/65-/S

)R!G!NAL

No. PD-10165-15

In The Court of Criminal Appeals

Austin Texas

Eric L. Hill,

Appellant

vs

The State of Texas,

Appellee

RECEIVED IN

COURT OF CRIiiMAL APPEALS

APR 17 2015

Abel Acosta, Clerk

FILED \H

COURT OF CRIMINAL APPEALS

From The Six Court of Appeals

No. 06-14-00014-CR

Trial No. 43,089B

Appellant Petition For Discretionary Review

APR 17 2015

Aoe/ Acosta, Clerk

Respectfully Submitted

Eric L. Hill

TDCJ-CID No. 1917752

Allred Unit

2101 FM 369 North .

Iowa Park, Tx. 76367

Appellant.
Table of Contents Page NoIndex of Authorities

Statement Regarding Oral Arguement

Statement Regarding Case

Statement of Procedual History

Grounds for Review Number One

The jury charged violated the requirement

of a unanimous verdict

Grounds for Review Number Two

There is insufficient evidence to sustain

a conviction

Prayer for Relief/Conclusion

Certificate of Services

Unsworn Declaration

[2]

3

3

4

3

4,5

4,5

%

l
Oral Arguement

The Appellant does not wish to have a oral arguement the Appellant is incarce

rated and does not wish to incur the cost upon the court so no oral arguement

is requested.

Index of Authorities page

Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010) 5,7

Johnson v. State, 23 S.W.3d 1 (Tex.Crim.App. 2000) 5,7

Lane v. State, 151 S.W.3d 188 (Tex.Crim.App. 2004) 5,7

Morales v. State, 416 S.-W.3d (Tex.App. Houston 14th Dist-2013) 5

Ngo v. State, 175 S.W.3d 738 (Tex.Crim.App. 2005) 5

Young v. State, 14 S.W.3d 748 (Tex.Crim.App. 2000) 5,7

Statement of Procedural History

On January 9,2015 the sixth court of appeals issued its opinion -affirming,

the Appellant's conviction for the offense of continuous violence against the

family. The Appellant's attorney on appeal files a motion with the 188th Dist

rict Court for Leave to file a Discretionary Review for the appellant and was

Granted. Attorney later filed a motion for extension of time. The PDR Brief was due on 2-8-15. Time was granted- Attorney has filed a Motion to Withdrawl.

Notice was served on the Appellant on Feb. 18,2015. The state granted the Pro

se petitioner time to file April 10,2015.

Statues

Texas Code of Criminal Procedure Art- 4.06 5,7

Texas Family Code Chapter 91.003 6

Texas Code Criminal Art- 11-43 5'7

[3]
No. PD-0165-15

Eric L. Hill

Appellant

The State of Texas

Appellee

Petition For Discretionary Review

To The Honorable Court of Criminal appeals of Texas:

Appellant Eric L. Hill- submits his Petition for discretionary review to correct errors of law committed by the sixth court of appeals, in favor of app

ellee, State of Texas. Appellant was the accused in the trial court and the appellant in the court of appeals. For clarity, Eric L. Hill will be referred

to as the Appellant and The State of Texas will be referred to as the Appellee

Please note that the appellant does so without the benefit of the record which

a copy was not afforded to the Petitioner.

Statement of the Case

On October 10,2013, the Appellant was indicted for the offense continuous

violence aqainst the family under the authority of Texas Penal Code, Sec. 25.

11. The indictment sets out three misdemeanor offense. of;: family violence-alleg

ing acts by the appellant against Raven Thomas. The indictment also contained

two sequential prior felony enhancement allergation, making the range of puni

shment 25 years to Life confinement. The second enhancement allergation conta

ined an incorrect cause number but was corrected before trail by a motion to

amend which was granted by the trial court.

On February 25 trial began and ended with a verdict of guitly. February 26,

the defendant was sentenced to 27 years confinement to TDCJ and this Appeal process began.

