Dale Fulmer v. State, 401 S.W.3d 305

Fulmer was indicted for continuous sexual abuse of a child under fourteen under Texas Penal Code § 21.02; indictment charged two or more acts but did not specify county.
Trial evidence showed acts in Guadalupe, Comal, Harris, and Hays Counties, with the jury instructed to consider only Guadalupe County acts.
The jury convicted Fulmer of continuous sexual abuse and assessed life imprisonment.
Fulmer challenged five issues on appeal: unanimity under § 21.02, parole eligibility under § 508.145, voir dire presence, admissibility of non-Guadalupe venue acts, and attorney’s fees.
The appellate court held § 21.02 does not violate unanimity or due process; § 508.145 is rationally related to a legitimate purpose; voir dire error was harmless; venue was presumed proven; and modified the attorney’s fees denial by reducing court costs.
The court affirmed the judgment as modified.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Unanimity requirement for § 21.02	Fulmer argues two acts vs. underlying acts affect unanimity	Fulmer; specific acts are elements	Statute constitutional; acts are manner and means, not elements; unanimity required for two acts only
Parole eligibility under § 508.145	Parole ineligibility for § 21.02 offenses lacks rational basis	Legislature rationally designated danger; broader category allowed	Statute rationally related to legitimate governmental purpose; constitutional
Presence at voir dire	Fulmer was absent during juror qualification	Proceeding began; absence harmless	Harmless error; absence did not contribute to conviction/punishment
Venue and acts outside Guadalupe	Acts outside Guadalupe violated venue instruction; closing arguments impacted	Venue presumed proven; waiver for objections; charge limited acts to Guadalupe	Venue presumed proven; any error waived; no reversal for venue
Attorney’s fees	Fees improper due to indigence; no change in finances shown	Court could order fees if resources exist	Modified to delete $6,000 attorney’s fees; total court costs reduced to $669

Jacobsen v. State, 325 S.W.3d 733 (Tex. App.—Austin 2010) (unanimity as to the actus reus; acts are underlying facts or means)
Casey v. State, 349 S.W.3d 825 (Tex. App.—El Paso 2011) (acts are not elements; unanimity on two or more acts required)
Martin v. State, 335 S.W.3d 867 (Tex. App.—Austin 2011) (unanimity about two or more acts; acts are manner and means)
Render v. State, 316 S.W.3d 846 (Tex. App.—Dallas 2010) (continues to treat acts as manner and means; section 21.02 does not violate unanimity)
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (limits on unanimity regarding underlying facts)