COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-15-00423-CR

ELISEO HERNANDEZGALEANO APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1384203D

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MEMORANDUM OPINION1

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A jury convicted Appellant Eliseo Hernandezgaleano

2 of the offenses of 

continuous sexual abuse of a young child and indecency with a child by contact

 

1See Tex. R. App. P. 47.4.

2The record reflects some discrepancy with respect to the spelling of 

Appellant’s name. Because Appellant never suggested that he bears a name 

different from that stated in the indictment, we take his name as stated in the 

indictment as true. See Tex. Code Crim. Proc. Ann. arts. 26.07, 26.08 (West 

2009).
2

and assessed his punishment at 34 years’ and 10 years’ confinement, 

respectively. See Tex. Penal Code Ann. § 21.02 (West Supp. 2016), § 21.11 

(West 2011). The trial court sentenced Appellant accordingly, ordering the 

sentences to run concurrently. In two issues, Appellant challenges only his 

conviction for continuous sexual abuse of a young child. See Tex. Penal Code 

Ann. § 21.02. We affirm.

In his second issue, Appellant challenges the constitutionality of section 

21.02 of the Texas Penal Code, arguing that it violates his right to a unanimous 

jury verdict guaranteed by the federal and state constitutions. The State notes

that Appellant did not raise this issue at trial, a fact that Appellant concedes. 

Ordinarily, a party must preserve an error during trial in order to raise it on 

appeal. Tex. R. App. P. 33.1(a); Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. 

App. 2009). Appellant argues, however, that he was not required to preserve his 

complaint regarding the constitutionality of section 21.02 because that provision

infringes upon a waivable rather than a forfeitable right, thus allowing him to raise 

this issue for the first time on appeal. See, e.g., Mendez v. State, 138 S.W.3d 

334, 340–42 (Tex. Crim. App. 2004); Sanchez v. State, 120 S.W.3d 359, 366–67 

(Tex. Crim. App. 2003). 

Appellant candidly acknowledges that we have held to the contrary.

3

 

See Shafer v. State, No. 02-10-00496-CR, 2012 WL 745422, at *1–2 (Tex. 

 

3Appellant also acknowledges that a number of our sister courts have also 

held constitutional challenges to section 21.02 of the Texas Penal Code to be 
3

App.—Fort Worth Mar. 8, 2012, pet. ref’d) (mem. op., not designated for 

publication) (holding constitutional challenge to section 21.02(d) is forfeitable);

see also Ibenyenwa v. State, 367 S.W.3d 420, 422–23 (Tex. App.—Fort Worth 

2012, pet. ref’d) (op. on reh’g) (holding constitutional challenge to the entirety of 

section 21.02 is forfeitable). He has not persuaded us to depart from our 

precedent here. Therefore, in accordance with our previous cases on this issue, 

we hold that Appellant forfeited his constitutional challenge to section 21.02. 

However, even if Appellant had not forfeited this complaint, he still would 

not prevail on this issue. As Appellant acknowledges, Texas courts, including 

this court, have repeatedly rejected the argument that section 21.02 violates a 

defendant’s right to a unanimous jury verdict guaranteed by the federal and state 

constitutions. See Pollock v. State, 405 S.W.3d 396, 404–05 (Tex. App.—Fort 

Worth 2013, no pet.); Lewis v. State, No. 02-10-00004-CR, 2011 WL 2755469, at 

*6 (Tex. App.—Fort Worth July 14, 2011, pet. ref’d); see also Machado v. State, 

No. 02-15-00365-CR, 2016 WL 3962731, at *3–4 (Tex. App.—Fort Worth July 

 

forfeitable. See, e.g., Barroquin-Tabares v. State, No. 05-15-00794-CR, 2016 

WL 3144160, at *1 (Tex. App.—Dallas May 31, 2016, no pet.) (mem. op., not 

designated for publication); Moore v. State, No. 03-12-00787-CR, 2015 WL 

1317205, at *3–4 (Tex. App.—Austin Mar. 20, 2015, pet. ref’d) (mem. op., not 

designated for publication); Smallwood v. State, No. 08-12-00215-CR, 2014 WL 

4269155, *5 (Tex. App.—El Paso Aug. 29, 2014, pet ref’d) (not designated for 

publication), cert. denied, 136 S. Ct. 134 (2015); Cox v. State, Nos. 10-11-00370-

CR, 10-11-00371-CR, 2013 WL 3770949, at *1 (Tex. App.—Waco July 18, 2013, 

no pet.) (mem. op., not designated for publication); Almaguer v. State, No. 07-10-

0283-CR, 2011 WL 291973, at *1 (Tex. App.—Amarillo Jan. 31, 2011, no pet.) 

(mem. op., not designated for publication); Williams v. State, 305 S.W.3d 886, 

893 (Tex. App.—Texarkana 2010, no pet.). 
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21, 2016, no pet. h.) (mem. op., not designated for publication) (and cases cited 

therein) (noting that Texas courts have authoritatively ruled against argument 

that section 21.02 violates defendant’s right to unanimous jury verdict). We 

overrule Appellant’s second issue.

In his first issue, Appellant contends that the trial court erred by charging 

the jury with the following instruction: 

You are instructed with regard to Count One only, Continuous 

Sexual Abuse of a Child under 14 years of age, that members of the 

jury are not required to agree unanimously on which specific acts of 

sexual abuse, if any, were committed by the defendant or the exact 

date when those acts were committed, if any. The jury must agree

unanimously that the defendant, during a period that was 30 or more 

days in duration, committed two or more acts of sexual abuse as that 

term has been previously defined.

Appellant argues that this instruction deprived him of his right to a unanimous 

jury verdict in violation of the federal and state constitutions. Appellant concedes 

that he did not preserve this complaint. Nevertheless, we will consider this issue 

because “all alleged jury-charge error must be considered on appellate review 

regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645, 

649 (Tex. Crim. App. 2012). 

In our review of a jury charge, if we conclude that no error occurred, our 

analysis ends. Id. As noted in our discussion of Appellant’s second issue above, 

we along with our sister courts have consistently held that section 21.02 does not 

violate a defendant’s right to a unanimous jury verdict under the federal or state 

constitutions. See Pollock, 405 S.W.3d at 404–05; Lewis, 2011 WL 2755469, 
5

at *6; Machado, 2016 WL 3962731, at *3–4. And the trial court’s instruction 

tracked section 21.02(d) of the Texas Penal Code almost verbatim. See Tex. 

Penal Code Ann. § 21.02(d); Casey v. State, 215 S.W.3d 870, 886–87 (Tex. 

Crim. App. 2007). We therefore conclude that the trial court did not err in 

submitting the above instruction. We overrule Appellant’s first issue.

Having overruled both of Appellant’s issues, we affirm the trial court’s 

judgment.

/s/ Lee Gabriel

LEE GABRIEL

JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DAUPHINOT, J., concurs without opinion

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: August 25, 2016