                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00496-CR


RICHARD SCOTT SHAFER                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


                                     ----------

          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                         MEMORANDUM OPINION1
                                     ----------

                                   Introduction

      A jury found Appellant Richard Scott Shafer guilty of continuous sexual

abuse of a child, aggravated sexual assault of a child, and indecency with a child,

and assessed his punishment at thirty, ten, and ten years‘ confinement,

respectively, with the two ten-year sentences probated. The trial court sentenced

Appellant accordingly, ordering the sentences to run consecutively. In two points

      1
       See Tex. R. App. P. 47.4.
on appeal, Appellant asks us to declare a portion of the continuous sexual abuse

statute unconstitutional and to hold that the trial court violated Appellant‘s

constitutional right to confront witnesses against him by excluding hearsay he

offered to impeach the complainant‘s mother. We affirm.

              Constitutional Complaint in Charge-Claim Clothing

      In Appellant‘s first point he asserts that the trial court‘s guilt-innocence

charge on continuous sexual abuse erroneously tracked section 21.02(d) of the

penal code, which provides in pertinent part, that

      [M]embers 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 Ann. § 21.02(d) (West 2011). The court‘s charge instructed the

jury that with regard to the continuous sexual abuse count that

      [M]embers of the jury are not required to agree unanimously on
      which specific acts of sexual abuse were committed, if any, by the
      defendant or the exact date those acts, if any, 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, if any were committed.

      Appellant objected to this paragraph on the grounds ―that the jury should

be instructed that they should agree unanimously on specific acts, if any.‖ And

when the trial court pointed out that the paragraph tracked the statute, Appellant

persisted: ―We still object.‖




                                         2
           Jury charge complaints need not be preserved with an objection. Whether

a defendant objects to the charge has no effect, therefore, on whether his

complaint is preserved; rather it simply determines which harm analysis a

reviewing court undertakes should the court uncover an error in the charge.

Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994); Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh=g); see Tex. Code

Crim. Proc. Ann. art. 36.19 (West 2006); Hutch v. State, 922 S.W.2d 166, 171

(Tex. Crim. App. 1996); see also Sakil v. State, 287 S.W.3d 23, 25–26 (Tex.

Crim. App. 2009); Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009).

           Constitutional challenges to a statute, however, do not enjoy this

exemption from preservation requirements and, 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‖).       And a defendant may not raise for the first time on appeal a facial

challenge to the constitutionality of a statute. Karenev v. State, 281 S.W.3d 428,

434 (Tex. Crim. App. 2009).2


           2
       The State has not argued that Appellant failed to preserve his claim for
review. Preservation of error, however, is a systemic requirement that this court

                                            3
      Appellant drapes his complaint in a jury-charge-error claim3 through which

is plainly visible a bare challenge to the constitutionality of section 21.02(d). In

the first line of Appellant‘s ―Argument and Authorities‖ he promises to

―demonstrate that the statute‖ violates ―Article 5, Section 13 and Article 1,

Section 19 of the Texas Constitution and the 5th and 14th Amendments of the

United States Constitution.‖

      The remainder of his argument section follows this premise, purports to

keep the promise, and harmonizes with all that precedes it except the heading

about the trial court erring in overruling the objection to the charge. Appellant

admits that section 21.02(d) ―is the source‖ of his complaint. He distinguishes a

United States Supreme Court case which he says upheld a challenge to

Arizona‘s murder statute and jury instructions that did not require unanimity on

mental states. He acknowledges cases from our sister courts—Martin v. State,

335 S.W.3d 867 (Tex. App.—Austin 2011, pet. ref‘d); Jacobsen v. State, 325

S.W.3d 733 (Tex. App.—Austin 2010); and Render v. State, 316 S.W.3d 846

(Tex. App.—Dallas 2010, pet. ref‘d), cert. denied, 131 S. Ct. 1533 (2011)—all of

which rejected challenges to the statute; but he argues that these cases were



should review on its own motion. Wilson v. State, 311 S.W.3d 452, 473–74 (Tex.
Crim. App. 2010) (op. on reh‘g); Ford v. State, 305 S.W.3d 530, 532–33 (Tex.
Crim. App. 2009).
      3
     Appellant frames his issue under his first point, ―TRIAL COURT ERRED
IN OVERRULING OBJECTION TO CHARGE FOR FAILURE TO REQUIRE
UNANIMITY.‖


