Full opinion text
OPINION Opinion by Justice RODRIGUEZ. Appellant Charles Anthony Cueva II challenges his conviction for one count of indecency with a child and two counts of sexual assault of a child. See TEX. PENAL CODE ANN. § 21.11(a) (West Supp. 2010), § 22.021(a)(1)(B) (West Supp.2010). By four issues, Cueva argues that: (1) the jury charge on one count of sexual assault allowed for his conviction on a less than unanimous verdict; (2) the punishment charge contained an erroneous instruction regarding the applicability of good conduct time to his potential parole calculation; and (3-4) he received ineffective assistance of counsel. We affirm. I. BACKGROUND Indicted on eleven counts, Cueva pleaded not guilty to six counts of aggravated sexual assault and one count of indecency with a child by contact. The State abandoned the remaining four counts before the trial began. A jury convicted Cueva of two counts of aggravated sexual assault and assessed punishment at seventy years in prison and a $10,000 fine. See TEX. PENAL CODE ANN. § 22.021(e) (identifying aggravated sexual assault as a first-degree felony), § 12.32 (West Supp.2010) (providing for first-degree felony punishment as imprisonment “for life or for any term of not more than 99 years or less than 5 years” and “a fine not to exceed $10,000”). It also convicted Cueva of the one count of indecency with a child and assessed punishment at fifteen years and a $10,000 fine. See id. § 21.11(d) (setting out that indecency with a child under subsection (a)(1) is a second-degree felony), § 12.33 (West Supp.2010) (allowing for second-degree felony punishment as imprisonment “for any term of not more than 20 years or less than 2 years” and “a fine not to exceed $10,000”). The trial court ordered the sentences to run concurrently. Cueva filed a motion for new trial raising, among other issues, ineffective assistance of counsel claims. After hearing Cueva’s motion for new trial, the trial court denied the motion and later issued extensive findings. This appeal followed. II. JURY CHARGE ISSUES In his first two issues, Cueva complains of charge error. By his first issue, Cueva argues that the guilt-innocence jury charge allowed for his conviction for aggravated sexual assault on a less than unanimous verdict. By his second issue, Cueva argues that the jury charge at the punishment stage contained an erroneous instruction regarding the applicability of good conduct time to his potential parole calculation. A. STANDARD OF REVIEW In analyzing a jury charge issue, our initial inquiry is whether error exists in the charge submitted to the jury. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005) (en banc). If error is found, the degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. Id. If the defendant properly objected to the erroneous jury charge, reversal is required if we find “some harm” to the defendant’s rights. Id. Here, Cueva concedes that he did not object at trial to either jury charge issue he raises on appeal, so we may only reverse if the record shows egregious harm. See id. at 743-44. Egregious harm is a difficult standard that is determined on a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App.2002) (en banc); Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996) (en banc); see Igo v. State, 210 S.W.3d 645, 647 (Tex.Crim.App.2006) (applying egregious harm analysis to erroneous parole and good conduct instructions). To determine whether a defendant suffered egregious harm, we assess the degree of harm in light of (1) the entire jury charge, (2) the state of the evidence, including contested issues, (3) the arguments of counsel, and (4) any other relevant information in the record. Warner v. State, 245 S.W.3d 458, 461 (Tex.Crim.App.2008); see Almanza v. State, 686 S.W.2d 157, 172 (Tex.Crim.App.1985) (op. on reh’g). Errors that result in egregious harm are those that affect “the very basis of the case,” “deprive the defendant of a valuable right,” or “vitally affect a defensive theory.” Ngo, 175 S.W.3d at 750; Hutch, 922 S.W.2d at 171 (citing Almanza, 686 S.W.2d at 172). B. UNANIMITY OF THE VERDICT ON COUNT 41 1. Applicable Law The Texas Constitution requires a unanimous verdict in felony criminal cases. TEX. CONST, art. V, § 13; see TEX.CODE CRIM. PROC. ANN. art. 36.29(a) (West Supp.2010). A unanimous verdict is more than a mere agreement on a violation of a statute; it ensures that the jury agrees on the factual elements under-lying an offense. Francis v. State, 36 S.W.3d 121, 125 (Tex.Crim.App.2000) (op. on reh’g) (en banc). Generally, instructing a jury on alternative theories of committing the same offense does not violate the unanimity requirement. Martinez v. State, 129 S.W.3d 101, 103 (Tex.Crim.App.2004). If a defendant is charged with multiple offenses, however, the trial court must instruct the jury that it cannot return a guilty verdict unless it unanimously agrees upon which offense the defendant committed. Gonzalez Soto v. State, 267 S.W.3d 327, 335 (Tex.App.-Corpus Christi 2008, no pet.) (citing Ngo, 175 S.W.3d at 744). We determine exactly what a jury must be unanimous about by examining the legislative intent of the applicable statute. Id. (citations omitted). The statute at issue here is section 22.021 of the penal code, which provides, in relevant part, that a defendant commits an offense if he intentionally or knowingly: (i) causes the penetration of the anus or sexual organ of a child by any means; (11) causes the penetration of the mouth of a child by the sexual organ of the actor; (iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; (iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or (v) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor; and the victim is younger than fourteen years of age. TEX. PENAL CODE ANN. § 22.021(a)(1)(B), (2)(B). The Texas Court of Criminal Appeals has ruled that section 22.021 is a conduct-oriented offense in which the Legislature criminalized specific acts of conduct of several different types. Vick v. State, 991 S.W.2d 830, 832 (Tex.Crim.App.1999). In other words, each of the above separately-described acts constitutes a separate statutory offense. Id. at 833. For example, an allegation that a defendant caused a child’s sexual organ to contact his mouth is a separate and distinct offense from an allegation that the defendant penetrated the child’s sexual organ with his sexual organ. See id. Likewise, touching a child’s breast and touching a child’s genitals are separate offenses. See Francis, 36 S.W.3d at 124. For our purposes, however, there is one notable exception to Vick’s general rule— the exception for subsumed conduct. See Patterson v. State, 152 S.W.3d 88, 92 (Tex.Crim.App.2004) (en banc); Valdez v. State, 211 S.W.3d 395, 400 (Tex.App.-Eastland 2006, no pet.); Hendrix v. State, 150 S.W.3d 839, 848 (Tex.App.-Houston [14th Dist.] 2004, pet. refd). It is true that section 22.021 identifies different types of conduct that constitute separate offenses, even if the different acts occur in the same transaction. Valdez, 211 S.W.3d at 400; see Tyson v. State, 172 S.W.3d 172, 178 (Tex.App.