                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                             NO. 02-15-00315-CR


DANIEL GARCIA                                                   APPELLANT

                                      V.

THE STATE OF TEXAS                                                    STATE


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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
                   TRIAL COURT NO. 1385098D

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                          MEMORANDUM OPINION1

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     In four points, Appellant Daniel Garcia appeals his conviction for

continuous sexual abuse of a child. See Tex. Penal Code Ann. § 21.02(b) (West

Supp. 2016). We affirm.




     1
      See Tex. R. App. P. 47.4.
                                  Background

      Audrey,2 who was twelve at the time of trial, did not meet her father,

Appellant, until her seventh birthday in October 2009, after her mother located

him on Facebook.3 Initially, Audrey enjoyed going to Appellant’s home because

he had two dogs and several cats that she liked to play with. But that changed

when, shortly after she met Appellant,4 he started to touch Audrey

inappropriately. Audrey testified that Appellant would touch and lick her “private

areas”5 and make her watch “inappropriate videos” while he did so. She testified

that, over the next four years, Appellant rubbed his private parts on hers, put his

finger in her private areas, held her down and put his private part in her private

area and in the part “where [she] poop[s] from,” and put his tongue in “the part

where [she] poop[s] from.” Appellant also tried to get Audrey to put her mouth

and hands on his penis, and he masturbated in front of Audrey and ejaculated




      2
       We use an alias to protect the victim’s anonymity. See McClendon v.
State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
      3
        Audrey’s mother testified that when Audrey became curious about her
father, she began looking for him, found him, and set up a meeting between the
two.
      4
       Audrey testified that it may have been as early as a few weeks after they
met, but no longer than six months.
      5
       Audrey testified that “private part” or “private area” meant her vagina or
Appellant’s penis.


                                        2
onto her stomach. Audrey testified that it hurt and that the abuse happened

every time she went to his house.6

      Audrey testified that she “was too scared to say anything” because

Appellant had told her not to. But in January 2014, when Audrey was eleven

years old, Audrey’s mother asked Audrey if anyone had touched her because

Audrey was having a problem with itching in her private area. Audrey told her

mother about the abuse. The next day, Audrey’s mother reported the abuse to

the police and took Audrey to Cook Children’s Hospital.         Audrey was later

interviewed by a forensic interviewer with Alliance for Children and examined by

a Sexual Assault Nurse Examiner.

      In October 2014, Appellant was charged with eleven counts of continuous

sexual abuse of Audrey. Appellant filed a motion to quash the indictment on the

basis that section 21.02 of the penal code, the statute supporting his charge, was

facially unconstitutional in violating the requirement of jury unanimity. The trial

court denied the motion to quash.

      A jury found Appellant guilty of continuous sexual assault of a child, and he

was sentenced to life in prison.




      6
       Audrey also testified that she saw Appellant “take empty cans like from
Sprite or Coke and put spray paint in it and inhale the air from inside” and that
Appellant told her he did that to get high.


                                        3
                                     Discussion

I. Denial of motion to quash

      In his first point, Appellant argues that the trial court erred when it denied

his motion to quash the indictment on the ground that section 21.02 of the penal

code is facially unconstitutional.

      We review a trial court’s ruling on a motion to quash an indictment de novo

because the sufficiency of a charging instrument is a question of law. State v.

Rosseau, 396 S.W.3d 550, 555 n.6 (Tex. Crim. App. 2013). In order to prevail on

a facial challenge to a statute, a party must establish that the statute always

operates unconstitutionally in all possible circumstances. Id. at 557.

      Section 21.02 provides that a person commits the offense of continuous

sexual abuse of a child if, during a period that is more than 30 days in duration,

the person is 17 years of age or older and commits two or more acts of sexual

abuse, and the victim is a child younger than 14.         Tex. Penal Code Ann.

§ 21.02(b). “Acts of sexual abuse” include indecency with a child, sexual assault,

and aggravated sexual assault. Id. § 21.02(c)(2)–(4). The statute also 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.” Id. § 21.02(d).




                                         4
      Texas courts, including this court, have upheld section 21.02’s federal and

state constitutionality and definitively ruled against Appellant’s position.7

See Holton v. State, 487 S.W.3d 600, 606–08 (Tex. App.—El Paso 2015, no

pet.); Pollock v. State, 405 S.W.3d 396, 405 (Tex. App.—Fort Worth 2013, no

pet.); 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, 857–58 (Tex. App.—Dallas 2010,

pet. ref'd), cert. denied, 562 U.S. 1243 (2011); see also Macintosh v. State, No.

