Affirmed and Memorandum Opinion filed August 29, 2024

In The

Fourteenth Court of Appeals

NO. 14-23-00275-CR

STEVEN CHAVEZ FLOREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause No. 20-CR-0336

MEMORANDUM OPINION

In two issues, appellant Steven Chavez Florez appeals his conviction and life 

sentence for the offense of continuous sexual abuse of a child under fourteen years 

old. He first complains that his trial counsel was ineffective in his representation 

in three respects—that during the guilt/innocence phase of trial he should have 

objected to “victim impact” evidence and that he opened the door to permit 

extraneous offense testimony, and that during the punishment phase, he failed to 

object to the State’s introduction of appellant’s penitentiary packet. In his second 
2

issue, he asks that we review the trial for factual sufficiency on his sole contention 

that the State provided no physical evidence. We affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Outcries by two different young girls, Mariska and Daisy,1 made in the 

Decembers of 2017 and 2019, prompted two Galveston County investigations 

which led to appellant, Steven Chavez Florez, and resulted in his indictment for the 

felony offense of continuous sexual abuse of a child under fourteen years old. 

Mariska’s Outcry in 2017

Mariska was born on January 8, 2007. Mariska’s father was a longtime 

friend of appellant, who Mariska knew since she was young, such that Mariska 

referred to appellant as “Uncle Stevie.” In June 2016, Mariska’s parents were 

separating, but were on speaking terms and had mutual friends. 

Mariska’s father described Mariska’s outcry as occurring during the holidays 

in 2016 when he had asked all his children if they had been touched 

inappropriately. His other children denied any occurrence, but Mariska did not 

immediately respond. Mariska told her father that the appellant had touched her. 

Mariska would eventually tell her father about a night at their family friend’s 

apartment in the summer.2 Mariska told her father that as she was in the bathroom 

getting ready to take a bath appellant walked into the bathroom with her and gave 

Mariska a bath. Her father said Mariska, who was nine years old at the time, did 

not need any help in bathing. Mariska said that, as she was putting her clothes back 

on, appellant helped her put her clothes back on and stroked her vagina. Her father 

1 To protect all the minors’ identities, we have not used their actual names. See Tex. R. 

App. P. 9.8.

2 Father recalled the night personally because he had dropped off pull-ups for Mariska at 

the friend’s apartment and saw appellant there when he delivered the items.
3

said Mariska did not need any help in putting her clothes back on. 

Mariska’s father discussed the matter with Mariska’s mother and called the 

appellant several times, and the appellant insisted that there was a 

misunderstanding. Mariska’s father teetered on the idea of confronting appellant 

but elected to call the police. 

Daisy’s Outcry in 2019

Daisy was born on September 14, 2014. Daisy’s biological father shot her 

and rendered her a paraplegic when she was one and a half years old. While the 

shooting was being investigated, Daisy’s grandmother, took custody of Daisy with 

the approval of Child Protective Services (CPS).3 After Daisy was shot, Daisy’s 

mother, Jessica, remained in a relationship with Daisy’s biological father, but they 

later divorced when there was an incident between the two of them. Shortly after 

her mother’s divorce, Daisy’s mother began dating appellant. In the summer of 

2017, Daisy and her older brother were eventually returned to their mother’s 

custody.4 After returning to her mother’s house, Daisy lived with Jessica and the 

appellant, whom she considered to be her step-father.

Daisy’s outcry was prompted when she came over to spend some time with 

her grandmother. Daisy had taken a shower and her grandmother was preparing to 

put her clothes back on when she noticed that Daisy’s bottom or “private parts” 

were red. Daisy’s grandmother testified that she asked Daisy, “Why are you red 

3 Daisy’s grandmother already had custody of Daisy’s older brother because of previous 

abuse that had been inflicted upon Daisy’s older brother.

4 Because she was a paraplegic, Daisy could not urinate on her own, and she required the 

use of a catheter. Several family members were trained on the use of this catheter. When Daisy 

was staying with Daisy’s grandmother, she would use the catheter to help Daisy urinate, and 

when Daisy was staying with Jessica, Jessica would use the catheter to help Daisy urinate. A 

suppository was used for Daisy’s bowel movements. Daisy also wore a device on her legs to 

help them to remain straight.
4

down here?” Daisy put her hands over her eyes, and she began to panic. Daisy’s 

grandmother told her, “It’s okay. You’re not in trouble. You’re not going to be in 

trouble. I just need to know why are you red right here?” Daisy’s grandmother 

reported Daisy said that the appellant had been putting his “privates” on her. 

