                          NUMBER 13-17-00650-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


XAVIER PEREZ,                                                              Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 445th District Court
                        of Cameron County, Texas.


                          MEMORANDUM OPINION

  Before Chief Justice Contreras and Justices Hinojosa and Tijerina
             Memorandum Opinion by Justice Hinojosa

      A jury convicted appellant Xavier Perez of six offenses: Counts 1 and 2 were for

sexual assault, a second-degree felony; Count 3 was for prohibited sexual conduct, a

third-degree felony; Count 4 was for continuous sexual abuse of a minor, a first-degree

felony; Count 5 was for indecency with a child by sexual contact, a second-degree felony;

and Count 6 was for sexual assault of a child, a second-degree felony. See TEX. PENAL
CODE ANN. §§ 21.02; 21.11(a)(1); 22.011(a)(2), 25.02.

             By five issues, Perez contends the trial court abused its discretion when it: (1)

consolidated two indictments concerning separate complainants, his stepdaughters L.S.

and M.S. 1; (2) granted a motion in limine; (3) admitted evidence regarding extraneous

bad acts; and (4) denied his motion to suppress. Perez also contends he (5) received

ineffective assistance of counsel. We affirm.

                                           I. BACKGROUND

         A. The Indictment

         The State initially filed two indictments against Perez, one for each of the

complainants. The indictment in trial court cause number 2016-DCR-02078 listed the

offenses against his stepdaughter L.S. and encompassed three counts. Count 1 alleged

Perez committed sexual assault by causing the sexual organ of L.S. to contact Perez’s

sexual organ without L.S.’s consent. See id. §§ 22.011(a)(1)(C). Count 2 alleged Perez

committed sexual assault by causing the penetration of the mouth of L.S. with Perez’s

sexual organ, without L.S.’s consent. See id. § 22.011(a)(1)(B). Count 3 alleged Perez

engaged in sexual intercourse with L.S., a person he knew to be his stepdaughter. Id. §

25.02.

         The indictment in trial court cause number 2016-DCR-02079, listing the offenses

against M.S., also had three counts. Count 4 alleged that, during a period that was thirty

or more days in duration, when Perez was seventeen years of age or older, he committed


         1We use initials to protect the identity of complainants in sexual assault cases. See Salazar v.
State, 562 S.W.3d 61, 63 n.1 (Tex. App.—Corpus Christi–Edinburg 2018, no pet.).


                                                    2
two or more acts of sexual abuse against M.S., a child younger than fourteen years of

age, by touching her genitals and/or knowingly causing his sexual organ to contact M.S.’s

sexual organ. See id. § 21.02. Count 5 alleged that Perez touched the breast of M.S.,

a child then younger than seventeen years of age. See id. § 21.11(a)(1). And Count 6

alleged that Perez intentionally or knowingly caused the sexual organ of M.S., a child

younger than seventeen years of age, to contact the sexual organ of Perez. See id.

§ 22.011(a)(2).

       The State filed a motion to consolidate the indictments, which the trial court granted

without hearing. Perez later filed a motion to sever the cases, which the trial court

denied. The State ultimately tried the charges as to both complainants in the same case.

       B. Trial Testimony of L.S.

       At trial, L.S. testified that she moved from Mexico to the United States to live with

her mother, M.A., and her younger sister, M.S., when she was seventeen years old. Her

mother was married to Perez, and the family lived in a small, one-room home on five

acres in rural Los Fresnos, Texas. Perez asked L.S. to help him with his work: they

would mow lawns, feed and water farm animals, and gather tools. L.S. said that the first

time Perez sexually assaulted her was after returning from a job mowing lawns. L.S.

testified that Perez pulled his red Ford Explorer over to the side of a road covered by

trees. He opened her passenger door, pushed her down on her seat, held her hands

with his hands, and sexually assaulted her while standing outside, forcing his penis into

her vagina. Perez allegedly told L.S. that if she told her mother, he would call the police

and they would deport her, her mother, and her younger sister back to Mexico. L.S.


                                             3
testified that Perez continued sexually abusing her every few days, usually in his vehicle.

Perez also demanded oral sex from L.S. and performed oral sex on her. He explained

to L.S. that her mother was “cold” and “she didn’t want to have sexual relations,” so that

is why he needed L.S.

       L.S. also shared that she saw Perez rape her younger sister, M.S., when M.S.

“was about 11 or 12.”      L.S. reported that she walked to the chicken coop on their

property and she saw her sister lying naked on some food containers while Perez was

standing up. L.S. testified that she saw Perez’s “penis was in her vagina.”    Perez again

threatened both girls, saying that he would put them in jail.

