No. 05-09-00388-CR
Opinion Filed February 11, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 1, Dallas County, Texas, Trial Court Cause No. F-0900159-H.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
Opinion By Justice O'NEILL.
Appellant A.J. Hawkins pleaded not guilty to the offense of continuous sexual abuse of a child. A jury found him guilty, and the court sentenced him to forty years' confinement. In two issues, he challenges the constitutionality of section 21.02 of the Texas Penal Code. Because the facts are well-known to the parties, we need only address those necessary to disposition of this appeal and issue this memorandum opinion. Tex. Rs. App. P. 47.1, 47.4. We affirm the trial court's judgment.
Standard of Review
The constitutionality of a criminal statute is a question of law we review de novo. Render v. State, 316 S.W.3d 846, 856 (Tex. App.-Dallas 2010, pet. ref'd); Owens v. State, 19 S.W.3d 480, 483 (Tex. App.-Amarillo 2000, no pet.). Moreover, we must presume that statute is valid and resolve doubts in favor of the statute's constitutionality. Owens, 19 S.W.3d at 483. The burden rests on the party challenging the statute to establish its constitutionality. Render, 316 S.W.3d at 856. Constitutionality of Section 21.02
In his first issue, appellant argues section 21.02 of the Texas Penal Code violates the Unanimity Clause of the Texas Constitution because it authorizes a guilty verdict even if the jury does not unanimously agree the defendant committed each separate act of sexual abuse constituting the continuous acts of abuse. See Tex. Const. art. V, § 13; Tex. Penal Code Ann. § 21.02 (d) (West Supp. 2009). Relying on authority from this Court, the State responds acts of sexual abuse under section 21.02 are not separate elements of the offense that require unanimity, but rather they are alternative means by which to commit the primary element of the offense or a "series" of sexual abuse. We agree with the State. Although appellant presents arguments and authorities based on other state case law, we are not persuaded to overrule this Court's decision in Render v. State. Further, appellant has failed to acknowledge this Court's holding of constitutionality in Render and has made no attempt to distinguish it. In Render, the appellant argued section 21.02 violated the unanimity requirement, due process, and due course of law. 316 S.W.3d at 850. The appellant relied on Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. 2005) for the proposition that the Texas Constitution requires jury unanimity regarding each statutory element and section 21.02 does not require the jury to agree on specific acts violating the statute. Id. at 856. The appellant further relied on Richardson v. United States, 526 U.S. 813 (1999) for the proposition that individual specific acts comprising the continuous series of an offense are each separate elements of the crime that must be unanimously agreed upon by the jury. Id. at 857. After a lengthy discussion, we concluded Ngo was distinguishable because the applicable statute defined three acts involving a separate criminal offenses while section 21.02 defined two or more means of committing a single criminal offense. Render, 316 S.W.3d at 857. Thus, 21.02 did not violate the unanimity requirement. We likewise concluded Richardson did not support the appellant's position. Id. at 857-58. Although the Supreme Court required unanimity in the context of a continuing criminal enterprise case because the statute made each violation a separate element, the Court noted if a statute created a single element, a "series," in respect to which individual violations are but means, then the jury need only agree an accused committed at least three of the underlying crimes but it need not agree as to which three. Richardson, 525 U.S. at 815; Render, 316 S.W.3d at 858. Accordingly, in Render we concluded section 21.02 is a statute that creates a single element of a "series" of sexual abuse. Render, 316 S.W.3d at 858. It does not make each violation (act of sexual abuse) a separate element of the offense that needs to be agreed upon unanimously. Render, 316 S.W.3d at 858.; see also State v. Espinoza, 05-09-01260-CR, 2010 WL 2598982, at *4 (Tex. App.-Dallas 2010, pet. ref'd) (mem. opinion) (not designated for publication). Although appellant also relies on Richardson and Ngo to support his position, he has failed to provide any persuasive arguments to change our conclusion in Render. As such, we overrule appellant's first issue. In his second issue, appellant argues 21.02 violates his due process rights under both the U.S. Constitution and Texas Constitution because it removes his right to a unanimous verdict. He relies on Schad v. Arizona, 501 U.S. 624 (1991) to support his position. Appellant's reliance is misplaced. In that case, the record reflected the trial court did not require the jury to unanimously agree as to the theory of murder for which petitioner was convicted. Id. at 632. The Supreme Court upheld the trial court's decision stating, "different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict." Id. (citing McKoy v. North Carolina, 494 U.S. 433) (1990) (Blackmun, J., concurring)). Thus, the holding in Schad supports the proposition that a jury is not required to unanimously agree upon which offenses make up a continuous sexual abuse charge. See Render, 316 S.W.3d at 858. Moreover, as described above, section 21.02 does not give rise to a unanimity defect; therefore, appellant's due process rights could not be violated. We overrule appellant's second issue. Conclusion
Having overruled appellant's two issues, we affirm the trial court's judgment.