## 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. M emor andum Opinion by Justice Womack 

### H ECTOR 

### M ARTINEZ 

### P ERALEZ 

### J R


### . , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I
. I NTR O DU CTIO N A jury convic ted Appellant Hector Martinez Peralez Jr. of two counts of aggravated sexual assault of a child and acquitted hi m of a nother count of aggravated
sexual assault of a child

. See Tex. Penal Code Ann. § 2 2.021(a)(2)(B). The j ury found
that Peralez had previously been convicted of sexual assault of a child , and it assessed his punishment at life imprisonment for each c onviction

. T h e tri al 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 ju ry charge contained error, and (3) he was denied effective assistance of counsel at trial. W e will affirm.
I I
. B ACKGROU ND A. The Relationsh ip Between Peralez and the Complainant ’ s Grandmother and the Complainant ’ s Ou tcry of Abuse A.B. (Aubrey) 1

— the co m plainant in this case

— lived with her mother, father, and older sister in an apartm ent in Fort Worth. Aubrey ’ s paternal grandmother (Grandmother) lived in a nearby unit in the same apartm ent complex. G randmother managed the apartment complex.

1 To protect the c o mpla inant’s anonymi t y, we use alias es to re fer to her , her paternal grandmother, and another vict im 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 ar ound 2016, Grandmother started d ating Peralez, and he moved into her apartment , where the two of them shared a bedroom

. O nce or twice a month, Aub rey and her sister would go over to Grandmother ’ s apartment , and Grandmother
would look after them while thei r parents did other things. Aubrey and her sister
call ed Peralez “ [P] apa. ”
In May 2022

—

when A ubrey was seven

— she made an outcry of sexual abuse to her parents. Aubrey relayed that Peralez had “ put his tongue between her l egs, ”
that she had been “ told to put her mouth on it , ” 2 and that he h ad “ put his fi ngers 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 advoca cy center. B . The Forensic Int erview In June 2 022, Aub rey was forensically inter viewed at Alliance for Children

. During the interview, she was asked about the “ f irst ” and “ last ” times that she was sexually abused by Peralez.
As to the first t

ime Au brey was abus ed by Peralez, she stated that she had gone
into Grandmother and Peral e z ’ s bedroom to get under a blanket on the be d because

2 Aubrey ’ s fa t her testified that when Aubrey relayed that she h a d been to ld to

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

she was cold , and Pe rale z then got i nto the be d

. 3 Aubrey told the interviewer that
Peralez used his finger to touch h er “ private part ” underneath her clothing. She
stated th at Peralez t hen had he r go into the bathroom, where he put his “ private part ”
in her mouth. Aubrey told the in terviewer that Peralez stopped putting his “ private part ” in her mouth when Grandm other came in the room

. Aubre y then clarified that
Grandm other had not see n Peralez abusing her

. 4 Aubrey stated that Peralez told her not to tell anyone about the abuse

. As to the l ast tim e s he was abused by Peralez , Aubre y ’s description of the
ab use to the forensic interviewer largely mirror ed her description of the first time she
was abused. 5 To that en d, Aubrey aga in stated that sh e had gone into Grandmother
and Peralez ’ s be droom becaus e she was cold. She stated that Peralez “stuck h is finger in her pri vate part , ” he told her to go into the bathroom , and he put his “private part ”
in her mouth w hile they were in the bath room . Aubrey told the interview er that Peralez stopped when Grandmother “walked in, ” and he told Aubrey to “pretend to

was h

. . . her ha nds. ” Aubrey again cla ri fied that Gr andmo ther d id not know that

3 At one point during the int erview, Aubrey stated that she was six years old the first time she wa s a ss aulted by Perale z, although during a later po i nt in the interview, she indicated that she had been five years old when the abu se started

.

4 The forensic in terviewer testified that it was her understanding that t he a ssault stopped beca use Peralez had heard Gran d mo ther ap proaching.

5 Aubrey stated that she was six years old the last time she was a ssaulted by Perale z .5

Peralez was a busing her and tha t Grandmother ha d never seen the a buse happen

. Aubrey also stated that Peralez had never touched her “private part ” with something other than his finge r. C. The Sexual Assault Examination In July 2022, Aubrey was taken to Cook Children ’ s Medical Center for a sexual

assa ult examination. Aubrey told the sexual assault nurse examiner (SA NE nurse)
that Pera lez h ad “ touched [her] priv ates ” and had “ made [her] pu t his private in [her]
mouth

. ” Aubrey indica ted that these incidents had occurred on “ [m]ultiple ”

oc casions in Grandmother and Peralez ’ s bedroom when ever Grandmother “ was busy
or in the kitch en. ” In her notes , the SANE nurse noted tha t Aubrey had d escrib ed

“ vaginal contact ” by Peralez ’ s “ f inger/ h and ” and “ oral copulation of genitals ” of

