### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00479- CR

William Thom as Jacobsen, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 27TH JUDICI AL DISTRICT NO. 637 61, H ONO RAB LE JO E CARROLL, JUDGE P RESIDING

O P I N I O N

A jury found appellant Wil liam Thomas J acobse n g uilty of continuous sexual abuse of a child, and the trial court assessed punishment at life imprisonment. See Tex. Penal Code Ann. § 21.02 (West Supp. 2009). I n two points of err or, appellant contends that section 21.02 violates the Texas Constit ution’s j u ry unanimity require ment and that the indictment was fundame ntally defe ctive. We over

rule these contentions and a ffirm the c onviction. Appellant was the coac h of a y outh baseba ll team. Play ers on the team and their friends would sometimes spend the night at his residence. T h er e wa s testimony at the trial that appellant would permit the boy s to drink alcohol to the point of intox ication. The two complainants testified that during overnig ht stay s in 2007 and 2008, appellant fondled their g enitals, place d their penises in his mouth, and penetr ated their anuses with his penis. The complainants wer e twelve and thirteen y ear s old when these a cts occ urre d.Section 21.02 provides that a pe rson commits an offe nse if:
(1) during a per iod that is 30 or more day s in duration, the person commits two or more acts of sexual abuse, reg ardle ss of whether the acts of sexual abuse are committed ag ainst one or more victims; and (2) at the time of the commission of eac h of the acts of sexual abuse, the actor is 17 y ear s of ag e or olde r and the victim is a child y oung er tha n 14 y ear s of ag e.

Id . § 21.02(b). The statute define s “ac t of sexual abuse” a s:

any act that is a violation of one or more of the following penal law s: (1) ag g rava ted kidnapping under Section 20.04(a) (4), if the actor committed the offe nse with the intent to violate or abuse the victim sex ually ; (2) indece ncy with a child under Section 21.11(a) (1), if the actor committed the offe nse in a manner other than by touching , including touching throug h clothing, the bre ast of a c hild; (3) se x ual assault under

Section 22.011; (4) a g g rava ted sexual assault under Sec tion 22.021; (5) burg lary under Section 30.02, if the offe nse is punishable under Subsection (d) of that section and the actor committed the offe nse with the intent to commit an offe nse listed in Subdivi sions (1)-(4) ; and (6) se x ual per formanc e of a child under se ction 43.25.

Id

. § 21.02(c)

. An offense under s ection 21.02 is an agg rava ted fi rs t d egr ee felony punishable by imprisonment for life or f or a te rm of 25 to 99 y ear s. Id . § 21.02(h). The indictment in this case alleg ed that betwee n on or about September 1, 2007, and on or about June 7, 2008, appellant:

2during a period that was 30 day s or more in duration, committed two or more acts of

sexual abuse, said acts of sexual abuse having been violations of one or more of the following penal law s, namely : indece ncy with a child, namely , by

touching any

part of the g enitals of [K.A.K.];
ag g rava ted sexual assault, namely cause d the penetr ation of the anus of [K.A.K.] by the sexual org an of the defe ndant;
ag g rava ted sexual assault, namely , cause d the sexual org an of [K.A.K.] to contac t or penetr ate the mouth of the defe ndant; indece ncy with a child, namely , by

touching any

part of the g enitals of [J .D.];
ag g rava ted sexual assault, namely , cause d the penetr ation of the anus of [ J .D.] by the sexual orga

n of the de fenda

nt;
ag g rava ted sexual assault, namely , cause d the sexual org an of [ J

. D. ] t o contac t or penetr ate the mouth of the defe ndant; and, at the time of the commission of eac h of the acts of sexual abuse, the defe ndant was 17 y ear s of ag e or older and [K.A.K.] and [J .D.] wer e children y oung er than 14 y ear s of ag e.
Appellant moved to qua sh the indictment on sever al g rounds, one of which was that section 21.02 violates the constitution al rig ht to a unanimous jury verdic t. Following a hear ing, the motion to quash was overr

uled. Appellant reur g ed his jury unanimity arg ument in an objection to the court’s jury char g e, and he reque sted that the State be require d to elec t the s pecif ic ac ts on which it relied for a conviction. T h e o b jection and motion for elec tion wer e also overr uled. Appellant bring s forwa rd his jury

unanimity

arg ument as point of er

ror two. Under our state constitution, jury unanimity is require d in felony case s. Ngo v. State , 175 S.W .3d 738, 745 (Tex. Crim. App. 2005); see Tex. Const. art. V, § 13. This means that ea ch juror must a g ree that the defe ndant committed the same specific criminal act. Ngo , 175 S.W .3d at

3745. There is, how ever , a cruc ial distinction betwe en a fac t tha t is a specific actus reus element of

t h e cr ime and one that is but the m eans to the commi ssion of a specific actus reus element. Id

. at 747. The juror s must unanimousl y ag ree on eac h element of the cr ime in order to c onvict, but the jurors need not ag ree on all the underly ing fac ts that make up a p ar ticular element. Id

. When alterna tive manner s and means of committing an offe nse are submitt ed to a jury , it is appropr iate for the jury to r eturn a g ener al ver dict of g uilty if the evide nce suppor

ts a conviction under any one of them. Kitchens v. State , 823 S.W .2d 256, 258 (Tex. Crim. App. 1991).

