AFFIRMED as MODIFIED and Opin ion Filed September 23, 2020 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-18-01174-CR JOSE ALFREDO FUNES JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F-1700830-T MEMORANDUM OPINION Before Chief Justice Burns and Justices Molberg and Carlyle Opinion by Chief Justice Burns 1 Jose Alfredo Funes appeals his c ontinuous sexual assault of a y oung child conviction. A jury convicted appellant and sentenced him to li fe imprisonment. In two issues, appellant argues the evidence is legally insufficie nt to support his conviction, and the trial court erred in overruling his objecti ons to evidence of extraneous offenses or transactions. In a single cross point, the State argues the judgment should be reformed to reflect the age of the victim an d include a special

1 The Honorable David Bridges, Jus tice, participated in the submi ssion of this appeal; however, he did not participate in the issuance of this opinion due to his deat h on July 25, 2020. Chief Justice Burns has reviewed the record and the briefs in this cause.–2– finding that the victim was younger than fourteen at the time o f the offense. As reformed, we affirm the trial court’s judgment. In December 2017, appellant was cha rged by indictment with cont inuous sexual assault of a young child. The indictment alleged the fo llowing: That [appellant] hereinafter cal led Defendant, on or about the 1 st day of December, 2010, in the County of D allas, State of Texas, did th en and there intentionally and knowingly, during a period that was 30 or more days in duration, when the defenda nt was 17 years of age or old er, commit two or more acts of sexual abuse against [M.F.], a child younger than 14 years of age, he reinafter called complainant, n amely by: the contact of the complainan t’s female sexual organ by the Defendant’s sexual organ AND by c ontact between the mouth of th e complainant and the sexual organ of the Defendant AND by contac t between the mouth of the defenda nt and the sexual organ of the complainant AND by the contact between the hand of the complain ant and the genitals of the Defendant with the intent to arouse and gratify the sexual desire of the Defendant AND by the contact between t he hand of the Defendant and the genitals of the complainant with the intent to arouse and gratify th e sexual desire o f the Defendant