       L.S. further recalled that, after celebrating Perez’s birthday party one year, he

forced L.S. and M.S. to have sex with him together. According to L.S., he told the girls

“that’s what he wished for his birthday.” L.S. later became pregnant with Perez’s child.

Perez told M.A. that the father of the baby was his son from a prior relationship, Joel.

While pregnant, L.S. recalled that her mother caught Perez sexually assaulting L.S. M.A.

had just come in from feeding the chickens and, according to L.S., reacted “badly.” L.S.

began crying and she said Perez tried to convince M.A. that “nothing was happening” and

to “calm down.”

       When L.S.’s son was born, she listed Perez as the father of her child on his birth

certificate. L.S. testified that Perez introduced the baby as his and M.A.’s child.

       L.S. and M.S. eventually confronted M.A. again about the abuse. When M.A.

confronted Perez, M.A. explained that L.S. had previously been abused by her biological

father. Perez initially denied the abuse, but later said that L.S. loved him, wanted a


                                             4
relationship with him, and wanted to have a child with him. L.S. eventually left the home,

but Perez forced her to leave her son at home with him and M.A.

       C. Trial Testimony of M.S.

       M.S. was eighteen when she testified at trial. She testified that she came to the

United States from Mexico when she was in first grade. M.S. claimed that Perez first

sexually abused her when she was eleven years old in the family’s tool shed. She said

she was helping him pick up tools when she turned around and saw that Perez’s pants

were down. He then picked her up, laid her down on a bucket, pulled down her pants,

and sexually assaulted her. After, he told her not to tell M.A., her friends, or L.S. about

the incident. He also told her not to write about it in her diary.

       M.S. said that the abuse continued, but with L.S. as well. M.S. testified that Perez

would offer to take the girls to eat pizza, but before they went to the restaurant, he would

drive to a rural part of their property, park his truck, and take turns having sex with her

and L.S. These instances occurred from when she was thirteen to seventeen years old.

M.S. also testified that Perez would at times touch her breasts and vagina, both over and

under her clothing, when they were alone in his truck driving somewhere.

       M.S. recalled an instance when she was sixteen when Perez told her he wanted

to take a shower. Perez then pulled her by her wrist into the restroom with him, took off

his and her clothes, and showered with her. He then had sex with her on his and M.A.’s

bed. M.S. also stated they would have sex on his and M.A.’s bed when M.A. was not

home. M.S. further claimed that Perez demanded oral sex from him.




                                              5
      When she was seventeen, M.S. finally told her mother. M.S. then moved out of

the house to marry her high school boyfriend.

      D. Trial Testimony of M.A.

      M.A. testified that Perez was initially kind to her and her daughters, but that his

behavior soon changed. She testified that he liked to be “in control” and would insult her

or her daughters when they did not clean the home or feed their farm animals properly.

      M.A. testified that she learned Perez was sexually abusing L.S. when she found

him assaulting her when L.S. was pregnant. She stated that Perez told her the reason

he was with L.S. was because she was cold or frigid: he told her she was a “block of

ice.” He told her he would no longer have a sexual relationship with L.S. and threatened

M.A., stating that he knew “the laws well” as well as several law enforcement officers.

      Initially, Perez told M.A. that the father of L.S.’s son was his son, Joel. He told the

family that Joel could not accept paternity because Joel was married to another woman

with another family, so Perez told M.A. “we’re going to give [the baby] my last name so

that we can raise him.”

      E. Motion to Suppress

      Perez moved to suppress evidence of an oral statement he gave to police. The

record shows that the court heard Perez’s motion to suppress on the third day of trial,

outside the presence of the jury.       The only witnesses during this hearing were

Investigator Rodrigo Almanza of the Cameron County Sheriff’s Office and Perez.

      Investigator Almanza stated that he works in the criminal investigation division,

investigating crimes such as homicide, sexual assaults, and thefts. Investigator Almanza


                                             6
first spoke to L.S., who contacted the police about Perez’s history of sexual assaults with

her after an incident regarding her son at the local Head Start program.                    L.S. told

Almanza that Perez had violated both her and her younger sister M.S. for years.

Investigator Almanza then spoke to M.S., whom he described as afraid. “It took her a

while to calm down and start—she was kind of shaking and purple.” M.S. confirmed that

Perez had abused her and threatened her with jail or immigration consequences if she

told anyone about his sexual abuse.

       Investigator Almanza explained that he then went to Perez’s home to arrest him.

After Perez was transported to the sheriff’s office, Investigator Almanza confirmed that he

read Perez his Miranda warnings and gave a document to Perez wherein Perez initialed

that he understood his legal rights. Investigator Almanza testified that he did not coerce,

threaten, or make any promises to Perez in exchange for a confession. He also testified

that he did not deny Perez basic necessities like the restroom, food, or water.                    He

admitted that he told Perez that police had DNA evidence and text messages to prove

the allegations of sexual assault, even though they did not. He said that the use of deceit

was a common police “tactic” used in interrogations to gather evidence. 2 Investigator

Almanza testified that Perez admitted to having sexual relations with L.S. but immediately

asked for an attorney when the questions turned to his relationship with M.S.                     The

interrogation stopped at this point.




       2  “Trickery or deception does not make a statement involuntary unless the method was calculated
to produce an untruthful confession or was offensive to due process.” Creager v. State, 952 S.W.2d 852,
856 (Tex. Crim. App. 1997).

                                                  7
      Perez also testified outside the presence of the jury. Perez’s rendition of the

interrogation was different. He testified that he asked several times what he was being

charged with and never received an answer. He also reported that he was left in a cold

room by himself for thirty minutes, handcuffed. He asked to go to the restroom twice

because of his prostate problems and was not able to go. Notably, Perez testified that

he spoke to Investigator Almanza for a lengthy period of time before he was ever informed

of his Miranda rights. After he was read his Miranda rights, he claimed the investigator

began recording the interrogation. Perez also testified that Investigator Almanza was

“pointing his gun” stating, “Hey, we’ve got everything, I’ve got DNA, I’ve got

witnesses . . . You better say what you have to say and what I want you, otherwise, you’re

going to go for life.” Perez stated that he was scared. He admitted he told the officer

that he had a sexual relationship with L.S. and that the baby was his child. At a certain

point, he asked for an attorney and the interrogation stopped.

      The court orally denied the motion to suppress. Investigator Almanza and Perez

then testified again, but this time in front of the jury. Their testimony was the same in

substance.

      F. The Trial Court’s Findings of Fact & Conclusions of Law

      On the final day of trial, the trial court made the following findings of fact and

conclusions of law regarding Perez’s custodial interrogation:

                                        I.

      The Court finds that on the 9th day of September, 2016, Defendant Xavier
      Perez was arrested by Investigator Rodrigo Almanza.



                                             8
                                     II.

The Court finds that upon being taken to the Cameron County Sheriff’s
Office and prior to the statement but during the recording, Defendant Xavier
Perez was advised of his rights and given certain warnings that comported
in all respects with the Constitution and laws of the United States of America
and the State of Texas.

                                   III.

The Court further finds that after being so duly warned, Defendant Xavier
Perez made an oral statement which was inculpatory to said Defendant.
Investigator Almanza testified that he did not threaten or coerce the
Defendant, or promise him anything in exchange for his oral statement.

                                   IV.

The Court further finds from viewing, in its totality, all the circumstances
surrounding the making of this statement, that Defendant Xavier Perez, at
the time of the making thereof, understood his rights of which he had been
advised, and further that Defendant knowingly and intentionally waived
those rights. The totality of the circumstances includes, but is not limited
to: Defendant’s apparent intelligence, Defendant’s ability to articulate his
thoughts (be they truthful or perjurious), the information within the
knowledge of Defendant as to the nature of the crime and the investigation
thereof, the knowledge on the part of Defendant as to his right to counsel
and his right to avail himself of counsel as well as his right to continue or
discontinue any interview with law enforcement officials (which Defendant
did), the degree, if any, prior to making the instant statement, the method of
the interrogation used by the officer, including the duration, location, and
unique technique of questioning.

                                   V.

The Court finds that the questions permitted of Defendant Xavier Perez
regarding the truth and content of the statement (State’s Exhibit No. 22)
were permitted not to prove the truth of that exhibit but to assist the Court,
if it did, (which it did) in testing the Defendant’s credibility as a witness for
himself in the Jackson v. Denno hearing. [See 378 U.S. 368 (1964)].




                                           9
                                        VI.

      The Court finds no credible evidence that Defendant Xavier Perez was
      unduly frightened at the time of the interview.

                                        VII.

      The Court finds that the degree to which Defendant Xavier Perez was in a
      state of fright, if he was, was not attributable to the acts or omissions of the
      custodial authorities.

                                        VIII.