“ patient by assaila nt ” and of “ assailant by patient. ” The SANE nurse found no ph ysica l in jury to Aub rey and no physical evidence of sexual abuse.
D. The Ind ictment
Pe ralez was arrested in July 2022. A grand jury indicted him on the following
three counts : (1) Peralez ’ s mouth co ntacting Aubre y ’ s sexual organ (Count One ) , (2 ) his s exual org an contacting her mouth (Count Two ) , and (3) his finger penetrating
her sexual o rgan (Count Three )

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

6 Per alez w as also indicted on a fourth coun t that was later waiv ed.6

E. Relevant Trial Testimony
At trial , A ub rey tes tified that the ab use had occurred on five occasions

. 7 As to
the first instance of abuse, Aubrey state d that Peralez had called her into his bedroom while Grandmother was making lunch in the kitchen. 8 Aubrey indicated that Pera lez
h ad t old her to get int o th e bed, so she got into the bed. She stated that Perale z “ put hi s finger ” on her “ private ar ea ” 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. ” Aub rey initially stated that she did not r emem ber
whether Peralez had ever put his mouth on her “ priv ate part , ” but she lat er state d that she did not want to talk about Peralez putting his mou th 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 bathr oom 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 mout h. 9 Aubrey testified that Peralez had touched her priv ate s on the

7 Aubrey was nine years old at th e t ime of trial.

8 At tria l, A ubrey stated that she was “ either six or five ” when Peralez first abused her.

9 A couple of weeks before trial, Aubrey told p rosecuto rs and an investigator t hat noth ing had ever happened with Peralez in the ba throom and that Perale z had never put his “ private part ” in her mout h. An in vesti gator testified that Aubrey had seemed “ nervous ” and “ scared ” during that me eting.7

third, four th, a nd f

ifth incidents; ha d put hi s “ privat e part ” in her mouth during all
five incident s; and had put his mouth on her privates during two of the incidents. Aubrey also testified that Grand moth er had never seen her in the bathroom with
Peral ez. Grandmother w as a d e fense witness at trial. She testified that Peral ez had told
her f rom “ day one ” that he was a sex offender

. Due to his previous conviction, she attempted to keep any children in her apart ment separate fro m him

. Sh e m a intained , ho wever, that she kept the children separated from P eralez to protect him , stating th at she “ didn ’ t want him to ever, eve r go through this again. ” While she tried to keep the
child ren separate from Peralez, sh e ack nowl edge d that she som etimes w ould have to leave the apartment for “ a few minutes ” to deal with oth er tenants in the apartment complex. Grandmother testified that she never saw Peralez in the bathroom with
Aub rey and that she n ever saw him s exually abusing Au brey. While Grandmother

w as no longer in a relationship with Peralez at the time of trial , she stated that she still
lo ved him , that she would always love him , and that he had “ never hurt a child and he
never woul d

. ” 10
Ano ther witness, L. O. (Lind say), testified about Peralez ’ s p rior instances of
sexual abuse. Linds ay , who was thirty

- seven at the time of trial , testified that Peralez

10 Grandmother a l so s tated that Peralez had no hair on his genital s . Aubrey had t old the forensic interviewer that she ta ste d Peralez ’ s hairs when he put his “ private parts ” in her mouth.8

had been ma rried to her aunt

. Lindsay described to the jury how Peralez had sexually
abu sed her on multiple occas ions beginning when she wa s around fo u r years old. 11 Lindsay testifi ed that she did not initially tell an yone about the abuse because Peralez
had thre aten ed her mother. F. The Jury ’ s Verdict The jury ultim ately convicted Per alez of Counts Two and Three, but it acquitted Peralez of Coun t O n e. After the trial court sentenced him to life impriso nment in conformity with ea ch guilty verdict, Peralez filed this appeal.
I II. D ISCUSSION A. Exclusion of Prior Consistent Statement In his first issue, Peralez argues that the tri al co urt abus ed i ts discret ion by

ex cluding a prior consistent stateme nt from Grandmother that established that she
was not f abricating her testimony out of fear of Pera lez.
1. Standard of Review We review a trial court’s decision to a dmit or exclude eviden ce for an a buse of
discretion. Beham v. St

ate , 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 reason able disa greement.” Id. I f the t ri a l court’s

11 Lindsay also testified that she had once witness ed Peralez sexually abusing his daughter while he was changing her diaper.9

evidentiary ruling is c orr ect on any applic able theory of law, we will not dis turb it.
De La Paz v. State , 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). 2. Applicable Law Generally , a witness ’ s prior state ment that is consis tent wit h the wit ne s s ’ s trial testimony is inadmissib le hear say. Bo squez 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 8 01 (e) ( 1)(B) provides o therwise, a witness ’ s pr ior consistent stateme nt is not
ad m issible if offered solely to enhance the witness ’ s credibility

. ” )

. A prior consistent statement is admissible, however, to rebut an express or implied char ge against the
declarant of recent fa brication. Bosquez , 44 6 S .W .3d at 585 ( citing Tex . R. Evid

