Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-24-00507-CR
Ronald DIAZ-PEREZ, Appellant
v.
The STATE of Texas, Appellee
From the 406th Judicial District Court, Webb County, Texas Trial Court No. 2018CRF001249D4 Honorable Oscar J. Hale, Jr., Judge Presiding
Opinion by: Rebeca C. Martinez, Chief Justice
Sitting: Rebeca C. Martinez, Chief Justice Adrian A. Spears II, Justice H. Todd McCray, Justice
Delivered and Filed: June 3, 2026
AFFIRMED
A jury convicted appellant Ronald Diaz-Perez on two counts of continuous sexual abuse
of a child, and the trial court assessed punishment at ninety-nine years’ imprisonment on both
counts, to run concurrently. TEX. PENAL CODE ANN. § 21.02. In three issues, Diaz-Perez
complains that (1) his trial counsel rendered ineffective assistance for failing to call an expert
witness; (2) his trial counsel rendered ineffective assistance for failing to request funds to hire an 04-24-00507-CR
expert witness; and (3) the trial court erred by admitting outcry witness testimony beyond the scope
of the State’s notice summary. We affirm.
I. Background
At trial, the jury considered testimony of the complainants, Diaz-Perez’s daughters, Maria 1
and Monica; Diaz-Perez’s ex-wife, “Mother,” who was the outcry witness; and Dr. Armando
Garza, among other witnesses.
Mother testified that Diaz-Perez was her former partner, with whom she shared three
daughters. After they separated, Diaz-Perez had court-ordered visitation with their daughters
every other weekend. When Maria was seven years old, she outcried to Mother that Diaz-Perez
“put his private part inside her mouth. That it would make her vomit. That he would put his private
part in her private part. That every time they would go over there, he would pull down her pants.”
Maria also told Mother that Diaz-Perez touched Monica’s private parts, which Monica confirmed
when Mother confronted her.
Maria, who was fifteen years old at the time of trial, testified that on several occasions
during visits with Diaz-Perez, he touched her “private part” with “his hands and his private part”
and put “his private part inside of mine.” Monica, who was sixteen years old at the time of trial,
testified that on several occasions during visits with Diaz-Perez, he touched her “middle part” and
mouth with “his private part.”
Dr. Garza, a pediatrician, testified as the State’s expert witness. Dr. Garza referenced a
study called It’s Normal to Be Normal, explaining that the hymen can appear normal after sexual
abuse depending on how the abuse occurred, whether the hymen was injured, how many hours
after abuse the hymen was examined, and whether the hymen had healed. He testified that he
1 We use pseudonyms for child complainants and their family to protect the children’s identity. See TEX. R. APP. P. 9.10(a)(3).
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would expect normal findings if an examination occurred more than 96 hours after the sexual
abuse. Dr. Garza examined both Monica and Maria months after the alleged abuse. Both
examinations were normal with no physical manifestations of abuse.
II. Ineffective Assistance of Counsel
In Diaz-Perez’s first and second issues, he contends that his trial counsel was ineffective
in failing to call and request funds to hire an expert witness to rebut Dr. Garza’s testimony.
A. Standard of Review and Applicable Law
To prevail on a claim of ineffective assistance of counsel, a defendant must establish by a
preponderance of evidence that (1) their trial counsel’s performance was deficient, and that (2) the
deficient performance deprived them of a fair trial. Strickland v. Washington, 466 U.S. 668, 687
(1984); Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim. App. 2005). Both Strickland
elements “must be ‘firmly founded in the record’ and ‘the record must affirmatively demonstrate’
the meritorious nature of the claim.” Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App.
2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).
Our review of counsel’s representation is highly deferential, and we presume that counsel’s
conduct fell within the wide range of reasonable and professional assistance. Strickland, 466 U.S.
at 689. It is the defendant’s burden to “overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial strategy.’” Id. (quoting Michel v. Louisiana,
350 U.S. 91, 101 (1955)). “A silent record that provides no explanation for counsel’s actions will
not overcome the strong presumption of reasonable assistance. Thus, if the record does not contain
affirmative evidence of trial counsel’s reasoning or strategy, we presume counsel’s performance
was not deficient.” Johnson v. State, 624 S.W.3d 579, 585 (Tex. Crim. App. 2021) (internal
citations omitted).
-3- 04-24-00507-CR
Before a defendant can claim ineffective assistance of counsel for failing to call a witness,
the defendant must show that there were witnesses available and that their testimonies would have
helped him. Starr v. State, No. 01-18-00947-CR, 2020 WL 4006447, at *6 (Tex. App.—Houston
[1st Dist.] July 16, 2020, no pet.) (mem. op., not designated for publication). Similarly, the failure
to request the appointment of an expert witness does not constitute ineffective assistance of counsel
absent a showing that the witnesses’ testimony would have benefited the defendant. Cate v. State,
124 S.W.3d 922, 927 (Tex. App.—Amarillo 2004, pet. ref’d) (per curiam).
B. Analysis
Diaz-Perez relies on a web search to support his position that expert testimony would have
challenged Dr. Garza’s testimony: “A simple online search reveals that a hymen cannot regrow
once ruptured (WebMD).” Diaz-Perez has not shown that an expert was available to testify, what
that expert would have testified to, or how such testimony would have benefited his defense.
