Affirm and Opinion Filed June 23, 2022

In the

Court of Appeals

Fifth District of Texas at Dallas

No. 05-21-00256-CR

KENNETH SAID CRUZ-BANEGAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 401st Judicial District Court

Collin County, Texas

Trial Court Cause No. 401-81093-2019

MEMORANDUM OPINION

Before Justices Myers, Carlyle, and Goldstein

Opinion by Justice Carlyle

A jury convicted appellant Kenneth Said Cruz-Banegas of continuous sexual 

abuse of a young child and assessed punishment at thirty-three years’imprisonment. 

Mr. Cruz-Banegas contends the evidence is insufficient to support his conviction and 

the trial court abused its discretion by denying his motion for mistrial based on a 

witness’s “outburst.” We affirm in this memorandum opinion. 

Background

The indictment in this case alleged that during a period of thirty days or more, 

Mr. Cruz-Banegas committed two or more acts of sexual abuse against the 
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complainant, S.D., while she was under fourteen years old and he was older than 

seventeen. The alleged acts of sexual abuse included penetrating S.D.’s sexual organ 

with his finger, contacting S.D.’s anus with his sexual organ, causing S.D.’s hand to 

contact his genitals, and contacting S.D.’s genitals with his hand.

At the time of trial, S.D. was seventeen years old. She testified she was born 

in 2003. Mr. Cruz-Banegas is married to her mother’s sister, Lindsey, and she has 

known him “as long as I can remember.” When S.D. was younger, she had a good 

relationship with Mr. Cruz-Banegas and loved him. He treated her “special” 

compared to her siblings. 

She testified that the first time he did something inappropriate with her was 

when she was in fifth grade, which was about 2013. Mr. Cruz-Banegas and Lindsey 

were living at S.D.’s grandmother’s house, where S.D. and her sister went each day 

after school. S.D. often went to “Ken and Lindsey’s bedroom” to do her homework 

because Mr. Cruz-Banegas helped her more than her grandmother would. One day 

when Mr. Cruz-Banegas and S.D. were alone in the bedroom, he asked her about 

school and she told him her class had had “the puberty talk” that day. He told her he 

could show her “what they were talking about.” He lifted up the blanket that was 

covering him and she saw his penis. She stated he “made me feel his penis” and “his 

penis touched my hand.” She backed away and told him she was leaving.

Another time after that, she was doing her homework in that same bedroom 

at her grandmother’s house and fell asleep. When she woke up, her hand was around 
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Mr. Cruz-Banegas’s penis and his hand was over hers, “making [her] hand go up and 

down.” She asked him what he doing and he told her “this is all normal.” She got up 

and left the room. She testified there were “a lot” of other incidents when her hand 

contacted his penis and “the details of those times run together.” 

S.D. testified Mr. Cruz-Banegas also sexually abused her in other ways. One 

time, she was in Ken and Lindsey’s bedroom at her grandmother’s house after school 

and was wearing a maroon dress. She and Mr. Cruz-Banegas were sitting on the end 

of the bed talking about school and homework. He tried to pull up her dress and she 

“kept pulling it down.” She stated she finally just “let it happen” and he removed her 

underwear and started “touching” her vagina with his hand. He touched “the outside 

at first” and then his fingers “went inside.”

About a year after Mr. Cruz-Banegas began sexually abusing her, there was 

an incident she referred to as “the big thing.” At that time, she lived in a townhome 

with her mother, step-father, and siblings. Mr. Cruz-Banegas and Lindsey came to 

the townhome to watch a movie. S.D. did not want to watch the movie and went 

upstairs to her bedroom. At some point, Mr. Cruz-Banegas came upstairs to her 

bedroom while everyone else remained downstairs. As the two of them were talking, 

he “kind of grabbed my wrist and stood me up.” She stated “he turned me around 

and he bent me over, pulled down my pants, and he pulled down his pants and he 

stuck his penis inside my butthole.” He slid his penis in and out two or three times. 
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S.D. stated it hurt so much she “couldn’t breathe.” Then, he pulled up his pants and 

left to go to the bathroom.

At some point after “the big thing,” S.D. asked Mr. Cruz-Banegas whether she 

was still a virgin after what he did to her. He said yes and told her not to tell anyone 

because “you will get in trouble, I will get in trouble, you could go to jail.” She 

testified that the “entire time” the abuse was happening, she was under fourteen years 

old and Mr. Cruz-Banegas was over seventeen.

S.D. testified that though Mr. Cruz-Banegas did not sexually abuse her again 

after “the big thing,” he acted inappropriately with her numerous times. One time, 

he told her he would buy her a new cell phone if she would “suck his penis.” Another 

time, he asked her to lock the bedroom door and come sit next to him, but she refused 

and walked away. On other multiple occasions, he (1) “bear-hugged” her “very 

tightly,” sometimes while lying down, or (2) kissed her on the lips and put his tongue 

in her mouth.

