PD-0408-15
April 15, 2015
Cause No. ________________
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
------------------------------------------------------------------
MARK JOSEPH SHUMSKI
Petitioner
VS.
THE STATE OF TEXAS
Respondent.
------------------------------------------------------------------
Petition For Discretionary Review in Cause CR-16247 from the 271st Judicial
District Court of Wise County, Texas and Cause No. 02-13-00565-CR from the
Court of Appeals for the Eleven Supreme Judicial District of Texas.
------------------------------------------------------------------
PETITION FOR DISCRETIONARY REVIEW
------------------------------------------------------------------
Law Office of Paul Belew, PLLC.
/s/ Paul Belew
S.B.N.: 00794926
P.O. Box 1026
Decatur, Texas 76234
(940) 627 - 6400
(940) 627 - 6408 (facsimile)
ATTORNEY FOR PETITIONER,
MARK JOSEPH SHUMSKI
i
IDENTITY OF THE PARTIES
The following is a complete list of the names and addresses of all parties to
the trial court's final judgment and the names and addresses of trial counsel:
APPELLANT / DEFENDANT
MARK JOSEPH SHUMSKI TRIAL COURT
Texas Department of Criminal Justice Appeal from the 271st
H. H. Coffield Unit District Court
2661 FM 2054 Wise County, Texas
Tennessee Colony, TX 75884 Hon. John Fostel
presiding
Paul Belew
S.B.N.: 00794926
LAW OFFICES OF PAUL BELEW, PLLC
P.O. Box 1026
Decatur, Texas 76234
(940) 627-6400
(940) 627-6408 (facsimile)
ATTORNEY FOR APPELLANT / PETITIONER
State Of Texas / Appellee
Preston Gregory Lowery, Wise County District Attorney
S.B.N: 00787926
John J. "Jay" Lapham, Wise County
District Attorney
S.B.N: 00784448
Wise County Courthouse, Second floor
Decatur, Texas 76234
-I-
TABLE OF CONTENTS
Identity of Parties and Counsel i
Table of Contents ii
Index of Authorities ` iii
Statement Regarding Oral Argument iv
Standard of Review iv
Statement of the Case v
Issue Presented for Review vi
Argument vi, vii, vii, 1
I. THE APPELLATE COURT ERRED IN FAILING TO FIND
THAT SECTION 21.02 WAS UNCONSTITUTIONAL FOR
NUMEROUS REASONS AS SET FORTH BELOW:
Prayer for Relief 2
Certificate of Service 2,3
Appendix 4
-II-
INDEX OF AUTHORITIES
Cases:
Shumski v. State,
No. 02-13-00565-CR (December 4, 2014) (Memorandum Opinion) iv
U.S. Supreme Court:
Andres v. United States, 333 U.S. 740 (1948) vii
Duncan v. Louisiana, 391 U. S. 145 (1968) viii
In re Winship, 397 U. S. 358 (1970) viii
Richardson v. United States, 526 U.S. 813 (1999) vii
Texas Court of Criminal Appeals:
Jefferson v. State, 189 S.W.3d 305 (Tex. Crim. App. 2006) vii
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) vii
State v. Moff, 154 S.W.3d 599 (Tex. Crim. App. 2004) iv
Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007) vii
Texas Courts of Appeals:
Casey v. State, 349 S.W.3d 825 (Tex. App.--El Paso 2011, pet. ref'd) 1
Jacobsen v. State, 325 S.W.3d 733 (Tex. App.--Austin 2010, no pet.) viii, 1
Owens v. State, 19 S.W.3d 480 (Tex. App.--Amarillo 2000, no pet.) iv
State v. Salinas, 982 S.W.2d 9 (Tex. App.--Houston [1st Dist.]
1997, pet. ref'd) iv
Constitutions:
FED, CONST., art. VIII 1
TEX. CONST., art. V, § 13 vii
Texas Statutes:
TEX. PENAL CODE ANN.,, § 21.02 (West 2013) in passim i, vii, vii, 1
TEX. PENAL CODE ANN., § 21.02(c), (d), (e), (f) (West 2013) vi, vii, vii, 1
TEX. PENAL CODE ANN., § 21.02(d) (West 2013) vi, vii, vii, 1
-III-
PETITIONER REQUESTS ORAL ARGUMENT
Petitioner requests oral argument for the reason that the issue is highly
controversial and can best argued and presented before a live and interactive
panel that cannot be done justice via paper nor electronic means as the Texas
Court of Criminal Appeals has not yet written on the constitutionality of
Section 21.02.
