Mario Morales v. the State of Texas

NUMBER 13-23-00027-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

MARIO MORALES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 187th District Court
of Bexar County, Texas.

MEMORANDUM OPINION
Before Chief Justice Contreras and Justice Benavides and Tijerina
Memorandum Opinion by Justice Benavides

A jury convicted appellant Mario Morales of continuous sexual abuse of a young

child, a first-degree felony, and assessed his punishment at life imprisonment. See TEX.

PENAL CODE ANN. §§ 12.32(a), 21.02(b). On appeal, Morales raises nine issues: (1) the

trial court erred in allowing the complainant’s uncle to testify as an outcry witness; (2) the
trial court erred in admitting a “pen pack” containing extraneous offense and bad conduct

evidence without first holding a preliminary hearing; (3–4) the trial court erred in admitting

the bad conduct evidence because it was irrelevant and unfairly prejudicial; (5) the trial

court erred in admitting hearsay and additional extraneous offense evidence contained in

the complainant’s medical records; (6–7) the trial court failed to include limiting

instructions in the jury charge regarding the extraneous offense and bad conduct

evidence; (8) the trial court erred by admitting hearsay evidence offered by a police officer;

and (9) his trial counsel’s failure to object to most of the complained-of evidence rendered

his performance ineffective.1 We affirm.2

I. BACKGROUND

In 2019, Morales was indicted for continuous sexual abuse of a child under the age

of fourteen for allegedly committing two or more acts of sexual abuse against his

stepdaughter Jennifer3 during a period that began on or about September 15, 2011, and

ended on or about January 15, 2014. See id. § 21.02(b). The specific acts of sexual abuse

alleged in the indictment were various forms of aggravated sexual assault and indecency

with a child by sexual contact. See id. § 21.02(c)(2), (4).

Jennifer, who was nineteen years old at the time of trial, testified that she and her

mother began living with Morales when she was “[a]round eight [years old]” and stopped

1 We have reorganized some of Morales’s issues.

2 This appeal was transferred from the Fourth Court of Appeals in San Antonio pursuant to an order

issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001.
3 We have given the complainant a pseudonym to protect her identity. See TEX. CONST. art. 1,

§ 30(a)(1) (providing that a crime victim has “the right to be treated . . . with respect for the victim’s dignity
and privacy throughout the criminal justice process”).
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living with him when she was “[l]ike maybe ten [years old].” Jennifer believed she had just

started the third grade when her mother and Morales separated. During the time that

Morales and Jennifer’s mother were together, the family lived in three different houses:

first the “Johnson” property, then the “Valerie” property, and finally the “Meadow Trace”

property. Morales was a registered sex offender when he met Jennifer’s mother, and

according to his registration records, which were admitted into evidence, Morales

reported changes of address on June 3, 2010, August 4, 2011, and September 20, 2012.

Jennifer’s mother testified that these dates correspond with their moves to each property.

According to Jennifer, the first time Morales sexually abused her, she “was eight

[years old],” and the family was living at the Johnson property. She could not recall a

specific date, but she remembered that it was during the school year because she had

stayed home sick that day. Morales was watching pornography on his laptop in the living

room and asked Jennifer if she “wanted to see.” He turned the laptop so that Jennifer

could view the screen. Morales did not say anything at first; “he just sat there smiling at

[her].” Jennifer testified that Morales then got up, closed the blinds, and told her “to lay

down on the ground and take off [her] shorts.” Jennifer complied, and Morales used his

“hand” to touch her bare “vagina.” She said he was “moving his fingers,” but he did not

penetrate her vagina.

The next incident occurred at the Valerie property. Jennifer said that she walked

into the master bedroom to get a brush, and Morales was coming out of the master

bathroom wearing a towel. Morales closed the door to the bedroom, scolded Jennifer for

“walking in on him,” and told her “to take off [her] shorts.” She complied, and Morales

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directed her “to get on the bed.” According to Jennifer, she was lying on her back with her

legs “in the air,” and Morales used his hand to “spread” lotion on the “outside” of her bare

“vagina” and “butthole.” After applying the lotion, Morales took his towel off and “inserted

his penis into [Jennifer’s] butthole.” She testified that she knew that it was his penis

because he was “standing in front of [her],” she “felt it going in,” and “[i]t hurt a lot.” She

said that he began to “thrust” his penis “in and out of [her] butthole” and told her “that it

was okay” and “[j]ust to be quiet.” Afterwards, he reportedly told her “to go to the restroom

and clean [her]self.”

