                           PD-0408-15
                                                                                 April 15, 2015

                          Cause No. ________________

               TO THE COURT OF CRIMINAL APPEALS

                          OF THE STATE OF TEXAS

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                          MARK JOSEPH SHUMSKI
                                      Petitioner

                                          VS.

                            THE STATE OF TEXAS
                                       Respondent.

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Petition For Discretionary Review in Cause CR-16247 from the 271st Judicial
District Court of Wise County, Texas and Cause No. 02-13-00565-CR from the
Court of Appeals for the Eleven Supreme Judicial District of Texas.

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              PETITION FOR DISCRETIONARY REVIEW

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                                                 Law Office of Paul Belew, PLLC.

                                                 /s/ Paul Belew
                                                 S.B.N.: 00794926
                                                 P.O. Box 1026
                                                 Decatur, Texas 76234
                                                 (940) 627 - 6400
                                                 (940) 627 - 6408 (facsimile)
                                                 ATTORNEY FOR PETITIONER,
                                                 MARK JOSEPH SHUMSKI

                                            i
                       IDENTITY OF THE PARTIES

The following is a complete list of the names and addresses of all parties to
the trial court's final judgment and the names and addresses of trial counsel:

APPELLANT / DEFENDANT
MARK JOSEPH SHUMSKI                                   TRIAL COURT
Texas Department of Criminal Justice                  Appeal from the 271st
H. H. Coffield Unit                                   District Court
2661 FM 2054                                          Wise County, Texas
Tennessee Colony, TX 75884                            Hon. John Fostel
                                                      presiding
Paul Belew
S.B.N.: 00794926

LAW OFFICES OF PAUL BELEW, PLLC
P.O. Box 1026
Decatur, Texas 76234
(940) 627-6400
(940) 627-6408 (facsimile)

ATTORNEY FOR APPELLANT / PETITIONER
State Of Texas / Appellee

Preston Gregory Lowery, Wise County District Attorney
S.B.N: 00787926
John J. "Jay" Lapham, Wise County
District Attorney
S.B.N: 00784448

Wise County Courthouse, Second floor
Decatur, Texas 76234




                                       -I-
                          TABLE OF CONTENTS

Identity of Parties and Counsel                             i

Table of Contents                                           ii

Index of Authorities              `                        iii

Statement Regarding Oral Argument                          iv

Standard of Review                                         iv

Statement of the Case                                       v

Issue Presented for Review                                 vi

Argument                                       vi, vii, vii, 1

      I.    THE APPELLATE COURT ERRED IN FAILING TO FIND
            THAT SECTION 21.02 WAS UNCONSTITUTIONAL FOR
            NUMEROUS REASONS AS SET FORTH BELOW:

Prayer for Relief                                           2

Certificate of Service                                   2,3

Appendix                                                    4




                                      -II-
                         INDEX OF AUTHORITIES

Cases:
Shumski v. State,
     No. 02-13-00565-CR (December 4, 2014) (Memorandum Opinion)             iv

U.S. Supreme Court:
Andres v. United States, 333 U.S. 740 (1948)                               vii
Duncan v. Louisiana, 391 U. S. 145 (1968)                                 viii
In re Winship, 397 U. S. 358 (1970)                                       viii
Richardson v. United States, 526 U.S. 813 (1999)                           vii

Texas Court of Criminal Appeals:
Jefferson v. State, 189 S.W.3d 305 (Tex. Crim. App. 2006)                 vii
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005)                       vii
State v. Moff, 154 S.W.3d 599 (Tex. Crim. App. 2004)                       iv
Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007)                   vii

Texas Courts of Appeals:
Casey v. State, 349 S.W.3d 825 (Tex. App.--El Paso 2011, pet. ref'd)         1
Jacobsen v. State, 325 S.W.3d 733 (Tex. App.--Austin 2010, no pet.)    viii, 1
Owens v. State, 19 S.W.3d 480 (Tex. App.--Amarillo 2000, no pet.)           iv
State v. Salinas, 982 S.W.2d 9 (Tex. App.--Houston [1st Dist.]
1997, pet. ref'd)                                                          iv

Constitutions:
FED, CONST., art. VIII                                                     1
TEX. CONST., art. V, § 13                                                 vii

Texas Statutes:
TEX. PENAL CODE ANN.,, § 21.02 (West 2013) in passim         i, vii, vii, 1
TEX. PENAL CODE ANN., § 21.02(c), (d), (e), (f) (West 2013) vi, vii, vii, 1
TEX. PENAL CODE ANN., § 21.02(d) (West 2013)                vi, vii, vii, 1




                                      -III-
                 PETITIONER REQUESTS ORAL ARGUMENT

      Petitioner requests oral argument for the reason that the issue is highly

controversial and can best argued and presented before a live and interactive

panel that cannot be done justice via paper nor electronic means as the Texas

Court of Criminal Appeals has not yet written on the constitutionality of

Section 21.02.

