OPINION A jury found appellant Jimmy Urista Navarro guilty of sexual assault of a child and prohibited sexual conduct for sexual abuse perpetrated against his biological daughters when they were teenagers. See Tex. Penal Code §§ 22.011(a)(2)(A), 25.02(a)(1). The jury assessed his punishment at confinement for twenty years in the Texas Department of Criminal Justice for each offense, see id. § 12.33, and the trial court sentenced appellant consistent with the verdicts, ordering the sentences to be served concurrently, see id. § 3.03. In these appeals, appellant complains about error in the jury charges and asserts that his trial counsel rendered ineffective assistance. Finding no reversible error, we affirm the trial court’s judgments of conviction for sexual assault of a child and prohibited sexual conduct. On review of the record, we have found non-reversible error in the trial court’s written judgment of conviction for prohibited sexual conduct. We will modify that judgment to correct the error and, as modified, affirm it. BACKGROUND In cause number A-18-0119-SB (appeal number 03-19-00278-CR), appellant was charged with sexual assault of a child for having sexual intercourse with his older daughter when she was sixteen. See Tex. Penal Code § 22.011(a)(2)(A). In cause number A-18-0200-SA (appeal number 03-18-00279-CR), appellant was charged with prohibited sexual conduct for later engaging in deviate sexual intercourse with his younger daughter when she was seventeen. See id. § 25.02(a)(1). The cases were consolidated for trial. During the State’s case in chief in the guilt- innocence phase, appellant’s older daughter (OD) and his younger daughter (YD) both testified.[1] In addition, two police detectives testified about their investigation of this case, and a forensic interviewer from the children’s advocacy center testified about her interviews of YD and her little brother, who was eleven years old when interviewed. Appellant testified on his own behalf, denying that he engaged in any sexual activity with his daughters, and a neighbor of appellant’s parents testified that, based on her observations of and interactions with the family, appellant was a “strict father,” but she felt that his relationship with his children was “good.” During the State’s rebuttal, a school records custodian testified, and YD’s school attendance records were admitted. In addition, appellant’s son testified about appellant’s treatment of his children. The jury heard evidence that appellant, his two daughters, and his son lived together in an apartment in San Angelo. Testimony from all three of appellant’s children reflected that appellant was physically abusive toward his children, particularly his daughters. As appellant’s fourteen-year-old son explained, appellant would hit and slap them “a lot,” striking them “across the face, body, anything.” While the abuse happened to him, “it was more against [his] sisters.” They would get hit when they got in trouble, when appellant got mad, or “if [appellant] was having a bad day.” Testimony also showed that appellant would keep the girls home from school as punishment.[2] On several occasions, appellant put YD in his closet for multiple days (“maybe a week,” according to her brother), making her stay in there day and night. He pushed his mattress against the door and only let her out to go to the bathroom (at specific times that he set) and, after several days, to get herself food. Appellant was also very controlling of his children, especially his daughters, and tended to isolate them. None of the children could have friends over to the apartment, and they were not allowed to go to friends’ houses. Neither of the girls were allowed to wear makeup or style their hair, nor were they allowed to have boyfriends or date. In fact, other than their classmates at school, they were not supposed to talk to boys. Nineteen-year-old OD described an incident that occurred in July 2015 when she was sixteen years old (the summer before her junior year of high school) and her father had sexual intercourse with her. OD testified that after appellant asked her to scratch his back, under his shirt, which was a common occurrence, she went to her room to lie down on her bed. Appellant followed her into her room and lay down with her on her twin bed, lying with his front to her back as she lay on her side. He asked her if she had had sex before. When she told him “no,” he began “touching [her] inappropriately.” Appellant started touching her on the chest and then moved slowly down her body. OD said that when he reached her waist, he pulled her pants down. He touched her “down there” “on [her] vagina” with his hand. OD explained that she “just felt him . . . and then he put it in me.” She clarified that appellant “had put his dick inside [her] vagina” and said that she “remember[ed] just wanting to cry.” After appellant finished, “he got off of [her]” and went to his room, and she went to the bathroom. As she cleaned herself up, she “ saw blood” and “all kinds of stuff.” OD said that she did not know what to do; she “was so scared.” When she left the bathroom, appellant called her into his room and made her promise that she would not tell anyone. OD testified that she moved out of the apartment in February 2017 the day she turned eighteen—without telling appellant about her plans because he would have stopped her. Eighteen-year-old YD testified that in the summer of 2017, when she was seventeen years old, her father came to her room one night while she was in bed. He asked if he could play with her skin and then he started “biting” her skin.