Full Opinion

Opinion issued October 27, 2026 In The Court of Appeals For The First District of Texas ———————————— NO. 01-24-00938-CR ——————————— LARRY PERRYMAN, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 209th District Court Harris County, Texas Trial Court Case No. 1760867 MEMORANDUM OPINION A jury found Larry Perryman, Jr. guilty of the crime of continuous sexual abuse of a child and sentenced him to serve 85 years in prison. He appeals. We affirm. BACKGROUND A grand jury indicted Perryman for the crime of continuous sexual abuse of a child, alleging that during a specified three-year period of time he committed at least two acts of sexual abuse against his stepdaughter A.A., who was younger than 14 years of age during this timeframe, including two acts of aggravated sexual assault. Perryman pled “not guilty,” and the charge was then tried to a jury. At trial, there were several witnesses during the guilt–innocence phase. These included A.A., who testified that Perryman forced her to give him oral sex on many occasions over the course of several years. Also testifying were two outcry witnesses: A.A.’s grandmother and Caitlin Howell, a forensic interviewer with the Harris County Children’s Assessment Center, both of whom related to the jury various disclosures A.A. made to them about the sexual abuse she suffered at the hands of Perryman. And Perryman took the stand in his own defense. In his testimony, he unequivocally proclaimed his innocence, denying all wrongdoing. The jury sided with A.A. and found Perryman guilty as charged in the indictment, and the jury then heard evidence and argument concerning punishment. During the punishment phase, a single witness briefly took the stand, an officer with the Houston Police Department who had arrested Perryman for burglary. The State also introduced into evidence multiple judgments for prior convictions. The jury sentenced Perryman to 85 years in prison. Perryman appeals. 2 DISCUSSION I. The trial court did not reversibly err in allowing both Howell and A.A.’s grandmother to testify as outcry witnesses, as any error was harmless. Perryman argues that the trial court erred in allowing Howell to testify as an outcry witness in addition to A.A.’s grandmother. See TEX. CODE CRIM. PROC. art. 38.072 (allowing first person 18 years of age or older to whom child discloses sexual offense to testify about child’s disclosure despite hearsay rule). Assuming for argument’s sake that Perryman is correct,1 we hold that any error is harmless because the same or substantially similar sexual abuse about which Howell testified was admitted into evidence without objection through A.A.’s own trial testimony too. Errors in the admission of outcry testimony are nonconstitutional in nature. Lamerand v. State, 540 S.W.3d 252, 259 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d). Thus, unless this error affects Perryman’s substantial rights, we must disregard it. TEX. R. APP. P. 44.2(b). Our court has held that the erroneous admission 1 Perryman was tried in 2024. To the extent Perryman contends there could only be a single outcry witness under the version of article 38.072 then in effect, caselaw suggests otherwise. Both the Court of Criminal Appeals and our court have indicated that more than one witness may testify as an outcry witness, so long as each one testifies about different events. Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011); Guzman v. State, 591 S.W.3d 713, 722 (Tex. App.—Houston [1st Dist.] 2019, no pet.). And other courts have actually held that more than one outcry witness may testify under such circumstances. E.g., Polk v. State, 367 S.W.3d 449, 453 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). As we state above, however, we assume without deciding that Perryman’s contrary contention is correct for purposes of appeal. We note that the legislature has since amended article 38.072; it now expressly provides that a trial court shall admit the testimony of more than one outcry witness when each one “describes different conduct by the defendant.” TEX. CODE CRIM. PROC. art. 38.072, § 2(a-1)(2). 3 of outcry testimony is harmless and therefore does not affect substantial rights when the same or substantially similar evidence is admitted at trial without objection. Lamerand, 540 S.W.3d at 259–60; Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Our sister court is on the same page. Lewis v. State, 693 S.W.3d 453, 468 (Tex. App.