Oscar Pereacruz v. the State of Texas

Affirm and Opinion Filed June 18, 2021

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01121-CR
No. 05-18-01122-CR

OSCAR PEREACRUZ, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F18-00275-S and F18-00276-S

MEMORANDUM OPINION
Before Justices Pedersen, III, Reichek, and Garcia1
Opinion by Justice Pedersen, III
A jury found appellant Oscar Pereacruz guilty of aggravated sexual assault of

a child and indecency with a child by sexual contact. The jury assessed his

punishment at fifty years’ confinement in the Institutional Division of the Texas

Department of Criminal Justice for the assault case and ten years’ confinement for

the indecency case; the trial court ordered the sentences to run consecutively. On

1
The Honorable Justice Dennise Garcia succeeded the Honorable Bill Whitehill, a member of the
original panel. Justice Garcia has reviewed the briefs and the record before the Court.
appeal, appellant contends that (1) the evidence is insufficient to support the jury’s

verdicts on both offenses, (2) his case was transferred between district courts in

violation of his right to due process, and (3) the trial court’s charge erroneously

permitted the jury to convict him of both offenses without unanimity. We affirm the

trial court’s judgments.

Background

At the time of trial, E.G., the complaining witness, was nine years old. Her

mother (“Mother”) testified at trial that Maricela Pereacruz, appellant’s wife, used

to babysit E.G. on Saturday nights while Mother worked.2 The Garcia and Pereacruz

families lived in the same apartment complex during this time period. Mother

testified that E.G. stayed overnight at the Pereacruz apartment on the nights when

Maricela babysat her and that the arrangement went on for more than a year. Mother

related that when E.G. was almost six years old, she told Mother that she didn’t want

to stay at Maricela’s anymore because Oscar had touched her. Mother told Maricela

what E.G. had said, but Mother did not notify the police.

Approximately two years later, Child Protective Services (“CPS”) received an

anonymous report that E.G. was being sexually abused. Katressa Molett, an

investigator for CPS, interviewed Mother and E.G. The child told Molett that

2
After identifying members of families who share a last name, we refer to them by their first names
to avoid confusion.
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appellant had touched her when she was six. Molett referred the case to the Dallas

Police Department, and the police arranged for E.G. to be forensically interviewed.

Following the child’s forensic interview, the police arrested appellant, and he

agreed to speak to Detective Jose Ortiz, of the DPD Child Exploitation Unit. Ortiz

testified that appellant acknowledged he knew E.G. and Mother from the apartment

complex. He admitted that his wife had babysat E.G. and that the child had stayed

overnight at his family’s apartment. However, he denied that he had ever touched

E.G.

At trial, E.G. testified that when she stayed overnight at the Pereacruz

apartment she slept on the top bunk bed with appellant’s daughter. E.G. stated that

appellant woke her by turning on a light in the bathroom or closet and then pulling

her by her hand into the closet. She testified that on one occasion, when she was

wearing tights, appellant “had his penis out and he put it like under my clothes.” She

said appellant positioned her on her hands and knees and held her from behind, and

his penis touched her “butt” through her tights. She testified that appellant’s penis

felt “like a stick” and that when he finished she felt liquid on her tights. E.G. testified

that, on another occasion, her tights and underwear were pulled down and that

appellant again had her on her hands and knees, but that time he put his penis inside

her “butt,” and it felt slippery afterwards. E.G. also testified that appellant had

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touched her vagina with his hand.3 When asked what she could see in the closet,

E.G. answered that she saw a girl’s dresses, a red camera, and “maybe a gun.”

Appellant testified on his own behalf. He denied that his wife had ever babysat

E.G. or any other children in their apartment. He further denied that he had ever seen

E.G. in his apartment. He testified that at the time of the alleged conduct, he was

working as a machine operator for a company that made carpet padding. He

generally worked from three o’clock in the morning to three o’clock in the afternoon.

He woke up around two o’clock in the morning to get ready for work, got home

around four o’clock, and went to bed between seven and eight o’clock in the evening.

In addition, at night he took medicine for his epilepsy and, because of the medicine,

did not wake up during the night. Appellant testified that he put a camera and his BB

gun in the closet in the master bedroom.