-Fort Worth 2005, pet. refd). There are some cases, though, in which one of the acts would necessarily be subsumed by another, such as contact and penetration. Valdez, 211 S.W.3d at 400; see Gonzalez Soto, 267 S.W.3d at 339. In that event, what would appear under the charge to be two acts — contact and penetration — is, essentially, one act for purposes of determining unanimity, and as such, the defendant’s right to unanimity in his verdict is not violated because every juror who believed that the defendant penetrated the alleged victim “necessarily believed that the antecedent contact had occurred.” Valdez, 211 S.W.3d at 400; see Hendrix, 150 S.W.3d at 848; see also Patterson, 152 S.W.3d at 92 (holding that penile contact with the alleged victim’s mouth, genitals, or anus in the course of penile penetration is subsumed within the penetration offense). 2. Discussion In his first issue, Cueva argues that the jury charge on Count 4 was erroneous because the jury could have found him guilty of aggravated sexual assault without unanimously agreeing that Cueva either contacted or penetrated A.G.’s anus. We disagree. In Count 4, the jury was charged as follows: Now if you find from the evidence beyond a reasonable doubt that [Cueva], on or about August 5, 2007, in Nueces County, Texas, did then and there intentionally or knowingly cause his sexual organ to contact or penetrate the anus of [A.G.], and that [A.G.] was then younger than 14 years of age and not the spouse of [Cueva], then you will find [Cueva] guilty of Count 4: Aggravated Sexual Assault Of A Child. Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find [Cueva] not guilty of Count 4: Aggravated Sexual Assault Of A Child. The allegation that Cueva caused his sexual organ to contact A.G.’s anus is subsumed within the allegation that he penetrated A.G.’s anus with his sexual organ. Every juror who believed that Cueva penetrated A.G.’s anus necessarily believed that he contacted it. Unlike the cases in which the alleged conduct was contact or penetration of separate body parts, here, Cueva could only be convicted under Count 4 if the jury determined that he assaulted AG.’s anus. In other words, the jury could not divide over whether Cueva assaulted one body part or another but, rather, necessarily had to agree that Cue-va contacted or penetrated A.G.’s anus to return a guilty verdict. Cueva argues that because A.G. testified to multiple instances of contact and penetration, the penetration-subsumes-contact exception does not apply to the facts of this case. In support of his argument, Cueva cites the following three cases: Gonzalez Soto, 267 S.W.3d at 339; Martinez v. State, 212 S.W.3d 411, 419-20 (Tex.App.-Austin 2006, pet. ref'd); and Stewart v. State, No. 14-08-00625-CR, 2009 WL 1202013, at *2-3, 2009 Tex.App. LEXIS 2085, at *7 (Tex.App.-Houston [14th Dist.] May 5, 2009, no pet.) (mem. op., not designated for publication). These cases are, however, distinguishable from the present case. In Gonzalez Soto, the jury charge contained one count of aggravated sexual assault of a child and instructed the jury to convict Gonzalez Soto of the offense if he “intentionally or knowingly ... eause[d] his sexual organ to contact the mouth” of the complainant or “intentionally or knowingly cause[d] his sexual organ to penetrate the mouth” of the complainant or “intentionally or knowingly cause[d] his finger to penetrate the sexual organ” of the complainant. 267 S.W.3d at 336. At trial, the complainant “testified that there were two separate incidents in which appellant caused his penis to penetrate her mouth — one in her mother’s bedroom and a second incident in her bedroom.” Id. at 339. In Martinez, the jury charge, again, contained only one count of aggravated sexual assault of a child and instructed the jury to convict Martinez of the offense if he “knowingly and intentionally ... eause[d] the penetration of the anus of [the complainant] ..., cause[d] the anus of [the complainant] ... to contact the sexual organ” of Martinez. 212 S.W.3d at 415. The aggravated sexual assault count did not include the word “and” or “or” in between the “penetration” phrase and “contact” phrase. Id. At trial, the complainant “testified that the abuse happened on more than one occasion.” Id. at 414. In Stewart, the jury charge also contained one count of aggravated sexual assault of a child and allowed conviction for the offense if “on or about the 2nd day of January, 2005,” the appellant “intentionally or knowingly cause[d] the contact or penetration of the anus or female sexual organ of [the complainant] ... by [Stewards sexual organ....” 2009 WL 1202013, at *3, 2009 Tex.App. LEXIS 2085, at *8-9. At trial, the complainant testified that the defendant “touched his private parts to her private parts on three occasions in January 2005.” Id. at *1, 2009 Tex.App. LEXIS 2085, at *2. Here, the jury was instructed in seven separate counts regarding different alleged offenses on different dates. The only detailed testimony offered by A.G. concerning contact or penetration of her anus was the incident on August 5, 2007, in which A.G.’s mother walked in on Cueva in a compromising position with A.G. We acknowledge that A.G. testified that Cueva touched her with his “private” on her “front” and “back” “more than one time.” A.G.’s mother also testified that A.G. told her “it had happened more than once. She did not specify exactly when. She just said whenever I would shower or leave.” Carol McLaughlin, the Sexual Assault Nurse Examiner (S.A.N.E.), testified similarly, stating that A.G. told her that Cueva “does this every time when my mom leaves.” However, unlike Gonzalez Soto, Martinez and Stewart, in which the complainants testified clearly about multiple incidents yet the jury charges contained only one count of aggravated sexual assault, the jury at Cueva’s trial was charged with multiple counts of aggravated sexual assault on multiple dates and A.G.’s vague recollections that Cueva had touched her on more than one occasion did not create a danger that the jury would confuse the specific testimony regarding the incident on August 5, 2007 — the incident charged in Count 4 — with the unspecified instances A.G. alluded to in her comment that Cueva had touched her “more than one time.” Gonzalez Soto, Martinez, and Stewart are, therefore, inapplicable to the facts of this case, and we are not persuaded by Cueva’s argument that the penetration-subsumes-contact exception does not apply to Count 4. Based on the foregoing, we conclude that no error existed that violated Cueva’s right to unanimity in his verdict in Count 4 of the jury charge. See Ngo, 175 S.W.3d at 743-44. Having found no error, we need not address harm. See id. at 743. Cueva’s first issue is overruled. C. GOOD CONDUCT TIME AND PAROLE CHARGE INSTRUCTION By his second issue, Cueva contends, and the State agrees, that the trial court’s punishment charge improperly instructed the jury that good conduct time would be added to actual time served to determine when Cueva would be eligible for parole. Given that Cueva did not object to this portion of the punishment charge, the question for this Court is whether Cueva was egregiously harmed by this error. See id. at 743^44. 