                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-12-00025-CR

GLEN DAVIS,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee


                            From the 13th District Court
                              Navarro County, Texas
                             Trial Court No. 22622-CR


                           MEMORANDUM OPINION


       Glen Dale Davis appeals from his conviction for the offense of continuous sexual

abuse of a child for which he was sentenced to life in prison. TEX. PEN. CODE ANN. §

21.02 (West 2011). Davis complains that the indictment failed to provide sufficient

notice of the charged offense, that the statute is unconstitutional, and that the trial court

erred by failing to adequately "guide" the jury on the principle of "beyond a reasonable

doubt." Because we find no reversible error, we affirm the judgment of the trial court.
                         SUFFICIENCY OF THE INDICTMENT

        Davis complains that the indictment was inadequate to allow him to prepare a

defense. The indictment tracked the language of section 21.02(d), stating that Davis did

"during a period that was 30 or more days in duration, to-wit: from on or about

January 1, 2008 through March 11, 2011, when the defendant was 17 years of age or

older, commit two or more acts of sexual abuse against a child younger than 14 years of

age, namely, indecency with a child by intentionally or knowingly engaging in sexual

contact with T.D. by touching the genitals of T.D."

        Davis filed a pretrial motion to quash the indictment alleging that it did not

provide adequate notice for him to be able to prepare a defense because there were no

allegations as to the number of acts of sexual abuse the defendant had committed or

references to the time the acts were allegedly committed. After a hearing, the trial court

denied Davis's motion.

Standard of Review

        The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d

599, 601 (Tex. Crim. App. 2004). Therefore, we review de novo a trial court's ruling on a

motion to quash an indictment. Id. An indictment is sufficient when it charges the

commission of the offense in ordinary and concise language in such a manner as to

enable a person of common understanding to know what is meant, and with that




Davis v. State                                                                      Page 2
degree of certainty that will give the defendant notice of the particular offense with

which he is charged. TEX. CODE CRIM. PROC. ANN. art. 21.11 (West 2009).

        Davis complains that the indictment should have been required to set forth each

specific act in order to give him adequate notice. The right to notice is set forth in both

the United States and Texas Constitutions. See U.S. CONST. amend. VI; TEX. CONST. art.

I, § 10; Moff, 154 S.W.3d at 601. In addition, the Texas Code of Criminal Procedure

provides guidelines relating to the sufficiency of an indictment. See, e.g., TEX. CODE

CRIM. PROC. ANN. art. 21.03 (West 2009) ("Everything should be stated in an indictment

which is necessary to be proved."); TEX. CODE CRIM. PROC. ANN. art. 21.04 ("The

certainty required in an indictment is such as will enable the accused to plead the

judgment that may be given upon it in bar of any prosecution for the same offense.");

TEX. CODE CRIM. PROC. ANN. art. 21.11 ("An indictment shall be deemed sufficient which

charges the commission of the offense in ordinary and concise language in such a

manner as to enable a person of common understanding to know what is meant, and

with that degree of certainty that will give the defendant notice of the particular offense

with which he is charged, and enable the court, on conviction, to pronounce the proper

judgment…."). Accordingly, the charging instrument must be specific enough to inform

the accused of the nature of the accusation against him so that he may prepare a

defense. Moff, 154 S.W.3d at 601. "An indictment is generally sufficient as long as it




Davis v. State                                                                       Page 3
tracks the language of a penal statute that itself satisfies the constitutional requirement

of notice." Lawrence v. State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007).

        A complaint that an indictment does not provide adequate notice alleges a defect

in form. Olurebi v. State, 870 S.W.2d 58, 61 (Tex. Crim. App. 1994). A defect of form

does not render an indictment insufficient unless the defect "prejudice[s] the substantial

rights of the defendant." TEX. CODE CRIM. PROC. ANN. art. 21.19 (West 2009); Olurebi, 870

S.W.2d at 61. To determine whether the defendant had notice adequate to prepare his

defense, we must first determine whether the charging instrument failed to provide all

the requisites of "notice." Olurebi, 870 S.W.2d at 61 (citing Adams v. State, 707 S.W.2d 900,

903 (Tex. Crim. App. 1986). If the indictment gave sufficient notice, our inquiry ends.

Id.

        Davis complains that the indictment failed to "specify how many acts of sexual

abuse the Defendant is alleged to have committed nor does it allege any time reference

for each of said acts other than being within the period of more than three years." The

State contends, and we agree, that the indictment tracks the applicable statutory

language by alleging each element of the offense of continuous sexual abuse of a child

as set forth in the penal code. See TEX. PENAL CODE ANN. § 21.02(b). The indictment

also alleges the different means by which Davis was alleged to have committed the

offense by listing in detail the specific acts of sexual abuse allegedly committed by him.




