                                  NO. 12-09-00331-CR

                          IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS
BOBBY EUGENE COKER,                                  '    APPEAL FROM THE 2ND
APPELLANT

V.                                                   '    JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                             '    CHEROKEE COUNTY, TEXAS


                                 MEMORANDUM OPINION
       Bobby Eugene Coker appeals his conviction for the felony offense of continuous
sexual abuse of a young child. In two issues, Appellant argues that the statute defining
the offense of continuous sexual abuse is unconstitutional. We affirm.

                                          BACKGROUND
       A Cherokee County grand jury indicted Appellant for the felony offense of
continuous sexual abuse of a young child or children (continuous sexual abuse statute). 1
Prior to trial, Appellant raised objections to the indictment on the grounds that the
continuous sexual abuse statute was unconstitutional because it allowed prosecutions that
were otherwise barred by the statute of limitations and because it permitted a jury to
return a conviction without unanimously agreeing on the acts committed by the
defendant.
       The trial court overruled Appellant‟s objections, and Appellant pleaded guilty.
Pursuant to a plea agreement, the trial court assessed punishment at imprisonment for
thirty-five years. This appeal followed.




       1
           TEX. PENAL CODE ANN. § 21.02(b) (Vernon Supp. 2010).
                     CONSTITUTIONALITY OF THE CONTINUOUS SEXUAL
                     ABUSE OF A YOUNG CHILD OR CHILDREN STATUTE
          In two issues, Appellant argues that the continuous sexual abuse statute is
unconstitutional.
The Statute
          Enacted into law in 2007, the continuous sexual abuse statute criminalizes a
continuous course of conduct that lasts for thirty days or longer and includes two or more
acts of sexual abuse against one or more victims. TEX. PENAL CODE ANN. § 21.02(b)(1)
(Vernon Supp. 2010). An “act of sexual abuse” is defined by the statute as specific acts
that are themselves criminal offenses. Specifically, an “act of sexual abuse” can be one
of the following offenses: aggravated kidnapping, if committed with the intent to violate
or abuse the victim sexually, one variant of indecency with a child, sexual assault,
aggravated sexual assault, one variant of burglary, and one variant of sexual performance
by a child. Id. at 21.02(c). By statute, the jury is not required to agree on which specific
acts of sexual abuse were committed by the defendant or the date on which they were
committed. Id. at 21.02(d). Instead, the jury must simply 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.
Statute of Limitations
          There is no statute of limitations for the offense of continuous sexual abuse. TEX.
CODE CRIM. PROC. ANN. art. 12.01(1)(D) (Vernon Supp. 2010). Because there is no
limitations period, Appellant argues that the statute is void for vagueness because the
state could intentionally delay prosecution “in the hopes that a more serious offense can
be prosecuted with greater ease in the future,” or because a “person who is seventy (70)
years of age could be tried and convicted from evidence of overt acts as defined in the
statute which occurred when he was seventeen (17) at the time and then a separate and
distinct offense which occurred when he was forty (40) years of age.” Finally, he argues
that the term “30 or more days in duration” is “not defined” and has “no limiting features
to it.”
          Statutes enacted by the legislature are presumed to be valid, and there is a
presumption that the legislature acted reasonably in enacting the statute. See Rodriguez
v. State, 93 S.W.3d 60, 69 (Tex Crim. App. 2002). The burden to show that a statute is
unconstitutional is on the party challenging the statute. Id.
                                               2
        A criminal statute is void for vagueness–and thereby violates the Due Process
Clauses of the Fifth and Fourteenth Amendments to the Constitution–if it fails to define
the criminal offense with “sufficient definiteness that ordinary people can understand
what conduct is prohibited and in a manner that does not permit arbitrary and
discriminatory enforcement.” Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App.
2007); see also, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct.
839, 843, 31 L. Ed. 2d 110 (1972) (“Living under a rule of law entails various
suppositions, one of which is that [all persons] are entitled to be informed as to what the
State commands or forbids.” (citation omitted)). When, as here, the statute does not
implicate constitutionally protected conduct or speech, it is valid unless it is
“impermissibly vague in all applications” or as applied to the defendant. See State v.
Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006) (citing Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S. Ct. 1186, 1191, 71
L. Ed. 2d 362 (1982)).
        Gap in Time Between Acts
        Appellant‟s offered hypothetical of a prosecution for two disparate acts, which are
criminal offenses themselves, separated by a long period of time, does not persuade us
that it is difficult to determine what it is that the statute forbids. Nor does this persuade
us that the statute is vague as applied to Appellant inasmuch as the component offenses
he was charged with were all alleged to have occurred within the several years preceding
the return of the indictment.2 The primary evil to be guarded against by the void for
vagueness principle is laws that “trap the innocent” by not providing fair warning or by
allowing “policemen, judges, and juries” a basis to apply the law on an “ad hoc or
subjective basis.” See Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct.
2294, 2299, 33 L. Ed. 2d 222 (1972). A secondary problem presented by a vague law,
especially in the area of First Amendment freedoms, is that a vague law will have the
effect of inhibiting the exercise of a citizen‟s freedom and can cause a law abiding citizen
to unnecessarily “steer far wider of the unlawful zone.” Id., 208 U.S. at 109, 92 S. Ct. at
2299 (quoting Baggett v. Bullitt, 377 U.S. 360, 372, 84 S. Ct. 1316, 1323, 12 L. Ed. 2d
377 (1964)). This statute, a collection of already illegal acts, does not, by virtue of its
combining nature, create an admixture that is any more difficult to comprehend than any