Grounds for Review One

1 ) The sixth court has misconstrued a statue and has decided an important qu

estion of state law that has not been but should be settled by the.Court of Cr

minal Appeals. Further, they have not applied the correct analysis to the case

at bar in regards to the error in the jury charge. Denying the defendant afa

ir and impartial trail due to a now unanimous verdictGround Number Two

The-.sixth: court of appeals has relied on perjured and false stjtemegt^an^

the stacking of inferences "*«d^ ^ ^theTin away that conflicts wi- t^Ll^hafth/SS S aaduSCtoe^competent reliable, substanive

[4]
evidence to prove every element of that a person actually committed a crime.

Reason for Review One

The jury charged violated the Requirement of a unanimous verdictIt is without question that Texas law requires a unanimous verdict in a fe

elony case Ngo- v. State, 175 S.W.3d 738(Tex.Crim.App. 2005).Unanimously means

that each and every juror agree that the defendant committed the same single,

specific criminal act- Jurors must unanimously agree on all elements of a cri

me in order to convict but they need not agree on all underlying ^acts that

compose a particular element- Ngo, 175 S.W.3d a 747.

The lower court has misconstrued the charge. The indictment set out three

seperate and specific dated offenses each of the offense contained acts the manner and means by which each offense occured. The first offense charged that

the defendant committed a assault by striking the victim with a chair,hand, and feet. The second offense alleged that the assault occured by striking vict

im with hand and feet. And the third assault alleged only one act by hand.

The jury was not presented with any menu of these alleged acts (six) in total.

However, the jury was given three seperate and specific dated offense and told

it could choose without agreeing on any two specific offenses. And it is unde

rstood that the underlying facts that compose a element does not require unani

minity. The indictment alleged with certainty what the state was required to

prove. Not only did the jury charge violate verdict unanimity it violated the

due process of the appellant- Each of the alleged offense charges were unajudicate misdemeanors the state proceeded to the felony portion of the indictme

nt.with out there being any findings on the charges listed above it- The felo

ny was plead after these offense and there was no time period alleged nor tes

tified to the jury charge at bar circumvented the whole trial process and all

owed for a non-unanimous verdict. The essential elements where the offense th

emselves. The manner by which they were committed is another issue.

The case at bar should be decided on its own merits based on the indictment

and Texas law. The correct analysis should be used in determining if the jury

charge at bar violated the Texas law requiring unanimous jury verdicts in all

felony cases. The only case related to the case at bar is Morales v. State 416

S.W.3d 546 (Tex.App-Hou. 14th Dist-) However that case only involved two offe

nse and it was a interlocutory appeal and required a high standard to prove invalidity on its face. And the court didn't answer the question of whether the

statue acts/operates in a unconstitutional manner since the charge only contai

ned the basis 2 offense the question was not answered. And the lower failed to

answer the question. They only construed the charge in a way that it is not charged. If the law requires a unanimous jury verdict and that the jury must be

unanimous on the essential elements. Then the law must prevail in the case at

bar.

Reason for Review Two

The Evidence was Insufficient

It has been recognized by the courts that the charging of defendants with

multiple offense before a single jury is highly prejudical which the case at

bar shows, the court was charged with whether there was insufficient evidence

in two of the alleged offense contained in the indictment. .The lower court- is

[5]
relying on the stacking of inferance based of a showing that the Appellant co

mmitted one of the alleged offense. And based on that offense determine the believability of the witness even though the state failed to produce reliab le,

