Omar Monarca-Hernandez v. the State of Texas

Opinion issued October 30, 2026 In The Court of Appeals For The First District of Texas ———————————— NO. 01-25-00122-CR ——————————— OMAR MONARCA-HERNANDEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 486th District Court Harris County, Texas Trial Court Case No. 1752642 OPINION A jury convicted appellant Omar Monarca-Hernandez of continuous sexual abuse of a child. Appellant contends that the trial court abused its discretion by denying his motion for new trial alleging ineffective assistance of his trial counsel in failing to interview and call seven witnesses. We affirm.  I. Background Appellant was indicted for continuous sexual abuse of a child for allegedly sexually assaulting his stepdaughter, Emily.1 He hired attorney Jose Julio Vela to defend him in this case. At the jury trial, the State’s only direct evidence of appellant’s guilt was Emily’s testimony.2 Emily, twenty-one years old at the time of trial, testified that appellant sexually assaulted her on numerous occasions beginning when she was ten years old and ending when she was sixteen.3 Emily stated that appellant first sexually assaulted her when she was ten years old. Emily and her half-brother Oscar shared a room with a bunk bed; Emily usually slept on the top bed, and Oscar slept on the bottom. Sometimes they slept together in Oscar’s bed. One night when Emily’s mother Jane was working, appellant put Emily and Oscar in Oscar’s bed and laid down between them. As Emily was falling asleep, appellant hugged Emily and put his hand inside of her pajama pants and began touching her vagina while Oscar slept. 1 We use pseudonyms to refer to the complainant and her family members other than appellant to protect their privacy. See TEX. R. APP. P. 9.10(a)(3), (b); Pitts v. State, No. 01-22-00578-CR, 2024 WL 3817431, at *1, n.2 (Tex. App.—Houston [1st Dist.] Aug. 15, 2024, pet. ref’d) (mem. op., not designated for publication). At the time of the sexual assaults, Emily thought appellant was her biological father. 2 The State called four other witnesses, none of whom witnessed any sexual contact between appellant and Emily or testified as to any statement by Emily describing any such contact. 3 This paragraph and the following five paragraphs describe Emily’s trial testimony. 2  Appellant then started to touch Emily’s thighs, buttocks, or breasts over her clothes when she was in the house and nobody else could see what appellant was doing. Emily testified that at night appellant would climb up to the top bunk where she was sleeping and sexually abuse her. When Emily was eleven and twelve years old, appellant would climb up the ladder, get in the top bunk with her, remove her clothes, touch her vagina and breasts, and sometimes perform oral sex on her. She said that this happened over twenty times from when she was in seventh through ninth grade. Between the ages of ten and fourteen, appellant would touch Emily’s vagina with his hands or mouth at “[a]bout an average of once a week.” One time Emily was sleeping on her stomach, and she woke up to find appellant rubbing his hard penis between her buttocks. After appellant left, Emily got down from the top bunk bed and found semen on her underwear and buttocks. Even though Oscar was in the room each time appellant sexually abused her, to Emily’s knowledge Oscar never saw or heard anything. When she was in the sixth grade, Emily told her mother Jane about the sexual abuse. When Jane confronted appellant, he told Jane that he accidentally touched Emily while play fighting with her. Her mother believed appellant and did not inquire into the abuse any further. Because Jane did not ask Emily more about the sexual abuse, Emily decided not to say anything more, and she did not mention appellant’s sexual abuse to anyone else. 3  Around the time of Emily’s outcry to Jane, Emily started therapy, and she attended various therapy sessions from the age of eleven until the age of sixteen to address issues arising from what Emily said was bullying and stress. She never mentioned anything to her therapists about any sexual abuse. At trial Emily testified that the bullying was not severe, and that she did not tell the therapists that her issues were caused by appellant’s sexual abuse because she was afraid that all of her family except Oscar would be deported to Mexico and that Oscar, the only family member born in the United States, would be left alone in Texas. Emily’s maternal grandmother Mary and Mary’s boyfriend lived for a while in the same house with appellant, Jane, Emily, Oscar, and two of appellant’s brothers. According to Emily, Mary knew about the sexual abuse because Mary was drinking one time, and appellant told Mary she needed to calm down. Mary replied, “I see you coming out of her room at 2:00 or 3:00 in the morning.” Emily testified that a large fight then took place, with Jane saying, “What are you