      The Court finds that the statement (State’s Exhibit No. 22) was in all things
      voluntary and was made by Defendant Xavier Perez with full knowledge of
      his rights and the consequences of making such statements.

      BASED ON THE FOREGOING FINDINGS, the Court concludes that the
      oral confession of Defendant Xavier Perez, of which suppression is sought,
      is ADMISSIBLE and Defendant’s Motion to suppress is DENIED.

      G. The Verdict

      The jury found Perez guilty of all charges and assessed punishment. For Counts

1 and 2, the jury assessed punishment at seven years’ incarceration for each count,

probated, with no fine.   For Count 3, the jury assessed three years’ incarceration,

probated, and no fine. For Count 4, the jury assessed thirty-two years’ incarceration in

the Texas Department of Criminal Justice–Institutional Division and assessed a fine of

$10,000. On Count 5, the jury assessed a ten-year sentence and a $3,000 fine. And

on Count 6, the jury assessed seven years’ incarceration and a $2,000 fine. The trial

court ordered the sentences to run concurrently.

      Perez appealed.




                                                10
                            III. CONSOLIDATION OF INDICTMENTS

       By his first issue, Perez complains that the trial court wrongfully granted the State’s

motion to consolidate the indictments and should have granted his motion to sever. As

sub-issues, Perez complains that the State’s motion to consolidate did not submit any

evidence, affidavits, or verified pleadings and that the trial court should have granted a

hearing on this issue.

       A. Applicable Law

       “A defendant may be prosecuted in a single criminal action for all offenses arising

out of the same criminal episode.” TEX. PENAL CODE ANN. § 3.02(a). Texas Penal Code

§ 3.04, concerning the severance of offenses for the purpose of trial, provides as follows:

       (a)    Whenever two or more offenses have been consolidated or joined
              for trial under Section 3.02, the defendant shall have a right to a
              severance of the offenses.

       ...

       (c)    The right to severance under this section does not apply to a
              prosecution for offenses described by Section 3.03(b) unless the
              court determines that the defendant or the state would be unfairly
              prejudiced by a joinder of offenses, in which event the judge may
              order the offenses to be tried separately or may order other relief as
              justice requires.

See id. § 3.04. Section 3.03(b) of the penal code specifically recognizes sexual assault

offenses against children. See id. (listing penal code §§ 33.021 (online solicitation of a

minor); 21.02 (continuous sexual abuse of a young child or children); 21.11 (indecency

with a child); 22.011 (sexual assault); 22.021 (aggravated sexual assault); 25.02

(prohibited sexual conduct); 43.25 (sexual performance by a child)).



                                             11
       “A trial judge’s failure to grant a mandatory severance under Section 3.04 is subject

to a harm analysis, and the error is harmless if it did not adversely affect the defendant’s

substantial rights.” Scott v. State, 235 S.W.3d 255, 257 (Tex. Crim. App. 2007). “To

judge the likelihood that harm occurred, appellate courts must consider everything in the

record including all the evidence admitted at trial, the closing arguments, and . . . the

jurors’ comments during voir dire.” Id.

       B. Analysis

       The State filed a “Motion to Consolidate and Join Prosecutions.” In its motion, the

State contended that each of the indictments charged Perez with offenses related to child

sexual abuse. The State proffered that “the facts giving rise to the above-mentioned

cause numbers arise from the same criminal episode, and therefore may be properly

joined at the election of the State pursuant to Section 3.02 of the Texas Penal Code.”

See TEX. PENAL CODE ANN. § 3.01 (defining the term “criminal episode” to mean either

“the offenses [sought to be joined] are committed pursuant to the same transaction or

pursuant to two or more transactions that are connected or constitute a scheme or plan”

or “the offenses [sought to be joined] are the repeated commission of the same or similar

offenses”).

       We agree that the trial court did not err in joining the indictments or denying Perez’s

motion to sever. “The right to a severance under the current version of Section 3.04 is

absolute, except for joinder of sexually based offenses that are governed by Section 3.03

of the Texas Penal Code.”        Darling v. State, 262 S.W.3d 920, 926 (Tex. App.—

Texarkana 2008, pet. ref’d) (quoting Scott v. State, 235 S.W.3d 255, 257–58 (Tex. Crim.


                                             12
App. 2007)) (emphasis in original). Here, Perez was charged with offenses listed in

§ 3.03(b) and he did not show he was “unfairly prejudiced” by the joinder. See TEX.

PENAL CODE ANN. § 3.04(c). Because the statute authorized the trial court to consolidate

these indictments and did not require severance, we conclude that no error occurred.

