Texas Penal Code 21.02, Continuing Sexual Abuse of a Child, Thwarts Long Established Requirement of Unanimous Verdicts

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

It’s been called arguably the second “most serious offense” in the State of Texas: Texas Penal Code 21.02The Continuous Sexual Abuse of a Child. The statute provides that a person commits the continuous sexual abuse of a child if (1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims, and (2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age. This law was enacted by the Legislature is 2007 and was part of Texas’ version of Jessica’s Law. These laws have met with serious constitutional challenges across the country.

Beyond imposing a harsher punishment than 99% of all felonies in this state, the “continuous sexual abuse of a child” statute is particularly disturbing because the predicate offenses necessary to trigger the law do not require a unanimous jury verdict. Those predicate offenses, the “acts of sexual abuse,” are: aggravating kidnapping with intent to sexually abuse the victim; indecency with a child; sexual assault; aggravated sexual assault of a child; sexual performance by a child; and burglary if committed with intent to commit one of the foregoing sexual offenses. Subsection (d) of the Sec. 21.02, provides:

“If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.”

In other words, if the defendant is indicted under Sec. 21.02 based on the theory that he committed a sexual assault and indecency with a child under 14 years of age during a period of 30 or more days between January 1, 2010 and December 31, 2010, the jury does not have to be unanimous on the two underlying predicate offenses in order to unanimously convict the defendant of having committed these offenses sometime during the year 2010.

This statutory scheme runs counter to established constitutional and statutory law in the State of Texas. Article V, § 13 of the Texas Constitution and Article 36.29 of the Texas Code of Criminal Procedure have historically held that jury verdicts in all felony cases must be unanimous. No more.  At least three Texas courts of appeals—the Third in State v. Jacobsen, Thirteenth in Soliz v. State, and Fifth in Render v. State—have addressed the issue upholding the statute, with only one, the Fifth Court of Appeals, issuing a published opinion. One other court of appeals, the Sixth Court of Appeals in Williams v. State, had the issue put before it but elected not to decide the matter because the defendant did not object to the law at the trial level.

Each of the courts of appeals heard similar challenges that Sec. 21.02 dispenses with the historical prerequisite of jury unanimity on each element of the offense charged. The defendants in these appeals relied primarily upon two cases in support of this legal challenge, one by the Texas Court of Criminal Appeals and the other by the U.S. Supreme Court: Ngo v. State and Richardson v. United States. The defendants argued that Ngo stands for the proposition that the jury must unanimously decide every element of a crime charged, while Richardson for the proposition that the individual acts which make up part of a continuous series type of offense are each separate elements of the crime and must be unanimously agreed upon by the jury.

Ngo involved one conviction for credit card abuse with evidence that the defendant at different times committed three different acts which the applicable statute defined as three separate criminal offenses and not a “series” of acts that made up one criminal offense. The appeal courts distinguished this case from Sec. 21.02 on the premise that it merely defines two or more acts as a means of committing a single criminal offense. The courts called upon the Texas Criminal Court Criminal Appeals decision, Jefferson v. State, to support this premise; that an injury can be caused in many ways and a jury does not have to unanimously agree on any specific act or omission which may have `caused the injury. In a nutshell, the jury must unanimously agree only that an injury was inflicted and/or caused.

Richardson involved a conviction under a federal criminal statute prohibiting a person from engaging in a “continuing criminal enterprise.” The Supreme Court defined a continuing criminal enterprise as a violation “of any provision of the [federal drug laws” and that the “violation is part of a continuing series of violations.” The high court held that under this particular statute,Continuing Criminal Enterprise21 U.S. Sec. 848, a jury must not only unanimously agree that a defendant committed “continuing series of violations” but also which specific “violations” make up that “continuing series.” The Court added that “if the statute makes each ‘violation’ a separate element, then the jury must agree unanimously about which three crimes the defendant committed.”

The Texas appeals courts hearing the Sec. 21.02 challenges, however, elected to focus on Supreme Court’s caveat in Richardson that if a statute “creates a single element, as a ‘series,’ in respect to which individual violations are but the means, then the jury need only agree that the defendant committed at least three of all the underlying crimes the Government has tried to prove. The jury need not agree about which three.” The appeals court said this is precisely whatSec. 21.02 does: it creates a single element of a “series” of sexual abuse acts and does not make each “violation” (act of sexual abuse) a separate element of the offense that needs to be agreed upon unanimously.

The appeals court also relied upon another U.S. Supreme Court decision: Schad v. Arizona, a murder conviction in which the jury was instructed that it did not have to unanimously agree upon whether the defendant committed a premeditated murder or a felony murder. In Schad, The Supreme Court held that a state can permit a jury to return a general guilty verdict without agreeing whether the defendant committed a premeditated murder or a felony murder. The Sec. 21.02 defendants tried to distinguish their case from Schad by arguing that the offense of continuous sexual abuse of a child is a collection of individual crimes of sexual abuse, and because this allowed some jurors to base their decision that sexual abuse occurred on some days while other jurors could convict based on sexual abuse that may have occurred on other days, due process is violated. The appeals courts were not persuaded.

