COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00315-CR
DANIEL GARCIA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 1385098D
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MEMORANDUM OPINION1
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In four points, Appellant Daniel Garcia appeals his conviction for
continuous sexual abuse of a child. See Tex. Penal Code Ann. § 21.02(b) (West
Supp. 2016). We affirm.
1
See Tex. R. App. P. 47.4.
Background
Audrey,2 who was twelve at the time of trial, did not meet her father,
Appellant, until her seventh birthday in October 2009, after her mother located
him on Facebook.3 Initially, Audrey enjoyed going to Appellant’s home because
he had two dogs and several cats that she liked to play with. But that changed
when, shortly after she met Appellant,4 he started to touch Audrey
inappropriately. Audrey testified that Appellant would touch and lick her “private
areas”5 and make her watch “inappropriate videos” while he did so. She testified
that, over the next four years, Appellant rubbed his private parts on hers, put his
finger in her private areas, held her down and put his private part in her private
area and in the part “where [she] poop[s] from,” and put his tongue in “the part
where [she] poop[s] from.” Appellant also tried to get Audrey to put her mouth
and hands on his penis, and he masturbated in front of Audrey and ejaculated
2
We use an alias to protect the victim’s anonymity. See McClendon v.
State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
3
Audrey’s mother testified that when Audrey became curious about her
father, she began looking for him, found him, and set up a meeting between the
two.
4
Audrey testified that it may have been as early as a few weeks after they
met, but no longer than six months.
5
Audrey testified that “private part” or “private area” meant her vagina or
Appellant’s penis.
2
onto her stomach. Audrey testified that it hurt and that the abuse happened
every time she went to his house.6
Audrey testified that she “was too scared to say anything” because
Appellant had told her not to. But in January 2014, when Audrey was eleven
years old, Audrey’s mother asked Audrey if anyone had touched her because
Audrey was having a problem with itching in her private area. Audrey told her
mother about the abuse. The next day, Audrey’s mother reported the abuse to
the police and took Audrey to Cook Children’s Hospital. Audrey was later
interviewed by a forensic interviewer with Alliance for Children and examined by
a Sexual Assault Nurse Examiner.
In October 2014, Appellant was charged with eleven counts of continuous
sexual abuse of Audrey. Appellant filed a motion to quash the indictment on the
basis that section 21.02 of the penal code, the statute supporting his charge, was
facially unconstitutional in violating the requirement of jury unanimity. The trial
court denied the motion to quash.
A jury found Appellant guilty of continuous sexual assault of a child, and he
was sentenced to life in prison.
6
Audrey also testified that she saw Appellant “take empty cans like from
Sprite or Coke and put spray paint in it and inhale the air from inside” and that
Appellant told her he did that to get high.
3
Discussion
I. Denial of motion to quash
In his first point, Appellant argues that the trial court erred when it denied
his motion to quash the indictment on the ground that section 21.02 of the penal
code is facially unconstitutional.
We review a trial court’s ruling on a motion to quash an indictment de novo
because the sufficiency of a charging instrument is a question of law. State v.
Rosseau, 396 S.W.3d 550, 555 n.6 (Tex. Crim. App. 2013). In order to prevail on
a facial challenge to a statute, a party must establish that the statute always
operates unconstitutionally in all possible circumstances. Id. at 557.
Section 21.02 provides that a person commits the offense of continuous
sexual abuse of a child if, during a period that is more than 30 days in duration,
the person is 17 years of age or older and commits two or more acts of sexual
abuse, and the victim is a child younger than 14. Tex. Penal Code Ann.
§ 21.02(b). “Acts of sexual abuse” include indecency with a child, sexual assault,
and aggravated sexual assault. Id. § 21.02(c)(2)–(4). The statute also provides
that “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.” Id. § 21.02(d).
4
Texas courts, including this court, have upheld section 21.02’s federal and
state constitutionality and definitively ruled against Appellant’s position.7
See Holton v. State, 487 S.W.3d 600, 606–08 (Tex. App.—El Paso 2015, no
pet.); Pollock v. State, 405 S.W.3d 396, 405 (Tex. App.—Fort Worth 2013, no
pet.); Reckart v. State, 323 S.W.3d 588, 601 (Tex. App.—Corpus Christi 2010,
pet. ref'd); Render v. State, 316 S.W.3d 846, 857–58 (Tex. App.—Dallas 2010,
pet. ref'd), cert. denied, 562 U.S. 1243 (2011); see also Macintosh v. State, No.
02-13-00059-CR, 2014 WL 1087926, at *2 (Tex. App.—Fort Worth Mar. 20,
2014, pet. ref'd) (mem. op., not designated for publication) (collecting other
cases). We have held that while jury unanimity is required in all criminal cases in
Texas, Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011), and every
juror must agree that “the defendant committed the same, single, specific
criminal act,” Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005), this
does not mean that the “jury must unanimously find that the defendant committed
that crime in one specific way,” Landrian v. State, 268 S.W.3d 532, 535 (Tex.