        2
         The indictment was filed in July 2008. It alleged that Appellant committed the charged acts
between September 2007 and March 2008.
                                                   3
of its component parts. For that reason, we hold that the trial court properly held that the
statute was not void for vagueness because it allows for prosecution of events that may
occur over the spread of several years.


       Timing of Prosecution
       Appellant is correct that the statute has the effect of rearranging and extending the
statute of limitations for some of the component offenses. For example, the offense of
sexual performance of a child, one of the potential component offenses, has a limitations
period of twenty years after the eighteenth birthday of the child. TEX. CODE CRIM. PROC.
ANN. art. 12.01(5)(A) (Vernon Supp. 2010).
       Accordingly, as with any extension of the statute of limitations, there is an
enhanced possibility that a prosecutor could delay bringing charges to seek a tactical
advantage. Appellant does not argue that this happened here, and this concern does not
cause us to conclude that the statute is unconstitutional. The Due Process Clause of the
Fifth Amendment provides a remedy where preindictment delay causes “substantial
prejudice to [the defendant‟s] rights to a fair trial” if that the delay was an “intentional
device to gain tactical advantage over the accused.” See United States v. Marion, 404
U.S. 307, 324, 92 S. Ct. 455, 465, 30 L. Ed. 2d 468 (1971). In such a case, the defendant
may be entitled to a dismissal or other remedy, but it does not mean that the statute itself
is unconstitutional.
       Other statutes that aggregate independently criminal acts have longer statutes of
limitations than do the underlying offenses. For example, capital murder does not have a
limitations period. See TEX. CODE CRIM. PROC. ANN. art. 12.01(1)(A) (Vernon Supp.
2010); Demouchette v. State, 731 S.W.2d 75, 80 (Tex. Crim. App. 1986). Robbery,
which can be an element of capital murder, has a limitations period of five years. Id. art.
12.01(4)(A). Theft has a limitations period of five years, if it is a felony, but the
limitations period is ten years if the theft is committed by a public servant. Compare id.
art. 12.01(4)(A) with art. 12.01(2)(B). This distinction has been held to be permissible.
See Willis v. State, 932 S.W.2d 690, 694 (Tex. App.–Houston [14th Dist.] 1996, no pet.).
       Summary
       Appellant does not argue that the statute implicates constitutionally protected
speech or conduct. Appellant has failed to show that this statute is vague or that it is
vague in all applications or as applied to him. The continuous sexual abuse statute brings
                                              4
together several different offenses and permits a higher penalty when the state can show
that the defendant committed the acts over a period of time longer than thirty days. We
do not agree with Appellant that the term “30 or more days in duration” is vague or
difficult to understand.
       Statutes of limitations are an act of grace by the legislature. See, e.g., Proctor v.
State, 967 S.W.2d 840, 843 (Tex. Crim. App. 1998). They are a kind of amnesty, and the
legislature has some flexibility in crafting such statutes. Id. Appellant has identified a
hypothetical circumstance whereby the state may delay a prosecution to disadvantage the
defendant. This scenario is not present in this case, and Appellant has otherwise failed to
show that the statute is unconstitutional because it does not have a statute of limitations.
We overrule Appellant‟s first issue.
Unanimous Verdict
       In his second issue, Appellant argues the continuous sexual assault statute is
unconstitutional because it does not require the jury to unanimously agree on which
specific acts of sexual abuse the defendant committed. Appellant does not state whether
it is the Texas or the United States Constitution that is violated by the statute. Instead, he
argues that the statute violates two Texas statutes. Specifically, he argues that the
continuous sexual abuse statute conflicts with a statute which requires a unanimous
verdict and a statute which requires proof of each element of the offense. See TEX. CODE
CRIM. PROC. ANN. arts. 36.29, 38.03 (Vernon Supp. 2010).
       As a beginning point, we note that the continuous sexual assault statute can be
read in harmony with the two code of criminal procedure statutes cited by Appellant.
The continuous sexual assault statute requires proof that the defendant committed two
acts of sexual abuse over a period of thirty or more days. TEX. PENAL CODE ANN.
§ 21.02(b)(1).   The statute specifically states that the trier of fact need not agree
unanimously on which specific act of sexual abuse were committed or the date. Id. at
§ 21.02(d). Instead, 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.” Id.
Accordingly, if the underlying offenses are not elements of the offense, the statutes that
require unanimous proof of the elements of the offense are not disturbed by the
continuous sexual abuse statute.
       A more difficult question is whether the legislature was free to create such a
statute. Appellant never directly asserts that the legislature may not create such a statute.
                                              5