Daisy’s grandmother reported she asked Daisy if she could be mistaken about what 

occurred or who did it, and Daisy said that she was not mistaken. Daisy’s 

grandfather also heard this conversation, and they called CPS, who told them to 

take Daisy to the hospital. Tami McCreight, a sexual assault nurse examiner at the 

University of Texas Medical Branch in Galveston, observed Daisy’s vagina, and 

she saw the abnormal redness. 

Daisy reported to Ms. McCreight that the appellant had been touching her 

vagina with his penis. Daisy stated that the appellant had been touching her with 

his “privates,” and that the last time that the appellant touched her was on the 

previous day. Daisy’s grandmother reported to McCreight that appellant had been 

doing this “all the time.”

Indictment and Trial

On November 3, 2022, appellant was indicted for the felony offense of 

continuous sexual abuse of a child under fourteen years old involving the two 

complainants, Mariska and Daisy. The multiple offenses were alleged to have 

occurred between May 16, 2016 and June 1, 2019. Appellant pled not guilty and 

his case was tried to a Galveston County jury.

In addition to the testimony of their respective outcry witnesses, the jury 

heard testimony from each of the complainants, some of their family members, 

their forensic interviewers and medical examiners, the CPS investigator associated 

with Daisy’s household, and law enforcement officers. 

Though she was nine when the alleged events occurred, Mariska was sixteen 
5

at the time of trial, and testified that she was touched by appellant in both a 

bathroom and bedroom of a family friend’s apartment in the summer of 2016. 

Mariska testified that appellant entered the bathroom where she was to change into 

pajamas and a pull up. Mariska stated that appellant touched her vagina, and later 

that night laid between her and her brother. Mariska testified that appellant reached 

underneath her clothes and touched her breasts. Mariska’s brother could not 

confirm these events and stated that he was asleep. Mariska also testified that at 

times appellant told her, “Let me see [her vagina] when I want to, or else.” She 

reported appellant told her he wanted no one else to see her vagina, except for him.

Daisy was eight years old at the time of trial. Though she would waiver and 

contradict herself at times, parts of her testimony established that appellant used 

his penis in order to touch her vagina, and he also touched Daisy’s anus with his 

penis. She testified that when he touched her with his penis she was naked, they 

were in the bedroom, and typically alone. She testified that she knew that what the 

appellant was doing to her was wrong, and that she often told the appellant that she 

did not want him doing that to her.

Cheryl McCarty, a forensic interviewer with the Children’s Advocacy 

Center of Galveston County, testified about her interviews with both girls.

5

 Her 

testimony assisted in clarifying Daisy’s understanding of the events that occurred 

with respect to anatomical components. McCarty testified that she met with Daisy 

on December 30th, 2019. The pertinent part as recalled by McCarty:

“A. [Daisy] shared with me that her stepdad [appellant] had touched 

her tee tee with his weenie.

Q. And when you -- are you able to determine -- do you ask the child 

what she means by those names?

5 McCarty testified that she met with Mariska on January 3, 2017, who told her specific 

details of multiple instances of sexual abuse that the appellant had committed against her.
6

A. Yes.

Q. And what is her tee tee?

A. Her tee tee was her vagina.

Q. And what is his weenie?

A. She identified that as the penis....”

The physical evidence presented at trial was not extensive, but some 

testimony and evidence assisted in reconciling this perceived deficiency. No 

DNA evidence was offered with respect to Mariska whose outcry was nearly sixmonths of alleged abuse. Nurse practitioner Gerardo-Lopez testified it is common 

for no finding of abuses under circumstances where the body has had such time to 

heal. The DNA evidence offered with respect to Daisy was limited. Jacaranda 

Solis, a forensic scientist in the biology and D.N.A. Section of the Texas 

Department of Public Safety Crime Laboratory in Houston confirmed semen and 

one sperm cell were detected around Daisy’s anus. However, Ashley Kibbe 

another forensic scientist in the D.N.A. Section at the Texas Department of Public 

Safety's Crime laboratory in Houston testified that “There was no D.N.A., no male 

D.N.A. detected or no Y-S-T-R profile obtained.” Tami McCreight another nurse 

practitioner, agreed that several factors could contribute to the absence of other 

physical evidence with respect to Daisy, including the fact that Daisy “changed 

underwear, brushed teeth, defecated, wiped or washed the genitals, had food or 

drink, changed clothes, and catheterized every four hours.” She also explained 

repetitive conduct when “it's something that occurred over and over and the body 

gets use to that or the vaginal area gets used to that.” 

The State also presented proof to established facts to that could support the 

suggestion of grooming behavior toward both Mariska and Daisy. Prior to the time 

that the appellant began touching Mariska, he gave her a ring made of a candy 

wrapper. Mariska testified that appellant sat Mariska down onto his lap when he 
7

gave her the ring and began referring to her as his wife. When no one was looking, 

the appellant would also kiss Mariska on her lips. She testified, “It was just gross. 