We agree with the Sec. 21.02 defendants. Schad dealt exclusively with the manner in which the murder was committed: either it was committed strictly with premeditation (the “specific intent to kill” theory) or it was committed during the commission of a felony. These are prosecutorial “theories” as to how a specific murder may or may not have been committed. But under Sec. 21.02 the State must specifically allege in the indictment that the defendant committed two or more “acts of sexual abuse,” which can only be specific, enumerated criminal sexual offenses, during a period of 30 days or more. Sexual assault, indecency with a child, or aggravated sexual assault of a child are not “theories” as to how the offense of “continuous sexual abuse of a child” occurred. They are specific, predicate criminal offenses that must be proven—and since Art. V, § 13 of the Texas Constitution requires a unanimous jury to convict when these offenses are tried on their own merits, the same constitutional requisite should apply when they are used as a “series” of acts of sexual abuse to make up the single offense of continuous sexual assault of a child.

Beyond the political inspiration of the “Jessica’s Law” syndrome, the Texas Legislature was also encouraged to enact Sec. 21.02 by a concurring opinion delivered by Judge Cathy Cochran in State v. Dixon. In that aggravated sexual assault of a child case the child victim testified that the defendant had sexually assaulted her in a similar manner one hundred times over a period of months. Judge Cochran warned that “we are headed for a train wreck in Texas because our bedrock procedural protections cannot adapt to the common factual scenario of an ongoing crime involving an abusive sexual relationship of a child under current penal provisions.” Judge Cochran suggested that “a new penal statute that focuses upon a continuing course of conduct crime—a sexually abusive relationship that is marked by a pattern or course of conduct of various sexual acts” might “assist in preserving our bedrock criminal-procedure principles of double jeopardy, jury unanimity, due-process notice, grand-jury indictments, and election law.”

The politically-motivated Texas Legislature, with its ear always to the ground trying to hear anything about another restrictive penal statute it can enact, particularly one dealing with the pedophilia boogey-man, apparently heard Judge Cochran’s lamentations and enacted Sec. 21.02the following year. Now, all the State must do is present an alleged child victim at trial to say her stepfather or uncle inserted his finger in her vagina or anus twice over a period of months or even years and this is sufficient to get the defendant a mandatory minimum 25-year sentence or a sentence up to 99 years with no eligibility for probation or parole.

That may sound good to the rank-and-file of the law-and-order  movement, but, as the Texas Association Against Sexual Assault warned, laws like Sec. 21.02 can have “unintended consequences.” Karen Amacher, a spokesperson for TAASA, told Time Magazine that these laws curtail prosecutorial flexibility in cases where a judge or jury may not feel that a 25-year minimum sentence is warranted. Amacher pointed out that 80 percent of all child sexual assaults are committed by family members, not by stranger sex predators as in the Jessica Lunsford case, and this may cause family members to have reservations about reporting sexual abuse within the family to the authorities. “With sex offenders we want to say let’s lock them up and throw away the key—these folks are just awful, after all—but it’s just not realistic,” Amacher told Time.

The TAASA reports that 226,000 children alone are raped each year in Texas while the American Academy of Child & Adolescent Psychiatry reports that only 80,000 incidents of child sexual abuse are reported each year. The wide discrepancy in these figures reflect how politicized the issue of child sexual abuse has become. In many respects, it has become a “cottage industry” in this country: “child sexual assault experts,” counselors, crime victim advocates, websites, associations/organizations, television programs, and prosecutors who career in child sexual abuse prosecutions. The reports/studies on the subject of child sexual abuse are all over the map and are as inconsistent as the above statistics. If we truly accept that 80 percent of all child sexual abuse occurs within the family structure, then the American family, especially in Texas, is in serious trouble.

Despite Judge Cochran’s concerns that Texas’ “bedrock procedural protections” would have collapsed had the Legislature not enacted the Jessica Law-inspired “continuous sexual abuse of a child” law, we do not share that belief and, in point of fact, we believe that Sec. 21.02 is a constitutional travesty. While the lawmakers who sponsored the law and Gov. Rick Perry who signed it into law, all of whom exploited the legislation for as much political capital as possible, may have intended for Sec. 21.02 to target violent, stranger child sex predators, the reality is that it will force too many Texas families facing the dark secret of “incest” and child sexual abuse to make hard choices about whether to turn to the legal system for help in dealing with this “family problem.” There were enough child sexual abuse statutes on the books to deal with these cases prior to Sec. 21.02—statutes that offered prosecutors, judges, and juries the discretion to deal with these difficult cases on a fact specific basis.

Besides this lack of discretion, Sec. 21.02 seriously undermines the time-honored unanimity of jury verdicts in this state. For example, six jurors could vote that a defendant committed a specific predicate sexual assault of a child while 6 could vote that he did not, but if each agree that the defendant did commit one of prohibited acts, even without agreeing which one, they can find him guilty and he will face a minimum 25-year sentence. That is not a unanimous verdict, but that is where we are in Texas today—and if this is what it takes to save our state’s “bedrock procedural protections,” then our traditional understanding of the law and procedure have become horribly skewed. We can only hope that the Texas Court of Criminal Appeals will restore some constitutional sanity when it hears the Sec. 21.02 challenges.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair