Osvaldo Leija-Balderas v. State

• Court: Court of Appeals of Texas
• Decided: March 27, 2015
• Docket: 05-14-00648-CR
• Status: Published

Opinion

Affirmed as Modified and Opinion Filed March 27, 2015

In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00648-CR

OSVALDO LEIJA-BALDERAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 363rd Judicial District Court Dallas County, Texas Trial Court Cause No. F13-32837-W

MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Whitehill Opinion by Justice Whitehill

Osvaldo Leija-Balderas waived a jury and pleaded guilty to aggravated sexual assault of

a child younger than fourteen years. After finding appellant guilty, the trial court assessed

punishment at twenty-two years’ imprisonment. In two issues, appellant contends the trial

court’s judgment should be modified to reflect the correct statute for the offense and the correct

age of the complainant at the time of the offense. The State agrees the judgment should be

modified to show the correct statute, but disagrees that the age of the complainant should be

modified. We modify the trial court’s judgment and affirm as modified. Regarding appellant’s first issue, the trial court’s judgment does incorrectly identify the

statute for the offense as “21.02 Penal Code,” which is the statute for continuous sexual abuse of

a child. Appellant pleaded guilty to and was found guilty of aggravated sexual assault of a child

younger than fourteen years under section 22.021 of the Texas Penal Code. See TEX. PENAL

CODE ANN. § 22.021(a)(1)(B) (West Supp. 2014). We sustain appellant’s first issue.

As to appellant’s second issue, although the record shows appellant was indicted for

continuous sexual abuse of a child, he pleaded guilty to the lesser-included offense of aggravated

sexual assault of a child younger than fourteen years. The indictment alleged the offense

occurred on or about September 1, 2007. During the February 12, 2014 hearing following

appellant’s guilty plea, the complainant testified that she was sixteen years old. She further

testified that appellant began “touching” her in “inappropriate ways” when she was four years

old, and the last time he “touched” her was when she was fourteen years old. The complainant

further testified the sexual contacts occurred “pretty much every single day.”

The trial court’s judgment recites that the “age of the victim at the time of the offense

was 5 years.” However, as noted above, appellant pleaded guilty to and was found guilty of

aggravated sexual assault of a child younger than fourteen years. We sustain appellant’s second

issue.

We modify the trial court’s judgment as follows: (1) the statute for the offense is

“22.021(a)(1)(B) Penal Code,” and (2) the age of the victim at the time of the offense was under

the age of fourteen. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.

Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet.

ref’d).

‐2‐ As modified, we affirm the trial court’s judgment. We order the trial court to enter an

amended judgment reflecting these modifications.

Do Not Publish TEX. R. APP. P. 47 140648F.U05

/Bill Whitehill/ BILL WHITEHILL JUSTICE

‐3‐ Court of Appeals Fifth District of Texas at Dallas

JUDGMENT

OSVALDO LEIJA-BALDERAS, Appeal from the 363rd Judicial District Appellant Court of Dallas County, Texas (Tr.Ct.No. F13-32837-W). No. 05-14-00648-CR V. Opinion delivered by Justice Whitehill, Justices Francis and Lang-Miers THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as follows:

The section entitled “Statute for Offense” is modified to show “22.021(a)(1)(B) Penal Code.”

The section entitled “The age of the victim” is modified to show “The age of the victim at the time of the offense was younger than fourteen years.”

As modified, we AFFIRM the trial court’s judgment. We ORDER the trial court to enter an amended judgment reflecting these modifications.

Judgment entered March 27, 2015.

‐4‐