substative, credible, and compotent evidence showing that the appellant actua

lly committed a crime or that a crime was even committed in the two offense ti

nder review. For clarity the indictment alleges 3 specific Assault of Family

Violence alleging acts committed by the appellant on appeal the Appellant only

challenged the Insufficency on 2 of these assault, thta being the first Assau

lt which allege occured on February 22,2013 at the home of the victim and the

3rd assault that allege occured on June 29,2013 at the home of the alleged vi

ctim raven Thomas. For clarity the Appellant's attorney at Trial input the ap

pellant's guilt to the 2nd assault charged in the Indictment and maintain this

position throughout Trial for the Appellant didn't testify during thsi portion

of the trial. The states witness Raven Thomas testifying for the state stated

that the appellant had located her at a club and hand punched and kicked her

although things where unclear to her because she was knocked to the ground and

disorientated. However even with the Appellants attorney inputing the Appella

nt's guilt before any evidence was offered by the state and the states witness

testifying to this assault. The state put on an elaborate display of evidence,

detailing thsi assault. Police had witness this assault for it occured at a club and each of those officers testified to witnessing this assault and one Jacob Zimmerman was even ask to demonstrate the kick that the appellant delive

red to the victim photo's were taken state's exhibit's and there is no

question as to the assault- It was unchallenged at the trial and on appeal-The

Appellant firmly assert that this was the bases for the Jury's verdict of gui

lt and there was no alternative of guilt- The 2 assault that are under analys

is are the February 22,2013 assault alleged in the indictment and the June 29,

2013 assault alleged in the'indictment. The state alleges that on February 22,

2013 the alleged victim accused the Appellant of a assault occuring in the ea

rly morning hours of February 22,2013 at trial the alleged victim testifying

for the state admits to making a false report against the Appellant

and that because of her anger at::the-^appellant unwillingness to/icome home. The

injury that she alleges she substained was due to her slamming her hand .in a

car door. The alleged victim also stated that she had went to the

hospital because of her injury- However, there is no medical record/

or medical staff testifying to confirm any of this. There is nobody who ident

ified the Appellant or witness any such assault- The state witness Grace Bagley claims to have seen injuries but because of her camera conveniently not working she didn't take any photos of the injuries She claims to have

put details in her report but her report doesn't make any notes of a chair fi

tting the description of a rolling desk chair nor does her testimony. She also

stated that prior to trail that she had never before seen the Appellant.And that no body was at home but Raven Thomas.

There is nothing of proof that the Appellant committed this assault. There

is no medical record which would prove injuries. Its common knowledge that if

one goes to a hospital complaining of a family violence it would be a detail

record of any injuries. There is simply no proof beyond a reasonavle doubt th

at a crime was ever committed. In the third alleged:assault.on;June :29,2013.ithe state alleges that Appellant assaulted the alleged victim after getting out

of jail. Again there is no proof of any assault. No state witness cla

ims to have witness any assault. The alleged victim stated at trial and at the

scene that she was not assaulted and the injuries she had substained was from

the earlier assault that had occured on June 29,2013 the 2nd assault alleged

in the indictment. two officer testifying for the state calims t-

[6]
he state claims that a witness told them of a assault- But failed to make any

positive identification of that witness. And the claim witness a A-Morgan sta

ted that at no time did she state to police that she was a witness to an assa

ult by the Appellant against Raven Thomas.

The state witness gregg Thomas state that it sounded like somebody was hav

ing a fight. Somebody could be anybody- This doesn't prove anything. Nobody was in the residence when police arrived but the Appellant and his family. And

there was no hostility noted between the two parties. The alleged assault that

was; testified to was that the Appellant had assaulted Brittney Morgan this is

what the jury heard and the fact that Appellant dealt with the police rudely.

There was simply no assault that occured. No photos were taken of any new or

pre-existing injuries. Because a defendant had been arrested and charged with

a crime doesn't defeat his presumption of innocence.•There is simply no proof

beyond a reasonable doubt that a crime was even committed.

There was no evidence :or •testimony present ,to.»the,7jury of the.offense of 25

11 the fourth offense alleged in the Indictment. The state case rested after

Mr.Thomas testimony and no further witness was called to testify to the eleme

nts and give evidence of the offense of 25.11. The time period start date-Thru

end date. And there was no victim that testified that they were assaulted by

the defendant 2 or more times within any time period. The state incorporated this offense into a jury charge without any proof b

eing offered. For the other offense alleged contain there own elements and fa cts.