. At trial in June 2018, the trial court conducted a hearing outs ide the presence of the jury to inquire into “some matters involving domestic violence. ” The prosecutor asked M.F., the complainant, whe ther she had any specific memor ies of appellant hitting her mother, S.B. M.F. testified she heard appellant hi tting her mother with a belt. The prosecutor asked how M.F. knew appellant was hitting S.B. with a belt, and M.F. testified she knew becau se “when we get spankings, tha t’s what it sounds like.” M.F. ran downstairs to get her “Tia Nancy,” and the two came back upstairs. Tia Nancy was “banging on the door and telling [appellant] to l eave [M.F.’s] mom alone.” M.F. testified her “Tia Nancy opened the door, and my mom was crying,–3– and [appellant] dropped a belt on the floor.” At the time of t he incident, M.F. “was like five.” M.F. testified another incide nt occurred at “abuelita’s house, ” and appellant “was yelling at my mom, and we were in the car and [appellant] tried to pull my mom out the car, and he jumped on the window.” When appellant pulled M.F.’s mother out of the car, M.F. grabbed her baby brother and got ou t of the car. M.F., her mother, and her baby brothe r “ran into our abuelita’s house ,” and appellant “started screaming at [M.F.’s] mom.” Appellant’s sister came “ out of her room” and told appellant “to leave her al one.” Appellant “started scream ing at her” and then “talking rude to her and talking about her,” and she started to cry. M.F.’s “abuelita came and told [appellant] that he needs to grow up.” M.F. test ified her abuelita is appellant’s mother. When appella nt “would do these things,” it made M.F. think that he would hurt M.F.’s mother. When M.F. had testified, the trial court asked if the prosecuto r had any argument regarding her testimony. The prosecutor argued that, based on the “nature of the abuse and when it came out,” the “domestic violence with in the household had significant impact” on M.F. Specifically, the prosecutor a rgued “under 38.37 and maybe even 404(b)(2), that this all goes to M.F.’s state of mind, the nature of her relationship with the defen dant at the time, and the reason that she was afraid to tell, because she was – she thou ght that the defendant was goin g to hurt her mom or hurt someone in her family.”–4– Defense counsel objected that the notice he received concerning extraneous offenses was “vague, general, s omewhere within a four- or five- year period that there was a continuing course of conduct of assaultive or abusi ve conduct” by appellant toward S.B., and there at trial was the first time he was “getting specifics.” Defense counsel also objected “on the basis that for an extrane ous offense to be proved – to be allowed, it shoul d be proved beyond a reasonable doubt.” Defense counsel noted there were witnesses to “these acts,” and police reports filed as to these acts, but without witnesses counsel did not “believe that it’s been offered beyond a reasonable doubt.” Finally, defense counsel objected the evidence was not relevant, and its probative valu e was outweighed by the prejudi cial effect. The trial court did not allow the incident involving the belt i nto evidence because the incident “occurred be fore the outcry” and “did not keep [M.F.] from making an outcry.” The trial court stated the second incident was “very vague,” and there was nothing to indicate that the incidents kept M.F. from making an outcry. With the jury present, M.F. tes tified that, when she was “four or five,” she was sleeping on a couch upstair s at her house when appellant wo ke her and told her to get up. At the time, M.F.’s mother was asleep. Appellant t old M.F. he was going to give her a “lollipop.” Appella nt then “made [M.F.] suck his private part” and close her eyes. Afterwards, M.F. said she was going to tell he r mother, but appellant said “he was going to hurt [M.F .’s] mom, and [M.F.] already kne w that he was.”–5– At this point, the trial court asked the jury to step out and c onducted another hearing outside the presence of the jury. The prosecutor asked M.F. what appellant said to her after the abuse, and M.F. answered that “he threate ned [M.F.] and said that he was going to hurt [M.F.’s] mom, like [M.F.] said in the past,” when she told the prosecutor what appellant did to M.F.’s mom “with the belt” and at her abuelita’s house. Through questioning by the trial court, M.F. testified she eventually told her mother about the abuse, the belt incident occurred before she t old her mother, and the incident at her abuelita’s house occurred after she told he r mother. The trial court stated that, based on M.F.’s answers to the trial court’s quest ioning, it appeared “the belt incident goes to [M.F.’s] state of mind of why she did not make an outcry immediately.” The trial court told the prosecutor M.F. could t alk about the belt incident but not the car incident because M.F. did not “know ab out when that car incident occurred.” Defense counsel renewed his previous objec tions and reminded the court that, in two forensic interviews, M.F. said appellant “never told her not to tell.” The trial court told defense counsel “that’s something you can argue,” and counsel could “ask her that on th e stand,” but “that goes to he r state of mind.” With the jury once again present, the prosecutor asked about th e “very first time” appellant abused M.F. and asked how old M.F. was at that time. M.F. testified she was “five or four” at the time, and she repeated her earlie r testimony concerning the abuse. This time, however, when M.F. testified she told ap pellant she was going to tell her mom and appellant threatened to hurt her mom, the p rosecutor asked why–6– M.F. believed appellant was goi ng to hurt her mom. M.F. testif ied, “Because he hit my mom and hit her with a belt.” Defense counsel renewed the o bjections he had made outside the presence of the jury, and the trial court over ruled the objection. The prosecutor then elicited from M.F. her testimony concerning the belt incident. M.F. testified that she eventually told her mother about the fi rst incident of abuse, and her mother “called th e cops.” After that, “a lady” interviewed M.F., and M.F. told her about the first incident of abuse. M.F. testifie d she did not feel comfortable talking to the lady because she “was scared to talk to somebody.” Once she got home, M.F. and her mother “talked, but just not specifi c details.” At some point, M.F. told her mother that the abuse did not happen and s he had lied about the incident because appellant had threatened M.F. Appellant came back to live with M.F. and her mother, and appel lant started “doing things to [M.F.] again.” M.F. testified she lived in Ga rland with her two younger brothers, her mother, and appellant when “a lot of thin gs that [appellant] did” to her happened. M.F. testif ied she was in third grade wh en she lived in Garland, and during this time she told her teacher about the ab use. The prosecutor asked “how many times did things happen” to M.F., and she answe red, “a lot of times.” M.F. said the last time was the day before she told he r teacher about the abuse. That last time, appellant called M.F. into her mother’s bedroom , and M.F. brought her brother into the room. Appellant told her brother to leave and shut the–7– door, and he did. Appellant was lying naked on the bed, and he told M.F. to “come here.” M.F. “went beside the be d,” and appellant “pulled [M.F. ’s] pants off” and touched her private part with h is mouth and tongue. M.F. “did not like it, and [she] told him to leave [her] alone.” M .F. testified this was not th e first time appellant touched her private part with his mouth, and “there was many ot her times in the house” in Garland. For the first time, during this last episod e of abuse, appellant put his finger in M.F.’s private part, and “it hurt [her], and [she ] told him to stop and leave [her] alone.” M.F. testified appellant also, for the fir st time, touched M.F.’s private part with his “private that he pees with.” M.F. testif ied, “that’s when I told somebody, because I did not want that to happen no more, and I was scared for me and my brothers and my mom.” M.F. “was so scared before, but t hat scared me more.” M.F. told her teacher a bout the abuse the next day. M.F. testified that, during the first half of third grade, “the se things” were happening more than once a m onth but “a little bit less” than o nce a week but “sometimes it would happen more than once a week.” M.F. testif ied these things happened when her mother was not home, and appellant “would be there sometimes after – when [appellant] didn’t go to work or on his lunch brea k, when [she] got home.” M.F. testified that things were happening in between th e time she was about five and eight when she was living other places. “The only tim e that it stopped happening” was when appellant and her mother broke up for a tim e and appellant went to Mexico.–8– M.F. testified she was interviewed a second time by “a guy,” bu t she “didn’t feel able to be talking to a guy about it.” M.F. did not tell the guy everything that happened to her. The prosecutor asked M.F. if she told the jur y “the best that [she could] remember everything,” and M.F. testified she told the ju ry most of the things she remembered really clearly. M .F. agreed that the times she remembered were the “worst times” and “also happened to be the first time and the l ast time.” However, there were “times in the middle” when appellant “was sexually a ssaulting [her],” and almost every time something ha ppened, appellant told M.F. that he would hurt her mom if she told. At the conclusion of the evidence, the jury f ound appellant guilty of continuous sexual assault of a young child. This appeal fol lowed. In his first issue, appellant argues the evidence is legally in sufficient to support his conviction. A person commits the offense of continuous sexual abuse of a ch ild under the age of fourteen if, during a period that is thirty or more days in duration, he commits two or more acts of sexual abuse and, at the time of the commis sion of each act, he is seventeen years of age or older and the victim is a child yo unger than fourteen years of age. See T EX