1. Applicable Law For certain offenses, including those for which Cueva was convicted, article 37.07, section 4(a) of the code of criminal procedure requires that the following parole law instruction be included in the punishment charge: Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner. It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole. Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted. It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities. You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant. TEX.CODE.CRIM. PROC. ANN. ART. 37.07, § 4(a) (West Supp.2010) (emphasis added); see id. at art. 42.12, § 3g(a)(l) (West Supp.2010). 2. Discussion While the mandatory parole instruction was given in the punishment jury charge, the trial court erred when it included the following italicized language in the third paragraph of its parole instruction: Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment he will not become eligible for parole until the actual time served plus any good conduct time earned equals one-half of the sentence imposed or 30 years, whichever is less. Eligibility for parole does not guarantee that parole will be granted. (Emphasis added.) Cueva argues that, by this error, the trial court essentially instructed the jury that he would become eligible for parole much earlier than he actually would be under the correct law. Cueva asserts that the jury responded to this erroneous instruction by imposing extremely lengthy sentences that were “especially harsh” — seventy years for each count of aggravated sexual assault and fifteen years for indecency with a child. He argues that “[t]he trial court’s gross misstatement of the law misled the jury and adversely affected how it viewed parole and good conduct time, which the charge plainly authorized the jury to consider.” Cueva contends that “the erroneous parole instruction affected the very basis of the sentences and caused egregious harm.” We disagree. The court of criminal appeals has refused to find that a similar error of this nature was egregious error. See Igo, 210 S.W.3d at 647. In Igo, the punishment charge informed the jury that Igo “would not become eligible for parole until the actual time served, plus good time, equaled one-fourth of the sentence imposed,” when it should have been instructed that Igo “would not become eligible for parole until the actual time served, without considering good time, equaled one-half of the sentence imposed.” Id. at 646. Concluding that the error resulted in no egregious harm, the Igo Court reasoned as follows: Although appellant did receive the maximum sentence, a number of other factors mitigate against a finding of egregious harm. First, the parole instruction contained the standard curative language admonishing the jury not to consider the extent to which the parole law might be applied to the defendant. Second, parole was not mentioned by either counsel during argument on punishment. And finally, the evidence relating to punishment was exceptionally strong. Id. at 647; see Ross v. State, 138 S.W.3d 618, 623 (Tex.Crim.App.2004) (finding a similar error to be harmless, so long as there was no reasonable probability that the jury was misled into believing that if the defendant received a life sentence he might become eligible for parole in less than forty years through the award of good conduct time or that he was certain to be released after he became eligible for parole); Stewart v. State, 293 S.W.3d 853, 855-62 (Tex.App.-Texarkana 2009, pet. ref d) (being guided by the analysis provided in Igo, the Texarkana Court concluded that a substantially similar punishment charge error was not egregious); Warner, 245 S.W.3d at 461 (explaining that egregious harm is assessed in light of the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information in the record). In this case, Cueva was sentenced to a substantial, but not the maximum, sentence on the two counts of aggravated sexual assault. See TEX. PENAL CODE ANN. §§ 12.31, 22.021(e). The seventy-year sentences were to run concurrently with the fifteen-year sentence assessed for his indecency-with-a-child conviction. Moreover, the instruction in question effectively told the jury that its sentence would have an effect on when Cueva became eligible for parole if that sentence was sixty years or less, but that, for sentences over sixty years, a thirty-year term would automatically apply. Because the two significantly longer sentences in this case were for seventy years each, they were outside the range within which this section applied. Therefore, there was no parole-based incentive to lengthen the sentences beyond sixty years, and it is reasonable to conclude that the jury chose seventy-year sentences for other reasons. In addition, the jury charge contained the standard curative instruction which consisted of a total of five paragraphs, only one of which contained an error. See Igo, 210 S.W.3d at 647. While the charge erroneously instructed the jury concerning when Cueva might become eligible to be considered for parole, it did inform the jurors, in accordance with the statute, that they were not to consider the manner in which the parole law may be applied to Cueva. Assuming the jury followed this instruction, see Gamboa v. State, 296 S.W.3d 574, 580 (Tex.Crim.App.2009), we conclude, as did the Beaumont Court in Stewart v. State, that “[t]his factor, alone, does not dictate a finding of egregious harm.” 293 S.W.3d at 857; see Igo, 210 S.W.3d at 647. Furthermore, neither parole nor good conduct time was mentioned during punishment arguments. This suggests that the issue of the parole law was not central to the punishment stage of the case. See Igo, 210 S.W.3d at 647; Stewart, 293 S.W.3d at 859. Finally, we assess harm based, in part, on the state of the evidence. See Warner, 245 S.W.3d at 461; Stewart, 293 S.W.3d at 857. The State’s punishment evidence set out a number of undesirable changes noted in A.G.’s behavior following Cueva’s actions. The evidence also highlighted conditions for probation and the unlikelihood that Cueva, who was described as an opportunistic and impulsive person, would successfully complete any probation period. And Cueva had been found guilty of repeatedly sexually assaulting and fondling A.G., a five-year-old girl, who was in the vulnerable position of becoming his stepdaughter. The above evidence, as well as the “visceral nature of the offense itself[,] offer sufficient support to explain the jury’s assessment of punishment without suggesting harm from the charge.” Stewart, 298 S.W.3d at 858. Under the stringent standards necessary to show egregious harm, see Ellison, 86 S.W.3d at 227; Hutch, 922 S.W.2d at 171, we conclude that this error did not affect the very basis of his sentences, as urged by Cueva. See Ngo, 175 S.W.3d at 750; Hutch, 922 S.W.2d at 171. Egregious harm has not been shown. Cueva’s second issue is overruled. III. INEFFECTIVE ASSISTANCE OF COUNSEL By his third issue, Cueva complains that