The proper analysis for sufficiency of the evidence will be viewed in the

light most favorable to the verdict to determine whether any rational trier of

fact could have found the essential elements of the crime beyond a reasonable

doubt Brooks v. State 323 S.W.3d 893 (Tex.Crim.App. 2010); Johnson v.State,23 SW3d 1Tex.Crim.App- 2000); Lane v- State, 151 S.W.3d 188 (Tex.Crim.App. 2-

004; and Young v. State, 14 S.W.3d 748 (Tex.Crim.App. 2000).

[7]
Conclusion and Prayer

The appellant ask this Court to Review the lower Courts ruling because the lo

wer Court has errored on a matter of Law and has decide against the Law and

this Court has the power to decide on matters.of; law. Also.the. case, at.Bar has

not been properly decided by the Texas Supreme Court on its own merits. The Appellant ask that this court remand and reverse this case with Instruction of

Acquital reordered or in the alternative, without waiving the above reversed

and remanded for a new trial.

Respectfully Submitted

Eric L. Hill #1917752

Pro se Petitioner

Allred Unit

2101 FM 369 N.

Iowa Park, Tx. 76367

Certificate of Service

My name is Eric Lamothe hill 7-22-75, my inmate ID #1917752. I am presently incarcerated in James allred unit in Iowa Park, Wichita Tx 76367 and I declare

that a true and correct copy of the above pleading has been sent to District

Attorney William M Jennings, 101 E.Methvin. Ste.333 Longview, Tx.76501 By

U.S. Mail on 8th day of April, 2015.

Eric L. Hill <_

Unsworn Declaration

My name is Eric Lamothe Hill D.O.B. is 7-22-75. My inmate number is #1917752.

I'm presently incarcerated in James Allred'Unit in Iowa Park, Tx. 76367. r de

clare under penalty of perjury that the foregoing is true and correct.

Executed on the 8th day of April 2015.

Pro-Se Litigant

[%\
No- PD-0165-15

In The Case of Criminal Appeals

At

Austin, Texas

Eric L. Hill Appellant/Petitioner

The State of Texas Appellee/Respondent

Motion To Suspend Rules

To The Honorable Justice of the Texas Court of Criminal Appeals:

comes now, Eric L. Hill, the Appellant/Petitioner, who does makes proper and file this Motion To Suspend Rules in accordance and pursuant to Tx.Cr.App.

Pro., rule 2 and does state, declare, varify, confirm, acknowledge, and plead,

in support hereof as follows:

I.

Jurisdiction

The Appellant/Petitioner maintains and aver.The court of Criminal Appeals

has both the authority and jurisdiction over the subject matter and parties

to this matter in accordance with the pursuant to Texas Constitution article 5

Seq.; Texas Rules of Appellant Procedure, and any and all rulings and authori

ties applicable and relevent to this pleading and the relief sought and reque

sted.

II.

Reason for Motion

The Appellant/Petitioner does maintain and aver the foregoing and instant

Motion to Suspend Rules is being made and filed to afford the appellant/Petit

ioner, a laymon In The "art" and "science" of the field of law to have the Honorable Texas Court of Criminal Appeals relax the fromal requisties of the Rules governing form and procedure of making and filing a Petition For Discret

ionary review invoking the mandate and ruling of Haines v. Kearner 404 U.S. 5-

19 (1972), allowing the "pro se litigant", such as the Appellant/Petitioner to

be held to liberal review without stringent and strict requirements as one who

is formally schooled and trained in the "art", "science", and "practice" of the field of law as a Student of the State of Texas academy of the Bar, an att

orney. For the Appellant/Petitioner contends' the. substance..and^subject: matter

of his advanced Petition For discretionary Review is of more import relevance

then his having failed to adherer: to.:iform.andnprocedure, when the same plead and

[1]
subtantiates an error and miscarriage of Justice at the Court of Appeals and

trial Court levelsIn light of the Appellant/Petitioner's aforegoing reason moving this atoneable Texas Court of Criminal appeals to suspend the Rules as to form and proc

edure governing Petitioner For Discretionary Review the Appellant/ Petitoner

seeks any and all relief hereinafter prayed for in this matter. For this plea

ding is made a part of the accompanying Petition For Discretionary ReviewPrayer

Wherefore,. Promises Considered; Appellant/Petitioner,, does. PRAY -that, this

Honorable Texas Court of Criminal Appeals suspends any and all strict require

ment and application of rules governing the process and procedure of Petition

For discretionary review and its review.

