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THE CONSTITUTIONAL QUICKSAND OF JESSICAS LAW IN TEXAS

Nov 18 2010
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Texas Penal Code 21.02, Continuing Sexual Abuse of a Child, Thwarts Long Established Requirement of Unanimous Verdicts
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

It’s been called arguably the second “most serious offense” in the State of Texas: Texas Penal Code 21.02, The Continuous Sexual Abuse of a Child. The statute provides that a person commits the continuous sexual abuse of a child 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 of sexual abuse 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. This law was enacted by the Legislature is 2007 and was part of Texas’ version of Jessica’s Law. These laws have met with serious constitutional challenges across the country.

Beyond imposing a harsher punishment than 99% of all felonies in this state, the “continuous sexual abuse of a child” statute is particularly disturbing because the predicate offenses necessary to trigger the law do not require a unanimous jury verdict. Those predicate offenses, the “acts of sexual abuse,” are: aggravating kidnapping with intent to sexually abuse the victim; indecency with a child; sexual assault; aggravated sexual assault of a child; sexual performance by a child; and burglary if committed with intent to commit one of the foregoing sexual offenses. Subsection (d) of the Sec. 21.02, provides:

“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.”

In other words, if the defendant is indicted under Sec. 21.02 based on the theory that he committed a sexual assault and indecency with a child under 14 years of age during a period of 30 or more days between January 1, 2010 and December 31, 2010, the jury does not have to be unanimous on the two underlying predicate offenses in order to unanimously convict the defendant of having committed these offenses sometime during the year 2010.

This statutory scheme runs counter to established constitutional and statutory law in the State of Texas. Article V, § 13 of the Texas Constitution and Article 36.29 of the Texas Code of Criminal Procedure have historically held that jury verdicts in all felony cases must be unanimous. No more. At least three Texas courts of appeals—the Third in State v. Jacobsen, Thirteenth in Soliz v. State, and Fifth in Render v. State—have addressed the issue upholding the statute, with only one, the Fifth Court of Appeals, issuing a published opinion. One other court of appeals, the Sixth Court of Appeals in Williams v. State, had the issue put before it but elected not to decide the matter because the defendant did not object to the law at the trial level.

Each of the courts of appeals heard similar challenges that Sec. 21.02 dispenses with the historical prerequisite of jury unanimity on each element of the offense charged. The defendants in these appeals relied primarily upon two cases in support of this legal challenge, one by the Texas Court of Criminal Appeals and the other by the U.S. Supreme Court: Ngo v. State and Richardson v. United States. The defendants argued that Ngo stands for the proposition that the jury must unanimously decide every element of a crime charged, while Richardson for the proposition that the individual acts which make up part of a continuous series type of offense are each separate elements of the crime and must be unanimously agreed upon by the jury.

Ngo involved one conviction for credit card abuse with evidence that the defendant at different times committed three different acts which the applicable statute defined as three separate criminal offenses and not a “series” of acts that made up one criminal offense. The appeal courts distinguished this case from Sec. 21.02 on the premise that it merely defines two or more acts as a means of committing a single criminal offense. The courts called upon the Texas Criminal Court Criminal Appeals decision, Jefferson v. State, to support this premise; that an injury can be caused in many ways and a jury does not have to unanimously agree on any specific act or omission which may have `caused the injury. In a nutshell, the jury must unanimously agree only that an injury was inflicted and/or caused.

Richardson involved a conviction under a federal criminal statute prohibiting a person from engaging in a “continuing criminal enterprise.” The Supreme Court defined a continuing criminal enterprise as a violation “of any provision of the [federal drug laws” and that the “violation is part of a continuing series of violations.” The high court held that under this particular statute,Continuing Criminal Enterprise, 21 U.S. Sec. 848, a jury must not only unanimously agree that a defendant committed “continuing series of violations” but also which specific “violations” make up that “continuing series.” The Court added that “if the statute makes each ‘violation’ a separate element, then the jury must agree unanimously about which three crimes the defendant committed.”

The Texas appeals courts hearing the Sec. 21.02 challenges, however, elected to focus on Supreme Court’s caveat in Richardson that if a statute “creates a single element, as a ‘series,’ in respect to which individual violations are but the means, then the jury need only agree that the defendant committed at least three of all the underlying crimes the Government has tried to prove. The jury need not agree about which three.” The appeals court said this is precisely whatSec. 21.02 does: it creates a single element of a “series” of sexual abuse acts and does not make each “violation” (act of sexual abuse) a separate element of the offense that needs to be agreed upon unanimously.

