Zuniga, Alfonso v. State

Opinion

AFFIRMED; Opinion Filed November 5, 2012.

In The Qnitrt of A.qnmts FiftIi Iitrirt of ixaa at at1a No. 05-I 1-00531-CR

AEFONSO A. ZUNIGA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F09-62078-P

OPINION Before Justices O’Neill, FitzGerald, and Lang-Miers Opinion By Justice Lang-Miers

A jury convicted appellant Alfonso A. Zuniga of aggravated sexual assault with a deadly

weapon and assessed punishment at life in prison. In one issue on appeal appellant complains that

the trial court failed to administer the jury oath. We resolve appellant’s sole issue against him and

affirm.

Appellant argues that the verdict in this case is void because it was rendered by an unsworn

jury. There are two references to the jury oath in the reporter’s record. First, after the conclusion

of voir dire on a Wednesday, the trial court told the jury that he would swear them in on the

following Monday morning, when the trial was scheduled to begin: THE COURT: . . . I need to swear you in.

THE COURT: Does either side mind if I swear them in Monday morning?

The State j: No, Your Honor.

THE COURT: Okay. So with that said. i’ll let the bailiffs show you where you need to go, and I will swear you in Monday morning.

Second. when the proceedings resumed on Monday, the trial court stated that it swore (he jury in on

the previous Wednesday:

[The State]: I think, Judge, that the record should reflect, I believe, on Friday aftemoom--- I’m not sure if the record reflects this, but I believe that the Court swore in the jury Friday afternoon or----

THE COURT: Idid,

[The State]: ---or Wednesday.

TKE COURT: Yes.

[The State]: So this jury is sworn.

Unless it is disputed at trial or the record affirmatively shows to the contrary, we are required

to presume that the jury was properly impaneled and sworn. TEx. R. App. P. 44.2(c)(2). Based on

the passages quoted above, appellant argues that the record affirmatively shows that no oath was

given. We disagree. Although a transcription of the oath is not part of the reporter’s record, the trial

court stated on the record that the oath was administered. In addition, the judgment states, “A jury

was selected, impaneled, and sworn.” In this case we are required to presume that the jury was

properly impaneled and sworn because the issue was not disputed at trial and the record does not

affirmatively show that the jury was not sworn. See id. We resolve appellant’s sole issue against

—7— hun and affirm.

Do Not Publish TEx. R. APP. P.47 1 1053 IFIJ05 (vttrt uf Apictti fiftI! htrtrt uf !Jrxai at a11a; JUDGMENT ALFONSO A. ZUNIGA, Appellant Appeal from the 203rd Judicial District Court of Dallas County. Texas. (Tr.Ct.No. No. 05-1 1-00531-CR V. F09-6207-P). Opinion delivered by Justice Lang-Miers, TIlE STATE OF TEXAS, Appellee Justices O’Neill and FitzGerald participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered November 5, 2012.

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4.LIZ&BETH LA’NC-M11JS JUS4iCE