In one sentence of his argument, Appellant does assert that this kind of statute violates a
defendant‟s right to due process. The Sixth Amendment to the United States Constitution
requires unanimous jury verdicts, but that requirement has not been extended to state
criminal trials. See McDonald v. City of Chicago, __U.S.__, 130 S. Ct. 3020, 3035 n.14,
177 L. Ed. 2d 894 (June 28, 2010) (citing Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct.
1628, 32 L. Ed. 2d 184 (1972); and referencing Johnson v. Louisiana, 406 U.S. 356, 92
S. Ct. 1620, 32 L. Ed. 2d 152 (1972)).
       The Texas Constitution requires that jury verdicts be unanimous.           See TEX.
CONST. art. V, § 13. Unanimity means that every juror must agree that the defendant
committed the same, single, specific criminal act. Ngo v. State, 175 S.W.3d 738, 745
(Tex. Crim. App. 2005). This does not mean, however, that jurors must unanimously
agree that the defendant committed that crime in one specific way or even with one
specific act. Id. at 746; see also Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim.
App. 2008) (citing Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006)). The
legislature has considerable discretion in defining crimes and the manner in which those
crimes can be committed. Landrian, 268 S.W.3d at 535. That discretion is limited by
the Due Process Clause of the United States Constitution and the Due Course of Law
provision of the Texas Constitution. Id. (citing Schad v. Arizona, 501 U.S. 624, 111 S.
Ct. 2491, 115 L. Ed. 2d 555 (1991) (plurality opinion)).
       The Supreme Court‟s decision in Schad is important because it describes the due
process limitation to the legislature‟s ability to define crimes. That limitation, the Court
suggests, would not permit a jury to convict a person of the offense of “Crime,” an
offense defined as a combination of several disparate offenses. Schad v. Arizona 501
U.S. 624, 633, 111 S. Ct. 2491, 2497-98, 115 L. Ed. 2d 555 (1991) (plurality opinion).
The Court states that such a statute would be impermissible as there is “nothing in our
history [to suggest] that the Due Process Clause” would permit such an prosecution. Id.,
501 U.S. 633, 111. S. Ct. at 2497.
       Several Texas courts of appeals have considered this question in relation to this
statute and have held that it passes constitutional muster. See Reckert v. State, No. 13-
09-00179-CR, 2010 Tex. App. LEXIS 7002, at *30-34 (Tex. App.–Corpus Christi Aug.
26, 2010, pet. filed.); Render v. State, No. 05-09-00528-CR, 2010 Tex. App. LEXIS
5820, at *18-27 (Tex. App.–Dallas July 23, 2010, pet. ref‟d); State v. Espinoza, No. 05-
09-01260-CR, 2010 Tex. App. LEXIS 4952, at *14 (Tex. App.–Dallas June 30, 2010,
                                     6
pet. ref‟d) (mem. op., not designated for publication); Jacobsen v. State, No. 03-09-
00479-CR, 2010 Tex. App. LEXIS 4394, at *14 (Tex. App.–Austin June 8, 2010, no pet.)
(mem. op., not designated for publication). Additionally, similar statutes passed in other
states have been upheld by their courts. See People v. Cissna, 182 Cal. App. 4th 1105,
106 Cal. Rptr. 3d 54, 68-70 (Cal. Ct. App. 2010); State v. Sleeper, 150 N.H. 725, 846
A.2d 545, 550-51 (N.H. 2004); State v. Johnson, 2001 WI 52, 243 Wis. 2d 365, 627
N.W.2d 455, 460-64 (Wis. 2001); but see State v. Rabago, 81 P.3d 1151, 1169 (Haw.
2003) (holding similar statute to be unconstitutional).
       Judge Cochran proposed a statute such as the continuous sexual abuse statute in a
concurring opinion in 2006. See Dixon v. State, 201 S.W.3d 731, 736 (Tex. Crim. App.
2006) (Cochran, J., concurring). In that opinion, Judge Cochran pointed out that there
existed a tension between the customary notion of a specific verdict for a specific
criminal act and the way sexual abuse of children often occurs, which is as part of a
continuing course of conduct. Id. She suggested a statute to preserve important criminal
justice principles that she believed were being “stretched beyond recognition and
common logic” to accommodate the nature of continuing sexual abuse offenses. Id.
Such a statute would, in Judge Cochran‟s opinion, segregate the problems attendant to
prosecuting these kinds of offenses so the issues raised at trial do not, as Judge Cochran
phrased it, “leak out” into the trials of other kinds of offenses. Id. at 737.
       But an aggregating statute can go too far. In Richardson v. United States, 526
U.S. 813, 820-21, 119 S. Ct. 1707, 1711-12, 143 L. Ed. 2d 985 (1999), the Supreme
Court, in construing a statute, did not give it a reading that would allow many of the
nation‟s drug laws to be part of the crime of “engaging in a continuing criminal
enterprise” without juror unanimity because such a reading would “come close to, or
[test] the constitutional limit imposed by due process.” In Schad, Justice Scalia wrote in
a concurring opinion that “[w]e would not permit, for example, an indictment charging
that the defendant assaulted either X on Tuesday or Y on Wednesday, despite the „moral
equivalence‟ of those two acts.” Schad, 501 U.S. at 651, 111 S. Ct. at 2507 (Scalia J.,
concurring in part and concurring in judgment). And in Williams v. State, 305 S.W.3d
886, 893 n.12 (Tex. App.–Texarkana 2010, no pet.), the court remarked on the difficulty
of reviewing the sufficiency of the evidence in a case where so many facts do not have to
be agreed upon unanimously.


