Kernell Zeno, Jr. v. the State of Texas ( 2023 )

AFFIRM; and Opinion Filed December 15, 2023.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01318-CR
KERNELL ZENO, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-84014-2022
MEMORANDUM OPINION
Before Justices Carlyle, Smith, and Kennedy
Opinion by Justice Kennedy
On our own motion, we withdraw our opinion of November 1, 2023, vacate
our judgment of same date, and substitute this opinion in its place. Appellant,
Kernell Zeno, Jr., appeals his conviction for continuous sexual abuse of a child. In
three issues, he contends the trial court erred in allowing the State to present evidence
of extraneous sexual misconduct because (1) the State did not provide reasonable
notice of its intent to use the evidence prior to trial, and (2) no defensive theory was
advanced to warrant presentment of same, and claims he was harmed by the
admission of this evidence. We affirm the trial court’s judgment. Because all issues
are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
Appellant is the oldest of four half siblings and is the half brother of the
complainants, K.R. and K.A. In June 2020, K.R., who was then fifteen years’ old,
disclosed to her therapist that appellant was sexually abusing her. The therapist
reported the matter to Child Protective Services, which in turn notified law
enforcement. K.A. and K.R. were then interviewed at the Collin County Children’s
Advocacy Center when they both made allegations of unlawful contact by appellant.
A grand jury indicted appellant for the first degree felony offense of
continuous sexual abuse of a child. TEX. PENAL CODE ANN. § 21.02. The indictment
alleged that on or about July 11, 2016, through June 2020, during a period that was
30 days or more in duration, appellant committed two or more acts of sexual abuse
against K.A. and K.R. when K.A. was younger that fourteen years of age and K.R.
was younger than seventeen years of age.
Appellant elected to have a jury determine his guilt or innocence and to assess
his punishment if he was found guilty.
The case was set for trial on November 14, 2022. Several weeks before trial,
the State provided written notice of its intent to introduce into evidence other,
unalleged acts of abuse against both K.A. and K.R. The Friday before trial, K.R.
revealed to the State for the first time that appellant had forced her to have vaginal
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intercourse with him on multiple occasions. After jury selection, the State informed
the trial court that when the prosecutors met with K.R. the previous Friday, she
informed them for the first time that appellant had penetrated her vagina with his
penis and the State considered this evidence to be Rule “404(b) contextual evidence”
of one criminal episode.1 Appellant’s counsel acknowledged that the State gave
notice of this allegation the preceding Friday and asserted that the notice was
untimely. The trial court indicated it was going to withhold a ruling until it saw the
context of the proposed testimony.
At trial, during the guilt–innocence phase, the State’s witnesses were K.R.;
K.A.; the detective who was initially assigned to the case; the current resident of the
house on Lake Meadow Drive, which was previously occupied by the complainants
and their family, to describe damage to bedroom doors K.A. and K.R. claimed was
caused by appellant entering their rooms; the assistant principal at K.A.’s middle
school to whom K.A. made an outcry; and a supervisor at the children’s advocacy
center. Appellant did not testify at trial; he called his girlfriend and a friend to testify
on his behalf.
K.R., who was then seventeen years’ old, claimed appellant began to sexually
abuse her when she was in the fifth grade. At that time, the family lived in a house
on Drexel Street where she shared a bedroom with her sister K.A., her youngest
1
Rule 404(b) addresses evidence of crimes, wrongs or other acts and permits such evidence to be
admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity, lack of mistake, or
lack of accident. TEX. R. EVID. 404(b)(2).
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brother, and her aunt and uncle. K.R. indicated that appellant came into their
bedroom while everyone was asleep and unlawfully touched her. When K.R. was
in middle school, the family moved to a house on Hoover Drive. When asked if
anything sexual happened at that house, K.R. responded that she did not want to talk
about it. K.R. recalled that appellant sexually abused her again after the family
moved to a house on Lake Meadow Drive. K.R. was then in the eighth grade. She
indicated she purchased locks for her and K.A.’s bedroom doors to keep appellant
out, but he nevertheless managed to get into her room and continued to touch her
breasts and private area. K.R. testified that she told her mother about the abuse when
she was in the eighth grade, but her mother did not believe appellant would do such
a thing and suggested that three or four other people may have done so. On cross-
examination, defense counsel questioned K.R. about the other people living in the
homes with her or who were around her and had her describe the appearance of her
mother’s boyfriend who lived with them during the relevant period of time. In
addition, defense counsel questioned K.R. about her mother’s assertion other
individuals may have been abusing her.