talking about?” and appellant saying, “That’s not true.” Emily stated that Mary was very persistent, and said, “Yes, it is true. I see you. I see you coming out.” Emily testified that appellant’s sexual abuse stopped in September 2020, when she was sixteen years old, after she told her friend, who told her friend’s mother, who contacted CPS. 4  The only witness called by appellant was Oscar, who is four years younger than Emily. Oscar testified that each of the bunk beds had a small, twin-size mattress and that he does not remember any weird noises or waking up and seeing something going on in the top bunk bed with Emily or appellant. According to Oscar, appellant never sneaked into Oscar and Emily’s bedroom. Oscar said that appellant never came into the children’s bedroom while Oscar was asleep. Oscar said he never saw appellant do anything inappropriate with Emily. Oscar stated that he loves appellant and Emily and that if he had seen or heard or even thought that appellant was doing something inappropriate, he would have said something. During deliberations, the jury sent out a note saying that it was deadlocked. The court gave the jury an Allen charge. The jury later asked to be read back testimony about when Emily first disclosed the abuse to her mother. The court reporter read back Emily’s testimony that she had first disclosed the abuse to her mother in the sixth grade. After deliberating further, the jury found appellant guilty of continuous sexual abuse of a child. Appellant had elected jury sentencing but changed his election to the trial court after the State and appellant agreed that punishment would be assessed at thirty years’ confinement and that appellant would retain his right to appeal. The trial court then sentenced appellant accordingly. 5  Appellant retained new counsel and filed a motion for new trial, alleging that his trial counsel was ineffective for failing to interview and call seven witnesses who would have contradicted Emily’s testimony and supported appellant’s defensive theory of fabrication—that all of Emily’s allegations of sexual abuse by appellant were false. Each witness signed an affidavit that was admitted into evidence at the new-trial hearing. Three of the witnesses—appellant’s wife and brothers—testified at the new-trial hearing, as did Vela. At the end of the hearing the trial court stated that it found Vela’s testimony credible and that the court did not believe that his performance in this case was deficient. The trial court also stated that it did not think there was a reasonable probability that but for Vela’s deficient performance, the result of the proceeding would have been different. The trial court denied the motion for new trial. Appellant timely appealed. II. Analysis Appellant challenges only the trial court’s denial of his motion for new trial. Under his first issue appellant argues that the trial court erred in denying his motion for new trial because Vela rendered deficient performance by (1) failing to interview and call four fact witnesses who would have supported his defensive theory and contradicted Emily’s testimony and (2) failing to call three character witnesses who were present at trial and would have given positive character testimony as to appellant and negative character testimony as to Emily. Under his 6 second issue appellant argues that he was prejudiced by his lawyer’s failure to investigate and call these witnesses. A. Standard of review The United States Constitution guarantees an accused the right to assistance of counsel. See U.S. CONST. amend. VI. This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel’s representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel’s deficient performance. Strickland, 466 U.S. at 688–92. We consider all of the circumstances, with “a strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance.” Id. at 688–89. A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id. at 694. It will not suffice for appellant to show “that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, he must show that “there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. We review the totality of the evidence when 7 evaluating appellant’s ineffectiveness claim. Id. To succeed on an ineffectiveness claim, a defendant must show both components; failure to show either deficient performance or prejudice will defeat the ineffectiveness claim. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010). The defendant bears the burden of proving ineffectiveness by a preponderance of the evidence. Id. We review a trial court’s denial of a motion for new trial under an abuse-of- discretion standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014). We do not substitute our judgment for that of the trial court; rather, we decide whether the trial court’s decision was unreasonable or arbitrary. Id. We view the evidence in the light most favorable to the trial court’s ruling and presume that all reasonable factual findings that could have been made against the losing party were made against that party. Id. In determining a motion for new trial, the trial court alone determines the credibility of the witnesses. Id. Even if the testimony is not controverted or subject to cross-examination, the trial court has discretion to disbelieve that testimony. Id. A trial court abuses its discretion in denying a motion for new trial when no reasonable view of the record could support the ruling. Id. A trial counsel’s failure to call witnesses to testify during the guilt/innocence phase is irrelevant absent a showing that such witnesses were available, that appellant would have benefitted from their testimony, and that there is a reasonable 8 probability that the factfinder would have had a reasonable doubt as to appellant’s guilt had the witness testified at trial. See Perez, 310 S.W.3d at 894. A claim for ineffective assistance based on trial counsel’s general failure to investigate the facts of the case fails absent a showing of what the investigation would have revealed that reasonably could have changed the result of the case. See Cooks v. State, 240 S.W.3d 906, 912 (Tex. Crim. App. 2007). Likewise, a claim for ineffective assistance based on trial counsel’s failure to interview a witness cannot succeed, absent a showing of what the interview would have revealed that reasonably could have changed the result of the case. See Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994). B. Analysis 1. Failure to call Jane to testify We begin with appellant’s argument that Vela should have called her mother, Jane, to testify. In her affidavit, Jane testified that when Emily was ten years old, Jane, appellant, Emily, and Oscar moved into a three-bedroom, one- story house with appellant’s two brothers. Appellant and Jane slept in the master bedroom. Appellant’s brothers slept in the second bedroom, and Emily and Oscar slept in the third bedroom. The second and third bedrooms were on the opposite side of the house from the master bedroom. From March 2014 to July 2016, Jane’s mother Mary and her boyfriend also lived in the house and slept on a bed in the 9 dining room area next to the kitchen. Jane testified that the house has an open floor plan and to get from the master bedroom to the children’s bedroom, a person would walk through the living room rather than walk through a hallway. Appellant and his brothers owned a construction company. It was normal for them to work long hours. Appellant would go to bed with Jane around 9:30 to 10:00 p.m. and get up for work around 5:30 a.m. Jane stated that appellant would often not get home until 8:00 p.m. According to Jane, appellant was awake and out of the house before the kids were awake, and he would sometimes not get back home from work until the kids were in bed. Appellant and Jane slept in the same bed. Jane says she is a light sleeper. Jane testified that appellant would not get up in the middle of the night. According to Jane, appellant was usually tired by the time he went to bed, and if he ever got into or out of bed in the middle of the night, it would wake Jane up. Jane says she never once saw or heard appellant get up in the middle of the night to go to the children’s bedroom. Jane claimed that because the house is small, noises can be heard throughout the house. She said that the children’s bedroom had medals hanging on the door. According to Jane, when anyone opened the door to the children’s bedroom, a person in the master bedroom could hear the medals clanging together. Jane said 10 that if appellant ever opened the door to the children’s bedroom in the middle of the night, she would have heard it, which she never did. Jane said that Emily did not tell her that appellant had sexually assaulted her until Emily was sixteen and CPS and the police came to their house. Jane stated that Emily’s claims that she told Jane about the abuse when Emily was in sixth grade and that there was an argument in which Mary said she had seen appellant come out of Emily’s bedroom at 2:00 a.m. are not true. Jane contends that appellant treated Emily like his own daughter and that he was a wonderful father to her. According to Jane, Emily was always happy to be around appellant, and she was never scared of him or avoided him. Jane says she never saw appellant act inappropriately around Emily or any other child. Jane also states that appellant and she had an active sex life. Jane says she met with appellant’s lawyer, Vela, only once when they visited him at his office to hire him. Present at that meeting were Jane, appellant, and Oscar. Jane asserts that Vela did not interview her in-depth or meet with her before her planned testimony. Apart from the general living situation and her opinion of appellant’s character, Jane thinks that Vela did not know the other things she explained in her affidavit. Jane states that she was ready to testify at appellant’s trial and tell the jury all of these things. She was in court on the same day that her son Oscar testified. 