Full Opinion

NUMBER 13-26-00186-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG RANDY RAY GUTIERREZ, Appellant, v. THE STATE OF TEXAS, Appellee. ON APPEAL FROM THE 156TH DISTRICT COURT OF BEE COUNTY, TEXAS MEMORANDUM OPINION Before Justices Peña, West, and Fonseca Memorandum Opinion by Justice Fonseca A Bee County jury convicted appellant Randy Ray Gutierrez of two counts of aggravated sexual assault of a child, a first-degree felony, and the trial court sentenced him to concurrent terms of seventy-five years’ imprisonment. See TEX. PENAL CODE § 22.021(a)(2)(B), (e). On appeal, Gutierrez contends by one issue that his counsel provided ineffective assistance by failing to object to the prosecutor’s allegedly improper closing argument at the punishment phase. We affirm. I. BACKGROUND A. Indictment and 2022 Trial In 2020, Gutierrez was indicted on two counts of super-aggravated sexual assault of a child (Counts 1 and 2) and one count of indecency with a child by contact (Count 3). See id. §§ 21.11(a)(1), 22.021(a)(2)(B), (f); see also Tucker v. State, No. PD-1059-24, 2026 WL 387436, at *1 (Tex. Crim. App. Feb. 12, 2026) (referring to an offense under section 22.021(f) as “super-aggravated sexual assault of a child”). Counts 1 and 2 alleged that Gutierrez intentionally and knowingly caused K.R.’s sexual organ to contact his sexual organ and intentionally and knowingly caused K.R.’s mouth to contact his sexual organ, respectively. 1 See TEX. PENAL CODE § 22.021(a)(1)(B)(iii), (v). For purposes of increasing the mandatory minimum punishment, Counts 1 and 2 also both alleged that Gutierrez “did then and there by acts or words threaten to cause, or place, [K.R.] in fear that kidnapping would be imminently inflicted on [K.R.’s mother] Kelly Cruz, and the acts or words occurred in [K.R.]’s presence.” See id. § 22.021(f) (mandating a minimum twenty-five-year prison term for aggravated sexual assault if (1) the victim of the offense is younger than fourteen years of age at the time the offense is committed, and (2) “the actor commits the offense in a manner described by Subsection (a)(2)(A)”); id. § 22.021(a)(2)(A) (providing the offense of sexual assault is aggravated if the actor “(ii) . . . by acts or words places the victim in fear that . . . death, serious bodily injury, or 1 Counts 1 and 2 were alleged to have occurred on or about October 1, 2018. Count 3 was alleged to have occurred on or about July 4, 2018. 2 kidnapping will be imminently inflicted on any person” or “(iii) . . . by acts or words occurring in the presence of the victim threatens to cause . . . the death, serious bodily injury, or kidnapping of any person”). Trial evidence established that K.R. was born in 2007, and Gutierrez began dating Cruz in 2018. Subsequently, K.R. moved in with Gutierrez and Cruz at a residence owned by Gutierrez’s parents. Gutierrez would supply Cruz with crystal meth and the couple would routinely use the drug together in the residence. K.R. testified that on July 4, 2018, Gutierrez and Cruz got into an argument, and Gutierrez tied Cruz up and placed her in the bathroom away from K.R. According to K.R., Gutierrez then proceeded to touch her vagina, buttocks, and chest over her clothes. K.R. further testified that later in 2018, Gutierrez took off her clothes, tried to insert his penis into her vagina, and inserted his penis into her mouth. K.R. testified that, unlike the July 4 incident, she did not know where her mother was at the time of this second instance of abuse. She stated she was “worried” about Cruz because she “didn’t know where [Cruz] was.” D.R., K.R.’s maternal aunt, testified that K.R. “started telling me that [Gutierrez] would touch her places that she wouldn’t want to be touched to a point where he would drug her, she woke up, and he tied her to the bed and—and he had his hands on her.” D.R. further testified that K.R. told her that Gutierrez had touched her on her chest and private parts. When asked by the State if K.R. had told her about any allegations that went beyond touching, she responded that K.R. “never mentioned” that to her. D.R. testified that K.R. told her about Cruz being tied up in the restroom, but K.R. did not provide any dates or details regarding that allegation. 3 The jury returned guilty verdicts on all counts, and, after a punishment hearing, the trial court assessed punishment at seventy-five years’ imprisonment for Counts 1 and 2 and twenty years’ imprisonment for Count 3. The trial court rendered judgment on the verdicts and ordered the sentences to run concurrently. B. Appellate History In his first appeal before this Court, Gutierrez argued in part that the record did not support conviction for super-aggravated sexual assault of a child because there was no evidence that K.R. feared kidnapping would be imminently inflicted on Cruz during the assaults. See TEX. PENAL CODE § 22.021(a)(2)(A)(ii), (f). We found that Counts 1 and 2 “failed to properly allege the commission of super[-]aggravat[ed] sexual assault of a child.” Gutierrez v. State, No. 13-22-00248-CR, 2024 WL 973126, at *9 (Tex. App.