifty-year sentence of confinement.1 By two
issues, Appellant argues that (1) a material variance between the indictment and the proof
subjects him to double jeopardy, requiring acquittal, and (2) his trial counsel was
ineffective during the punishment phase. We affirm.
1 See TEX. PENAL CODE § 22.021(a)(1)(B)(i). MATERIAL VARIANCE
A. Background
A grand jury indicted Appellant for aggravated sexual assault of a child, alleging
that he intentionally and knowingly caused the penetration of the sexual organ of ML, the
complainant,2 a child who was younger than 14 years of age, by Appellant’s finger. At
trial, ML’s mother, who testified as an outcry witness,3 explained that ML told her:
“[Appellant] has been touching me. He’s been touching my private parts. He stuck his
finger in me.” ML’s mother asked if it only happened one time, and ML responded that it
happened twice.
ML similarly testified at trial. On direct examination, the following exchange
occurred with ML:
Q. Okay. There we go. So he touched you inside that part? A. Yes. Q. Yes? A. Yes. Q. Okay. How many times did he do this? A. Twice. Q. Were there any other times? A. Not that I recall.
2 We refer to the complainant using a pseudonym to protect the child’s identity. See TEX. R. APP. P. 9.8, cmt. 3 See TEX. CODE CRIM. PROC. art. 38.072.
2 ML’s mother kept a calendar and, in messages with an investigator, suggested the abuse
may have occurred “around” November 2, 2019. Appellant did not request that the State
be required to elect which of any alleged offenses for which it was seeking a conviction,
nor did he request a unanimity instruction in the charge of the court.
B. Applicable Law and Standard of Review
A variance occurs when there is a discrepancy between the allegations in the
charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex.
Crim. App. 2001). Only a material variance requires reversal because only a material
variance prejudices a defendant’s substantial rights. Id. at 257. A variance is material if
it fails to give the defendant sufficient notice of the charges against him or would not bar
a second prosecution for the same offense. Byrd v. State, 336 S.W.3d 242, 248 (Tex.
Crim. App. 2011).
Ordinarily, when one particular act of sexual assault is alleged in the indictment
and more than one incident of that same act is shown by the evidence, the State must
elect the act upon which it would rely for conviction. Owings v. State, 541 S.W.3d 144,
150 (Tex. Crim. App. 2017). Such a scenario implicates jury unanimity. Cosio v. State,
353 S.W.3d 766, 772 (Tex. Crim. App. 2011). If only one assault is charged but evidence
of more than one is presented and the defendant makes a timely request for the State to
elect the specific unit of prosecution, the trial court errs by failing to order it to do so. Id.
“A defendant’s decision to elect is purely strategic and may be waived or forfeited. A
defendant may choose not to elect so that the State is jeopardy-barred from prosecuting
3 on any of the offenses that were in evidence.” Cosio v. State, 353 S.W.3d 766, 775 (Tex.
C. Analysis
Appellant argues that because he was indicted for only one offense and evidence
of two was presented, a material variance occurred that subjects him to potential
prosecution for the same offense again. We disagree for three reasons.
First, the record does not unambiguously establish that the State presented
evidence of two separate incidents. Asked how many times Appellant touched her inside,
ML responded, “Twice.” But the immediate follow-up question, “Were there any other
times?”, and ML’s answer, “Not that I recall,” suggest ML may have been describing two
penetrations during a single incident rather than two separate occasions of abuse. The
State presented no evidence concerning the location, circumstances, or details of any
second incident. The mother’s calendar notations referencing two possible dates were
not clearly tied to ML’s testimony and may have reflected dates ML stayed overnight with
her grandparents rather than confirmed separate incidents.
Second, even assuming the evidence could be read to suggest two separate
incidents, Appellant’s claim still fails. We recently addressed a similar attempt to recast
a unanimity complaint in different doctrinal clothing. See Magdaleno-Garcia v. State, No.
07-24-00166-CR, 2026 Tex. App. LEXIS 2399, at *4–5 (Tex. App.—Amarillo Mar. 16,
2026, no pet. h.) (mem. op., not designated for publication). There, the appellant
challenged the sufficiency of the evidence based on testimony describing repeated sexual
assaults, arguing the jury could not have unanimously agreed on a specific act for each
4 count. Id. As here, Appellant did not request the State to elect one unit of prosecution.