11 After Oscar testified, Vela told her and the character witnesses that he did not think their testimony was necessary, so none of them testified. Jane said that Vela’s testimony that she was reluctant or unwilling to testify at trial was not true. Jane also stated that she did not put pressure on Emily not to come to court. On cross-examination at the new-trial hearing, Jane stated that she called Emily on the phone the night after appellant was convicted in this case and “told her . . . to come and tell the truth and to retract what she had said about what had happened, that it never happened.” At the new-trial hearing Vela testified that he had a phone conversation with Jane during the week before trial began. According to Vela, Jane told him that she did not want to testify at trial and that she was not going to testify if she did not have to do so. Vela stated that Jane was at the courthouse on the first day of trial and repeated these statements to him. Vela said that he told her that she was going to be asked on cross-examination whether Emily was a liar, and that Jane was not able to call Emily a liar, which Vela said was a problem. Vela also testified that appellant indicated to him that Jane was trying to convince Emily not to testify against appellant and that Vela was concerned that Jane would be cross-examined about pressuring her daughter not to testify.4 4 Emily testified at trial that she did not tell her therapist about the sexual abuse by appellant because “[m]y mom, I guess my dad, also, feared that if I was to tell the [therapist], who I was seeing at that time, if I was to tell her I feel sad, I feel depressed, 12  The evidence supports reasonable factual findings that Vela’s decision not to call Jane as a witness during the guilt/innocence phase was based on reasonable trial strategy. The trial court was free to believe Vela’s testimony regarding Jane’s statements and the risks of calling her as a witness and to disbelieve contrary testimony from Jane. See Colyer, 428 S.W.3d at 122. The record supports the trial court’s implied determination that in deciding not to call Jane to testify, Vela’s representation did not fall below an objective standard of reasonableness, based on prevailing professional norms. See Carter v. State, 506 S.W.3d 529, 540–41 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). 2. Failure to call Mary and the uncles to testify We next consider Vela’s failure to interview and call Mary as well as Emily’s two uncles. a. Mary’s testimony In her affidavit, Mary testified that from March 2014 to July 2016, she lived with Jane, appellant, Emily, Oscar, and appellant’s two brothers in a small, one- story, three-bedroom house. Jane and appellant slept in one bedroom. Appellant’s brothers slept in another bedroom on the other side of the house. And the children this [the sexual abuse] is happening, they would say: [Emily], if you tell them that you feel bad, they could open a CPS case, we can get deported, you could get deported, and your brother would be with no family.” Oscar was born in Texas, and everyone else in the family was born in Mexico. Thus, Emily indicated that Jane was pressuring her not to disclose appellant’s sexual abuse. 13 slept in their own bedroom near their uncles’ bedroom. Mary stated that she slept in the dining room area next to the kitchen, which was near Jane and appellant’s bedroom. Mary testified that the dining room, which was not a separate room but an area next to the kitchen, was converted into a makeshift bedroom for Mary and her boyfriend. Mary stated that they slept on a bed in the dining room and had a curtain put up to provide some privacy. Mary asserted that noise carried easily throughout the house, and the house’s tiled floors made it easy to hear when people were walking around. Mary claimed that she could easily hear when people were walking around or opening and closing doors because she slept in an area that did not have a wall or door, just a temporary curtain. Mary is aware that Emily told the jury that there was an argument between appellant and Mary in which she suggested she had witnessed appellant going into Emily’s bedroom at night to molest her. Mary stated that this testimony is not true and that no such argument ever happened. Mary asserts that she never saw or heard appellant go into the children’s bedroom in the middle of the night. Mary says that if he had done so, she would have heard it because he would have had to walk right past her temporary bedroom on the way there. Mary says that appellant and Emily had a good relationship and that he was a wonderful father to her. Mary asserts that she never saw appellant act inappropriately around Emily or try to spend time alone with her apart from the 14 family. Mary