Memorandum Opinion by Justice van Cleef

MEMORANDUM OPINION

Eric Robert Kendrick was tried for the continued sexual abuse of Megan, a young child. ^[1] A Fannin County jury found Kendrick guilty of the lesser-included offense of indecency with a child by sexual contact and assessed a sentence of fifteen years’ imprisonment with a $10,000.00 fine.

On appeal, Kendrick argues that (1) his trial counsel rendered ineffective assistance by failing to object to extraneous-offense evidence and (2) the trial court’s jury charge erroneously omitted any option for the jury to find Kendrick not guilty of the lesser-included offense. We find that, because the record is silent as to trial counsel’s reasons for his failure to object, Kendrick cannot show that his trial counsel was ineffective since we can fathom a reason for the lack of an objection. We also find that Kendrick was not egregiously harmed by the trial court’s jury charge. As a result, we affirm the trial court’s judgment. I. Kendrick Cannot Show that Trial Counsel Was Ineffective on this Silent Record

Before trial, the State noticed its intent to introduce extraneous-offense evidence of alleged sexual acts committed by Kendrick against Megan’s sisters, Amber and Maybel. Maybel was a child at the time of the alleged extraneous offense, but Amber was an adult. As a result, the State argued that Article 38.37 of the Texas Rules of Criminal Procedure permitted Maybel’s testimony and Article 38.371 of the Texas Rules of Criminal Procedure permitted Amber’s testimony. See TEX. CODE CRIM. PROC. ANN. arts. 38.37, 38.371 (Supp.). In his first point of error on appeal, Kendrick argues that his trial counsel should have objected to Amber’s testimony.^[2]

A. Procedural Background

Article 38.371 “applies to a proceeding in the prosecution of a defendant for an offense . . . for which the alleged victim is a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, [of the Texas] Family Code.” TEX. CODE CRIM. PROC. ANN. art. 38.371(a). It is undisputed that Kendrick’s relationship with Megan and her sisters was described by the above-referenced sections of the Texas Family Code. The remainder of Article 38.371 states,

(b) In the prosecution of an offense described by Subsection (a), subject to the Texas Rules of Evidence or other applicable law, each party may offer testimony or other evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense described by Subsection (a), including testimony or evidence regarding the nature of the relationship between the actor and the alleged victim.

(c) This article does not permit the presentation of character evidence that would otherwise be inadmissible under the Texas Rules of Evidence or other applicable law.

TEX. CODE CRIM. PROC. ANN. art. 38.371(b)–(c).

Before jury selection, the trial court held an Article 38.371 hearing. At the hearing, Amber testified that, when she was eighteen, Kendrick sexually abused her almost daily. According to Amber, Kendrick would crawl into her bed in the middle of the night while he was naked and would sexually assault her. Amber testified, “There was a lot of manipulation, a lot of gaslighting. Basically told [her] if [she] [did not] do what [Kendrick] wanted, he would kill himself.” Amber testified that she told her mother of the abuse and that Megan outcried a week or two after she did.

Kendrick’s trial counsel cross-examined Amber during the hearing. In addition to Article 38.371, the State argued that Amber’s testimony was admissible under Rule 404(b) of the Texas Rules of Evidence to show motive and intent. See TEX. R. EVID. 404(b). Kendrick’s trial counsel stated that he had no “objections to the testimony.” Kendrick argues that his trial counsel should have objected to Amber’s testimony.

B. Standard of Review

The Sixth Amendment to the United States Constitution guarantees an accused the right to reasonably effective assistance of counsel in criminal prosecutions. U.S. CONST. amend. VI, Strickland v. Washington, 466 U.S. 668, 680 (1984); see Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017) (orig. proceeding). “[W]e review the adequacy of representation” using Strickland’s two-step test. Tanner v. State, 707 S.W.3d 371, 376 (Tex. Crim. App. 2024) (citing Strickland, 466 U.S. 668). “In order to reverse a conviction for ineffective assistance of counsel, we must find that [a] defendant has shown: (1) counsel’s performance was deficient and (2) the defendant suffered prejudice.” Id. (citing Strickland, 466 U.S. at 694). “An appellant bears the burden of proving ineffectiveness by a preponderance of the evidence.” Id. The right to counsel does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

The first Strickland prong, the deficient-performance prong, requires a defendant claiming ineffective assistance of counsel to “prove that his counsel’s actions fell ‘below the professional norm of reasonableness.’” Tanner, 707 S.W.3d at 376 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996) (per curiam), abrogated by Mosley v. State, 983 S.W.2d 249, 263 n.18 (Tex. Crim. App. 1998)). We consider “the totality of the representation and the particular circumstances of each case in evaluating effectiveness of counsel.” Id. “There is a strong presumption that trial counsel’s conduct fell within the wide range of reasonable professional assistance.” Id. (citing Strickland, 466 U.S. at 689, Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)). Accordingly, “[j]udicial scrutiny of counsel’s performance must be highly deferential,” Strickland, 466 U.S. at 669, and “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy,’” id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

The second Strickland prong, sometimes referred to as “the prejudice prong,” “may be measured in one of two ways: a reasonable probability of a different outcome or a reasonable probability of a different decision by the defendant.” Swinney v. State, 663 S.W.3d 87, 90 (Tex. Crim. App. 2022). “Failure to make the required showing on either prong of the Strickland analysis defeats the ineffectiveness claim.” Tanner, 707 S.W.3d at 376–77.