Appellant called four other witnesses: his wife, Maricela; his nephew, Jose;

Jose’s sister, Denis; and Maricela’s niece, Sara.4 Their testimony was consistent

concerning the living arrangements in the two-bedroom Pereacruz apartment: Sara

and appellant’s daughter and older son slept on the bunk beds in the master bedroom

with the pet dog; appellant’s brother, Jose, Denis, and a second daughter slept in the

second bedroom; appellant, Maricela, and their younger son slept in the living room.

3
E.G. was not asked and did not say whether the vaginal contact was part of one of the other incidents
she described.
4
Jose and Denis and their sister moved to Dallas with their father, Jose Lopez, to live with appellant
and Maricela when Lopez and his wife divorced.
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All of appellant’s witnesses testified that Maricela did not babysit, although Maricela

conceded that CPS had once cited her for providing child care without a permit.

Appellant’s witnesses testified that E.G. was never in the apartment, and—given the

sleep schedules to which they testified—someone would always have been awake

in the apartment.5

The jury found appellant guilty of both charges, assessing punishment at ten

years for the indecency charge and fifty years for the assault charge. This appeal

followed.

Sufficiency of the Evidence

In his first two issues, appellant contends that the evidence is insufficient to

support the jury’s guilty verdicts on both charges. We review a sufficiency challenge

by examining the evidence in the light most favorable to the verdict to determine

whether any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The jury is the exclusive judge of the credibility of the witnesses and the weight to

be given their testimony. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.

2012). “When the record supports conflicting inferences, we presume that the

factfinder resolved the conflicts in favor of the verdict, and we defer to that

5
Sara testified that she returned from her job between midnight and one o’clock in the morning and
then stayed up until three or four o’clock in the morning on her phone, either in bed or in the closet; Jose
testified that he does not “tend to sleep.”
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determination.” Murray v. State, 457 S.W.3d 446, 448–49 (Tex. Crim. App.

2015) (citing Hooper v. State, 214 S.W.3d 9, 12 (Tex. Crim. App. 2007)). “A jury

may accept one version of the facts and reject another, and it may reject any part of

a witness’s testimony.” Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018).

The uncorroborated testimony of a child victim is sufficient to support a conviction

for aggravated sexual assault of a child and indecency with a child. TEX. CODE CRIM.

PROC. art. 38.07.

Appellant’s arguments do not identify a specific element of the charged

offenses that is not supported by evidence. Instead, appellant argues broadly that the

jury’s verdict should be overturned for three reasons: (1) E.G.’s testimony was

“contradictory, incomplete and unreliable”; (2) appellant’s testimony concerning his

daily schedule and medication routine foreclosed the possibility of middle-of-the-

night conduct like that alleged by E.G.; and (3) his denial of any inappropriate

conduct was corroborated by four more witnesses. We conclude that none of these

arguments undermines the sufficiency of the evidence supporting the jury’s verdict.

First, appellant emphasizes portions of E.G.’s testimony that were

“incomplete” or that conflicted with other testimony at trial: she believed there was

only one bedroom in appellant’s apartment; she did not recall a family pet and said

she never saw occupants other than appellant’s immediate family; she did not

remember what grade appellant’s daughter was in or whether she attended E.G.’s

school. The descriptions of schedules and sleeping arrangements given by

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appellant’s own witnesses make it possible that E.G. could have been in the

apartment overnight and never seen a second bedroom or the extended family

members. Regardless, a child’s inability to recall facts goes to her credibility and the

weight to be given her testimony, both of which are within the exclusive province of

the jury. See Wise, 364 S.W.3d at 903; see also Revels v. State, 334 S.W.3d 46, 53

(Tex. App.—Dallas 2008, no pet.) (any inconsistent or vague details in child’s

testimony bore on her credibility).

Second, appellant testified that he suffers from epilepsy. At the time, he

worked as a machine operator from three o’clock in the morning until three o’clock

in the afternoon. He took his medicine when he went to bed at night—between seven

and eight o’clock in the evening—because the medicine made him drowsy. He stated

that he never woke up during the night. But he acknowledged that he woke up around

two o’clock to get ready to be at work at three. Thus, by his own testimony, appellant

was awake in the apartment in the middle of the night. His argument does not

factually disprove E.G.’s allegations.