—Houston [14th Dist.] 2023, pet. ref’d). Howell testified about the disclosures A.A. made during the forensic interview. According to Howell, A.A. related that Perryman forced her to give him oral sex multiple times when she was between the ages of 8 and 11 years old. Initially, when A.A. was younger, Perryman would ejaculate in a towel. Later, as she became older, he would ejaculate in her mouth, and she would spit it out in the sink. A.A. could not say exactly how many times Perryman abused her in this way, but she estimated that it may have happened weekly. She also described some other forms of abuse, including Perryman touching her vagina with his hand or fingers. On the stand, A.A. described the same assaults in the same basic terms. She testified that Perryman forced her to give him oral sex repeatedly for years. A.A. recalled that this sexual abuse began when she was 8 or 9 years old, and she indicated that it continued until she was 10 or 11 years old. As in the prior forensic interview, A.A. stated that Perryman eventually began ejaculating in her mouth during these assaults, and she said that she spit his ejaculate out in the sink. When asked how 4 many times he forced her to give him oral sex, she said it happened “a lot.” A.A. also similarly testified about some other forms of sexual abuse, including Perryman touching her vagina under her clothes with his hands on one or two occasions. To be sure, Howell’s and A.A.’s testimonies do not perfectly align in every detail. But this is not surprising: A.A. was 11 years old during the forensic interview and 15 years old when she testified at trial. Even so, A.A.’s trial testimony was the same or substantially similar to Howell’s testimony in most respects regarding the alleged assaults, and A.A.’s testimony was admitted without objection. The admission of Howell’s outcry testimony was therefore harmless even if we assume its admission was erroneous. See Lamerand, 540 S.W.3d at 259–60. Perryman acknowledges the general rule that the admission of the same or substantially similar evidence renders the erroneous admission of outcry testimony harmless. He contends it does not apply because A.A.’s trial testimony was “not completely duplicative of Howell’s.” But complete duplication is not the standard. See id. (victim and outcry witness both testified that defendant digitally penetrated victim’s vagina multiple times during summer, and general sameness or similarity of their testimony made harmless any error in admission of outcry witness’s). Perryman also asserts that Howell’s expertise sets this case apart from the norm, arguing that her expertise in interviewing children made her testimony about A.A.’s disclosure of sexual abuse unusually influential and thus especially harmful. 5 While expert testimony can pose this peril, we disagree that Howell’s did so here. Howell testified that as a forensic interviewer it is not her role to determine whether the child she is interviewing has been sexually abused. According to her, the purpose of a forensic interview is not to decide whether the child is being truthful. Howell stated that there is no way for her to say what actually happened in this case. Finally, Perryman says that expertise or no, Howell’s testimony served only to improperly bolster A.A.’s credibility by echoing her account of sexual abuse. See Rivas v. State, 275 S.W.3d 880, 886 (Tex. Crim. App. 2009) (“bolstering” is ambiguous objection with roots in several evidentiary concepts; “bolstering” objections may seek exclusion of evidence that is offered solely to convince factfinder that particular witness is credible or prevention of use of prior consistent statements of witness for sole purpose of enhancing that witness’s credibility). To the extent Perryman asserts “bolstering” as an independent basis rendering certain kinds of evidence inadmissible regardless of whether it constitutes hearsay, he does not point us to anywhere in the record where he made a “bolstering” objection to Howell’s testimony. Perryman’s argument for exclusion in the trial court was based solely on article 38.072 of the Texas Code of Criminal Procedure, 6 which excepts outcry statements—as defined by the statute—from the hearsay rule.2 See Lamerand, 540 S.W.3d at 257 (article 38.072 creates hearsay exception). Having argued only about whether Howell’s testimony was inadmissible hearsay, Perryman has not preserved error about “bolstering” as an independent basis for exclusion. In any event, even if Perryman had preserved this “bolstering” objection, evidence that improperly reinforces a witness’s credibility remains subject to harmless-error analysis. See Rousseau v. State, 855 S.W.2d 666, 681 (Tex. Crim. App. 1993) (admission of “bolstering” evidence may still be harmless error). Here, Howell expressly disclaimed that she could evaluate A.A.’s credibility, and the jury was able to evaluate A.A.’s veracity firsthand when she testified at trial.3 On this 2 Whether “bolstering” even remains a valid objection under the Texas Rules of Evidence has been in doubt for some time. See Prestiano v. State, 581 S.W.3d 935, 945 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d). Given that Perryman did not make this objection below, we need not wade into that morass. See TEX. R. APP. P. 47.1. 