In February 2017, S.D. was forensically interviewed in an unrelated sexual 

assault case as a “follow-up witness for my friend.” When she got home, she “broke 

down” and told her mother “some of what had happened” regarding Mr. CruzBanegas. She did not tell her mother everything because she was scared she would 

get in trouble. She told her mother not to report it and threatened to take her own life 

if her mother did so. 
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A few months later, S.D.’s mother asked her if it would be okay for Mr. CruzBanegas and Lindsey to move in with S.D.’s family. S.D. said yes because “they are 

family and we cannot leave our family in the streets.” At that point, S.D. told her 

mother “a little bit more of what happened,” but “never told her the full story.”

Sometime after that, her mother told her she had to go to a forensic interview 

regarding Mr. Cruz-Banegas’s abuse. S.D. stated she felt “extremely hurt” that “my 

story had been let out,” but she told the forensic interviewer the truth.

McKenzie McIntosh testified she conducted a May 22, 2018 forensic 

interview of S.D. at the children’s advocacy center for Collin County. She stated 

S.D. made a delayed outcry of sexual abuse and talked about several instances, 

including the above-described incidents. S.D. identified Mr. Cruz-Banegas as the 

perpetrator. Ms. McIntosh saw no “red flags” or signs of coaching or exaggeration.

She conducted a follow-up forensic interview of S.D. about one week later in which 

S.D. provided details consistent with the first interview. 

Dr. Kristen Reeder, a “child abuse pediatrician,” testified she conducted a 

sexual abuse examination of S.D. on August 20, 2018, for medical evaluation 

purposes. S.D.’s exam was “normal,” which is the most common result in sexual 

abuse examinations and does not mean no abuse occurred.

S.D.’s mother testified she served in the military while S.D. was growing up. 

During Mother’s deployments, S.D. and her siblings stayed with Mother’s mother.

When S.D. was in sixth or seventh grade, Mother and her husband and children were 
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living in a townhome. In about 2017, Mother’s sister, Lindsey, and Mr. CruzBanegas moved into the townhome with them. 

Mother first learned of “something going on” regarding Mr. Cruz-Banegas in 

a conversation with S.D. after S.D. was interviewed at the advocacy center in an 

unrelated matter. S.D. seemed “very scared” about telling her. Mother was “in 

shock” but did not report what S.D. told her because S.D. said she would kill herself. 

After Mr. Cruz-Banegas began living with them, S.D. told Mother “a little bit more.”

Again, Mother did not report what S.D. told her because she was afraid S.D. would 

harm herself. She did not confront Mr. Cruz-Banegas because she “didn’t want him 

to be mad.”

At some point after S.D.’s second disclosure, Mother got a call telling her she 

was required to take S.D. for a forensic interview.1 Mother felt “ashamed” and was 

prepared “to be charged” for “[n]ot protecting my daughter” and “[f]or allowing him 

to move in.” She testified:

Q. Looking back on it, how do you feel about allowing the defendant 

to move into your home with you?

A. Biggest mistake I ever made. I thought I was doing the right thing. I 

don’t know.

Q. [Mother], let’s talk a little bit about [S.D.] as a kid. Okay? Do you 

need a couple minutes?

A. (Moves head up and down.)

1 Mother stated the call came after her other daughter attended a therapy session at the children’s 

advocacy center. The record does not show S.D. told anyone other than Mother about Mr. Cruz-Banegas’s 

sexual abuse.
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Q. All right.

A. I’m sorry.

Q. It’s okay.

THE COURT: [Prosecutor], do you want to take a recess so that she can 

control yourself [sic]. We can’t have this in front of the jury.

[PROSECUTOR]: Judge, I think that—you okay? We just have a 

couple more questions. I think we can power through.

THE COURT: All right.

[DEFENSE COUNSEL]: May we approach?

. . . .

(Off-the-record discussion.)

THE COURT: Try to control yourself, ma’am.

THE WITNESS: Yes, sir.

Mother finished testifying without any further issues. Then, the trial court 

announced a recess and excused the jury from the courtroom. Defense counsel 

stated:

I wanted to object to the continuation of testimony by [Mother]. Her

outburst of tears and grief, I believe, inflamed the passions of this jury. 

I’m also moving for a mistrial, Your Honor. I don’t see that that level 

of prejudice that that created in any way, shape, or form can be 

remedied with instructions or anything of that matter, Your Honor. So, 

I’m objecting to it and making my offer of proof on that, as well as 

moving for a mistrial based on her emotional outburst.