he received ineffective assistance of counsel during the guilt-innocence stage and, by his fourth issue, that he received ineffective assistance during the punishment stage. By more than twenty-five sub-issues, Cueva asserts that he was denied effective assistance of counsel for failing to investigate, failing to admit evidence, eliciting or failing to object to testimony, failing to object to arguments made by the prosecutor, making improper jury arguments, and failing to object to the jury charges. The trial court imposed sentence against Cueva on March 12, 2009 and signed the judgment of conviction on March 25, 2009. Cueva timely filed a motion for new trial on April 13, 2009, bringing a number of ineffective-assistance-of-counsel claims. See TEX.R.APP. P. 21.8 (explaining that a defendant may file a motion for new trial no later than 30 days after the date the trial court imposes or suspends sentence in open court). Cueva’s motion was heard on May 14, 15, and 21, 2009, at which time Cueva’s trial counsel testified and the trial court admitted, as exhibits, the psychological evaluation, curriculum vitae, and supplemental affidavit of defense expert, Paul Hamilton, Ph.D., and the psychiatric evaluation of the State’s expert, Joel Kutnick, M.D. Cueva asserted, over the State’s objection, additional complaints of ineffective assistance for the first time at the hearing. The trial court denied the motion for new trial by written order on May 26, 2009, the seventy-fifth day after Cueva’s sentence was imposed in open court. See id. (“The court must rule on a motion for new trial within 75 days after imposing or suspending sentence in open court.”). Seven days later, on June 1, 2009, Cueva requested findings of fact. Cueva appealed from the judgment. On appeal, Cueva included complaints of ineffective assistance of counsel made for the first time on appeal. On July 1, 2009, the trial court signed and filed its findings. The trial court summarized its findings as follows in finding of fact 4 (guilt-innocence stage) and finding of fact 44 (punishment stage): The Court finds that, with regard to each of the claims individually, and as a whole, Cueva has failed to prove by a preponderance of the evidence either that [counsel’s] performance was deficient or outside the range of competence demanded of attorneys in criminal cases, or that it is reasonably probable that the alleged deficiencies, individually or together, prejudiced his defense to the extent that, but for the supposed deficiencies, Cueva would not have been found guilty at trial or the result of the proceeding would have been different. The trial court filed sixty-one additional findings of fact, specific as to Cueva’s ineffective-assistance-of-counsel claims. A. TRIAL COURT’S FINDINGS As a threshold issue, the State asserts that we should not consider the trial court’s findings because the trial court did not make its findings when it ruled on Cueva’s motion for new trial. The trial court imposed sentence against Cueva in open court on March 12, 2009 and denied Cueva’s motion for new trial seventy-five days later, on May 26, 2009. The trial court’s findings were filed on July 1, 2009, more than one month after it ruled on the motion and more than 100 days after sentence was imposed. The State asserts that discretionary rule of appellate procedure 21 “ties” the trial court’s findings to its ruling on the motion, and, therefore, those findings, like the ruling, must have been made within seventy-five days after the trial court imposed Cueva’s sentence. See TEX.R.APP. P. 21.8(a)-(b). We disagree. Texas Rule of Appellate Procedure 21 provides, in relevant part, the following trial court process for ruling on a motion for a new trial and for making findings of fact: (a) Time to rule. The court must rule on a motion for new trial within 75 days after imposing or suspending sentence in open court. (b) Ruling. In ruling on a motion for new trial, the court may make oral or written findings of fact.... Id. The earlier version of rule 21.8(b) set out that “[i]n ruling on a motion for new trial, the court must not summarize, discuss, or comment on evidence.” Landers v. State, 256 S.W.3d 295, 301 n. 4 (Tex.Crim.App.2008). Now, “the court may make oral or written findings of fact.” TEX.R.APP. P. 21.8(b). “The rationale for the change in the rule is to ensure that appellate courts will not need to speculate as to the possible factual findings supporting a trial judge’s ruling if the trial judge will articulate them.” Lan-ders, 256 S.W.3d at 301 n. 4 (citing State v. Cullen, 195 S.W.3d 696, 698 (Tex.Crim.App.2006) (noting that a trial court’s refusal to enter findings of fact “leaves appellate courts with nothing to review except a one-word ruling and forces the courts of appeals to make assumptions about the trial court’s ruling” where “[t]he ruling could be based on a mistake of law, on the trial court’s disbelief of the testimony presented, or even on a clerical error”)); see In re Gillespie, 124 S.W.3d 699, 703 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (explaining, in a civil context, that the expiration of the trial court’s plenary power does not affect or diminish the trial court’s ability to make and file amended findings of fact). Unlike the Texas Rules of Civil Procedure, appellate rule 21.8 provides no time frame for requesting or filing findings or amended findings. Compare TEX. R.APP. P. 21.8, with TEX.R. CIV. P. 296 (providing that appellant shall file his request for findings within twenty days after the judgment is signed) and id. at R. 297 (setting out, among other things, that the court shall file its findings within twenty days after a timely request is filed), and id. at R. 298 (providing “[ajfter the court files original findings of fact ..., any party may file with the clerk of the court a request for specified additional or amended findings ... within ten days after the filing of the original findings ... by the court”). Guided by this rationale, we conclude that rule 21 does not require the trial court to make its findings within the same seventy-five-day period it has to rule on the motion for new trial, and we will, therefore, consider all relevant trial court findings. See TEX.R.APP. P. 21.8(a)-(b). We do so in an effort to ensure that we will not need to speculate as to the possible factual findings supporting the trial court’s ruling. See Landers, 256 S.W.3d at 301 n. 4. Furthermore, even were we to conclude that the trial court made its extensive and explicit written findings in error because the findings were issued after the expiration of the time period within which it was required to rule on the motion, the findings are, at worst, harmless. A reviewing court must defer to any plausible, implied factual findings that are reasonable and supported by the record and that would uphold the trial court’s ruling. See Johnson v. State, 169 S.W.3d 223, 239 (Tex.Crim.App.2005). As discussed in detail below, the trial court’s factual findings, in this case, are those which we would imply as necessary to support the ruling and to which we would defer