02-13-00059-CR, 2014 WL 1087926, at *2 (Tex. App.—Fort Worth Mar. 20,

2014, pet. ref'd) (mem. op., not designated for publication) (collecting other

cases). We have held that while jury unanimity is required in all criminal cases in

Texas, Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011), and 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 that the “jury must unanimously find that the defendant committed

that crime in one specific way,” Landrian v. State, 268 S.W.3d 532, 535 (Tex.

Crim. App. 2008). A trial court may not submit “separate offenses” to the jury in

the disjunctive, but a trial court may submit a disjunctive jury charge and obtain a

general verdict when alternate theories or “manner and means” involve the

commission of the “same offense.” Pollock, 405 S.W.3d at 405 (quoting Clement


      7
       Appellant acknowledges in his brief that this court has previously held that
section 21.02 does not violate the requirement of jury unanimity and states that
he has raised this issue in order to preserve it for further review.


                                         5
v. State, 248 S.W.3d 791, 800 (Tex. App.—Fort Worth 2008, no pet.)).

Therefore, we have held that section 21.02 does not violate the state

constitutional right to jury unanimity because it does not allow jurors to convict on

the basis of different elements. Id.

      Appellant argues that the Texas appellate court opinions upholding the

statute are flawed because each juror could disagree as to which two acts of

abuse alleged actually occurred, “thus permitting a jury to find someone ‘probably

guilty’” of continuous sexual abuse. We do not find this argument persuasive.

As we stated in Pollock, “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.” Id. (emphasis added); see also 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) (explaining that, unlike the case of the State

charging two separate offenses in the disjunctive, section 21.02 “does not make

each act a separate element but creates a single element, a ‘series’ of sexual

abuse”) (internal citations omitted). We therefore overrule Appellant’s first point.

II. Constitutionality of code provisions imposing court costs

      In his second and third points, Appellant argues that two articles of the

code of criminal procedure, 102.020(a)(1) and 102.0186, are unconstitutional.

Article 102.020(a)(1) concerns costs related to DNA testing and requires the

payment of $250 by a defendant convicted of certain offenses. Tex. Code Crim.


                                          6
Proc. Ann. art. 102.020(a)(1) (West Supp. 2016).         Article 102.0186 concerns

costs related to certain sex-related convictions and requires the payment of $100

upon certain convictions. Id. art. 102.0186 (West Supp. 2016).

      In his brief, Appellant acknowledges that the court of criminal appeals has

held contrary to his argument in Peraza v. State, 467 S.W.3d 508, 521 (Tex.

Crim. App. 2015), cert. denied, 126 S. Ct. 1188 (2016). In Peraza, the court of

criminal appeals unanimously rejected its prior opinion in Ex parte Carson, the

case upon which Appellant principally relies, as governing the constitutionality of

court costs.   159 S.W.2d 126, 130 (Tex. Crim. App. 1942) (op. on reh’g),

overruled by Peraza, 467 S.W.3d at 517.         In doing so, the court of criminal

appeals rejected Carson’s requirement that court costs must be “necessary” and

“incidental” to the trial of a criminal case, recognizing that the criminal justice

system has greatly evolved in the 73 years since Carson was decided. Peraza,

467 S.W.3d at 517. As the court noted,

      Our legislature has developed statutorily prescribed court costs with
      the intention of reimbursing the judicial system for costs incurred in
      the administration of the criminal justice system. To require such
      costs to be “necessary” or “incidental” to the trial of a criminal case in
      order to be constitutionally valid ignores the legitimacy of costs that,
      although not necessary to, or an incidental expense of, the actual
      trial of a criminal case, may nevertheless be directly related to the
      recoupment of costs of judicial resources expended in connection
      with the prosecution of criminal cases within our criminal justice
      system.

Id. Thus, so long as a statute provides for an allocation of court costs to be

expended for “legitimate criminal justice purposes,” then the statute will not be



                                          7
held to be unconstitutional.     Id.   The court decided that allocations of funds

collected pursuant to Article 102.020 allow for such funds to be expended for

legitimate criminal justice purposes and as such do not operate as an

unconstitutional tax. Id. at 521.

      Despite Appellant’s argument that Peraza was wrongly decided, we do not

have discretion to reject the holdings of the court of criminal appeals. See State

ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App.), cert. denied,

404 U.S. 910 (1971); Crenshaw v. State, 424 S.W.3d 753, 755 (Tex. App.—Fort

Worth 2014, no pet.). We therefore overrule Appellant’s second and third points.

See Machado v. State, No. 02-15-00365-CR, 2016 WL 3962731, at *4 (Tex.