He would like put his lips over mine like covering over my lips. All I felt was like 

his saliva and stuff.” 

Similarly, Daisy’s grandmother, recalled the first time she met appellant 

seeing appellant kiss Daisy on the lips when assisting her in the car. She testified 

that she thought to herself that the appellant did not even know Daisy yet. 

Appellant’s trial counsel, whose assistance is questioned by appellant in this 

appeal, did not object to the admission of evidence concerning appellant’s kissing 

of the girls. In closing argument however, appellant’s counsel addressed these 

“creepy” behaviors, recognized them as off-putting, but wove these instances 

within the context of appellant’s “misunderstanding” defense. Appellant’s trial 

counsel participated throughout the trial, lodging objections, cross-examining the 

state’s witnesses, and calling three of his own witness. Throughout the trial he 

sought to challenge Daisy’s credibility by showing multiple variations in her story, 

showing flaws in the police investigation, a prior outcry by Daisy against 

“grampa,” and emphasizing the lack of physical evidence linking appellant to the 

alleged offenses. At closing, he made comprehensive run-through of the evidence 

and pointed out perceived flaws. 

The jury found the appellant guilty as charged in the indictment, and the trial 

court assessed the appellant’s punishment at life in prison. Appellant timely 

appealed.

II. SUFFICIENCY OF THE EVIDENCE

In his second issue, appellant asks that we review the evidence to support his 

conviction for factual sufficiency. We must decline. See Dowling v. State, 608 

S.W.3d 896, 898–99 (Tex. App.—Houston [14th Dist.] 2020, no pet.); see also 
8

Rancoco v. State, No. 14-21-00632-CR, 2023 WL 3376659, at *7 (Tex. App.—

Houston [14th Dist.] May 11, 2023, no pet.)(collecting recent cases rejecting calls 

for factual sufficiency review in a criminal case). And though appellant has made

no request for a legal sufficiency review, and despite that he specifically requests a 

review that “begins with a presumption that the evidence is legally sufficient to 

sustain the conviction,” by operation of law, we review the evidence to support his 

conviction for legal sufficiency. See Dowling, 608 S.W.3d at 898. 

In evaluating a challenge to the legal sufficiency of the evidence supporting 

a criminal conviction, we view the evidence in the light most favorable to the 

verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue 

on appeal is not whether we, as a court, believe the State’s evidence or believe that 

appellant’s evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d 

137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is 

irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 

S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury “is the sole judge of the 

credibility of the witnesses and of the strength of the evidence.” Fuentes v. State, 

991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or 

disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 

614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume 

the jury resolved conflicts in favor of the prevailing party. Turro v. State, 867 

S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could 

have found the essential elements of the crime beyond a reasonable doubt, we must 

affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

A person 17 years of age or older commits the offense of continuous sexual 

abuse of a young child if, “during a period that is 30 or more days in duration, the 

person commits two or more acts of sexual abuse” against a child younger than 14 
9

years of age, “regardless whether the acts of sexual abuse are committed against 

one or more victims.” Tex. Penal Code Ann. § 21.02(b)(1). Consistent with 

section 21.02(b)(1), the State indicted appellant on allegations that between May 1, 

2016 and June 1, 2019, appellant committed two or more acts of sexual abuse. 

Both the indictment and the jury charge provided seven application paragraphs,

alleging a felony indecency offense in connection with Mariska, and the remaining 

six in connection with Daisy, comprising of three felony indecency offenses and 

two felony offenses of aggravated sexual assault of a child. 

Appellant’s sole argument to support his second issue is a generic complaint 

that trial record contains “no physical evidence” to support the jury’s verdict. We

need not belabor this argument. It is well-settled a legal sufficiency review does 

not demand a particular form of evidence, including the presentation of physical 

evidence to support a judgment. Pena v. State, 441 S.W.3d 635, 641 (Tex. App.—

Houston [1st Dist.] 2014, pet. ref’d)(absence of DNA or fingerprint evidence not 

required to support conviction in murder trial); Ponce v. State, No. 01-18-00224-

CR, 2020 WL 3422289, at *3 (Tex. App.—Houston [1st Dist.] June 23, 2020, pet. 

ref’d)(noting in appeal of continuous sexual abuse of a child conviction that 

physical evidence not required); Torres v. State, No. 14-22-00275-CR, 2023 WL 

4783535, at *4 (Tex. App.—Houston [14th Dist.] July 27, 2023, pet. 

ref’d)(collecting cases). And more specifically, in cases such as the one at hand, 

we have frequently held that the testimony of a child-victim alone is sufficient to 

support a jury’s verdict. Bargas v. State, 252 S.W.3d 876, 888 (Tex. App.—

Houston [14th Dist.] 2008, pet. ref’d)(concluding the “detailed account” of child 

victim, “despite unsophisticated terminology and rough time frame of events,” 

accompanied by child’s identification of sexual organs with anatomically correct 

demonstrative would be sufficient to support conviction even if unsupported by 
10

any other evidence); Carr v. State, 477 S.W.3d 335, 338 (Tex. App.—Houston 

[14th Dist.] 2015, pet. ref’d).

