                                        NO. 07-11-0042-CR

                                  IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                               PANEL C

                                    NOVEMBER 13, 2012
                              ______________________________


                        JOSEPH ANTHONY KENNEDY, APPELLANT

                                                   V.

                              THE STATE OF TEXAS, APPELLEE


                            _________________________________

            FROM THE 26TH DISTRICT COURT OF WILLIAMSON COUNTY; 1

          NO. 09-887-K26; HONORABLE BILLY RAY STUBBLEFIELD, JUDGE

                             _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                               OPINION


        Following a plea of not guilty, Appellant, Joseph Anthony Kennedy, was

convicted by a jury of one count of continuous sexual abuse of a child 2 and two counts



1
 Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. TEX. GOV=T CODE ANN. ' 73.001 (W EST 2005).
As Appellant acknowledges in his brief, pursuant to Rule 41.3 of the Texas Rules of Appellate Procedure,
we apply the precedent of the transferor court.
2
TEX. PENAL CODE ANN. § 21.02(b) (W EST SUPP. 2012).
of indecency with a child by contact. 3 Appellant was sentenced to thirty-five years

confinement on the continuous sexual abuse charge and two years confinement on

each count of indecency with a child charges. 4 The sentences were ordered to run

consecutively. By a single issue, Appellant maintains that section 21.02 of the Texas

Penal Code, entitled “Continuous Sexual Abuse of Young Child or Children” violates the

constitutional and statutory requirements of a unanimous jury verdict. We affirm.


                                            BACKGROUND


        Appellant was accused of sexually abusing his two stepdaughters, L.T. and

C.N.T., over a two-year period when they were under age fourteen. Only the facts

necessary for disposition of Appellant’s issue will be developed.


        During pretrial proceedings via a Motion to Quash, as well as during the charge

conference in the guilt/innocence phase, Appellant complained that the statute on

continuous sexual abuse fails to require jury unanimity as to specific acts of sexual

abuse. 5 On appeal, he argues the statute violates his right to a unanimous jury verdict

guaranteed by the United States and Texas Constitutions. See U.S. CONST. amend VI,

XIV; TEX CONST. art. V, § 13. He also argues the statute denies him due process and

due course of law on its face and as applied to him. See U.S. CONST. amend XIV; TEX.

CONST. art. I, § 19.

3
TEX. PENAL CODE ANN. § 21.11(a)(1) (W EST 2011).
4
 Appellant does not challenge his conviction or sentence for the two counts of indecency with a child by
contact.
5
 The trial court denied the Motion to Quash and also ruled against Appellant on his objections to the
charge.
                                                 2
                                  STANDARD OF REVIEW


        When confronted with a challenge to the constitutionality of a statute, we

presume the statute is valid and that the Legislature has not acted unreasonably or

arbitrarily.   Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App. 2002); Frieling v.

State, 67 S.W.3d 462, 472 (Tex.App.—Austin 2002, pet. ref’d).             We review the

constitutionality of a criminal statute de novo. Lockhard v. State, 364 S.W.3d 920, 921

(Tex.App.—Amarillo 2012, no pet.).


                                        ANALYSIS


        Under section 21.02 of the Texas Penal Code, a “person commits an offense if

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 . . . .” The statute also requires that the actor be seventeen years of age

or older and the victim or victims be younger than fourteen. TEX. PENAL CODE ANN. §

21.02(b)(2) (W EST SUPP. 2012). If a jury is the trier of fact, members are not required to

agree unanimously on which specific acts of sexual abuse were committed or the exact

date when those acts were committed.             Id. at (d).   The jury need only agree

unanimously that the defendant, during a period that is thirty or more days in duration,

committed two or more acts of sexual abuse. Id.


        “It has long been the case that juror unanimity is required in felony cases by the

Texas Constitution and in all criminal trials by state statutes.” See Young v. State, 341

S.W.3d 417, 422 (Tex.Crim.App. 2011) (citing TEX. CONST. art. V, § 13 and TEX. CODE
                                             3
CRIM. PROC. ANN. arts. 37.02, 37.03 and 37.04). See also Ngo v. State, 175 S.W.3d

738, 745 (Tex.Crim.App. 2005).         Appellant relies on Richardson v. United States, 526

U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), and incorporating by reference an

amicus curiae brief filed by Professor George E. Dix of the University of Texas, he

contends that section 21.02 defines continuous sexual abuse without including an

element consisting of specific conduct. This, he argues, “creates an unacceptably high

risk that jurors will fail to demand proof beyond a reasonable doubt of whether the

defendant engaged in the requisite criminal activity.” We disagree.


       To date, the Texas Court of Criminal Appeals has not written on the

constitutionality of section 21.02; however, the transferor court has concluded the

statute 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. See Jacobsen v.

State, 325 S.W.3d 733, 739 (Tex.App.—Austin 2010, no pet). See also Martin v. State,

335 S.W.3d 867 (Tex.App.—Austin 2011, pet. ref’d) (holding as it did in Jacobsen that

section 21.02 did not violate the defendant’s right to a unanimous jury verdict). 6


       In finding that section 21.02 did not violate an appellant’s right to a unanimous

jury verdict, citing Ngo, 175 S.W.3d at 745, the Jacobsen Court found that unanimity

requires that each juror agree that the defendant committed the same specific actus




6
 Appellant also relies on State v. Rabago, 103 Hawaii 236, 81 P.3d 1151 (2003), which struck down an
analogous statute. However, the Austin Court of Appeals considered and disagreed with Rabago in
Jacobsen. 325 S.W.3d at 873.
                                                  4
reus. 7 The court went on, however, to note a crucial distinction between facts that are

the specific actus reus element of the crime and ones that are merely a means of

committing that element.          Jacobsen, 325 S.W.3d at 736.              To convict, jurors must

unanimously agree on each element of the crime but need not agree on all the

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.” Id. (citing Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991)).


        Under the plain meaning of section 21.02, the commission of two or more acts of

sexual abuse over a specified period of time is the actus reus element of the offense

which requires jury unanimity. Id. at 737. The individual acts of sexual abuse that make

up the series of acts are not themselves elements of the offense. Id. They are merely

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

Id. Where the evidence supports more than two acts of sexual abuse over the specified

time, jurors need not agree as to which individual acts were committed so long as they

agree the defendant committed at least two. Id.; TEX. PENAL CODE ANN. § 21.02(d).


        Appellant was charged with committing two or more acts of sexual abuse against

L.T. during a period that was thirty days or more in duration over a two-year period. He

was also charged with committing two or more acts of sexual abuse against C.N.T. over

the same two-year period.           The touching and/or penetration of his stepdaughters’

7
 An actus reus is the wrongful deed which renders the actor criminally liable if committed with the
requisite criminal intent, or mens rea. The actus reus is the physical aspect of a crime, whereas the mens
                                                               th
rea involves the intent factor. BLACK’S LAW DICTIONARY, 36 (6 ed. 1990).
                                                     5
breasts and genitals were simply the manner and means by which he committed

continuous sexual abuse. Subparagraph (d) of section 21.02 makes it clear that the

jurors did not need to agree on which individual acts Appellant committed as long as

they agreed that he did commit at least two. Accordingly, we conclude that section

21.02 does not violate Appellant’s constitutional and statutory right to a unanimous jury

verdict. Appellant’s sole issue is overruled.


                                       CONCLUSION


       Having overruled Appellant’s sole issue, the trial court’s judgment is affirmed.




                                                    Patrick A. Pirtle
                                                        Justice


Publish.




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