Absent such a showing, ineffective assistance claims based on failure to call or hire an expert fail.
Rodriguez v. State, 459 S.W.3d 184, 199 (Tex. App.—Amarillo 2015, pet. ref’d); see also Lair v.
State, 265 S.W.3d 580, 594 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (“The decision
whether to present witnesses is largely a matter of trial strategy.”). Therefore, based on the record
before us, we cannot say counsel’s performance was ineffective for failing to call or request funds
to hire an expert witness to rebut Dr. Garza’s testimony.
We overrule Diaz-Perez’s first and second issues.
III. Abuse of Discretion
In Diaz-Perez’s third issue, he argues the trial court erred by admitting Mother’s testimony
regarding Maria’s outcry of penile penetration. He contends this testimony was inadmissible
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-24-00507-CR
Ronald DIAZ-PEREZ, Appellant
v.
The STATE of Texas, Appellee
From the 406th Judicial District Court, Webb County, Texas Trial Court No. 2018CRF001249D4 Honorable Oscar J. Hale, Jr., Judge Presiding
Opinion by: Rebeca C. Martinez, Chief Justice
Sitting: Rebeca C. Martinez, Chief Justice Adrian A. Spears II, Justice H. Todd McCray, Justice
Delivered and Filed: June 3, 2026
AFFIRMED
A jury convicted appellant Ronald Diaz-Perez on two counts of continuous sexual abuse
of a child, and the trial court assessed punishment at ninety-nine years’ imprisonment on both
counts, to run concurrently. TEX. PENAL CODE ANN. § 21.02. In three issues, Diaz-Perez
complains that (1) his trial counsel rendered ineffective assistance for failing to call an expert
witness; (2) his trial counsel rendered ineffective assistance for failing to request funds to hire an 04-24-00507-CR
expert witness; and (3) the trial court erred by admitting outcry witness testimony beyond the scope
of the State’s notice summary. We affirm.
I. Background
At trial, the jury considered testimony of the complainants, Diaz-Perez’s daughters, Maria 1
and Monica; Diaz-Perez’s ex-wife, “Mother,” who was the outcry witness; and Dr. Armando
Garza, among other witnesses.
Mother testified that Diaz-Perez was her former partner, with whom she shared three
daughters. After they separated, Diaz-Perez had court-ordered visitation with their daughters
every other weekend. When Maria was seven years old, she outcried to Mother that Diaz-Perez
“put his private part inside her mouth. That it would make her vomit. That he would put his private
part in her private part. That every time they would go over there, he would pull down her pants.”
Maria also told Mother that Diaz-Perez touched Monica’s private parts, which Monica confirmed
when Mother confronted her.
Maria, who was fifteen years old at the time of trial, testified that on several occasions
during visits with Diaz-Perez, he touched her “private part” with “his hands and his private part”
and put “his private part inside of mine.” Monica, who was sixteen years old at the time of trial,
testified that on several occasions during visits with Diaz-Perez, he touched her “middle part” and
mouth with “his private part.”
Dr. Garza, a pediatrician, testified as the State’s expert witness. Dr. Garza referenced a
study called It’s Normal to Be Normal, explaining that the hymen can appear normal after sexual
abuse depending on how the abuse occurred, whether the hymen was injured, how many hours
after abuse the hymen was examined, and whether the hymen had healed. He testified that he
1 We use pseudonyms for child complainants and their family to protect the children’s identity. See TEX. R. APP. P. 9.10(a)(3).
-2- 04-24-00507-CR
would expect normal findings if an examination occurred more than 96 hours after the sexual
abuse. Dr. Garza examined both Monica and Maria months after the alleged abuse. Both
examinations were normal with no physical manifestations of abuse.
II. Ineffective Assistance of Counsel
In Diaz-Perez’s first and second issues, he contends that his trial counsel was ineffective
in failing to call and request funds to hire an expert witness to rebut Dr. Garza’s testimony.
A. Standard of Review and Applicable Law
To prevail on a claim of ineffective assistance of counsel, a defendant must establish by a
preponderance of evidence that (1) their trial counsel’s performance was deficient, and that (2) the
deficient performance deprived them of a fair trial. Strickland v. Washington, 466 U.S. 668, 687
(1984); Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim. App. 2005). Both Strickland
elements “must be ‘firmly founded in the record’ and ‘the record must affirmatively demonstrate’
the meritorious nature of the claim.” Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App.
2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).