Mariska testified that the appellant engaged in several instances of 

inappropriate touching of her beginning in June 2016. Mariska testified that there 

was an occasion that the appellant touched her vagina. After engaging in this 

conduct, appellant soon thereafter moved his hand underneath Mariska’s shirt, and 

he moved his hand repeatedly over Mariska’s breasts. Over the winter break in 

2016, Mariska later told her father that the appellant had touched her vagina on 

several occasions. Mariska later told the forensic interviewer and a nurse 

practitioner specific details of several instances of sexual abuse that the appellant 

had committed against Mariska. Appellant’s conduct committed against 

Mariska—as shown in the record through the testimony of Mariska, her father, 

McCarty (the forensic interviewer), and Gerardo-Lopez (nurse)—constituted 

multiple instances of the commission of the offenses of indecency with a child and 

aggravated sexual assault of a child, as alleged in the indictment. See Tex. Penal 

Code §§ 21.11(a)(1), 22.021(a)(1)(B).

Daisy testified that the appellant—on many occasions—used his penis to 

touch her vagina, and he also touched her anus with his penis. Daisy later told her 

grandmother that the appellant had been doing this. Daisy’s grandmother told 

medical personnel that Daisy had told her that the appellant was touching her with 

his penis. Daisy also told the sexual assault nurse examiner that the appellant had 

been touching her vagina with his penis. Daisy later told the forensic interviewer 

about several instances of sexual abuse committed against her, and she provided 

details about that sexual abuse. Daisy specifically stated that the appellant touched 

her vagina with his penis. Daisy also stated that the appellant also touched her anus 

with his penis, and that the appellant forced her to touch his penis with her hand, 
11

and she said that his penis was hard when she touched it. The appellant’s conduct 

committed against Daisy—as shown in the record through the testimony of Daisy, 

her grandmother, McCarty (the forensic interviewer), and Gerardo-Lopez 

(nurse)—constituted multiple instances of the commission of the offenses of 

indecency with a child and aggravated sexual assault of a child, as alleged in the 

indictment. See Tex. Penal Code §§ 21.11(a)(1), 22.021(a)(1)(B).

The only noticeable difference in the evidence bearing any dissimilarity 

from the charged offense is a date discrepancy, which is legally immaterial. 

Though the evidence revealed Daisy suffered multiple offenses by appellant, the 

only specific date when an offense against her occurred was December 13, 2019, 

the day before her outcry. This date is not within the range alleged, and after the 

last date of that range—June 1, 2019—that the charged offense was alleged “on or 

about” to have occurred. “It is well settled that the ‘on or about’ language of an 

indictment allows the State to prove a date other than the one alleged in the 

indictment as long as the date is anterior to the presentment of the indictment and 

within the statutory limitation period.” Sledge v. State, 953 S.W.2d 253, 256 (Tex. 

Crim. App. 1997); Arcia v. State, 12 S.W. 599 (Tex. Ct. App. 1889). In this case, 

the more recently proven date neither offends the statute of limitations, nor the 30-

day duration required under the Penal Code provision. The December 13, 2019 

offense occurred at least 10 months before appellant was indicted, and well more 

than 30 days after the offense proven against Mariska.

Upon this record, we conclude the evidence was sufficient to show that, 

during a period that was 30 or more days in duration, the appellant committed at 

least two acts of sexual abuse against children who were younger than 14 years of 

age. See Tex. Penal Code § 21.02(b). See also Pelcastre v. State, 654 S.W.3d 579, 

584-85 (Tex. App.—Houston [14th Dist.] 2022, pet. ref’d). The jurors were 
12

entitled to believe the testimony of the State’s witnesses over the testimony of the 

defense witnesses. See Turner v. State, 626 S.W.3d 88, 96 (Tex. App.—Dallas 

2021, no pet.). 

Accordingly, appellant’s second issue is overruled. 

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Under his first issue, appellant complains that his trial counsel rendered 

ineffective assistance in his representation during the guilt-innocence phase of trial 

and during punishment. 

Standard of Review

Both the United States Constitution and the Texas Constitution guarantee an 

accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. 

