Martin v. State
2011 Tex. App. LEXIS 2078
| Tex. App. | 2011Background
- J.W., appellant's stepdaughter, testified to decades of sexual abuse beginning when she was six and continuing through 2007 and into 2008.
- Appellant was convicted of continuous sexual abuse of a young child (count one), multiple counts of sexual assault of a child, and indecency offenses, with varied sentences up to fifty years for count one and shorter terms for other counts.
- Statutory framework: continuous sexual abuse requires a 30+ day period with acts against a child under fourteen; section 21.02 became effective Sept. 1, 2007; J.W. turned fourteen Jan. 27, 2008.
- The trial court charged unanimity under section 21.02(d) but did not require unanimity as to specific acts; defense challenged this as violating a unanimous verdict and ex post facto concerns.
- The State introduced corroborating evidence (bed photographs, dildos, and related material) and defense challenged J.W.’s credibility; jury found all counts guilty.
- The court addressed issues on jury unanimity, charge accuracy, sufficiency of the evidence, double jeopardy, and the constitutionality of parole denial under section 508.145(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Unanimity for continuous abuse conviction | Martin argues 21.02(d) requires unanimity on specific acts. | State contends unanimity on two+ acts over a 30+ day period suffices. | Unanimity on specific acts not required; two+ acts within 30+ days suffices. |
| Charge error regarding dates and ex post facto | Charge allowed conviction for acts before Sept. 1, 2007 (pre-21.02) and after J.W.’s 14th birthday. | Charge properly stated nonbinding dates and allowed proof within limitations. | Charge errored by omitting pre-Sept. 1, 2007 limitation; not egregiously harmful; conviction sustained due to evidence post-Sept. 1, 2007 and circumstantial support. |
| Evidence sufficiency and double jeopardy | Counts for contact/penetration may be subsumed; possible double jeopardy for some counts. | Different convictions rest on separate acts; no double jeopardy inherent. | No double jeopardy; acts of penetration support multiple convictions; evidence sufficient for counts two, four, six, nine, ten, eleven and related counts. |
| Constitutionality of parole denial | § 508.145(a) irrationally denies parole to continuous abuse offenders only. | Rational basis exists to distinguish continuous abuse from individual acts against a child. | Parole statute rational; no equal protection violation; affirmed convictions. |
Key Cases Cited
- Jacobsen v. State, 325 S.W.3d 733 (Tex.App.-Austin 2010) (upheld nonunanimity approach for continuous abuse under 21.02)
- Taylor v. State, 332 S.W.3d 483 (Tex.Crim.App.2011) (instruction aligning with limitations period and non-8.07(b) defense)
- Patterson v. State, 96 S.W.3d 427 (Tex.App.-Austin 2002) (analyzed multiple acts and double jeopardy for sexual offenses)
- Dandridge v. Williams, 397 U.S. 471 (U.S. 1970) (equal protection rational-basis review)
- Collins v. Youngblood, 497 U.S. 37 (U.S. 1990) (equal protection, rational classifications allowed)
- Hutch v. State, 922 S.W.2d 166 (Tex.Crim.App. 1996) (charge-reading and juror perception principles)
- State v. Rabago, 103 Hawaii 236, 81 P.3d 1151 (Haw. 2003) (Hawaii decision on jury unanimity in analogous statute)
- Reckart v. State, 323 S.W.3d 588 (Tex.App.-Corpus Christi 2010) (jury unanimity and continuous abuse issues)
- Render v. State, 316 S.W.3d 846 (Tex.App.-Dallas 2010) (unanimity and continuous abuse discussion)