And third, appellant’s denial—even if corroborated by his family—raised

only a fact question for the jury. Appellant and his witnesses testified that E.G. was

never in his apartment and that his wife never babysat her or any other children. But

in his initial interview, appellant told Officer Ortiz that his wife had babysat E.G.

and that the child had stayed overnight at his family’s apartment. In addition,

Maricela conceded at trial that CPS had investigated her for babysitting unrelated

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children without a permit; the evidence suggested that case was dismissed because

she had stopped doing so at the time of the investigation. Both E.G. and Mother

testified that Maricela babysat E.G. on Saturday nights for more than a year while

Mother went to work. The jury is the exclusive judge of witness credibility. Wise,

364 S.W.3d at 903. Jurors could accept E.G. and Mother’s version of the facts and

reject appellant and his family’s version. See Febus, 542 S.W.3d at 572.6

Moreover, our review of the record establishes that the State produced

evidence sufficient to prove the elements of both offenses it charged. E.G. testified

to at least two separate occasions of abuse.

A person commits an aggravated sexual assault of a child if—regardless of

whether he knows the age of the child at the time—he intentionally or knowingly

causes the penetration of the anus of the child by any means or causes the anus of a

child to contact the sexual organ of the actor. TEX. PENAL CODE ANN.

§ 22.021(a)(1)(B)(i), (iv). E.G.’s testimony established that appellant committed the

sexual assault charged by placing his penis in contact with her anus and penetrating

her anus. See id.7

6
Appellant contends briefly that Mother’s testimony was not credible because after E.G. divulged the
abuse, Mother did not report it to the police or take E.G. to a doctor. Mother also allowed E.G. to play with
appellant’s daughter afterward. Mother’s credibility was a matter for the jury, just as E.G.’s was. See Wise,
364 S.W.3d at 903.
7
Appellant complains that E.G. never identified him at trial, and he cites cases involving uncertain or
equivocal identifications. Mother did identify appellant at trial as Maricela’s husband, Oscar. E.G. was not
asked by either party to make an in-court identification, but she described the person who touched and
penetrated her as Maricela’s husband, Oscar. Her testimony was not equivocal.
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 A person commits indecency with a child if he causes a child younger than

seventeen years old to engage in sexual contact. Id. § 21.11(a)(1). Sexual contact

includes causing contact between the hand of the defendant and the vagina of the

complainant and causing the complainant to contact the sexual organ of the actor.

Id. § 21.11(c).8 E.G.’s testimony established that appellant committed the indecency

charged by causing his sexual organ to contact her anus through her tights and by

touching her vagina with his hand.

E.G.’s testimony alone is sufficient to support the jury’s verdicts. See CRIM.

PROC. art. 38.07. The plain language of article 38.07 establishes that her testimony

did not need to be corroborated by physical evidence, as appellant suggests. Id. And

jurors could have found E.G.’s testimony credible given the sensory details she

related. She described the portion of the apartment in which she stayed and the

sleeping arrangements of the people surrounding her. She testified to what she saw

in the closet, including a camera and “maybe a gun.” And she testified to how things

felt: appellant’s penis felt like “a stick”; her “butt” felt “slippery” after appellant

contacted and penetrated her; her tights had “liquid” on them when he finished. We

8
In the court’s charge, “sexual contact” was defined as:
any touching by a person, including touching through clothing, of the anus, breast, or any
part of the genitals of a child, or any touching of any part of the body of a child, including
touching through clothing, with the anus, breast, or any part of the genitals of a person, if
committed with the intent to arouse or gratify the sexual desire of any person.

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can infer from her testimony that appellant’s conduct was intended to arouse and

gratify his sexual desire.

After examining the evidence in the light most favorable to the verdict, we

conclude that rational jurors could have found the essential elements of these

offenses beyond a reasonable doubt. Jackson, 443 U.S. at 319. Thus, sufficient

evidence supports the jury’s verdicts finding appellant guilty of both aggravated

sexual assault of a child and indecency with a child by sexual contact. We overrule

appellant’s first and second issues.

Transfer of Case Between District Courts

In his third issue, appellant complains that his case was transferred from the

265th judicial district court to the 282nd judicial district court without his consent.

He contends that the transfer violated local rules and that it was the result of forum-

shopping by the prosecutor. As a result, he argues, his due process rights were

violated.

Procedural Background

When the State’s case against appellant was originally filed, it was assigned

to the 282nd district court. At the relevant time, the Honorable Judge Amber Givens-

Davis presided over that court. At appellant’s first trial setting, the State announced

it was not ready and filed a motion to dismiss without prejudice. The State refiled

the case in May 2018, and this time it was assigned to the 265th district court. At the

relevant time, the Honorable Judge Jennifer Bennett presided over that court.

