                                           COURT OF APPEALS
                                        EIGHTH DISTRICT OF TEXAS
                                             EL PASO, TEXAS


                                                           §
    WILLIE HENRY, JR.,                                                        No. 08-11-00221-CR
                                                           §
                                     Appellant,                                  Appeal from the
                                                           §
    v.                                                                    396th Judicial District Court
                                                           §
    THE STATE OF TEXAS,                                                     of Tarrant County, Texas
                                                           §
                                     Appellee.                                   (TC# 1238645R)
                                                           §


                                                   OPINION

           Willie Henry, Jr. appeals the trial court’s judgment convicting him of continuous sexual

abuse of a child and sentencing him to 40 years’ imprisonment. Henry contends that Section

21.02 of the Penal Code – the statute criminalizing continuous sexual abuse of a child and under

which he was convicted – is unconstitutional because it violates his right to a unanimous jury

verdict and denies him due process and due course of law. Henry also contends that the evidence

is insufficient to support his conviction because one of his victims failed to identify him in open

court. Concluding that the issues Henry raises have no merit, we affirm.

                           FACTUAL AND PROCEDURAL BACKGROUND

           Henry was accused of sexually abusing his two granddaughters, S.B. and S.W. The

indictment against Henry alleges that, from November 2, 2007 to November 21, 2009, during a

period of time that was 30 days or more in duration, he committed two or more acts of sexual abuse

against S.B. and S.W. when they were both younger than 14 years of age. 1 Some of the specific


1
    At the conclusion of the State’s case-in-chief, the State waived Count Two of the Indictment.
acts of sexual abuse Henry was alleged to have committed included aggravated sexual assault of

S.B. by causing her mouth to contact his penis and aggravated sexual assault of S.W. by causing

her mouth and vagina to contact his penis and by penetrating her vagina with his finger. Before

trial, Henry moved to quash the indictment on the same grounds he now raises on appeal. The

trial court denied the motion.

           S.B. and S.W. each testified at trial. S.W., then nine years old, testified that Henry

touched her vagina with his hand and penis and made her perform fellatio on him on multiple

occasions beginning when she was four years old and occurring over a period longer than one

month.2 S.B., then six years old, testified that, although she did not know the length of a month

and could not state with certainty when the following occurred, when she was five years old,

Henry touched her vagina with his hand and made her touch his penis on separate occasions and

made her perform fellatio on him on multiple occasions. When asked if she saw Henry in the

courtroom, S.B. testified that she did not.

           At the charge conference, Henry objected to the omission in the charge of an instruction

“that the jury must agree unanimously on which specific acts of sexual abuse were committed . . .”

and to the inclusion in the charge of an instruction “that the members of the jury are not required to

agree unanimously on which specific acts of sexual abuse . . . were committed . . . .”3 The trial

court overruled Henry’s objections.

               CONSTITUTIONALITY OF SECTION 21.02 OF THE PENAL CODE

           Henry raises three issues on appeal. In his first and second issues, Henry argues that the


2
  S.W. also testified that Henry touched her vagina with his mouth on multiple occasions. She did not, however,
testify that these acts occurred over a period longer than one month.
3
    Henry also raised other objections to the charge, but they play no part in this appeal.
                                                             2
trial court erred by denying his motion to quash the indictment and by overruling his objection to

the charge because Section 21.02 violates his constitutional right to a unanimous jury verdict and

denies him due process and due course of law.             See U.S. CONST. amend V, VI, XIV;

TEX.CONST. art I, § 19, art. V, § 13. Specifically, Henry contends that Section 21.02 violates

those constitutional guarantees because it permits jurors to convict even if they do not agree

unanimously on which specific acts of sexual abuse the defendant committed. Henry argues

further that, under Section 21.02, the specific acts of sexual abuse the defendant commits are

factual “elements” of the offense, not merely the “manner and means” by which the offense is

committed, and that, consequently, these acts must be found unanimously. We disagree.

                                         Standard of Review

       We review the constitutionality of a statute de novo. Esparza v. State, 282 S.W.3d 913,

921 (Tex.Crim.App. 2009). In the absence of evidence to the contrary, we have a duty to construe

a statute in a way that renders it constitutional.         Rodriguez v. State, 93 S.W.3d 60, 69

(Tex.Crim.App. 2002). There is strong presumption supporting the constitutionality of statutes,

and the party challenging the validity of a statute has the burden to establish its unconstitutionality.

Id.

                                           Applicable Law

       Under Section 21.02, a “person commits an offense if 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. . . . .” TEX.PENAL CODE ANN.

§ 21.02(b)(West Supp. 2012). The statute also requires that the actor be 17 years of age or older




                                                   3
and the victim or victims be younger than 14 years of age. Id.4 By its very terms, the statute

provides that when the jury is the trier of fact, its members “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.” TEX.PENAL CODE ANN. § 21.02(d). Jurors, however, “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.