Jennifer testified to another incident that occurred when she “was around [the] age

of eight” but could not recall which house they were living in. Jennifer said she was in the

living room playing with her younger brother when Morales told her to go to his bedroom.

Once there, Morales told her “to lay down on the bed” and retrieved a lollipop from the

dresser. Morales pulled down his pants and told Jennifer to pretend his penis was “a

lollipop” and “to be careful . . . not to bite on it.” According to Jennifer, Morales then

positioned himself over her and alternated between placing his penis and a “grape-

flavored” lollipop in her mouth. While his penis was in her mouth, “he would thrust it back

and into [her] mouth” again. The assault was interrupted when her younger brother called

for Morales.

The State called Dr. Lora Spiller, a child abuse pediatrician who conducted

Jennifer’s sexual assault examination when Jennifer was fifteen years old. Dr. Spiller

testified that Jennifer accused Morales of specific acts of sexual abuse. Some of these

allegations mirrored Jennifer’s testimony and others differed. For example, Jennifer told

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Dr. Spiller that the incident involving pornography included anal intercourse.

Morales’s sister and mother both testified that Morales resided with each of them

at different points during the alleged period of sexual abuse. For example, Morales’s sister

said that Morales lived with her for months at a time in 2011, 2012, and 2013. During

these periods, Morales did not have access to Jennifer, according to Morales’s sister.

Morales also testified in his defense and denied the allegations.

The jury returned a guilty verdict and assessed punishment as indicated above.

Morales filed a motion for new trial but did not raise ineffective assistance of counsel as

a ground. The motion was overruled by operation of law, and this appeal followed.

II. OUTCRY TESTIMONY

Prior to trial, the State designated Jennifer’s uncle Kelvin Fargo as an outcry

witness. Neither party requested a preliminary hearing to establish that Fargo’s testimony

was admissible for this purpose. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(2).

Fargo testified that Jennifer told him that Morales “was touching her inappropriately” but

that “she didn’t go into detail.” Morales objected that Jennifer’s purported statement to

Fargo was not specific enough to constitute an outcry and was therefore inadmissible

hearsay. The trial court conducted a hearing outside the presence of the jury and

overruled Morales’s objection. By his first issue, Morales maintains that Fargo did not

qualify as an outcry witness.

A. Standard of Review & Applicable Law

Hearsay is an out of court statement offered at trial for the truth of the matter

asserted in the statement. TEX. R. EVID. 801(d). Hearsay is generally inadmissible unless

5
an exception applies. Id. R. 802. Article 38.072 of the Texas Code of Criminal Procedure

provides a statutory exception that permits the State to introduce certain hearsay

statements that a child victim of sexual abuse makes to an outcry witness. TEX. CODE

CRIM. PROC. ANN. art. 38.072, § 2. An outcry witness is the first person over the age of

eighteen, other than the defendant, to whom the child spoke about the offense. Id. art.

38.072, § 2(a)(3). Among other requirements, the trial court must hold a hearing outside

the presence of the jury to determine if the hearsay statement is “reliable based on the

time, content, and circumstances of the statement.” Id. art. 38.072, § 2(b)(2). To qualify

for the exception, “[t]he statement must be ‘more than words which give a general allusion

that something in the area of child abuse is going on’; it must be made in some

discernable manner and is event-specific rather than person-specific.” Lopez v. State,

343 S.W.3d 137, 140 (Tex. Crim. App. 2011) (quoting Garcia v. State, 792 S.W.2d 88, 91

(Tex. Crim. App. 1990)).

“A trial court has broad discretion in determining the admissibility of outcry

statements pursuant to this statute, and the trial court’s exercise of that discretion will not

be disturbed on appeal unless a clear abuse of discretion is established by the record.”

Marquez v. State, 165 S.W.3d 741, 746 (Tex. App.—San Antonio 2005, pet. ref’d). The

erroneous admission of a hearsay statement constitutes nonconstitutional error that must

be disregarded unless the error affects the appellant’s substantial rights. Barshaw v.