[3] He began biting the skin on her belly and then “started moving down more.” He took off her sweatpants, leaving them on one leg, and bit her thighs and then “moved towards the middle of [her] and then put his mouth on [her].” Appellant then “just started using his fingers and put them inside [her].” YD clarified that appellant put his mouth “on [her] vagina” and confirmed that he “perform[ed] oral sex on [her].” She explained that she “didn’t say stop or anything” because she “didn’t know how he was going to react” and “we were already so scared of him.” She expressed that she “didn’t know what to do.” After appellant was finished, YD put her pants back on and turned and faced the wall. Her father got on one knee behind her and “had the nerve to ask [her] how it was.” YD did not tell anyone what appellant had done to her until she told OD in December of 2017 when they met for lunch and she saw text messages on OD’s phone that suggested that appellant had done something similar to OD. The jury found appellant guilty of both offenses. During the punishment phase, appellant’s daughters revealed more of appellant’s sexual abuse and violence against them. YD related that appellant had performed oral sex on her twice and both times he put his fingers in her vagina. She said that he would also frequently bite her ear and neck (“intimate bites”), suck on her ear, kiss her with an open mouth and bite her lip, and touch her breast. Once appellant threatened her with his pocket-knife when she did not face the corner during a “time out.”[4] YD explained that appellant was violent with everyone in the home “whenever they made him mad,” although “not really [her] little brother.” Appellant would also regularly damage or throw away their possessions. In addition, YD had “a lot of memories” of appellant being violent with her mother before they divorced. OD disclosed that the sexual-intercourse incident that she described during the guilt-innocence phase was the first instance of sexual abuse and that it happened “pretty often” after that—three or four times a week. She also described the various ways that appellant sexually violated her, saying that in addition to putting his penis in her vagina, he “would finger [her]” and perform oral sex on her and that on one occasion he “ tried to stick it inside [her] butt.” OD said that appellant never used any sort of protection; she was “always” worried that she would get pregnant. Appellant would pull her hair and slap her and call them “all kinds of messed up names.”[5] She explained that the physical abuse was “normal” for “[them] growing up.” She also described appellant’s destruction of their property, saying he would “throw [their] stuff away” and tear up their clothes and shoes with his pocket-knife. At trial, more than one year after they reported appellant’s sexual abuse to police, both of appellant’s daughters expressed that they were still afraid of him, had nightmares, and had anxiety issues. The jury also heard from appellant’s ex-wife, who described the violence in their relationship, which included appellant choking her, hitting her, tearing up her clothes, and destroying her possessions. She explained that she did not report his abuse because she was scared that he would hurt her since sometimes he threatened to kill her. Appellant’s ex-wife said that the abuse and violence happened “a lot” and that their children saw it. Appellant did not testify or present any punishment witnesses. The jury assessed a twenty-year prison sentence for each offense. The trial court sentenced appellant consistent with the jury’s verdicts. In each cause, appellant filed a motion for new trial, which was overruled by operation of law. See Tex. R. App. P. 21.8(c). These appeals followed. DISCUSSION In overlapping points of error, appellant asserts in his first point of error in appeal number 03-19-00278-CR and his third point of error in appeal number 03-19-00279-CR that his trial counsel rendered ineffective assistance by failing to object to leading questions and “damaging inadmissible hearsay” during the guilt-innocence phase of trial. In his second point of error in appeal number 03-19-00278-CR and his fourth point of error in appeal number 03-19- 00279-CR, he contends that the trial court commented on the weight of the evidence by defining “reasonable doubt” in the jury charge. Further, in his first point of error in appeal number 03-19-00279-CR, appellant argues that the trial court erred by failing to include an accomplice-witness instruction in the jury charge. Finally, in his fourth point of error in appeal number 03-19-00279-CR, he asserts that trial counsel rendered ineffective assistance by failing to request an accomplice-witness instruction in the jury charge for prohibited sexual conduct. Jury-Charge Error A trial court is statutorily obligated to instruct the jury on the “law applicable to the case.” See Tex. Code Crim. Proc. art. 36.14; Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018). The trial court’s duty to instruct the jury on the “law applicable to the case” exists even when defense counsel fails to object to inclusions or exclusions in the charge. Mendez, 545 S.W.3d at 552; Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013). The trial court is “ultimately