           The Texas Constitution requires juror unanimity in felony cases. See Young v. State, 341

S.W.3d 417, 422 (Tex.Crim.App. 2011); TEX.CONST. art V, § 13. The requirement of juror

unanimity applies to each element of an offense, but not to the manner and means by which the

elements of the offense are accomplished.                       Jefferson v. State, 189 S.W.3d 305, 311

(Tex.Crim.App. 2006). Consistent with due-process guarantees, 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 that offense, provided the alternate manners and means of commission

are basically equivalent morally and conceptually.                     Casey v. State, 349 S.W.3d 825, 829

(Tex.App.--El Paso 2011, pet. ref’d), citing White v. State, 208 S.W.3d 467, 469 (Tex.Crim.App.

2006) and Jefferson, 189 S.W.3d at 313-14.



4
    In its entirety, Section 21.02(b) reads:

           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 of sexual abuse 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)(West Supp. 2012).

                                                            4
                                                       Discussion

           The various acts of sexual abuse listed in Section 21.02(c) are not elements of the crime of

continuous sexual abuse of a child, but are merely the means by or the manner in which one

commits the offense.5 Accordingly, Section 21.02 does not violate a defendant’s constitutional

right to a unanimous jury verdict. As this Court and other courts of appeal have recognized, the

specific actus reus of the offense is the continuous course of conduct – the pattern of sexual

assaults encompassing the individual acts of sexual conduct – rather than each individual act. See

Casey, 349 S.W.3d at 829; Jacobsen v. State, 325 S.W.3d 733, 736-37 (Tex.App.--Austin 2010, no

pet.); Reckart v. State, 323 S.W.3d 588, 600-01 (Tex.App.--Corpus Christi 2010, pet. ref’d);

Render v. State, 316 S.W.3d 846, 857-58 (Tex.App.--Dallas 2010, pet. ref’d). It is the continuous

course of sexual abuse, as demonstrated by two or more acts in violation of one or more of the

statutes referred to in Section 21.02(c) during a period of 30 days or more, that establishes that the

offense has been committed. The specific acts of sexual abuse enumerated in Section 21.02(c)

are merely the underlying evidentiary facts necessary to establish that the defendant committed the


5
    In its entirety, Section 21.02(c) reads:

           For purposes of this section, ‘act of sexual abuse’ means any act that is a violation of one or more of
           the following penal laws:

               (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;
               (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); and
               (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).

TEX.PENAL CODE ANN. § 21.02(c)(West Supp. 2012).
                                                             5
requisite number of acts. Jacobsen, 325 S.W.3d at 736-37. Indeed, the language of Section

21.02 itself suggests that the requisite number of acts do not constitute elements of the offense.

Section 21.02 does not criminalize the underlying acts, but rather, incorporates the other statutes

merely to define the acts that make up the continuous course of sexual abuse prohibited by the

statute. Requiring unanimity on the precise manner in which the acts were committed is therefore

irrelevant so long as the jurors unanimously agree that the defendant committed the requisite

number of acts over the specified time. If the jurors so agree, a defendant’s constitutional right to

a unanimous jury verdict is protected, even if the jurors disagree on which specific acts of abuse

the defendant committed. See Casey, 349 S.W.3d at 829; Jacobsen, 325 S.W.3d at 739; Reckart,

323 S.W.3d at 600-01; Render, 316 S.W.3d at 857-58.

       Section 21.02 likewise does not deny a defendant due process and due course of law. In

Section 21.02, the alternate manners and means of commission of the offense, i.e., the various acts

of sexual abuse enumerated in Section 21.02(c), all involve actual or intended sexual abuse of a

child, all are felonies, all are morally equivalent, and all are conceptually similar. Casey, 349

S.W.3d at 829. In light of the foregoing, Section 21.02 does not deny due process and due course

of law simply because it permits jurors to convict while disagreeing on the manner and means of

commission of the offense. Id. at 829-30, citing Jacobsen, 325 S.W.3d at 739.

       Henry argues that the decisions upholding unanimity challenges to Section 21.02 “have

been wrongly decided and should be reexamined under the Constitutional lens.” In support of his

argument, Henry cites Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d

985 (1999) and State v. Rabago, 103 Hawaii 236, 81 P.3d 1151 (2003). Henry’s reliance on these

cases for his argument that Section 21.02 is unconstitutional is misplaced.


