Bruce Alan McMILLIAN, Appellant v. The STATE of Texas, Appellee
No. 14-11-00833-CR
Court of Appeals of Texas, Houston (14th Dist.)
Nov. 29, 2012
John Harrity III, for Appellee.
Panel consists of Justices BOYCE and McCALLY and Senior Justice MIRABAL.*
OPINION
WILLIAM J. BOYCE, Justice.
Appellant Bruce Alan McMillian was indicted on charges of (1) sexual assault, (2) indecency with a child, and (3) continuous sexual abuse of a child under the age of 14. The trial court denied appellant‘s motion to quash his indictment for continuous sexual abuse of a child under the age of 14;
BACKGROUND
Appellant was indicted on five separate felony counts. He filed a pre-trial motion to quash the indictment for continuous sexual abuse of a child under the age of 14 on grounds that section 21.02 is unconstitutional because it (1) violates the jury unanimity requirement, see
In two issues, appellant argues on appeal that his motion to quash the indictment should have been granted because section 21.02 of the Texas Penal Code is unconstitutional.
ANALYSIS
Under section 21.02, a person commits an offense if:
(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts are committed against one or more victims; and
(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.
(1) aggravated kidnapping under Section 20.04(a)(4), if the actor committed the offense with the intent to violate or abuse the victim sexually;
(2) indecency with a child under Section 21.11(a)(1), if the actor committed the offense in a manner other than by touching, including touching through clothing, the breast of a child;
(3) sexual assault under Section 22.011;
(4) aggravated sexual assault under Section 22.021;
(5) burglary under Section 30.02, if the offense is punishable under Subsection (d) of that section and the actor committed the offense with the intent to commit an offense listed in Subdivisions (1)-(4);
(6) sexual performance by a child under Section 43.25;
(7) trafficking of persons under Section 20A.02(a)(7) or (8); and
(8) compelling prostitution under Section 43.05(a)(2).
If a jury is the trier of fact, members of the jury are 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. 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.
The sufficiency of an indictment and the constitutionality of a statute are questions of law we review de novo. Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim.App.2007); Wall v. State, 184 S.W.3d 730, 742 (Tex.Crim.App.2006).
I. Unanimity
In his first issue, appellant argues that the trial court should have granted his motion to quash because section 21.02 violates the Texas Constitution‘s requirement that all jury verdicts in felony cases be unanimous.1 See
To uphold a jury conviction, the Texas Constitution requires each juror to agree that the defendant committed the same specific criminal act. Ngo, 175 S.W.3d at 745. There is, however, a crucial 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. The jurors must unanimously agree on all elements of a crime in order to convict, but the 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); Jacobsen v. State, 325 S.W.3d 733, 736 (Tex.App.-Austin 2010, no pet.).
There are two components to analysis of a jury unanimity challenge. The first is statutory construction, and the second is due process. Jefferson v. State, 189 S.W.3d 305, 311-312 (Tex.Crim.App.2006) (citing State v. Johnson, 243 Wis.2d 365, 627 N.W.2d 455, 459-60 (2001)); Jacobsen, 325 S.W.3d at 736.
We begin review of a jury unanimity challenge by examining the language of the statute to determine the elements of the crime and whether the legislature has created a single offense with multiple alternate methods of commission. Yost v. State, 222 S.W.3d 865, 877 (Tex.App.-Houston [14th Dist.] 2007, pet. ref‘d). Statutory construction is a question of law. Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim.App.2011). In construing a statute, we look first to the statute‘s literal text, and we read words and phrases in context and construe them according to rules of grammar and usage. Id. We must presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible. Id. Where the statute is clear and unambiguous, the legislature must be understood to
We believe the plain language of section 21.02(d) leaves no doubt as to the legislature‘s intent:
If a jury is the trier of fact, members of the jury are 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. 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.
Appellant urges us to ignore these cases as wrongly decided. For support, he relies on the legislative intent behind section 21.02 as well as cases that are distinguishable on their facts. See Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) (considering a federal statute with a substantially broader scope and no explicit provision for jury unanimity); State v. Weaver, 982 S.W.2d 892 (Tex.Crim.App.1998) (considering section 31.09 of the Texas Penal Code, which has no explicit provision for jury unanimity). Because we conclude that the language of section 21.02 is clear and unambiguous, we do not consider these extratextual factors. See Boykin, 818 S.W.2d at 785; Uyamadu, 359 S.W.3d at 758.
Accordingly, we move to the second part of our jury unanimity analysis, and the question becomes whether it is consistent with due process for the legislature to treat the specific acts of sexual abuse as manner and means of committing a series of sexual abuses. Jacobsen, 325 S.W.3d at 737; see Coker, 2010 WL 5031098, at *6. Consistent with the guarantee of due process, the legislature may define a criminal offense in a way that permits jurors to convict while disagreeing about the manner and means of commission of the offense, provided the alternate manners and means of commission are basically morally and conceptually equivalent. Schad v. Arizona, 501 U.S. 624, 644, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991); White v. State, 208 S.W.3d 467, 469 (Tex. Crim.App.2006); Casey, 349 S.W.3d at 829. The alternate acts of sexual abuse listed under section 21.02(b) all are felonies involving the actual or intended sexual abuse of a young child. We believe the alternate acts are morally equivalent and conceptually similar, and we conclude that the leg-
We conclude that section 21.02 complies with the constitutional requirement of jury unanimity, and we overrule appellant‘s first issue.