asserts that appellant is an honest person and that she has known him for many years. Mary testified that she never spoke with Vela or anyone who worked with him. Mary did not attend the trial. Mary says that if Vela asked her, she would have testified and told the jury all of the things stated in her affidavit. b. The uncles’ testimony The uncles’ affidavits were substantially similar. The uncles testified that their bedroom was near the children’s bedroom, separated only by a bathroom. They claim that for appellant to get from the master bedroom to the children’s bedroom he would have to walk by the uncles’ bedroom. The uncles say that if a person walked outside their bedroom, they would hear it. The uncles asserted that the children’s bedroom had medals hanging from the door, and when anyone opened that door, you could hear the medals banging against the door—especially from the uncles’ bedroom. The uncles never heard or saw appellant walk to the children’s bedroom or open their bedroom door in the middle of the night. Appellant and the uncles owned a construction company, and they worked together. They poured concrete foundations for houses. According to the uncles, on a typical day, they would get up at 5:30 a.m. and be out of the house by 6:00 a.m. On short days, they say they would work until 5:30 p.m., on longer days until 7:30 p.m., often not getting back to the house until after 8:00 p.m., depending on 15 where the job site was. The uncles stated that their work was physically demanding, and they would usually come home very tired. The uncles claim that appellant went to bed around the same time as they did—around 9:30–10:00 p.m. They contend that appellant was not tired in the morning, which one would expect if he was regularly getting up in the middle of the night to do what Emily says he was doing. The uncles say that Emily and appellant had a normal father/daughter relationship and that they never saw appellant act inappropriately around Emily. They claim that Emily was never afraid of appellant and did not act strangely around him. They say that Vela never spoke with either of them. If he had asked them, they would have testified at trial and told the jury each of the foregoing statements. At the new-trial hearing each of the uncles testified that their bedroom was about twelve feet away from the children’s bedroom. They also testified that they moved into the house at the same time as appellant, Jane, and the children and lived there until after Emily moved out. c. Analysis regarding Mary and the uncles Presuming without deciding that Vela’s failure to interview and call these witnesses fell below an objective standard of reasonableness, we address whether the trial court erred by determining appellant did not show a reasonable probability that, but for these errors, the result would have been different. See Strickland, 466 16 U.S. at 694. A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id. It will not suffice for appellant to show “that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693; Perez, 310 S.W.3d at 894. Rather, appellant must show that “there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695; Perez, 310 S.W.3d at 894. Mary’s testimony would have supported appellant’s defensive theory that Emily fabricated her allegations of sexual abuse. If Emily’s trial testimony is true, it seems unlikely that appellant would have walked past the bed where Mary slept in the middle of the night more than one hundred times over more than two years without ever waking up Mary or being seen or heard by Mary when she was already awake. Nonetheless, it is even more unlikely that appellant would have sexually abused Emily so many times over six years in the small bunk bed right above where Oscar was sleeping without ever waking up Oscar or being seen or heard by Oscar when he was already awake. Oscar gave compelling testimony that strongly supported the defensive theory of fabrication. Oscar said that Emily and he always shared a bedroom. Oscar testified that each of the bunk beds had a small, twin-size mattress and that he does not remember any weird noises or waking up and seeing something going on in the top bunk bed with Emily or appellant. Oscar stated that he does not remember 17 appellant ever climbing up the bunk-bed ladder to lay in bed with Emily. According to Oscar, appellant never sneaked into Oscar and Emily’s bedroom. Sometimes Oscar would wake up in the middle of the night because he had stomach problems, and he would have to go to the master bedroom to get Jane so she could give him something for his upset stomach. Oscar says that when he woke up in the middle of the night, he never saw appellant in his bedroom; appellant was always in the master bedroom. Appellant never came into the children’s bedroom while Oscar was asleep. Oscar testified that he was not a very deep sleeper and that they would usually keep