State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); ); see TEX. R. APP. P. 44.2(b). An

appellate court should not overturn a criminal conviction for nonconstitutional error “if the

appellate court, after examining the record as a whole, has fair assurance that the error

6
did not influence the jury, or influenced the jury only slightly.” Barshaw, 342 S.W.3d at 93

(quoting Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001)).

“In cases involving the improper admission of outcry testimony, the error is

harmless when the victim testifies in court to the same or similar statements that were

improperly admitted or other evidence setting forth the same facts is admitted without

objection.” Gibson v. State, 595 S.W.3d 321, 327 (Tex. App.—Austin 2020, no pet.)

(collecting cases); see also Tschoepe v. State, No. 04-06-00743-CR, 2008 WL 506190,

at *3 (Tex. App.—San Antonio Feb. 27, 2008, no pet.) (mem. op., not designated for

publication).

B. Analysis

Even if we presume that Jennifer’s statement to Fargo was not sufficiently detailed

to satisfy Article 38.072’s requirements, see Lopez, 343 S.W.3d at 140, we conclude that

any error in admitting Fargo’s outcry testimony over Morales’s hearsay objection was

harmless because similar testimony had already been properly admitted. See Gibson,

595 S.W.3d at 327; see also Tschoepe, 2008 WL 506190, at *3. Prior to Fargo’s

testimony, Jennifer testified in detail about the alleged abuse, including allegations that,

on more than one occasion, Morales used his “hand” to touch her bare “vagina.” This

testimony corresponded with Fargo’s subsequent testimony that Jennifer accused

Morales of “touching her inappropriately.” See Gibson, 595 S.W.3d at 327; see also

Tschoepe, 2008 WL 506190, at *3 (“Because Dean and V.T. testified about the same

matter, with V.T. testifying in more detail without objection, any error in admitting the

outcry evidence was cured.”). Moreover, Jennifer had already testified that Fargo was the

7
first adult she reported the abuse to, and Morales continued to explore this testimony

during his cross examination of Jennifer.4 On this record, we have fair assurance that

any error in admitting Fargo’s outcry testimony did not have a substantial and injurious

effect on the jury’s verdict. See Barshaw, 342 S.W.3d at 93. Morales’s first issue is

overruled.

III. EXTRANEOUS OFFENSE EVIDENCE

At the beginning of the trial, the State introduced a penitentiary packet from the

Texas Department of Criminal Justice that contained Morales’s 2001 judgment of

conviction for indecency with a child by sexual contact. The “pen pack” also included a

“TDCJ Disciplinary Report and Hearing Record” showing that Morales was punished

during his incarceration for tattooing another inmate. Morales acknowledges that he failed

to object to this evidence at trial. Nevertheless, he argues by his second, third, and fourth

issues that the trial court erred in admitting the pen pack because it failed to hold a

preliminary hearing and the evidence of his penitentiary bad conduct was irrelevant and

unfairly prejudicial. See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2-a; TEX. R. EVID. 403,

404(b).

4 During Morales’s cross examination of Jennifer, the following exchange occurred:

[Counsel]: [Y]ou reported this when you’re 19 years old, right?

[Jennifer]: No, I reported this when I was 13.

[Counsel]: Okay. And that was to your uncle?

[Jennifer]: Yes.

[Counsel]: And so what did your uncle do with this information?

[Jennifer]: My uncle turned and told my mother.

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 Later in the trial, the State introduced a medical report from Jennifer’s sexual

assault examination. This report quoted statements from Jennifer identifying Morales as

her abuser and claiming that, although they lived together for a period, “he was [also] in

and out of jail on gang related stuff.” Morales objected to the report in toto as “bolstering,”

“irrelevant,” and “unnecessary.” His objections were overruled, and the report was

admitted into evidence. Although he admittedly did not raise these specific objections at

trial, Morales nonetheless contends by his sixth issue that the above statements were

inadmissible because the second statement constituted impermissible extraneous

offense or bad conduct evidence and neither hearsay statement was “made for the

purpose of rendering a medical diagnosis or providing treatment.” See TEX. R. EVID.

404(b), 803(4).

