¹ Leilani, V.R.’s mother The State’s first witness, Leilani, is V.R.’s mother and was Rodriguez’s girlfriend during the period of the alleged incidents. Leilani testified that she and Rodriguez were “on-again, off- again” between 2003 and 2006, but began living together continuously in 2006. In 2009, V.R., then fourteen-years old, told her that Rodriguez was sexually assaulting her. Leilani testified, in detail, regarding the alleged assaults as reported by V.R. Leilani further testified that after V.R. told her about the abuse, Leilani physically “examined” V.R. and then confronted Rodriguez. According to Leilani, Rodriguez attempted to stab himself with a syringe and threatened to kill himself with a knife. It was only after he left the residence that Leilani called the police. During cross-examination, defense counsel garnered testimony about previous problems with V.R., specifically allegations of inappropriate sexual contact V.R. had with other children at her elementary school and V.R. running away to stay with a boyfriend, some three years prior to her outcry. Leilani also testified about her disciplining V.R., including slapping V.R. so hard her lip burst and cutting V.R.’s hair as punishment. During questioning, Leilani attempted to correlate V.R.’s behavior with Rodriguez’s alleged abuse, but ultimately conceded that it was not until years later that V.R. reported her behavior in 2006 was a result of Rodriguez’s abuse.

⁴ Application to the Charge The testimony presented at trial was sufficient to support the jury’s determination that Rodriguez was guilty of separate acts of aggravated sexual assault in Counts I and III and separate and distinct offenses of aggravated sexual assault and indecency with a child in Counts II and V. These were not allegations of separate offenses from a single interaction. In each case, Counts I and III, and Counts II and V, the State presented evidence the allegations were separate actions and not the same underlying conduct. See Beltran v. State, 30 S.W.3d 532, 534 (Tex. App.—San Antonio 2000, no pet.); Hutchins, 992 S.W.2d at 633. Because the evidence presented at trial warranted convictions against Rodriguez for all five charges, the verdicts did not violate Rodriguez’s rights against double jeopardy. Ochoa, 982 S.W.2d at 907. Finding no error in the court’s charge, we turn to Rodriguez’s issue concerning the State’s closing argument. COMMENT ON RODRIGUEZ’S FAILURE TO TESTIFY Rodriguez complains the State’s comment, made during closing argument, “we can’t say anything about the fact that they chose not to say anything,” was an improper comment on his right not to testify. We review the comment within the context of the entire argument. At the beginning of the State’s closing argument, the State explained the jury would be hearing from both attorneys and they were “going to hear a lot of argument.” He continued, “I just want to give you some advice about how to listen to lawyers once they start making arguments.” He further analogized the presentation of the case to a puzzle and how each attorney might look at a piece differently. State: Here’s another thing I want to tell you. Lawyers aren’t always going to tell you what it is we’re thinking. Normally you tell what a lawyer is thinking by focusing on what they spend most of their time talking - 18 - 04-13-00081-CR about. Now, they have the right to sit there and not say a word. They don’t have to say a word during voir dire. They don’t have to give an opening statement. They don’t have to question witnesses. They don’t have to give a closing argument. Now, this is a trial, lawyers are always going to cut into a few witnesses and try to give you a good speech, like you know that just from watching TV. Here’s a rule, though, if they don’t say anything, we can’t say anything about the fact that they chose not to say anything. We can’t comment on their choice. The Defense immediately objected Defense: He’s obviously commenting on, you know, the defendant not testifying and is not presenting the case. Court: Restating the Court’s Charge, as I hear it, so respectfully overruled. A. Arguments of Parties Rodriguez argues the State was attempting to subvert the law prohibiting comments on a defendant’s failure to testify by telling the jury that they are not allowed to comment on a defendant’s failure to testify. The State counters the argument was an explanation of the court’s charge and the process being undertaken by the jury. Moreover, the State contends the comments would not necessarily be taken as a comment on the defendant’s failure to testify and that statement was a correct statement of law. B. Standard of Review We review a trial court’s ruling on an objection to improper jury argument for an abuse of discretion. Nzewi v. State, 359 S.W.3d 829, 841 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d); see Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010) (concluding no abuse of discretion by trial court in sustaining state’s objection to appellant’s jury argument). Such argument does not result in reversal “unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding.” Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. - 19 - 04-13-00081-CR 2000). “The remarks must have been a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial.” Id. C. Proper Jury Argument “The purpose of closing argument is to facilitate the jury’s proper analysis of the evidence presented at trial in order to arrive at a just and reasonable conclusion based solely on the evidence.” Harris v. State, 122 S.W.3d 871, 883 (Tex. App.—Fort Worth 2003, pet. ref’d); accord Zambrano v. State, No. 04-12-00853-CR, 2014 WL 852130, at *6 (Tex. App.—San Antonio 2014, no pet.). “[P]roper jury argument generally falls within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement.” Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008); Wesbrook, 29 S.W.3d at 115 (same); accord Coble v. State, 871 S.W.2d 192, 204 (Tex. Crim. App. 1993) (same). A prosecuting attorney is permitted in his argument to draw from the facts in evidence, all inferences which are reasonable, fair, and legitimate, but he may not use the jury argument to introduce before the jury, either directly or indirectly, evidence which is outside the record. Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990) (citing Jordan v. State, 646 S.W.2d 946, 948 (Tex. Crim. App. 1983)). D. Analysis “When addressing a complaint of improper comments on a defendant’s failure to testify in his own behalf, we review the language from the standpoint of the jury.” Staley v. State, 887 S.W.2d 885, 895 (Tex. Crim. App. 1994) (citing Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992)). Here, the record substantiates the trial court understood the State’s argument as an attempt to explain the court’s charge. “‘It is not sufficient that the language might be construed as an implied or indirect allusion to the defendant’s failure to testify.’” Madden v. State, 799 S.W.2d 683, 699 (Tex. Crim. App. - 20 - 04-13-00081-CR 1990) (emphasis added) (quoting Montoya v. State, 744 S.W.2d 15, 35 (Tex. Crim. App. 1987)). “A mere indirect or implied allusion to the accused’s failure to testify does not violate appellant’s rights.” Patrick v. State, 906 S.W.2d 481, 490–91 (Tex. Crim. App. 1995). Viewing the language from the standpoint of the jury, our review of the record does not support a conclusion that the jury would naturally and necessarily consider the prosecutor’s statement to be a comment on Rodriguez’s failure to testify or take the remark as manifestly intended to be a comment on his failure to testify. See Wesbrook, 29 S.W.3d at 115. Still further, the court’s charge expressly instructed the jury not to consider Rodriguez’s failure to testify or take it as a circumstance against him. Our law provides a defendant may testify in his own behalf if he elects to do so. This, however, is a right accorded a defendant; and, in the event he elects not to testify, that fact cannot be taken as a circumstance against him. We are further reminded “[t]he law generally presumes that instructions to disregard and other cautionary instructions will be duly obeyed by the jury.” Archie v. State, 340 S.W.3d 734, 741 (Tex. Crim. App. 2011) (citing Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987)). We find no evidence in the record to support a contention the jury did not follow this instruction. Accordingly, we overrule this issue. Finally, we turn to Rodriguez’s contention that he was denied effective assistance of counsel when his trial counsel (1) allowed the State’s outcry witness to improperly refresh her recollection and (2) failed to object to improper hearsay and bolstering testimony. INEFFECTIVE ASSISTANCE OF COUNSEL A. Standard of Review In order to establish that trial counsel rendered ineffective assistance, Rodriguez must “establish two components by a preponderance of the evidence: deficient performance of trial counsel and harm resulting from that deficiency that is sufficient to undermine the confidence in - 21 - 04-13-00081-CR the outcome of the trial.” Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)); accord Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012). To establish the first prong, deficient performance, Rodriguez must prove that his attorney’s performance “‘fell below an objective standard of reasonableness’ under prevailing professional norms and according to the necessity of the case.” Ex parte Moore, 395 S.W.3d at 157 (quoting Strickland, 466 U.S. at 687–88). To establish harm, Rodriguez “must demonstrate that he was prejudiced by his attorney’s performance or that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Id. at 158 (quoting Strickland, 466 U.S. at 694). “An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). “There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.” Id. Therefore, Rodriguez “‘must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’” Ex parte Moore, 395 S.W.3d at 157 (quoting Strickland, 466 U.S. at 689). “A substantial risk of failure accompanies an appellant’s claim of ineffective assistance of counsel on direct appeal.” Thompson, 9 S.W.3d at 813. “In the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.” Id. at 813–14. “[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). In the absence of a developed record, we will not “speculate as to the reasons why trial counsel acted as he did, rather [we] must presume that the actions were taken as part of a strategic plan for representing the client.” Rodriguez v. State, 336 S.W.3d 294, 302 (Tex. App.—San - 22 - 04-13-00081-CR Antonio 2010, pet. ref’d). Moreover, an “appellate court should not find deficient performance unless the challenged conduct was ‘so outrageous that no competent attorney would have engaged in it.’” Menefield, 363 S.W.3d at 593 (citing Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). We note that although Rodriguez filed a motion for new trial, he did not allege ineffective assistance of counsel or request a hearing on the same. Thus, the record does not contain any evidence of defense counsel’s reasoning or lack thereof. See Rodriguez, 336 S.W.3d at 302. B. Arguments of the Parties As evidence for his complaint of ineffective assistance of counsel, Rodriguez contends that Leilani did not have an independent recollection of the events about which she testified and that the record supports she was “utilizing some sort of recordation to help her in her testimony.” He contends her testifying with the notes prevented appropriate cross-examination and denied him his right to confrontation. Additionally, Rodriguez argues defense counsel allowed a “plethora of hearsay testimony . . . elicited with no objection.” Specifically, because Leilani was designated as the State’s outcry witness, the testimony of V.R.’s sisters, C.R. and A.R., was inadmissible hearsay. The State contends there is no evidence that Leilani actually used notes, much less used them to refresh her memory during her testimony. However, even if notes were used, Rule 612 of the Texas Rules of Evidence allows a witness to use a writing to refresh his or her memory. TEX. R. EVID. 612 (providing “adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness”). With regard to the hearsay allegations, the State argues the testimony of V.R.’s sisters was not offered for the truth of the matter asserted. - 23 - 04-13-00081-CR C. Analysis 1. Notes Used by Leilani Rodriguez contends Leilani’s use of notes during her testimony violated his right to confrontation. The Sixth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution guarantee the right of an accused in a criminal prosecution to be confronted with the witnesses against him. U.S. CONST. amend. VI; Crawford v. Washington, 541 U.S. 36, 59 (2004); Knox v. State, 31 S.W.3d 700, 702 (Tex. App.—Houston [1st Dist.] 2000, no pet.). The right to confront one’s accuser necessarily includes the right to cross-examination. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). As the State points out, the record does not support the presence of any notes. Cf. Pondexter v. State, 942 S.W.2d 577, 582 (Tex. Crim. App. 1996) (holding defendant entitled to notes used to refresh witness’s memory). Although there are references to confusion in the testimony and different dates provided, the record does not substantiate Rodriguez’s claims that Leilani was testifying with the use of notes. As such, we cannot conclude there was a violation of Rodriguez’s right to confront the witness. 2. Hearsay Rodriguez next argues Leilani was the only appropriate outcry witness and the testimony of V.R.’s sisters was, therefore, inadmissible hearsay. Article 38.072 provides an exception to the hearsay rule by allowing evidence of an “outcry statement” by a child complainant younger than fourteen years old. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a). When a defendant is charged with certain offenses against a child under the age of fourteen, article 38.072 allows into evidence the complainant’s out-of-court statement so long as that statement describes the alleged offense and is offered into evidence by the first - 24 - 04-13-00081-CR adult to whom the child made a statement about the offense. Id.; Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). By allowing V.R.’s sisters to testify, Rodriguez contends defense counsel allowed testimony whose sole purpose was to bolster and add credence to previous testimony. “Bolstering” is “any evidence the sole purpose of which is to convince the factfinder that a particular witness . . . is worthy of credit, without substantively contributing ‘to make the existence of [a] fact . . . more or less probable than it would be without the evidence.’” Cohn v. State, 849 S.W.2d 817, 819–20 (Tex. Crim. App. 1993) (second alteration in original) (citations omitted). There are, however, plausible reasons for trial counsel’s not objecting to hearsay. See Thompson, 9 S.W.3d at 814 (holding presumption of strategy not rebutted when record was “silent as to why appellant’s trial counsel failed to object to the State’s persistent attempts to elicit inadmissible hearsay”). Defense counsel may have strategically decided to let both of V.R.’s sisters testify. See Garcia v. State, 57 S.W.3d 436, 440–41 (Tex. Crim. App. 2001) (opining that where record did not contain express reasons for counsel’s conduct, court reviewed record, speculated what counsel’s strategy might have been, and determined whether under the circumstances it might have been a sound trial strategy). Defense counsel spent a great amount of effort pointing out the inconsistencies in their stories and supporting his contention the girls did not like Rodriguez because he was too strict. We, therefore, conclude that Rodriguez was unsuccessful in showing that counsel’s failure to object to the alleged hearsay statements deprived him of a fair trial. Perez v. State, 310 S.W.3d 890, 892–93 (Tex. Crim. App. 2010). D. Conclusion Upon review of the entire record, we conclude Rodriguez failed to affirmatively demonstrate his ineffective assistance of counsel claims. See Ex parte Moore, 395 S.W.3d at 157; Freeman v. State, 125 S.W.3d 505, 506–07 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813. - 25 - 04-13-00081-CR The record reflects that counsel filed pretrial motions and successfully obtained continuances to allow him to prepare for Rodriguez’s trial. At trial, counsel conducted extensive cross- examination of all the witnesses. He moved for a directed verdict and successfully reduced the number of counts presented to the jury. Additionally, trial counsel made articulate and impassioned arguments before the jury. The fact that other counsel may have tried the case differently, does not show ineffective assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To the contrary, we are bound by the strong presumption that defense counsel’s conduct was reasonable and professional and could be considered sound trial strategy. Id. Rodriguez’s claims are not firmly founded in the record and we will not engage in retrospective speculation. Id.; Jackson, 877 S.W.2d at 771 (holding appellate court will not indulging in speculation concerning trial counsel’s decision- making process); Ex parte Moore, 395 S.W.3d at 157. We conclude that Rodriguez failed to show counsel’s performance was deficient; therefore, we need not address prejudice. See Garcia, 57 S.W.3d at 440. Accordingly, we overrule Rodriguez’s issues related to ineffective assistance of counsel. CONCLUSION Having overruled each of Rodriguez’s issues raised on appeal, we affirm the trial court’s judgment. Patricia O. Alvarez, Justice Publish - 26 -

⁵ Harm Analysis Egregious harm “must be based on a finding of actual rather than theoretical harm.” Id. at 777 (citing Ngo, 175 S.W.3d at 750); Warner, 245 S.W.3d at 464. To obtain a reversal, the record must show the error “affected ‘the very basis of the case,’ ‘deprive[d] the defendant of a valuable right,’ or ‘vitally affect[ed] a defensive theory.’” Cosio, 353 S.W.3d at 777 (alterations in original) (quoting Almanza, 686 S.W.2d at 171). In determining whether egregious harm is shown, we look at “1) the charge itself; 2) the state of the evidence including contested issues and the weight of the probative evidence; 3) arguments of counsel; and 4) any other relevant information revealed - 12 - 04-13-00081-CR by the record of the trial as a whole.” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); accord Cosio, 353 S.W.3d at 777. Rodriguez contends the harm flows from the possibility that the jurors were not unanimous as to which act constituted the charged offense. But the charge included a general instruction informing the jury that its verdict had to be unanimous. Moreover, neither the attorneys nor the trial court made any statements leading the jury to believe it did not have to be unanimous as to the specific criminal conduct associated with each verdict. Compare Ngo, 175 S.W.3d at 750–52 (relating that prosecutor and judge both misstated law concerning unanimity on multiple occasions during trial), with Cosio, 353 S.W.3d at 777 (observing that the record does not support misstatements of the law before the jury). A review of the entire record does not suggest any confusion as to what conduct the State alleged was unlawful. Although V.R. testified that Rodriguez’s sexual contact with her happened “a lot,” she described in great detail two incidents of aggravated sexual assault at the store and incidents of indecency at the apartment. Importantly, Rodriguez’s defense, like that in Cosio, was not that he did not commit these specific alleged incidents, but that he did not commit any of the alleged acts. Cosio, 353 S.W.3d at 777–78. This was evident in Rodriguez’s focus on the lack of evidence to substantiate the State’s charges. During closing argument, defense counsel directed the jury to V.R.’s “outrageous claims” and the lack of evidence linking Rodriguez to any of the allegations. He also highlighted the difference between V.R.’s demeanor with the officers and her demeanor before the jury. Rodriguez claimed V.R. loved Rodriguez, “she had a crush on him,” and V.R. was upset because Rodriguez “was in love with her mom, not her.” The jury was not persuaded by his argument and clearly found otherwise. Id. Additionally, the record does not substantiate a significant question was raised regarding unanimity. To the contrary, the evidence supports the jury unanimously agreed that Rodriguez - 13 - 04-13-00081-CR committed the alleged conduct in each of the five counts contained within the court’s charge. This determination is further supported by the fact that each juror signed each verdict form affirming their vote that Rodriguez was guilty of the offense as charged in the corresponding count of the indictment. Thus, even if the submitted charge was in error, we cannot conclude Rodriguez suffered egregious harm or was denied a fair and impartial trial. Id. at 777; Almanza, 686 S.W.2d at 171. We overrule Rodriguez’s issue as to the court’s failure to provide a unanimity instruction. We, therefore, turn to the alleged double jeopardy violation contained within the court’s charge. B. Double Jeopardy Rodriguez next contends that because Count III is a lesser included offense of Count I, and Count V is a lesser included offense of Count II, the trial court should have vacated Counts III and V. “[B]ecause of the fundamental nature of double jeopardy protections, a double jeopardy claim may be raised for the first time on appeal. . . .” Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). 1. Courts’ Application of Double Jeopardy to Allegations of Aggravated Sexual Assault and Indecency with a Child The Fifth Amendment guarantee against double jeopardy protects a defendant against multiple punishments for the same offense. Hutchins v. State, 992 S.W.3d 629, 631 (Tex. App.— Austin 1999, pet. ref’d, untimely filed) (citing Illinois v. Vitale, 447 U.S. 410, 415 (1980)). When the same act or transaction violates two different penal statutes, the two offenses are the same for double jeopardy purposes if one of the offenses contains all the elements of the other; they are not the same if each offense has a unique element. See Blockburger v. United States, 284 U.S. 299, 304 (1932). Absent a clear indication of contrary legislative intent, it is presumed that the - 14 - 04-13-00081-CR legislature did not intend to authorize multiple punishments for two offenses that are the same under the Blockburger test. See Whalen v. United States, 445 U.S. 684, 691–92 (1980). Rodriguez argues his indecency conviction and his aggravated sexual assault by contact are necessarily lesser included offenses of aggravated sexual assault. It has long been the law in Texas that “[v]arious acts of sexual abuse committed over a period of time do not comprise a single offense; rather, a person who commits ‘multiple discrete assaults against the same victim’ is liable for separate prosecution and punishment for each separate act of abuse.” De Los Santos, 219 S.W.3d at 77 (quoting Vernon v. State, 841 S.W.2d 407, 410 (Tex. Crim. App. 1992)); accord Huffman v. State, 267 S.W.3d 902, 906–07 (Tex. Crim. App. 2008). The question arises when only one sexual offense is alleged to have occurred. In Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998), the defendant argued that because the State only alleged the occurrence