the 19th District Court, McLennan County, Texas Trial Court
Chief Justice Gray, Justice Davis, and Justice Scoggins
GRAY, CHIEF JUSTICE.
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.
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
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.
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.]
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).
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.
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).
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.
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