. 8 0 1 (e) ( 1)(B) )

. “ [T]here need be only a suggestion that the witness consciously
altered h is testimony in order to permit the use of earlier statements that are general ly
consistent with the testimony at trial. ” Ham mon s v. Stat

e , 239 S .W.3d 798, 804 (Tex

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

t rial and be subject to cross

- examination, ( 2) there must be an express or implied charge o f recent fabrication or improper in fluen ce o r mot ive of the de clara nt ’ s

tes tim o ny by the opponent , (3) the proponent must offer a prior statement that is
consistent w

ith the declarant ’ s challenged in

- court testimony, and (4) the prior

con sistent statement must be made before the supp osed motive to fal sify arose. I d

. (citing Tome v. United States , 513 U.S. 150, 156

– 58 , 115 S. Ct. 696, 700

– 0 1 (1995)); see also B osquez

, 446 S.W.3d at 585.10

3. Analysi s Here, Grandmother testified that in October 20 22, while Peralez was in ja il, s he

m ade a 911 call in which she reported that he had t hre a tened to kill her on three
occasions

. Grandmother told the jury , h owever , that Peralez had never directly threatened to kill her; rather, that threat had been rel aye d by o ne of his ch ildren. According to Grandmother , she was into xicated when she made th e 911 call , and she could not remember making it

. She also stated that no one had tried to influence her testimony.
Fol lowin g Gr andmother ’ s testim ony regarding the 911 call, Peralez offered into
evidence a portion of his recorded interview with polic e f o llowing his July 2022 arrest. During th at p ortion , Peralez and Gra ndm other spo ke on the phone. In that conversation, G randmother expressed incredulity at Peralez ’ s being arres ted f or

s exually assaulting Aubrey

. Grandmother stated that Peralez was ne ver home long enough to assault Aubrey, th at Aubrey and the other kids in the apartment were always by h er s ide while they wer e in the apartment, and that committing an act of
sexual assault was time

- consuming

. Peralez offered that exhibit as a prior cons ist e nt

stat ement
. The State object ed to the r ecord ed interview based on hearsay , a nd the
trial court su stained the State ’ s objection. Here, there is no dispute that the recorded interview meets three of the four required elements to fall within the hear say exception

. See Hammons , 239 S.W.3d at
804. To that end, (1) Gran dmoth er t estified a t 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 sta t ed that P eralez had threatened to kill her, an d (3) the pr ior c onsi stent statement (a recorded interview from July 2022) was made prior to the time the supposed motive to fa lsify arose (the
911 call was made in October 2022). See id. The element that is in disput e is whether
the offered prior statement is consi stent wit h Grandmother ’ s ch allenged in

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

me t, and , thus, we will assume, without deciding, that the tri al c ourt abused its discretion by exc ludin g the proffered p ortion of the recorded interview.
Because the assumed error is not constitutional, we apply R ule 44 .2(b). Tex. R. App. P. 44.2(b) ; see Bo squez , 446 S.W.3d at 587 . That R ule requires u s to disrega rd a ny nonconstitutional error that doe s n ot affect an appel lant’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 51 0, 518 (Tex. Crim. App. 2005); see King v. State , 953 S.W .2d 266, 271 (Tex. Crim. App. 199 7) (citing Kotteakos v. United States , 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, a n error does not affect a substantial ri ght if th e appellate cou rt has a fair assurance from a n exa mina tio n of the record as a whole that
the error did no t 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 quest ion, we c onsider (1) the character of the alleged erro r and how it might be consi dered in connection12

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) whet her
the State e mphasized the complained

- of error. Id. ; Mot ill a v. State , 78 S.W.3d 352, 355 (Tex. Cri m. App. 2002). We may also consider the jury instructions, the State’s theory and any defensive theories, closing arguments, and even voir dire, if appli cable. Haley , 173 S.W.3d at 518

– 19; Motilla , 78 S .W.3d at 355

– 56. Here, the subject p ortion of the re corded interview simply reflected that
Gra n dmother did n ot believe the charges against Peralez and she believed that he would not have had time t o se xuall y assault Aubre y when Grandmother babysat her

. Similar evidence was admit ted during Gr andmother ’ s te stimony 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 cour t h as consistently h eld reversal is not required by
exclu sion of evide nce 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. re f ’ d) ( not des igna ted for publ icat ion) ( “ It is well
settle d that a n error i n admission o r 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 w as f abricated was discou nted by
other testimo ny

— Grandm other ’ s testi mony th at she had been intoxicated during the 911 call, her testimony that she had not been directly threatened by Pera lez, her
testimo ny that she loved Peralez and did not bel ieve that he woul d ever hurt a child,13

a nd Aubrey ’ s statement s that Grandmother did not know about the assault and had
not seen it occur . In addition, the evidence demonstrating Per alez ’ s guilt was strong. During her outcry, the forensic interview , th e sexual assault examination, and th e t r ial, Aubr ey maintaine d that Peralez ’ s sexual organ ha d contacted her mouth and that his finger had penetrated her sexual organ. See Hutson v. State , No. 05

- 22

- 00662

- CR, 2 0 23 WL
373 5229, at *4 (Tex. App.