II. Vagueness
In his second issue, appellant complains that the trial court should have granted his motion to quash because section 21.02 is unconstitutionally vague. Again, we review this complaint under a de novo standard. Lawrence, 240 S.W.3d at 915; Kfouri, 312 S.W.3d at 91.
A statute is void for vagueness if it (1) fails to give a person of ordinary intelligence fair notice of the conduct prohibited, or (2) is so indefinite that it encourages arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); Clark v. State, 665 S.W.2d 476, 482 (Tex.Crim.App.1984) (en banc). All penal laws must provide fair notice to a person of ordinary intelligence before making an activity criminal. Kfouri, 312 S.W.3d at 92. A criminal statute need not be mathematically precise; it need only give fair warning in light of common understanding and practices. Id. A statute is unconstitutionally vague only when no core of prohibited activity is defined. Id. A statute also must be sufficiently definite to avoid the possibility of arbitrary and erratic arrests and convictions. Id.
In determining whether a statute is unconstitutionally vague, we interpret the statute in accordance with the plain meaning of its language unless the language is ambiguous or the plain meaning leads to an absurd result. Sanchez v. State, 995 S.W.2d 677, 683 (Tex.Crim.App.1999); Kfouri, 312 S.W.3d at 92. “Words and phrases shall be read in context and construed according to rules of grammar and usage.”
When a vagueness challenge involves First Amendment concerns, the statute may be held facially invalid even though it may not be unconstitutional as applied to the defendant‘s conduct. Long v. State, 931 S.W.2d 285, 288 (Tex.Crim.App.1996) (en banc); Kfouri, 312 S.W.3d at 92. But when—as here—no First Amendment rights are involved, we need only examine the statute as applied to the defendant‘s specific conduct. Bynum v. State, 767 S.W.2d 769, 779 (Tex.Crim.App.1989) (en banc); Kfouri, 312 S.W.3d at 92. Because appellant does not raise First Amendment concerns, he bears the burden of establishing that section 21.02 is unconstitutional as applied to this case. See Bynum, 767 S.W.2d at 774; Kfouri, 312 S.W.3d at 92. It is not enough for appellant to contend that section 21.02 might be unconstitutional as applied to others. See Bynum, 767 S.W.2d at 774; Kfouri, 312 S.W.3d at 92.
Appellant argues that section 21.02 is unconstitutionally vague because the statute (1) enhances the punishment for every multiple offender no matter how much time has passed between the first and last offense; and (2) grants prosecutors unfettered discretion in their charging decisions.
Appellant first argues that section 21.02 is unclear because it could apply to those whose continuous sexual abuse of a child under the age of 14 ended well short
Appellant next argues that section 21.02 does not establish a standard for prosecutors to employ when determining whether to charge an offender under section 21.02 or to charge the offender with separate acts of sexual abuse of a young child. We disagree. Section 21.02 prohibits a pattern of abuse unaddressed by the statutes prohibiting the individual acts of sexual abuse of a child. See Casey, 349 S.W.3d at 829; Jacobsen, 325 S.W.3d at 737; Reckart, 323 S.W.3d at 601; Render, 316 S.W.3d at 858; Lewis, 2011 WL 2755469 at *6; Coker v. State, 2010 WL 5031098 at *6. Section 21.02 adequately details the prohibited conduct to the extent that enforcement of the statute is not relegated to the subjective interpretation of law enforcement personnel. The language of section 21.02 provides sufficient guidance to law enforcement personnel that it is not so indefinite that it encourages arbitrary and discriminatory enforcement. See Bynum, 767 S.W.2d at 775; Kfouri, 312 S.W.3d at 94.
We conclude that section 21.02 is not unconstitutionally vague as applied to appellant in this case, and we overrule his second issue.
CONCLUSION
We affirm the trial court‘s judgment.
WILLIAM J. BOYCE
Justice
Appellant did not offer a countervailing expert report or testimony and did not himself testify that he lacked comprehension regarding the consequences of his plea. Instead, appellant points to various points in the record suggesting that he is mentally “slow,” including statements to that effect by defense counsel and an inmate who wrote a letter on appellant‘s behalf. This was not sufficient to carry appellant‘s burden of demonstrating that he pleaded guilty without understanding the consequences of his plea and thereby suffered harm. See id.; see also Ex parte Tomlinson, 295 S.W.3d 412, 422 (Tex.App.-Corpus Christi 2009, orig. proc.) (holding defendant failed to meet burden to prove plea was involuntary in light of conflicting evidence).
Lastly, appellant points to defense counsel‘s statement to the court that appellant told a probation officer and later defense counsel himself that he (appellant) did not commit the offense and wanted to change his plea to not guilty and have a trial before a jury. While this statement evidences a possible change of heart by appellant, it does not establish that appellant failed to understand the consequences of his earlier guilty plea, particularly in light of his confession to police, the waivers and admonishments signed by appellant, and Dr. McCary‘s findings discussed above. Cf. Williams v. State, 265 S.W.3d 715, 720 (Tex.App.-Texarkana 2008, no pet.) (affirming denial of motion to withdraw guilty plea, stating “trial court might have reasonably viewed this sudden change of heart with a great degree of skepticism“). Because appellant failed to meet his burden of demonstrating that he pleaded guilty without understanding the consequences of his plea and, consequently, suffered harm, we overrule his sole issue.
We affirm the trial court‘s judgment.