The appeals court also relied upon another U.S. Supreme Court decision: Schad v. Arizona, a murder conviction in which the jury was instructed that it did not have to unanimously agree upon whether the defendant committed a premeditated murder or a felony murder. In Schad, The Supreme Court held that a state can permit a jury to return a general guilty verdict without agreeing whether the defendant committed a premeditated murder or a felony murder. The Sec. 21.02 defendants tried to distinguish their case from Schad by arguing that the offense of continuous sexual abuse of a child is a collection of individual crimes of sexual abuse, and because this allowed some jurors to base their decision that sexual abuse occurred on some days while other jurors could convict based on sexual abuse that may have occurred on other days, due process is violated. The appeals courts were not persuaded.

We agree with the Sec. 21.02 defendants. Schad dealt exclusively with the manner in which the murder was committed: either it was committed strictly with premeditation (the “specific intent to kill” theory) or it was committed during the commission of a felony. These are prosecutorial “theories” as to how a specific murder may or may not have been committed. But under Sec. 21.02 the State must specifically allege in the indictment that the defendant committed two or more “acts of sexual abuse,” which can only be specific, enumerated criminal sexual offenses, during a period of 30 days or more. Sexual assault, indecency with a child, or aggravated sexual assault of a child are not “theories” as to how the offense of “continuous sexual abuse of a child” occurred. They are specific, predicate criminal offenses that must be proven—and since Art. V, § 13 of the Texas Constitution requires a unanimous jury to convict when these offenses are tried on their own merits, the same constitutional requisite should apply when they are used as a “series” of acts of sexual abuse to make up the single offense of continuous sexual assault of a child.

Beyond the political inspiration of the “Jessica’s Law” syndrome, the Texas Legislature was also encouraged to enact Sec. 21.02 by a concurring opinion delivered by Judge Cathy Cochran in State v. Dixon. In that aggravated sexual assault of a child case the child victim testified that the defendant had sexually assaulted her in a similar manner one hundred times over a period of months. Judge Cochran warned that “we are headed for a train wreck in Texas because our bedrock procedural protections cannot adapt to the common factual scenario of an ongoing crime involving an abusive sexual relationship of a child under current penal provisions.” Judge Cochran suggested that “a new penal statute that focuses upon a continuing course of conduct crime—a sexually abusive relationship that is marked by a pattern or course of conduct of various sexual acts” might “assist in preserving our bedrock criminal-procedure principles of double jeopardy, jury unanimity, due-process notice, grand-jury indictments, and election law.”

The politically-motivated Texas Legislature, with its ear always to the ground trying to hear anything about another restrictive penal statute it can enact, particularly one dealing with the pedophilia boogey-man, apparently heard Judge Cochran’s lamentations and enacted Sec. 21.02the following year. Now, all the State must do is present an alleged child victim at trial to say her stepfather or uncle inserted his finger in her vagina or anus twice over a period of months or even years and this is sufficient to get the defendant a mandatory minimum 25-year sentence or a sentence up to 99 years with no eligibility for probation or parole.

That may sound good to the rank-and-file of the law-and-order movement, but, as the Texas Association Against Sexual Assault warned, laws like Sec. 21.02 can have “unintended consequences.” Karen Amacher, a spokesperson for TAASA, told Time Magazine that these laws curtail prosecutorial flexibility in cases where a judge or jury may not feel that a 25-year minimum sentence is warranted. Amacher pointed out that 80 percent of all child sexual assaults are committed by family members, not by stranger sex predators as in the Jessica Lunsford case, and this may cause family members to have reservations about reporting sexual abuse within the family to the authorities. “With sex offenders we want to say let’s lock them up and throw away the key—these folks are just awful, after all—but it’s just not realistic,” Amacher told Time.

The TAASA reports that 226,000 children alone are raped each year in Texas while the American Academy of Child & Adolescent Psychiatry reports that only 80,000 incidents of child sexual abuse are reported each year. The wide discrepancy in these figures reflect how politicized the issue of child sexual abuse has become. In many respects, it has become a “cottage industry” in this country: “child sexual assault experts,” counselors, crime victim advocates, websites, associations/organizations, television programs, and prosecutors who career in child sexual abuse prosecutions. The reports/studies on the subject of child sexual abuse are all over the map and are as inconsistent as the above statistics. If we truly accept that 80 percent of all child sexual abuse occurs within the family structure, then the American family, especially in Texas, is in serious trouble.

