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Navarro v. State

Court of Appeals of Texas, Tenth District

November 8, 2017


         From the 19th District Court, McLennan County, Texas Trial Court No. 2014-103-C1.

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins



         David Navarro was convicted of the offenses of Continuous Sexual Assault of a Young Child (Count I) and Indecency with a Child by Contact (Count II). See Tex. Penal Code Ann. §§ 21.02, 21.11 (West 2014). He was sentenced to life in prison on Count I and 20 years in prison on Count II. The sentences were ordered to run concurrently. Because the trial court did not abuse its discretion in admitting extraneous offense evidence, and because section 21.02 of the Texas Penal Code is not unconstitutional on its face, the trial court's judgments are affirmed.


         Navarro and Tosha met in 2007 or 2008, and began living together within a few months. Tosha had a daughter, T.L., who lived with them. T.L. had mild cerebral palsy. Navarro and Tosha had a child together during their relationship. The relationship ended near the end of 2011 or the beginning of 2012. In July of 2013, T.L. made an outcry to her mother that Navarro had sexually abused her about 10 times, beginning when T.L. was in 3rd grade and ending when she was in 6th grade.

         Facially Unconstitutional

         Because Navarro's second issue could be dispositive of Count I of the indictment, we discuss it first. In that issue, Navarro contends the continuous sexual abuse statute, Texas Penal Code section 21.02, is facially unconstitutional. Navarro specifically argues on appeal, as he did in the trial court, that the statute is unconstitutional because the statute does not require jury unanimity as to which specific acts of sexual abuse were committed by the accused or the exact date when those acts were committed.

         The constitutionality of a statute is a question of law we review de novo. Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007). We begin with the presumption that the statute is valid and that the legislature did not act arbitrarily and unreasonably in enacting it. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). The burden rests upon the individual who challenges the statute to establish its unconstitutionality. Id. We must uphold a statute if we can determine a reasonable construction which will render it constitutional. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979).

         Jury unanimity is required in all criminal cases in Texas. Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011); Pollock v. State, 405 S.W.3d 396, 404 (Tex. App.-Fort Worth 2013, no pet.); see also Tex. Const. art. V, § 13. 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). However, there is a distinction between a fact that is a specific element of the crime and one that is but the means to the commission of a specific element. Id. at 747. Jurors must unanimously agree on all elements of a crime in order to convict, but jurors need not agree on all underlying facts that make up a particular element. Id. When alternative manners and means of committing an offense are submitted to a jury, it is appropriate for the jury to return a general verdict of guilty if the evidence supports a conviction under any one of them. Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991).

         Texas Penal Code section 21.02 provides that, for the offense of continuous sexual assault of a young child, a jury is "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." Tex. Penal Code Ann. § 21.02(d) (West 2014). Instead, the jury 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. Id. Navarro asserts that to be constitutionally sound, the specific acts of sexual abuse must be elements of the crime, not merely part of the manner and means of the offense.

         Although the Court of Criminal Appeals has not specifically determined the constitutionality of this statute as to jury unanimity, the Court has discussed the legislative intent behind the statute, noting that it is the series of acts which constitutes the key element of the offense upon which jury unanimity is required rather than the specific acts of sexual abuse enumerated in the statute. See Price v. State, 434 S.W.3d 601, 607-609 (Tex. Crim. App. 2014). Further, many of the Courts of Appeals of this State have reviewed the issue and determined that the statute does not violate the constitutional right to jury unanimity. See McMillian v. State, 388 S.W.3d 866, 871-873 (Tex. App.- Houston [14th Dist.] 2012, no pet.); Jacobsen v. State, 325 S.W.3d 733, 736-739 (Tex. App.- Austin 2010, no pet.); Render v. State, 316 S.W.3d 846, 854-858 (Tex. App.-Dallas 2010, pet. ref'd). See also Pollock v. State, 405 S.W.3d 396, 404-405 (Tex. App.-Fort Worth 2013, no pet.); Fulmer v. State, 401 S.W.3d 305, 313 (Tex. App.-San Antonio 2013, pet. ref'd); Kennedy v. State, 385 S.W.3d 729, 730 (Tex. App.-Amarillo 2012, pet. ref'd); Casey v. State, 349 S.W.3d 825 (Tex. App.-El Paso 2011, no pet.); Reckart v. State, 323 S.W.3d 588, 600-601 (Tex. App.-Corpus Christi 2010, pet. ref'd).

         Navarro cites to the United States Supreme Court opinion in Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) in support of his argument that the specific acts of sexual abuse are elements of the crime, rather than manner and means. However, Richardson has been distinguished by the Austin Court of Appeals in Jacobsen, and, after reviewing the opinion in Richardson and the opinion in Jacobsen, we agree with the Austin Court of Appeals' interpretation of Richardson and determine that Richardson is not dispositive of Navarro's issue.

         Thus, after reviewing all of the cases cited above, we join those coordinate courts in Texas which have determined that the individual acts of sexual abuse are the manner and means by which the element of "two or more acts of sexual abuse" is committed, and not elements in and of themselves. Accordingly, section 21.01 does not violate a ...

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