Opinion filed March 5, 2015

In The

Eleventh Court of Appeals __________

No. 11-13-00054-CR

__________

MARK JOSEPH SHUMSKI, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from 271st District Court

Wise County, Texas

Trial Court Cause No. CR16247

M E M O R A N D U M O P I N I O N

The jury found Mark Joseph Shumski guilty of the offense of continuous 

sexual abuse of a child. The victim was Appellant’s stepdaughter, A.G., who was 

under the age of fourteen at the times relevant to the offense. The jury assessed 

punishment at confinement for a term of sixty years, and the trial court sentenced 

him accordingly. In his sole issue on appeal, Appellant challenges the 
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constitutionality of the Texas continuous-sexual-abuse-of-a-child statute. We 

affirm.

The State charged Appellant with committing two or more acts of sexual 

abuse against A.G. “from on or about February 16, 2008[,] through May 16, 2011.” 

Specifically, the State alleged that Appellant had committed the offense of 

indecency with a child by contact and that he had committed aggravated sexual 

assault by penetrating A.G.’s sexual organ with his finger. 

A.G. testified that Appellant sexually abused her for about three years before 

she finally told her mother. She said that, before the time that Appellant married

her mother, Appellant would come into her room at night, slip his hand underneath 

her clothes, and touch her vagina or insert his finger into her vagina. A.G. testified 

that, even though she told Appellant “no” and told him that she did not like what 

he was doing to her, Appellant continued to sexually abuse her.

In a single issue on appeal, Appellant challenges the constitutionality of 

Section 21.02 of the Texas Penal Code. Section 21.02(d) 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 dates when those acts were 

committed. The jurors 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.

TEX. PENAL CODE ANN. § 21.02(d) (West Supp. 2014). Appellant argues that the 

statute violates due process considerations because it fails to require a unanimous 

jury verdict as to each of the individual acts of abuse.

The Texas Court of Criminal Appeals has not yet written on the 

constitutionality of Section 21.02. However, several appellate courts in Texas 

have upheld the constitutionality of the statute. See Pollock v. State, 405 S.W.3d 

396, 405 (Tex. App.—Fort Worth 2013, no pet.) (citing McMillian v. State, 388 
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S.W.3d 866 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Kennedy v. State, 

385 S.W.3d 729 (Tex. App.—Amarillo 2012, pet. ref’d); Casey v. State, 349 

S.W.3d 825 (Tex. App.—El Paso 2011, pet. ref’d); Reckart v. State, 323 S.W.3d 

588 (Tex. App.—Corpus Christi 2010, pet. ref’d); Render v. State, 316 S.W.3d 846 

(Tex. App.—Dallas 2010, pet. ref’d); Jacobsen v. State, 325 S.W.3d 733 (Tex. 

App.—Austin 2010, no pet.)). 

We note that one of the courts that has upheld Section 21.02 in the face of a 

unanimity challenge is the Fort Worth Court of Appeals. This appeal was 

originally filed in the Fort Worth Court of Appeals. In accordance with docket 

equalization mandates, this appeal was transferred from the Fort Worth court to 

this court by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001

(West 2013). Under the provisions of Rule 41.3 of the Texas Rules of Appellate 

Procedure, we are to apply the precedent of the transferor court if that precedent is 

in conflict with our own precedent. TEX. R. APP. P. 41.3. Because we have not yet 

decided this issue, we will apply precedent from the Fort Worth court of Appeals.

In Pollock, the Fort Worth Court acknowledged that jury unanimity is 

required in criminal cases in Texas. Pollock, 405 S.W.3d at 404. Every juror must 

be in agreement that “the defendant committed the same, single, specific criminal 

act.” Id. (quoting Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005))

(internal quotation marks omitted). The Fort Worth court noted, however, that this 

does not mean that the jury has to unanimously agree that the accused committed 

the offense in one particular manner or means. Id. If a jury is instructed on 

alternative means of committing the same offense, there is no violation of the 

unanimity requirement as there would be in the instance of different offenses that 

involve separate incidents. Id. Although a trial court may not submit separate and 

distinct offenses in the disjunctive, it does not run afoul of the unanimity 

requirement when it submits, in the disjunctive, different manner and means of 
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committing the same offense. Id. at 405. In continuous sexual abuse cases, the 

element on which the jury must unanimously agree is that the accused committed 

two or more acts of abuse over the specified time period; each act is not a separate 

element that requires unanimity. Id. 

We follow the precedent and reasoning of the transferor court in this case. 

We hold that the jury was required only to agree that Appellant committed two or 

more acts of sexual abuse during a period of thirty days or more. The manner and 

means made up “the ‘series’ of sexual acts that created a single element of 

continuous sexual assault of a child.” Id. (quoting Lewis v. State, No. 02-10-

00004-CR, 2011 WL 2755469 (Tex. App.—Fort Worth July 14, 2011, pet. ref’d)

(mem. op., not designated for publication)). Appellant’s sole issue on appeal is 

overruled.

We affirm the judgment of the trial court.

JIM R. WRIGHT

CHIEF JUSTICE

March 5, 2015

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J., 

Willson, J., and Bailey, J.