                                         4
―wrongly decided and should be reexamined under the Constitutional lens.‖ 4 He

invites us to follow a Hawaii court‘s holding that juror unanimity is constitutionally

required, and he closes by imploring that we declare section 21.02(d) offensive to

due process and due course of law provisions of the United States and Texas

constitutions,   respectively,   as   well       as   those   constitutions‘   unanimity

requirements.

      Having read Appellant‘s argument in his first point, we are not persuaded

that it is actually a claim of jury-charge error. See Estrada v. State, 313 S.W.3d

274, 305–06 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 905 (2011). Rather,

we see it as a plain challenge to the constitutionality of section 21.02(d) of the

penal code.

      As such, the claim does not evade the rules of error preservation.

Although Appellant orally moved to quash the continuous sex abuse count on the

day of trial, he did not assert that the count should be quashed because the

statute is unconstitutional.5 Nor did he file a motion for new trial. Nor, when he

      4
        We have previously viewed this issue under a constitutional lens, and in
an unpublished opinion, have held that section 21.02 does not violate any
constitutional requirements for juror unanimity. 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). Had Appellant preserved his claim
that the statute is constitutionally infirm, he has not convinced us that we and our
sister courts that have decided similar claims have done so incorrectly.
      5
        Appellant moved to quash the count because it alleged that on or about a
particular date he committed two acts thirty days apart and did not allege a
specific offense. We do not equate these assertions with a challenge to the
constitutionality of a statute.


                                             5
objected to the charge did he inform the trial court that he believed the statute

constitutionally infirm.6 Accordingly, because Appellant did not assert before the

trial court any constitutional infirmity within the statute, we hold that Appellant has

forfeited his claim for review and we overrule his first point. See Karenev, 281

S.W.3d at 434; Flores, 245 S.W.3d at 437 n.14; Curry, 910 S.W.2d at 496;

Carmell v. State, 331 S.W.3d 450, 460 (Tex. App.—Fort Worth 2010, pet. ref‘d),

cert. denied, 132 S. Ct. 409 (2011).

              Does the Confrontation Clause Require Admission
                          of Multi-Level Hearsay?

      In his second point, Appellant complains that the trial court did not let him

impeach the complainant and her mother with hearsay.

      The eleven-year-old complainant testified that over a course of years from

the time she was seven, Appellant would set her astride him and penetrate her

sexual organ with his. The complainant‘s mother testified that the complainant

outcried to her when the complainant was ten years old after the mother and

Appellant had finally separated and when the complainant was assured that he

would not be returning.

      Appellant made an offer of proof through his second wife, Jennifer

Dennison, that, around 2005, someone from child protective services (CPS),

whom she could not name, telephoned her to inform her that allegations had


      6
        In his objection to the charge Appellant reiterated the assertions made in
his oral motion to quash.


                                          6
been made that Dennison, Dennison‘s daughter, and Appellant had molested the

complainant. According to Dennison, this unnamed person said that she had

interviewed all of the involved children and that no child had made an outcry.

Dennison also testified that the worker would neither confirm nor deny that the

complainant‘s mother had made the allegations but suggested that she may have

been upset about her divorce from Appellant. Appellant and the State agreed

that nothing in the CPS records supplied by the State to Appellant under court

order supported Dennison‘s proffer. The trial court sustained the State‘s hearsay

and relevancy objections and excluded the testimony.