3 As we have noted, Howell’s testimony and A.A.’s testimony was substantially similar in most respects concerning the assaults, but their testimony was not perfectly aligned in every way. For example, A.A. recounted during her forensic interview an incident in which Perryman touched her vagina with his fingers during a car ride. But at trial, A.A. testified that he only rubbed her thigh on this occasion, and she could not recall having told Howell otherwise. Inconsistencies like these highlight how the kind of ostensibly repetitive or cumulative testimony that Perryman complains about on appeal potentially may have the opposite effect from bolstering the child’s credibility. Inconsistencies like this one lend further support to our conclusion that Perryman was not harmed by the admission of Howell’s outcry testimony because they effectively presented the jury with evidentiary conflicts to resolve—potentially in Perryman’s favor—that would not otherwise exist. See Buentello v. State, 512 S.W.3d 508, 519 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (inconsistency between child’s outcry and trial testimony poses credibility issue, goes to weight of evidence). 7 record, any bolstering of A.A.’s credibility was harmless. See Rosales v. State, 548 S.W.3d 796, 809 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d) (rejecting argument that outcry testimony ostensibly admitted in error was harmful because it bolstered child’s testimony, as jury had opportunity to assess child’s credibility). We overrule Perryman’s first issue. II. Perryman has not preserved his complaint about the trial court’s failure to instruct the jury on aggravated sexual assault as a lesser-included offense, and the trial court did not err by failing to so instruct the jury. Perryman argues that the trial court erred in refusing his request to include an instruction in the jury charge on aggravated sexual assault as a lesser-included offense of continuous sexual abuse of a child. We reject his argument for two reasons: Perryman didn’t preserve it and, had he done so, his argument is meritless. A. Perryman did not preserve the complaint he makes on appeal. An appellant may complain of a trial court’s refusal to include a lesser- included offense instruction in the charge only if he preserved error. Williams v. State, 662 S.W.3d 452, 461 (Tex. Crim. App. 2021). To do so, he must request a particular lesser-included offense instruction and set out on the record “the specific evidence that supports a rational basis for rejecting the greater offense but supporting the lesser offense,” unless “such specific evidence is manifest.” Id. at 462. In the trial court, Perryman requested a particular lesser-included offense instruction—specifically, one for aggravated sexual assault. He did not argue then 8 and does not argue now that the specific evidence supporting the instruction was manifest. Nor was it. Perryman testified during the guilt–innocence phase, and he unequivocally denied sexually abusing A.A. When, as here, the accused denies all wrongdoing, specific evidence of a lesser-included offense generally is not manifest because an unequivocal denial of guilt constitutes an all-or-nothing defense strategy, placing the jury in the position of acquitting or convicting on the charged offense. See Olvera v. State, 694 S.W.3d 843, 847 (Tex. App.—Houston [14th Dist.] 2024, no pet.) (specific evidence supporting jury instruction for lesser-included offense of indecency with child by contact was not manifest because appellant testified he never sexually assaulted child or touched child in inappropriate manner). Perryman brought a single evidentiary conflict to the trial court’s attention: A.A. testified that Perryman did not touch her vagina during a car ride that was discussed at trial, whereas Howell testified that A.A. had told her during the forensic interview that Perryman did touch her vagina during this car ride. Based on this conflict, Perryman argued that the jury could find that this instance of sexual abuse did not take place and could disbelieve that others had taken place too. As a result, Perryman continued, the jury “could possibly believe that one event happened and no other events happened,” constituting a single aggravated sexual assault. 