In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-23-00218-CR

___________________________

On Appeal from the 213th District Court

Tarrant County, Texas

Trial Court No. 1740511

Before Sudderth, C.J.; Bassel and Womack, JJ.

Memorandum Opinion by Justice Womack

HECTOR MARTINEZ PERALEZ JR., Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION

I. INTRODUCTION

A jury convicted Appellant Hector Martinez Peralez Jr. of two counts of 

aggravated sexual assault of a child and acquitted him of another count of aggravated 

sexual assault of a child. See Tex. Penal Code Ann. § 22.021(a)(2)(B). The jury found 

that Peralez had previously been convicted of sexual assault of a child, and it assessed 

his punishment at life imprisonment for each conviction. The trial court sentenced 

him accordingly with the sentences to run concurrently. In three issues, Peralez 

argues that (1) the trial court abused its discretion by excluding a prior consistent 

statement from a witness, (2) the trial court’s jury charge contained error, and (3) he 

was denied effective assistance of counsel at trial. We will affirm.

II. BACKGROUND

A. The Relationship Between Peralez and the Complainant’s Grandmother

and the Complainant’s Outcry of Abuse

A.B. (Aubrey)1—the complainant in this case—lived with her mother, father, 

and older sister in an apartment in Fort Worth. Aubrey’s paternal grandmother 

(Grandmother) lived in a nearby unit in the same apartment complex. Grandmother 

managed the apartment complex. 

1To protect the complainant’s anonymity, we use aliases to refer to her, her 

paternal grandmother, and another victim of Peralez’s abuse. See Tex. R. App. P. 9.8 

cmt., 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel

Op.] 1982).
3

In or around 2016, Grandmother started dating Peralez, and he moved into her 

apartment, where the two of them shared a bedroom. Once or twice a month, 

Aubrey and her sister would go over to Grandmother’s apartment, and Grandmother 

would look after them while their parents did other things. Aubrey and her sister 

called Peralez “[P]apa.”

In May 2022—when Aubrey was seven—she made an outcry of sexual abuse 

to her parents. Aubrey relayed that Peralez had “put his tongue between her legs,”

that she had been “told to put her mouth on it,”

2

and that he had “put his fingers 

inside of her.” Aubrey indicated that the abuse had occurred “multiple times.” Police 

were called to respond to Aubrey’s outcry, and she was referred to Alliance for 

Children, a children’s advocacy center. 

B. The Forensic Interview

In June 2022, Aubrey was forensically interviewed at Alliance for Children. 

During the interview, she was asked about the “first” and “last” times that she was 

sexually abused by Peralez. 

As to the first time Aubrey was abused by Peralez, she stated that she had gone 

into Grandmother and Peralez’s bedroom to get under a blanket on the bed because 

2Aubrey’s father testified that when Aubrey relayed that she had been told to 

“put her mouth on it,” he understood that to refer to Peralez’s “private area.”
4

she was cold, and Peralez then got into the bed.

3 Aubrey told the interviewer that 

Peralez used his finger to touch her “private part” underneath her clothing. She 

stated that Peralez then had her go into the bathroom, where he put his “private part”

in her mouth. Aubrey told the interviewer that Peralez stopped putting his “private 

part” in her mouth when Grandmother came in the room. Aubrey then clarified that 

Grandmother had not seen Peralez abusing her.

4 Aubrey stated that Peralez told her 

not to tell anyone about the abuse. 

As to the last time she was abused by Peralez, Aubrey’s description of the 

abuse to the forensic interviewer largely mirrored her description of the first time she 

was abused.5 To that end, Aubrey again stated that she had gone into Grandmother

and Peralez’s bedroom because she was cold. She stated that Peralez “stuck his finger 

in her private part,” he told her to go into the bathroom, and he put his “private part” 

in her mouth while they were in the bathroom. Aubrey told the interviewer that 

Peralez stopped when Grandmother “walked in,” and he told Aubrey to “pretend to 

wash . . . her hands.” Aubrey again clarified that Grandmother did not know that 

3At one point during the interview, Aubrey stated that she was six years old the 

first time she was assaulted by Peralez, although during a later point in the interview, 

she indicated that she had been five years old when the abuse started. 

4The forensic interviewer testified that it was her understanding that the assault 

stopped because Peralez had heard Grandmother approaching. 

5Aubrey stated that she was six years old the last time she was assaulted by

Peralez. 
5

Peralez was abusing her and that Grandmother had never seen the abuse happen. 

Aubrey also stated that Peralez had never touched her “private part” with something 

other than his finger. 