The trial court denied the motion for mistrial. Also, the trial court told the 

State to “control your witnesses” and “get them prepped up for this” because “I don’t 

want the jury to make their decisions based on crying witnesses. I want them to do 

it based on the truth.”
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Evidentiary sufficiency

In reviewing the sufficiency of the evidence, we examine the evidence in the

light most favorable to the jury’s verdict to determine whether any rational trier of

fact could have found the essential elements beyond a reasonable doubt. Jackson v. 

Virginia, 443 U.S. 307, 319 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. 

Crim. App. 2017). This standard accounts for the factfinder’s duty to resolve 

conflicts in the evidence, weigh the evidence, and draw reasonable inferences from 

basic to ultimate facts. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 

2007). The jury is the sole judge of the weight and credibility to be given to the 

testimony. Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). The 

testimony of a child victim alone is sufficient to support a conviction for continuous 

sexual abuse of a young child. See TEX. CODE CRIM. PROC. art. 38.07(a); Garner v. 

State, 523 S.W.3d 266, 271 (Tex. App.—Dallas 2017, no pet.).

A person commits the offense of continuous sexual abuse of a young child if 

(1) during a period of thirty days or more, the person commits two or more acts of 

sexual abuse and (2) at the time each act is committed, the actor is seventeen years 

of age or older and the victim is a child younger than fourteen. TEX. PENAL CODE 

§ 21.02(b). Acts of aggravated sexual assault and indecency with a child qualify as 

“sexual abuse” under the statute. Id. § 21.02(c); see also id. § 22.021(a) (person 

commits aggravated sexual assault if he intentionally or knowingly causes 

penetration of sexual organ of child under fourteen by any means or causes anus of 
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child under fourteen to contact sexual organ of another person); id. § 21.11 (person 

commits indecency with a child if he engages in sexual contact with child under 

seventeen or causes child under seventeen to engage in sexual contact, including 

touching genitals). The jury need not agree unanimously on which specific acts of 

sexual abuse occurred or the exact date of those acts. Id. § 21.02(d).

We begin with Mr. Cruz-Banegas’s second issue, in which he contends the 

evidence is “legally and factually insufficient” to support his conviction. He asserts 

“there was a significant delayed outcry by the complainant, a complete lack of 

physical evidence, and no independent witness or witnesses, or corroborating 

evidence.”2

S.D. testified that (1) while she was under fourteen years old and Mr. CruzBanegas was over seventeen, he penetrated her vagina with his finger, contacted her 

anus with his penis, caused her hand to contact his genitals, and contacted her vagina 

with his hand, and (2) his final act of sexual abuse occurred about a year after his 

first act of sexual abuse. That testimony was sufficient to support his conviction. See

TEX. CODE CRIM. PROC. art. 38.07(a); Garner, 523 S.W.3d at 271. The forensic 

2 Mr. Cruz-Banegas acknowledges that factual sufficiency review was abolished in Brooks v. State, 323 

S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.), but he “submits there is a good faith basis to modify 

the existing law such that factual sufficiency review should be reinstated.” Whether there is any merit to 

that argument is not for us to decide. See Mixon v. State, No. 05-20-00391-CR, 2022 WL 202960, at *3 

(Tex. App.—Dallas Jan. 24, 2022, pet. ref’d) (mem. op., not designated for publication). We are bound by 

the court of criminal appeals’s precedent and we decline to accept Mr. Cruz-Banegas’s invitation to deviate 

from it. The court of criminal appeals has instructed that we must “review the sufficiency of the evidence 

establishing the elements of a criminal offense for which the State has the burden of proof under the single 

sufficiency standard set out in Jackson v. Virginia.” Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 

2013).
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interviewer saw no “red flags” or signs of coaching or exaggeration during S.D.’s 

outcry. On this record, we conclude a rational jury could have found beyond a 

reasonable doubt that Mr. Cruz-Banegas committed continuous sexual abuse of a 

young child. See Jackson, 443 U.S. at 319; see also Foster v. State, No. 05-14-01186-

CR, 2015 WL 8039901, at *2 (Tex. App.—Dallas Dec. 7, 2015, no pet.) (mem. op., 

not designated for publication) (stating that lack of corroboration of sexual abuse 

and significance of complainant’s silence were issues of weight and credibility to be 

resolved by jury).

Denial of mistrial

A mistrial is an appropriate remedy in “extreme circumstances” for a narrow 

class of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884 

(Tex. Crim. App. 2009). Whether an error requires a mistrial must be determined by 

the particular facts of the case. Id. 

We review a trial court’s denial of a mistrial for an abuse of discretion. Id. We 

view the evidence in the light most favorable to the trial court’s ruling, considering 

only those arguments before the court at the time of the ruling. Id. The ruling must 

be upheld if it was within the zone of reasonable disagreement. Id.