—Corpus Christi–Edinburg Mar. 7, 2024) (mem. op., not designated for publication) (concluding “[t]he indictment’s failure to accurately track the language from either subsection (a)(2)(A)(ii) or (iii) means that neither was alleged at all”), rev’d and remanded, 710 S.W.3d 804 (Tex. Crim. App. 2025). We noted, however, that Counts 1 and 2 “facially charged the complete offense of aggravated sexual assault of a child” without the super- aggravating factors, and appellant did not dispute that the evidence supported conviction for those offenses. Gutierrez, 2024 WL 973126, at *9. Accordingly, we remanded with instructions (1) to reform the judgment to reflect conviction on two counts of ordinary aggravated sexual assault with a sentencing range of five to ninety-nine years’ or life imprisonment, and (2) to conduct a new punishment hearing. Id. at *9–10 (noting that “[w]here an indictment facially charges a complete offense, the State is held to the offense charged in the indictment, regardless of whether the State intended to charge that 4 offense”); see TEX. PENAL CODE § 12.32(a) (setting forth punishment range for first-degree felony). 2 On petition for discretionary review, the Texas Court of Criminal Appeals disagreed, concluding the “indictment sufficiently alleged, albeit with grammatical errors, a super[-]aggravated sexual assault of a child offense, which alleged, as a[ super-]aggravating factor, an allegation of conduct under subsection (a)(2)(A)(ii).” 710 S.W.3d at 812. The Court reversed our judgment and remanded to us to determine whether the evidence was sufficient to support a finding of guilt under that subsection. See id. at 813. We concluded it was not. Gutierrez v. State, 719 S.W.3d 432, 439 (Tex. App.—Corpus Christi–Edinburg 2025, no pet.) (noting “no objective facts were presented that would naturally cause a victim to be in fear that another person would imminently become the victim of kidnapping”). Accordingly, we again remanded to the trial court with instructions (1) to reform the judgment to reflect conviction on two counts of ordinary aggravated sexual assault with a sentencing range of five to ninety-nine years’ or life imprisonment, and (2) to conduct a new punishment hearing. See id. at 439. C. New Punishment Hearing At the beginning of the new punishment hearing on January 22, 2026, transcripts of K.R.’s and D.R.’s testimony from the 2022 guilt-innocence phase were entered into evidence. The State then called K.R., who was then nineteen years old, as a witness. She testified she did not remember a lot of what happened with Gutierrez; indeed, she agreed she has “worked hard to forget it.” When asked how she was affected by “the stuff 2 We affirmed the conviction on Count 3. Gutierrez v. State, No. 13-22-00248-CR, 2024 WL 973126, at *10 (Tex. App.—Corpus Christi–Edinburg Mar. 7, 2024) (mem. op., not designated for publication), rev’d and remanded, 710 S.W.3d 804 (Tex. Crim. App. 2025). 5 that he did to you,” K.R. explained she would self-harm and have panic attacks, she went to several facilities for mental health treatment, and she took medication for depression and anxiety, which did not help her. She said: “I guess after everything I constantly look over my shoulders and I stay away from everyone like in general.” Since she found out she would have to testify at a new punishment hearing, she has had a lot of trouble sleeping and thought about self-harming again. 3 She said she is scared of what would happen if Gutierrez got out of prison or if she saw him again. K.R.’s grandmother testified that, since this process began, K.R. has “shut down,” “tends to just panic” when in public, and “doesn’t feel safe around people,” including her own family. According to K.R.’s grandmother, K.R. attempted suicide three times, once by overdosing on drugs, and twice by hanging. Connie McElwain testified she prepared a pre-sentence investigation report for purposes of the original punishment trial, and the report was entered into evidence. It states in part that “[t]he Texas Risk Assessment System (TRAS) scores [Gutierrez] as a low/moderate risk to reoffend” and “[t]he Static 99R scores [him] as a moderate risk to reoffend.” Further, a psychosexual evaluation conducted in March of 2022 “indicates [Gutierrez] had a full-scale IQ of 71 placing him in the [b]orderline range of intelligence” and “there are indications of cognitive sexual distortions that would increase the likelihood of re-offending as a sex offender.” The psychosexual evaluation report, which was attached to McElwain’s report, states in part that “[t]esting results indicate that [Gutierrez] is attempting to ‘fake good’ or to minimize sex-related problems and concerns” and that 3 We observe that the State did not feel the need to call K.R. as a witness at the original punishment hearing in 2022. 