                                                 6
        Richardson is not only distinguishable from this case but also compatible with our

conclusion that Section 21.02 does not violate the Texas constitutional requirement of jury

unanimity. In Richardson, the Supreme Court held that, in order to convict a defendant under the

federal continuing criminal enterprise drug statute, a jury must agree unanimously on the specific,

underlying drug code violations that comprise the “continuing criminal enterprise.” 526 U.S. at

815, 119 S.Ct. at 1709. The Court so held for two reasons. First, the Court reasoned that because

the statute did not explicitly reveal whether the individual violations are an element or a means –

the former, but not the latter, requiring juror unanimity – it was necessary to engage in a statutory

interpretation analysis. Id. at 818, 119 S.Ct. at 1710. After construing the statutory language,

the Court concluded that Congress had intended each violation to be treated as an element of the

offense. Id. at 818-19, 119 S.Ct. at 1710-11. Second, the Court also reasoned that the potential

unfairness created by the breadth of the term “violation” to encompass approximately 90 predicate

drug crimes involving “many different kinds of behavior of varying degrees of seriousness,”

required jury unanimity as to each individual violation. Id. at 819-20, 824, 119 S.Ct. at 1711,

1713.

        Unlike the federal statute in Richardson, the statute here is not susceptible to different

interpretations on the jury unanimity question. Section 21.02(d) clearly states that jurors “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,” but “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). Thus, in contrast to the statute in

Richardson, Section 21.02 explicitly makes known whether the individual act is an element or a


                                                 7
means. Under Section 21.02(d), the specific, individual acts comprising the requisite number of

predicate acts for purposes of Section 21.02(b) clearly constitute the underlying means rather than

the elements of the offense on which the jury must agree unanimously. Section 21.02 singularly

prohibits “continuous sexual abuse of a child” and, therefore, essentially creates a single element, a

series, in respect to which individual violations are but the means. Accordingly, in prosecutions

under Section 21.02, the jury need only agree that the defendant committed at least two of all the

underlying crimes the State attempts to prove.

       In addition, Section 21.02 does not give rise to similar concerns about statutory breadth and

potential unfairness expressed in Richardson. Because the statute in Richardson encompassed

approximately 90 predicate drug crimes that were not all morally equivalent or conceptually

similar, the risk of dispensing with unanimity on the predicate acts was too great. By contrast, the

predicate acts in Section 21.02 are sufficiently equivalent to justify the Legislature’s decision to

dispense with unanimity on the predicate acts. The lack of jury unanimity regarding the specific

acts constituting the required minimum of two sexual abuse acts raises no concern about

fundamental fairness given the circumstances.

       Like Richardson, Rabago is also distinguishable from this case, so much so that its

reasoning is inapplicable in this case. In Rabago, the Hawaii Supreme Court struck down a

statute similar to Section 21.02. 103 Hawaii 236, 81 P.3d 1151 (2003). The Court did so based

on its conclusion that the behavior proscribed by the statute did not constitute a “continuing

offenses,” but rather “several distinct acts.” 81 P.3d at 1162-63. As defined by the Court, a

“continuing offense” is “a continuous, unlawful act or series of acts set on foot by a single impulse

and operated by an unintermittent force, however long a time it may occupy[, or] an offense which


                                                  8
continues day by day[, or] a breach of the criminal law, not terminated by a single act or fact, but

subsisting for a definite period and intended to cover or apply to successive similar obligations or

occurrences.” Rabago, 81 P.3d at 1162-63. According to the Court, the distinction between a

continuing offense or several distinct acts turns on “whether the evidence discloses one general

intent or discloses separate and distinct intents[;] [i]f there is but one intention, one general

impulse, and one plan, there is but one offense.” Id. at 1163. Relying on these principles, the

Court held that the statute’s requirement of three or more acts of sexual penetration or sexual

contact, when combined with the attendant circumstance of “over a period of time,” “necessarily

entails multiple impulses and the operation of intermittent forces and thus deviates from the

construct of ‘continuing offenses.’” Id. at 1167.

       As noted above, the Court’s conclusion in Rabago hinges on its definition of what

constitutes a continuous course of conduct, not on the constitutional claims made by Henry in this

case. On that basis alone, Rabago is distinguishable. Rabago is also distinguishable on another

basis. Although the definition of continuous course of conduct in Rabago is questionable, we

would, unlike the Hawaii court, conclude that the conduct prohibited by Section 21.02 clearly fits

within that definition. The record here establishes that Henry’s actions, in the words of that court,

were driven by “‘one intention, one general impulse, and one plan’” – to molest his

granddaughters. Rabago, 81 P.3d at 1163. Henry’s acts therefore constituted a continuous

course of conduct under Section 21.02.

