Affirmed as Modified and Opinion Filed March 27, 2015
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00648-CR
OSVALDO LEIJA-BALDERAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F13-32837-W
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Whitehill
Opinion by Justice Whitehill
Osvaldo Leija-Balderas waived a jury and pleaded guilty to aggravated sexual assault of
a child younger than fourteen years. After finding appellant guilty, the trial court assessed
punishment at twenty-two years’ imprisonment. In two issues, appellant contends the trial
court’s judgment should be modified to reflect the correct statute for the offense and the correct
age of the complainant at the time of the offense. The State agrees the judgment should be
modified to show the correct statute, but disagrees that the age of the complainant should be
modified. We modify the trial court’s judgment and affirm as modified.
Regarding appellant’s first issue, the trial court’s judgment does incorrectly identify the
statute for the offense as “21.02 Penal Code,” which is the statute for continuous sexual abuse of
a child. Appellant pleaded guilty to and was found guilty of aggravated sexual assault of a child
younger than fourteen years under section 22.021 of the Texas Penal Code. See TEX. PENAL
CODE ANN. § 22.021(a)(1)(B) (West Supp. 2014). We sustain appellant’s first issue.
As to appellant’s second issue, although the record shows appellant was indicted for
continuous sexual abuse of a child, he pleaded guilty to the lesser-included offense of aggravated
sexual assault of a child younger than fourteen years. The indictment alleged the offense
occurred on or about September 1, 2007. During the February 12, 2014 hearing following
appellant’s guilty plea, the complainant testified that she was sixteen years old. She further
testified that appellant began “touching” her in “inappropriate ways” when she was four years
old, and the last time he “touched” her was when she was fourteen years old. The complainant
further testified the sexual contacts occurred “pretty much every single day.”
The trial court’s judgment recites that the “age of the victim at the time of the offense
was 5 years.” However, as noted above, appellant pleaded guilty to and was found guilty of
aggravated sexual assault of a child younger than fourteen years. We sustain appellant’s second
issue.
We modify the trial court’s judgment as follows: (1) the statute for the offense is
“22.021(a)(1)(B) Penal Code,” and (2) the age of the victim at the time of the offense was under
the age of fourteen. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.
Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet.
ref’d).
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As modified, we affirm the trial court’s judgment. We order the trial court to enter an
amended judgment reflecting these modifications.
Do Not Publish
TEX. R. APP. P. 47
140648F.U05
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
OSVALDO LEIJA-BALDERAS, Appeal from the 363rd Judicial District
Appellant Court of Dallas County, Texas (Tr.Ct.No.
F13-32837-W).
No. 05-14-00648-CR V. Opinion delivered by Justice Whitehill,
Justices Francis and Lang-Miers
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as
follows:
The section entitled “Statute for Offense” is modified to show “22.021(a)(1)(B) Penal
Code.”
The section entitled “The age of the victim” is modified to show “The age of the victim at
the time of the offense was younger than fourteen years.”
As modified, we AFFIRM the trial court’s judgment. We ORDER the trial court to
enter an amended judgment reflecting these modifications.
Judgment entered March 27, 2015.
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Osvaldo Leija-Balderas v. State
Combined Opinion