We observed that the appellant was “attempt[ing] to present an unpreserved unanimity
argument wearing sufficiency clothing.” Id. The distinction mattered, we explained,
“because unanimity and sufficiency are governed by separate bodies of law, analyzed
under different standards, and remedied in fundamentally different ways.” Id.
The same analytical confusion is present here, though Appellant dresses his
unanimity complaint in variance clothing rather than sufficiency clothing. The State
presented evidence precisely matching the offense alleged: digital penetration of ML’s
sexual organ. See Gollihar, 46 S.W.3d at 246. To the extent the evidence can be
construed as showing more than one incident meeting the elements of the indicted
offense, that creates a potential unanimity problem, not a variance. See Cosio, 353
S.W.3d at 772.
Third, Appellant’s double jeopardy concern is misplaced. Because the State did
not elect which offense it proceeded under, it is now barred from prosecuting Appellant
on either offense should two have been shown. See Cosio, 353 S.W.3d at 775.
Appellant’s first issue is overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
By his second issue, Appellant argues that his trial attorney provided ineffective
assistance by failing to object to multiple closing arguments during the punishment phase.
In particular, Appellant cites the following arguments:
5 • “You heard absolutely nothing about our victim, [ML] being a bad person. You heard that, no, she’s a good person.”
• “You know, I’m just going to ask you to go back there and deliberate and to only consider life or 99 years.”
• “He’s not fixable. He doesn’t think he did anything wrong. You haven’t seen any remorse . . . .”
• “But you don’t hear any remorse, you hear not alternative explanation, all you hear is blame. Silence that twinkle, fix that switch, do the kill switch. Don’t let him have a twinkle of a memory in his mind of fingering his nine-year-old daughter.”
• “We don’t even have an apology. We can’t get there. Someone that won’t admit to his wrongs in the face of all this evidence even though he told [ML] himself he was sorry and not to tell, not to tell so he could continue. No.”
• “He needs life or 99, our community stands for this, the protection of children, who don’t have a fight or voice in the fight. They don’t even have the ability to fight but you do, and we’re charging you with that.”
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 prevail on a claim that counsel was ineffective, a party must prove two
prongs: (1) that counsel’s representation fell below an objective standard of
reasonableness and (2) there is a reasonable probability that, but for counsel’s deficiency,
the result of the proceeding would have been different. Strickland v. Washington, 466
U.S. 668, 687–88, 694 (1984). An allegation of ineffectiveness must be firmly founded in
the record, and the record must affirmatively demonstrate that the claim has merit.
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
6 When evaluating counsel’s effectiveness under the first 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. Strickland, 466 U.S. at
688–89. We indulge a strong presumption that counsel’s conduct fell within the wide
range of reasonable assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.
1994) (en banc). “In order to succeed with an ineffective-assistance-of-counsel claim
based on counsel’s failure to object, one ‘must show that the trial judge would have
committed error in overruling such objection.’” Ex parte Parra, 420 S.W.3d 821, 824–25
(Tex. Crim. App. 2013) (quoting Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App.
2011)).
There is a strong presumption that counsel’s conduct was reasonable; strategic
decisions made after thorough investigation of law and facts relevant to plausible options
are virtually unchallengeable. Ex parte Flores, 387 S.W.3d 626, 633 (Tex. Crim. App.
2012). Direct appeals are generally inadequate vehicles for Strickland claims because
the record is usually undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.
App. 2005). We will not speculate as to the basis for counsel’s actions; a silent record on
the reasoning behind counsel’s actions is sufficient to deny relief. Badillo v. State, 255
S.W.3d 125, 129 (Tex. App.—San Antonio 2008, no pet.).
