Steven Chavez Florez v. the State of Texas

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
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.

2
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.

3
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
4
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.

5
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 six-
months 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

6
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
7
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

8
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

9
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,

10
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

11
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-assistance-
of-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
12
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

13
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

14
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

15
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

16
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

17
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:

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(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).

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