       Perez urges this court to hold otherwise, citing Darling v. State as authority for the

proposition that severance is appropriate in this case. See 262 S.W.3d at 923. We find

Darling to be distinguishable. In Darling, the defendant sought to sever two indictments:

one alleged sexual assault crimes against multiple young women in 1993-95, and another

alleged a crime against one young woman in 2004. Id. The instances were ten years

apart. Id. The evidence on the aggravated sexual assault offenses from 1993-95 was

“corroborated and compelling” while the evidence from the 2004 incident was vague and

circumstantial. Id. In the latter case, “the young girl testified that Darling ‘touched’ her

only once and did not detail how or where he touched her, or provide any information to

suggest that this single touch was in any way indecent.” Id. at 921. Notably, the court

held that the two indictments involved a “different manner of commission, involved a

different degree of severity, and involved different victims. There was no evidence

adduced at trial to suggest any direct linkage between the commission of this indecency

crime and those earlier time periods.” Id. at 926.

       Here, the alleged crimes against L.S. and M.S. occurred during the same time

frame, alleged similar acts of sexual misconduct, and were at the same location (the

family’s rural property). Some of the alleged acts even occurred with both women at the

same time. Accordingly, we conclude that Darling is inapposite to this case.


                                             13
       Regarding Perez’s sub-issues that the State did not submit any evidence,

affidavits, or verified pleadings to support its motion to consolidate, Perez cites no

authority showing that the code of criminal procedure requires this, and we find none.

Further, regarding Perez’s complaint that the trial court granted the motion to consolidate

without a hearing, we note that the trial court allowed Perez to urge his motion to sever

during pre-trial motions heard on August 29, 2017. The motion was denied.

       We overrule Perez’s first issue.

                                   II. MOTION IN LIMINE

       By his second issue, Perez complains the trial court erred when it granted the

State’s motion in limine requiring the parties to approach prior to any questioning

regarding L.S.’s past sexual behavior.       Specifically, Perez argues that his son, Joel

Perez, should have been allowed to testify regarding his alleged sexual relationship with

L.S.

   A. Applicable Law

       If the trial court grants a pre-trial motion in limine, counsel must still object when

the subject is raised during trial and secure an adverse ruling from the trial court. See

West v. State, 790 S.W.2d 3, 4 (Tex. App.—San Antonio 1989, pet. ref’d). Otherwise,

error is not preserved. See id.

       Texas Rule of Evidence 412 is also relevant to Perez’s second issue on appeal.

This rule of evidence provides as follows:

          (a) In General. The following evidence is not admissible in a prosecution
              for sexual assault, aggravated sexual assault, or attempt to commit
              sexual assault or aggravated sexual assault:


                                             14
             (1) reputation or opinion evidence of a victim's past sexual behavior;
                 or

             (2) specific instances of a victim's past sexual behavior.

             ....

          (b) Procedure for Offering Evidence. Before offering any evidence of
              the victim's past sexual behavior, the defendant must inform the
              court outside the jury's presence. The court must then conduct an in
              camera hearing, recorded by a court reporter, and determine
              whether the proposed evidence is admissible. The defendant may
              not refer to any evidence ruled inadmissible without first requesting
              and gaining the court's approval outside the jury's presence. . . .

TEX. R. EVID. 412.

   B. Analysis

      Perez complains that the trial court abused its discretion when it did not allow Joel

Perez to testify about his alleged sexual relationship with L.S. When counsel for Perez

approached the bench prior to Joel taking the witness stand, the court clearly ruled that

Joel could “not testify as to any sexual conduct with [L.S.].” Perez ultimately chose not

to call Joel to the witness stand. The following exchange occurred at the bench:

      THE COURT:           Let’s have Joel testify. He cannot testify as to any
                           sexual contact with her. I will not allow that.

      COUNSEL:             Yeah, then it wouldn’t be worth calling him because
                           there’s nothing he can tell other than he’s had a
                           relationship. That’s it.

      THE COURT:           I’m not going to allow that.

      Perez did not object on the record when the trial court made the evidentiary ruling

limiting Joel’s testimony, nor did he object when the court failed to hold an “in camera”



                                           15
review. See TEX. R. APP. P. 33.1; see also TEX. R. EVID. 412(b). Further, he did not

make an offer of proof regarding Joel’s potential testimony. See TEX. R. EVID. 103(c).

In light of the foregoing, we conclude that Perez’s second issue was not preserved for our

review. See TEX. R. APP. P. 33.1.