C. The Sexual Assault Examination

In July 2022, Aubrey was taken to Cook Children’s Medical Center for a sexual 

assault examination. Aubrey told the sexual assault nurse examiner (SANE nurse)

that Peralez had “touched [her] privates” and had “made [her] put his private in [her] 

mouth.” Aubrey indicated that these incidents had occurred on “[m]ultiple”

occasions in Grandmother and Peralez’s bedroom whenever Grandmother “was busy 

or in the kitchen.” In her notes, the SANE nurse noted that Aubrey had described 

“vaginal contact” by Peralez’s “finger/hand” and “oral copulation of genitals” of 

“patient by assailant” and of “assailant by patient.” The SANE nurse found no 

physical injury to Aubrey and no physical evidence of sexual abuse. 

D. The Indictment

Peralez was arrested in July 2022. A grand jury indicted him on the following 

three counts: (1) Peralez’s mouth contacting Aubrey’s sexual organ (Count One),

(2) his sexual organ contacting her mouth (Count Two), and (3) his finger penetrating 

her sexual organ (Count Three).

6 The case proceeded to a jury trial in August 2023. 

6Peralez was also indicted on a fourth count that was later waived.
6

E. Relevant Trial Testimony

At trial, Aubrey testified that the abuse had occurred on five occasions.

7 As to 

the first instance of abuse, Aubrey stated that Peralez had called her into his bedroom

while Grandmother was making lunch in the kitchen.8 Aubrey indicated that Peralez 

had told her to get into the bed, so she got into the bed. She stated that Peralez “put 

his finger” on her “private area” underneath her clothes and then told her to leave the 

room. Aubrey testified that she told her parents about the abuse that day. 

As to the other occasions of abuse, Aubrey stated that Peralez “kept doing the 

same thing over and over again.” Aubrey initially stated that she did not remember 

whether Peralez had ever put his mouth on her “private part,” but she later stated that 

she did not want to talk about Peralez putting his mouth on her “private part.” She 

also testified that Peralez had put his “private part” in her mouth “in the bedroom”

and that she had never been in the bathroom next to Peralez’s bedroom; later during 

the trial, however, she stated that she had been in the bathroom when Peralez put his 

“private” in her mouth.9 Aubrey testified that Peralez had touched her privates on the

7Aubrey was nine years old at the time of trial. 

8At trial, Aubrey stated that she was “either six or five” when Peralez first 

abused her.

9A couple of weeks before trial, Aubrey told prosecutors and an investigator 

that nothing had ever happened with Peralez in the bathroom and that Peralez had 

never put his “private part” in her mouth. An investigator testified that Aubrey had 

seemed “nervous” and “scared” during that meeting. 
7

third, fourth, and fifth incidents; had put his “private part” in her mouth during all 

five incidents; and had put his mouth on her privates during two of the incidents. 

Aubrey also testified that Grandmother had never seen her in the bathroom with 

Peralez. 

Grandmother was a defense witness at trial. She testified that Peralez had told 

her from “day one” that he was a sex offender. Due to his previous conviction, she 

attempted to keep any children in her apartment separate from him. She maintained, 

however, that she kept the children separated from Peralez to protect him, stating that 

she “didn’t want him to ever, ever go through this again.” While she tried to keep the 

children separate from Peralez, she acknowledged that she sometimes would have to 

leave the apartment for “a few minutes” to deal with other tenants in the apartment 

complex. Grandmother testified that she never saw Peralez in the bathroom with 

Aubrey and that she never saw him sexually abusing Aubrey. While Grandmother 

was no longer in a relationship with Peralez at the time of trial, she stated that she still 

loved him, that she would always love him, and that he had “never hurt a child and he 

never would.”

10

Another witness, L.O. (Lindsay), testified about Peralez’s prior instances of 

sexual abuse. Lindsay, who was thirty-seven at the time of trial, testified that Peralez 

10Grandmother also stated that Peralez had no hair on his genitals. Aubrey had 

told the forensic interviewer that she tasted Peralez’s hairs when he put his “private 

parts” in her mouth. 
8

had been married to her aunt. Lindsay described to the jury how Peralez had sexually 

abused her on multiple occasions beginning when she was around four years old.11

Lindsay testified that she did not initially tell anyone about the abuse because Peralez 

had threatened her mother. 

F. The Jury’s Verdict

The jury ultimately convicted Peralez of Counts Two and Three, but it 

acquitted Peralez of Count One. After the trial court sentenced him to life 

imprisonment in conformity with each guilty verdict, Peralez filed this appeal.

III. DISCUSSION

A. Exclusion of Prior Consistent Statement

In his first issue, Peralez argues that the trial court abused its discretion by 

excluding a prior consistent statement from Grandmother that established that she 

was not fabricating her testimony out of fear of Peralez. 

1. Standard of Review

We review a trial court’s decision to admit or exclude evidence for an abuse of 

discretion. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018). Under that 

standard, the trial court’s decision to admit or exclude evidence will be upheld as long 

as it was within the “zone of reasonable disagreement.” Id. If the trial court’s 

11Lindsay also testified that she had once witnessed Peralez sexually abusing his 

daughter while he was changing her diaper. 
9

evidentiary ruling is correct on any applicable theory of law, we will not disturb it. 