Crim. App. 2008). A trial court may not submit “separate offenses” to the jury in
the disjunctive, but a trial court may submit a disjunctive jury charge and obtain a
general verdict when alternate theories or “manner and means” involve the
commission of the “same offense.” Pollock, 405 S.W.3d at 405 (quoting Clement
7
Appellant acknowledges in his brief that this court has previously held that
section 21.02 does not violate the requirement of jury unanimity and states that
he has raised this issue in order to preserve it for further review.
5
v. State, 248 S.W.3d 791, 800 (Tex. App.—Fort Worth 2008, no pet.)).
Therefore, we have held that section 21.02 does not violate the state
constitutional right to jury unanimity because it does not allow jurors to convict on
the basis of different elements. Id.
Appellant argues that the Texas appellate court opinions upholding the
statute are flawed because each juror could disagree as to which two acts of
abuse alleged actually occurred, “thus permitting a jury to find someone ‘probably
guilty’” of continuous sexual abuse. We do not find this argument persuasive.
As we stated in Pollock, “The commission of two or more acts of sexual abuse
over a specified time period—that is, the pattern of behavior or the series of
acts—is the element as to which the jurors must be unanimous in order to
convict.” Id. (emphasis added); see also Lewis v. State, No. 02-10-00004-CR,
2011 WL 2755469, at *6 (Tex. App.—Fort Worth July 14, 2011, pet. ref’d) (mem.
op., not designated for publication) (explaining that, unlike the case of the State
charging two separate offenses in the disjunctive, section 21.02 “does not make
each act a separate element but creates a single element, a ‘series’ of sexual
abuse”) (internal citations omitted). We therefore overrule Appellant’s first point.
II. Constitutionality of code provisions imposing court costs
In his second and third points, Appellant argues that two articles of the
code of criminal procedure, 102.020(a)(1) and 102.0186, are unconstitutional.
Article 102.020(a)(1) concerns costs related to DNA testing and requires the
payment of $250 by a defendant convicted of certain offenses. Tex. Code Crim.
6
Proc. Ann. art. 102.020(a)(1) (West Supp. 2016). Article 102.0186 concerns
costs related to certain sex-related convictions and requires the payment of $100
upon certain convictions. Id. art. 102.0186 (West Supp. 2016).
In his brief, Appellant acknowledges that the court of criminal appeals has
held contrary to his argument in Peraza v. State, 467 S.W.3d 508, 521 (Tex.
Crim. App. 2015), cert. denied, 126 S. Ct. 1188 (2016). In Peraza, the court of
criminal appeals unanimously rejected its prior opinion in Ex parte Carson, the
case upon which Appellant principally relies, as governing the constitutionality of
court costs. 159 S.W.2d 126, 130 (Tex. Crim. App. 1942) (op. on reh’g),
overruled by Peraza, 467 S.W.3d at 517. In doing so, the court of criminal
appeals rejected Carson’s requirement that court costs must be “necessary” and
“incidental” to the trial of a criminal case, recognizing that the criminal justice
system has greatly evolved in the 73 years since Carson was decided. Peraza,
467 S.W.3d at 517. As the court noted,
Our legislature has developed statutorily prescribed court costs with
the intention of reimbursing the judicial system for costs incurred in
the administration of the criminal justice system. To require such
costs to be “necessary” or “incidental” to the trial of a criminal case in
order to be constitutionally valid ignores the legitimacy of costs that,
although not necessary to, or an incidental expense of, the actual
trial of a criminal case, may nevertheless be directly related to the
recoupment of costs of judicial resources expended in connection
with the prosecution of criminal cases within our criminal justice
system.
Id. Thus, so long as a statute provides for an allocation of court costs to be
expended for “legitimate criminal justice purposes,” then the statute will not be
7
held to be unconstitutional. Id. The court decided that allocations of funds
collected pursuant to Article 102.020 allow for such funds to be expended for
legitimate criminal justice purposes and as such do not operate as an
unconstitutional tax. Id. at 521.
Despite Appellant’s argument that Peraza was wrongly decided, we do not
have discretion to reject the holdings of the court of criminal appeals. See State
ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App.), cert. denied,
404 U.S. 910 (1971); Crenshaw v. State, 424 S.W.3d 753, 755 (Tex. App.—Fort
Worth 2014, no pet.). We therefore overrule Appellant’s second and third points.
See Machado v. State, No. 02-15-00365-CR, 2016 WL 3962731, at *4 (Tex.
App.—Fort Worth July 21, 2016, no pet. h.) (mem. op., not designated for
publication) (rejecting facial challenge to articles 102.020 and 102.0186 and
argument that Peraza was wrongly decided).