      Appellant made a second proffer through his own testimony that

essentially corroborated Dennison‘s. The trial court stood by its original ruling

and did not allow this testimony in either.

      We review the trial court‘s decision to exclude evidence under an abuse of

discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App.

2010); Lozano v. State, ___S.W.3d___, No. 02-09-00296-CR, 2012 WL 254103,

at *24 (Tex. App.—Fort Worth Jan. 26, 2012, no pet.). The trial court does not

abuse its discretion unless its determination lies outside the zone of reasonable

disagreement. Martinez, 327 S.W.3d at 736.

      Appellant contends that the trial court abused its discretion because its

ruling violated his right to confront witnesses as guaranteed by the Sixth and

Fourteenth Amendments of the United States Constitution and Article I, Section

10 of the Texas constitution.


                                          7
      The unnamed declarant‘s statement that someone had made child-

molestation allegations against Dennison, her daughter, and Appellant is

inadmissible hearsay because it is an out-of-court-statement offered for the truth

of the matter asserted; that is, that someone made child-abuse allegations

against Dennison and her family to CPS. See Tex. R. Evid. 801, 802. Moreover,

it is hearsay of more than one level. At the first level is a statement from an

unknown source to the effect that someone molested a child. At the second level

is the unknown CPS worker‘s relaying this unsourced statement to Dennison

through the worker‘s statement indicating that someone had brought allegations

of molestation.

      Appellant did not argue before the trial court and does not argue now that

any hearsay exception applies, much less that an exception applies at each level

of hearsay. Essentially, his argument is that the Confrontation Clause trumps the

rules of evidence and requires the admission of multiple hearsay in the case

before us.

      It is ironic that Appellant‘s position invokes a clause created to bar hearsay

to now allow it. But as we do not rely on literary devices to decide if a position

has merit, to determine whether there is any merit to Appellant‘s position we turn

to the cases he cites as support.

      He first cites Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105 (1974). In that

case, the Supreme Court took up the issue whether the Confrontation Clause

requires that a defendant in a criminal case be allowed to impeach the credibility


                                         8
of a prosecution witness by cross-examination directed at possible bias deriving

from the witness‘s probationary status as a juvenile delinquent when such

impeachment would conflict with a State‘s asserted interest in preserving the

confidentiality of juvenile adjudications of delinquency. Id. at 309, 94 S. Ct. at

1107. Noting that the cases construing the Confrontation Clause hold that a

primary interest it secures is the right of cross-examination, Id. at 315, 94 S. Ct.

at 1110 (citing Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 1076

(1965)), the Davis court held that in the circumstances of that case, the Sixth and

Fourteenth Amendments conferred the right to cross-examine a particular

prosecution witness about his delinquency adjudication for burglary and his

status as a probationer. Id. at 321, 94 S. Ct. at 1112 (Stewart, J., concurring).

Here, the issue is not whether the trial court prevented Appellant‘s cross-

examination of a witness with a juvenile rap sheet; Appellant thoroughly cross-

examined the complainant and her mother, and he has not argued that Davis is,

nor do we read it as, a license for the admission of anonymous hearsay during

direct examination of a witness for the defense.

      Appellant next acknowledges that rule 608(b) of the Texas Rules of

Evidence prohibits evidence of specific acts to impeach a witness. Citing Carroll

v. State, 916 S.W.2d 494, 501 (Tex. Crim. App. 1996), however, he argues that

despite this rule of evidence, there are circumstances where evidentiary rules of

evidence must give way to constitutional considerations. In Carroll, the court of

criminal appeals held that a trial court abused its discretion by preventing the


                                         9
defendant from cross-examining a State‘s witness about pending criminal

charges. Id. at 500. The court also observed that in the event of a conflict

between the rules of evidence and the constitutional right of confrontation, the

latter would prevail.   Id. at 501.    Although we cannot deny that the rules of

evidence must at times give way to the Confrontation Clause, Appellant does not

explain to us how this is one of those times. Moreover, as with Davis, we do not

read Carroll to stand for the proposition that the Confrontation Clause mandates

the admission of anonymous hearsay through direct examination of a witness for

the defense.