                                     III. ADMISSION OF EVIDENCE

        Perez’s third issue on appeal challenges the trial court’s decision to allow both L.S.

and M.S. to testify about Perez’s alleged extraneous offenses. 3

    A. Applicable Law

        The admissibility of evidence is within the sound discretion of the trial court and

will not be reversed absent an abuse of discretion. Tillman v. State, 354 S.W.3d 425

(Tex. Crim. App. 2011).          Texas Rule of Evidence 404(b) provides that evidence of

extraneous offenses, such as a “crime, wrong, or other act is not admissible to prove a

person’s character in order to show that on a particular occasion the person acted in

accordance with the character.” See TEX. R. EVID. 404(b). Article 38.37 of the Texas

Code of Criminal Procedure, however, supercedes 404(b) and allows certain evidence of

extraneous bad acts in sexual assault cases. See TEX. CODE CRIM. PROC. ANN. art.

38.37(b). The statute specifically provides that

        Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject
        to Section 2-a, evidence that the defendant has committed a separate
        offense described by Subsection (a)(1) or (2) may be admitted in the trial of
        an alleged offense described by Subsection (a)(1) or (2) 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.

        3The State filed its “Notice of State’s Intention to Use Extraneous Offenses and Prior Convictions”
on August 16, 2017, prior to trial. See TEX. R. EVID. 404(b)(2).


                                                   16
Id. (emphasis added).

   B. Analysis

      On appeal, Perez lodges three arguments about both M.S. and L.S. testifying in

the same trial about Perez’s alleged sexual misconduct with them: (1) that it was not a

continuous episode; (2) that it violated Texas Rule of Evidence 404(b); and (3) the

testimony was more prejudicial than probative in violation of Texas Rule of Evidence 403.

      Regarding the first complaint that M.S. and L.S.’s alleged assaults were not “one

continuous episode,” this argument was addressed and overruled in Section II(b) of this

opinion, supra, discussing the consolidation of the indictments. Concerning Perez’s

second complaint that the admission of the evidence violated Texas Rule of Evidence

404(b), the plain text of Texas Code of Criminal Procedure article 38.37(b) shows that

evidence of extraneous sexual acts is admissible in certain cases involving child sexual

abuse. See TEX. CODE CRIM. PROC. ANN. art. 38.37(b); see also Jenkins v. State, 993

S.W.2d 133, 136 (Tex. App.—Tyler 1999, pet. ref'd) (holding that “the special

circumstances surrounding the sexual assault of a child victim outweigh normal concerns

associated with evidence of extraneous acts”). Finally, regarding Perez’s assertions that

this evidence was more prejudicial than probative, we note that this objection was not

lodged at trial. See TEX. R. APP. P. 33.1 (providing that a timely and specific objection

must be made and followed by an adverse ruling to preserve error for review). Thus, this

argument was not preserved for our review.

      We overrule Perez’s third issue.



                                           17
                IV.    MOTION TO SUPPRESS CUSTODIAL INTERROGATION

       By his fourth issue, Perez claims the trial court erred in denying his motion to

suppress his statement from the custodial interrogation.

   A. Applicable Law

       We apply a bifurcated standard of review on motions to suppress, giving “almost

total deference to a trial court’s determination of historical facts” and reviewing de

novo the court's application of the law of custodial interrogation. See Delafuente v.

State, 414 S.W.3d 173, 177 (Tex. Crim. App. 2013); Carmouche v. State, 10 S.W.3d 323,

327–28 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997) (en banc) (explaining that we defer to the trial court “especially when the trial court's

fact findings are based on an evaluation of credibility and demeanor”).

   B. Analysis

       Perez argues several facts in urging this issue. For example, he alleges that

Investigator Almanza lied about having DNA evidence and text messages to support the

State’s case. Perez further asserts that he did not “knowingly, intelligently and voluntarily

waive” his rights as set out in the Miranda warning. He further argues “the fact that the

entire initial interaction by investigator and [Perez] is no[t] mentioned or recorded for

review by this Court would lead a reasonable person to believe the entire reason it

occurred was to breakdown the [Perez’s] ability to understand his right to remain silent

and convince him to waive his Constitutional rights.”

       Under our standard of review, though, we give almost total deference to the trial

court’s findings of fact in this case because they were based on evaluations of credibility.