De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

2. Applicable Law

Generally, a witness’s prior statement that is consistent with the witness’s trial 

testimony is inadmissible hearsay. Bosquez v. State, 446 S.W.3d 581, 585 (Tex. App.—

Fort Worth 2014, pet. ref’d) (mem. op.); see Tex. R. Evid. 613(c) (“Unless 

Rule 801(e)(1)(B) provides otherwise, a witness’s prior consistent statement is not

admissible if offered solely to enhance the witness’s credibility.”). A prior consistent 

statement is admissible, however, to rebut an express or implied charge against the 

declarant of recent fabrication. Bosquez, 446 S.W.3d at 585 (citing Tex. R. 

Evid. 801(e)(1)(B)). “[T]here need be only a suggestion that the witness consciously 

altered his testimony in order to permit the use of earlier statements that are generally 

consistent with the testimony at trial.” Hammons v. State, 239 S.W.3d 798, 804 (Tex. 

Crim. App. 2007). To trigger this hearsay exception, (1) the declarant must testify at 

trial and be subject to cross-examination, (2) there must be an express or implied 

charge of recent fabrication or improper influence or motive of the declarant’s 

testimony by the opponent, (3) the proponent must offer a prior statement that is 

consistent with the declarant’s challenged in-court testimony, and (4) the prior 

consistent statement must be made before the supposed motive to falsify arose. Id. 

(citing Tome v. United States, 513 U.S. 150, 156–58, 115 S. Ct. 696, 700–01 (1995)); see 

also Bosquez, 446 S.W.3d at 585.
10

3. Analysis

Here, Grandmother testified that in October 2022, while Peralez was in jail, she 

made a 911 call in which she reported that he had threatened to kill her on three 

occasions. Grandmother told the jury, however, that Peralez had never directly 

threatened to kill her; rather, that threat had been relayed by one of his children. 

According to Grandmother, she was intoxicated when she made the 911 call, and she 

could not remember making it. She also stated that no one had tried to influence her 

testimony. 

Following Grandmother’s testimony regarding the 911 call, Peralez offered into 

evidence a portion of his recorded interview with police following his July 2022 arrest. 

During that portion, Peralez and Grandmother spoke on the phone. In that 

conversation, Grandmother expressed incredulity at Peralez’s being arrested for 

sexually assaulting Aubrey. Grandmother stated that Peralez was never home long 

enough to assault Aubrey, that Aubrey and the other kids in the apartment were 

always by her side while they were in the apartment, and that committing an act of 

sexual assault was time-consuming. Peralez offered that exhibit as a prior consistent 

statement. The State objected to the recorded interview based on hearsay, and the 

trial court sustained the State’s objection. 

Here, there is no dispute that the recorded interview meets three of the four 

required elements to fall within the hearsay exception. See Hammons, 239 S.W.3d at 

804. To that end, (1) Grandmother testified at trial and was subject to cross-
11

examination, (2) there was an implied charge of recent fabrication or improper 

influence in that she had made a 911 call in which she stated that Peralez had 

threatened to kill her, and (3) the prior consistent statement (a recorded interview 

from July 2022) was made prior to the time the supposed motive to falsify arose (the 

911 call was made in October 2022). See id. The element that is in dispute is whether 

the offered prior statement is consistent with Grandmother’s challenged in-court 

testimony. See id. We will assume, without deciding, that this element has also been 

met, and, thus, we will assume, without deciding, that the trial court abused its 

discretion by excluding the proffered portion of the recorded interview.

Because the assumed error is not constitutional, we apply Rule 44.2(b). Tex. R. 

App. P. 44.2(b); see Bosquez, 446 S.W.3d at 587. That Rule requires us to disregard any 

nonconstitutional error that does not affect an appellant’s substantial rights. Tex. R. 

App. P. 44.2(b). A substantial right is affected when the error had a “substantial and 

injurious effect or influence in determining the jury’s verdict.” Haley v. State, 

173 S.W.3d 510, 518 (Tex. Crim. App. 2005); see King v. State, 953 S.W.2d 266, 271 

(Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 

1239, 1253 (1946)). Conversely, an error does not affect a substantial right if the 

appellate court has a fair assurance from an examination of the record as a whole that 

the error did not influence the jury or that it had but a slight effect. Macedo v. State, 

629 S.W.3d 237, 240 (Tex. Crim. App. 2021). In deciding that question, we consider 

(1) the character of the alleged error and how it might be considered in connection 
12

with other evidence, (2) the nature of the evidence supporting the verdict, (3) the 

existence and degree of additional evidence supporting the verdict, and (4) whether 

the State emphasized the complained-of error. Id.; Motilla v. State, 78 S.W.3d 352, 355 

(Tex. Crim. App. 2002). We may also consider the jury instructions, the State’s theory 

and any defensive theories, closing arguments, and even voir dire, if applicable. Haley, 

173 S.W.3d at 518–19; Motilla, 78 S.W.3d at 355–56.

Here, the subject portion of the recorded interview simply reflected that 

Grandmother did not believe the charges against Peralez and she believed that he 

would not have had time to sexually assault Aubrey when Grandmother babysat her. 