And Further, the Appellant/Petitioner PRAYS that this Honorable Texas Court

of Criminal Appeals grant and Order any and all other available relief and reemdy as authorized by both law and equity as relevant to the foregoing plead

ing-

[2]

Respectfully Submitted,

Eric L. Hill #1917752

Appellate/Petitioner Pro:- Se

Allred Unit/TDCJ-CID

2101 FM 369 N.

Iowa Park, Texas

76367
VERIFICATION

I, Eric L. Hill, #1917752, an offender, who is the Appellant/Pettitioner, who

does declare, state, confirm, acknowledge, verify, and plead under the Penalty

of Perjury of the laws of the United States and the State of Texas that the contents of the foregoing Motion To suspend Rules is true and correct as decla

red, confirmed, and stated therein by hereinafter affixing my signature and the date of its execution in accordance with and pursuant to 28 U.S.C. 1746 and Tex.Civ.Proc and Rem.Code, sections 132.001-132.003 as executed on this date of 8th of April 2015.

Eric.L. Hill, #1917752

Appellant/Petitioner,"Pro Se"

Allred Unit/TDCJ-CID

2101 FM 369 N.

Iowa^ParkV Tx76367

CERTIFICATE OF SERVICE

I, Eric L. Hill,#1917752, do declare, certify, verify, acknowledge, state,

and plead under the penalty of perjury of its laws of the United States and The State of Texas that I have sowed a true and correct copy of the Motion .To

suspend rule upon the appellee/Respondant by placing the same in a postage pr

epaid stamped/envelope addressed to the Appellee/Respondent, namely; Honorable

william M. Jennings, Gregg County District A Horney at Gregg County District A

Horney's Office; 101 E.Methvin; Suite 333; Longview, Tx. 76501 by placing :.the

same in the allred Unit Mail Box to be subsequently picked up by Allred Unit M

ail Room Personel, who will log the same in outgoing Legal/Special Mail Corre

spondence Log and subsequently deposit in the United State Postal Service for

delivery as stated, declared, confirmed, certified, pled to be a tr

ue and correct act of service in accordance and"pursuant to 28 U.S.C 1746 and Tex.Civ.Proc. and Rem.Code, sections 132.001-132.003 to which my signature

is affixed below on this date of 8th of April, 2015.

[3]

Eric L. Hill,#1917752

Appellate/Petitioner, "Pro Se"
In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-14-00044-CR

ERIC L. HILL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th District Court

Gregg County, Texas

Trial Court No. 43089-B

Before Morriss, C.J., Moseley and Carter,* JJ.

Opinion by Justice Moseley

*Jack Carter, Justice, Retired, Sitting by Assignment
OPINION

Eric L. Hill was convicted by a jury of continuous family violence, based on allegations

that he had done violence to his girlfriend, Raven Thomas, on three occasions within twelve

continuous months. The charge alleged that he had committed such violence once on

February 22, 2013, and that there were two such acts of violence committed by him June 29,

2013 (one of these was alleged to have occurred at a club and another one on the same day in the

apartment they shared). After the jury finding of guilt, Hill entered a "true" plea to two

enhancement allegations and tried the issue of punishment to the jury. He was sentenced to

serve twenty-seven years in prison.

