Affirmed and Opinion filed November 29, 2012.




                                        In The


                      Fourteenth Court of Appeals

                                 NO. 14-11-00833-CR



                      BRUCE ALAN MCMILLIAN, Appellant
                                           V.
                         THE STATE OF TEXAS, Appellee

                      On Appeal from the 268th District Court
                              Fort Bend County, Texas
                       Trial Court Cause No. 11-DCR-056975



                                     OPINION

      Appellant Bruce Alan McMillian was indicted on charges of (1) sexual assault, (2)
indecency with a child, and (3) continuous sexual abuse of a child under the age of 14.
The trial court denied appellant’s motion to quash his indictment for continuous sexual
abuse of a child under the age of 14; appellant subsequently pleaded guilty to that count
and two counts of sexual assault. He contends on appeal that the trial court erred in
denying his motion to quash, which challenged the constitutionality of the statute
criminalizing continuous sexual abuse of a child under the age of 14. See Tex. Penal
Code Ann. § 21.02 (Vernon Supp. 2012). We affirm.

                                     BACKGROUND

       Appellant was indicted on five separate felony counts. He filed a pre-trial motion
to quash the indictment for continuous sexual abuse of a child under the age of 14 on
grounds that section 21.02 is unconstitutional because it (1) violates the jury unanimity
requirement, see Tex. Const. art. V, § 13; and (2) is void for vagueness. See U.S. Const.
amend. XIV, §1; Tex. Const. art. I, § 19. The trial court denied appellant’s motion to
quash after a hearing. Appellant then pleaded guilty to two counts of sexual assault and
one count of continuous sexual abuse of a child under the age of 14, and the State
dismissed the two remaining causes in accordance with a plea agreement. Appellant’s
convictions for sexual assault of a child are not challenged in this appeal.

       In two issues, appellant argues on appeal that his motion to quash the indictment
should have been granted because section 21.02 of the Texas Penal Code is
unconstitutional.

                                        ANALYSIS

       Under section 21.02, a person commits an offense if:
       (1) 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; and
       (2) at the time of the commission of each of the acts of sexual abuse, the
       actor is 17 years of age or older and the victim is a child younger than 14
       years of age.
Tex. Penal Code Ann. § 21.02(b). The statute defines “act of sexual abuse” as:
       (1) aggravated kidnapping under Section 20.04(a)(4), if the actor
       committed the offense with the intent to violate or abuse the victim
       sexually;
       (2) indecency with a child under Section 21.11(a)(1), if the actor committed
       the offense in a manner other than by touching, including touching through
       clothing, the breast of a child;
                                              2
       (3) sexual assault under Section 22.011;
       (4) aggravated sexual assault under Section 22.021;
       (5) burglary under Section 30.02, if the offense is punishable under
       Subsection (d) of that section and the actor committed the offense with the
       intent to commit an offense listed in Subdivisions (1)-(4);
       (6) sexual performance by a child under Section 43.25;
       (7) trafficking of persons under Section 20A.02(a)(7) or (8); and
       (8) compelling prostitution under Section 43.05(a)(2).
Id. § 21.02(c). The legislature explicitly provided that:
       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 date when those acts were committed. 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. § 21.02(d).

       The sufficiency of an indictment and the constitutionality of a statute are questions
of law we review de novo. Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App.
2007); Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). In reviewing a
statute’s constitutionality, we begin with the presumption that the statute is valid and that
the legislature did not act arbitrarily and unreasonably in enacting it. Rodriguez v. State,
93 S.W.3d 60, 69 (Tex. Crim. App. 2002); Kfouri v. State, 312 S.W.3d 89, 91 (Tex.
App.—Houston [14th Dist.] 2010, no pet.). If a statute can be construed in two different
ways, one of which sustains its validity, we apply the interpretation that sustains its
validity. State v. Carmaco, 203 S.W.3d 596, 599 (Tex. App.—Houston [14th Dist.]
2006, no pet.). The burden rests upon the person who challenges a statute to establish its
unconstitutionality. Id. We must uphold a statute if we can determine a reasonable
construction which will render it constitutional. Ely v. State, 582 S.W.2d 416, 419 (Tex.
Crim. App. [Panel Op.] 1979); Kfouri, 312 S.W.3d at 92.




                                              3
I.      Unanimity

        In his first issue, appellant argues that the trial court should have granted his
motion to quash because section 21.02 violates the Texas Constitution’s requirement that
all jury verdicts in felony cases be unanimous.1 See Tex. Const. art. V, § 13; Ngo v.
State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005).

        To uphold a jury conviction, the Texas Constitution requires each juror to agree
that the defendant committed the same specific criminal act. Ngo, 175 S.W.3d at 745.
There is, however, a crucial distinction between a fact that is a specific element of the
crime and one that is but the means to the commission of a specific element. Id. at 747.
The jurors must unanimously agree on all elements of a crime in order to convict, but the
jurors need not agree on all 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. Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim.
App. 1991); Jacobsen v. State, 325 S.W.3d 733, 736 (Tex. App.—Austin 2010, no pet.).