Similar evidence was admitted during Grandmother’s testimony at trial; thus, any 

error in excluding it was harmless. See Womble v. State, 618 S.W.2d 59, 62 (Tex. Crim. 

App. [Panel Op.] 1981) (“This court has consistently held reversal is not required by 

exclusion of evidence where the same testimony was later admitted without 

objection.”); Pierce v. State, No. 05-12-00940-CR, 2013 WL 4017432, at *4 (Tex. 

App.—Dallas Aug. 7, 2013, pet. ref’d) (not designated for publication) (“It is well 

settled that an error in admission or exclusion of evidence is cured where the same 

evidence comes in elsewhere without objection.”). Moreover, any suggestion that 

Grandmother’s trial testimony regarding the assault was fabricated was discounted by 

other testimony—Grandmother’s testimony that she had been intoxicated during the 

911 call, her testimony that she had not been directly threatened by Peralez, her

testimony that she loved Peralez and did not believe that he would ever hurt a child,
13

and Aubrey’s statements that Grandmother did not know about the assault and had 

not seen it occur.

In addition, the evidence demonstrating Peralez’s guilt was strong. During her 

outcry, the forensic interview, the sexual assault examination, and the trial, Aubrey 

maintained that Peralez’s sexual organ had contacted her mouth and that his finger 

had penetrated her sexual organ. See Hutson v. State, No. 05-22-00662-CR, 2023 WL 

3735229, at *4 (Tex. App.—Dallas May 31, 2023, no pet.) (mem. op., not designated

for publication) (“The testimony of a victim alone, even if that victim is a child, is 

sufficient to support a conviction for sexual assault of a child.”); Arriaza v. State,

No. 02-21-00128-CR, 2023 WL 2806255, at *2 (Tex. App.—Fort Worth Apr. 6, 2023,

no pet.) (mem. op., not designated for publication) (“The testimony of a child victim 

alone is sufficient to support a conviction for aggravated sexual assault.”).

We conclude that, in the context of the entire case against Peralez, the trial 

court’s error, if any, in excluding the prior consistent statement from Grandmother

did not have a substantial or injurious effect on the jury’s verdict and did not affect 

Peralez’s substantial rights. See King, 953 S.W.2d at 271–73. Thus, we must disregard 

the error. See Tex. R. App. P. 44.2(b). We overrule Peralez’s first issue.

B. Charge Error

In his second issue, Peralez argues that the trial court’s jury charge “failed to 

instruct the jury that it must be unanimous as to the particular event underlying each 

of the counts alleged in the indictment.” 
14

1. Standard of Review

We must review “all alleged jury-charge error . . . regardless of preservation in 

the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In 

reviewing a jury charge, we first determine whether error occurred; if not, our analysis 

ends. Id.

2. Charge Analysis

A jury charge’s purpose is to inform the jury of the law applicable to the case 

and to guide them in its application. Beltran De La Torre v. State, 583 S.W.3d 613, 617 

(Tex. Crim. App. 2019). A trial court has a duty to instruct the jury on the law 

applicable to the case regardless of any objection to the charge by the defendant. 

Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); see Tex. Code Crim. Proc. 

Ann. art. 36.14. The trial court is ultimately responsible for the accuracy of the jury 

charge and the accompanying instructions. Vega, 394 S.W.3d at 518.

Jury unanimity is required in all felony cases by the Texas Constitution, and it is 

required in all criminal cases by statute. See Tex. Const. art. V, § 13; Tex. Code Crim. 

Proc. Ann. arts. 36.29(a), 37.02, 37.03, 45.034, 45.036; see also Ngo v. State, 175 S.W.3d 

738, 745 (Tex. Crim. App. 2005). “This means that the jury must ‘agree upon a single 

and discrete incident that would constitute the commission of the offense alleged.’” 

Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011) (quoting Stuhler v. State,

218 S.W.3d 706, 717 (Tex. Crim. App. 2007)); see Ngo, 175 S.W.3d at 745 (“Unanimity 
15

in this context means that each and every juror agrees that the defendant committed 

the same, single, specific criminal act.”).

“[N]on-unanimity may occur when the State charges one offense and presents 

evidence that the defendant committed the charged offense on multiple but separate 

occasions.” Cosio, 353 S.W.3d at 772. In such a case, each of the multiple incidents 

individually establishes a different offense. Id. To satisfy the unanimity requirement 

in such a situation, “the jury must be instructed that it must unanimously agree on one 

incident of criminal conduct (or unit of prosecution), based on the evidence, that 

meets all of the essential elements of the single charged offense beyond a reasonable 

doubt.” Id. at 776. The failure to include such an instruction in the jury charge is 

error. See id. at 772, 774; Manrrique v. State, No. 02-19-00458-CR, 2021 WL 4205011, 

at *11 (Tex. App.—Fort Worth Sept. 16, 2021, no pet.) (mem. op., not designated for 

publication).