      Appellant quotes the following passage from Billodeau v. State, 277

S.W.3d 34, 42–43 (Tex. Crim. App. 2009) (quoting London v. State, 739 S.W.2d

842, 846 (Tex. Crim. App. 1987)):

      The possible animus, motive, or ill will of a prosecution witness who
      testifies against the defendant is never . . . collateral or irrelevant . . .
      and the defendant is entitled, subject to reasonable restrictions, to
      show any relevant fact that might tend to establish ill feeling, bias,
      motive, interest, or animus on the part of any witness testifying
      against him.

Id.

      As discussed below, the evidence Appellant sought to admit had no

probative value to impeach the credibility of the complainant or her mother in this

case. Moreover, Appellant has not shown us how the rules prohibiting hearsay

are not ―reasonable restrictions‖ on a defendant‘s entitlement to show facts

tending to establish bias on the part of a complaining witness. See id.



                                           10
      Finally, Appellant also cites Lopez v. State, 18 S.W.3d 220, 225 (Tex.

Crim. App. 2000), for the proposition that in a case involving a typical ―swearing

match‖ between a complainant and a defendant, the need to impeach the

complainant with evidence that may otherwise violate rule 608(b) is ―heightened.‖

Rudolfo Lopez was convicted of aggravated sexual assault of a child and

indecency with a child.        Id. at 221.    During trial, the defense attempted to

introduce evidence that the complainant had previously accused his mother of

physical abuse. Id. at 222. The court of appeals reversed, holding that the

Confrontation Clause demands that the evidence should have been admitted. Id.

In reversing the court of appeals, the court of criminal appeals held that despite

the ―heightened need‖ to impeach the complainant‘s credibility, evidence that the

complainant had once accused his mother of physical abuse would not have

achieved that goal. Id. at 225. For one thing, the court reasoned, no evidence

was offered to show that the earlier accusation was false. Id. For another, the

court noted that the allegation that the complainant‘s mother had thrown him

against a washing machine had almost nothing in common with the

complainant‘s accusing Lopez of forcing him to perform oral sex. Id. at 226. The

court held that absent proof of the falsity of the prior accusation or its similarity

with the later one, the evidence had no probative value in impeaching the

complaint‘s credibility. Id.

      Similarly, here, assuming the record demonstrates that a prior accusation

was made, it does not demonstrate that the accusation was false. Both sides


                                             11
agreed that there were no CPS records documenting the allegation. The witness

relaying the accusation could not remember who told her about it.                The

complainant‘s mother denied it, and the complainant was never asked about it.

Even if it was made, from the record it appears that the prior complained-of act

was, if anything, a possible inadvertent touching while giving the young

complainant or her siblings a bath. In contrast, the evidence against Appellant at

trial showed that he made the complainant sit astride him, held her lower back

with his hands, and made her ―swirl‖ around on him as he penetrated her with his

sexual organ. There is nothing from this evidence to indicate inadvertence or an

innocent touching such as may occur while giving a small child a bath. The two

accusations, if there were two, are sufficiently dissimilar that the trial court could

have reasonably concluded that the alleged prior accusation had no probative

value in impeaching the credibility of either the complainant or her mother.

Under these circumstances, we decline to hold that the trial court abused its

discretion by excluding the proffered testimony.          Accordingly, we overrule

Appellant‘s second point.




                                         12
                                 Conclusion

      Having overruled both of Appellant‘s points, we affirm the trial court‘s

judgment.




                                                LEE GABRIEL
                                                JUSTICE

PANEL: McCOY, MEIER, and GABRIEL, JJ.

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

DELIVERED: March 8, 2012




                                     13
