April 2024: In Peralez v. State, the Texas Second Court of Appeals Analyzes Rulings in Tarrant County Aggravated Sexual Assault of a Child Case

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Background & Issues Raised in Peralez v. State

On April 25, 2024, the Texas Second Court of Appeals addressed the appeal of Hector Martinez Peralez Jr., convicted on two counts of aggravated sexual assault of a child in Tarrant County. The court reviewed several issues including the exclusion of evidence, jury charge errors, and the effectiveness of counsel.

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The Court’s Analysis of the Exclusion of a Witness’s Prior Consistent Statement

The court found that the trial court did not abuse its discretion in excluding a prior consistent statement from a witness, which Peralez argued was essential for his defense. In its analysis, the court determined that the hearsay exception element that was in dispute is “whether the offered prior statement is consistent with Grandmother’s challenged in-court testimony.”

Following Grandmother’s testimony regarding the 911 call, Peralez offered into evidence a portion of his recorded interview with police following his July 2022 arrest. During that portion, Peralez and Grandmother spoke on the phone. In that conversation, Grandmother expressed incredulity at Peralez’s being arrested for sexually assaulting Aubrey. Grandmother stated that Peralez was never home long enough to assault Aubrey, that Aubrey and the other kids in the apartment were always by her side while they were in the apartment, and that committing an act of sexual assault was time-consuming. Peralez offered that exhibit as a prior consistent statement. The State objected to the recorded interview based on hearsay, and the trial court sustained the State’s objection.

The court stated that Rule 44.2(b) requires it to disregard any nonconstitutional error that does not affect an appellant’s substantial rights. In making this determination, the court said that it must consider “(1) the character of the alleged error and how it might be considered in connection with other evidence, (2) the nature of the evidence supporting the verdict, (3) the existence and degree of additional evidence supporting the verdict, and (4) whether the State emphasized the complained-of error.”

The court undertook a review of each of these points and concluded that “that, in the context of the entire case against Peralez, the trial court’s error, if any, in excluding the prior consistent statement from Grandmother did not have a substantial or injurious effect on the jury’s verdict and did not affect Peralez’s substantial rights. … Thus, we must disregard the error.”

Examining the Alleged Jury Charge Error: Unanimity Problems & How Error Preservation Affects the Standard of Review

The appellant contended that the jury charge failed to ensure unanimity concerning the specific acts constituting aggravated sexual assault.

Here, the jury charge alleged three different counts of aggravated sexual assault of a child: (1) Peralez’s mouth contacting Aubrey’s sexual organ, (2) his sexual organ contacting her mouth, and (3) his finger penetrating her sexual organ. The State presented evidence that Peralez had committed these various offenses on multiple but separate occasions; accordingly, the trial court erred by failing to include more than a general unanimity instruction in the charge.

However, because Peralez did not raise his unanimity complaint with the trial court, the court announced that it would only reverse if the trial court’s error resulted in “egregious harm.” The court held:

Only one of the four factors—the entirety of the charge—weighs in favor of a finding of egregious harm. In light of our analysis of these four factors and after reviewing the appellate record, we cannot conclude that the charge error affected the very basis of the case, deprived Peralez of a valuable right, vitally affected the defensive theory, or made a case for conviction clearly and significantly more persuasive. Accordingly, we hold that he was not egregiously harmed by the erroneous charge.

Exploring the Ineffective Assistance Claims

Appellant complains that he was denied effective assistance of counsel on three occasions during the State’s closing argument. The court pointed out that the record was silent with respect to the reasoning of trial counsel. In addition, the court held that it wasunable to say that no competent attorney would have acted as Peralez’s trial counsel did during the State’s closing argument. Accordingly, this third argument was dismissed.

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