AFFIRMED as MODIFIED and Opinion Filed September 23, 2020 

S 

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 Burns1

Jose Alfredo Funes appeals his continuous sexual assault of a young child 

conviction. A jury convicted appellant and sentenced him to life imprisonment. In 

two issues, appellant argues the evidence is legally insufficient to support his 

conviction, and the trial court erred in overruling his objections 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 and include a special 

 

1 The Honorable David Bridges, Justice, participated in the submission of this appeal; however, he did 

not participate in the issuance of this opinion due to his death on July 25, 2020. Chief Justice Burns has 

reviewed the record and the briefs in this cause. 
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finding that the victim was younger than fourteen at the time of the offense. As 

reformed, we affirm the trial court’s judgment. 

In December 2017, appellant was charged by indictment with continuous 

sexual assault of a young child. The indictment alleged the following: 

That [appellant] hereinafter called Defendant, on or about the 1st day of 

December, 2010, in the County of Dallas, State of Texas, did then and 

there intentionally and knowingly, during a period that was 30 or more 

days in duration, when the defendant was 17 years of age or older, 

commit two or more acts of sexual abuse against [M.F.], a child

younger than 14 years of age, hereinafter called complainant, namely 

by: the contact of the complainant’s female sexual organ by the

Defendant’s sexual organ AND by contact between the mouth of the 

complainant and the sexual organ of the Defendant AND by contact 

between the mouth of the defendant and the sexual organ of the 

complainant AND by the contact between the hand of the complainant 

and the genitals of the Defendant with the intent to arouse and gratify 

the sexual desire of the Defendant AND by the contact between the 

hand of the Defendant and the genitals of the complainant with the 

intent to arouse and gratify the sexual desire of the Defendant. 

At trial in June 2018, the trial court conducted a hearing outside the presence of the 

jury to inquire into “some matters involving domestic violence.” The prosecutor 

asked M.F., the complainant, whether she had any specific memories of appellant 

hitting her mother, S.B. M.F. testified she heard appellant hitting 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 because “when we get spankings, that’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 leave [M.F.’s] mom 

alone.” M.F. testified her “Tia Nancy opened the door, and my mom was crying, 
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and [appellant] dropped a belt on the floor.” At the time of the incident, M.F. “was 

like five.” 

 M.F. testified another incident 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 out of the car. M.F., 

her mother, and her baby brother “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 alone.” Appellant “started screaming 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. testified her abuelita is 

appellant’s mother. When appellant “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 prosecutor 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 within the household 

had significant impact” on M.F. Specifically, the prosecutor argued “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 defendant at the time, and the reason that she was afraid to 

tell, because she was – she thought that the defendant was going to hurt her mom or 

hurt someone in her family.” 
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Defense counsel objected that the notice he received concerning extraneous 

offenses was “vague, general, somewhere within a four- or five-year period that 

there was a continuing course of conduct of assaultive or abusive 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 extraneous offense to be 

proved – to be allowed, it should 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 value was outweighed by the prejudicial effect. 

The trial court did not allow the incident involving the belt into evidence 

because the incident “occurred before 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. testified that, when she was “four or five,” she 

was sleeping on a couch upstairs at her house when appellant woke her and told her 

to get up. At the time, M.F.’s mother was asleep. Appellant told M.F. he was going 

to give her a “lollipop.” Appellant then “made [M.F.] suck his private part” and 

close her eyes. Afterwards, M.F. said she was going to tell her mother, but appellant 

said “he was going to hurt [M.F.’s] mom, and [M.F.] already knew that he was.” 
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At this point, the trial court asked the jury to step out and conducted 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 threatened [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 told her mother, and 

the incident at her abuelita’s house occurred after she told her mother. The trial court 

stated that, based on M.F.’s answers to the trial court’s questioning, 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 talk about the belt 

incident but not the car incident because M.F. did not “know about when that car 

incident occurred.” Defense counsel renewed his previous objections 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 the stand,” but “that goes to her state of mind.” 