of one sexual offense on the day in question, he could not be convicted of both indecency with a child and aggravated sexual assault. The Court of Criminal Appeals agreed concluding that the defendant may not be convicted of two offenses when the evidence shows only one offense was committed. Id. Instead, the court concluded the evidence actually supported the defendant “committed one act which could be subject to two different interpretations.” Id. In such a case, “[e]ither the jury could conclude penetration actually occurred and convicted appellant of aggravated sexual assault, or they could conclude only contact occurred with intent to arouse and gratify sexual desire and convicted appellant of the lesser offense of indecency with a child.” Id. Our focus is therefore “whether the evidence in this case justified the trial court in submitting instructions that would permit the jury to convict and sentence appellant both for committing aggravated sexual assault and for committing indecency with a child” on a particular date. Id. at 907 (emphasis added). - 15 - 04-13-00081-CR We must, therefore, determine if the evidence shows Counts I and III support the commission of one offense or two offenses. Likewise, we must make the same determination as to Counts II and V. 2. Convicted Offenses The jury convicted Rodriguez of the three counts of aggravated sexual assault of a child alleged to have occurred on or about December 15, 2008. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (“causes the penetration of the anus or sexual organ of a child by any means”); id. § 22.021(a)(1)(B)(iii) (“causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor”). The jury also convicted Rodriguez of two counts of indecency with a child alleged to have occurred on the same date. TEX. PENAL CODE ANN. § 21.11(a)(1) (“engages in sexual contact with the child or causes the child to engage in sexual contact”). “‘It is well settled that the “on or about” language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period.’” Sanchez v. State, 400 S.W.3d 595, 600 (Tex. Crim. App. 2013) (quoting Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997)). Sexual contact that occurs in the course of an act of sexual penetration is subsumed in the completed act. Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004). Moreover, a conviction for both the completed act of penetration and for sexual contact or exposure incident to the penetration constitutes double jeopardy. Id. The question this court must answer is whether Rodriguez’s convictions for indecency with a child and aggravated sexual assault by contact was “subsumed” in the completed act of aggravated sexual assault by penetration. See Bottenfield v. - 16 - 04-13-00081-CR State, 77 S.W.3d 349, 358 (Tex. App.—Fort Worth 2002, pet. ref’d) (concluding acts may be separate and distinct for purposes of double jeopardy). 3. Analysis As previously set forth, V.R. testified Rodriguez sexually assaulted her on several different occasions, both at their store and at their apartment. The facts presented at trial included specific details pertaining to two incidents at the store and two incidents at the apartment. a. Count III is a not lesser included offense of Count I In Count I, the jury convicted Rodriguez of intentionally or knowingly causing the penetration of the sexual organ of V.R. with his own sexual organ; in Count III, the jury convicted Rodriguez of contacting the sexual organ of V.R. with his sexual organ. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (iii). As discussed above, V.R. testified that the first time Rodriguez sexually assaulted her, he did not penetrate her. According to V.R., Rodriguez touched her vagina with his penis, but did not penetrate. She testified, however, the second time he sexually assaulted her, he gave her alcohol to relax her and then penetrated her vagina with his penis. b. Count V is a not lesser included offense of Count II In Count II, the jury convicted Rodriguez of intentionally and knowingly causing the penetration of V.R.’s sexual organ with his finger and in Count V, the jury convicted Rodriguez of intentionally and knowingly engaging in sexual contact with V.R. by touching her genitals. See id. §§ 22.021(a)(1)(B)(i), 21.11(a)(1). V.R. testified that during the second assault, Rodriguez began by giving her alcohol, penetrated her vagina with his fingers, and then progressed to penetrate her vagina with his penis. She further testified, that in 2006, Rodriguez would come into her bedroom, lay down beside her, and touch her vagina. These two allegations were neither part of the same incident, nor occurred at the same location. - 17 - 04-13-00081-CR