STANDARD OF REVIEW
The constitutionality of a criminal statute is a question of law which is
reviewed de novo. See, e.g., Owens v. State, 19 S.W.3d 480, 483 (Tex. App.--
Amarillo 2000, no pet.); State v. Salinas, 982 S.W.2d 9, 10-11 (Tex.
App.--Houston[1st Dist.] 1997, pet. ref'd); State v. Moff, 154 S.W.3d 599, 601
(Tex. Crim. App.)
-IV-
STATEMENT OF THE CASE
On June 22, 2011 a Wise County Grand Jury indicted Mark Shumski
on the charge of "Sexual Abuse of a Child, Continuous: Victim Under 14"
alleging that on February 16, 2008 and continuing through and including
May 16, 2011, "commit two or more acts of sexual abuse against A.G., a child
younger than 14 years of age, said acts of sexual abuse having been violations
of one or more of the following penal law, namely: 1. indecency with a child . .
.; [and] aggravated sexual assault of a child . . ." CR 7. On December 11, 2012
this case was tried before a jury in the 271 st Judicial District Court for Wise
County, Texas, Judge John Fostel Presiding (Trial Cause Number CR16247).
See, e.g., R.R. 2:1. On December 12, 2013 a judgment was entered against
Mr. Shumski sentencing him to sixty (60) years incarceration in the Texas
Department of Criminal Justice. C.R. 121. Mr. Shumski remains
incarcerated. On January 11, 2013 Defendant filed his notice of appeal to the
Second Court of Appeals and the case was assigned Cause Number
02-13-00011-CR. C.R. 123. On February 11, 2013 this case was transferred to
11th Court of Appeals pursuant to Order and assigned Number
11-13-00054-CR. See, Shumski v. State, No. 02-13-00565-CR (December 4,
2014) (Memorandum Opinion). March 5, 2105, the 11th Court affirmed.
-V -
ISSUES PRESENTED FOR REVIEW
I. THE APPELLATE COURT ERRED IN FAILING TO FIND THAT
SECTION 21.02WAS UNCONSTITUTIONAL.
The Texas Court of Criminal Appeals has not yet written on the
constitutionality of Section 21.02. The 11TH Court of Appeals erroneously
ruled against Petitioner's constitutional challenge in an unpublished opinion
dated March 5, 2015. See Appendix. This Petition for Discretionary Review is
filed in response to that decision. The issue in controversy affects so many
defendants, it is critical to due process and other concerns that this Honorable
Court take up the matter.
ARGUMENT AND AUTHORITIES
Texas requires all jury verdicts in a felony cases to be unanimous. In
addition due process mandates proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which a defendant is charged. The
requirement of a unanimous verdict is sacrosanct. Section 21.02 of the Texas
Penal Code (Continuous Sexual Abuse of Young Child or Children) does not
require unanimity with respect to the required predicate conduct.
Section 21.02's failure to require a unanimous finding of the predicate
conduct indicates that a conviction is possible where the jurors are not agreed
that two specific predicate acts took place. The erroneous response of Texas
-VI-
Courts addressing this claim is that unanimity is required as to element, not
manners and means. This reasoning is flawed at best. Section 21.02 permits
the jury to never be compelled to carefully scrutinize – as a whole jury – the
evidence for any specific sexual act. It means the jury is free to act as twelve
autonomous "mini-juries" with respect to the very heart of the crime -- the
occurrence of sexual misconduct.