Here, the jury charge alleged three different counts of aggravated sexual assault

of a child: (1) Peralez’s mouth contacting Aubrey’s sexual organ, (2) his sexual organ 

contacting her mouth, and (3) his finger penetrating her sexual organ. The State 

presented evidence that Peralez had committed these various offenses on multiple but 

separate occasions; accordingly, the trial court erred by failing to include more than a 

general unanimity instruction in the charge.12 See Cosio, 353 S.W.3d at 772, 774; Brown 

12The State argues that a specific unanimity instruction was not required under

the facts of this case, pointing out that “the jury charge contained three different 
16

v. State, No. 02-22-00190-CR, 2023 WL 4779490, at *6 (Tex. App.—Fort Worth 

July 27, 2023, no pet.) (mem. op., not designated for publication) (“[B]ecause the State 

presented evidence that [the appellant] had committed a variety of sexual acts with

[the complainant] on multiple but separate occasions, the trial court erred by failing to 

include a more specific unanimity instruction in the sexual-assault and indecency jury 

charges.”); Hopkins v. State, No. 03-16-00746-CR, 2018 WL 1660831, at *8 (Tex. 

App.—Austin Apr. 6, 2018, no pet.) (mem. op., not designated for publication) (“The 

State presented evidence that [the] appellant committed the various sexual abuse 

offenses alleged on multiple but separate occasions over the course of [the 

complainant’s] childhood. . . . Therefore, the trial court should have included an 

incident-unanimity instruction in the jury charge.”).

In its brief, the State points out that “[t]he jury charge stated three separate 

times that the jury’s verdict must be unanimous” and that “[t]he trial court orally 

instructed the jury that its verdict must be unanimous.” But each of those 

instructions merely spoke of unanimity in general; the instructions did not tell the jury 

that “it must unanimously agree on one incident of criminal conduct (or unit of 

prosecution), based on the evidence, that meets all of the essential elements of the 

single charged offense beyond a reasonable doubt.” Cosio, 353 S.W.3d at 776. Thus, 

counts, each relating to a single separate and distinct offense.” That argument misses 

the mark. The unanimity issue presented in this case is not merely that Peralez was 

charged with three distinct offenses; the issue is that the jury heard evidence that 

Peralez had committed each of the offenses on multiple but separate occasions.
17

the general unanimity instructions given by the trial court did not obviate the need for 

a more-specific unanimity instruction. See id. at 773 (“Although the instruction’s 

‘boilerplate’ section informed the jury that it must be unanimous, the jury could have 

understood it to mean that they had to be unanimous about the offense in general, 

not a particular incident comprising the offense.”); Rodriguez v. State, No. 02-18-00057-

CR, 2019 WL 406167, at *3 (Tex. App.—Fort Worth Jan. 31, 2019, no pet.) (mem. 

op., not designated for publication) (“[T]he charge contained only a general unanimity 

instruction that failed to alert the jurors that they needed to be unanimous about 

which incident formed the basis of each of the counts of aggravated sexual assault of 

a child. Based on the general unanimity instruction and the evidence showing that 

there were multiple instances of aggravated sexual assault occurring on unspecified 

dates, there was the possibility of nonunanimous verdicts.”); Hopkins, 2018 WL 

1660831, at *8 (“Generic statements regarding unanimity . . . are insufficient to 

prevent a non[]unanimous verdict.”).

3. Harm Analysis

Having determined that the trial court erred, we now turn to harm. Because 

Peralez did not raise his unanimity complaint with the trial court, we will reverse only 

if the trial court’s error resulted in egregious harm. See Nava v. State, 415 S.W.3d 289, 

298 (Tex. Crim. App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. 

App. 1985) (op. on reh’g); see also Tex. Code Crim. Proc. Ann. art. 36.19. The 

appropriate inquiry for egregious harm is fact- and case-specific. Gelinas v. State, 
18

398 S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v. State, 332 S.W.3d 483, 489 

(Tex. Crim. App. 2011).

Errors that result in egregious harm are those “that affect the very basis of the 

case, deprive the defendant of a valuable right, vitally affect the defensive theory, or 

make a case for conviction clearly and significantly more persuasive.” Taylor, 

332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172). The purpose of this review is 

to illuminate the actual, not just theoretical, harm to the accused. Almanza, 

686 S.W.2d at 174. In examining the record to determine whether charge error has 

resulted in egregious harm, we consider the actual degree of harm in light of (1) the 

entirety of the jury charge; (2) the state of the evidence, including the contested issues 

and weight of probative evidence; (3) the arguments of counsel; and (4) any other 

relevant information revealed by the trial record as a whole. Id. at 171.

As to the entirety of the charge, as stated above, the jury charge permitted 

nonunanimous verdicts based on the evidence presented in the case regarding 

multiple instances of sexual abuse. Nothing in the charge mitigated this conclusion. 