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 The record indicates that on August 10, 2018, appellant’s attorney and the

prosecutor assigned to appellant’s case met and jointly requested a continuance.

Appellant contends that, during that meeting, the prosecutor told his attorney that

she had an agreement with the judge of the 282nd court to transfer the case back to

that original court. Appellant’s attorney took no action concerning this purported

agreement to transfer the case. At that same meeting, the attorneys agreed on an

August 27 trial date.

Regardless of any purported contact between the prosecutor and the judge of

the 282nd court, it appears from the record that no effective agreement for the case

to be tried in that court existed before August 24, three days before the trial setting.

On the morning of August 24, the prosecutor emailed Judge Givens-Davis, copying

defense counsel. She explained that Judge Bennett had transferred the case to an

auxiliary court, but the judge of that auxiliary court was hearing a specially set case

on August 27. Likewise, both Judge Bennett and a second auxiliary court judge also

had trials set for that date. The prosecutor asked Judge Givens-Davis if she could

hear the case on August 27, and the judge responded—also copying appellant’s

attorney—that she could do so. Then Judge Bennett signed an order transferring the

case, and Judge Givens-Davis signed a receiving order. Thus, the case was heard in

the 282nd court on August 27, the date to which appellant’s attorney had agreed.

On the eve of trial, appellant filed motions to disqualify the prosecutor and to

retain the case in the 265th district court. He argued, as he does in this Court, that

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the ex parte communication between the prosecutor and Judge Givens-Davis was

“illegal” and that the transfer was based on forum-shopping and violated local rules.

The trial court denied both motions, and the parties agree that we should review

appellant’s complaint de novo.

Compliance with Local Rules

We first address the rules concerning transfer of cases between district courts.

Appellant concedes that the Texas Constitution allows district judges to hold court

for each other “when they deem it expedient.” TEX. CONST. art. V, § 11. He concedes

further that our government code permits a district judge to transfer any criminal

case to another district court in the county, subject only to the county’s local rules

and the consent of the judge to which the case is transferred. TEX. GOV’T CODE ANN.

§§ 24.003(b)(1), (b-1). Although he asserts that the transfer violated the district

courts’ local rules, he does not identify—and we have not found—any rule

disallowing this transfer. Instead, the local rules governing criminal district courts

in Dallas County provide:

The transfer of cases between criminal district courts of Dallas County
may be done by written order upon consent of the judges of those courts
participating in the transfer.
RULES OF ADMINISTRATION FOR DALLAS CRIMINAL DISTRICT COURTS AND

DISTRICT COURTS GIVING PREFERENCE TO CRIMINAL CASES PURSUANT TO TEXAS

GOVERNMENT CODE SECTION 74.093, § 2.1 (Jan. 12, 2012). Appellant’s case was

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transferred by written orders of the two judges participating in the transfer. It did not

violate any rule regarding transfer of cases in Dallas County.

Ex Parte Communication

Appellant also complains that the communication between the prosecutor and

Judge Givens-Davis, without appellant’s counsel present, violated the Texas Code

of Judicial Conduct and warranted disqualification of the prosecutor. That code

states that a judge “shall not initiate, permit, or consider ex parte

communications . . . concerning the merits of a pending or impending judicial

proceeding.” TEX. CODE JUD. CONDUCT, Canon 3(B)(8), reprinted in TEX. GOV'T

CODE ANN., tit. 2, subtit. G, app. B. But there is no allegation that the communication

appellant complains of concerned the merits of his case; the transfer was a purely

procedural matter. Thus, even if we assume a communication between judge and

prosecutor occurred without a representative of appellant present, it was not a

forbidden ex parte communication.9

Due Process Violation

Appellant contends that the transfer violated his right to due process and

should render his convictions void. He cites no authority for the proposition that

transfer between district courts can implicate due process, and we have found no

9
Appellant’s reliance on Abdygapparova v. State is misplaced. In that case, the trial judge showed
bias toward the State by engaging in written communications with the prosecutor regarding potential jurors,
voir dire questions, and presentation of argument. 243 S.W.3d 191, 209 (Tex. App.—San Antonio 2007,
pet. ref’d). Appellant does not allege any act by the prosecutor or the trial judge that could similarly touch
on the substance or presentation of the State’s case against appellant.
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such authority. Neither the local rules nor the government code required his

agreement to effectuate such a transfer.