There are two components to jury unanimity analy sis. Jefferson v. State , 189 S.W .3d 305, 311-14 (Tex. Crim. App. 2006). The fi rs t co m p o n en t is statutory construction. Under the
statute as written, what acts are el em en t s of the offe nse and what acts are mere ly underlying fac ts or means? What, in shor t, did the leg islature intend for the jury to be unanimous about? See Valdez v. State , 218 S.W .3d 82, 84 (Tex. Crim. App. 2007); Jefferson , 189 S.W .3d at 311-12. The second component is due proce ss. The United St at es C o n s t itution limit s a state’s power to define crimes in way s that would permit juries to co n v i ct while disag ree ing about means, at least wher e that definition risks serious unfairne ss and lacks support in history or tradition. Richardson

v. United States , 526 U.S. 813, 820 (1999) ( citing Schad v. Arizona , 501 U.S. 624, 632-33 (1991)) ;

see Jefferson , 189 S.W .3d at 313-14 (discussing Richarson and Schad ); Ngo , 175 S.W .3d at 745-47 (same)

. “[N]ot hing in our history sug g est s t h at t h e Du e Process Clause would permit a State to convict any one under a char g e of ‘Crime’ so g ener ic that any combination of jury fi n d i n gs of embezzlement, rec kless driving , murder, b u rgl ar y , tax evasion, or littering, for example, would suffice for c onviction.” Schad , 501 U.S. at 633.

4The leg islature lef t no doubt as t o its intent in section 21.02. The statute e x pressly provides:

I f a jury is the trier of fac t, members of the jury are not re q u i re d to ag ree unanimously on which specific acts of sexual abuse wer e committed by the de f endant or the exact date when those acts wer e committed. T h e jurors must ag ree unan i m ously that the defe ndant, during a period that is 30 day s or more day s in duration, committed two or more acts of se x ual abuse

.
Tex. Pena l Code Ann. § 21.02(d). Under the plain lang uag e of section 21.02, it is the commission of two or more acts of sexual abuse over the specifie d time period—that is, the pattern of behavior

o r t h e series of acts—that is the actus reus element of the offe nse as to which the jurors must be unanimous in order t o co n v i ct

. The individual acts of sexual abuse that make up this pattern of behavior or series of acts are not themselves elements of the offe nse, but are mere ly evidentiar y fac ts, the manner and means by which the actus reu s el em ent is committed. When there is evidenc e of

more than two acts of abuse over the specifie d time period, section 21.02(d) makes it clea r that the jurors need not ag ree as to which individual acts wer e committed so long as they ag ree that the defe ndant committed at least two. 1

Be cause the statute is clea r, the que stion becomes whe ther it is consistent with due
proce ss for the leg islature to criminalize a pattern of conduct consisting of the commission of two or

more sexually abusive offe nses over a period of time without requiring the jury to unanimously ag ree

I n this case , the trial court’s jury char g e included an instruction on unanimity that para phrase d 1 section 21.02(d). Then, in apply ing the law to the fac ts, the court authorized appellant’ s conviction if the jury found that he committed two or more of the acts of sexual abuse alleg ed in the indictment, with no require ment that the jurors ag ree as to which acts he committed. Appellant does not contend that the evidenc e is insufficient to support his conviction pursua nt to this char g e. 5about t h e i n d ividual offe nses t he defenda nt committed. Dec isions about what fac ts are nece ssary
to constitute a crime, and there fore must be proved individually , an d wh at facts are mere means repr esent value choice s more appropr iately made in the first instance by a leg islature than by a court. Schad , 501 U.S. at 638. I n translating t h e d u e p ro cess demand for fairne ss and rationality into

concr ete judgme nts about the adequa cy of leg islative deter minations, we must look both to history and wide prac tice as g uides to fundame ntal values, as well as to narr ower analy tical methods of testing the moral and prac tical equivalenc e of the diff ere nt means of satisfy ing a single element of

an offe nse. Id

. at 637. There is a threshold presumption of leg islative competenc e to deter mine the
appropr iate rela tionship betwee n means and ends in defining the elements of a crime. Id

. at 637-38. We pre s u m e t hat the leg islature did not act unrea sonably or arbitra rily , and that it had due reg ard for constitutional require ments. See Frieling v. State , 67 S.W .3d 462, 472 (Tex. App.—Austin 2002, pet. re f’d)

.