C. Analysis

We apply a “strong presumption” that trial counsel was competent and presume that trial counsel’s actions and decisions were reasonably professional and motivated by “sound trial strategy.” Jackson, 877 S.W.2d at 771 (quoting Strickland, 466 U.S. at 689). Also, when an appellate record is silent on why trial counsel failed to take specific actions, “the appellant has failed to rebut the presumption that trial counsel’s decision was in some way—be it conceivable or not—reasonable.” Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007).

Here, we find that Kendrick’s trial counsel could have chosen to forego an objection to the extraneous offense against Amber because he could have reasonably believed the trial court would not abuse its discretion by overruling it. See Redin v. State, No. 06-25-00019-CR, 2026 WL 867024, at *4–5 (Tex. App.—Texarkana Mar. 30, 2026, no pet.) (mem. op., not designated for publication).

Article 38.371, which applies to a prosecution for indecency with a child, “provides a[] non-character-conformity purpose for admitting extraneous-offense evidence.” Id. at *5 (quoting James v. State, 623 S.W.3d 533, 545 (Tex. App.—Fort Worth 2021, no pet.) (citing TEX. CODE CRIM. PROC. ANN. art. 38.371)). It expressly allows for “evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense.” TEX. CODE CRIM. PROC. ANN. art. 38.371(b). “Evidence is relevant” when “it has any tendency to make a fact more or less probable than it would be without the evidence.” TEX. R. EVID. 401(a). Trial counsel could have reasoned that evidence that Kendrick assaulted Amber, a family member, had a tendency to make the fact that Kendrick assaulted Megan, also a family member, more probable.

Trial counsel could have also decided that while such evidence was “not admissible to prove [Kendrick’s] character in order to show that on a particular occasion [Kendrick] acted in accordance with the character,” under Rule 404(b)(1), it could be admissible under Rule 404(b)(2) to show that Kendrick had the motive to sexually assault Megan and the intent to arouse or gratify his sexual desire. See TEX. R. EVID. 404(b).

Next, although Rule 403 of the Texas Rules of Evidence excludes relevant evidence if, among other things, “its probative value is substantially outweighed by a danger . . . of unfair prejudice,” trial counsel could have believed that the Rule 403 balancing test would favor admission of the evidence. See TEX. R. EVID. 403. For example, when conducting a Rule 403 balancing test, the court must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).

Here, trial counsel could reasonably believe that the extraneous offense was probative of motive and intent and the State’s need for the evidence was great given that the victim was a child and there was no physical evidence or eyewitness testimony. See Price v. State, 594 S.W.3d 674, 680 (Tex. App.—Texarkana 2019, no pet.). Trial counsel could have determined that the jury would not consider the extraneous evidence for improper purposes given the trial court’s limiting instruction to the jury that the extraneous acts were only “being allowed for limited purposes” and that they could “not consider the same in determining [if] [Kendrick] acted in conformity therewith,” but could only consider the evidence “for purposes of proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident, if any, and for no other purpose.” See Williams v. State, No. 06-24-00191-CR, 2025 WL 2217473, at *6 (Tex. App.—Texarkana Aug. 5, 2025, pet. ref’d) (mem. op., not designated for publication). Also, trial counsel could have decided that the trial court would redirect the jury to the main issues in the case by its application paragraph in the jury charge and that the fifth Gigliobianco factor, which pertains to scientific evidence, did not apply. See id. Further, counsel could have known that Amber’s testimony would not consume an inordinate amount of time or repeat other evidence. Thus, it was within the realm of reasonable professional assistance for trial counsel to have chosen to forego an objection under the Texas Rules of Evidence.

Lastly, trial counsel could have determined that since the extraneous-offense evidence against Maybel was admissible under Article 38.37, his best trial strategy was to allege that the allegations were all fabricated, which was a strategy he employed during the trial.

Because the record is silent as to trial counsel’s reasoning for failing to object to the admission of Amber’s testimony, and we can fathom a reason why, we cannot conclude that Kendrick has met his burden of establishing that his trial counsel provided him with ineffective assistance of counsel nor can we conclude that trial counsel’s conduct was so outrageous that no competent attorney would have engaged in it. We find that Kendrick cannot meet the first Strickland prong. As a result, we overrule his first point of error.

