Opinion filed March 5, 2015




                                    In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-13-00054-CR
                                  __________

                  MARK JOSEPH SHUMSKI, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                       On Appeal from 271st District Court
                              Wise County, Texas
                        Trial Court Cause No. CR16247


                     MEMORANDUM OPINION
      The jury found Mark Joseph Shumski guilty of the offense of continuous
sexual abuse of a child. The victim was Appellant’s stepdaughter, A.G., who was
under the age of fourteen at the times relevant to the offense. The jury assessed
punishment at confinement for a term of sixty years, and the trial court sentenced
him accordingly.      In his sole issue on appeal, Appellant challenges the
constitutionality of the Texas continuous-sexual-abuse-of-a-child statute.         We
affirm.
      The State charged Appellant with committing two or more acts of sexual
abuse against A.G. “from on or about February 16, 2008[,] through May 16, 2011.”
Specifically, the State alleged that Appellant had committed the offense of
indecency with a child by contact and that he had committed aggravated sexual
assault by penetrating A.G.’s sexual organ with his finger.
      A.G. testified that Appellant sexually abused her for about three years before
she finally told her mother. She said that, before the time that Appellant married
her mother, Appellant would come into her room at night, slip his hand underneath
her clothes, and touch her vagina or insert his finger into her vagina. A.G. testified
that, even though she told Appellant “no” and told him that she did not like what
he was doing to her, Appellant continued to sexually abuse her.
      In a single issue on appeal, Appellant challenges the constitutionality of
Section 21.02 of the Texas Penal Code. Section 21.02(d) 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 dates when those acts were
      committed. The jurors 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.
TEX. PENAL CODE ANN. § 21.02(d) (West Supp. 2014). Appellant argues that the
statute violates due process considerations because it fails to require a unanimous
jury verdict as to each of the individual acts of abuse.
      The Texas Court of Criminal Appeals has not yet written on the
constitutionality of Section 21.02. However, several appellate courts in Texas
have upheld the constitutionality of the statute. See Pollock v. State, 405 S.W.3d
396, 405 (Tex. App.—Fort Worth 2013, no pet.) (citing McMillian v. State, 388



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S.W.3d 866 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Kennedy v. State,
385 S.W.3d 729 (Tex. App.—Amarillo 2012, pet. ref’d); Casey v. State, 349
S.W.3d 825 (Tex. App.—El Paso 2011, pet. ref’d); Reckart v. State, 323 S.W.3d
588 (Tex. App.—Corpus Christi 2010, pet. ref’d); Render v. State, 316 S.W.3d 846
(Tex. App.—Dallas 2010, pet. ref’d); Jacobsen v. State, 325 S.W.3d 733 (Tex.
App.—Austin 2010, no pet.)).
      We note that one of the courts that has upheld Section 21.02 in the face of a
unanimity challenge is the Fort Worth Court of Appeals.           This appeal was
originally filed in the Fort Worth Court of Appeals. In accordance with docket
equalization mandates, this appeal was transferred from the Fort Worth court to
this court by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001
(West 2013). Under the provisions of Rule 41.3 of the Texas Rules of Appellate
Procedure, we are to apply the precedent of the transferor court if that precedent is
in conflict with our own precedent. TEX. R. APP. P. 41.3. Because we have not yet
decided this issue, we will apply precedent from the Fort Worth court of Appeals.
      In Pollock, the Fort Worth Court acknowledged that jury unanimity is
required in criminal cases in Texas. Pollock, 405 S.W.3d at 404. Every juror must
be in agreement that “the defendant committed the same, single, specific criminal
act.” Id. (quoting Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005))
(internal quotation marks omitted). The Fort Worth court noted, however, that this
does not mean that the jury has to unanimously agree that the accused committed
the offense in one particular manner or means. Id. If a jury is instructed on
alternative means of committing the same offense, there is no violation of the
unanimity requirement as there would be in the instance of different offenses that
involve separate incidents. Id. Although a trial court may not submit separate and
distinct offenses in the disjunctive, it does not run afoul of the unanimity
requirement when it submits, in the disjunctive, different manner and means of

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committing the same offense. Id. at 405. In continuous sexual abuse cases, the
element on which the jury must unanimously agree is that the accused committed
two or more acts of abuse over the specified time period; each act is not a separate
element that requires unanimity. Id.
      We follow the precedent and reasoning of the transferor court in this case.
We hold that the jury was required only to agree that Appellant committed two or
more acts of sexual abuse during a period of thirty days or more. The manner and
means made up “the ‘series’ of sexual acts that created a single element of
continuous sexual assault of a child.” Id. (quoting Lewis v. State, No. 02-10-
00004-CR, 2011 WL 2755469 (Tex. App.—Fort Worth July 14, 2011, pet. ref’d)
(mem. op., not designated for publication)). Appellant’s sole issue on appeal is
overruled.
      We affirm the judgment of the trial court.




                                                   JIM R. WRIGHT
                                                   CHIEF JUSTICE


March 5, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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