Although Hill does not dispute that Thomas falls within the class of people designated as

"family" pursuant to the statute under which he was charged, he contends on appeal (1) thatthere

is insufficient evidence to sustain his conviction and (2) that the jury charge failed to require the

jurors to return a unanimous verdict. To explain his position a bitmore, although Hill admitted

that he attacked Thomas at the club, he maintains that there is insufficient evidence that he did

violence to her during either of the other two incidents that were alleged to have occurred.

In addition to Hill's claim that there was insufficient evidence for the jury to have found

the existence of the other two alleged incidents, he argues that the trial court erred in its refusal

to instruct the jury that in order to convict, it was necessary for thejury to agree on the existence

ofthe same offenses.
A person commits the offense of continuous violence against the family, a third degree

felony, if the person, within a twelve-month period, assaults a family member two or more times.

Tex. Penal Code Ann. § 25.11 (West 2011). Its pertinent provisions state as follows:

(a) A person commits an offense if, during a period that is 12 months

or less in duration, the person two or more times engages in conduct that

constitutes an [assault] under Section 22.01(a)(1) against another person or

persons whose relationship to or association with the defendant is described by

Section 71.0021(b), 71.003, or 71.005, Family Code.

(b) If the jury is the trier of fact, members of the jury are not required

to agree unanimously on the specific conduct in which the defendant engaged that

constituted an offense under Section 22.01(a)(1) against the person or persons

described by Subsection (a) or the exact date when that conduct occurred. The

jury must agree unanimously that the defendant, during a period that is 12 months

or less in duration, two or more times engaged in conduct that constituted an

offense under Section 22.01(a)(1) against the person or persons described by

Subsection (a).

Id.

I. Claim of Insufficiency of the Evidence

In evaluating legal sufficiency in this case, we must review all the evidence in the light

most favorable to the jury's verdict to determine whether any rational jury could have found,

beyond a reasonable doubt, that Hill committed the offense. See Brooks v. State, 323 S.W.3d

893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref d) (citing

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). We examine legal sufficiency

underthe direction of the Brooks opinion, while givingdeference to the responsibility of the jury

"to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007) (citing Jackson, 443 U.S. at 318-19).

Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). The hypothetically correct jury charge "sets out the law, is authorized by the indictment,

does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's

theories of liability, and adequately describes the particular offense for which the defendant was

tried." Id.; see Allen v. State, 436 S.W.3d 815 (Tex. App.—Texarkana 2014, pet. refd).

Hill's indictment alleges that he committed an offense under Section 25.11 by

committing three acts of violence—one in February 2013 and two others on the same day in June

2013—causing injury to a member of his "family"—Raven, his girlfriend.

Thomas told different versions at different times of her encounters with Hill. In each of

the circumstances, she told people one story at or near the time of each incident, but radically

changed her rendition ofthe facts at the time oftrial.1 The police officer who responded to the

February complaint testified that Thomas had told him, and had told the dispatcher, that Hill

assaulted her by throwing a rolling desk chair at her, that she broke her finger blocking it, and

that Hill thenjumped on her and punched and kicked her. The officer testified that Thomas had

bruising on her back, shoulder, and ribs, and that her right middle finger was in a splint. At trial,

i

although Thomas admitted that she had made those statements at the time, she said she had lied

when she previously related that story. At trial, she said instead that her finger had been broken

'There is no indication that the Stateplans to pursue perjury charges against the alleged victim.

4
when she slammed it in a car door and that she had lied to the police and hospital staff about the

injuries having been the result of Hill's assault because she was then angry at him. Her anger,

she maintained, originated because Hill would not come home. At trial, she testified that she had

warned him that she would call the police and tell them a story to get him in trouble if he did not

return home.