        There are two components to analysis of a jury unanimity challenge. The first is
statutory construction, and the second is due process. Jefferson v. State, 189 S.W.3d 305,
311-312 (Tex. Crim. App. 2006) (citing State v. Johnson, 243 N.W.2d 455, 459-60 (Wis.
2001)); Jacobsen, 325 S.W.3d at 736.

        We begin review of a jury unanimity challenge by examining the language of the
statute to determine the elements of the crime and whether the legislature has created a
single offense with multiple alternate methods of commission. Yost v. State, 222 S.W.3d
865, 877 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). Statutory construction is a
question of law. Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App. 2011). In
construing a statute, we look first to the statute’s literal text, and we read words and
        1
         Appellant also claims that section 21.02 violates the jury unanimity requirement of article 36.29
of the Texas Code of Criminal Procedure. However, he failed to raise this argument in the trial court; we
do not address it on appeal. See Tex. R. App. P. 33.1(a).
                                                    4
phrases in context and construe them according to rules of grammar and usage. Id. We
must presume that every word in a statute has been used for a purpose and that each
word, phrase, clause, and sentence should be given effect if reasonably possible. Id.
Where the statute is clear and unambiguous, the legislature must be understood to mean
what it has expressed, and it is not for the courts to add or subtract from such a statute.
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991); Uyamadu v. State, 359
S.W.3d 753, 758 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).

       We believe the plain language of section 21.02(d) leaves no doubt as to the
legislature’s intent:

       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 date when those acts were committed. 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.

Tex. Penal Code § 21.02(d). The commission of two or more acts of sexual abuse over a
specified time period — that is, the pattern of behavior or the series of acts — is the
element as to which the jurors must be unanimous in order to convict. Therefore, section
21.02(d) does not allow jurors to convict on the basis of different elements when it
provides that “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 date when
those acts were committed.” See Casey v. State, 349 S.W.3d 825, 829 (Tex. App.—El
Paso 2011, pet. ref’d); Jacobsen, 325 S.W.3d at 737; Reckart v. State, 323 S.W.3d 588,
601 (Tex. App.—Corpus Christi 2010, pet. ref’d); Render v. State, 316 S.W.3d 846, 858
(Tex. App.—Dallas 2010, pet. ref’d); Lewis v. State, No. 02-10-00004-CR, 2011 WL
2755469, at *6 (Tex. App.—Fort Worth July 14, 2011, pet. ref’d) (mem. op., not
designated for publication); Coker v. State, No. 12-09-00331-CR, 2010 WL 5031098, at
*6 (Tex. App.—Tyler Dec. 8, 2010, no pet.) (mem. op., not designated for publication).



                                            5
       Appellant urges us to ignore these cases as wrongly decided. For support, he
relies on the legislative intent behind section 21.02 as well as cases that are
distinguishable on their facts. See Richardson v. United States, 526 U.S. 813 (1999)
(considering a federal statute with a substantially broader scope and no explicit provision
for jury unanimity); State v. Weaver, 982 S.W.2d 892 (Tex. Crim. App. 1998)
(considering section 31.09 of the Texas Penal Code, which has no explicit provision for
jury unanimity). Because we conclude that the language of section 21.02 is clear and
unambiguous, we do not consider these extra-textual factors. See Boykin, 818 S.W.2d at
785; Uyamadu, 359 S.W.3d at 758.

       Accordingly, we move to the second part of our jury unanimity analysis, and the
question becomes whether it is consistent with due process for the legislature to treat the
specific acts of sexual abuse as manner and means of committing a series of sexual
abuses. Jacobsen, 325 S.W.3d at 737; see Coker, 2010 WL 5031098, at *6. Consistent
with the guarantee of due process, the legislature may define a criminal offense in a way
that permits jurors to convict while disagreeing about the manner and means of
commission of the offense, provided the alternate manners and means of commission are
basically morally and conceptually equivalent. Schad v. Arizona, 501 U.S. 624, 644
(1991); White v. State, 208 S.W.3d 467, 469 (Tex. Crim. App. 2006); Casey, 349 S.W.3d
at 829. The alternate acts of sexual abuse listed under section 21.02(b) all are felonies
involving the actual or intended sexual abuse of a young child. We believe the alternate
acts are morally equivalent and conceptually similar, and we conclude that the legislature
has not violated due process by treating these alternate acts as manner and means under
section 21.02. See Casey, 349 S.W.3d at 829-30; Jacobsen, 325 S.W.3d at 737; Reckart,
323 S.W.3d at 600-01; Render, 316 S.W.3d at 858.

       We conclude that section 21.02 complies with the constitutional requirement of
jury unanimity, and we overrule appellant’s first issue.



                                             6
II.    Vagueness

       In his second issue, appellant complains that the trial court should have granted
his motion to quash because section 21.02 is unconstitutionally vague. Again, we review
this complaint under a de novo standard. Lawrence, 240 S.W.3d at 915; Kfouri, 312
S.W.3d at 91.