Most appellate complaints must be preserved by a timely request for relief at 

the trial level. Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim. App. 2013). The 

“traditional and preferred procedure” for seeking relief at trial for a complaint that 

must be preserved is “(1) to object when it is possible, (2) to request an instruction 
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to disregard if the prejudicial event has occurred, and (3) to move for a mistrial if a 

party thinks an instruction to disregard was not sufficient.” Id. at 98–99 (quoting 

Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004)). “The party who fails to 

request an instruction to disregard will have forfeited appellate review of that class 

of events that could have been ‘cured’ by such an instruction.” Young, 137 S.W.3d 

at 70; see also Ocon, 284 S.W.3d at 885 (“Though requesting lesser remedies is not 

a prerequisite to a motion for mistrial, when the movant does not first request a lesser 

remedy, we will not reverse the court’s judgment if the problem could have been 

cured by the less drastic alternative.”). 

“[A]n outburst from a bystander or witness which interferes with the normal 

proceedings of a trial will not result in reversible error unless the defendant shows 

that a reasonable probability [exists] that the conduct interfered with the jury’s 

verdict.” Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010) (cleaned up). 

“In the context of such outbursts, the trial judge’s instructions to disregard are 

generally considered sufficient to cure the impropriety because it is presumed that 

the jury will follow those instructions.” Id.; accord Gamboa v. State, 296 S.W.3d 

574, 580 (Tex. Crim. App. 2009).

In his first issue, Mr. Cruz-Banegas contends the trial court abused its 

discretion by not granting his motion for mistrial “after the complainant’s mother 

had a highly prejudicial outburst while testifying.” He asserts he was deprived of his 

constitutional right to a fair trial “given that an impartial verdict could not be reached 
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flowing from [Mother’s] outburst.” He also argues the trial court’s failure to grant a 

mistrial “was compounded by failing to instruct the jury to disregard her outburst.”

Mr. Cruz-Banegas cites no authority, and we have found none, requiring a trial 

court to sua sponte provide an instruction to disregard in these circumstances. 

Because he did not ask for an instruction to disregard before moving for a mistrial, 

Mr. Cruz-Banegas must establish that an instruction to disregard would not have 

cured any potential prejudice resulting from the outburst. See Ocon, 284 S.W.3d at 

885; Young, 137 S.W.3d at 70. This burden is met when the record shows the outburst 

was of such a nature that the jury could not follow an instruction to disregard it. 

Coble, 330 S.W.3d at 293. 

The record shows Mother’s outburst was brief and occurred when she was 

talking about her perceived mistake as a parent. She apparently began crying but 

responded promptly to the trial court’s statement that she needed to control herself 

and “[w]e can’t have this in front of the jury.” She was able to compose herself 

without a recess and continued testifying without further incident. Other courts have 

found similar or more extreme outbursts to be curable with an instruction to 

disregard. See Gamboa, 296 S.W.3d at 580 (concluding murder defendant was not 

entitled to mistrial based on outburst by victim’s family member shouting “You did 

this for 200 dollars?” during prosecution witness’s testimony, where trial court 

instructed jury to disregard); Brown v. State, 92 S.W.3d 655, 661 (Tex. App.—Dallas 

2002) (concluding murder victim’s father’s outburst of “sobbing” and stating “Give 
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my son justice, please” during his testimony in murder trial was cured by trial judge’s 

instruction to disregard), aff’d on other grounds, 122 S.W.3d 794 (Tex. Crim. App.

2003); Miles v. State, No. 06-21-00120-CR, 2022 WL 837961, at *1–2 (Tex. App.—

Texarkana Mar. 22, 2022, no pet.) (mem. op., not designated for publication) 

(concluding no abuse of discretion in denying mistrial based on outburst of loud 

“wailing” in courtroom by murder victim’s mother when graphic photographs were 

shown, where trial court instructed jury to disregard); see also Coble, 330 S.W.3d at 

290–93 (concluding mistrial not necessary where trial court instructed jury to 

disregard two punishment witnesses’ emotional outbursts of crying and expletives).

Here, we cannot conclude the record establishes that an instruction to 

disregard would not have cured any potential prejudice resulting from the 

complained-of outburst. See Coble, 330 S.W.3d at 292. Thus, the trial court did not 

abuse its discretion by denying the motion for mistrial. See Ocon, 284 S.W.3d at 

884–85; Young, 137 S.W.3d at 70.

We affirm the trial court’s judgment.

210256f.u05

Do Not Publish

Tex. R. App. P. 47.2(b)

/Cory L. Carlyle/

CORY L. CARLYLE

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

KENNETH SAID CRUZBANEGAS, Appellant

No. 05-21-00256-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 401st Judicial 

District Court, Collin County, Texas

Trial Court Cause No. 401-81093-

2019.

Opinion delivered by Justice Carlyle. 

Justices Myers and Goldstein 

participating.

Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

Judgment entered this 23rd day of June, 2022.