I, § 10; see also Tex. Code Crim. Proc. Ann. art. 1.051 (Supp.). This right 

necessarily includes the right to reasonably effective assistance of counsel. 

Strickland v. Washington, 466 U.S. 668, 686 (1984); Ex parte Gonzales, 945 

S.W.2d 830, 835 (Tex. Crim. App. 1997). To prevail on his ineffective-assistanceof-counsel claims, appellant must prove (1) counsel’s representation fell below the 

objective standard of reasonableness, and (2) a reasonable probability that but for 

counsel’s alleged deficiency the result of the proceeding would have been 

different. See Strickland, 466 U.S. at 687–88; see also Hernandez v. State, 726 

S.W.2d 53, 55 (Tex. Crim. App. 1986) (applying Strickland standard to 

ineffective-assistance claims under the Texas Constitution). In considering an 

ineffective-assistance claim, we indulge a strong presumption that counsel’s 

actions fell within the wide range of reasonable professional behavior and were 

motivated by sound trial strategy. Strickland, 466 U.S. at 689; Thompson v. State, 9 

S.W.3d 808, 813 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 

(Tex. Crim. App. 1994). To defeat this presumption, any allegation of 
13

ineffectiveness must be firmly grounded in the record so that the record 

affirmatively shows the alleged ineffectiveness. Prine v. State, 537 S.W.3d 113, 

117 (Tex. Crim. App. 2017).

Trial counsel generally should be given an opportunity to explain counsel’s 

actions before the court finds counsel ineffective. Id. In most cases, a direct appeal 

proves an inadequate vehicle for raising an ineffective-assistance claim because the 

record generally stands undeveloped and cannot adequately reflect the motives 

behind trial counsel’s actions. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. 

Crim. App. 2003); Thompson, 9 S.W.3d at 813–14. Faced with a silent record, we 

cannot know trial counsel’s strategy, so we will not find deficient performance 

unless the challenged conduct is “so outrageous that no competent attorney would 

have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 

2005); Hart v. State, 667 S.W.3d 774, 783 (Tex. Crim. App. 2023) (“Under these 

circumstances, wherein counsel has had no opportunity to explain his actions, we 

will assume a strategic motive, if one can be ascertained, and find counsel deficient 

only if his conduct was so outrageous that no competent attorney would have 

engaged in it or, stated differently, if no reasonable trial strategy could justify 

counsel’s actions.”).

A sound trial strategy may be executed imperfectly, but the right to effective 

assistance of counsel does not entitle a defendant to errorless or perfect counsel. 

Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Instead, we 

“review the totality of the representation and the circumstances of each case 

without the benefit of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. 

App. 2011). Though counsel’s conscious decision not to, for example, object to 

evidence is not insulated from review, unless the defendant overcomes the 

presumption that counsel’s actions were based in sound trial strategy, counsel 
14

generally will not be found ineffective. Ex parte Flores, 387 S.W.3d 626, 633 

(Tex. Crim. App. 2012).

Did appellant’s trial counsel’s representation fall below an objective standard 

of reasonableness?

Appellant’s argument is grounded on three contentions: that his trial counsel 

should have objected to “victim impact” evidence admitted during the 

guilt/innocence phase of trial, that his trial counsel opened the door for the State to 

offer extraneous offense testimony, and during the punishment phase, he failed to 

object to the State’s introduction of appellant’s penitentiary packet. Because 

appellant has neither secured proof of the reasoning of his trial counsel’s strategic 

decision-making in a motion for new trial nor has he pointed to some instance in 

the record where his trial counsel revealed his strategy openly or implicitly, we 

consider whether the challenged conduct was so outrageous that no competent 

attorney would have engaged in it.

1. Was appellant’s trial counsel deficient in the guilt-innocence phase of trial

Appellant flags two instances of his trial counsel’s alleged deficient conduct 

during the guilt-innocence phase of trial. 

First, he contends that his counsel “failed to object to victim impact 

testimony,” and refers to Mariska’s testimony and Daisy’s grandmother’s 

testimony. Though victim impact testimony is “generally irrelevant at the guilt 

phase of trial because it does not tend to make more or less probable the existence 

of any fact of consequence at that stage,” it can be admissible as a “circumstance 

of the offense.” Longoria v. State, 148 S.W.3d 657, 659 (Tex. App.—Houston 

[14th Dist.] 2004, pet. ref’d); Lee v. State, No. 01-22-00836-CR, 2024 WL 234676, 

at *7–8 (Tex. App.—Houston [1st Dist.] Jan. 23, 2024, no pet.)(admissible to 

refute defendant’s alibi and tended to make it more probable that the assault 
15

occurred as complainant alleged).

