Bruce Alan McMillian v. State
388 S.W.3d 866
Tex. App.2012Background
- McMillian was indicted on five felony counts including sexual assault, indecency with a child, and continuous sexual abuse of a child under 14; the trial court denied his motion to quash the continuous-sexual-abuse indictment; he pleaded guilty to two counts of sexual assault and the continuous-abuse count while two counts were dismissed under a plea agreement; he challenges the constitutionality of Texas Penal Code § 21.02 on appeal; the court reviews the statute de novo for constitutionality; the issue centers on jury unanimity and vagueness of § 21.02; the court affirms the trial court’s judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 21.02 violates jury unanimity requirements | McMillian argues § 21.02 requires unanimity on specific acts | State contends unanimity is required only on the pattern of abuse, not specific acts | § 21.02(d) requires unanimity on the pattern of abuse, not on specific acts; statute valid on unanimity. |
| Whether § 21.02 is void for vagueness as applied | McMillian contends the statute is vague and enables arbitrary enforcement | State contends § 21.02 is sufficiently definite and not unconstitutionally vague as applied | § 21.02 is not unconstitutionally vague as applied to this case. |
Key Cases Cited
- Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (jury unanimity; elements vs. means of committing an offense)
- Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991) (general verdict allowed when alternate means support conviction)
- Jacobsen v. State, 325 S.W.3d 733 (Tex. Crim. App. 2010) (unanimity on pattern of conduct; multiple acts may constitute one offense)
- Casey v. State, 349 S.W.3d 825 (Tex. Crim. App. 2011) (due process; alternate acts must be morally equivalent)
- Reckart v. State, 323 S.W.3d 588 (Tex. Crim. App. 2010) (unanimity/due process; acts as manner and means of a single offense)
- Render v. State, 316 S.W.3d 846 (Tex. Crim. App. 2010) (unanimity with alternative means of conspiracy-like offenses)
- Bynum v. State, 767 S.W.2d 769 (Tex. Crim. App. 1989) (due process; vagueness analysis applies to applied conduct)