                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-15-00423-CR


ELISEO HERNANDEZGALEANO                                           APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1384203D

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                       MEMORANDUM OPINION1

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      A jury convicted Appellant Eliseo Hernandezgaleano2 of the offenses of

continuous sexual abuse of a young child and indecency with a child by contact


      1
      See Tex. R. App. P. 47.4.
      2
        The record reflects some discrepancy with respect to the spelling of
Appellant’s name. Because Appellant never suggested that he bears a name
different from that stated in the indictment, we take his name as stated in the
indictment as true. See Tex. Code Crim. Proc. Ann. arts. 26.07, 26.08 (West
2009).
and assessed his punishment at 34 years’ and 10 years’ confinement,

respectively. See Tex. Penal Code Ann. § 21.02 (West Supp. 2016), § 21.11

(West 2011).    The trial court sentenced Appellant accordingly, ordering the

sentences to run concurrently.     In two issues, Appellant challenges only his

conviction for continuous sexual abuse of a young child. See Tex. Penal Code

Ann. § 21.02. We affirm.

      In his second issue, Appellant challenges the constitutionality of section

21.02 of the Texas Penal Code, arguing that it violates his right to a unanimous

jury verdict guaranteed by the federal and state constitutions. The State notes

that Appellant did not raise this issue at trial, a fact that Appellant concedes.

Ordinarily, a party must preserve an error during trial in order to raise it on

appeal. Tex. R. App. P. 33.1(a); Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim.

App. 2009). Appellant argues, however, that he was not required to preserve his

complaint regarding the constitutionality of section 21.02 because that provision

infringes upon a waivable rather than a forfeitable right, thus allowing him to raise

this issue for the first time on appeal. See, e.g., Mendez v. State, 138 S.W.3d

334, 340–42 (Tex. Crim. App. 2004); Sanchez v. State, 120 S.W.3d 359, 366–67

(Tex. Crim. App. 2003).

      Appellant candidly acknowledges that we have held to the contrary.3

See Shafer v. State, No. 02-10-00496-CR, 2012 WL 745422, at *1–2 (Tex.


      3
       Appellant also acknowledges that a number of our sister courts have also
held constitutional challenges to section 21.02 of the Texas Penal Code to be

                                         2
App.—Fort Worth Mar. 8, 2012, pet. ref’d) (mem. op., not designated for

publication) (holding constitutional challenge to section 21.02(d) is forfeitable);

see also Ibenyenwa v. State, 367 S.W.3d 420, 422–23 (Tex. App.—Fort Worth

2012, pet. ref’d) (op. on reh’g) (holding constitutional challenge to the entirety of

section 21.02 is forfeitable).   He has not persuaded us to depart from our

precedent here. Therefore, in accordance with our previous cases on this issue,

we hold that Appellant forfeited his constitutional challenge to section 21.02.

      However, even if Appellant had not forfeited this complaint, he still would

not prevail on this issue. As Appellant acknowledges, Texas courts, including

this court, have repeatedly rejected the argument that section 21.02 violates a

defendant’s right to a unanimous jury verdict guaranteed by the federal and state

constitutions. See Pollock v. State, 405 S.W.3d 396, 404–05 (Tex. App.—Fort

Worth 2013, no pet.); Lewis v. State, No. 02-10-00004-CR, 2011 WL 2755469, at

*6 (Tex. App.—Fort Worth July 14, 2011, pet. ref’d); see also Machado v. State,

No. 02-15-00365-CR, 2016 WL 3962731, at *3–4 (Tex. App.—Fort Worth July

forfeitable. See, e.g., Barroquin-Tabares v. State, No. 05-15-00794-CR, 2016
WL 3144160, at *1 (Tex. App.—Dallas May 31, 2016, no pet.) (mem. op., not
designated for publication); Moore v. State, No. 03-12-00787-CR, 2015 WL
1317205, at *3–4 (Tex. App.—Austin Mar. 20, 2015, pet. ref’d) (mem. op., not
designated for publication); Smallwood v. State, No. 08-12-00215-CR, 2014 WL
4269155, *5 (Tex. App.—El Paso Aug. 29, 2014, pet ref’d) (not designated for
publication), cert. denied, 136 S. Ct. 134 (2015); Cox v. State, Nos. 10-11-00370-
CR, 10-11-00371-CR, 2013 WL 3770949, at *1 (Tex. App.—Waco July 18, 2013,
no pet.) (mem. op., not designated for publication); Almaguer v. State, No. 07-10-
0283-CR, 2011 WL 291973, at *1 (Tex. App.—Amarillo Jan. 31, 2011, no pet.)
(mem. op., not designated for publication); Williams v. State, 305 S.W.3d 886,
893 (Tex. App.—Texarkana 2010, no pet.).


                                         3
21, 2016, no pet. h.) (mem. op., not designated for publication) (and cases cited

therein) (noting that Texas courts have authoritatively ruled against argument

that section 21.02 violates defendant’s right to unanimous jury verdict).       We

overrule Appellant’s second issue.

      In his first issue, Appellant contends that the trial court erred by charging

the jury with the following instruction:

      You are instructed with regard to Count One only, Continuous
      Sexual Abuse of a Child under 14 years of age, that members of the
      jury are not required to agree unanimously on which specific acts of
      sexual abuse, if any, were committed by the defendant or the exact
      date when those acts were committed, if any. The jury must agree
      unanimously that the defendant, during a period that was 30 or more
      days in duration, committed two or more acts of sexual abuse as that
      term has been previously defined.

Appellant argues that this instruction deprived him of his right to a unanimous

jury verdict in violation of the federal and state constitutions. Appellant concedes

that he did not preserve this complaint. Nevertheless, we will consider this issue

because “all alleged jury-charge error must be considered on appellate review

regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,

649 (Tex. Crim. App. 2012).

      In our review of a jury charge, if we conclude that no error occurred, our

analysis ends. Id. As noted in our discussion of Appellant’s second issue above,

we along with our sister courts have consistently held that section 21.02 does not

violate a defendant’s right to a unanimous jury verdict under the federal or state

constitutions. See Pollock, 405 S.W.3d at 404–05; Lewis, 2011 WL 2755469,



                                           4
at *6; Machado, 2016 WL 3962731, at *3–4. And the trial court’s instruction

tracked section 21.02(d) of the Texas Penal Code almost verbatim. See Tex.

Penal Code Ann. § 21.02(d); Casey v. State, 215 S.W.3d 870, 886–87 (Tex.

Crim. App. 2007).    We therefore conclude that the trial court did not err in

submitting the above instruction. We overrule Appellant’s first issue.

      Having overruled both of Appellant’s issues, we affirm the trial court’s

judgment.

                                                   /s/ Lee Gabriel

                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DAUPHINOT, J., concurs without opinion

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 25, 2016




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