AFFIRM; and Opinion Filed November 1, 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 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 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. During their interviews, K.A. and K.R. 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 other, unalleged acts of
abuse against K.A. and K.R. The Friday before trial, K.R. revealed to the State the
first time that appellant had forced her to have vaginal intercourse with him on
multiple occasions. After jury selection, the State informed the trial court that when
–2– 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 a
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 seventeen years’ old at the time of trial, 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 brother, and an aunt and uncle. K.R. indicated that appellant came into
their bedroom while everyone was asleep and unlawfully touch her. When K.R. was
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). –3– 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. 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 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.
–4– 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, on direct examination,
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
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
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AFFIRM; and Opinion Filed November 1, 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 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 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. During their interviews, K.A. and K.R. 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 other, unalleged acts of
abuse against K.A. and K.R. The Friday before trial, K.R. revealed to the State the
first time that appellant had forced her to have vaginal intercourse with him on
multiple occasions. After jury selection, the State informed the trial court that when
–2– 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 a
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 seventeen years’ old at the time of trial, 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 brother, and an aunt and uncle. K.R. indicated that appellant came into
their bedroom while everyone was asleep and unlawfully touch her. When K.R. was
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). –3– 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. 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 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.
–4– 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, on direct examination,
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
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
–5– 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
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
–6– 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.
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 raise an alternate
perpetrator defense. To preserve error in the admission of evidence, the party must
object each time inadmissible evidence is offered or obtain a running
–7– objection. Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004). While
appellant urged he had not opened the door for the admission of the penile
penetration evidence at the hearing outside the presence of the jury prior to redirect
examination of K.R., he did not request a running objection after the trial court ruled
that the State could elicit the testimony from K.R. Nor did he raise this objection
when the State posed its question concerning the extraneous sexual assault and K.R.
provided her answer. Thus, appellant failed to preserve this complaint for our
review. 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 complaints under issues one and two, we need not address his claim of harmful
error. TEX. R. APP. P. 47.1; 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); see also Proenza v. State,
541 S.W.3d 786, 797 (Tex. Crim. App. 2017) (“Marin places particular emphasis on
various respective ‘dut[ies]’ faced by trial judges and litigants in our adversarial
adjudicatory system.” “[The responsibility of asserting forfeitable rights[, such as
an evidentiary objection,[ belongs to the litigants, and not the trial judge. This is
why such rights will be unavailable on appeal if not urged at trial.”).
–8– CONCLUSION
We affirm the trial court’s judgment.
/Nancy Kennedy/ NANCY KENNEDY JUSTICE
Do Not Publish Tex. R. App. P. 47
221318F.U05
–9– 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 1st day of November, 2023.
–10–