II. Kendrick Was Not Egregiously Harmed by the Jury Charge

In his last point of error, Kendrick raises jury-charge error. Specifically, Kendrick complains of the trial court’s verdict form, which gave the jury the option to find Kendrick (1) guilty of “[c]ontinuous [s]exual [a]buse of a [c]hild [y]ounger than [fourteen] as charged in the indictment,” (2) guilty of “[i]ndecency with a [c]hild, a lesser[-]included offense in the indictment,” or (3) “NOT GUILTY of the offense as charged in the indictment.” According to Kendrick, this jury charge did not give the jury the option of finding him not guilty of the lesser- included offense.

A. Standard of Review

“We employ a two-step process in our review of alleged jury-charge error.” Murrieta v. State, 578 S.W.3d 552, 554 (Tex. App.—Texarkana 2019, no pet.) (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994)). “Initially, we determine whether error occurred and then evaluate whether sufficient harm resulted from the error to require reversal.” Id. (quoting Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.)).

“The level of harm necessary to require reversal due to jury charge error is dependent upon whether the appellant properly objected to the error.” Id. at 555 (citing Abdnor, 871 S.W.2d at 732). When, as here, the defendant “did not object to the charge, we will not reverse [the judgment] unless the record shows the error resulted in egregious harm.” Id. (citing Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005)). “Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.” Id. (quoting Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007)). “[T]he record must show that a defendant has suffered actual, rather than merely theoretical, harm from jury instruction error.” Ngo, 175 S.W.3d at 750 (citing Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999)).

“In determining whether there has been egregious harm, we consider (a) the jury charge as a whole; (b) the state of the evidence, including contested issues and the weight of probative evidence; (c) arguments of counsel[;] and (d) any other relevant information in the record.” Riley v. State, 447 S.W.3d 918, 925 (Tex. App.—Texarkana 2014, no pet.) (citing Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006)).

B. Analysis

Under Article 37.07 of the Texas Code of Criminal Procedure, “[i]f the charging instrument contains more than one count . . . , the jury shall be instructed to return a finding of guilty or not guilty in a separate verdict as to each count and offense submitted to them.” TEX. CODE CRIM. PROC. ANN. art. 37.07, § 1(c) (Supp.). The State concedes that “[t]here was no ‘not guilty’ option just for the lesser-included offense” and that “[n]o one noticed this omission.” As a result, we move to the issue of egregious harm.

We find that the remainder of the jury charge supports a finding that Kendrick suffered no egregious harm. Because there was evidence of many sexual acts committed against Megan, the charge instructed the jury that the State had elected to choose “the first incident described by testimony involving sexual contact, specifically where the defendant touched Megan’s . . . vagina with his hand.” The abstract portion of the charge properly instructed the jury on the burden of proof and instructed the jury to acquit Kendrick if it found that the State did not meet its burden. In its application paragraph, the trial court tracked the language of the offense of indecency with a child and again reminded the jury to “find the defendant not guilty and so say in your verdict” if it had reasonable doubt as to whether the State met its burden to prove Kendrick’s guilt. As a result, the jury was well informed that it could find Kendrick not guilty of the lesser-included offense.

Further, the state of the evidence was strong. Megan testified that, when she was a child, Kendrick had sexually abused her, and she provided the details to the jury. As to the specific offense of indecency, Meagan testified that Kendrick had come into her room, removed her pants, and touched her vagina. According to Megan, Kendrick had touched her vagina at least three times. The jury heard evidence from Megan’s mother about her outcry and Catie Daniels, a forensic interviewer with the Child Advocacy Center, who testified that Megan said, “[Kendrick] would come into her room and touch her female[-]sexual organ, or she referred to it as her private part that she uses to pee.” As a result, the state of the evidence weighs against a finding of egregious harm.

During closing argument, Kendrick’s trial counsel emphasized the evidence in his favor and repeatedly emphasized the State’s burden. He urged the jury to find Kendrick not guilty because the State had not met its burden of proof. As to the lesser-included offense, trial counsel said, “Because we’re talking about child sexual abuse, and my fear is that it’s -- it’s easier to say, [b]etter be safe than sorry, and not hold the State to its burden,” but reminded the jury that “the verdict must be not guilty” if they had reasonable doubt. Thus, we find that trial counsel’s arguments weigh against finding egregious harm.

Finally, we note that the jury was polled and confirmed that they found Kendrick guilty of the lesser-included offense beyond a reasonable doubt.

After reviewing the record, we find that it fails to show that Kendrick suffered actual egregious, rather than merely theoretical, harm. As a result, we overrule his last point of error.

III. Conclusion

We affirm the trial court’s judgment.

Charles van Cleef Justice Date Submitted: August 18, 2026 Date Decided: August 31, 2026 Do Not Publish