Accordingly, we conclude that this factor weighs in favor of a finding of egregious 

harm. See Rodriguez, 2019 WL 406167, at *5 (concluding that entirety of charge 

weighed in favor of egregious harm where it “permitted nonunanimous verdicts based 

on the evidence presented in the case regarding multiple instances of sexual abuse”).

As to the state of the evidence, as detailed above, Aubrey maintained—during 

her outcry, the forensic interview, the sexual assault examination, and the trial—that 
19

Peralez’s sexual organ had contacted her mouth and that his finger had penetrated her 

sexual organ. Peralez’s defensive theory was that there were inconsistencies in 

Aubrey’s story and that no abuse had occurred. Under those circumstances—where a 

complainant testifies about several instances of similar abuse and a defendant 

maintains that none of the instances occurred—there is little risk of a nonunanimous 

verdict. See Nguyen v. State, No. 14-18-00063-CR, 2021 WL 1881180, at *9 (Tex. 

App.—Houston [14th Dist.] May 11, 2011, no pet.) (mem. op., not designated for 

publication) (“The court of criminal appeals has repeatedly emphasized that there is 

little risk of a non[]unanimous verdict in cases such as this, where one side argues a 

theory of repeated sexual abuse, and the other side denies any abuse occurred.”); 

Rodriguez, 2019 WL 406167, at *3 (“[B]ecause the evidence reflected that there was a 

first incident (which [the complainant] testified about in detail) and almost-daily 

incidents thereafter (for which [the complainant] did not provide much detail or 

distinguish between), there is ‘no remotely significant risk’ of a nonunanimous 

verdict.”); Ruiz v. State, 272 S.W.3d 819, 826–27 (Tex. App.—Austin 2008, no pet.) 

(holding that state of the evidence weighed against finding egregious harm when 

defendant did not argue that he was guilty of only some of complainant’s allegations 

of sexual abuse but instead argued that he had not committed any of the alleged 

conduct, leaving the jury with an all-or-nothing decision). We conclude that this 

factor weighs against a finding of egregious harm.
20

As to the arguments of counsel, neither the State nor Peralez told the jurors 

that they must be unanimous about which act of aggravated sexual assault constituted 

each charged offense, nor were they told that they need not be unanimous. This 

factor weighs neither for nor against a finding of egregious harm. See Rodriguez, 

2019 WL 406167, at *7; Smith v. State, 515 S.W.3d 423, 431 (Tex. App.—Houston 

[14th Dist.] 2017, pet. ref’d) (“Here, neither the State nor defense counsel made any 

reference to a unanimity requirement; therefore, this factor does not weigh for or 

against an egregious-harm finding.”).

As to any other relevant information revealed by the trial record as a whole, we 

note that Peralez was acquitted of Count One. See Rodriguez, 2019 WL 406167, at *7

(“Other relevant evidence that we may consider is whether the jury rejected one of 

multiple counts.”). But we note that the evidence pertaining to Count One was 

markedly weaker than the evidence pertaining to Counts Two and Three. To that 

end, Aubrey did not mention in her forensic interview that Peralez’s mouth had 

contacted her sexual organ; indeed, she told the forensic interviewer that Peralez had 

never touched her “private part” with something other than his finger. Moreover, at 

trial, Aubrey initially testified that she could not remember whether Peralez had ever 

put his mouth on her “private part,” but she later stated that she did not want to talk 

about Peralez putting his mouth on her “private part” before stating that he had done 

so on two occasions. Given that evidence, coupled with Peralez’s theory that he had 

not committed any of the assaults, this factor weighs neither for nor against a finding 
21

of egregious harm. See Maxwell v. State, No. 08-14-00027-CR, 2016 WL 6426784, at *8

(Tex. App.—El Paso Oct. 31, 2016, no pet.) (not designated for publication) (“If the 

jury had believed Appellant’s theory [that the complainant had fabricated the 

allegations against him], it would have found him not guilty of all of the counts of 

indecency. Instead, in finding Appellant guilty of two of the four counts of indecency 

towards [the complainant], the jury necessarily disbelieved Appellant’s defensive 

evidence.”).

Only one of the four factors—the entirety of the charge—weighs in favor of a 

finding of egregious harm. In light of our analysis of these four factors and after 

reviewing the appellate record, we cannot conclude that the charge error affected the 

very basis of the case, deprived Peralez of a valuable right, vitally affected the 

defensive theory, or made a case for conviction clearly and significantly more 

persuasive. Accordingly, we hold that he was not egregiously harmed by the 

erroneous charge. See Arrington v. State, 451 S.W.3d 834, 839–40 (Tex. Crim. 