Davis v. State                                                                         Page 4
The acts listed constitute an "act of sexual abuse" under the statute. See TEX. PENAL

CODE ANN. § 21.02(c)(2).

        Further, Davis complains that the indictment inadequately describes the number

of alleged acts of sexual abuse by merely averring "two or more." The State responds

that the specific number and dates of the acts are not required for adequate notice

because they are evidentiary in nature.      We agree.    An indictment that tracks the

language of the statute is legally sufficient and the State need not allege facts that are

merely evidentiary in nature. Livingston v. State, 739 S.W.2d 311, 321 (Tex. Crim. App.

1987). Section 21.02 of the Texas Penal Code is a statute that creates a single element of

a series of sexual abuse, which requires two or more occurrences. Render v. State, 316

S.W.3d 846, 858 (Tex. App.—Dallas 2010, pet. ref'd.). It does not make each act of sexual

abuse a separate element of the offense, rather each act is a manner and means of the

element of the series of sexual abuse. See Jacobsen v. State, 325 S.W.3d 733, 737 (Tex.

App.—Austin 2010, no pet.). Because the indictment properly alleged a series of sexual

abuse as set forth in the statute as constituting two or more of the offenses listed in the

statute, the indictment was adequate. We overrule issue one.

                                  JURY UNANIMITY

        Davis's second issue complains that section 21.02(d) of the Penal Code is

unconstitutional because it does not require jury unanimity of specific acts of sexual

abuse. However, this complaint was not raised to the trial court in Davis's motion to


Davis v. State                                                                       Page 5
quash the indictment or at any time during the trial. Davis does not complain on

appeal that the jury charge is erroneous regarding jury unanimity.

        Constitutional challenges to a statute generally are forfeited by failure to object at

trial. Curry v. State, 910 S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995); see also Mendez v.

State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). The constitutionality of a statute as

applied must be raised in the trial court to preserve error. Curry, 910 S.W.2d at 496; see

Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008) (noting the "well-

established requirement that appellant must preserve an 'as applied' constitutional

challenge by raising it at trial"). Further, a defendant may not raise a facial challenge to

the constitutionality of a statute for the first time on appeal. Karenev v. State, 281 S.W.3d

428, 434 (Tex. Crim. App. 2009).

        Although Davis filed a motion to quash the indictment, he did not assert that the

count should be quashed because the statute is unconstitutional regarding jury

unanimity.       Nor did he inform the trial court that he believed the statute

constitutionally infirm when he affirmatively did not object to the jury charge. Davis

did not file a motion for new trial. Accordingly, because Davis did not assert any

constitutional infirmity within the statute before the trial court, we hold that Davis has

forfeited this complaint. See TEX. R. APP. P. 33.1(a); Karenev, 281 S.W.3d at 434; Flores,

245 S.W.3d at 437 n.14; Curry, 910 S.W.2d at 496. We overrule issue two.




Davis v. State                                                                          Page 6
                 FAILURE TO INSTRUCT ON REASONABLE DOUBT

        Davis's third issue is entitled "The jury was not guided on the 'beyond a

reasonable doubt' principle." We will construe his complaint as a failure to include

some instruction or definition of "beyond a reasonable doubt" in the jury charge. Davis

did not object to the charge on this basis nor does the record reflect that he requested an

instruction or definition of "beyond a reasonable doubt" to be included in the jury

charge.    However, all jury charge errors are cognizable on appeal under Almanza.

Jennings v. State, 302 S.W.3d 306, 311 (Tex. Crim. App. 2010) (citing Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985)).

        The Court of Criminal Appeals has determined that courts may or may not

define the term "reasonable doubt" in the jury charge. Woods v. State, 152 S.W.3d 105,

115 (Tex. Crim. App. 2004). That Court has also stated that "the better practice is to give

no definition of reasonable doubt at all to the jury." Paulson v. State, 28 S.W.3d 570, 573

(Tex. Crim. App. 2000). We do not find that the jury charge was erroneous on this basis.

We overrule issue three.

                                     CONCLUSION

        Having found no reversible error, we affirm the judgment of the trial court.




                                           TOM GRAY
                                           Chief Justice



Davis v. State                                                                         Page 7
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 20, 2012
Do not publish
[CRPM]




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