As Morales later concedes while discussing his claim for ineffective assistance of

counsel, none of these issues have been preserved for review. “[T]he failure to object in

a timely and specific manner during trial forfeits complaints about the admissibility of

evidence.” Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002); see TEX. R.

APP. P. 33.1(a)(1). This well-settled rule applies with equal force to the admission of

extraneous offense evidence, including the requirement that a trial court hold a

preliminary hearing under Article 38.37. See Smith v. State, 595 S.W.2d 120, 123 (Tex.

Crim. App. 1980) (“We have consistently held that the failure to object waives any error

in the admission of evidence tending to show an extraneous offense.”); Carmichael v.

State, 505 S.W.3d 95, 103 (Tex. App.—San Antonio 2016, pet. refused) (“This court

concludes that the article 38.37, section 2-a hearing requirement . . . is subject to the

9
general requirement of preservation, and is therefore subject to forfeiture.”). Moreover, to

further avoid waiver, an issue on appeal must comport with the objection made at trial;

that is, an objection stating one legal basis may not be used to support a different legal

theory on appeal. Gibson v. State, 541 S.W.3d 164, 166 (Tex. Crim. App. 2017)

(discussing the need for the trial objection to comport with the appellate argument);

Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014) (“We are not hyper-

technical in examination of whether error was preserved, but the point of error on appeal

must comport with the objection made at trial.”); Medina v. State, 7 S.W.3d 633, 643 (Tex.

Crim. App. 1999) (“[A] relevancy objection at trial . . . . does not preserve error concerning

a Rule 404 extraneous offense claim.”). Here, Morales either completely failed to object

at trial (the pen pack) or his objection at trial does not comport with his arguments on

appeal (the medical report). Consequently, there is nothing for us to review, and Morales’s

second, third, fourth, and fifth issues are overruled. See Carmichael, 505 S.W.3d at 103;

Smith, 595 S.W.2d at 123; Gibson, 541 S.W.3d at 166.

IV. LIMITING INSTRUCTIONS

In issues six and seven, Morales complains that, during the guilt/innocence phase,

the trial court failed to include instructions in the jury charge limiting the jury’s use of the

extraneous offense and bad conduct evidence. Under Texas Rule of Evidence 105(a),

when extraneous offense or bad conduct evidence is admitted for a limited purpose, upon

request by a party, the trial court “must restrict the evidence to its proper scope and

instruct the jury accordingly.” TEX. R. EVID. 105(a). On the other hand, if the defendant

fails to request a limiting instruction when the evidence is first admitted, then the evidence

10
is admissible for all purposes, and the trial court is not obligated to include a limiting

instruction in the jury charge. Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App.

2007). Here, Morales concedes that he did not request a limiting instruction when the pen

pack or medical records were admitted. Accordingly, these issues are overruled. See id.;

see also TEX. R. APP. P. 33.1(a)(1).

V. OFFICER’S HEARSAY TESTIMONY

By his eighth issue, Morales argues that one of the State’s witnesses, Detective

Bierman, was allowed to testify to impermissible hearsay statements made by Jennifer

during her forensic interview, as well as statements made by Jennifer’s mother and uncle.

Morales again concedes that he did not object to any of this testimony; therefore, there is

nothing for us to review. See Saldano, 70 S.W.3d at 889; see also TEX. R. APP. P.

33.1(a)(1). His eighth issue is overruled.

VI. INEFFECTIVE ASSISTANCE OF COUNSEL

Finally, we arrive at the heart of Morales’s appeal—that by failing to preserve most

of the above issues, his trial counsel’s performance was constitutionally defective.

A. Standard of Review & Applicable Law

The United States and Texas Constitutions guarantee a criminal defendant the

right to reasonably effective assistance of counsel. U.S. CONST. amend. VI; TEX. CONST.

art. I, § 10; see TEX. CODE CRIM. PROC. ANN. art. 1.051. We evaluate claims of ineffective

assistance of counsel using the two-pronged test from Strickland v. Washington, 466 U.S.

668, 687 (1984). See Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986)

(adopting Strickland). An appellant is required to show both: (1) “that counsel’s

11
performance was deficient”; and (2) “the deficient performance prejudiced” appellant.

Strickland, 466 U.S. at 687. “Failure to satisfy either prong of the Strickland test is fatal.”