                          STANDARD OF REVIEW

      The constitutionality of a criminal statute is a question of law which is

reviewed de novo. See, e.g., Owens v. State, 19 S.W.3d 480, 483 (Tex. App.--

Amarillo 2000, no pet.); State v. Salinas, 982 S.W.2d 9, 10-11 (Tex.

App.--Houston[1st Dist.] 1997, pet. ref'd); State v. Moff, 154 S.W.3d 599, 601

(Tex. Crim. App.)




                                       -IV-
                        STATEMENT OF THE CASE

      On June 22, 2011 a Wise County Grand Jury indicted Mark Shumski

on the charge of "Sexual Abuse of a Child, Continuous: Victim Under 14"

alleging that on February 16, 2008 and continuing through and including

May 16, 2011, "commit two or more acts of sexual abuse against A.G., a child

younger than 14 years of age, said acts of sexual abuse having been violations

of one or more of the following penal law, namely: 1. indecency with a child . .

.; [and] aggravated sexual assault of a child . . ." CR 7. On December 11, 2012

this case was tried before a jury in the 271 st Judicial District Court for Wise

County, Texas, Judge John Fostel Presiding (Trial Cause Number CR16247).

See, e.g., R.R. 2:1. On December 12, 2013 a judgment was entered against

Mr. Shumski sentencing him to sixty (60) years incarceration in the Texas

Department of Criminal Justice. C.R. 121. Mr. Shumski remains

incarcerated. On January 11, 2013 Defendant filed his notice of appeal to the

Second Court of Appeals and the case was assigned Cause Number

02-13-00011-CR. C.R. 123. On February 11, 2013 this case was transferred to

11th Court of Appeals pursuant to Order and assigned Number

11-13-00054-CR. See, Shumski v. State, No. 02-13-00565-CR (December 4,

2014) (Memorandum Opinion). March 5, 2105, the 11th Court affirmed.

                                       -V -
                    ISSUES PRESENTED FOR REVIEW

      I. THE APPELLATE COURT ERRED IN FAILING TO FIND THAT
         SECTION 21.02WAS UNCONSTITUTIONAL.

      The Texas Court of Criminal Appeals has not yet written on the

constitutionality of Section 21.02. The 11TH Court of Appeals erroneously

ruled against Petitioner's constitutional challenge in an unpublished opinion

dated March 5, 2015. See Appendix. This Petition for Discretionary Review is

filed in response to that decision. The issue in controversy affects so many

defendants, it is critical to due process and other concerns that this Honorable

Court take up the matter.

                     ARGUMENT AND AUTHORITIES

      Texas requires all jury verdicts in a felony cases to be unanimous. In

addition due process mandates proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which a defendant is charged. The

requirement of a unanimous verdict is sacrosanct. Section 21.02 of the Texas

Penal Code (Continuous Sexual Abuse of Young Child or Children) does not

require unanimity with respect to the required predicate conduct.

Section 21.02's failure to require a unanimous finding of the predicate

conduct indicates that a conviction is possible where the jurors are not agreed

that two specific predicate acts took place. The erroneous response of Texas
                                      -VI-
Courts addressing this claim is that unanimity is required as to element, not

manners and means. This reasoning is flawed at best. Section 21.02 permits

the jury to never be compelled to carefully scrutinize – as a whole jury – the

evidence for any specific sexual act. It means the jury is free to act as twelve

autonomous "mini-juries" with respect to the very heart of the crime -- the

occurrence of sexual misconduct.