— Dallas May 31, 2023, no pet.) (mem. op., not d esi gnated
fo r publication) ( “ The t estimony of a victi m a l one, even if that victim is a child, is sufficient to support a convictio n for se xual assault of a child. ” ) ; Arriaza v. S t ate , No. 02

- 21

- 00128

- CR, 2023 WL 2806255, at *2 (Tex. App.

— F ort Worth Apr. 6, 20 23,

n o pe t .) (mem. op., not des ign ated for publica tio n ) ( “ The testimony of a child v ictim alone is sufficient to support a conv ictio n f or aggravated sexual assault. ” )

. We co n clude tha t, in the co ntext of the entire case against Peralez , the trial
court’s e rror , if any, i n exc luding the prior consistent statement from G randmother did not have a substantial or injurious effect on the jury’s verdict and did not affect
Peralez ’ s s ubstantia l rights. S ee King , 953 S.W.2d at 271

– 73 . Thus, we must disregard
the e rror. 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 co urt’s jury charge “failed to
i n struct th e jury that it must be unanimous as to the particular event underlying ea ch of the counts alleged in the indictment.”14

1. Standard of Review We must review “all al leged jury

- charge error

. . . regardless of preser vation in
th e t rial cou rt.” Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In reviewing a jury cha rge, we first determine whether error occurred; if not, our analysis
ends. Id.
2
. Charge A n alysis A jury charge ’ s purpose is to inf orm the jury of the la

w applicable to the case and to guide them in its application. Beltran De L a To rre v. State , 583 S. W .3d 613, 617 (Tex. Crim. App. 20 19)

. A trial court has a duty to instruct the jury on the l a w appli cable to the case regar d less of a ny objection to the ch a rge by the defendant. Vega v. State , 394 S.W.3d 514, 519 (Tex. Crim. App . 2013 ) ; see Tex. Code Cr i m. Proc.
Ann. art. 36.14

. The trial court is ultimately respons ible for the accuracy of the j ury charge and t h e accompanyin g in struct ions. Vega , 39 4 S.W.3d at 51 8

. Jury unanimity is r equired in all felony cases by the Texas Constitut ion, and it is requi red in all criminal cases by statute. See Tex. Const. art. V, § 13; Tex. Code Crim.
Proc. A n n. art s. 36.29(a), 37.02, 37.03, 45. 0 34, 45.03 6; see also Ngo v. Stat e , 175 S.W.3d 738, 745 (Tex. Crim . App. 2005). “ This means that the jury must ‘ agree upon a s ingle
and discrete incident that would constitute the commission of the offense alleged. ’ ”
C osio v. S t a te , 353 S.W.3d 766, 77 1 (Tex. Crim. A pp. 20 11) (qu oting St uhler v. S t ate , 218 S.W.3d 706, 717 (Tex. Crim. App. 200 7)); see N g o , 175 S.W.3d at 745 ( “ Unan imity15

i n this context means that each and every juror agrees that the defendant committed
th e same, single, specific criminal act. ” )

.

“ [N]o n

- una nimit y may occur when the St ate charges one offense and presents
evidence that the de fendan t committed the char ged offense on multiple but separate
occasions. ” Cosio , 353 S.W.3d at 772 . In such a c ase, each of the multiple incidents
indi vidually est a blishes a different o ffense. I d

. To satisfy the unanimity r equire ment in such a situation, “ t he jury must be inst ructed that it must unanimously agree on one incident of criminal conduct ( or unit of prosec u tion), based on the evidence, that
meets all of the essen tial element s of the si ngle c harged offense beyond a reasonable
doubt. ” Id. at 776. The failure to inclu de such an instructi on in t he jury charge is

error. See id. at 772, 774 ; Manrrique v. S t ate , No. 02

- 19

- 0 0458

- CR, 2021 WL 4205011, at *11 (T e x. App.

— F ort Worth Se pt. 16, 2021, no pet.) (mem. op., not designated for publication). Here, the jury charge alle ged three different counts of aggravated sexual assault
of a child: (1 ) Peralez ’s mouth co n t acting Aubre y ’s sexual organ , (2) his s e xual orga n contacting her mouth , and (3) his finger penetrating her sexual organ

. The State presented evidence that Perale z had committed these various offenses on multiple b ut separate occasions; accord i ngly, the trial court e r red by fa iling to inc lude more than a
gener al unanimity instruction in the charge. 12 See Co sio , 353 S. W.3d at 772 , 774 ; Brown

12 The Sta te argues that a spe cific unanimity instr u ct ion was not req uired u nder the facts of th is case, pointing out that “ the jury charge contained three different16

v. S tate , No. 02

- 22

- 0019 0

- CR, 2023 WL 4779490, at *6 (Tex. App.