Morrison v. State, 575 S.W.3d 1, 24 (Tex. App.—Texarkana 2019, no pet.). Accordingly,

a court may bypass the first prong, and decide the issue solely on the prejudice prong.

Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, which we expect will often be so, that course should

be followed.”).

“In order to satisfy the first prong, appellant must prove, by a preponderance of the

evidence, that trial counsel’s performance fell below an objective standard of

reasonableness under the prevailing professional norms.” Lopez v. State, 343 S.W.3d

137, 142 (Tex. Crim. App. 2011). Such a showing “must be firmly founded in the record.”

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We indulge “a strong

presumption that counsel’s conduct fell within the wide range of reasonable professional

assistance.” Id. “Trial counsel should generally be given an opportunity to explain his

actions before being found ineffective.” Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim.

App. 2017). “Thus, if the record does not contain affirmative evidence of trial counsel’s

reasoning or strategy, we presume counsel’s performance was not deficient.” Johnson v.

State, 624 S.W.3d 579, 586 (Tex. Crim. App. 2021). “In the face of an undeveloped

record, counsel should be found ineffective only if his conduct was ‘so outrageous that no

competent attorney would have engaged in it.’” Id. (quoting Goodspeed v. State, 187

S.W.3d 390, 392 (Tex. Crim. App. 2005)).

“Trial counsel’s failure to object to admissible evidence does not constitute

12
ineffective assistance of counsel.” Oliva v. State, 942 S.W.2d 727, 732 (Tex. App.—

Houston [14th Dist.] 1997, pet. dism’d). Instead, to show deficient performance based on

a failure to object to allegedly inadmissible evidence, the appellant “must show that the

trial judge would have committed error in overruling such objection.” Ex parte Parra, 420

S.W.3d 821, 824–25 (Tex. Crim. App. 2013) (quoting Ex parte Martinez, 330 S.W.3d 891,

901 (Tex. Crim. App. 2011)).

Yet, even if the performance was deficient, such an error does not warrant setting

aside the judgment if there has been no prejudicial effect on the outcome. United States

v. Morrison, 449 U.S. 361, 364–65 (1981). “Some errors will have had a pervasive effect

on the inferences to be drawn from the evidence, altering the entire evidentiary picture,

and some will have had an isolated, trivial effect.” Strickland, 466 U.S. at 695–96.

“Moreover, a verdict or conclusion only weakly supported by the record is more likely to

have been affected by errors than one with overwhelming record support.” Id. at 696. The

test for prejudice requires the defendant to show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different. Id. at 694. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. In conducting our analysis, we consider the totality of the

evidence before the factfinder. Id. at 695.

B. Analysis

Morales contends that, by waiving the above issues, his trial counsel’s

performance was objectively deficient. The State responds that, based on the limited

record before us, Morales has failed to overcome the strong presumption that his trial

13
counsel’s performance fell within professional norms. The State suggests several reasons

why Morales’s trial counsel may have elected not to challenge some of the complained-

of evidence, either because he considered the evidence advantageous for Morales or he

did not want to draw unwanted attention to evidence that was likely admissible. The State

also contends that, even if counsel’s performance was deficient, Morales has failed to

show a reasonable probability that the outcome of his trial would have been different if

this evidence had been excluded or limited.

1. Prior Conviction

To begin, Morales complains that his trial counsel erred by failing to request a

preliminary hearing on the admission of his 2001 judgment of conviction for indecency

with a child by sexual contact, thereby waiving any complaint about the lack of such a

hearing. See Carmichael, 505 S.W.3d at 103. As previously mentioned, the State notified

Morales that it intended to introduce his prior conviction under Article 38.37, which

“statutorily expands the admissibility of extraneous-offense evidence in a trial involving

certain offenses against children, including the sex offense[] at issue here.” See Perez v.

State, 562 S.W.3d 676, 685 (Tex. App.—Fort Worth 2018, pet. ref’d). Notwithstanding

Rule 404(b), which generally limits the use of extraneous offense evidence, Article 38.37

permits the admission of evidence of prior sexual offenses for “any bearing the evidence

has on relevant matters, including the character of the defendant and acts performed in

conformity with the character of the defendant.” Compare TEX. R. EVID. 404(b), with TEX.