responsible for the accuracy of the jury charge and accompanying instructions.” Mendez, 545 S.W.3d at 552 (quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)). We review alleged jury-charge error in two steps: first, we determine whether error exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015); Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005). The degree of harm required for reversal depends on whether the jury-charge error was preserved in the trial court. Mendez, 545 S.W.3d at 552; see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g) (setting forth procedure for appellate review of claim of jury-charge error). If the jury-charge error has not been properly preserved by an objection or request for instruction, see Tex. Code Crim. Proc. arts. 36.14, 36.15, as is the case here, reversal is required only if the appellant suffered “egregious harm,” “which occurs when the error created such harm that the appellant was deprived of a fair and impartial trial.” Chambers v. State, 580 S.W.3d 149, 154 (Tex. Crim. App. 2019); see Almanza, 686 S.W.2d at 171. In three points of error, appellant complains about the reasonable-doubt instruction given in both jury charges and about the omission of an accomplice-witness instruction in the jury charge for prohibited sexual conduct. Reasonable-Doubt Instruction In the jury charge in each case, the trial court included the following statement concerning the State’s burden of proof: “It is not required that the Prosecution prove guilt beyond all possible doubt; it is required that the prosecution’s proof excludes all ‘reasonable doubt’ concerning the defendant’s guilt.” In his second point of error in appeal number 03-19-00278-CR and his fourth point of error in appeal number 03-19-00279-CR, appellant contends that the trial court erred in submitting the phrase “It is not required that the Prosecution prove guilt beyond all possible doubt.” He asserts that this language, from the “old Geesa instructions,” constituted a comment on the weight of the evidence because it improperly defined “reasonable doubt.”[6] In support of his contention, appellant relies on this Court’s opinion in Rodriguez v. State, 96 S.W.3d 398, 405 (Tex. App.—Austin 2002, pet. ref’d), and the “evolving” law concerning the trial court’s inclusion of non-statutory definitions in the jury charge. See Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex. Crim. App. 2019) (observing that “a trial judge should, as a general rule, avoid including non-statutory instructions in the charge because such instructions frequently constitute impermissible comments on the weight of the evidence”); see also, e.g., Green v. State, 476 S.W.3d 440, 445–46 (Tex. Crim. App. 2015) (holding that trial court erred by giving jury-charge instructions that defined terms “penetration” and “female sexual organ” in prosecution for aggravated sexual assault of child). Although the same instruction at issue here was given in Rodriguez, appellant’s reliance on Rodriguez is misplaced. While it is true that this Court observed that the instruction did “state what reasonable doubt is not, and in this sense, is definitional,” see Rodriguez, 96 S.W.3d at 405, we did not conclude that it was an erroneous instruction because it constituted a comment on the weight of the evidence.[7] Rather, although observing that “the complained-of instruction [did] not appear to be too intrusive upon the ‘better practice,’” we concluded that “it should not have been given over objection.” Id.; see Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000) (stating that “the better practice is to give no definition of reasonable doubt at all to the jury”). However, after this Court’s opinion in Rodriguez, the Court of Criminal Appeals decided Woods v. State, in which the jury charge included some of the original Geesa instruction language, including paragraph [3], but did not include the objectionable language from paragraphs [4] and [5] that the Paulson court criticized. See 152 S.W.3d 105 (Tex. Crim. App. 2004). In Woods, the defendant did not object to the jury charge at trial; on appeal, he challenged only the inclusion of paragraph [3] of the Geesa reasonable-doubt instruction. Id. at 115. The Court of Criminal Appeals, noting that the instructions did not include the criticized portions of the Geesa reasonable-doubt instruction, held that “the trial court did not abuse its discretion by including paragraph [3] of the Geesa instruction.” Id. Several of our sister courts of appeals have thus determined that Woods is dispositive of the issue of whether the inclusion of the Geesa paragraph [3] instruction in the jury charge is error.[8] We agree and observe accordingly that this Court’s opinion in Rodriguez has been implicitly overruled by Woods. See Jones v. State, No. 03-08-00126-CR, 2008 WL 3166316, at *4 (Tex. App.—Austin Aug. 6, 2008, no pet.) (mem. op., not designated for publication); see also, e.g., Steadman v. State, 262 S.W.3d 401, 408 (Tex. App.—Waco 2008), reversed on other grounds, 280 S.W.3d 242 (Tex. Crim. App. 2009) (recognizing that court’s prior decision in Phillips v. State, 72 S.W.3d 719, 720 (Tex. App.