Shumski, Mark Joseph
PD-0408-15
| Tex. App. | Apr 23, 2015Background
- Mark Joseph Shumski was indicted for continuous sexual abuse of a child (TEX. PENAL CODE § 21.02) alleging two or more acts between Feb 16, 2008 and May 16, 2011; convicted and sentenced to 60 years' imprisonment following a jury trial.
- Appeal proceeded to the 11th Court of Appeals, which affirmed the conviction in an unpublished opinion; petitioner seeks discretionary review by the Texas Court of Criminal Appeals.
- Shumski challenges the constitutionality of § 21.02, arguing it allows conviction without jury unanimity as to the specific predicate acts that form the course of conduct.
- Core claim: § 21.02 treats individual acts of sexual abuse as evidentiary manners-and-means rather than elements, permitting jurors to agree only that a course of conduct occurred without agreeing on the same specific acts.
- Constitutional issues raised: Sixth Amendment/unanimity (as incorporated under Texas law), due process (proof beyond a reasonable doubt of every element), and Eighth Amendment excessive/cruel-and-unusual punishment concerns.
Issues
| Issue | Plaintiff's Argument (Shumski) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether § 21.02 violates jury unanimity requirements | § 21.02 permits conviction without unanimous agreement on the same two specific predicate acts; thus jury unanimity is lacking | Courts treat individual acts as evidentiary "manner-and-means," not elements; unanimity required only for the element (course of conduct) | Appellate courts ruled against Shumski; they held unanimity as to the course of conduct suffices (no unanimous finding required for each predicate act) |
| Whether § 21.02 violates due process by failing to require proof beyond a reasonable doubt of each required fact | Lack of unanimity means jurors need not agree on essential facts, violating due process and Winship principle | Proof beyond a reasonable doubt applies to elements; repeated acts establish the element without requiring juror agreement on each act | Appellate courts rejected the due process challenge, treating predicate acts as evidentiary rather than element-specific facts |
| Whether § 21.02's structure permits jurors to operate as "mini-juries" leading to arbitrary convictions | The statute allows jurors to convict based on different acts, undermining collective scrutiny of any single act and risking non-unanimous convictions on core facts | The State argues accepted precedent and statutory interpretation permit aggregation of acts into a single course-of-conduct element | Appellate courts found prior precedent supports aggregating acts and does not render the statute unconstitutional |
| Whether § 21.02 raises Eighth Amendment concerns (cruel and unusual punishment) | Extreme sentences based on non-unanimous findings are cruel and unusual when predicate acts are not unanimously found | State contends sentencing under § 21.02 is constitutional when statutory elements are met and procedures followed | Appellate courts did not grant relief on Eighth Amendment claim in the decision under review |
Key Cases Cited
- Richardson v. United States, 526 U.S. 813 (1999) (analyzed whether jury must agree on specific overt acts in multi-act offenses)
- Andres v. United States, 333 U.S. 740 (1948) (unanimity requirement in federal criminal trials)
- Duncan v. Louisiana, 391 U.S. 145 (1968) (importance of jury trial principles and unanimous verdicts under the Sixth Amendment)
- In re Winship, 397 U.S. 358 (1970) (due process requires proof beyond a reasonable doubt of every fact necessary to constitute a crime)
- Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007) (Texas unanimity and related precedent)
- Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (Texas unanimity doctrine and element definition)
- Jacobsen v. State, 325 S.W.3d 733 (Tex. App.—Austin 2010) (treating individual acts as evidentiary, not separate elements)