CODE CRIM. PROC. ANN. art. 38.37, § 2(b). In other words, extraneous offense evidence

admitted under Article 38.37 “is, by definition, propensity character evidence” that the

14
Legislature has deemed “admissible notwithstanding those characteristics.” Harris v.

State, 475 S.W.3d 395, 402 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). Before

admitting such evidence, the trial court “must” conduct a preliminary hearing outside the

presence of the jury to “determine that the evidence likely to be admitted at trial will be

adequate to support a finding by the jury that the defendant committed the separate

offense beyond a reasonable doubt.” TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2-a.

Morales concedes in his brief that his prior conviction was relevant as character-

conformity evidence. See id. art. 38.37, § 2(b). Nevertheless, he maintains that his trial

counsel should have requested a preliminary hearing, thereby forcing the trial court to

make a reasonable-doubt determination. See id. art. 38.37, § 2-a.

The record is silent as to trial counsel’s subjective strategy; however, failing to

object to admissible evidence is not error. Oliva, 942 S.W.2d at 732; see West v. State,

474 S.W.3d 785, 792 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“Due to the

likelihood that the testimony is admissible, defense counsel’s failure to object did not rise

to the level of deficient performance.”); Wheeler v. State, 433 S.W.3d 650, 656 (Tex.

App.—Houston [1st Dist.] 2014, pet. ref’d) (“[I]t is sound trial strategy for opposing counsel

to choose not to object to leading questions when the evidence will come in anyway.”

(alteration in original) (quoting Young v. State, 10 S.W.3d 705, 713 (Tex. App.—

Texarkana 1999, pet. ref’d))). Here, it was undisputed at trial that Morales had been

convicted of the prior offense, and he makes no suggestion otherwise on appeal. The

State introduced a copy of his 2001 conviction, as well as records pertaining to his

registration as a sex offender, and Morales later agreed to these facts during his

15
testimony. This evidence was sufficient to establish beyond a reasonable doubt that

Morales committed the separate offense. See TEX. CODE CRIM. PROC. ANN. art. 38.37, §

2-a; see also Jurado v. State, No. 08-17-00010-CR, 2019 WL 1922757, at *8 (Tex. App.—

El Paso Apr. 30, 2019, pet. ref’d) (not designated for publication) (holding “that the

judgment of [the appellant’s] prior conviction and related probation records, was sufficient

evidence to establish the conviction beyond a reasonable doubt”). Accordingly, Morales

has failed to demonstrate that, but for his trial counsel’s failure to request a preliminary

hearing, his prior conviction would not have been admitted. See Ex parte Parra, 420

S.W.3d at 824–25.

Relatedly, Morales generally complains that his trial counsel waived his right to a

limiting instruction by failing to request one at the time his prior conviction was admitted.

See Delgado, 235 S.W.3d at 251. Morales has not explained exactly what instruction he

thinks he was entitled to. His prior conviction was admitted under Article 38.37, not Rule

404(b); therefore, unlike evidence admitted under Rule 404(b), it was admissible for “any

bearing the evidence has on relevant matters, including the character of the defendant

and acts performed in conformity with the character of the defendant.” See TEX. CODE

CRIM. PROC. ANN. art. 38.37, § 2(b); Robisheaux v. State, 483 S.W.3d 205, 218 (Tex.

App.—Austin 2016, pet. ref’d) (noting that, “where evidence of extraneous offenses is

admitted under section 2 of article 38.37 rather than under Rule of Evidence 404[,] . . . the

jury is not provided with a limiting instruction setting out the permissible uses for

extraneous-offense evidence and is instead allowed to use the evidence for any relevant

matter including character conformity”). To be sure, he would have been entitled to a

16
beyond-a-reasonable-doubt instruction, see TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2-a,

but given the fact that Morales was not contesting the prior conviction, any such

instruction would have been superfluous. Moreover, it may be sound trial strategy to avoid

drawing unnecessary attention to extraneous offenses. McNeil v. State, 452 S.W.3d 408,

414–15 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (holding appellant failed to satisfy

the first Strickland prong where trial counsel explained on the record that he did not want

a limiting instruction regarding extraneous offenses because it would draw unwanted

attention to those offenses); Agbogwe v. State, 414 S.W.3d 820, 838 (Tex. App.—

Houston [1st Dist.] 2013, no pet.) (“It is reasonable to conclude . . . [that] defense counsel

decided that seeking an instruction to disregard Ozoh’s testimony would only bring further

attention to it.”); see Delgado, 235 S.W.3d at 250 (“[T]he decision of whether to request

a limiting instruction concerning the proper use of certain evidence, including extraneous

offenses, may be a matter of trial strategy.”). On the record before us, Morales has failed

to demonstrate that his trial counsel made any errors with respect to the admission of his

prior conviction.