Both references are factually problematic to support appellant’s argument. 

As for Daisy’s grandmother, appellant provides no record reference to support his 

sole contention that she “testified without objection that Daisy was distant and 

withdrawn.” We cannot locate such testimony having been made by Daisy’s 

grandmother. Though we review the record of trial counsel’s total representation, 

appellant’s brief causes us to draw no focus to a particular missed objection in 

connection with Daisy’s grandmother’s testimony. See Tex. R. App. P. 38.1; see 

also Tufele v. State, 130 S.W.3d 267, 271 (Tex. App.—Houston [14th Dist.] 2004, 

no pet.)(finding appellate issue waived for failure to adequately brief the issue by 

showing appropriate authority).

Appellant similarly provides no record reference to Mariska’s testimony and

though the record at least supports appellant’s contention that she had testified 

about having cut herself, attempted suicide and attended therapy, appellant does 

not acknowledge that Mariska’s father testified earlier at trial about these same 

matters.

The record shows that appellant’s counsel questioned Mariska’s father about 

his affair and its effect on the family dynamic, and that Mariska, among others,

was unhappy about it. Through appellant’s counsel’s cross-examination of 

Mariska’s father also confirmed that, although appellant had responded to the 

accusations prompted by Mariska’s outcry as a “misunderstanding,” in one phone 

call appellant denied the allegations of sexual abuse with Mariska. Following up, 

the prosecutor elicited the testimony from Mariska’s father without objection, that 

Mariska had undergone changes in her behavior had cut herself, attempted suicide 

and attended therapy. Appellant’s counsel recrossed Mariska’s father who 

admitted that he believed that his separation from Mariska’s mother had played a 
16

role in Mariska’s emotional downturn. 

Q. Quitting school and just general sort of growing up kind of things 

aren’t going great right now, right?

A. That is correct.

Q. And isn’t it true when that happened, you first believed that it was 

caused by your separation from her mother?

A. It played a role in it.

Thus, narrowly considering the challenged scope of conduct to appellant’s

counsel’s failure to later object during Mariska’s testimony, the trial court would 

have acted within its discretion to overrule the objection to Mariska’s “victim 

impact” testimony appellant now suggests should have been lodged. This is 

because it had already been discussed in evidence, the door had been opened.

Appellant’s trial counsel’s conduct could not be deficient in failing to lodge an 

objection that the trial court could properly overrule. See Agbogwe v. State, 414 

S.W.3d 820, 835 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Burke v. State, 

371 S.W.3d 252, 257-58 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d, 

untimely filed).

But even expanding our review to appellant’s trial counsel’s failure to object 

to the admission of victim impact testimony when it was first admitted with 

Mariska’s father, the record establishes that the court could have properly admitted 

this testimony. At the time the victim impact evidence was first introduced through 

Mariska’s father, the record suggests that the prosecution pursued the evidence for 

the valid basis of refuting the defensive theory that appellant was not responsible 

under the suggestion that no assault had occurred, that the allegations were a 

“misunderstanding.” Accordingly, testimony about the victim’s behavior and 

long-term prognosis would have a tendency to make more or less probable a fact of 

consequence at the guilt/innocence stage—that is, whether the appellant committed 
17

the crimes at all. Since victim impact testimony would have been admissible here, 

the appellant’s trial attorney’s failure to object to the testimony did not constitute 

deficient performance. See Longoria, 148 S.W.3d at 660. 

As much as the admissibility is subject to dispute, we cannot conclude on a 

silent record that appellant’s counsel’s failure to object is “so outrageous that no 

competent attorney would have engaged in it.” See Goodspeed v. State, 187 

S.W.3d at 392. Arguably appellant’s trial counsel’s behavior in these instances 

provides indicia of deliberate decision making, measured restraint, and 

unwillingness to object to victim impact testimony when surmised he would not 

succeed. It shows that appellant’s counsel sought some persuasive gain by 

emphasizing that Mariska’s father admitted that he believed Mariska had suffered 

emotionally from matters unrelated to appellant. It also shows that during the 

State’s subsequent examination of Mariska he made a pointed, successful objection 

to the prosecution’s efforts to directly connect Mariska’s diagnosis of PTSD to the 

“sexual assault from the summary of 2016.” 

Second, appellant contends that his counsel’s conduct was deficient when 

his trial counsel allegedly opened the door for the State to offer extraneous offense 

testimony. Appellant mischaracterizes the facts to paint his trial counsel as actively 

opening the door to extraneous offense evidence. The record shows otherwise. 