— Fort Wo rth July 27, 2023, no pet.) (mem. o p., not designated for p ublicatio n) ( “ [B]ecau se the State presented evid ence that [the appellant] had committed a var iet y of sexual acts with [the complai nant

] on multiple bu t separate occasions, the trial court erred by failing to include a more specific unanimity instruction i n the sexu al

- assault a nd indecency jury charges. ” ) ; Hopkins v. State , No. 03

- 16

- 00746

- CR, 2018 W L 1 660831, at *8 (Tex. App.

— Austin Apr. 6, 2018, no pet

. ) (mem. op. , n ot design ated for publication) ( “ The State presented evidence that [the] appellant committ e d the var ious sexual abuse offenses alleged on m ultiple but separate occasions over the course of [the complainant ’ s] childhood.

. . . Therefore, the trial court should have in cluded an
incide nt

- unanimity instruction in the jury c h arge . ” ). In its brief

, the Stat e points out that “ [t]he jury charge stated three separa te times that the jury ’ s verdict must be unanimous ” and that “ [t] he trial court orall y instructed the jury that its verdict must be unanimous

. ” But each of those
instru cti o ns merely spoke of un animity in general; the instructi ons did not tell the jury
that “ it must unanimously agree on one incident of criminal conduct ( or unit of prosecut ion), based on the evidence, that meets all of the essential el e ments of the
si ngle c ha r ged offen se beyond a reasonable doubt. ” Cosio , 353 S.W.3d at 77 6. Thus , counts, each relating to a single separate and distinct offense. ” That argument misses the mark. The unanim ity issue pres e nt ed in t h is case is not merely that Peralez w as charged with three distinct offenses; the issue is that the jury heard evidence that Peralez had committed ea ch of the offen ses on multiple but separate occasions.17

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

a mor e
- specific unanimity instruction. See id. at 773 ( “ Although th e instruction ’ s

‘ boil e rplate ’ s ection in for med the jury that it must be unanimou s, the jury could have understood it to mean that they had to be unanimous about the offense in general, not a pa rticular incident comprising the offense. ” ) ; Rodriguez v. S tate , No. 02

- 18

- 00057

- CR, 2019 WL 4 06167, at *3 (Tex. App.

— F ort Worth Jan

. 31, 2019 , no pet. ) (mem. op., not designated for publication ) ( “ [T]he charge contained only a general unanimity
instructio n that failed to alert the ju rors that they needed to be u nanim o us about
which incid e nt formed the basis o f each of the counts of aggravated sexual as sault of
a child . Based on the general unanimity instruction and the evidence showing that
there were mul tiple instances of aggravated sexual assault occurring on unspe c ified
d ates, there w a s the pos sibility of nonunanimous verdicts. ” ) ; Hopkins , 2018 W L
1 660831, at *8 ( “ Generic statements regarding unanimity

. . . are insufficient to
preve nt a non [] unanimous verdict. ” ).
3. Har m Analy sis Having determined that the tria l c o urt erred , we no w tur n to harm. Because Peralez did not raise his u nanimity compl aint with the tr ia l 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. Ap p . 2 013); Almanza v. S tate , 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 fo r egregious harm is fact

- and case

- specific. G elinas v. State ,18

398 S.W.3d 703, 710 (Tex. C r im. App

. 20 13); T aylor v. Sta te , 332 S.W.3d 483, 489 (Tex. Crim. App. 2011)

. E rrors that result in egregious harm are those “that affect the very basis of the

case, deprive the defend ant o f a valuable right, vit ally affect the defensive theory, or
make a c ase for con victio n clearly an d 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 ill uminate the actual, not just theoretical, ha rm to the accused. Almanza , 686 S.W.2d at 174. In exa m inin g the record to d etermine whether charge e rror has resulted in egre gious harm, we consider the actual degree of harm in light of (1) the entirety of the jury charge ; (2) the s t ate of the ev idence, inc luding the contested issues

a nd weight of p r obative evid ence; (3) the arg uments of counsel ; and ( 4) any other
relevant info rmation revealed by the trial record as a whole. Id. at 171

. As to the entirety of the charge, a s stated ab ove, the jury charge permitted
nonunanimous verdicts based on the e v idence presented in the case regarding

mu ltiple instances of sexual abuse. Nothing in the charge mitigated this concl usion

. Accord ingly, we conclude that this factor weigh s in favor of a finding of egregiou s harm. See Rodriguez

, 2019 WL 406167, at *5 ( c oncludi ng that e ntirety of ch arge weigh ed in favor of egregious harm where it “ permitted nonunanimous verdicts based on the evidence presented in the case regarding multiple instances of s exual abuse ” ).
As to the state of the evidence, as detailed above, A ubrey m aintained

— d uring
her o utcry, the forensic interview , the sexual assault examination, and the trial