       In sum, the various acts of sexual abuse enumerated in Section 21.02(c) are not elements of

the crime of continuous sexual abuse of a child, but are merely the means by or the manner in

which one commits the offense. Section 21.02 therefore does not violate the constitutional


                                                 9
requirement of jury unanimity by permitting jurors to convict even if they do not agree

unanimously on which specific acts of sexual abuse the defendant committed. Moreover, since

the acts listed in Section 21.02(c) are morally equivalent and conceptually similar, Section 21.02

does not deny a defendant due process and due course of law simply because it permits jurors to

convict while disagreeing on the manner and means of commission of the offense. In view of the

foregoing, we conclude that the trial court did not err in denying Henry’s pretrial motion to quash

the indictment and his objections to the charge. Henry’s first and second issues are overruled.

                             SUFFCIENCY OF THE EVIDENCE

       By his third and final issue, Henry contends that the evidence is insufficient to sustain his

conviction as to S.B. because she testified that she did not see her perpetrator in the courtroom.

We disagree.

                                        Standard of Review

       In Brooks v. State, the Court of Criminal Appeals abandoned factual sufficiency review in

those cases where the burden of proof is beyond a reasonable doubt. Brooks v. State, 323 S.W.3d

893, 894-95 (Tex.Crim.App. 2010)(finding no meaningful distinction between the legal and

factual sufficiency standards and no justification for retaining both standards, therefore overruling

the factual sufficiency review adopted in Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.

1996)). The legal sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court applies in

determining whether the evidence is sufficient to support a conviction. Brooks, 323 S.W.3d at

894-95. Therefore, we will review the evidence under the Jackson legal sufficiency standard and

determine whether the evidence is sufficient to support the challenged elements beyond a


                                                 10
reasonable doubt. See id., citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

       When reviewing the sufficiency of the evidence to support a criminal conviction, we view

the evidence in the light most favorable to the verdict to determine whether, based on that evidence

and reasonable inferences therefrom, a rational juror could have found the essential elements of the

offense beyond a reasonable doubt. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007),

quoting Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. Under a legal sufficiency review, we

may not substitute our judgment for that of the jury, who is the exclusive judge of the facts, the

credibility of the witnesses, and the weight to be given to the evidence. Williams v. State, 235

S.W.3d 742, 750 (Tex.Crim.App. 2007). We therefore defer to the jury’s resolution of these

issues and to its responsibility to draw reasonable inferences from basic facts to ultimate facts.

Hooper, 214 S.W.3d at 13, citing Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. In resolving

what the facts are and what reasonable inferences may be drawn from them, the jury may accept

one version of the facts and reject another, and it may reject any part of a witness’s testimony, even

if uncontradicted. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000), overruled

on other grounds, Laster v. State, 275 S.W.3d 512 (Tex.Crim.App. 2009); Henderson v. State, 29

S.W.3d 616, 623 (Tex.App.--Houston [1st Dist.] 2000, pet. ref’d).

                                          Applicable Law

       The State bears the burden of proving that the accused is the person who committed the

charged offense. See Phillips v. State, 164 Tex.Crim. 78, 297 S.W.2d 134, 135 (Tex.Crim.App.

1957). The identity of the accused may be proved by direct or circumstantial evidence. See

Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App. 1986); Martin v. State, 246 S.W.3d 246, 261

(Tex.App.--Houston [14th Dist.] 2007, no pet.). Proving the identity of the accused in open court


                                                 11
is not required if other evidence establishes the accused’s culpability. See Conyers v. State, 864

S.W.2d 739, 740 (Tex.App.--Houston [14th Dist.] 1993, pet. ref’d). That a witness cannot

establish the accused’s identity in open court is merely a factor for the jury to consider when

assessing the weight and credibility of the witness’s testimony. Meeks v. State, 897 S.W.2d 950,

954-55 (Tex.App.--Fort Worth 1995, no pet.).

                                            Discussion

       When viewed in the light most favorable to the verdict, the evidence adduced at trial

concerning the identification of the perpetrator was sufficient to prove that Henry sexually abused

S.B. Although S.B. testified that she did not see her perpetrator in the courtroom, she identified

“Willie Henry,” “papa,” and “Peter” as her abuser. As testified to by S.B. and other witnesses,

including S.W., these were names by which Henry was known to people. In addition, even

though S.B. did not identify Henry in open court, she identified him in a photograph shown to her

at trial. Furthermore, S.W. and S.W.’s and S.B.’s mother each identified Henry in open court.

This evidence was sufficiently probative of Henry’s identity as S.B.’s abuser notwithstanding

S.B.’s failure to point to him in open court, and S.B.’s failure to do so was merely a factor for the

jury to consider when assessing the weight and credibility of her testimony. That the jury found

Henry guilty of sexually abusing S.B. establishes that the jurors believed beyond a reasonable

doubt that Henry was S.B.’s abuser. Henry’s third issue is overruled.



                                         CONCLUSION

       Having overruled all three of Henry’s issues, we affirm the trial court’s judgment.




                                                 12
January 16, 2013                             ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J. (Not Participating)

(Do Not Publish)




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