the door to their bedroom closed. Oscar also stated that as soon as someone opened the door, medals hanging on it would bang. According to Oscar you could hear a sound whenever anybody tried to go into their bedroom. Oscar said he never saw appellant do anything inappropriate with Emily. Oscar stated that he loves appellant and Emily and that if he had seen or heard or even thought that appellant was doing something inappropriate, he would have said something. According to Oscar, if he knew something wrong was going on with Emily, he would protect Emily with all the brotherly love he could. Oscar asserted that he never saw or heard about a fight with his grandmother Mary about appellant touching Emily. Oscar contended that there was never a big blowup one night when everybody was drunk and they confronted appellant about touching Emily. Oscar said that nobody forced him to 18 testify and that he wanted to testify “[b]ecause if [Oscar] know[s] [appellant] hasn’t done anything wrong, so [Oscar] wouldn’t want [appellant] to be in jail for something [appellant] didn’t do.” By finding appellant guilty, the jury credited Emily’s testimony and discredited Oscar’s testimony. See Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Oscar was in the room where all of the sexual abuse described by Emily happened. Mary was not. Unlike Oscar, Mary was subject to being cross- examined based on statements by Emily indicating that Mary pressured her not to testify regarding appellant’s sexual abuse. A medical record admitted into evidence at trial reflects that in October 2020, a social worker contacted CPS to report that Emily stated that Jane and Mary “were constantly shaming her and threatening her with being deported due to police report [sic] and CPS involvement.” If Mary testified, she also could have denied that she ever had an argument with appellant in which she said that she saw him going into Emily’s bedroom in the middle of the night. But Oscar addressed this issue in his trial testimony, saying that he never saw or heard about any such fight. And Emily provided a compelling reason why Mary (and the other uncalled witnesses) would be willing to untruthfully deny knowledge of the abuse: fear of the family being deported, leaving Oscar alone in Texas. 19  As to the uncles, Jane’s testimony and diagram of the house indicated that appellant did not have to pass by the door to the uncles’ bedroom to go from the master bedroom to the children’s bedroom. Even presuming that appellant had to pass by the uncles’ bedroom, unlike Mary, the uncles had a separate bedroom with its own door. Oscar was in the room where all of the sexual abuse described by Emily happened. The uncles were not. Though the uncles testified as to the medals on the door to the children’s room, Oscar provided substantially similar testimony at trial, which the jury impliedly discredited. See Turro, 867 S.W.2d at 47. Though Mary and the uncles did not testify at trial, Vela elicited testimony from Emily at trial that Mary and the uncles were not in the courtroom to support Emily during the trial. Considering the totality of the evidence, the trial court did not err by determining appellant failed to show there is a reasonable probability that the jury would have had a reasonable doubt as to appellant’s guilt had Mary and the uncles testified at trial. See Perez, 310 S.W.3d at 894; Recio v. State, No. 14-22-00231- CR, 2023 WL 3316422, at *8 (Tex. App.—Houston [14th Dist.] May 9, 2023, pet. ref’d) (mem. op., not designated for publication). Oscar’s testimony corroborating appellant’s defensive theory distinguishes this case from those cited by appellant, in which the uncalled witnesses provided a direct alibi, would testify a specific other person was the culprit, or would support the defendant’s otherwise 20 uncorroborated defensive theory. See Butler v. State, 716 S.W.2d 48, 55–57 (Tex. Crim. App. 1986); State v. Thomas, 768 S.W.2d 335, 336 (Tex. App.—Houston [14th Dist.] 1989, no pet.). 3. Failure to call the three character witnesses to testify In his motion for new trial appellant complained that Vela was ineffective because he failed to interview and call the following character witnesses: Salvador Lara, Harold Alfaro, and Maria de la Luz Humphrey. In his affidavit, Lara testified: (1) he has known appellant and his family since 2019, and they attend the same church; (2) Lara considers appellant to be a good friend, and appellant has invited Lara to many family events; (3) appellant is a great person, a great father, and a good Christian; (4) Emily was always happy to be around appellant, and Lara never saw appellant act inappropriately around Emily or any other child; (5) Lara does not believe that appellant is sexually attracted to children; (6) Lara believes that appellant is an honest person and is telling the truth about never having molested Emily; (7) based on what Lara knows about Emily’s behavior, Lara believes she is generally dishonest; (8) Lara does not believe Emily is telling the truth about having been molested; and (9) if Vela had called Lara as a witness Lara would have testified to the things Lara stated in his affidavit. 