. P ENAL C ODE A NN . § 21.02(b); Garner v. State , 523 S.W.3d 266, 271 (Tex. App.—Dal las 2017, no pet.). Although the exact dates of the abuse need not be proven, the o ffense requires proof that two or more acts of sexual abuse occurred during a p eriod of thirty days

or more. See T EX

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. § 21.02(d); Garner , 523 S.W.3d at 271. The–9– statute does not require that the jury agree unanimously on the specific acts of sexual abuse the defendant committed or the exact dates when those act s were committed.
See T EX

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. § 21.02(d). In determining the sufficiency of the evidence, the reviewing c ourt considers the evidence in the light most favorable to the verdict to dete rmine 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 (T ex. Crim. App. 2014). The jury is the sole judge of the credibility and weight to att ach to witness testimony. Jackson v. Virginia , 443 U.S. 307, 319, (1979). The testimony of a child victim al one is sufficient to support a convi ction for continuous sexual abu se of a child. See T EX

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. A NN . art. 38.07(a); Garner , 523 S.W.3d at 271. Here, M.F. testified in detail concerning the first and last ep isodes of abuse occurring during a period of more than thirty days. Further, M .F. testified there were “times in the middle” between the first and last offenses when appellant “was sexually assaulting [her],” and al most every time something hap pened, appellant told M.F. that he would hurt her mom if she told. We conclude this evidence was sufficient to enable the jury to find the essential elements of the offense of continuous sexual assault of a young child beyond a reasonable doubt. See Acosta , 429 S.W.3d at 624–25; Garner , 523 S.W.3d at 271. We overrule appellant’s first issue.–10– In his second issue, appellant ar gues the trial court erred in overruling his objections to the admission of evidence of an extraneous offens e. Specifically, appellant complains of the admission of evidence concerning the belt incident. Appellant argues the State provi ded only vague and insufficient notice of its intention to introduce evidence o f extraneous offenses; the bel t incident was not proven beyond a reasonable doubt; and evidence of the belt inci dent was not relevant, and its probative valu e was outweighed by the danger of unfair prejudice. We review the admissibility of an extraneous offense for an abu se of discretion. Devoe v. State , 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). If the trial court’s ruling is within the zone of reasonable disagreement, t here is no abuse of discretion, and we will uphold it. Id. In determining whether the trial court abused its discretion, we may not subst itute our opinion for that of t he trial court. Moses v.
State , 105 S.W.3d 622, 627 (Tex . Crim. App. 2003). Article 38.37 of the code of crim inal procedure permits the int roduction of “evidence of extraneous offenses or acts” in certain types of s exual abuse cases, including cases in which the de fendant is charged with continuo us sexual assault of a young child as was the case here. T EX