                                              18
See Delafuente, 414 S.W.3d at 177; Carmouche, 10 S.W.3d at 327–28; Guzman, 955

S.W.2d at 89. Here, the trial court’s finding of fact number 2 reported that, “Perez was

advised of his rights and given certain warnings that comported in all respects with the

Constitution and laws of the United States of America and the State of Texas.” Finding

of fact number 4 also stressed Perez’s intelligence, his ability to articulate his thoughts,

his understanding of his rights to counsel and to continue or discontinue the interview,

and the method of the interrogation used by Investigator Almanza, including the duration,

location, and unique technique of questioning, to conclude that the statement complied

with Fourth Amendment laws and protections. Because we defer to the trial court when

its fact findings are based on an evaluation of credibility and demeanor and its findings

are supported by the record, we overrule this issue. See Guzman v. State, 955 S.W.2d

at 89.

                              V. INEFFECTIVE ASSISTANCE OF COUNSEL

   A. Standard of Review and Applicable Law

         To prevail on an ineffective assistance claim, an appellant must show (1) counsel's

representation fell below an objective standard of reasonableness, and (2) the deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 689

(1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). “Unless [the]

appellant can prove both prongs, an appellate court must not find counsel’s

representation to be ineffective.” Lopez, 343 S.W.3d at 142. To satisfy the first prong,

appellant must prove by a preponderance of the evidence that his counsel's performance

fell below an objective standard of reasonableness under prevailing professional norms.


                                             19
Id. To prove prejudice, appellant must show there is a reasonable probability the result

of the proceeding would have been different, that is, a probability sufficient to undermine

confidence in the outcome. Id.

       Our review of counsel’s representation is highly deferential, and we will find

ineffective assistance only if the appellant rebuts the strong presumption that his

counsel's    conduct    fell   within   the   wide   range    of   reasonable     professional

assistance. Strickland, 466 U.S. at 689; Lopez, 343 S.W.3d at 142. “In order for an

appellate court to find that counsel was ineffective, counsel’s deficiency must be

affirmatively demonstrated in the trial record; the court must not engage in retrospective

speculation.” Lopez, 343 S.W.3d at 142; see Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999) (“Any allegation of ineffectiveness must be firmly rooted in the

record . . . .”). “It is not sufficient that appellant show, with the benefit of hindsight, that

his counsel's actions or omissions during trial were merely of questionable

competence.” Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). When direct

evidence is unavailable, we will assume counsel had a strategy “if any reasonably sound

strategic motivation can be imagined.” Lopez, 343 S.W.3d at 143; see Goodspeed v.

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (“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.”). We must review the totality of the

representation and the circumstances of each case without the benefit of hindsight. Id.

   B. Analysis

       Perez asserts that his trial counsel was ineffective because counsel failed to: (1)


                                              20
obtain translations of documents wherein L.S. had allegedly wrongfully accused her

biological father of sexual assault in Mexico; (2) argue Rule 412 as it pertained to other

sexual activity; (3) prepare a proper record for introduction of Perez’s statement; (4) object

to the trial court’s findings of fact and conclusions of law regarding Perez’s statement; (5)

object to the admission of certain extraneous offenses and “bad acts”; and (6) object to

improper hearsay statement regarding M.S. and L.S.’s demeanor and mental state. We

address each argument in turn.

        1. Failure to Translate Documents

        A review of the record shows that while Perez’s attorney did not have certain

documents from a Mexican criminal investigation translated, he did propose to have a

Mexican investigator come testify.              At one point, he informed the court that “My

understanding is we have somebody—a live person, the investigator from the Mexican

investigation. He was on the bridge 4 trying to get over here to testify about his personal

knowledge of what occurred in Mexico. I’m trying to give him a chance to get here.”

Ultimately, the court learned that the Mexican investigator was not given permission to

cross the border.

        First, the trial court made clear that it would not admit certain translated documents

into evidence. During a pre-trial hearing, the court ruled

        I do not know what they did [in Mexico] and the veracity of that
        information . . . I do not know if it was a proper investigation . . . If you had
        a judgment, then I have a different story because we’re supposed to
        obviously honor judgments from other countries, but that’s not what I have.
        I have an investigation that somebody did that is all hearsay. . . .

        4  Brownsville, Texas, where this trial was held in Cameron County, Texas, is a city that lies on the
United States-Mexico border.

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       The court did, though, inform the parties that it would admit the testimony of the

Mexican law enforcement official who conducted the investigation into evidence. The

trial court concluded, “that’s a different story.   You’re going to have somebody that

actually investigated the situation. . . If you have a warm body here, that will be allowed.”

       Second, the fact that a witness was not allowed to cross an international border to

testify is not the attorney’s fault. Perez’s counsel’s continued efforts, as evidenced by

the record, to get his witness onto the witness stand fell within the wide range of

reasonable professional assistance. See Strickland, 466 U.S. at 689; Lopez, 343

S.W.3d at 142.