The Supreme Court's addressed this issue in Richardson v. United
States. 526 U.S. 813 (1999). Applying its analysis to Section 21.02 the
grammar of Section 21.02 makes it clear acts of sexual abuse are the focus of
the Section and therefore properly are the object of the unanimity
requirement. The Sixth Amendment to the United States Constitution
requires unanimous jury verdicts in federal criminal trials. Andres v. United
States, 333 U.S. 740, 748, 68 S.Ct. 880b (1948); see Sanchez v. State, 23
S.W.3d 30, 39 (Tex. Crim. App. 2000). Under the Texas Constitution, a jury
verdict in a felony case is required to be unanimous, and Texas statutes
require unanimity in all criminal cases. Stuhler v. State, 218 S.W.3d, 706, 716
(Tex. Crim. App. 2007); Jefferson v. State, 189 S.W.3d 305, 311 (Tex.
Crim. App. 2006); Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005);
TEX. CONST. ART. V, § 13; TEX.CODE CRIM. PROC. ANN. art. 36.29
-VII-
(2013). Under Texas law, unanimity means that each and every juror agrees
that the defendant committed the same, single, specific criminal act. Ngo v.
State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005), however, inexplicably
Section 21.02 does not require unanimity as to predicate acts. See, Section
21.02 of the Texas Penal Code.
The 11th Court of Appeals, erred when applying the law of the referring
jurisdiction, when they held that the continuous sexual statute did not violate
due process, even without a unanimous verdict as to manner and means.
“Although virtually unanimous adherence to the reasonable-doubt standard
in common-law jurisdictions may not conclusively establish it as a
requirement of due process, such adherence does "reflect a profound
judgment about the way in which law should be enforced and justice
administered." Duncan v. Louisiana, 391 U. S. 145, 155 (1968). In re
Winship, 397 U. S. 358, 361-362 (1970). The Court concluded that due process
mandates "proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which [the defendant] is charged." In re Winship,
397 U. S. 358, 364 (1970).
Section 21.02 has been previously and unsuccessfully challenged on the
grounds of lack of a unanimity requirement. The San Antonio Court of
-VIII-
Appeals’ response is fairly indicative, although misplaced, of the response of
the various Courts of Appeals that have considered the challenge: “As
discussed herein, Texas law is clear that "[t]he individual acts of sexual abuse
. . . are not themselves elements of the offense, but are merely evidentiary
facts, the manner and means by which the actus reus element is committed."
See Jacobsen, 325 S.W.3d at 737; see also Casey, 349 S.W.3d at 829. In
addition, it is well settled that "section 21.02 does not violate due process by
permitting a conviction based on a jury's unanimous finding that the
defendant engaged in a course of conduct consisting of repeated acts of sexual
abuse, but without requiring jury unanimity as to the individual acts that
made up that course of conduct." See Martin, 335 S.W.3d at 872 (discussing
Jacobsen, 325 S.W.3d at 739). This reasoning is flawed and oppressive.
In addition to above compelling reasons to grant PDR in this case, the
statute in question is also violative of the VIII Amendment to the Federal
Constitution, inter alia, “FED, CONST., art. VIII” citing a prohibition of
cruel and unusual punishment. The tremendous appellate questions arising
out of criminal convictions relating to Section 21.02 make this petition for
PDR especially attractive to this Court to address. These issues include, but
are certainly not limited to, due process issues, jury unanimity issues and
-1-
issues relating to cruel and unusual punishment, all violative of a defendant’s
constitutional rights afforded one by law ands common sense.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, MARK JOSEPH
SHUMSKI respectfully requests that the Court of Criminal Appeals grant
Appellant's Petition for Discretionary Review and for such other and further
relief to which he may show himself to be entitled.
Respectfully submitted,
/s/ Paul Belew
Paul Belew
S.B.N.: 00794926
LAW OFFICES OF PAUL BELEW, PLLC.
P.O. Box 1026
Decatur, Texas 76234
(940) 627-6400
(940) 627-6408 (facsimile)
FOR APPELLANT/PETITIONER
MARK JOSEPH SHUMSKI
CERTIFICATE OF SERVICE
This is to certify that on this, the 12TH day of April, 2015 a true and
correct copy of the above and foregoing document has been forwarded by
means of electronic filing as follows:
-2-
Greg Lowery
Wise County District Attorney's Office
Wise County Courthouse
Second floor
Decatur, Texas 76234
/s/ Paul Belew
Paul Belew
-3-
Appendix
See attached, Shumski v. State, No. 02-13-00565-CR (December 4, 2014)
(Memorandum Opinion)
-4-