— that19

Peralez ’ s sexual organ ha d contacted her mouth and that his finger had penetr ated her sexual orga n. Peralez ’ s def ens ive 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 inst a nces of si milar abu se and a defe ndant
maint ains that n one of th e instances occurred

— there is little risk of a non unanimous 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.) (me m . op. , not designat ed for
p ublic ation) ( “ T h e court of criminal appeals has repeatedly emphasized that there is
little risk of a non []unanimous verdict in cases such as this, w here one side argues a theory of repeated sexual abuse, and the other side denie s any a buse occurred

. ” ) ; Rodrigue z , 2019 WL 406167, at * 3 ( “ [B]e cause 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 prov i de mu ch de tai l or
d istinguish be tween), the re is ‘ no remotely s ignificant risk ’ of a nonunanimous
verdict. ” ); R

uiz v. S t ate , 272 S.W.3d 819, 826

– 27 (Tex. App.

— Austin 2 008, no pet.) (holding that state of the evidence weigh ed against finding egregious harm when
defen d ant did not argue tha t he was gu ilty of only some of complainant ’ s allegations
of sexual a buse but instead argued that he had not committed any of th e alleged conduct, leaving the jury with an all

- or

- nothing decision ). We conclude that this
fa c tor we igh s agai nst a finding of egregious h arm.20

As to the argum ents 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 w ere they told tha t they need not be unanimous. T his
fact or w eighs neither for no r against a finding of eg regious 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, nei t h er t he State nor defense couns el made a ny reference to a un animity requirement; therefore, this factor does not weigh for or against an egr egious

- harm finding. ” ). As to any other relevant information reve aled by the trial record as a whole, we
note that P eralez was acquitted of Count O n e . See Rodriguez , 2019 WL 406167, at * 7 ( “ Othe r 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

mar kedly weaker than the evidence pertaining to Cou nts Two a nd Three. To th at

e nd, Aubrey did not m ention in her forens ic 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 fi nger. Moreover, at trial, Aubrey init

ially te stified that she c ould not remem ber whether Peralez had ever put his mouth on her “ private part , ” but she later stated that she did not w a nt to talk about Peralez putti ng his mo u th on her “ priv ate part ” before stating that he had done

s o on two occasions. Given that evidence, coupled with Peralez ’ s theor y that he had not committed any of the ass aults, t his factor weighs ne i ther for nor against a findin g21

o f eg re gious harm. See Maxwell v. State , No. 08

- 14

- 00027

- CR, 2016 WL 6426784, at * 8 (Tex. App.

— El Paso O ct. 31, 2016, no pet.) ( not designated for p u blication) ( “ If the jury had bel iev ed Appellant ’ s theory [th at the complain a nt had fabricated the
alle gat ion s agai nst him] , it wou ld have found him not guilty of all of the counts of
inde c en cy. In stead, in fi nd ing Appellant guilty of two of the four counts of indecency towards [the complai nant], the jur y necessarily disbelieved A ppellant ’ s defens ive evide nce . ” )

. Onl y one of the fou r fact ors

— the entirety of the charge

— weighs in favor of a
fi nding of egregious ha rm. In light of our analysis of these four factors and after reviewing the appellate re cord, we cannot con clude that th e charge error affected the

ve ry basis of the case, dep rived Peralez of a valuable right, vitally affected the
defe ns ive theory, or made a case for conviction clearly and significantly more persuasive . Accordingly, we hold that he was not egregiously harm e d by the erroneous charg e. See A rr ington v. Stat

e , 451 S.W.3d 834, 839

– 40 (Tex. Crim. App. 201 5) (holding appella nt was not egregiousl y harmed by charge that omitted unanimity instruction when entirety of charge was the only factor weigh ing in favor of

e g regious harm

) ; Cosio , 35 3 S .W.3d a t 777

– 78 (same) ; Rodriguez , 2019 WL 406167,

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

C. In effective Ass istance of Counsel In his third issue, Peralez argues t hat he was denied effective assistance of
counsel b ecause his trial counsel “ fa iled to effectively co unter impermissible arguments made by the State during clos ing a rgument
. ”
1. Standa rd of Review and Ap plicable Law The Sixth Amendment guarantees a c riminal d efe n dant the effective assist a nc e of co unsel. Ex part

e Scott , 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const. amend. VI. To establish ineff ective assistance, an appell ant must prove by a preponderance of the evidence that his counsel ’s repres ent a tion was deficient and th a t the def iciency prejudi ced the defen se. Strickland v. Washington , 466 U.S. 668, 687, 104
S. Ct. 2052, 2064 (1984); Nava , 415 S. W.3d at 307 . The reco rd must affirmatively
demonstrat e that th e claim has merit. Thompson v. State , 9 S.W.3d 808, 813 (Tex. C ri m . App. 1999). A revi ewing court need not address both deficiency and prejudice if the appellant makes an insufficient showing on one component, nor must a reviewing court address deficienc y and prejudice in any particular ord e r. Strickland , 466 U.S. a t 6 97, 10 4 S. Ct. at 206 9. In evaluating counsel’s effectiveness under the deficient