9 But on appeal, Perryman does not rely on this same evidentiary conflict in arguing that the trial court erred in refusing his request for a lesser-included offense instruction. He instead argues that he was entitled to the instruction because: ● the evidence about where the sexual assaults took place is inconsistent; ● the evidence about the duration of the sexual abuse is inconsistent; and ● the evidence as to the exact number of sexual assaults is inconsistent. Based on these inconsistencies, Perryman argues the jury could have reasonably found either that he committed one aggravated sexual assault, but not more than one, or that he committed more than one assault but did not necessarily do so over a span of more than 30 days. Either way, he says, the jury could have found him guilty of aggravated sexual assault, rather than continuous sexual abuse of a child. Compare TEX. PENAL CODE § 21.02(b)(1), (b)(2)(A), (c)(4) (continuous sexual abuse of child), with id. § 22.021(a)(1)(B)(ii), (a)(2)(B) (aggravated sexual assault of child). Perryman’s appellate complaint fails the preservation requirement. Because an appellant must set out on the trial record the specific evidence that entitles him to an instruction on a lesser-included offense to preserve error, he cannot then rely on different evidence as support for the instruction on appeal. See Williams, 662 S.W.3d at 462 (requiring identification of this specific evidence at trial); see also Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (“Whether a party’s particular complaint is preserved depends on whether the complaint on appeal comports with the complaint made at trial.”). To hold otherwise would effectively eliminate the 10 requirement to set out on the trial record the specific evidence warranting the lesser- included offense instruction. Perryman therefore did not preserve this complaint.4 B. Preserved or not, Perryman’s complaint is without merit. To be entitled to an instruction on a lesser-included offense, two things must be true. First, the elements of the lesser offense must be provable by proof of the same or less than all the facts required to prove the charged offense. Green v. State, 713 S.W.3d 865, 875 (Tex. Crim. App. 2025). Second, there must be evidence in the record from which the jury could rationally find that if the defendant is guilty, he is only guilty of the lesser-included offense. Id. To satisfy this second requirement, the evidence, if credited by the jury, must both exclude guilt of the charged offense and show that the defendant is guilty exclusively of the lesser one. Id. The jury’s ability to disbelieve evidence of the charged offense does not satisfy this second requirement because disbelief of evidence simply is not evidence. Id. at 876. The specific evidence that Perryman relied on in the trial court and the specific evidence he relies on in this court are different but they have one thing in common: 4 See also Gusman v. State, No. 01-08-00621-CR, 2010 WL 2991210, at *6–8 (Tex. App.—Houston [1st Dist.] July 29, 2010, pet. ref’d) (mem. op., not designated for publication) (error not preserved as to trial court’s refusal to instruct jury on lesser- included offense of murder because appellant relied on different evidence at trial than on appeal such that appellate complaint did not comport with complaint made below); Newman v. State, No. 14-05-01125-CR, 2007 WL 1437624, at *4 (Tex. App.—Houston [14th Dist.] May 17, 2007, pet. ref’d) (mem. op., not designated for publication) (same holding as to requested instruction on lesser-included offense of burglary of building). 11 at trial and on appeal, he has invoked evidentiary inconsistencies and the jury’s ability to disbelieve at least some of the evidence. But the jury’s ability to disbelieve some of the evidence is not evidence that will support the submission of a lesser- included offense. Id.; see also Chavez v. State, 666 S.W.3d 772, 777 (Tex. Crim. App. 2023) (court of appeals erred to extent it relied on jury’s ability to disbelieve evidence in concluding that appellant was entitled to lesser-included offense instruction); Yonko v. State, 702 S.W.3d 844, 856 (Tex. App.—Houston [1st Dist.] 2024, pet. ref’d) (appellant was not entitled to instruction on lesser-included offense based on jury’s ability to disbelieve some evidence while crediting other evidence). Therefore, Perryman was not entitled to the lesser-included offense instruction. We overrule Perryman’s second issue. III. The trial court did not err in denying Perryman’s motion for new trial. Perryman argues that the trial court erred in refusing to admit and consider several affidavits he submitted in support of his motion for new trial, in which he asserted that his lawyer was ineffective in failing to call four witnesses he says were available to provide mitigating evidence during the punishment phase of his trial. Had the trial court considered these affidavits, Perryman says, it would have had no choice but to grant him a new trial based on ineffective assistance of counsel. The record does not bear out Perryman’s assertion that the trial court did not consider these affidavits. At the beginning of the hearing, the State objected to 12 Perryman’s new-trial affidavits as untimely. The trial court initially sustained the objection, but it then followed up by stating it was nonetheless “prepared to go forward and consider the affidavits” in case its ruling as to their untimeliness was