Our review of counsel’s representation is highly deferential, and we presume that counsel’s
conduct fell within the wide range of reasonable and professional assistance. Strickland, 466 U.S.
at 689. It is the defendant’s burden to “overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial strategy.’” Id. (quoting Michel v. Louisiana,
350 U.S. 91, 101 (1955)). “A silent record that provides no explanation for counsel’s actions will
not overcome the strong presumption of reasonable assistance. Thus, if the record does not contain
affirmative evidence of trial counsel’s reasoning or strategy, we presume counsel’s performance
was not deficient.” Johnson v. State, 624 S.W.3d 579, 585 (Tex. Crim. App. 2021) (internal
citations omitted).
-3- 04-24-00507-CR
Before a defendant can claim ineffective assistance of counsel for failing to call a witness,
the defendant must show that there were witnesses available and that their testimonies would have
helped him. Starr v. State, No. 01-18-00947-CR, 2020 WL 4006447, at *6 (Tex. App.—Houston
[1st Dist.] July 16, 2020, no pet.) (mem. op., not designated for publication). Similarly, the failure
to request the appointment of an expert witness does not constitute ineffective assistance of counsel
absent a showing that the witnesses’ testimony would have benefited the defendant. Cate v. State,
124 S.W.3d 922, 927 (Tex. App.—Amarillo 2004, pet. ref’d) (per curiam).
B. Analysis
Diaz-Perez relies on a web search to support his position that expert testimony would have
challenged Dr. Garza’s testimony: “A simple online search reveals that a hymen cannot regrow
once ruptured (WebMD).” Diaz-Perez has not shown that an expert was available to testify, what
that expert would have testified to, or how such testimony would have benefited his defense.
Absent such a showing, ineffective assistance claims based on failure to call or hire an expert fail.
Rodriguez v. State, 459 S.W.3d 184, 199 (Tex. App.—Amarillo 2015, pet. ref’d); see also Lair v.
State, 265 S.W.3d 580, 594 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (“The decision
whether to present witnesses is largely a matter of trial strategy.”). Therefore, based on the record
before us, we cannot say counsel’s performance was ineffective for failing to call or request funds
to hire an expert witness to rebut Dr. Garza’s testimony.
We overrule Diaz-Perez’s first and second issues.
III. Abuse of Discretion
In Diaz-Perez’s third issue, he argues the trial court erred by admitting Mother’s testimony
regarding Maria’s outcry of penile penetration. He contends this testimony was inadmissible
-4- 04-24-00507-CR
hearsay because the State’s outcry witness summary did not disclose that Mother would testify
about penile penetration.
An outcry witness may testify to the victim’s out-of-court description of a sexual offense
committed against the child, even though such testimony would ordinarily be inadmissible
hearsay. See Bays v. State, 396 S.W.3d 580, 585–86 (Tex. Crim. App. 2013) (collecting cases).
Texas Code of Criminal Procedure article 38.072, known as the outcry statute, establishes five
requirements for admissibility of an outcry statement. TEX. CODE CRIM. PROC. art. 38.072; see,
e.g., Zarco v. State, 210 S.W.3d 816, 829-830 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
The only requirement at issue here is that the party intending to offer the outcry statement must
provide the adverse party with a written summary of the statement. See TEX. CODE CRIM. PROC.
art. 38.072, §2, (b)(1)(C).
A trial court’s erroneous admission of hearsay evidence, including outcry witness
testimony, is nonconstitutional error subject to harm analysis under Texas Rule of Appellate
Procedure 44.2(b). TEX. R. APP. P. 44.2; see, e.g., Walker v. State, No. 01-21-00323-CR, 2022
WL 17981670, at *5 (Tex. App.—Houston [1st Dist.] Dec. 29, 2022, pet. ref’d). Under Texas
Rule of Appellate Procedure 44.2(b), “an error is reversible only when it has a substantial and
injurious effect or influence in determining the jury’s verdict.” Taylor v. State, 268 S.W.3d 571,
592 (Tex. Crim. App. 2008). “We should not overturn the conviction if we have fair assurance
from an examination of the record as a whole that the error did not influence the jury, or had but
slight effect.” Id.
-5- 04-24-00507-CR
For the purposes of this analysis, we need not determine whether the trial court erred by
permitting Mother’s testimony about what Maria told her regarding penile penetration. The
admission of improper hearsay evidence is harmless when the same evidence is subsequently
admitted without objection. Zarco, 210 S.W.3d at 833.
Mother testified about the abuse Maria reported to her, including that Diaz-Perez “put his
private parts in her private part.” This testimony was not included in the State’s summary of her
outcry testimony, although it did include other acts of abuse. Maria subsequently testified about
the abuse she personally experienced, including that Diaz-Perez “put his private part inside of
mine.” There was no objection to Maria’s testimony. Because Maria’s testimony establishing the
same fact was admitted without objection, any error in admitting Mother’s testimony was
harmless.
Therefore, we overrule Diaz-Perez’s third issue.
Rebeca C. Martinez, Chief Justice
DO NOT PUBLISH
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