- perf ormance prong, we review the totality of the re presentation an d the particular circumstances o f the

cas e to determine whether counsel provid e d reasonable assistance u n de r all t he
circumstance s and prevailing professional norms at the time of the alleged er ror. See
id. at 688

– 89, 104 S. Ct. at 2 065; Na va , 415 S.W.3d at 307; Thompson , 9 S.W.3d at 81 3

–23

14. Ou r review of counsel’s representation i s highly deferential, and we indulg e a strong pres umption that counsel’s conduct was not deficient. Nava , 415 S.W. 3d at
307

– 08. An appellate court may not infer ineffective ass istance simply from an unclear
record or a record that does not show why couns e l failed to do something. M e nefiel d v.
State , 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State , 226 S.W.3 d 425, 432 (Te x. Crim. App. 2007). Tria l couns el “should ordi narily be afforded an opportunity to expl ain his actions before being denounce d as ineffective.” Menefi e ld , 363 S .W.3d at
593. If trial counsel did not have that opportunity, we should not con clude that

cou nsel performed deficiently unless the challenged conduct was “so outrageous that
no compe tent attorney would have engaged in i t .” Nava , 415 S.W.3d at 3 0 8. Direc t appeal is usu ally inadequate for raising an ineffective

- assistance

- of

- counsel claim because the record generally does not sho w counsel’s rea sons for any alleged deficient performanc e. See Menefield , 363 S.W.3d at 592

– 9 3; Thompson , 9 S.W.3d at 8 13

– 14.
2
. Peralez ’ s Co mplaints Peralez complains that he was denied effective assistan ce of counsel on three occasions during the State ’ s closing ar gument
. First, Peralez complains that his t rial counse l should have objected whe n a prosec utor told the j ury , “ And , you know, t h ey ’ ve spent this entire trial conv oluting what pe ople have said, mis representing things to you. That ’ s
- - that ’ s all the y ’ re good
for. I ’ m not going to give that oxygen. ” Acc o rd ing to Peralez, this r emark suggested24

that the defense was “ acting unethically and in bad fait h ” and was “ perhaps an egregious manifestation of striki ng at the defendant ov er the shoulde r[] of defense
counsel. ” See Mosley v. State , 9 83 S.W. 2d 249, 259 (Te x. 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
defen se c ouns e l personally and when the ar gument explicitly impu gns defense
counsel ’ s character. ” ). Second, Peralez complains that his trial counsel should have object ed when a
pr osecutor told the jury, “ [O]ur job at the district attorney ’ s o ffice is [t o] do the r ight thing

. . . . That ’ s not [ de fense c ounsel ’ s] job. ” According to Peralez , this remark was

“ blatantly improper under well

- settled precedent. ” See Wilson v. St ate , 938 S.W.2d 57,
60 (Tex. Crim. App. 1996) (holding that prosec uto r ’ s comment about his oa th to seek j ustice and defe nse counsel ’ s lack of oath was “ manifestly improper ” )

. Third, Peralez point s to the following excha nge during the State ’ s closing argument to suggest that a prosecutor impro perly commented on his d e mea no r d uring trial : [Prosecut o r] : . . . . And , you k now, when [Aubrey] was on the stand, she identif

ied 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

. [ D e fense Cou nsel

]: Objec t

io n, Your Honor. That ’ s a misstatement of everything and an improper ju ry argument.25 [ T rial Court

] : Well, I ’ m going to sustain the objection at this time. The jury will recall the evidence that they ’ ve seen. [Prosec utor] : It ’ s because he ’ s scare d. He ’ s scar ed of her. [Au brey ] was scared of him at one point, but now she has the power back. You guys are going to give her that power back.
Peral ez argues that “ [t]he State was plainly prohibited fr o m this line of argument

un de r wel l[

- ]settled pre ce dent 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 a r gument at the guilt/innocence phase, a prosecutor may n ot properly comment upo n t he defe nd ant ’ s de meano r in the courtroom, since the defendant ’ s deme anor in the courtroom is not evidence of guilt. ” ) (citing Good v. State , 723 S.W.2d 734, 737 (Tex. Cr

im. App. 1986) )

. According to Peralez, his trial cou nsel sh o uld have
asked the tria l c ou rt to instruct the j ur y to disregard the prosec utor ’ s comment after
the trial court sus tained his objection. Peralez further argues that his trial counse l
should have objected “ when the State persiste d on wi t h the same line of argu m en t that the [trial cou r t] had just s ustained

. ”
3. Analysis
In its brief, the State does not suggest that the complained

- of arguments by t he prosecutor were proper. Rather, the State argues that “ [t ] he reco r d is not sufficiently
de veloped for this court to make a determina tion of ineff ective as sistance of counsel ”
and that Peralez “ has not met his burden of proving defici ent performance or prejudice. ” We agree