       2. Failure to Argue Rule 412 Regarding L.S.’s Other Sexual Activity

        Perez also argues that his attorney failed to argue Texas Rule of Evidence 412

in regard to L.S.’s prior sexual activity.    This allegation is at odds with the record.

Perez’s counsel tried several times to admit evidence of L.S.’s alleged prior sexual

activity. For example, he tried to get Joel, Perez’s son, to testify that he had a sexual

relationship with L.S. and was the father of L.S.’s child. Further, counsel attempted to

call the Mexican investigator to the witness stand. This person allegedly investigated a

false outcry of L.S. in Mexico, alleging sexual abuse against her natural father. In the

prior instance, the court did not allow Joel’s testimony under Texas Rule of Evidence 412.

See TEX. R. EVID. 412. And in the latter instance, the witness was unable to cross the

United States-Mexico border.       Perez’s attorney’s efforts in this matter more than

adequately met the standard of reasonable legal representation. See Strickland, 466



                                             22
U.S. at 689; Lopez, 343 S.W.3d at 142.

       3. Failure to Prepare a Proper Record of Perez’s Statement

       Perez also claims that his attorney erred when he failed “to prepare a proper record

in front of the jury for introduction of Defendant’s statement instead of contesting the

statement as per the Motion to Suppress.” This decision appears to be trial strategy

related to Perez’s motion to suppress. “When the record is silent on the motivations

underlying counsel's tactical decisions, the appellant usually cannot overcome the strong

presumption that counsel's conduct was reasonable.” Mallett v. State, 65 S.W.3d 59, 63

(Tex. Crim. App. 2001).      Here, counsel’s actions were not “so outrageous that no

competent attorney would have engaged in it.” See Goodspeed, 187 S.W.3d at 392. In

the absence of information explaining why counsel chose to challenge Perez’s statement

in the manner that he did, we defer to this decision-making and presume his conduct is

within the wide range of reasonable professional assistance. See Strickland, 466 U.S.

at 689; Lopez, 343 S.W.3d at 142.

       4. Failure to Object to the Findings of Fact & Conclusions of Law

       Perez also complains that his attorney failed to object to the trial court’s findings of

fact and conclusions of law on his motion to suppress. However, Perez’s issue on the

motion to suppress was still preserved for our review. See TEX. R. APP. P. 33.1; see also

TEX. R. EVID. 103(b) (“[W]hen the court hears a party’s objections outside the presence of

the jury and rules that evidence is admissible, a party need not renew an objection to

preserve a claim of error for appeal.”). In light of this, we cannot say that the failure to

object to the findings of fact and conclusions of law fell below the reasonable standard of


                                             23
legal representation. See Strickland, 466 U.S. at 689; Lopez, 343 S.W.3d at 142.

       5. Failure to Object to the Admission of Certain Extraneous Offenses & Bad
          Acts

       Again, Perez’s claim in this instance is mistaken. His counsel tried, for example,

through the urging of his motion to sever, to limit the testimony regarding Perez’s

extraneous offenses and prior bad acts by making L.S. and M.S.’s trials separate. We

conclude that counsel’s attempt to limit the above-referenced evidence fell within the wide

range of legal competence. Strickland, 466 U.S. at 689; Lopez, 343 S.W.3d at 142.

       6. Failing to Object to Improper Hearsay Statement of M.S. and L.S.’s
          Demeanor and Mental State

       Here, Perez argues that his attorney “failed to object to hearsay improper [sic]

statements from witnesses pertaining to the demeanor of M.S. and L.S. and the

investigator[’s] belief as to the mental state.” Perez does not, however, cite to any

specific witnesses or highlight which specific statements were improper—there are no

citations to the record to prove this point. Accordingly, we conclude that this sub-issue

is inadequately briefed. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and

concise argument for the contentions made, with appropriate citations to authorities and

to the record.”).

       7. Summary

       To satisfy the first prong of Strickland, the appellant must prove by a

preponderance of the evidence that his counsel’s performance fell below an objective

standard of reasonableness under prevailing professional norms. Lopez, 343 S.W.3d at

142. None of the instances Perez cites rise to the level of deficient legal representation.


                                            24
We overrule Perez’s fifth and final issue.

                                         VI. CONCLUSION

       We affirm the trial court’s judgment.

                                                          LETICIA HINOJOSA
                                                          Justice

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

Delivered and filed the
10th day of October, 2019.




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