We conclude that appellant was afforded the general requirements of due

process—notice and a hearing—in this case. As to notice of the transfer, no

conversation between the prosecutor and the judge of the 282nd court outside the

presence of appellant’s attorney effectuated that transfer. Instead, the case remained

in the 265th court until the prosecutor emailed the judge on the morning of August

24, copying defense counsel and asking for Judge Givens-Davis to hear the case

because the 265th court and both auxiliary courts were busy. And as to a hearing, on

the morning of the August 27, the judge stated on the record that she had received

the motion to recuse or disqualify the prosecutor and the motion to retain the case in

the 265th court. The judge then stated:

The Court had an off-the-record conversation with both the State and
defense, and counsel informed the Court of his basis, which is contained
in his motion for recusal and disqualification.

And at this time a motion for recusal and disqualification of ADA,
Keena Miller, is denied.

Motion to retain jurisdiction in the 265th is denied.
Thus the record establishes that the trial court held an informal hearing, to which

appellant raised no objection, and then ruled on both motions on the record.

Moreover, nothing in the record establishes that the transfer caused appellant

any harm. Although he alleges forum-shopping, he fails to identify any advantage

the State purportedly gained as a result of the transfer. No factual allegations support
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his assertion of bias against him by the prosecutor, and the record contains no

allegation or evidence of unfair rulings or treatment by the trial judge. Indeed,

appellant’s issues in this Court are not linked to any ruling at trial: he complains of

the sufficiency of the evidence supporting the jury’s verdict and of charge error to

which he did not object.

Appellant received both notice of the request for a transfer and a hearing on

his objections to the transfer. We cannot conclude that his due process rights were

violated because of the transfer of his case between district courts. We overrule his

third issue.

Unanimity of Jury’s Verdict

In his fourth and fifth issues, appellant contends that the trial court’s charge

violated his right to a unanimous jury verdict. The Texas Constitution guarantees the

defendant in a criminal trial the right to a unanimous jury verdict on each element of

the charged offense. Tex. Const. art. V, § 1; French v. State, 563 S.W.3d 228, 233

(Tex. Crim. App. 2018). Jurors must agree about the specific crime that the

defendant committed, that is, “upon a single and discrete incident that would

constitute the commission of the offense alleged.” Cosio v. State, 353 S.W.3d 766,

771 (Tex. Crim. App. 2011) (quoting Stuhler v. State, 218 S.W.3d 706, 717 (Tex.

Crim. App. 2007)).

Appellate resolution of a jury-charge issue involves two steps. First, we

determine whether error exists. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim.

–15–
App. 2012). If error does exist, we determine whether the error caused sufficient

harm to warrant reversal. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App.

2005). When—as in this case—the error was not objected to, we will reverse only if

the error created egregious harm such that the defendant was denied a fair and

impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.

on reh’g). “Errors which result in egregious harm are those that affect the very basis

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

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

Taylor v. State, 332 S.W.3d 483, 490 (Tex. Crim. App. 2011).

Aggravated Sexual Assault of a Child

In his fourth issue, appellant argues that the trial court erroneously submitted

the sexual assault question and denied him a unanimous verdict on that offense. The

trial court’s charge asked the jury whether appellant did “intentionally or knowingly

cause the contact or penetration of the anus of [E.G.] by the sexual organ of

[appellant],” when E.G. was younger than fourteen years of age. Appellant argues

that the alleged contact and penetration constitute separate offenses, so when the trial

court submitted them disjunctively, jurors were not required to agree unanimously

on which of the two offense he committed.

The court of criminal appeals has held that the contact and penetration

prohibited by section 22.021(a)(1)(B) of the penal code are separate offenses for

jury-unanimity purposes. French, 563 S.W.3d at 234. Therefore, we agree with

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appellant that the disjunctive submission of the contact and penetration offenses was

erroneous. However, in this particular combination of offenses—contact and

penetration of the same orifice—the court of criminal appeals has determined that

there can be no egregious harm based on disjunctive submission. In a case with a

similar submission, the court concluded that every juror who found penetration

would by necessity have also found contact. Jourdan v. State, 428 S.W.3d 86, 97

(Tex. Crim. App. 2014). As a result, when the offenses charged and found by the

jury are a defendant’s contact and penetration of the same orifice, the defendant—at

a minimum—causes the contact offense, and there cannot be egregious harm based

on a lack of unanimity. Id.

We conclude that appellant’s case, in which he was charged with contact and

penetration of E.G.’s anus with his sexual organ, is governed by the rule in Jourdan.