Despite Judge Cochran’s concerns that Texas’ “bedrock procedural protections” would have collapsed had the Legislature not enacted the Jessica Law-inspired “continuous sexual abuse of a child” law, we do not share that belief and, in point of fact, we believe that Sec. 21.02 is a constitutional travesty. While the lawmakers who sponsored the law and Gov. Rick Perry who signed it into law, all of whom exploited the legislation for as much political capital as possible, may have intended for Sec. 21.02 to target violent, stranger child sex predators, the reality is that it will force too many Texas families facing the dark secret of “incest” and child sexual abuse to make hard choices about whether to turn to the legal system for help in dealing with this “family problem.” There were enough child sexual abuse statutes on the books to deal with these cases prior to Sec. 21.02—statutes that offered prosecutors, judges, and juries the discretion to deal with these difficult cases on a fact specific basis.

Besides this lack of discretion, Sec. 21.02 seriously undermines the time-honored unanimity of jury verdicts in this state. For example, six jurors could vote that a defendant committed a specific predicate sexual assault of a child while 6 could vote that he did not, but if each agree that the defendant did commit one of prohibited acts, even without agreeing which one, they can find him guilty and he will face a minimum 25-year sentence. That is not a unanimous verdict, but that is where we are in Texas today—and if this is what it takes to save our state’s “bedrock procedural protections,” then our traditional understanding of the law and procedure have become horribly skewed. We can only hope that the Texas Court of Criminal Appeals will restore some constitutional sanity when it hears the Sec. 21.02 challenges.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

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    I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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  • Avatar Crecencio Fabian ★★★★★ 3 years ago
    He explained my case better then any other lawyerPositive
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  • Avatar Barry Lewis ★★★★ 3 years ago
    Very informative
  • Avatar Ismael Flores ★★★★★ 3 years ago
  • Avatar Haley Danielle Lummus ★★★★★ 3 years ago
  • Avatar Eddie Villarreal ★★★★★ 3 years ago
  • Avatar Neil Productions ★★★★★ 4 years ago
    Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
  • Avatar S A ★★★★★ 4 years ago
    Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
  • Avatar Gary Watch ★★★★★ 4 years ago
    I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
  • Avatar Saman Daftarian ★★★★★ 4 years ago
    I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
  • Avatar calvin robinson ★★★★★ 4 years ago
    It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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  • Avatar Alan Howk ★★★★★ 4 years ago
    Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
  • Avatar CMCustom Cycles ★★★★★ 4 years ago
    Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
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  • Avatar Greg Page ★★★★★ 4 years ago
    I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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  • Avatar Kristen Rankin ★★★★★ 4 years ago
    Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
  • Avatar Kedar Puranik ★★★★★ 4 years ago
    John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
  • Avatar Joseph Sivadon ★★★★★ 4 years ago
    What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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  • Avatar Lex Strider ★★★★★ 4 years ago
    Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
  • Avatar karim khalifa ★★★★★ 4 years ago
    Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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  • Avatar James Haggard ★★★★★ 4 years ago
    Great service, very knowledgable and happy to help with any questions I had
  • Avatar David Sustaita ★★★★★ 4 years ago
    Quick to action and helpful and knowledgeable with entertainment industry based issues!
  • Avatar Chad Groves ★★★★★ 4 years ago
    Responded on a holiday week. Very knowledgeable and reassuring.
  • Avatar Mark Fein ★★★★★ 4 years ago
    Very professional
  • Avatar Bthomason903 Bthomason903 ★★★★★ 4 years ago
  • Avatar Anton Jasser ★★★★★ 4 years ago
  • Avatar Alma Garza ★★★★★ 4 years ago
  • Avatar Victory 2020 ★★★★★ 6 years ago
    I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
  • Avatar Alma Garcia Cunningham ★★★★★ 6 years ago
    The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
  • Avatar Rajiv Patel ★★★★★ 6 years ago
    From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
  • Avatar Jose Tapia ★★★★★ 6 years ago
    I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
  • Avatar Sagar Patel ★★★★★ 6 years ago
    These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
  • Avatar RAYNINN ★★★★★ 6 years ago
    John and Chris are true professionals! Love those guys like family!
  • Avatar Virginia Martin ★★★★★ 6 years ago
    Mr. Floyd and his team are very knowledgeable, informative, and helpful.
  • Avatar Darla Latham ★★★★★ 6 years ago
    A team you can depend on to stand up and fight for you to prove the truth the whole truth!
  • Avatar Veronica Elorza ★★★★★ 6 years ago
  • Avatar Karetta Lux ★★★★★ 7 years ago
    Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
  • Avatar GM ★★★★★ 8 years ago
    The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
  • Avatar Sandra Bivens ★★★★★ 8 years ago
    I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
  • Avatar Mike Kittelson ★★★★★ 8 years ago
    I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
  • Avatar Robert Hair ★★★★★ 8 years ago
    Extremely helpful!!! Helping me understand the law.

John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization

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