—Waco 2002, no pet.), which determined that inclusion of Geesa paragraph [3] in jury charge was improper, “ha[d] been implicitly overruled by Woods“). Furthermore, even if we were to consider the complained-of instruction a “definition” as we did in Rodriguez, we cannot conclude that it was an impermissible comment on the weight of the evidence. The Court of Criminal Appeals has explained that a judge’s innocent attempt to provide clarity for the jury by including a neutral instruction can result in an impermissible comment on the weight of the evidence because the instruction “singles out a particular piece of evidence for special attention,” which the jury may then focus on as guidance from the judge. Beltran De La Torre, 583 S.W.3d at 617 (quoting Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000) (emphasis added)); see, e.g., Kirsch v. State, 357 S.W.3d 645, 652 (Tex. Crim. App. 2012) (holding that jury-charge instruction defining “operate” in DWI case was impermissible comment on weight of evidence because it “improperly impinged on the jury’s fact-finding authority by limiting the jurors’ understanding of what evidence could constitute” element of operating); Bartlett v. State, 270 S.W.3d 147, 153–54 (Tex. Crim. App. 2008) (rejecting jury-charge instruction stating that jury could consider evidence of defendant’s breath-test refusal in DWI case because such instruction served no function other than to “improperly tend to emphasize the evidence of the appellant’s refusal to submit to a breath test” and had potential to “obliquely or indirectly convey some [judicial] opinion on the weight of the evidence by singling out that evidence and inviting the jury to pay particular attention to it”) (internal quotations omitted); Brown v. State, 122 S.W.3d 794, 802–03 (Tex. Crim. App. 2003) (rejecting instruction that “intent or knowledge may be inferred by acts done or words spoken” because while neutral, it focused jury’s attention on evidence that might support finding of criminal intent, improperly told jury how to consider certain evidence, and improperly instructed jury on rule of appellate evidentiary sufficiency review). Appellant neither explains nor can we discern how the complained-of instruction singled out any particular piece of evidence for special attention or directed the jury how to consider certain evidence. The instruction simply explained the State’s burden of proof. It did not suggest, in any way, what type of evidence sufficed to meet this burden or how the jury should consider particular evidence when deciding whether the State’s burden had been met. Appellant here, like the defendant in Woods, challenges the trial court’s inclusion of paragraph [3] of the Geesa reasonable-doubt instruction and, also like the defendant in Woods, did not object to the inclusion of paragraph [3] at trial but contends on appeal that its inclusion mandates reversal. Following the holding in Woods and perceiving no impermissible comment on the weight of the evidence in the instruction, we conclude that the inclusion of paragraph [3] of the Geesa reasonable-doubt instruction in the guilt-innocence jury charges was not error.[9] We overrule appellant’s second point of error in appeal number 03-19-00278-CR and his fourth point of error in appeal number 03-19-00279-CR. Accomplice-Witness Instruction Concerning the jury charge in the prohibited-sexual-conduct case, appellant argues that the trial court erred in failing to include an instruction in the jury charge on corroboration of accomplice-witness testimony. Texas law provides that “[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed[.]” Tex. Code Crim. Proc. art. 38.14; see Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007) (testimony of accomplice must be corroborated by “independent evidence tending to connect the accused with the crime”). The accomplice-witness statute sets out an “implicit ‘If-then’ proposition: If the evidence raises an issue of [the witness's status as an accomplice], then the trial court shall instruct the jury [regarding the corroboration requirement].” Zamora v. State, 411 S.W.3d 504, 509 (Tex. Crim. App. 2013) (quoting Oursbourn v. State, 259 S.W.3d 159, 180 (Tex. Crim. App. 2008)). In light of the plain statutory language of the accomplice-witness rule, an accomplice-witness instruction is the law applicable to the case. Id. at 513. “An accomplice is a person who participates in the offense before, during, or after its commission and acts with the requisite mental state.” Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011); accord Druery, 225 S.W.3d at 498. An accomplice “must have engaged in an affirmative act that promotes the commission of the offense that the accused committed.” Smith, 332 S.W.3d at 439; accord Druery, 225 S.W.3d at 498. A witness may be an accomplice as a matter of law or as a matter of fact. Smith, 332 S.W.3d at 439; Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006). Appellant maintains that his younger daughter, YD, was an accomplice to the prohibited sexual conduct and thus her testimony required corroboration under the accomplice-witness statute. He relies primarily on Bolin v. State, in which the Court of Criminal Appeals stated nearly 50 years ago that “[i]t is the established rule that a female who consents to or voluntarily enters into an incestuous intercourse is an accomplice witness.” 505 S.W.2d 912, 913 (Tex. Crim. App. 1974). However, in Bolin, the court also recognized that “[c]onversely, if the act is the result of force, threats, fraud, or undue influence, she is not an accomplice witness.” Id.; accord Brown v. State, 657 S.W.2d 117, 118 (Tex. Crim. App. 1983); Wilson v. State, 184 S.W.2d 141, 142 (Tex. Crim. App. 1944).