because they are both reasonable and supported in the record. See id. The State also suggests that we should not consider the trial court’s findings because certain specific deficiency findings are inconsistent with the trial court’s general finding that “Cueva has failed to prove by a preponderance of the evidence ... that [counsel’s] performance was deficient or outside the range of competence demanded of attorneys in criminal cases.” However, when this general finding is read in its entirety, we find no such inconsistency. Finding of fact 4 set out, generally, that Cueva failed to prove that counsel’s performance was deficient or that a deficiency, if any, prejudiced his defense. Likewise, after each specific finding of deficiency, the trial court found that the deficiency, if any, did not prejudice Cueva’s defense. For example, by its specific finding 31, the trial court found that counsel’s “failure to ask for an instruction to disregard or a mistrial regarding improper testimony by [A.G.’s] mother about an extraneous assault fell below an objective standard of reasonableness under the prevailing professional norms.” In finding 32, the trial court then found that “any deficient performance did not cause prejudice.” Therefore, the State’s argument is not persuasive. As concluded above, all specific findings support the general language of finding 4, and we will consider all relevant trial court findings. B. STANDARDS OF REVIEW AND APPLICABLE LAW 1. Claims Raised in Motion for New Trial Appellate issues involving claims brought in a motion for new trial are really challenges to the trial court’s ruling on the motion. See Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App.2004), superseded in part by rule of appellate procedure 21.8(b) on other grounds, as recognized by State v. Herndon, 215 S.W.3d 901, 905 n. 5 (Tex.Crim.App.2007); Shanklin v. State, 190 S.W.3d 154, 158 (Tex.App.-Houston [1st Dist.] 2005), pet. dism’d, 211 S.W.3d 315 (Tex.Crim.App.2007); see also Delgado v. State, 13-09-00300-CR, 2010 WL 3279488, at *2, 2010 TexApp. LEXIS 6730, at *4-5 (Tex.App.-Corpus Christi Aug. 19, 2010, no pet.) (mem. op., not designated for publication). We review a denial of a motion for new trial under an abuse of discretion standard. Charles, 146 S.W.3d at 208; see Shanklin, 190 S.W.3d at 158; see also Delgado, 2010 WL 3279488, at *2, 2010 Tex.App. LEXIS 6730, at *4-5. A trial court abuses its discretion by denying a motion for new trial only when its decision is arbitrary or unreasonable — that is, when no reasonable view of the record could support the trial court’s ruling. Charles, 146 S.W.3d at 208; see Escobar v. State, 227 S.W.3d 123, 126 (Tex.App.-Houston [1st Dist.] 2006, pet. refd). Under the facts of this case, we will, therefore, review the two prongs of Strickland v. Washington, set out below, through this abuse of discretion standard of review, reversing only if the trial court’s decision, as to the claims raised in Cueva’s motion, is arbitrary or unreasonable. Charles, 146 S.W.3d at 208; My Thi Tieu v. State, 299 S.W.3d 216, 223 (Tex.App.-Houston [14th Dist.] 2009, pet. refd); Shanklin, 190 S.W.3d at 158-59; see Strickland, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984); State v. Gill, 967 S.W.2d 540, 542 (Tex.App.-Austin 1998, pet. ref'd) (holding that when a trial court grants a motion for new trial on the basis of ineffective assistance of counsel, an appellate court should review the standards of Strickland through a prism of the abuse of discretion standard and decide whether the trial court’s decision to grant a new trial was so outside the zone of reasonable disagreement that it is subject to reversal). Moreover, when the trial court files findings, as in this case, “[a]n appellate court should defer to the trial court’s findings of facts regarding the credibility and demeanor of the witnesses, viewing the evidence in the light most favorable to the trial judge’s rulings.” Gamboa, 296 S.W.3d at 584; see My Thi Tieu, 299 S.W.3d at 223; Shanklin, 190 S.W.3d at 158-59; see also Tex.R.App. P. 21.8. Because the trial judge is the sole judge of the credibility of the witnesses, a trial court does not abuse its discretion by denying a motion for new trial based on conflicting evidence. See Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995). And we “presume that all reasonable factual findings that could have been made against the losing party were made against that losing party.” Charles, 146 S.W.3d at 208 (citing Quinn v. State, 958 S.W.2d 395, 402 (Tex.Crim.App.1997); Beck v. State, 573 S.W.2d 786, 791 (Tex.Crim.App.1978) (noting that, at a motion for new trial hearing, the trial judge has “the right to accept or reject any part of’ a witness’s testimony)). We utilize a two prong Strickland analysis to determine whether counsel’s representation was so deficient that it violated a defendant’s constitutional right to effective assistance of counsel. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Appellant must show by a preponderance of the evidence that (1) counsel’s performance was deficient, and (2) the deficiency prejudiced the defense. Perez v. State, 310 S.W.3d 890, 893 (Tex.Crim.App.2010); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005); Jaynes v. State, 216 S.W.3d 839, 851 (Tex.App.-Corpus Christi 2006, no pet.); see Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Ex parte Martinez, 195 S.W.3d 713, 721 (Tex.Crim.App.2006). A defendant’s failure to satisfy one prong negates the court’s need to consider the other prong. Strickland, 466 U.S. at 697, 104 S.Ct. 2052; Williams v. State, 301 S.W.3d 675, 687 (Tex.Crim.App.2009), cert. denied, — U.S. -, 130 S.Ct. 3411, 177 L.Ed.2d 326 (2010). Counsel’s performance is deficient when his representation falls below an objective standard of reasonableness. Ex parte Briggs, 187 S.W.3d 458, 466 (Tex.Crim.App.2005); Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. In determining whether there is a deficiency, we afford great deference to trial counsel’s ability, indulging “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689, 104 S.Ct. 2052, and that counsel’s actions were the result of sound and reasonable trial strategy. Jaynes, 216 S.W.3d at 851. Decisions rooted in strategy do not constitute deficient performance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Unless a defendant can show in the record that counsel’s conduct was not the product of a strategic decision, “a reviewing court should presume that trial counsel’s performance was constitutionally adequate ‘unless the challenged conduct was so outrageous that no competent attorney would have engaged in it.’ ” State v. Morales, 253 S.W.3d 686, 696-97 (Tex.Crim.App.2008) (en banc) (quoting Goodspeed, 187 S.W.3d at 392); Roberts v. State, 220 S.W.3d 521, 533 (Tex.Crim.App.2007) (quoting Goodspeed, 187 S.W.3d at 392); cf. Andrews v. State, 159 S.W.3d 98, 102 (Tex.Crim.App.2005) (“[W]hen no reasonable trial strategy could justify the trial counsel’s conduct, counsel’s performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel’s subjective reasons for acting as she did.”). A defendant must also show that counsel’s deficiency caused prejudice — i.e., that the “errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To show prejudice, the defendant “must show there is a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different.” Smith v. State, 286 S.W.3d 333, 340 (Tex.Crim.App.2009) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). A reasonable probability of prejudice is a “probability sufficient to undermine confidence in the outcome,” meaning “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052); Mallett v. State, 65 S.W.3d 59, 62 (Tex.Crim.App.2001) (explaining that a lawyer’s deficient performance must undercut the “proper functioning of the adversarial process” such that the result of the trial cannot be reliable). “While the ultimate question of prejudice under Strickland is to be reviewed de novo, the trial court should be afforded deference on any underlying historical fact determinations.” Escobar, 227 S.W.3d at 127 (quoting Johnson, 169 S.W.3d at 239). “This right [to effective assistance of counsel] does not mean errorless or perfect counsel whose competency of representation is to be judged by hindsight.” Robertson v. State, 187 S.W.3d 475, 483 (Tex.Crim.App.2006). “The ‘right to effective assistance of counsel merely ensures the right to reasonably effective assistance.’” Id. (quoting Rylander v. State, 101 S.W.3d 107, 109-10 (Tex.Crim.App.2003) (en banc)). “Allegations of ineffectiveness of counsel must be firmly founded in the record,” Escobar, 227 S.W.3d at 127 (citing Mallett, 65 S.W.3d at 63), and a silent record that provides no explanation for counsel’s actions typically will not overcome the strong presumption of effective assistance. Rylander, 101 S.W.3d at 110— 11; Shanklin, 190 S.W.3d at 158-59. 2. Other Claims There are significant differences between the claims Cueva raised in his timely-filed motion for new trial and the claims Cueva argued at the hearing. Texas Rule of Appellate Procedure 21.4(a)-(b) provides, in relevant part, the following procedure for filing and amending a motion for new trial filed in a criminal case: (a) To file. The defendant may file a motion for new trial before, but no later than 30 days after, the date when the trial court imposes or suspends sentence in open court. (b) To amend. Within 30 days after the date when the trial court imposes or suspends sentence in open court but before the court overrules any preceding motion for new trial, a defendant may, without leave of court, file one or more amended motions for new trial. TEX.RAPP. P. 21.4(a)-(b). In addition, a defendant may not amend or enlarge his original motion with additional claims after the thirty-day period has expired, except when the State fails to object to the addition at the time those claims are raised. Clarke v. State, 270 S.W.3d 573, 580-81 (Tex.Crim.App.2008) (citing State v. Moore, 225 S.W.3d 556, 570 (Tex.Crim.App.2007)); see Jordan v. State, 883 S.W.2d 664, 665 (Tex.Crim.App.1994) (en banc) (setting out that the purpose of the hearing is for a defendant to fully develop the issues raised in this motion for new trial). Thus, rule 21.4(b) permits the State, after properly objecting, to insist that the trial court rule only upon the timely motion for new trial as originally filed or timely amended, but not as untimely amended. See TEX.R.APP. P. 21.4(b); see also Moore, 225 S.W.3d at 570. At the hearing on his motion for new trial, which occurred after the relevant thirty-day period had expired, Cueva attempted to enlarge or amend his original motion with additional ineffective-assistance claims. See Clarke, 270 S.W.3d at 580-81. The State objected to these additional claims. Because the State did so, the trial court should have ruled only on the motion for new trial as it was originally filed. See TEX.R.APP. P. 21.4(b); Moore, 225 S.W.3d at 570. Instead, the trial court allowed Cueva to present evidence on his additional claims and considered this evidence, in error. See TEX.R.APP. P. 21.4(b); Moore, 225 S.W.3d at 570. Nevertheless, it is well settled that ineffective assistance of counsel may be raised without the necessity of a motion for new trial. See Robinson v. State, 16 S.W.3d 808, 809-13 (Tex.Crim.App.2000). We, therefore, will consider these additional claims and arguments under the Strickland standard, based only on the trial record, without giving consideration to the evidence presented at the hearing on Cueva’s motion for new trial or to the trial court’s findings relevant to those claims. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052; see also TEX.R.APP. P. 21.4(b); Moore, 225 S.W.3d at 570. In addition, Cueva raises other claims of ineffective assistance of counsel for the first time on appeal. The Strickland standard also applies to these new claims. See Strickland, 466 U.S. at 687,104 S.Ct. 2052. Therefore, the claims raised for the first time at the hearing on the motion for new trial and objected to by the State and those made for the first time on appeal will be reviewed together. C. DISCUSSION 1. Claims Raised in Motion for New Trial We will first address the ineffective-assistance-of-counsel claims that Cueva presented in his motion for new trial and now asserts as part of his third and fourth issues on appeal. The trial court denied Cueva’s motion and filed findings regarding these claims. As set out above, we will review the claims raised in Cueva’s motion for new trial under an abuse of discretion standard. See Charles, 146 S.W.3d at 208. a. Cueva’s Written Statement Cueva first asserts that counsel’s performance was deficient and that he was harmed when counsel (1) failed to investigate matters and present evidence related to the voluntariness of his written statement, (2) withdrew the motion to suppress his written statement when counsel changed trial strategy, and (3) failed to request a jury instruction on voluntariness. A defendant’s statement must be voluntary to be admissible. U.S. CONST, amends. V & XIV; Jackson v. Denno, 378 U.S. 368, 376-77, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); see TEX.CODE CRIM. PROC. ANN. arts. 38.21, 38.22 § 2(b) (West 2005) (providing that a statement is admissible if made freely and voluntarily without compulsion or persuasion and the defendant knowingly, intelligently, and voluntarily waives statutory rights). A confession may be involuntary under the Due Process Clause only when there is police coercion or overreaching. See Colorado v. Connelly, 479 U.S. 157, 163-66,107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Oursbourn v. State, 259 S.W.3d 159,169-71 (Tex.Crim.App.2008). However, even absent coercion or overreaching, a confession may still be involuntary under the broader protections of Texas statutory law. See TEX. CODE CRIM. PROC. ANN. art. 38.22 § 6. The court of criminal appeals has set out the following fact scenarios, among others, that can raise a state-law claim of involuntariness: “(1) the suspect was ill and on medication and that fact may have rendered his confession involuntary; (2) the suspect was mentally retarded and may not have ‘knowingly, intelligently and voluntarily1 waived his rights; [or] (3) the suspect ‘lacked the mental capacity to understand his rights’.... ” Oursbourn, 259 S.W.3d at 172-73. When assessing the reasonableness of an attorney’s investigation, a reviewing court must consider the quantum of evidence already known to counsel and whether the known evidence would lead a reasonable attorney to investigate further. Ex parte Martinez, 195 S.W.3d at 721 (citing Wiggins v. Smith, 539 U.S. 510, 527, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). The Supreme Court has set out the following concerning the duty to investigate: Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. Wiggins, 539 U.S. at 521-23, 123 S.Ct. 2527; see Ex parte Martinez, 195 S.W.3d at 721; Ex parte Briggs, 187 S.W.3d at 466-67. In Strickland, the Supreme Court concluded that “the decision not to seek more character or psychological evidence than was already in hand was likewise reasonable” and that “[t]rial counsel could reasonably surmise from his conversations with respondent that character and psychological evidence would be of little help.” 466 U.S. at 699, 104 S.Ct. 2052. In addition, the defendant himself bears the primary duty to divulge to his attorney evidence of his own physical and emotional conditions that might have a bearing on the issues at trial. See Ex parte Martinez, 195 S.W.3d at 738 (providing that “the failure to present evidence of the alleged sexual abuse is borne primarily by applicant, as he had ample opportunity to divulge this evidence to his lawyer ... before trial”). Also, when the facts adduced at trial and at any hearings concerning ineffectiveness do not show that the defensive issue in question would have been viable, trial counsel is not deficient for failing to further investigate and pursue that defense at trial. See Ex parte Martinez, 195 S.W.3d at 724; Ex parte Lilly, 656 S.W.2d 490, 493 (Tex.Crim.App.1983) (en banc). In this case, the trial court found credible counsel’s testimony, given at the hearing, regarding Cuevá’s written statement given to the police and its voluntariness. Specifically, the trial court’s findings set out that the following testimony, provided by counsel at the hearing, was credible: (1) “[counsel] changed his initial strategy of attempting to exclude Cueva’s statement and instead attempted to use the statement at trial to show how the investigation had been ‘botched’ by the police” when they allowed “the video recording to cut off in the middle of the taped statement and then attempted] to complete the statement with an unrecorded written confession”; (2) “[counsel] did not believe he needed to have Cueva psychologically examined” based on meetings with Cueva and with members of his family; and (3) “no one from Cueva’s family mentioned that he was slow in school or expressed concern with his mental or psychological condition.” The trial court also found that counsel “made a reasonable determination, based on the facts available to him at the time, that he did not need a professional evaluation of, or further investigation into, Cueva’s psychological condition” and “[t]hus, had no reasonable grounds to oppose or question the voluntariness of the statement based on Cueva’s psychological condition.” As part of its findings, the trial court addressed the opinions rendered by Paul Hamilton, Ph.D., a psychologist who, after trial, examined Cueva for the defense to determine whether he understood his Miranda warnings and the sworn, written statement. The trial court found “implausible the opinions rendered by Dr. Paul Hamilton ... “that Cueva’s ‘emotional disturbance in combination with certain personality characteristics ... led him to sign a sworn, written statement without fully reading it and understanding its content, thereby rendering it unknowing and involuntary1 ... especially in light of the controverting affidavit and report of ... Joel Kutnick[, M.D.,] disputing this opinion and finding ‘no specific cognitive defects or attentional disorder.’ ” See Lewis, 911 S.W.2d at 7. The trial court farther found that, [counsel’s] abandonment of the motion to suppress and his failure to ask for a voluntariness instruction to the jury charge did not fall below an objective standard of reasonableness under the prevailing professional norms, in light of the fact that [counsel] had no reason to believe that Cueva could raise a legitimate challenge to the voluntariness of the statement. It concluded by finding “that abandonment of the motion to suppress was a reasonable trial strategy under the circumstances in order to use the statement against the police and to show how the overall investigation had been mishandled.” We also note that absent from the record is any indication that Cueva himself expressed to his trial attorney that he was too slow or emotionally impaired to voluntarily make the statement in question. See Ex parte Martinez, 195 S.W.3d at 738. Rather, at trial, Cueva claimed only that he did not read the statement because he knew the officer in question and trusted him to have typed it up correctly. Therefore, deferring to the trial court’s findings of facts regarding the credibility and demeanor of the witnesses and viewing the evidence in the light most favorable to the trial judge’s rulings, see Gamboa, 296 S.W.3d at 584, we conclude that the trial court’s decision that counsel’s actions in this regard were not deficient was not an abuse of discretion. See Charles, 146 S.W.3d at 208; see also Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Cueva has not demonstrated that counsel performed “below an objective standard of reasonableness” on this basis. See Ex parte Briggs, 187 S.W.3d at 466. b. “Victim” Language Cueva complains that counsel’s actions were deficient when counsel referred to A.G. as the victim at least five times during the course of the trial and, by his actions, conceded that Cueva had committed a crime. He contends that counsel’s purported strategic explanation for his conduct was unsound. Cueva also asserts that the prejudicial effect of counsel’s use of this word was compounded when the State and its witnesses described A.G. as the victim twenty-three times during the guilt-innocence stage, without objection. In response, the State argues the following: “Victim” is a convenient label that identifies who the witnesses and attorneys are arguing about. It is a more common and commonly understood term, and less stuffy than “complainant,” less awkward than continuing to refer to the person as the “alleged victim,” and does not suggest what may be perceived as inappropriate familiarity in referring to the person by their [sic] name. Moreover, in view of the vigorous defense presented in the present case, there should have been no doubt in the jury’s mind that it was merely being used as a convenient label and not as any sort of admission that the crime actually occurred. Cueva cites Talkington v. State and Veteto v. State for the proposition that references to the complainant as the “victim” are improper when made by the trial court because they constitute comments on the weight of the evidence. See Talkington, 682 S.W.2d 674, 674-75 (Tex.App.