Regarding the June incident, the testimony is more widely sourced. Antoinette Morgan,

Thomas' friend, told police that at about the time the incident took place, she and Thomas were

in Thomas' bedroom talking when Hill came in and struck both ofthem.2 At the trial, Morgan's

story of the incident changed. Under the newer version, Morgan testified that Hill had struck

her, causing her to leave the bedroom; she maintained that after she departed, she did not know

what later transpired. Thomas' father was also in the apartment. He testified that he telephoned

9-1-1 when he saw Hill enter and go upstairs to Thomas' bedroom; he said that he subsequently

heard noises like "someone's getting beat up." The investigating officer testified that he saw

Thomas as she came out of the apartment, that her face was "real red and puffy, swollen, still

quite red," and that her apparent injuries were fresh. However, it is also apparent that she was

beaten and injured only thirteen hours previously in the club incident.

All of this evidence (both the stories that were given at the time of the incidents and the

changed stories provided by the women at the time of trial) was presented to the jury. In other

words, there is evidence that could have been understood to support either the State's case or

Hill's version of events. Sorting out and weighing the strength of the evidence is the jury's role

2As an aside, at the time this report was originally given, Morgan provided the police a false name, and she was, at

the time oftrial, incarcerated, charged with forgery.

5
in a trial, and there was evidence to support its decision. In the circumstances of this case, there

was sufficient evidence for the jury to have found that Hill committed family violence during

each of the three events mentioned in the charge. That being the case, there was sufficient

evidence to support a finding by the jury that Hill committed continuous family violence.

II. Claim of Jury Charge Error

The next issue raised by Hill concerns the appropriateness of the jury charge. Before

submission, Hill requested that an instruction be included informing the jury that it was required

to come to a unanimous decision on two offenses, rather than some jurors finding the evidence

sufficient as to one, and some sufficient as to the other. The trial court considered the matter

overnight, but then refused the request. Hill argues that this was error of sufficient gravity to

dictate reversal, because it is axiomatic that Texas law requires a unanimous verdict in a felony

case. See Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005).

Unanimity means that "each and every juror agrees that the defendant committed the

same, single, specific criminal act." Id. at 745. Jurors must unanimously agree on all elements

of a crime in order to convict, but they need not agree on all underlying facts that compose a

particular element. See Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App. 2006) (citing

State v. Johnson, 627 N.W.2d 455, 459-60 (Wis. 2001)); Ngo, 175 S.W.3d at 747. Thus, as will

be addressed below, courts have tended to lock in on the question of exactly what constitutes the

elements of the statutory crime.

Understandably (because the statute under which Hill was charged is a relatively new

law), no opinion of an appellate court in Texas is directly on point. As raised on appeal, the
question is whether the trial court erred by failing to properly submit the charge as requested, as

a violation of Hill's Sixth Amendment rights. See U.S. Const, amend. VI.

The pertinent part ofthe submitted charge reads as follows:

To find the Defendant "guilty" of Continuous Violence Against the Family you

must all agree that the State has proven elements 1, 2, and 3 listed above beyond a

reasonable doubt, but you do not have to agree on which two Assaults listed in

elements 2(a), 2(b) and 2(c) above.

As set out at trial and now on appeal, the question is whether it was proper to tell the jury that if

each juror believed Hill assaulted Thomas twice (out of any number of possibilities) during a

year, then it should convict, or, alternatively, if the Constitution requires the jurors to

unanimously conclude that two particular assaults occurred before it can properly convict.

The State suggests that we should import the reasoning utilized in connection with the

continuous sexual abuse statute,3 which contains similar language to the continuous family

violence statute applied in this case. In a case involving the continuous sexual abuse statute, the

Austin Court of Appeals concluded that the right to a unanimous jury verdict was not violated

when the jury was not required to unanimously agree on which of the various offenses had

occurred so long as the jury was required to unanimously decide that the defendant had

committed at least two of the alleged sexual acts. Martin v. State, 335 S.W.3d 867, 872 (Tex.

App.—Austin 2011, pet. ref d), cert, denied, 133 S.Ct. 645 (2012).

In that case, the State alleged eleven different "acts" and, similar to this case, the charge

simply required the juryto find, as a group, that Martin had committed two ofthe sex abuse acts.