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. A NN . art. 38.37, § 1(a)(1)(A). Specifically, section 1(b) provides: (b) Notwithstanding Rules 404 a nd 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defe ndant against the child who is the victim of the alleged offense shal l be admitted for its bearing on re levant matters, including:–11– (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defend ant and the child. Id. art. 38.37, § 1(b). Section 3 of article 38.37 provides, “The state shall give the defendant notice of the state’s i ntent to introduce in the case in chief evidence described by Section 1 or 2 not l ater than the 30th day before the date of the defendant’s trial.” Appellant argues the State’s notice only stated that “somewhere within a four or five year period that there was a continuing course of condu ct of assaultive or abusive conduct” on appellant’s p art toward M.F.’s mother. The notice provided identified the following extraneous acts of Appellant: 1) during a period of five years in Dallas and Denton counties, continuous physical abuse of S.B. by striking her with his hand s and feet and 2) during a period of six years in Dallas and Denton counties, continuous threats to harm the family of M.F. if she told anyon e about the sexual abuse. Thus, the notice given to appellant laid out the evidence the S tate presented at trial and the theory it was used to support. The State presented M.F .’s testimony that she did not outcry because appellant threatened to harm her mother and presented evidence of the belt incident to show its effect on M.F. and ho w it reinforced appellant’s threat to hurt her mo ther. Appellant argues the be lt incident was also inadmissible because it was not committed “against M.F.” We co nclude it is within the zone of reasonable disagreement whether, in the context of appellant’s–12– continuous sexual assault of M.F. and his repeated threats to h urt M.F.’s mother to ensure M.F.’s silence, exhibiting assaultive behavior towards M .F.’s mother where M.F. could hear it was, in fact, an act committed “against” M.F . herself. Appellant argues the belt incide nt was not proven beyond a rea sonable doubt and was therefore inadmissible. Section 1 of article 38.37 doe s not on its face require the trial court to determine that evidence likely to be admitte d at trial will be adequate to support a finding by the jury t hat the defendant committed t he separate offense beyond a reasonable doubt when the other crimes, wrongs, or act s are used to show state of mind or the relationshi p between the defendant and the child. Id. art. 38.37 § 1. The requirement that the tr ial court make such a determin ation is found in section 2-a and expressly applie s to section 2, which provides evidence that a defendant committed a separate o ffense may be admitted for any bearing the evidence has on relevant matters, including the character of th e defendant and acts performed in conformity with the character of the defendant. Id. art. 38.37 §§2, 2- a. Further, the jury charge required the jury to find appellan t guilty beyond a reasonable doubt. Appellant also argues the evidence concerning the belt inciden t was irrelevant, and its probative value was outwe ighed by the danger of unfair prejudice, citing rule of evidence 403. Appellant argues the evidence had no probativ e value and was not needed by the State. Rule 403 provides: “Although relevant, ev idence may be excluded if its probative value is substantially outweighed by the danger of unfair–13– prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” T EX

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. 403. The trial court determined the belt incident evidence, because the incident occurred before M.F. told her mother about the abuse, was relevant to sh ow M.F. delayed her outcry because she was afraid for her mother’s safety. We conc lude the trial court did not abuse its discretion in admitting evidence concerning t he belt incident. See
Devoe , 354 S.W.3d at 469. We overrule appellant’s second issue. In a single cross point, the State argues the judgment should b e reformed to reflect the age of the victim and include a special finding tha t the victim was younger than fourteen at the time of the offense. This Court has the p ower to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary data and information to do so, or make any ap propriate order as the law and the nature of the case may require. Asberry v. State , 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. re f’d). Accordingly, we refor m the trial court’s judgment to reflect that the age of the victim at the time of t he offense was four years old and to include a special f inding that the victim was younge r than fourteen at the time of the offense.–14– As reformed, we affirm the trial court’s judgment.

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181174F.U05 /Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE–15– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JOSE ALFREDO FUNES JR., Appellant

No. 05-18-01174-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 283rd Judicial District Court, Dallas County, Texas Trial Court Cause No. F-1700830-T. Opinion delivered by Chief Justice Burns. Justices Molberg and Carlyle participating. Based on the Court’s opinion o f this date, the judgment of the trial court is MODIFIED as follows: Following the phrase "The age of the victim at the time of the offense was," "N/A" is deleted, and the following is substituted: “Four years old. The Court enters an affirm ative finding that the victim o r intended victim was younger than 14 years of age at the time of the offense.” As REFORMED , the judgment is AFFIRMED

. Judgment entered September 23, 2020