Modified and Affirmed and Opinion Filed September 30, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00741-CR
JEFRY SAUL ZUNIGALAINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. F-19-22628-H
MEMORANDUM OPINION
Before Justices Molberg, Nowell, and Goldstein
Opinion by Justice Nowell
Following a bench trial, the trial court found Jefry Zunigalainez guilty of
aggravated sexual assault of a child under the age of fourteen. In three issues,
appellant argues the evidence is insufficient to support the conviction and he was
denied his Sixth Amendment right to confront the complainant. He also requests that
we modify the judgment. We modify the trial court’s judgment and affirm as
modified.
A. Sufficiency of the Evidence
In his first issue, appellant argues the evidence is insufficient to support the
conviction because the events could not have transpired in the way the complainant
described. To evaluate the sufficiency of the evidence, we consider the evidence in
the light most favorable to the verdict and determine whether any rational trier of
fact could have found the essential elements of the offense beyond a reasonable
doubt. Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App. 2014); see also
Jackson v. Virginia, 443 U.S. 307 (1979); Turner v. State, 626 S.W.3d 88, 92 (Tex.
App.—Dallas 2021, no pet.). “This standard tasks the factfinder with resolving
conflicts in the testimony, weighing the evidence, and drawing reasonable inferences
from basic facts.” Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015).
As applicable here, a person commits an offense if the person intentionally or
knowingly causes the sexual organ of a child under the age of fourteen to contact the
sexual organ of another person. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii),
(a)(2)(B). A conviction under section 22.021 of the penal code is supportable on the
uncorroborated testimony of the victim of a sexual offense when that victim is
seventeen years of age or younger. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a),
(b)(1).
The complainant, N.O.A., was thirteen years old when she moved into her
aunt’s house where other family members, including appellant, also lived. A few
days after moving in, N.O.A. slept in a bedroom with appellant and one other family
member. N.O.A. testified she fell asleep, but she was awakened when she felt pain
in her vagina “[b]ecause he penetrated me” with his penis. Appellant held her arms
and covered her mouth with his hand. She tried to push him off of her, but she could
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not. When he released her, appellant asked N.O.A. to forgive him, said he would not
do it again, and told her not to tell anyone. N.O.A. went to the bathroom and took a
shower because “there was some blood.”
Considering the evidence in the light most favorable to the verdict, we
conclude the trial court could have found the essential elements of the offense
beyond a reasonable doubt based on N.O.A.’s testimony alone. While appellant
submits N.O.A.’s testimony is implausible due to the presence of other family
members in the room and the home, the factfinder was tasked with resolving any
conflicts in the testimony, weighing the evidence, and drawing reasonable inferences
from the facts presented. We overrule appellant’s first issue.
B. Sixth Amendment Right to Confront a Witness
In his second issue, appellant argues he was denied his Sixth Amendment right
to confront N.O.A. because she testified via a remote live video broadcast. To
overcome appellant’s right to confrontation, appellant contends the trial court should
have determined whether the use of a remote live video broadcast was necessary and
made a case-specific finding of necessity before N.O.A. testified. In response, the
State asserts appellant failed to preserve this argument for appeal.
When appellant’s counsel began cross-examining N.O.A., he asked whether
she was located out of state. N.O.A. replied she had been out of state, but she
returned to Dallas a couple of days earlier. Appellant’s counsel asked to approach
the bench and the following exchange occurred:
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[Appellant’s counsel]: It was my understanding that [N.O.A.]
was going to be testifying from out of state, and now we are finding out
that she is actually here in Dallas.
THE COURT: Does it matter one way or the other? Is there
something I’m missing?
[Appellant’s counsel]: That’s what I was going to ask you about.
That wouldn’t change your opinion about whether she would have to
testify or not . . . whether she would have to come to court to testify?
THE COURT: There is no one that has to come to court because
under the new rules, it doesn’t matter whether they are in Dallas or even
two floors down. They can appear virtually just because they don’t
want to be in a courtroom full of other people.
[Appellant’s counsel]: Fair enough. I just wanted to make sure.
I am not creating an issue. I want to make sure that was the case.
Appellant’s counsel continued cross-examining N.O.A.
Preservation requirements apply to confrontation complaints. See Reyna v.
State, 168 S.W.3d 173, 179–80 (Tex. Crim. App. 2005); Deener v. State, 214 S.W.3d
522, 527 (Tex. App.—Dallas 2006, pet. ref’d). To preserve error, a defendant must
make his complaint to the trial court by a timely request, objection, or motion that
states the grounds for the ruling sought with sufficient specificity to make the trial
court aware of the complaint. TEX. R. APP. P. 33.1. (a).
At trial, appellant did not argue the trial court violated his Sixth Amendment
right to confront N.O.A. Therefore, we conclude appellant failed to preserve this
argument for appeal. We overrule appellant’s second issue.
C. Modification to the Judgment
In his third issue, appellant requests we modify the judgment to show he
entered a plea of not guilty rather than entering a plea of guilty pursuant to a plea
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bargain. The State agrees the judgment incorrectly reflects appellant pleaded guilty
and was sentenced with the terms of a plea bargain agreement.
We have the power to modify the trial court’s judgment when we have the
necessary information to do so. 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). Because the requested modification is
proper, we modify the judgment as requested to show appellant pleaded not guilty
and was not sentenced in accordance with the terms of a plea bargain. We sustain
appellant’s third issue.
D. Conclusion
We modify the trial court’s judgment and affirm as modified.
/Erin A. Nowell//
ERIN A. NOWELL
JUSTICE
200741f.u05
Do Not Publish
TEX. R. APP. P. 47.2(b)
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JEFRY SAUL ZUNIGALAINEZ, On Appeal from the Criminal District
Appellant Court No. 1, Dallas County, Texas
Trial Court Cause No. F-1922628-H.
No. 05-20-00741-CR V. Opinion delivered by Justice Nowell.
Justices Molberg and Goldstein
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
Under the heading “Plea to Offense,” we DELETE the word “GUILTY” and
add the words “NOT GUILTY.”
Under the heading “Terms of Plea Bargain,” we DELETE the words “15
YEARS TDC - $0.00 FINE” and add the word “NONE.”
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 30th day of September, 2021.
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