Appellant notes that a defense witness testified that the appellant did not permit an 

investigator with CPS to interview Daisy. However, that testimony was elicited by 

the prosecutor on cross-examination. Also, appellant notes that, in his opening 

statement, his trial counsel mentioned that the appellant created a ring for Mariska, 

and that he called her his wife. But appellant’s opening statement was made after 

the State had rested and testimony of those details had already been elicited by the 

prosecutor on direct examination of Mariska. Standing on this misappreciation of 
18

the facts, appellant argues that his trial counsel “should have waited to see if the 

state was going to attempt to introduce the extraneous offenses.” We need not 

address that argument, as that testimony had already been elicited by the 

prosecutor before ever being mentioned by defense counsel. 

A party’s failure to accurately convey the record in an appellate brief 

unnecessarily places the merits of the argument in jeopardy of not being reached. 

See Tex. R. App. P. 38.1. However, we reserve consideration whether appellant’s 

misstatement of the record amounts to briefing waiver, and simply consider 

whether the challenged evidence was inadmissible, to declare appellant’s trial 

counsel’s conduct in failing to object “so outrageous that no competent attorney 

would have engaged in it.” Ultimately, appellant complains that his counsel 

should have acted to prevent the admission of the State’s evidence that

(1) the appellant made a ring for Mariska out of a candy wrapper 

and that the appellant called Mariska his wife;

(2) the appellant would kiss Mariska on her lips; 

(3) the appellant and his wife, Jessica, were not cooperative with 

CPS, to the point that the appellant would not permit a CPS 

investigator to enter their home, so that she could meet with and 

interview the children; and

(4) the appellant returned to the residence, even after CPS and law 

enforcement had him removed from the residence

We agree with the State that this evidence—portions of Mariska’s testimony 

and the testimony of the CPS investigator—was admissible under Article 38.37 of 

the Texas Code of Criminal Procedure and Rule 403 of the Texas Rules of 

Evidence. Article 38.37 provides:

(b) Notwithstanding Rules 404 and 405, Texas Rules of Evidence, 

evidence of other crimes, wrongs, or acts committed by the defendant 

against the child who is the victim of the alleged offense shall be 

admitted for its bearing on relevant matters, including:
19

(1) the state of mind of the defendant and the child; and

(2) the previous and subsequent relationship between

the defendant and the child.

Tex. Code Crim. Pro. art. 38.37, § 1(b).

Rule 403 provides:

The court may exclude relevant evidence if its probative value is 

substantially outweighed by a danger of one or more of the following: 

unfair prejudice, confusing the issues, misleading the jury, undue 

delay, or needlessly presenting cumulative evidence.

Tex. R. Evid. 403.

Rule 403 favors the admission of relevant evidence and carries a 

presumption that relevant evidence will be more probative than prejudicial. All 

testimony and physical evidence are likely to be prejudicial to one party or the 

other. It is only when there exists a clear disparity between the degree of prejudice 

of the offered evidence and its probative value that Rule 403 applies. Davis v. 

State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2011).

The evidence was admissible to show the appellant’s state of mind in 

relation to Mariska and Daisy and to show the appellant’s relationship with then.

There was no need for the trial judge to exclude this relevant evidence because it 

was not unfairly prejudicial to the appellant, confusing, or misleading. If the 

appellant’s trial attorney had objected to this evidence, the trial court would not 

have erred in determining that the probative value of the extraneous-offense 

evidence was not substantially outweighed by its prejudicial effect. See Ryder v. 

State, 581 S.W.3d 439, 453-54 (Tex. App.—Houston [14th Dist.] 2019, no pet.); 

McCombs v. State, 562 S.W.3d 748, 768 (Tex. App.—Houston [14th Dist.] 2018, 

no pet.). 

Courts routinely uphold trial court decisions to admit such evidence in child 
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sexual abuse cases. See e.g., Romano v. State, 612 S.W.3d 151, 159 (Tex. App.—

Houston [14th Dist.] 2020, pet. ref’d) (defendant put victim onto his lap while they 

were sitting in a hot tub and wrapped his arms around the victim, and defendant 

talked with victim about male and female puberty and bodily functions).

In this case, the appellant’s trial attorney was not given the opportunity to 

explain his reasoning for not objecting to the extraneous-offense testimony. See 

Vernon v. State, 571 S.W.3d 814, 822-23 (Tex. App.—Houston [1st Dist.] 2018, 

pet. ref’d). Appellant’s trial attorney may have withheld an objection to this 

testimony because he believed it would fail; that it was admissible under Article 

38.37 and Rule 403. Appellant’s trial counsel did not render ineffective assistance 

of counsel by not objecting to admissible evidence. See Agbogwe v. State, 414 

S.W.3d at 835; see also Burke v. State, 371 S.W.3d at 257-58.