.26

Here , th e record is silent r e ga rding w hy Peralez ’ s tr ial counsel did not object t o the first t wo complained

- of r emarks by the pro secut or. As to the t hird complained

- of remark, the record is s ilent regarding why Peralez ’ s trial counsel did not ask the trial

co u rt to instruct the jury to dis reg ard the prosec u tor ’ s comment after the trial court

sust ained his obj ection , nor does it reflect why Pe r alez ’ s trial counsel did not object to
the comment fro m the prosec utor that followed the trial court ’ s sustaining of hi s objection. Based on t h is record , we cannot say that Peralez ’ s trial counsel was
deficient. See Menefield

, 363 S.W.3d at 593 ( “ Trial cou n sel should ordinarily be
affo r ded an opportunit y to expl ain his actions befo re being denounced as inef fective

. ” (quo t ati on omi tted

) ) ; Baugus v. State , No . 02

- 22

- 0001 5

- CR, 2023 WL 3370718, at *13 (Tex . App.

— Fo rt Worth May 11, 2023, pe t. ref ’ d) (me m. op. , not designated for publication) (holding that because appellant “ d[id] not poi nt to anything in the record
indic a ting w hy his trial co unsel fa i le d to ma ke

. . . object ions ” to complained

- of jury
argume nts , appella te court “ can not say that [appellan t ’ s] trial counsel ’ s performance was deficient ” ); Panchol v. State , No. 02

- 12

- 00228

- CR , 2 01 3 W L 3874763, at * 9 (Tex. App.

— Fort Worth July 25, 2013, pe t
. ref ’d) (mem. op., not de signated for publica tion

) ( “ The record i s absolutel y sile nt regarding counsel ’s reasons for not

o bjecti n g to [ the compla ined

- of ju ry argument m ade by the State during closi ng ]

. . . . That being the case, A ppel lant has failed to s ho w by a preponderance o f the evidence
that counsel was defic ient. ”)

.27

Further, we a re 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 t ho ught th at objecting to the complained

- of comments would draw the jury ’ s attention to them , as would the trial court ’ s instruct ing the jury to dis regard the prosec utor ’ s comment after the trial court sust ained the obj ection

. See Bennett v. Stat e , No. 07

- 21

- 00223

- CR, 20 22 WL 22304 73, at *2 (Tex. App.

— Amarillo June 21, 2022, no pet.) (me m. op., not designated for publication ) ( “ It could well be that
counsel ’ s decision to forgo an objection was a strategical decision. Ind eed, c o u rts have recognize d t hat wit hholding object ion to avoi d garnering more attention on a
matter can be reasonable trial strategy. ” ) ; Cue va v. State , 339 S.W.3d 839, 892 (Tex. App.

— Corpus Christi

– Edinburg 2011, pet. ref

’ d) ( holding that c ounsel ’ s de cis ion no t

to object to jury a rg

ument m ay have been a strat egic d ecision “ to avoid highlighting such an argument ” ) ; see al so 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 publ ication) ( “ [W]e ma y not s pec ulate re gard ing why tri al counsel acted as he did and must presume that a rea son able trial strategy su pported his conduct. ” )

. Thus, we hold
that Per al ez has not met his burden of showing by a preponderance of the evidence

t hat his trial cou ns e l ’ s repre sentation fell below the s tandard of prevailing professional

norms. 13 See S tricklan d

, 466 U.S. at 688, 10 4 S. Ct. at 2065. Because he has not shown

13 We recognize t h at a n attorney ’ s isolate d acts or omissi ons generally d o not constitute deficient performance. See, e.g. , Ingham v. State , 679 S.W.2d 503, 509 (Tex.28

deficient pe rformance, he necessarily cannot show prejudice by any deficiency

. Se e Nava , 415 S.W

. 3d at 307

. We overrule Peralez ’ s th ird issue.
I V
. C ONCL USION Having overruled Peralez’s th ree issues, we affirm the trial court’s judgments. /s/ Dana Womack
Dana Womac k J us tice Do Not Publis h Tex. R. App. P. 47.2(b)
Delivered : April 2 5, 2024

Cr im . App. 1984). We note that th e record reflects that Peralez ’ s trial counsel filed several pre

- trial m otio ns , that he vigorously cross

- examined the State ’ s witnesses , that he lodged object

ions to certain of the State ’ s evidence , and that he called several witnesses o n Pe r ale z ’ s behalf

. We further note that Peralez was ultimately acquitted
o f one of the charges against him. See Chandler v. State , No. 01

- 08

- 01017

- CR, 2010 WL 4 57444, at *3 (Tex. App.

— Houston [1st Dist.] Feb. 11, 2010, pet. ref ’ d ) (m em. o p. , not d esignated for p ublication ) ( “ Appellant has not shown that counsel ’ s failure to object resulted in in effective assistance ; in fact, counsel ’ s efforts resulted in the acqu ittal of appellant for one of the charges against him

. ” )

.