                                               7
         Appellant does not make arguments along these lines. Instead, he argues that the
statute is problematic because it permits the person to be convicted without “proof of all
the elements beyond a reasonable doubt” and that jurors could agree on few of the same
facts and still return a conviction. Appellant also argues that the statute allows “shotgun
litigation” and that an overbroad indictment, brought because a child cannot testify
specifically about when an offense occurred “could place the defendant in the situation of
having to defend non-existent offenses . . . .”
         This argument is not a constitutional argument. Instead, it is an argument about
whether the continuous sexual abuse statute is wise legislation. As Justice Breyer wrote
in Richardson, unanimity has never been required on the issue of the means by which
one commits an act. See Richardson, 526 U.S. at 817, 119 S. Ct. at 1710; see also Ngo,
175 S.W.3d at 746. The constitutional question about this part of the statute is one
Appellant never asks, which is whether it is permissible for the legislature to treat the
specific acts of sexual abuse as manner and means of committing a series of sexual
abuses. If it may, which the courts cited above have allowed, then the specific acts
committed are, in the language used by Justice Breyer, “brute facts” that need not be
unanimously found.          If, on the other hand, those allegations must be agreed upon
unanimously by the jury, whether the statute is well conceived or not, is irrelevant.
         Appellant has failed to show that the continuous sexual abuse statute is
unconstitutional because it does not require the jury to unanimously agree on which
specific acts of sexual abuse the defendant committed.          Accordingly, we overrule
Appellant‟s second issue.


                                               DISPOSITION
         Having overruled Appellant‟s two issues, we affirm the judgment of the trial
court.
                                                                SAM GRIFFITH
                                                                   Justice


Opinion delivered December 8, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.



                                          (DO NOT PUBLISH)

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