6 he “endorses an unwillingness to take responsibility for criminal behavior and make effective positive change in behaviors.” The report states Gutierrez has a low potential for aggressive behavior and does not meet criteria for pedophilia. Gutierrez testified that, since the original sentencing trial, he “[c]hanged a lot of things in [his] life.” He said he attends church daily and reads the Bible with fellow inmates. When asked to “admit that you were guilty of what the jury has found you guilty of,” he declined; instead, he stated “I take responsibility for everything I’ve done in life. That’s all I can say.” Gutierrez’s wife testified they married on September 15, 2020, shortly before he was arrested for the offenses at issue in this case. She was aware he was a registered sex offender due to a prior conviction involving his high school girlfriend. She said she trusts Gutierrez around her children and that he has been a “great stepfather” to them. The trial court assessed punishment at seventy-five years’ imprisonment for each of Counts 1 and 2, with the sentences to run concurrently. This appeal followed. II. DISCUSSION A. Standard of Review and Applicable Law The United States and Texas Constitutions guarantee a criminal defendant the right to reasonably effective assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see TEX. CODE CRIM PROC. ANN. art. 1.051; Strickland v. Washington, 466 U.S. 668, 686 (1984). To obtain a reversal of a conviction on grounds of ineffective assistance of counsel, an appellant must show: “(1) counsel’s performance fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense, resulting in an unreliable or fundamentally unfair outcome of the proceeding.” Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009) (citing Strickland, 466 U.S. 7 at 687). “Deficient performance means that ‘counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’” Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S. at 687). The burden is on the appellant to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The appellant must overcome the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance and that his actions could be considered sound trial strategy. See Strickland, 466 U.S. at 689. Where the record does not include explanations for counsel’s conduct, “we commonly assume a strategic motive if any can be imagined and find counsel’s performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it.” Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). “Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 813. “To succeed on claims of ineffective assistance of counsel for failure to object, appellant must demonstrate that the trial court would have committed harmful error in overruling the objection if trial counsel had objected.” Alexander v. State, 282 S.W.3d 701, 705 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d); see Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991) (“Counsel is not required to engage in the filing of futile motions.”). 8 B. Analysis In her closing argument at the new punishment hearing, the prosecutor stated in part: This case returned to this Court not because the conduct was any less serious, but because of a legal distinction. And that distinction doesn’t lessen his culpability, the severity of what he did, or the lasting impact on [K.R.]. .... When the Court assess[es] his punishment it’s entitled to consider the full circumstances of the offense and those demonstrate an extremely serious crime against a child and one that warrants a substantial sentence regardless of the modification of the conviction. Those circumstances that[] your Honor[] felt four years ago justified the 75 years sentence are the same circumstances we sit here today. .... A reduce[d] sentence fails to reflect the seriousness of this offense, disregard[s] his demonstrative unwillingness to conform his conduct to the law, and it unnecessarily risk[s] future harm to vulnerable victims, specifically children. He’s already getting a benefit of reduction because of the parole implications here, your Honor. He doesn’t deserve less than what you sentenced him before. And for those reasons the State is asking for the Court to impose a sentence that reflects the gravity of the offense, his prior conviction, and the need to protect the community, and the most vulnerable in the community without a reduction. But, Judge, if you do reduce the sentence I beg of you please let the family know why because they are not going to understand. So please give him at least the 75 years you gave him once before. (Emphasis added.) By his sole issue on appeal, Gutierrez contends the emphasized portion of this argument was an “improper plea for punishment from a particular group” and “was not based on evidence,” and therefore, his trial counsel provided ineffective assistance by failing to object to it. 9 Gutierrez relies on well-established caselaw indicating that “proper jury argument generally falls within one of four areas: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to an argument of opposing counsel, and (4) plea for law enforcement.” Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011); see Brown v. State, 270 S.W.3d 564, 573 n.3 (Tex. Crim. App. 2008) (“[J]ury argument must be extreme or manifestly improper, or inject new and harmful facts into evidence to constitute reversible error.”). 4 Here, the prosecutor stated that K.R.’s family would not “understand” if the trial court decided to sentence Gutierrez to a prison term shorter than that which was originally imposed in 2022. As Gutierrez notes, K.R.’s grandmother did not explicitly testify to this. Nevertheless, we conclude the prosecutor’s statement was a reasonable deduction from the grandmother’s testimony regarding the devastating effects the abuse had on her granddaughter. When considered in this light, the remark was not “extreme or manifestly improper.” See Brown, 270 S.W.3d at 573 n.3. Even assuming the court would have erred by overruling an objection to the subject remarks, Gutierrez has not shown such error would warrant reversal of his convictions. See Alexander, 282 S.W.3d at 705–06. Error in permitting improper argument is non- 4 Gutierrez cites no cases applying this standard when, as here, the trial court acts as the finder of fact. See Juarez v. State, 439 S.W.2d 346, 347 (Tex. Crim. App. 1969) (“[I]t has been uniformly held that when the trial is before the court it will be presumed that he did not consider improper argument.”); see also Price v. State, No. 07-22-00236-CR, 2022 WL 17990326, at *3 (Tex. App.—Amarillo Dec. 29, 2022, pet. ref’d) (mem. op., not designated for publication) (overruling issue concerning improper argument in a bench trial in part because “[a]ppellant has not cited any authority and we have found none in which cases on improper ‘jury’ argument apply to a bench trial”); Delarosa v. State, No. 06-20-00134-CR, 2021 WL 4927418, at *7 (Tex. App.—Texarkana Oct. 22, 2021, no pet.) (mem. op., not designated for publication) (overruling issue concerning improper argument in a bench trial because he “has not rebutted the presumption that the trial court did not disregard the statement”); Garcia v. State, No. 13-15-00508-CR, 2016 WL 4040201, at *5 (Tex. App.—Corpus Christi–Edinburg July 28, 2016, pet. ref’d) (mem. op., not designated for publication) (“Assuming without deciding that the same rules that restrict jury argument apply to a bench trial on punishment . . . .”). We assume for purposes of this memorandum opinion that it applies here. 10 constitutional error which must be disregarded unless it affects the defendant’s substantial rights. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998); see TEX. R. APP. P. 44.2(b). “[A] substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” Hallman v. State, 721 S.W.3d 307, 313 (Tex. Crim. App. 2025). On the other hand, if the error had no influence “or had but very slight effect, the verdict and the judgment should stand.” Thomas v. State, 505 S.W.3d 916, 926 (Tex. Crim. App. 2016) (quoting Kotteakos v. United States, 328 U.S. 750, 764 (1946)). The trial evidence established that Gutierrez, a registered sex offender, committed three acts of sexual abuse against K.R., his stepdaughter. Despite being convicted by a jury for these acts, Gutierrez refused to accept responsibility for them at the new punishment hearing. A psychosexual evaluation showed that Gutierrez presented a low- to-moderate risk of reoffending, but also that he attempted to “minimize sex-related problems and concerns” and was unwilling to change his behavior. Ultimately, the trial court elected to impose a sentence well below the maximum permitted for a first-degree felony. See TEX. PENAL CODE § 12.32(a). Under these circumstances, we cannot conclude that the prosecutor’s comment had a substantial or injurious effect or influence on the trial court’s sentencing decision. See Hallman, 721 S.W.3d at 313; see also Juarez v. State, 439 S.W.2d 346, 347 (Tex. Crim. App. 1969) (“[I]t has been uniformly held that when the trial is before the court it will be presumed that he did not consider improper argument.”). For the foregoing reasons, we overrule Gutierrez’s issue on appeal. 11 III. CONCLUSION The trial court’s judgment is affirmed. YSMAEL D. FONSECA Justice Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed on the 13th day of August, 2026. 12