mistaken. The hearing went forward, and Perryman argued that his trial lawyer was ineffective during the punishment phase in failing to call mitigation witnesses. In support of his argument, Perryman relied on the affidavits he now complains were excluded; these were made by four witnesses who averred they were available to testify but were not called by Perryman’s lawyer. At the conclusion of the hearing, the trial court reiterated that it had in fact “considered those affidavits” and that they did not change the court’s decision to deny Perryman’s motion for a new trial. In any case, we reject Perryman’s contention that in the face of these four affidavits the trial court had no choice but to grant him a new trial based on ineffective assistance of counsel. Perryman’s trial lawyer also filed an affidavit, in which he explained why he did not call any witnesses during the punishment phase. The trial court expressly found trial counsel’s affidavit to be credible. On this record, the trial court did not err in denying Perryman’s motion for new trial. See Odelugo v. State, 443 S.W.3d 131, 137 (Tex. Crim. App. 2014) (trial court sitting as factfinder in context of motion for new trial is sole judge of credibility, whether testimony is presented live or by affidavit, and may disbelieve assertions made in support of 13 ineffective-assistance claim, so long as basis for disbelief is grounded in at least one reasonable view of record, and may do so even if State offers no evidence). In so holding, we note that trial counsel averred that he asked Perryman if there were witnesses he wanted to call for character purposes, and Perryman only identified his mother, who is just one of the four witnesses Perryman maintains his lawyer should have put on the stand during the punishment phase. Counsel indicates in his affidavit that Perryman did not name the other three as potential witnesses. The trial court was free to credit these representations. See id. And that alone disposes of any ineffective-assistance claim premised on the failure to call witnesses other than Perryman’s mother. See Pina v. State, 715 S.W.3d 856, 866–67 (Tex. App.—Houston [14th Dist.] 2025, pet. ref’d) (no ineffective assistance when, viewing evidence in light most favorable to trial court’s new-trial ruling, defense counsel asked defendant to identify mitigation witnesses and defendant did not). As to Perryman’s mother, we note that in her short affidavit she stated that she would have testified that her “son’s baby mother lied by making these allegations up” due to an income-tax dispute between the “baby mother” and Perryman. Perryman’s mother said it was a miscarriage of justice that he was even charged, and that she would have testified that her son is “good” and “is a family man.” Defense counsel does not render ineffective assistance by failing to call a witness to the stand when, in his reasonable professional judgment, she is potentially 14 as dangerous to the defendant’s cause as she might be helpful. Damian v. State, 881 S.W.2d 102, 110 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Perryman’s lawyer said in his affidavit that he thought presenting evidence of innocence in the punishment phase would “would hurt far more than it would help” because it is not “an effective punishment strategy to tell a jury” that it “got it wrong on guilt.” His lawyer also averred “there would be no to very little benefit to her character testimony.” He explained that if anyone testified to Perryman’s good character, it would have given the prosecution “another chance to draw attention to the fact that he had been convicted of theft, burglary of a motor vehicle, driving a stolen car twice, and had several burglary of a building cases pending” as well as a conviction for “assaulting a family member” and a judgment terminating his parental rights. Perhaps another lawyer would have made a different choice. But on this record the trial court, as factfinder, was free to credit counsel’s view that calling Perryman’s mother as a mitigation witness would have been counterproductive. See Odelugo, 443 S.W.3d at 137 (trial court may disbelieve assertions made in support of ineffective-assistance claim so long as reasonable view of record allows it); see also Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013) (court “must not second-guess informed strategic or tactical decisions made by trial counsel in the midst of trial” when reviewing claims of ineffective assistance of counsel); Ex parte 15 Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012) (that another lawyer might have pursued a different strategy at trial does not show ineffective assistance). We overrule Perryman’s third issue. CONCLUSION We affirm the trial court’s judgment. David Gunn Justice Panel consists of Justices Rivas-Molloy, Guerra, and Gunn. Do not publish. TEX. R. APP. P. 47.2(b). 16