App. 2015) (holding appellant was not egregiously harmed by charge that omitted

unanimity instruction when entirety of charge was the only factor weighing in favor of 

egregious harm); Cosio, 353 S.W.3d at 777–78 (same); Rodriguez, 2019 WL 406167, 

at *7 (same). We overrule Peralez’s second issue.
22

C. Ineffective Assistance of Counsel

In his third issue, Peralez argues that he was denied effective assistance of 

counsel because his trial counsel “failed to effectively counter impermissible 

arguments made by the State during closing argument.”

1. Standard of Review and Applicable Law

The Sixth Amendment guarantees a criminal defendant the effective assistance 

of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const. 

amend. VI. To establish ineffective assistance, an appellant must prove by a

preponderance of the evidence that his counsel’s representation was deficient and that 

the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 

S. Ct. 2052, 2064 (1984); Nava, 415 S.W.3d at 307. The record must affirmatively 

demonstrate that the claim has merit. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. 

App. 1999). A reviewing court need not address both deficiency and prejudice if the

appellant makes an insufficient showing on one component, nor must a reviewing 

court address deficiency and prejudice in any particular order. Strickland, 466 U.S. at 

697, 104 S. Ct. at 2069.

In evaluating counsel’s effectiveness under the deficient-performance prong, 

we review the totality of the representation and the particular circumstances of the 

case to determine whether counsel provided reasonable assistance under all the 

circumstances and prevailing professional norms at the time of the alleged error. See 

id. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307; Thompson, 9 S.W.3d at 813–
23

14. Our review of counsel’s representation is highly deferential, and we indulge a 

strong presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d at 

307–08.

An appellate court may not infer ineffective assistance simply from an unclear 

record or a record that does not show why counsel failed to do something. Menefield v. 

State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425, 432 

(Tex. Crim. App. 2007). Trial counsel “should ordinarily be afforded an opportunity 

to explain his actions before being denounced as ineffective.” Menefield, 363 S.W.3d at 

593. If trial counsel did not have that opportunity, we should not conclude that 

counsel performed deficiently unless the challenged conduct was “so outrageous that 

no competent attorney would have engaged in it.” Nava, 415 S.W.3d at 308. Direct 

appeal is usually inadequate for raising an ineffective-assistance-of-counsel claim 

because the record generally does not show counsel’s reasons for any alleged deficient 

performance. See Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813–14.

2. Peralez’s Complaints

Peralez complains that he was denied effective assistance of counsel on three 

occasions during the State’s closing argument. 

First, Peralez complains that his trial counsel should have objected when a

prosecutor told the jury, “And, you know, they’ve spent this entire trial convoluting 

what people have said, misrepresenting things to you. That’s -- that’s all they’re good 

for. I’m not going to give that oxygen.” According to Peralez, this remark suggested
24

that the defense was “acting unethically and in bad faith” and was “perhaps an 

egregious manifestation of striking at the defendant over the shoulder[] of defense 

counsel.” See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on 

reh’g) (“[I]t is fair to say that a prosecutor runs a risk of improperly striking at a 

defendant over the shoulder of counsel when the argument is made in terms of 

defense counsel personally and when the argument explicitly impugns defense 

counsel’s character.”).

Second, Peralez complains that his trial counsel should have objected when a 

prosecutor told the jury, “[O]ur job at the district attorney’s office is [to] do the right

thing. . . . That’s not [defense counsel’s] job.” According to Peralez, this remark was 

“blatantly improper under well-settled precedent.” See Wilson v. State, 938 S.W.2d 57, 

60 (Tex. Crim. App. 1996) (holding that prosecutor’s comment about his oath to seek 

justice and defense counsel’s lack of oath was “manifestly improper”).

Third, Peralez points to the following exchange during the State’s closing 

argument to suggest that a prosecutor improperly commented on his demeanor

during trial:

[Prosecutor]: . . . . And, you know, when [Aubrey] was on the stand, 

she identified this picture of [Peralez]. And he was -- you know, 

hunched down and couldn’t even -- he didn’t even have the guts to look 

at her while she testified.

[Defense Counsel]: Objection, Your Honor. That’s a 

misstatement of everything and an improper jury argument.
25

[Trial Court]: Well, I’m going to sustain the objection at this time.

The jury will recall the evidence that they’ve seen.

[Prosecutor]: It’s because he’s scared. He’s scared of her. 

[Aubrey] was scared of him at one point, but now she has the power 

back. You guys are going to give her that power back. 

Peralez argues that “[t]he State was plainly prohibited from this line of argument

under well[-]settled precedent in the Court of Criminal Appeals.” See Wead v. State, 

129 S.W.3d 126, 130 n.8 (Tex. Crim. App. 2004) (“We have recognized that, during 

closing argument at the guilt/innocence phase, a prosecutor may not properly 

comment upon the defendant’s demeanor in the courtroom, since the defendant’s 

demeanor in the courtroom is not evidence of guilt.”) (citing Good v. State, 723 S.W.2d 

734, 737 (Tex. Crim. App. 1986)). According to Peralez, his trial counsel should have 

asked the trial court to instruct the jury to disregard the prosecutor’s comment after 

the trial court sustained his objection. Peralez further argues that his trial counsel 

should have objected “when the State persisted on with the same line of argument 

that the [trial court] had just sustained.”