With the jury once again present, the prosecutor asked about the “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 earlier testimony concerning 

the abuse. This time, however, when M.F. testified she told appellant she was going 

to tell her mom and appellant threatened to hurt her mom, the prosecutor asked why 
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M.F. believed appellant was going to hurt her mom. M.F. testified, “Because he hit 

my mom and hit her with a belt.” Defense counsel renewed the objections he had 

made outside the presence of the jury, and the trial court overruled 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 first incident of 

abuse, and her mother “called the cops.” After that, “a lady” interviewed M.F., and 

M.F. told her about the first incident of abuse. M.F. testified 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 specific details.” At some 

point, M.F. told her mother that the abuse did not happen and she had lied about the 

incident because appellant had threatened M.F. 

Appellant came back to live with M.F. and her mother, and appellant started 

“doing things to [M.F.] again.” M.F. testified she lived in Garland with her two 

younger brothers, her mother, and appellant when “a lot of things that [appellant] 

did” to her happened. M.F. testified she was in third grade when she lived in 

Garland, and during this time she told her teacher about the abuse. The prosecutor 

asked “how many times did things happen” to M.F., and she answered, “a lot of 

times.” M.F. said the last time was the day before she told her 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 
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door, and he did. Appellant was lying naked on the bed, and he told M.F. to “come 

here.” M.F. “went beside the bed,” and appellant “pulled [M.F.’s] pants off” and 

touched her private part with his mouth and tongue. M.F. “did not like it, and [she] 

told him to leave [her] alone.” M.F. testified this was not the first time appellant 

touched her private part with his mouth, and “there was many other times in the 

house” in Garland. For the first time, during this last episode 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 first time, touched M.F.’s 

private part with his “private that he pees with.” M.F. testified, “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 that scared me 

more.” M.F. told her teacher about the abuse the next day. 

M.F. testified that, during the first half of third grade, “these things” were 

happening more than once a month but “a little bit less” than once a week but 

“sometimes it would happen more than once a week.” M.F. testified 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 break, when [she] got 

home.” M.F. testified that things were happening in between the time she was about 

five and eight when she was living other places. “The only time that it stopped 

happening” was when appellant and her mother broke up for a time and appellant 

went to Mexico. 
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M.F. testified she was interviewed a second time by “a guy,” but 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 jury “the best that [she 

could] remember everything,” and M.F. testified she told the jury 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 last time.” However, 

there were “times in the middle” when appellant “was sexually assaulting [her],” and 

almost every time something happened, appellant told M.F. that he would hurt her 

mom if she told. At the conclusion of the evidence, the jury found appellant guilty 

of continuous sexual assault of a young child. This appeal followed. 

In his first issue, appellant argues the evidence is legally insufficient to 

support his conviction. 

A person commits the offense of continuous sexual abuse of a child 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 commission of each act, he 

is seventeen years of age or older and the victim is a child younger than fourteen 

years of age. See TEX. PENAL CODE ANN. § 21.02(b); Garner v. State, 523 S.W.3d 

266, 271 (Tex. App.—Dallas 2017, no pet.). 

Although the exact dates of the abuse need not be proven, the offense requires 

proof that two or more acts of sexual abuse occurred during a period of thirty days 

or more. See TEX. PENAL CODE ANN. § 21.02(d); Garner, 523 S.W.3d at 271. The 
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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 acts were committed. 

See TEX. PENAL CODE ANN. § 21.02(d). 

In determining the sufficiency of the evidence, the reviewing court considers 

the evidence in the light most favorable to the verdict to 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). 

The jury is the sole judge of the credibility and weight to attach to witness testimony. 

Jackson v. Virginia, 443 U.S. 307, 319, (1979). The testimony of a child victim alone 

is sufficient to support a conviction for continuous sexual abuse of a child. See TEX.

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

Here, M.F. testified in detail concerning the first and last episodes 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 almost every time something happened, 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. 
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In his second issue, appellant argues the trial court erred in overruling his 

objections to the admission of evidence of an extraneous offense. Specifically, 

appellant complains of the admission of evidence concerning the belt incident. 

Appellant argues the State provided only vague and insufficient notice of its 

intention to introduce evidence of extraneous offenses; the belt incident was not 

proven beyond a reasonable doubt; and evidence of the belt incident was not 

relevant, and its probative value was outweighed by the danger of unfair prejudice. 

We review the admissibility of an extraneous offense for an abuse 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, there is no abuse of 

discretion, and we will uphold it. Id. In determining whether the trial court abused 

its discretion, we may not substitute our opinion for that of the trial court. Moses v. 

State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). 

Article 38.37 of the code of criminal procedure permits the introduction of 

“evidence of extraneous offenses or acts” in certain types of sexual abuse cases, 

including cases in which the defendant is charged with continuous sexual assault of 

a young child as was the case here. TEX. CODE CRIM. PROC. ANN. art. 38.37, § 

1(a)(1)(A). Specifically, section 1(b) provides: 

(b) Notwithstanding Rules 404 and 405, Texas Rules of Evidence,

evidence of other crimes, wrongs, or acts committed by the defendant 

against the child who is the victim of the alleged offense shall be 

admitted for its bearing on relevant matters, including: 
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(1) the state of mind of the defendant and the child; and 

(2) the previous and subsequent relationship between the defendant 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 intent to introduce in the case in chief evidence 

described by Section 1 or 2 not later 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 conduct of assaultive or 

abusive conduct” on appellant’s part 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 hands 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 anyone 

about the sexual abuse. 

Thus, the notice given to appellant laid out the evidence the State 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 how it reinforced 

appellant’s threat to hurt her mother. Appellant argues the belt incident was also 

inadmissible because it was not committed “against M.F.” We conclude it is within 

the zone of reasonable disagreement whether, in the context of appellant’s 
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continuous sexual assault of M.F. and his repeated threats to hurt 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 incident was not proven beyond a reasonable doubt 

and was therefore inadmissible. Section 1 of article 38.37 does not on its face require 

the trial court to determine that evidence likely to be admitted at trial will be adequate 

to support a finding by the jury that the defendant committed the separate offense 

beyond a reasonable doubt when the other crimes, wrongs, or acts are used to show 

state of mind or the relationship between the defendant and the child. Id. art. 38.37 

§ 1. The requirement that the trial court make such a determination is found in 

section 2-a and expressly applies to section 2, which provides evidence that a 

defendant committed a separate offense may be admitted for any bearing the 

evidence has on relevant matters, including the character of the 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 appellant guilty beyond a 

reasonable doubt. 

 Appellant also argues the evidence concerning the belt incident was irrelevant, 

and its probative value was outweighed by the danger of unfair prejudice, citing rule 

of evidence 403. Appellant argues the evidence had no probative value and was not 

needed by the State. Rule 403 provides: “Although relevant, evidence may be 

excluded if its probative value is substantially outweighed by the danger of unfair 
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prejudice, confusion of the issues, or misleading the jury, or by considerations of 

undue delay, or needless presentation of cumulative evidence.” TEX. R. EVID. 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 show M.F. delayed her 

outcry because she was afraid for her mother’s safety. We conclude the trial court 

did not abuse its discretion in admitting evidence concerning the 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 be reformed to 

reflect the age of the victim and include a special finding that the victim was younger 

than fourteen at the time of the offense. This Court has the power 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 appropriate 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. ref’d). Accordingly, we reform the trial court’s 

judgment to reflect that the age of the victim at the time of the offense was four years 

old and to include a special finding that the victim was younger than fourteen at the 

time of the offense. 

 
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As reformed, we affirm the trial court’s judgment. 

Do Not Publish 

TEX. R. APP. P. 47.2(b) 

181174F.U05 

 

/Robert D. Burns, III/ 

ROBERT D. BURNS, III 

CHIEF JUSTICE 
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S 

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 of 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 affirmative finding that the victim or 

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