Any juror who found penetration must have also found contact. Accordingly, there

was no egregious harm in the disjunctive submission of the offenses. Id.; see also

French, 563 S.W.3d at 238. We overrule appellant’s fourth issue.

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 Indecency with a Child by Sexual Contact

In his fifth issue, appellant argues that the trial court also erred in its

submission of the offense of indecency with a child and, as a result, appellant was

denied a unanimous conviction by the jury. On this issue, the charge required the

jury to determine whether appellant did:

knowingly or intentionally engage in sexual contact with [E.G.], a child
younger than 17 years, by contact between the hand of [appellant] and
the genitals of [E.G.], or contact between the genitals of [appellant] and
[E.G.], with the intent to arouse or gratify the sexual desire of
[appellant].

Again, the two charged indecency offenses were submitted disjunctively, allowing

jurors to find one form of sexual contact or the other. But each form of sexual contact

identified by section 22.01(B) of the penal code is a separate criminal act, and juror

unanimity is required as to a single charged act. Pizzo v. State, 235 S.W.3d 711, 719

(Tex. Crim. App. 2007). Because jurors in appellant’s case could have disagreed as

to whether appellant touched E.G.’s anus with his genitals or her genitals with his

hand, the trial court’s disjunctive submission was erroneous. See id.

The question, then, is whether this submission error caused appellant

egregious harm. Almanza, 686 S.W.2d at 171. To determine whether charge error is

egregious, we consider (1) the entirety of the jury charge itself, (2) the state of the

evidence, (3) counsel’s arguments, and (4) any other relevant information revealed

by the trial record. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016).

“Egregious harm is a difficult standard to meet.” Id. Before we can conclude that

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appellant suffered egregious harm, the record must establish actual rather than

theoretical harm. Cosio, 353 S.W.3d at 777.

When we review the entirety of the charge, we find nothing that helps to cure

the submission error. The “standard perfunctory unanimity instruction” included in

the charge is not sufficient to rectify the error. See id. at 774 (“The jury may have

believed that it had to be unanimous about the offenses, not the criminal conduct

constituting the offenses.”). On the other hand, when we review the arguments of

counsel, we find no suggestion that counsel instructed jurors, or suggested to them,

that their verdict could be anything but unanimous.

We conclude, however, that the evidence before the jury in this case made it

highly unlikely that a non-unanimous verdict was rendered on the indecency charge.

E.G.’s testimony described the incidents of criminal conduct at issue here.

Appellant’s defense was that he did not commit any of the offenses. He contended

below, and he argues in this Court, that E.G. was not credible and that she was never

present in his apartment as she alleged. He did not urge separate arguments

concerning her claims that he touched her vagina or that his penis contacted her anus

through her clothing: he denied any contact with E.G. at all. But the verdict indicates

that jurors were not persuaded that appellant did not commit the offenses. If they had

believed his testimony, they would have acquitted him on both the sexual assault

and indecency charges. Instead, jurors believed E.G., and it is reasonable to infer

that they unanimously agreed that appellant committed all of the conduct charged.

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See id. at 777–78. Thus, the state of the evidence weighs strongly against finding

harm to appellant on account of the erroneous submission. See id. at 778; see also

Arrington v. State, 451 S.W.3d 834, 843–44 (Tex. Crim. App. 2015).

We conclude that any harm that resulted from the erroneous submission is

only theoretical, not actual. See French, 563 S.W.3d at 238. We cannot say that

appellant was denied a fair trial, and he has not suffered egregious harm. We overrule

appellant’s fifth issue.

Conclusion

We affirm the judgment of the trial court.

/Bill Pedersen, III//
181121f.u05 BILL PEDERSEN, III
JUSTICE
181122f.u05
Do Not Publish
TEX. R. APP. P. 47

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 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

OSCAR PEREACRUZ, Appellant On Appeal from the 282nd Judicial
District Court, Dallas County, Texas
No. 05-18-01121-CR V. Trial Court Cause No. F18-00276-S.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Pedersen, III. Justices Reichek and
Garcia participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered this 18th day of June, 2021.

–21–
 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

OSCAR PEREACRUZ, Appellant On Appeal from the 282nd Judicial
District Court, Dallas County, Texas
No. 05-18-01122-CR V. Trial Court Cause No. F18-00275-S.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Pedersen, III. Justices Reichek and
Garcia participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered this 18th day of June, 2021.

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