2. Penitentiary Bad Conduct

Morales complains that the unobjected-to pen pack also included evidence of his

disciplinary record in prison that was irrelevant and unfairly prejudicial. To the extent that

this evidence was admissible, Morales contends that his trial counsel also erred by failing

to request a limiting instruction in conformity with Rule 404(b). Even if we assume that

this evidence was inadmissible, we conclude that the effect it had on the jury’s

deliberations, if any, was trivial. See Strickland, 466 U.S. at 695–96.

17
 When the pen pack was introduced into evidence, the sponsoring witness

confirmed that it contained “a conviction for Mario Morales . . . for the offense of

indecency with a child by contact.” Several other witnesses, including Morales, were

subsequently asked about his prior conviction and corresponding reporting requirements.

Conversely, no witness was asked about the one-page “TDCJ Disciplinary Report and

Hearing Record,” which showed that Morales was punished during his incarceration for

tattooing another inmate. Moreover, this evidence was never mentioned by either side at

any point in the proceeding. Having examined the entire record, including Jennifer’s

detailed testimony describing the various acts of sexual abuse, we are confident that the

inclusion of this bad conduct evidence did not have a prejudicial effect on the outcome of

the trial. See Morrison, 449 U.S. 361, 364–65; Strickland, 466 U.S. at 694; see also

Gomez-Gonzalez v. State, No. 12-22-00148-CR, 2023 WL 5666214, at *6 (Tex. App.—

Tyler Aug. 31, 2023, no pet.) (mem. op., not designated for publication) (assuming

deficient performance for failure to object to allegedly inadmissible evidence but finding

no harm because the evidence of appellant’s guilt, including the complainant’s testimony

regarding the sexual assault, “was strong”).

3. Medical Records

Morales next complains that two statements in Jennifer’s medical records were

inadmissible, and his trial counsel’s failure to object to these statements was therefore

deficient. He first claims that Jennifer’s identification of Morales as her abuser was

impermissible hearsay because it was not made for the purpose of medical diagnosis or

treatment. See TEX. R. EVID. 803(4) (providing an exception to the rule against hearsay

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for “[a] statement that: (A) is made for—and is reasonably pertinent to—medical diagnosis

or treatment; and (B) describes medical history; past or present symptoms or sensations;

their inception; or their general cause”); see also Taylor v. State, 268 S.W.3d 571, 591

(Tex. Crim. App. 2008) (noting that “a statement from a child-declarant revealing the

identity of the perpetrator of sexual abuse” may be pertinent to medical treatment

“particularly when the perpetrator might be a family or household member and it is

important to remove the child from the abusive environment”).

Even if we assume that this statement was inadmissible, any error in admitting the

report was harmless because the State offered other properly admitted evidence

identifying Morales as Jennifer’s abuser. See Lee v. State, 639 S.W.3d 312, 317 (Tex.

App.—Eastland 2021, no pet.) (“The improper admission of evidence is harmless when

the same facts are proven by other properly admitted evidence.”). Specifically, both

Jennifer and Dr. Spiller testified at length about the ways in which Morales sexually

abused Jennifer. See Taylor, 268 S.W.3d at 593 (holding that error in admitting the

complainant’s statement to counselor identifying defendant as assailant was harmless

when the complainant repeatedly told her version of events to other witnesses and the

jury); Lamerand v. State, 540 S.W.3d 252, 257 (Tex. App.—Houston [1st Dist.] 2018, pet.

ref’d) (holding that any error in admitting identifying statement in medical records was

harmless because the complainant “herself testified in detail about the abuse, specifically

identifying [the appellant] as the man who assaulted her”); see also Perez v. State, No.