3. Analysis

In its brief, the State does not suggest that the complained-of arguments by the 

prosecutor were proper. Rather, the State argues that “[t]he record is not sufficiently 

developed for this court to make a determination of ineffective assistance of counsel”

and that Peralez “has not met his burden of proving deficient performance or 

prejudice.” We agree.
26

Here, the record is silent regarding why Peralez’s trial counsel did not object to 

the first two complained-of remarks by the prosecutor. As to the third complained-of 

remark, the record is silent regarding why Peralez’s trial counsel did not ask the trial 

court to instruct the jury to disregard the prosecutor’s comment after the trial court 

sustained his objection, nor does it reflect why Peralez’s trial counsel did not object to 

the comment from the prosecutor that followed the trial court’s sustaining of his

objection. Based on this record, we cannot say that Peralez’s trial counsel was 

deficient. See Menefield, 363 S.W.3d at 593 (“Trial counsel should ordinarily be 

afforded an opportunity to explain his actions before being denounced as ineffective.”

(quotation omitted)); Baugus v. State, No. 02-22-00015-CR, 2023 WL 3370718, at *13 

(Tex. App.—Fort Worth May 11, 2023, pet. ref’d) (mem. op., not designated for 

publication) (holding that because appellant “d[id] not point to anything in the record 

indicating why his trial counsel failed to make . . . objections” to complained-of jury 

arguments, appellate court “cannot say that [appellant’s] trial counsel’s performance 

was deficient”); Panchol v. State, No. 02-12-00228-CR, 2013 WL 3874763, at *9 (Tex. 

App.—Fort Worth July 25, 2013, pet. ref’d) (mem. op., not designated for 

publication) (“The record is absolutely silent regarding counsel’s reasons for not 

objecting to [the complained-of jury argument made by the State during closing]. . . . 

That being the case, Appellant has failed to show by a preponderance of the evidence 

that counsel was deficient.”).
27

Further, we are unable to say that no competent attorney would have acted as 

Peralez’s trial counsel did during the State’s closing argument. Indeed, Peralez’s trial 

counsel may have thought that objecting to the complained-of comments would draw 

the jury’s attention to them, as would the trial court’s instructing the jury to disregard

the prosecutor’s comment after the trial court sustained the objection. See Bennett v. 

State, No. 07-21-00223-CR, 2022 WL 2230473, at *2 (Tex. App.—Amarillo June 21, 

2022, no pet.) (mem. op., not designated for publication) (“It could well be that 

counsel’s decision to forgo an objection was a strategical decision. Indeed, courts

have recognized that withholding objection to avoid garnering more attention on a 

matter can be reasonable trial strategy.”); Cueva v. State, 339 S.W.3d 839, 892 (Tex. 

App.—Corpus Christi–Edinburg 2011, pet. ref’d) (holding that counsel’s decision not

to object to jury argument may have been a strategic decision “to avoid highlighting 

such an argument”); see also Brantley v. State, No. 02-19-00349-CR, 2021 WL 3679239, 

at *4 (Tex. App.—Fort Worth Aug. 19, 2021, pet. ref’d) (mem. op., not designated for

publication) (“[W]e may not speculate regarding why trial counsel acted as he did and 

must presume that a reasonable trial strategy supported his conduct.”). Thus, we hold 

that Peralez has not met his burden of showing by a preponderance of the evidence 

that his trial counsel’s representation fell below the standard of prevailing professional 

norms.13 See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. Because he has not shown 

13We recognize that an attorney’s isolated acts or omissions generally do not 

constitute deficient performance. See, e.g., Ingham v. State, 679 S.W.2d 503, 509 (Tex. 
28

deficient performance, he necessarily cannot show prejudice by any deficiency. See 

Nava, 415 S.W.3d at 307. We overrule Peralez’s third issue.

IV. CONCLUSION

Having overruled Peralez’s three issues, we affirm the trial court’s judgments.

/s/ Dana Womack

Dana Womack

Justice

Do Not Publish

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

Delivered: April 25, 2024

Crim. App. 1984). We note that the record reflects that Peralez’s trial counsel filed 

several pre-trial motions, that he vigorously cross-examined the State’s witnesses, that 

he lodged objections to certain of the State’s evidence, and that he called several 

witnesses on Peralez’s behalf. We further note that Peralez was ultimately acquitted 

of one of the charges against him. See Chandler v. State, No. 01-08-01017-CR, 2010 

WL 457444, at *3 (Tex. App.—Houston [1st Dist.] Feb. 11, 2010, pet. ref’d) (mem. 

op., not designated for publication) (“Appellant has not shown that counsel’s failure 

to object resulted in ineffective assistance; in fact, counsel’s efforts resulted in the 

acquittal of appellant for one of the charges against him.”).