Having reviewed the record of appellant’s trial counsel’s conduct during the 

guilt-innocence phase, and acknowledging the lack of evidence showing 

appellant’s trial counsel’s strategy, we find no instance of conduct “so outrageous 

that no competent attorney would have engaged in it.” See Goodspeed v. State, 

187 S.W.3d at 392.

2. Was appellant’s trial counsel deficient during the punishment phase of trial

Appellant complains that his trial counsel rendered ineffective assistance of 

counsel at the punishment phase when he failed to object to certain “material” 

contained in penitentiary packets introduced by the State. Appellant does not 

identify the allegedly inadmissible “material,” but generally complains his counsel 

did not object to State’s Exhibits 44 through 51, the defendant’s penitentiary 

packets and records of prior convictions. Appellant supports his argument with 

two cases:

First, he relies on a forty-year-old decision from our sister court called 
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Boyington v. State. 738 S.W.3d 704, 708 (Tex. App.— Houston [1st Dist.] 1985, 

no pet.). That decision held that the State cannot introduce unadjudicated 

extraneous offenses at the punishment stage of the trial. Id. at 708 (citing Sherman 

v. State, 537 S.W.2d 262, 264 (Tex. Crim. App. 1976). This is no longer the law, 

nor has it been for many years. The now thirty-year-old amendment of Article 

37.07 allows for the admission of unadjudicated, extraneous offenses at the 

punishment stage of non-capital cases. Tex. Code Crim. Proc. art. 37.07; Jackson 

v. State, 550 S.W.3d 238, 245 n.6 (Tex. App.—Houston [14th Dist.] 2018, no pet.) 

(citing Williams v. State, 958 S.W.2d 844, 846 (Tex. App.— Houston [14th Dist.] 

1997, pet. ref’d)).

Second, appellant relies on the First Court of Appeals decision Damian v. 

State, to support the proposition that a defendant’s trial attorney should object to 

the admissibility of the defendant’s prior criminal record if it shows that the 

defendant was charged with an offense that was more serious than the offense for 

which he was ultimately convicted. Damian v. State, 881 S.W.3d 102, 113 (Tex. 

App.— Houston [1st Dist.] 1994, pet. ref’d) (citing Davis v. State, 642 S.W.2d 

510, 513 (Tex. Crim. App. 1982)). Based on the current version of Article 37.07, 

Section 3, Damian is questionable authority. Even apart from the plain text of the 

current version of Article 37.07, Damian should not provide a basis for a claim of 

ineffective assistance of counsel. In Donald v. State, the defendant relied on the 

First Court’s decision in Damian, but we questioned whether the First Court’s 

decision could provide a valid basis for a claim of ineffective assistance of counsel. 

Donald v. State, 543 S.W.3d 466, 485 (Tex. App.— Houston [14th Dist.] 2018, no 

pet.).

In Donald, we acknowledged that the Court of Criminal Appeals has held 

that, in proving a defendant’s criminal record during the punishment stage, the 
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pleadings—including indictments and other charging instruments—are admissible, 

even if they allege an offense greater than the one for which the defendant was 

convicted. Donald, 543 S.W.3d at 485-86 (citing Fairris v. State, 515 S.W.2d 921, 

923 (Tex. Crim. App. 1974) (judgment admissible when it showed the defendant 

had been charged with robbery by firearms but convicted of robbery by assault).

At best, appellant argument is one that his counsel was deficient for making 

an objection under a theory of unsettled law. The Court of Criminal Appeals has 

routinely refused to conclude counsel ineffective for failing to take a specific 

action on an unsettled issue. Donald, 543 S.W.3d at 486 (citing State v. Bennett, 

415 S.W.3d 867, 869 (Tex. Crim. App. 2013); Ex parte Chandler, 182 S.W.3d 

350, 358 (Tex. Crim. App. 2005) (“[T]he rule that an attorney is not liable for an 

error in judgment on an unsettled proposition of law is universally recognized . . 

.”)). The appellant’s trial attorney did not render ineffective assistance of counsel 

in failing to object to evidence admissible at the punishment stage of the trial, and 

he did not render ineffective assistance of counsel in failing to rely on unsettled 

law. See State v. Bennett, 415 S.W.3d at 869.

Having reviewed the record of appellant’s trial counsel’s conduct during the 

punishment phase, and acknowledging the absence of evidence showing 

appellant’s trial counsel’s strategy, we find no instance of conduct so outrageous 

that no competent attorney would have engaged in it. See Goodspeed v. State, 187 

S.W.3d at 392.

Accordingly, appellant’s first issue is overruled. 
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IV. CONCLUSION

Having considered and overruled each of appellant’s issues, we affirm the 

trial court’s judgment in its entirety. 

/s/ Randy Wilson

Justice

Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.

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