14-11-01102-CR, 2013 WL 655714, at *6 (Tex. App.—Houston [14th Dist.] Feb. 21, 2013,

no pet.) (mem. op., not designated for publication) (holding that erroneous admission of

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complainant’s medical records was harmless when same facts were “established by the

complainant’s own testimony and the testimony of the deputy constable who took her

statement and observed her injuries”). Consequently, with respect to the admission of the

identifying statement in Jennifer’s medical records, Morales cannot satisfy the second

prong of Strickland. See 466 U.S. at 695–96; Morrison, 449 U.S. at 364–65.

Similarly, Morales complains that Jennifer’s statement that Morales was “in and

out of jail on gang related stuff” was impermissible extraneous offense evidence not made

for the purpose of medical diagnosis or treatment. See TEX. R. EVID. 404(b), 803(4).

“[G]ang-related evidence tends to be irrelevant and prejudicial if not accompanied by

testimony that puts the evidence into context.” Ex parte Martinez, 330 S.W.3d at 902.

However, the State suggests that trial counsel may have elected not to object to this

statement because it supported Morales’s defensive theory that he had limited access to

Jennifer. See West, 474 S.W.3d at 791 (collecting cases for the proposition that failing to

object to extraneous offense evidence can be a reasonable trial strategy); see also

Murphy v. State, No. 01-17-00588-CR, 2018 WL 6378004, at *14 (Tex. App.—Houston

[1st Dist.] Dec. 6, 2018, no pet.) (mem. op., not designated for publication) (“[E]ven the

failure to object to inadmissible evidence may be a sound trial strategy.”). We agree with

the State. Because this may have been a legitimate trial strategy, and the record is

otherwise silent, Morales has not overcome the strong presumption that trial counsel

performed within reasonable standards. See Thompson, 9 S.W.3d at 813.

Regardless, although the medical report was admitted into evidence and contains

the complained-of statement, Dr. Spiller did not testify about that specific statement, and

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neither side mentioned it at any point in the proceeding. In other words, like the

disciplinary report from Morales’s incarceration, it is not clear to us that the jury was even

aware of its existence. Thus, even if trial counsel should have objected to this statement,

Morales cannot satisfy the second prong of Strickland because there is no reasonable

probability that the outcome would have been different had the subject evidence been

excluded. See 466 U.S. at 695–96; Morrison, 449 U.S. at 364–65.

4. Hearsay

Finally, Morales argues that Detective Bierman was allowed to testify to

impermissible hearsay. Morales claims that, as the State walked Detective Bierman

through the course of his investigation, he testified to various statements made by

Jennifer during her forensic interview, as well as statements made by Jennifer’s mother

and uncle regarding Jennifer’s accusations against Morales. According to Morales, these

“statements were being offered to prove the substance of sexual assault rather than

information acted upon by Detective Bierman.” Morales argues that his counsel was

deficient in failing to object to this allegedly inadmissible hearsay.

We have reviewed Detective Bierman’s testimony and find the complained-of

statements to be general in nature (e.g., Jennifer accused Morales of sexual abuse) and

cumulative of Jennifer’s and Dr. Spiller’s more specific testimony describing the alleged

sexual abuse. Therefore, Morales “cannot show the lack of objection to these statements

constituted ineffective assistance.” See McNeil, 452 S.W.3d at 420 (collecting cases

finding harmless error); Lee, 639 S.W.3d at 317.

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C. Summary

Looking at the totality of the evidence, this case, like most of its kind, turned on the

jury’s assessment of Jennifer’s and Morales’s credibility. See Hammer v. State, 296

S.W.3d 555, 561–62 (Tex. Crim. App. 2009) (“Sexual assault cases are frequently ‘he

said, she said’ trials in which the jury must reach a unanimous verdict based solely upon

two diametrically different versions of an event, unaided by any physical, scientific, or

other corroborative evidence.”). The jury found Jennifer credible and likely would have

reached the same conclusion without the complained-of evidence. See Strickland, 466

U.S. at 696. Accordingly, we overrule Morales’s final issue.

VII. CONCLUSION

We affirm the trial court’s judgment.

GINA M. BENAVIDES
Justice

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

Delivered and filed on the
22nd day of February, 2024.

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