      The Supreme Court's addressed this issue in Richardson v. United

States. 526 U.S. 813 (1999). Applying its analysis to Section 21.02 the

grammar of Section 21.02 makes it clear acts of sexual abuse are the focus of

the Section and therefore properly are the object of the unanimity

requirement. The Sixth Amendment to the United States Constitution

requires unanimous jury verdicts in federal criminal trials. Andres v. United

States, 333 U.S. 740, 748, 68 S.Ct. 880b (1948); see Sanchez v. State, 23

S.W.3d 30, 39 (Tex. Crim. App. 2000). Under the Texas Constitution, a jury

verdict in a felony case is required to be unanimous, and Texas statutes

require unanimity in all criminal cases. Stuhler v. State, 218 S.W.3d, 706, 716

(Tex. Crim. App. 2007); Jefferson v. State, 189 S.W.3d 305, 311 (Tex.

Crim. App. 2006); Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005);

TEX. CONST. ART. V, § 13; TEX.CODE CRIM. PROC. ANN. art. 36.29

                                       -VII-
(2013). Under Texas law, unanimity means that each and every juror agrees

that the defendant committed the same, single, specific criminal act. Ngo v.

State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005), however, inexplicably

Section 21.02 does not require unanimity as to predicate acts. See, Section

21.02 of the Texas Penal Code.

      The 11th Court of Appeals, erred when applying the law of the referring

jurisdiction, when they held that the continuous sexual statute did not violate

due process, even without a unanimous verdict as to manner and means.

“Although virtually unanimous adherence to the reasonable-doubt standard

in common-law jurisdictions may not conclusively establish it as a

requirement of due process, such adherence does "reflect a profound

judgment about the way in which law should be enforced and justice

administered." Duncan v. Louisiana, 391 U. S. 145, 155 (1968). In re

Winship, 397 U. S. 358, 361-362 (1970). The Court concluded that due process

mandates "proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which [the defendant] is charged." In re Winship,

397 U. S. 358, 364 (1970).

      Section 21.02 has been previously and unsuccessfully challenged on the

grounds of lack of a unanimity requirement. The San Antonio Court of

                                      -VIII-
Appeals’ response is fairly indicative, although misplaced, of the response of

the various Courts of Appeals that have considered the challenge: “As

discussed herein, Texas law is clear that "[t]he individual acts of sexual abuse

. . . are not themselves elements of the offense, but are merely evidentiary

facts, the manner and means by which the actus reus element is committed."

See Jacobsen, 325 S.W.3d at 737; see also Casey, 349 S.W.3d at 829. In

addition, it is well settled that "section 21.02 does not violate due process by

permitting a conviction based on a jury's unanimous finding that the

defendant engaged in a course of conduct consisting of repeated acts of sexual

abuse, but without requiring jury unanimity as to the individual acts that

made up that course of conduct." See Martin, 335 S.W.3d at 872 (discussing

Jacobsen, 325 S.W.3d at 739). This reasoning is flawed and oppressive.

      In addition to above compelling reasons to grant PDR in this case, the

statute in question is also violative of the VIII Amendment to the Federal

Constitution, inter alia, “FED, CONST., art. VIII” citing a prohibition of

cruel and unusual punishment. The tremendous appellate questions arising

out of criminal convictions relating to Section 21.02 make this petition for

PDR especially attractive to this Court to address. These issues include, but

are certainly not limited to, due process issues, jury unanimity issues and

                                        -1-
issues relating to cruel and unusual punishment, all violative of a defendant’s

constitutional rights afforded one by law ands common sense.

                            PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, MARK JOSEPH

SHUMSKI respectfully requests that the Court of Criminal Appeals grant

Appellant's Petition for Discretionary Review and for such other and further

relief to which he may show himself to be entitled.

                                     Respectfully submitted,

                                      /s/ Paul Belew
                                     Paul Belew
                                     S.B.N.: 00794926

                                     LAW OFFICES OF PAUL BELEW, PLLC.
                                     P.O. Box 1026
                                     Decatur, Texas 76234
                                     (940) 627-6400
                                     (940) 627-6408 (facsimile)

                                     FOR APPELLANT/PETITIONER
                                     MARK JOSEPH SHUMSKI



                        CERTIFICATE OF SERVICE

      This is to certify that on this, the 12TH day of April, 2015 a true and

correct copy of the above and foregoing document has been forwarded by

means of electronic filing as follows:
                                         -2-
Greg Lowery
Wise County District Attorney's Office
Wise County Courthouse
Second floor
Decatur, Texas 76234



                                      /s/ Paul Belew
                                     Paul Belew




                               -3-
                                 Appendix

See attached, Shumski v. State, No. 02-13-00565-CR (December 4, 2014)
(Memorandum Opinion)




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