       A statute is void for vagueness if it (1) fails to give a person of ordinary
intelligence fair notice of the conduct prohibited, or (2) is so indefinite that it encourages
arbitrary and discriminatory enforcement.         Kolender v. Lawson, 461 U.S. 352, 357
(1983); Clark v. State, 665 S.W.2d 476, 482 (Tex. Crim. App. 1984) (en banc). All penal
laws must provide fair notice to a person of ordinary intelligence before making an
activity criminal.    Kfouri, 312 S.W.3d at 92.          A criminal statute need not be
mathematically precise; it need only give fair warning in light of common understanding
and practices. Id. A statute is unconstitutionally vague only when no core of prohibited
activity is defined. Id. A statute also must be sufficiently definite to avoid the possibility
of arbitrary and erratic arrests and convictions. Id.

       In determining whether a statute is unconstitutionally vague, we interpret the
statute in accordance with the plain meaning of its language unless the language is
ambiguous or the plain meaning leads to an absurd result. Sanchez v. State, 995 S.W.2d
677, 683 (Tex. Crim. App. 1999); Kfouri, 312 S.W.3d at 92. “Words and phrases shall be
read in context and construed according to rules of grammar and usage.” Tex. Gov’t
Code Ann. § 311.011(a) (Vernon 2005); see Texas Penal Code Ann. § 1.05(b) (Vernon
2010) (making section 311.011 applicable to the Texas Penal Code).

       When a vagueness challenge involves First Amendment concerns, the statute may
be held facially invalid even though it may not be unconstitutional as applied to the
defendant’s conduct. Long v. State, 931 S.W.2d 285, 288 (Tex. Crim. App. 1996) (en
banc); Kfouri, 312 S.W.3d at 92. But when — as here — no First Amendment rights are
involved, we need only examine the statute as applied to the defendant’s specific

                                              7
conduct. Bynum v. State, 767 S.W.2d 769, 779 (Tex. Crim. App. 1989) (en banc);
Kfouri, 312 S.W.3d at 92. Because appellant does not raise First Amendment concerns,
he bears the burden of establishing that section 21.02 is unconstitutional as applied to this
case. See Bynum, 767 S.W.2d at 774; Kfouri, 312 S.W.3d at 92. It is not enough for
appellant to contend that section 21.02 might be unconstitutional as applied to others.
See Bynum, 767 S.W.2d at 774; Kfouri, 312 S.W.3d at 92.

       Appellant argues that section 21.02 is unconstitutionally vague because the statute
(1) enhances the punishment for every multiple offender no matter how much time has
passed between the first and last offense; and (2) grants prosecutors unfettered discretion
in their charging decisions.

       Appellant first argues that section 21.02 is unclear because it could apply to those
whose continuous sexual abuse of a child under the age of 14 ended well short of the
statutory 30-day period: “Stretched to its most absurd, this statute allows a prosecutor to
charge and convict an offender who commits two sexual assaults on the same day
because those two events occurred ‘during a period of 30 days or more in duration.’”
The indictment specifically alleges that appellant committed two or more acts of sexual
abuse against a child under the age of 14 between the dates of October 1, 2007 and
November 21, 2008. Section 21.02 clearly prohibits an individual from continuously
sexually abusing a child under the age of 14 for a period of more than 30 days.2 Whether
section 21.02 also prohibits multiple acts of sexual abuse committed over a shorter period
has no bearing on the validity of the indictment at issue here. See Bynum, 767 S.W.2d at
774; Kfouri, 312 S.W.3d at 93.

       Appellant next argues that section 21.02 does not establish a standard for
prosecutors to employ when determining whether to charge an offender under section
21.02 or to charge the offender with separate acts of sexual abuse of a young child. We

       2
          Appellant concedes this in his brief: “For example, an offender who commits an offense on day
1 and then again on day 30—the offender the Legislature was intending to punish more severely—clearly
falls within the statute.”
                                                  8
disagree.      Section 21.02 prohibits a pattern of abuse unaddressed by the statutes
prohibiting the individual acts of sexual abuse of a child. See Casey, 349 S.W.3d at 829;
Jacobsen, 325 S.W.3d at 737; Reckart, 323 S.W.3d at 601; Render, 316 S.W.3d at 858;
Lewis, 2011 WL 2755469 at *6; Coker v. State, 2010 WL 5031098 at *6. Section 21.02
adequately details the prohibited conduct to the extent that enforcement of the statute is
not relegated to the subjective interpretation of law enforcement personnel. The language
of section 21.02 provides sufficient guidance to law enforcement personnel that it is not
so indefinite that it encourages arbitrary and discriminatory enforcement. See Bynum,
767 S.W.2d at 775; Kfouri, 312 S.W.3d at 94.

       We conclude that section 21.02 is not unconstitutionally vague as applied to
appellant in this case, and we overrule his second issue.

                                           CONCLUSION

       We affirm the trial court’s judgment.




                                                 /s/       William J. Boyce
                                                           Justice



Panel consists of Justices Boyce and McCally and Senior Justice Mirabal.3
Publish — Tex. R. App. P. 47.2(b).




       3
           Senior Justice Margaret Garner Mirabal sitting by assignment.
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