I n Richardson , the Supreme Court construed the fede ral continuing cr i m i nal

en t er p ri s e s t at ute. 21 U.S.C.A. § 848 (West 1999 & Supp. 2009). Under this statute, a person eng ag es in a continuing criminal enter prise if the person commits a fede ral drug offe nse punishable as a f elony as par t of a “continuing series of [federa l dr ug ] vi olations.” Id . § 848(c) (West 1999). The question befor e the Court was whether the statutory phrase “continuing series of violations” descr ibed a single element of the offe nse, namely a “continuing series,” of which t h e individual violations were me rely

a mea ns of commission, or instead desc ribed seve ral e lements, namely the

sever al “violations ” making up the s erie s. Richardson , 526 U.S. at 815. I f t he former, a j ury had
to a g ree unanimously

only that the def

endant c ommitt ed a “continuing series” without ne cessa rily
ag ree ing as to eac h individual violation; if the latter, a jury had to ag ree unanimously and separ ately 6about eac h of the “violations” the defe ndant committed. Id

. The Court held that jury unanimity was

require d as t o eac h individual violation, citing considera tions of l ang uag e, tradition, and potential unfairne ss. Id . at 819-21.

L ike t he fe dera l statute at issue in Richardson , section 21.02 defines the offense of continuing sexual abuse in terms of m u l t i p l e violations of other penal laws. Despite this surfa ce

s imilarity , howeve r, Richardson does not compel the conclusion that section 21.02 viola t es d u e proce ss b y fa i l i ng to require jury unanimity reg arding the individual “ac ts of sexual abuse” committed by

the def endant. First, Richardson was a statutor y construction opini on, not a due proce ss opinion. The Court stated that the construction of the statute urg ed by the g overnme nt, under which unanimity would have been require d only as to the exis t en ce o f t h e “c ontinuing series” and not as to the individual violations, would have “come close to” and “test[ed]” constitutional limit s, id

. at 820, but the Court did not squarely hold that this construction would have violated those limits. Second, and more importantly , the Supreme Court acknow ledg ed in Richardson the
state statutes and court ruling s permitting convictions for continuing course s of child sexual a buse without jury ag ree ment as to the sp ec i fi c underly ing acts. Id

. at 821. The Court observe d that in crimes involvi ng sexual abuse of children, “state practice may well respo n d t o s pecia l difficulties of proving individual underly ing criminal acts.” Id

. Section 21.02 appea rs to have been a response
to such difficulties. I n Dixon v. St a t e , a prosec ution for ag g rava ted sexual assault of a child, the complainant testified that the defe ndant had sexually assaulted her in a substantially simil ar manner

o n e h u n d re d t i m es over a period of months. 201 S.W .3d 731, 732 (Tex. Crim. App. 2006). The
court of appea ls ha d conclude d that the trial court e rre d by deny ing the defe ndant’s motion for the 7State to elect the spe cific incident it r elied on to c onvict, and the issue befor e the court of cr iminal

appea ls was the proper harm analy sis. Id

. at 733. I n a concur ring opinion, one of the judge s war ned that “[w]e are hea d ed fo r a t rain wre ck in Texas law beca use our bedroc k proce dural protec tions
cannot adapt to the common fac tual scena rio of an ong oing cri m e i n volving an abusive sexual rela tionship of a child under curr ent p en al p rovisions.” 201 S.W .3d 731, 737 (Tex. Crim. App. 2006) (C o chra

n, J ., concur

ring ). The judge sugg ested that “a new penal statute that focuse s upon

a continuing course of conduct crime—a sexual l y ab u s i v e rela tionship that is marke d by a pattern or course of conduct of various sexual acts” might “assist in prese rving our bedroc k criminal-pr ocedur e principles of double jeopar dy , jury unanimity , due- p ro ce ss notice, g rand- jury indictments, a

nd elec tion law .” Id

. The leg islature enac ted section 21.02 the following y ear . The
statute falls within that specia l cate g ory o f cr i m es involving sexual abuse of children ref err ed to in Richardson