III. Constitutionality of Appellant’s life sentence
Appellant’s fourth point is initially broadly stated, “The sentence imposed
on Appellant is violative of the Eighth Amendment prohibition against cruel and
unusual sentences.” However, Appellant’s argument focuses on a challenge to
the trial court’s decision to overrule his objection to the jury charge on the basis
that the statutory scheme disallowing parole eligibility is facially unconstitutional.
During the charge conference in the trial court, Appellant’s counsel lodged
a single objection to the charge:
8
Judge, we object to the charge based on the charged offense
and the range of punishment. The range of punishment in this case
is 25 to life without the possibility of parole. You understand, we
understand that’s day for day.
In comparison, the offense of murder if convicted carries a
range of five years to 99 years or life. And it does include the
possibility of parole after an individual has served half their
sentence. When comparing those two, just as an example, the
range of punishment for this offense violates the Eight Amendment
to the US Constitution and its state analogs, and we would object to
the charge based upon that argument.
Appellant did not object at the time he was sentenced or include his objection in
his motion for new trial.
In his brief to this Court, Appellant refers us to his objection to the jury
charge and argues that, because the jury charge authorized a punishment “which
was more severe than that possible for a conviction for murder,” the available
punishment was disproportionate and a violation of the prohibition against cruel
and unusual punishment. Appellant further argues that the “categorical denial” of
parole permitted by section 508.145(a) of the government code is
“disproportionate to any similar sentence that could be imposed for the more
serious homicide offense of murder of a child, where the offender would be
eligible for parole.”
We interpret Appellant’s complaint as a facial challenge to the
constitutionality of section 508.145(a) of the government code. Tex. Gov’t Code
Ann. § 508.145(a) (West Supp. 2016). At the time he made his objection to the
jury charge, section 508.145 had not been applied to his detriment. By failing to
9
object to the sentence at the time it was applied at pronouncement or through his
motion for new trial, Appellant has not preserved an objection to the application
of section 508.145(a) against him—an “as applied” challenge to the
constitutionality of the statute. See, e.g., Gillenwaters v. State, 205 S.W.3d 534,
537–38 (Tex. Crim. App. 2006) (holding that appellant, who had preserved facial
challenge to statute through motion to quash indictment, had also preserved an
“as applied” challenge to statute through his motion for new trial).
To prevail on a facial challenge to a statute, a party must establish that the
statute always operates unconstitutionally in all possible circumstances.
Rosseau, 396 S.W.3d at 557. Because of this, the court of criminal appeals has
observed that “[a] facial challenge to a statute is the most difficult challenge to
mount successfully.” Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App.
1992). In analyzing a constitutional challenge to a statute, we begin with the
presumption that the statute is valid and that the Legislature did not act arbitrarily
or unreasonably in enacting it. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim.
App. 2002). As the individual challenging the statute, it is Appellant’s burden to
establish its unconstitutionality. State ex rel Lykos v. Fine, 330 S.W.3d 904, 911
(Tex. Crim. App. 2011).
The offense of continuous sexual abuse of a child is a felony of the first
degree, with a sentencing range of 25 to 99 years, or life. Tex. Penal Code Ann.
§ 21.02(h). Section 508.145 of the government code further provides that an
inmate serving a sentence for the offense of continuous sexual abuse of a child
10
is not eligible for release on parole. Tex. Gov’t Code Ann. § 508.145(a). But
section 508.145 is not limited to life sentences, nor to the offense of continuous
sexual abuse of a child. Section 508.145(a) provides:
An inmate under sentence of death, serving a sentence of life
imprisonment without parole, serving a sentence for an offense
under Section 21.02, Penal Code, or serving a sentence for an
offense under Section 22.021, Penal Code, that is punishable under
Subsection (f)8 of that section is not eligible for release on parole.
Thus, in order to successfully challenge section 508.145 as facially
unconstitutional, Appellant would have to show that it is unconstitutional in its
application to an inmate serving a death sentence, an inmate serving a sentence
of life without parole, an inmate serving any sentence for continuous sexual
abuse of a child—not just a life sentence, and an inmate serving any sentence
for aggravated sexual assault of a child. See Lykos, 330 S.W.3d at 908 (“A party
raising a facial challenge to the constitutionality of a statute must demonstrate
that the statute operates unconstitutionally in all of its applications.”). Appellant
has not attempted to do that, instead limiting his argument to the situation in
which an individual receives a life sentence for continuous sexual abuse of a
child. We therefore overrule Appellant’s fourth point.
8
This is the offense of aggravated sexual assault committed against a
child. Tex. Penal Code Ann. § 22.021(f) (West Supp. 2016).
11
Conclusion
Having overruled Appellant’s points, we affirm the judgment of the trial
court.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.
DAUPHINOT, J., filed a concurring opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 25, 2016
12