When defense counsel passed the witness, the prosecutor asked to have a
hearing outside the presence of the jury. During that hearing, the prosecutor argued
the State should be permitted to introduce evidence that appellant penetrated the sex
organ of K.R. with his sex organ under rule of evidence 404(b)(2) to rebut the
defense’s theory of an alternate perpetrator and for identity purposes since the
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defense questioned K.R. about all the different people that were in houses at the time
the offenses were happening. The prosecutor explained that during vaginal
penetration K.R. would have been able to see the perpetrator’s face, and thus, be able
to identify the person. Appellant’s attorney urged it would be inappropriate to use
this kind of testimony. The trial court stated, “The objection is overruled at this time
under 404(b)(2).” On redirect, K.R. testified that while they were living in the Lake
Meadow house, appellant penetrated her vagina with his penis on multiple
occasions.
At trial, K.A., who was then fourteen years’ old, testified to abuse similar to
the abuse recounted by K.R. and in addition indicated that appellant made her touch
his penis and penetrated her vagina with his penis on multiple occasions. She
testified the abuse started when she was nine years’ old. Like K.R., K.A. indicated
that she told her mother about the abuse, but her mother did not believe her, and the
abuse continued.
The jury returned a verdict finding appellant guilty of the charged offense.
During the punishment phase of trial, the State called various persons employed by
the McKinney Police Department, including a forensic investigator, a detective and
a forensic supervisor, to testify about their investigation into a forced entry and
burglary of a home and appellant’s involvement in same. Appellant did not call any
witnesses during the punishment phase of trial. The jury assessed punishment at
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fifty years’ confinement. The trial court rendered a judgment of conviction and
certified appellant’s right to appeal.
DISCUSSION
In his first two issues, appellant contends that the trial court abused its
discretion in permitting the State to elicit testimony from K.R. regarding appellant
having penetrated her vagina with his penis because the State’s notice of intent to
introduce this evidence was untimely and he did not open the door for the admission
of same by raising an alternate perpetrator defense. The State responds, urging
appellant has not preserved these complaints for review.
To preserve error for appellate review, the record must show the party
complaining on appeal made a timely objection that “stated the grounds for the ruling
that the complaining party sought from the trial court with sufficient specificity to
make the trial court aware of the complaint.” See TEX. R. APP. P. 33.1(a)(1). In
addition, the record must show that the trial court made a ruling thereon, either
explicitly or implicitly. See id.; Dixon v. State, 595 S.W.3d 216, 223 (Tex. Crim.
App. 2020).
With respect to appellant’s complaint that the State did not provide reasonable
notice as required by Texas Rule of Evidence 404(b), while appellant made this
argument to the trial court after voir dire and before opening statements, the trial
court did not rule on the objection. Instead, the trial court indicated it was going to
withhold a ruling until it saw the context of the proposed testimony. When the State
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sought to introduce the evidence on redirect, appellant did not renew his timeliness
objection and did not obtain a ruling on his earlier objection. Thus, appellant did
not preserve this complaint for appeal.
Even if the trial court had implicitly ruled against appellant on the
reasonableness of the State’s notice, we note that the purpose of requiring notice of
the State’s intent to use extraneous-offense evidence “is to adequately make known
to the defendant the extraneous [acts] the State intends to introduce at trial and to
prevent surprise to the defendant.” Knight v. State, 457 S.W.3d 192, 204 (Tex.
App.—El Paso 2015, pet. ref’d) (quoting Martin v. State, 176 S.W.3d 887, 900 (Tex.
App.—Fort Worth 2005, no pet.)). Accordingly, to preserve error regarding the
State’s alleged failure to provide reasonable notice of its intent to use extraneous-
offense evidence, a defendant must request a continuance to mitigate the effects of
surprise. Padilla v. State, No. 05-21-00322-CR, 2023 WL 166209, at *5 (Tex.
App.—Dallas Jan. 12, 2023, no pet.) (mem. op., not designated for publication);
Martines v. State, 371 S.W.3d 232, 249 (Tex. App.—Houston [1st Dist.] 2011, no
pet.); Martin, 176 S.W.3d at 900; see also Oprean v. State, 201 S.W.3d 724, 730
n.10 (Tex. Crim. App. 2006) (Cochran, J. concurring) (any error in causing
“surprise” to the defense is forfeited on appeal unless the defendant has also
requested a postponement or recess).
Here, defense counsel did not, at any point, move for a continuance to allow
additional time to investigate the allegation appellant penetrated the vagina of K.R.
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with his penis or to prepare a defense. Thus, appellant failed to preserve his
timeliness complaint for our consideration. We overrule appellant’s first issue.
In his second issue, appellant urges the evidence of penile penetration was
inadmissible under Rule 404(b) because he did not actually present the defensive
theory of an alternate perpetrator or mistaken identity.
At the hearing outside the presence of the jury, the State urged evidence of
penile penetration should be admitted pursuant to Rule 404(b)(2) to rebut the
defense’s alternate perpetrator theory and for identity purposes. Appellant
disagreed. At the conclusion of the hearing, the trial court stated, “The objection
is overruled at this time under 404(b)(2).” To the extent this exchange was
sufficient to preserve appellant’s second issue for review by this Court, for the
reasons set forth herein, we conclude the trial court did not abuse its discretion in
admitting the complained of evidence.
Rule 404(b) prohibits the use of evidence of a crime, wrong, or other act to
prove a person’s character in order to show that person acted in accordance with
the character. TEX. R. EVID. 404(b)(1). But such evidence is admissible under
Rule 404(b)(2) to prove motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident. Id. 404(b)(2). While Rule
404(b) requires the State, on timely request by a defendant, to provide notice of
other crimes, wrongs, or acts it plans to introduce in its case-in-chief, there is an
exception to this notice requirement when the defense opens the door to such
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evidence by presenting a defensive theory that the State may rebut using
extraneous-offense evidence. Dabney v. State, 492 S.W.3d 309, 318 (Tex. Crim.
App. 2016).
We review a trial court’s ruling on the admissibility of Rule 404(b) evidence
for an abuse of discretion. Id. The trial court’s ruling on whether extraneous-
offense evidence was admissible to rebut a defensive theory should be upheld if it
is within the zone of reasonable disagreement. Id.Here, the State did not attempt to introduce the complained of evidence in
its case-in-chief, rather it sought to introduce the evidence in rebuttal, claiming
appellant opened the door to such evidence by presenting an alternate perpetrator
defense and that the evidence was admissible for identity purposes. An extraneous
offense may be admissible to show identity only when identity is an issue in the
case. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). The issue of
identity may be raised by the defendant during cross-examination of the State’s
witnesses. Id. Courts have recognized the issue of identity may be raised during
cross-examination of a State’s witness by (1) impeaching on a material detail of
the witness’s identification, (2) questioning the certainty of the witness’s
identification, (3) questioning the witness’s capacity to observe (i.e., maybe
mistaken), or (4) questioning the witness’s truthfulness (maybe lying). See,
e.g., Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004); Price v. State, 351
S.W.3d 148, 151 (Tex. App.—Fort Worth 2011, pet. ref’d).
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During direct examination, K.R. testified that she knew appellant was the
individual who entered her room and unlawfully touched her because he would
leave items behind and come back a short time later to retrieve them, and a few
times she actually saw his face. On cross-examination, defense counsel questioned
K.R. about the lighting in the room where the abuse occurred, suggesting it was
too dark for her to be able to identify the perpetrator. Defense counsel also
questioned K.R. about other people living in the homes with her or who were
around her, including friends of her brother who often spent the night, and had her
describe the appearance of her mother’s boyfriend, who lived with them during
the relevant period of time, all of which suggested someone who resembled
appellant may have abused her. Defense counsel further questioned K.R.
concerning her mother’s suggestion that three or four of the other people in the
home could have been the person or persons who were sexually abusing her.
The trial court could have determined from the cross-examination of K.R. that
appellant was questioning the certainty of K.R.’s identification (implicating the
alternate perpetrator defense), whether circumstances hindered her capacity to
observe, and her truthfulness. Thus, the trial court could have found appellant raised
the issue of identity thereby opening the door for the State to introduce the
extraneous-offense evidence. Accordingly, we conclude the trial court did not abuse
its discretion by deciding that the extraneous offense evidence was admissible to
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show appellant’s identity under Rule 404(b) and to rebut an alternate perpetrator
defense. We overrule appellant’s second issue.
In his third issue, appellant urges the trial court’s error in admitting extraneous
sexual assault evidence was harmful. Having concluded appellant failed to preserve
his complaint under issue one, and having overruled his complaint under issue two,
we need not address his claim of harmful error. TEX. R. APP. P. 47.1; Cooks v. State,
844 S.W.2d 697, 737 (Tex. Crim. App. 1992) (harm analysis not necessary in
absence of error); Trinh v. State, 930 S.W.2d 214, 220 (Tex. App.—Fort Worth
1996, pet. ref’d) (concluding need not address harm analysis because appellant had
waived matters of which he complained).
CONCLUSION
We affirm the trial court’s judgment.
/Nancy Kennedy/
NANCY KENNEDY
Do Not Publish JUSTICE
Tex. R. App. P. 47
221318F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KERNELL ZENO, JR., Appellant On Appeal from the 416th Judicial
District Court, Collin County, Texas
No. 05-22-01318-CR V. Trial Court Cause No. 416-84014-
2022.
THE STATE OF TEXAS, Appellee Opinion delivered by Justice
Kennedy. Justices Carlyle and Smith
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 15th day of December, 2023.
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