. Finally , section 21.02 differ s from the fede ral continuing criminal enter prise statute by being narr ower in scope. The Court noted in Richardson that the “violations” that c ould make
up a “continuing series” wer e found in ninety numbere d sections and encompa ssed crimes of vary ing deg ree s of seriousness, rang ing from removing a drug label, to endang eri n g h u man life while manufa cturing a contr olled substance, to possessing larg e quantities of controlled substanc es with intent to di s t ri b u t e. 5 26 U.S. at 819. The “ac ts of sexual abuse” define d by section 21.02(c) are found in only six penal statutes, althoug h these statutes sometimes define more than one offe nse. 2

See, e .g., Pizzo v. State , 235 S.W .3d 710, 719 (Tex. Crim. App. 2007) (holding that touching 2 anus and touching g enitals are separ ate offe nses under penal code section 22.11(a) (1)) ; Vick v. State , 991 S.W .2d 830, 833 (Tex

. C ri m . Ap p. 1999) (holding that eac h subsection of penal code section 22. 0 2 1(a) (1)( B) cre ates separ ate offe nse); Gonzales v. State , 304 S.W .3d 838, 849 8All of the “ac ts of sexual abuse” involve actua l or threa tened sexual a buse, assault, or exploi tation of children. All of the acts are either first or second deg ree felonies. All are morally equivalent, and they are larg ely simil ar conce ptually

. See Schad , 501 U.S. at 637; W hite v. State , 208 S.W .3d 467, 3 469 (Tex. Crim. App. 2006); Jefferson , 189 S.W .3d at 313.

We conclude , as have courts in other states having simil ar statutes, that section 21.02 does not violate due proce ss by permitting a conviction based on a jury ’s unanimous finding that the defe ndant enga g ed in a course of conduct consist ing of repe ated acts of sex ual abuse, but without requiring jury

unanimity as to the individual a cts that made up that course of conduc t. See P eople

v. Cissna , 106 Cal. Rptr. 54, 68-70 (Cal. Ct. App. 2010); State v. Sl ee p er , 8 46 A.2d 545, 550-51 (N.H. 2004); State v. Johnson , 627 N.W.2d 455, 460-64 (Wis. 2001). Be cause the jury in this case

was require d to unanimously find that appellant committed two or more of the alleg ed acts of sexual abuse, his rig ht to a unanimous jury verdic t was not violated. Point of error two is overrule d.
I n his first point of err or, appellant arg ues that section 21.02 does not plainly dispense wi t h a cu l p ab l e mental state, that a culpable mental state is there fore require d, and that the indictment in this case was fundame ntally defe ctive beca use it did not alleg e a culpable mental state. See T ex . P en al C o de Ann. § 6.02(b) (West Supp. 2009). The acts of sexual abuse alleg ed in the indictment wer e violations of statutes that themselves require a culpable mental state. See
(Tex. Crim. App. 2009) (holding that penetr ation of anus and penetr ation of sexual org an, althoug h found in same subsec tion of section 22.021(a )(1) (B ), ar e sepa rate offe nses). Ag g rava ted kidnapping and burg lary of a habitation, even if committed with the intent to violate 3 or abuse a child sexually , do not require proof that the child was actua lly abused. Be cause this case does not involve either kidnapping or burg lary , we need not decide whether the leg islature rationally classified these offe nses as “ac ts of sexual abuse” compar able to indece ncy with a child by contac t, sexual a ssault of a child, ag g rava ted sexual assault of a child, and sexual pe rfor mance by a child. 9id

. § 21.11(a) (1), (c) (indec ency with child), § 22.021(a) (1)( B) (ag g rava ted sexual assault). Whether

section 21.02 require s proof of any further culpable me ntal state, and howthe applica ble culpable mental state or states should be alleg ed in the char g ing instrument, are i s s u es we do not addre ss beca use appe llant did not preserve his complaint reg arding the ade quacy

of the indictment. A defe ndant may not complain on appea l of any defe ct, err or, or irreg ularity of form

or substance in a

n indictment or information if he did not object to the defe ct, err or, or irreg ularity befor e trial. Te x . Code Crim. Proc. Ann. ar t. 1.14(b) (West 2005). Appellant’s pretria l motion t o quash did not complain of the indictment’s f ailure to alleg e a culpable mental state, and this issue

was not raised at the hear ing on the motion. I f the indictment was defe ctive for this rea son, appellant forf eited his rig ht to complain by failing to timely object. See Studer v. State , 799 S.W .2d 263, 268 (Tex. Crim. App. 1990). The alleg ations in the indictment wer e clea r enoug h to permit appellant to identify the offe nse alleg ed, and thus the indictment was sufficie nt to confe r jurisdiction on the district court. See Teal v . State , 230 S.W .3d 172, 180 (Tex. Crim. App. 2007). Point of er ror one is overrule d. The judg ment of convic tion is affirmed.

10_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J an P. Patterson, J ustice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: June 8, 2010 Publis h

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