-East-land 1984, pet. ref d) (explaining that the trial court’s reference in its charge to the “victim” in a rape case was an improper comment on the weight of evidence because there was no dispute that sexual intercourse had occurred and the sole issue was whether it was consensual and whether the complainant was truly a “victim”); Veteto, 8 S.W.3d 805, 816-17 (Tex.App.-Waco 2000, pet. ref'd), abrogated on other grounds by State v. Crook, 248 S.W.3d 172, 174-75 (Tex.Crim.App.2008) (determining that the trial court “gave credence to [the complainant’s] testimony that the assaults occurred and that she was, indeed, a victim” by referring to the complainant as the victim instead of the alleged victim and concluding that the trial court commented on the weight of the evidence by failing to refer to A.L. as the “alleged” victim). Cueva asserts that references to “victim” by lawyers and witnesses are equally improper and unfairly prejudicial, not because they are comments on the weight of the evidence, but because the references suggest personal opinions that a crime occurred. Cueva refers this Court to Craig v. State and Doherty v. State as cases that are sufficiently analogous to the present case so as to lend support to his argument. See Craig, 847 S.W.2d 434, 435-36 (Tex.App.-El Paso 1993, no pet.); Doherty, 781 S.W.2d 439, 441-42 (Tex.App.-Houston [1st Dist.] 1989, no pet.). On remand, the Craig Court reviewed counsel’s effectiveness only at the punishment stage, not the guilt-innocence stage, and considered the effect of his performance by applying the then-accepted Duffy standard, not the Strickland standard. Craig, 847 S.W.2d at 435-36 (citing Ex parte Duffy, 607 S.W.2d 507, 514 n. 14 (Tex.Crim.App.1980)) (explaining that the Duffy test for effectiveness of counsel in the punishment phase of a non-capital offense was, first, whether counsel was reasonably likely to render effective assistance, and second, whether counsel reasonably rendered effective assistance). These facts alone distinguish Craig from the present case. Nonetheless, in its original opinion, the El Paso Court had found that counsel’s actions during the guilt-innocence stage were deficient when, among other things, counsel framed questions on-cross-examination in a manner that accepted “a State-oriented interpretation of the circumstantial evidence and implications of the witness’s testimony.” Id. at 435 (citing Craig v. State, 783 S.W.2d 620, 625-26 (Tex.App.-El Paso 1989) rev’d, 825 S.W.2d 128 (Tex.Crim.App.1992) (en banc)). On remand, the court further concluded that “[g]iven these [eight] instances of deficient performance of counsel throughout the trial, [including the one noted above,] we are constrained to find that [Craig] did not receive reasonably effective assistance of counsel at the punishment stage of trial.” Id. at 435-36. The Craig court reversed the judgment and remanded for a new trial only on punishment. Id. at 436. The Doherty Court determined that counsel’s omissions, including his failure to call certain witnesses and to object on numerous legal grounds to the State’s questions and to the admissibility of exhibits at the guilt-innocence stage, met both prongs of Strickland. 781 S.W.2d at 442. Concluding that counsel’s ineffective assistance warranted remand for a new trial, the First Court of Appeals added the following: However, [counsel] did not stop there. Aside from his omissions, [counsel] himself made remarks prejudicial to appellant. [Counsel’s] remarks to appellant, “you didn’t take all the money?” and, “What did you do, hit him over the head first?” were heard 15-20 feet away. Fleming essentially admitted his client’s guilt in the presence and hearing of the jury. We find that, considering the totality of [counsel’s] representation of appellant, [counsel’s] performance did not meet the standard of reasonably effective assistance of counsel. Id. Although both Craig and Doherty found multiple deficiencies in the respective counsel’s performance, none of the deficiencies involved the use of the word “victim.” Specific to Cueva’s argument, Craig’s counsel framed questions on cross-examination in a manner that accepted the State’s interpretation of the evidence. See Craig, 847 S.W.2d at 435. Doherty’s counsel asked him, with the jury nearby, if he took all the money and if he hit the victim over the head first. See Doherty, 781 S.W.2d at 441-42. Counsel’s performance in each case arguably suggests a personal opinion that a crime occurred. We cannot conclude the same through Cueva’s counsel’s use of “victim” or through his failure to object to another’s use of the word, as Cueva urges. This conclusion is supported by the trial court’s findings in this case. It found counsel’s testimony regarding references to the complainant as “victim” credible; specifically, that counsel did not object to the use of “victim” “because he did not believe it was practical to restrict the labels used to identify the parties in this manner” and “because he did not believe the references were harmful [to the defense], because jurors expected the use of such terms and were not influenced by their use.” The trial court found that counsel’s performance as it related to the use of the word “victim” was not deficient, and specifically, the court found that counsel’s own use of the term was not deficient “in light of the fact that such terms are commonly used at trial in a neutral manner to describe the events in question and, in context, carry no implication that the person using such terms has an opinion one way or the other about the guilt of the defendant.” The trial court further found that any deficient performance regarding use of the “victim” language “did not cause prejudice, and specifically that there is not a probability sufficient to undermine confidence in the outcome that, but for the complained-about deficiencies, the result of the proceeding would have been different.” We agree — because the term “victim” is relatively mild and non-prejudicial, especially given that courts have held invocation of far stronger terms did not amount to reversible error. See Lopez v. State, 162 Tex.Crim. 454, 286 S.W.2d 424, 425 (Tex.Crim.App.1956) (holding that the use of the word “slaughter” did not cause injury to appellant); Espalin v. State, 90 Tex.Crim. 625, 237 S.W. 274, 279 (Tex.Crim.App.1921) (concluding that the prosecutor’s reference to appellant as “this killer” was not so prejudicial as to injure appellant’s rights); Jones v. State, 900 S.W.2d 392, 397 (Tex.App.-San Antonio 1995, pet. refd) (deciding that the prosecutor’s use of the term “sex slave” in regard to the complainant was not reversible error); White v. State, 699 S.W.2d 607, 615 (Tex.App.Dallas 1985, pet. ref'd) (determining that the use of the word “butcher” in reference to the appellant was not improper); see also Byler v. State, No. 03-01-00012-CR, 2002 WL 347753, at *3, 2002 Tex.App. LEXIS 1667, at *9-10 (Tex.App.-Austin Mar. 7, 2002, pet. ref'd) (mem. op., not designated for publication) (holding that counsel was not inef