21  In his declaration Alfaro testified: (1) he met appellant about eight years ago when appellant started attending Alfaro’s church; (2) Alfaro became good friends with appellant and got to know his family; (3) appellant is a great person and a very hard worker, who provided for his family and was dedicated to his wife and kids; (4) Alfaro never saw appellant act inappropriately around Emily or any other child; (5) Alfaro does not believe appellant is sexually attracted to children; (6) appellant had a loving father/daughter relationship with Emily, and Alfaro never saw appellant behave strangely around Emily or try to isolate her; (7) Emily was not afraid of appellant and did not act awkwardly around appellant; (8) Alfaro has always known appellant to be an honest person; (9) if appellant told the police that he never molested Emily, then he is telling the truth; and (10) if Vela had called Alfaro as a witness, he would have testified for appellant and told the jury all of these things about him. In her affidavit, Humphrey testified: (1) she is a hairstylist who first met appellant in 2003 or 2004 when he became her customer; (2) she considers appellant a good friend and has gotten to know his family, many of whom are also her customers; (3) she has been over to appellant’s house and his family has been over to her house; (4) she attended Emily’s quinceañera; (5) appellant is a good person, who is always willing to help someone else; (6) appellant was a good father to Emily and Oscar, and he treated both children equally; (7) Humphrey 22 does not believe that appellant is attracted to children, and she never saw him act inappropriately around Emily or any other child; (8) Emily seemed to love appellant and was never afraid of him or acted strangely around him; (9) Humphrey’s younger daughter is only a year older than Emily, and if Humphrey believed that appellant was a child molester, she would never have invited him over to her house to be around her or her children; (10) appellant is an honest person, and she is sure he is telling the truth when he says that he never molested Emily; (11) Humphrey believes that Emily is generally dishonest, and from what Humphrey knows about her, she believes that Emily is lying about being molested; and (12) if Vela had called Humphrey to testify, she would have told the jury the things she has stated in her affidavit. Vela’s decision not to call any of these character witnesses is not insulated from review, but unless a defendant overcomes the presumption that counsel’s actions were based in sound and reasonable trial strategy, counsel generally will not be found ineffective. See Ex parte Flores, 387 S.W.3d 626, 633 (Tex. Crim. App. 2012); Chavez v. State, 712 S.W.3d 166, 179–81 (Tex. App.—Houston [14th Dist.] 2024, pet. ref’d). Vela met with these witnesses right before trial started. They told Vela what they could testify to, and it was the same as what is stated in each of their new-trial affidavits. Vela thought that he did not need to call any of these character witnesses. According to Vela, it is possible that the testimony of 23 the character witnesses could have hurt appellant’s case. Vela did not believe their testimony “would have moved the needle any.” Moreover, none of them (1) had any personal knowledge concerning Emily’s allegations, (2) could provide eyewitness accounts of what transpired between Emily and appellant in the children’s bedroom, (3) could provide appellant with an alibi, or (4) had information that directly contradicted Emily’s contentions, which supports Vela’s decision not to call them. See Hale v. State, 140 S.W.3d 381, 392–94 (Tex. App.—Fort Worth 2004, pet. ref’d) (concluding appellant’s trial lawyer’s decision not to call any witnesses as to appellant’s good character with children was based on sound trial strategy because none of the witnesses had personal information about the victims’ sexual-abuse allegations or could provide an alibi or eyewitness account). Considering the totality of the evidence, the trial court did not abuse its discretion by rejecting appellant’s argument that Vela rendered ineffective assistance of counsel because he failed to call any of the character witnesses to testify at trial. See Ex parte Flores, 387 S.W.3d at 633; Chavez v. State, 712 S.W.3d 166, 179–81; Hale, 140 S.W.3d at 392–94. 24  III. Conclusion Concluding that the trial court did not abuse its discretion in denying appellant’s motion for new trial, we overrule appellant’s two issues and affirm the trial court’s judgment. Andrew Johnson Justice Panel consists of Chief Justice Adams and Justices Caughey and Johnson. Publish. TEX. R. APP. P. 47.2(b). 25