Id. The jury was not required to make findings showing that each juror concurred as to which of

3Tex.Penal Code Ann. § 21.02 (West Supp. 2014).

7
the acts had been committed. Clearly, if we assume the jury in the Martin case followed its

instructions, the jurors could have found an enormous number of combinations that did not

involve any degree of unanimity. Although there is a lesser number of possibilities to add in the

mix here, the argument raised in the Martin case basically raised the same kind of constitutional

issues implicated by this appeal. Here, the State urges that we should adopt the reasoning in

Martin to decide that the unanimity constitutionally required is not as to the specifically claimed

wrongful acts, but is instead to a generic finding beyond a reasonable doubt that Hill had

committed (at least) any two ofthe alleged actions.

In Pollock v. State, 405 S.W.3d 396, 405-06 (Tex. App.—Fort Worth 2013, no pet.), our

sister court affirmed a conviction under the continuous sexual abuse law with only the briefest

discussion of the issue of unanimity as to which of several incidents had occurred, concluding

that the element of the offense was two prohibited acts. The Fort Worth Court held that all that

was required for conviction was proof beyond a reasonable doubt that two such acts had

occurred/but that it was not necessary to prove each act upon which the State relied. The San

Antonio court in Fulmer v. State, 401 S.W.3d 305, 312-13 (Tex. App.—San Antonio 2012, pet.

refd), cert, denied, 134 S.Ct. 436 (2013), provided a much more detailed examination of the

issue. As did the Austin court in Martin, the San Antonio court concluded in Fulmer that the

individual acts of sexual abuse were not the elements of the offense, but instead were only

evidentiary facts of the charged offense, '"the manner and means by which the actus reus

element is committed.'" Id. at 312 (quoting Jacobsen v. State, 325 S.W.3d 733, 737 (Tex.
App.—Austin 2010, no pet.)); see Casey v. State, 349 S.W.3d 825, 829-30 (Tex. App.—El Paso

2011, pet. refd); Render v. State, 316 S.W.3d 846, 857-58 (Tex. App.—Dallas 2010, pet. ref d).

In a case analyzing the family violence statute which was the basis of the conviction in

this case, one Texas appellate court does suggest some discomfort with this reasoning. See

Exparte Morales, 416 S.W.3d 546, 548-49 (Tex. App.—Houston [14th Dist] 2013, pet. refd).

In that case, although the court worked its way through this logic in connection with the family

violence statute, it then concluded (without agreeing that it was correct) that it did not need to

reach that question because only two allegations were made, and a facial pretrial challenge to the

constitutionality ofthe statute was thus not adequately shown.

Except for Morales, none of these cases analyze the statute at issue in this case, and the

Morales case is easily distinguishable because the jury was presented with only two incidents of

family violence. However, the reasoning utilized in those decisions is directly applicable to the

continuous family violence statute. Although the relevant parts of the continuous sexual abuse

statute and the continuous family violence statute are not precisely identical, they are sufficiently

close to be compared. We adopt the reasoning in the continuous sexual abuse cases and apply it

in continuous family violence cases. In the circumstances of construing the statute under

examination here, it is sufficient to allow a jury to select from a menu of possible bad acts and

agree that a defendant committed two of them without the concomitant requirement that the

jurors be shown to all concur as to which ofthe acts did occur. In other words, we acquiesce in

the analysis employed by our sister courts in their analysis of the perceived problem with the

continuous sexual abuse statute; that is to say that the elements of the offense are not the
individual bad acts, but are the sufficiency of the evidence to prove the commission of any

combination of any two ofthose acts during the requisite time period.

We have previously concluded that there was sufficient evidence to prove all three of the

allegations.

Accordingly, we affirm the judgment ofthe trial court.

Date Submitted: December 29, 2014

Date Decided: January 9, 2015

Publish

Bailey C. Moseley

Justice

10
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| 2101 "369 N. ..

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76367

iioRTH.TEXAS TX PDALLAS TX 750

Court of Criminal Appeals of Tx

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