Proper jury argument generally falls within one of four areas: (1) summation of the
evidence; (2) reasonable deduction from the evidence; (3) answer to argument of
opposing counsel; and (4) plea for law enforcement. Brown v. State, 270 S.W.3d 564,
570 (Tex. Crim. App. 2008). A proper plea for law enforcement may take many forms, 7 one of which is to argue the relationship between the jury’s verdict and the deterrence of
crime in general. Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990). The State
may argue the impact the jury’s verdict would have on the community or even narrow or
specific groups of the community, but may not argue that the community or any particular
segment expects or demands a particular punishment. Id. at 56. A request for a specific
sentence is otherwise a plea for law enforcement. See, e.g., Barrera v. State, 491 S.W.2d
879, 881 (Tex. Crim. App. 1973) (request for life sentence is a proper plea for law
enforcement). A prosecutor may not inject his personal opinion of a witness’s credibility
during closing argument. Mosley v. State, 666 S.W.3d 670, 674 (Tex. Crim. App. 2023).
The Fifth Amendment generally prohibits a prosecutor from making adverse
comments about a defendant’s decision not to testify at trial. Wead v. State, 129 S.W.3d
126, 128 (Tex. Crim. App. 2004). Indirect or implied allusions to the defendant’s failure
to testify does not violate his rights. Patrick v. State, 906 S.W.2d 481, 490–91 (Tex. Crim.
App. 1995). A remark calling attention to the absence of evidence only the defendant
could supply requires reversal. However, if the language can reasonably be construed
to refer to the appellant’s failure to produce evidence other than his own testimony, the
comment is not improper. Id. at 491.
We begin by noting that some of the complained-of arguments were not improper.
Appellant contends the State improperly bolstered the complainant’s credibility by calling
her a “good person.” We disagree. The State was summarizing the evidence presented
about the complainant rather than inserting personal opinion about her truthfulness. See
8 Mosley, 666 S.W.3d at 674; Stout v. State, 426 S.W.3d 214, 222 (Tex. App.—Houston
[1st Dist.] 2012, no pet.) (“A prosecutor may not attempt to make that credibility
determination for the jury, but she may invite the jury to make its own credibility
determination based on the evidence presented at trial.”).
As noted above, the State’s request for a sentence of ninety-nine years or life is a
proper plea for law enforcement. See Barrera, 491 S.W.2d at 881. So too is the appeal
to protect children in the community. See Harris v. State, 122 S.W.3d 871, 888 (Tex.
App.—Fort Worth 2003, pet. ref’d) (merely referencing the community does not constitute
an improper appeal to community expectations). Because these were permissible
arguments, the trial court would not have erred by overruling an objection to them, and
they cannot serve as the basis for an ineffective assistance claim. See Ex Parte Parra,
420 S.W.3d at 824–25.
The State’s comments on Appellant’s perceived lack of remorse are less
straightforward. Some of the comments appear to stem from Appellant’s closing
argument requesting leniency and an opportunity for redemption and rehabilitation. The
State concedes on appeal that, as a whole, some comments were impermissible but
nonetheless do not rise to the level of ineffective assistance without understanding trial
counsel’s potential strategy.
We agree the State’s arguments were improper. Absent other evidence of
remorse or its absence, the comments called attention to Appellant’s failure to testify.
See Patrick, 906 S.W.2d at 491. However, that is not the end of the analysis. Without
the benefit of a developed record, we are left to speculate as to why Appellant’s trial
9 counsel decided not to object. See, e.g., Thompson v. State, 9 S.W.3d 808, 814 (Tex.
Crim. App. 1999) (“An appellate court should be especially hesitant to declare counsel
ineffective based upon a single alleged miscalculation during what amounts to otherwise
satisfactory representation, especially when the record provides no discernible
explanation of the motivation behind counsel’s actions . . . .”); Orellana v. State, 489
S.W.3d 537, 551 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (Appellant did not
prove trial counsel was ineffective by failing to object to closing argument referencing his
lack of remorse where record is silent as to trial counsel’s reasoning).
The facts of this case are similar to those in Orellana, in which our sister court held
that the silent record failed to supply the information necessary to reverse the judgment.
489 S.W.3d at 551. We agree. Absent an explanation from trial counsel, we cannot
determine that his failure to object was so deficient as to require reversal.
We overrule Appellant’s second issue.
CONCLUSION
Having overruled both issues, we affirm the trial court’s judgment.
Lawrence M. Doss Justice Do not publish.