App.—Fort Worth July 21, 2016, no pet. h.) (mem. op., not designated for

publication) (rejecting facial challenge to articles 102.020 and 102.0186 and

argument that Peraza was wrongly decided).

III. Constitutionality of Appellant’s life sentence

      Appellant’s fourth point is initially broadly stated, “The sentence imposed

on Appellant is violative of the Eighth Amendment prohibition against cruel and

unusual sentences.” However, Appellant’s argument focuses on a challenge to

the trial court’s decision to overrule his objection to the jury charge on the basis

that the statutory scheme disallowing parole eligibility is facially unconstitutional.

      During the charge conference in the trial court, Appellant’s counsel lodged

a single objection to the charge:




                                           8
             Judge, we object to the charge based on the charged offense
       and the range of punishment. The range of punishment in this case
       is 25 to life without the possibility of parole. You understand, we
       understand that’s day for day.

              In comparison, the offense of murder if convicted carries a
       range of five years to 99 years or life. And it does include the
       possibility of parole after an individual has served half their
       sentence. When comparing those two, just as an example, the
       range of punishment for this offense violates the Eight Amendment
       to the US Constitution and its state analogs, and we would object to
       the charge based upon that argument.

Appellant did not object at the time he was sentenced or include his objection in

his motion for new trial.

       In his brief to this Court, Appellant refers us to his objection to the jury

charge and argues that, because the jury charge authorized a punishment “which

was more severe than that possible for a conviction for murder,” the available

punishment was disproportionate and a violation of the prohibition against cruel

and unusual punishment. Appellant further argues that the “categorical denial” of

parole   permitted      by   section   508.145(a)   of   the   government   code   is

“disproportionate to any similar sentence that could be imposed for the more

serious homicide offense of murder of a child, where the offender would be

eligible for parole.”

       We interpret Appellant’s complaint as a facial challenge to the

constitutionality of section 508.145(a) of the government code. Tex. Gov’t Code

Ann. § 508.145(a) (West Supp. 2016). At the time he made his objection to the

jury charge, section 508.145 had not been applied to his detriment. By failing to



                                           9
object to the sentence at the time it was applied at pronouncement or through his

motion for new trial, Appellant has not preserved an objection to the application

of section 508.145(a) against him—an “as applied” challenge to the

constitutionality of the statute. See, e.g., Gillenwaters v. State, 205 S.W.3d 534,

537–38 (Tex. Crim. App. 2006) (holding that appellant, who had preserved facial

challenge to statute through motion to quash indictment, had also preserved an

“as applied” challenge to statute through his motion for new trial).

      To prevail on a facial challenge to a statute, a party must establish that the

statute always operates unconstitutionally in all possible circumstances.

Rosseau, 396 S.W.3d at 557. Because of this, the court of criminal appeals has

observed that “[a] facial challenge to a statute is the most difficult challenge to

mount successfully.” Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App.

1992). In analyzing a constitutional challenge to a statute, we begin with the

presumption that the statute is valid and that the Legislature did not act arbitrarily

or unreasonably in enacting it. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim.

App. 2002). As the individual challenging the statute, it is Appellant’s burden to

establish its unconstitutionality. State ex rel Lykos v. Fine, 330 S.W.3d 904, 911

(Tex. Crim. App. 2011).

      The offense of continuous sexual abuse of a child is a felony of the first

degree, with a sentencing range of 25 to 99 years, or life. Tex. Penal Code Ann.

§ 21.02(h). Section 508.145 of the government code further provides that an

inmate serving a sentence for the offense of continuous sexual abuse of a child


                                         10
is not eligible for release on parole. Tex. Gov’t Code Ann. § 508.145(a). But

section 508.145 is not limited to life sentences, nor to the offense of continuous

sexual abuse of a child. Section 508.145(a) provides:

            An inmate under sentence of death, serving a sentence of life
      imprisonment without parole, serving a sentence for an offense
      under Section 21.02, Penal Code, or serving a sentence for an
      offense under Section 22.021, Penal Code, that is punishable under
      Subsection (f)8 of that section is not eligible for release on parole.

      Thus, in order to successfully challenge section 508.145 as facially

unconstitutional, Appellant would have to show that it is unconstitutional in its

application to an inmate serving a death sentence, an inmate serving a sentence

of life without parole, an inmate serving any sentence for continuous sexual

abuse of a child—not just a life sentence, and an inmate serving any sentence

for aggravated sexual assault of a child. See Lykos, 330 S.W.3d at 908 (“A party

raising a facial challenge to the constitutionality of a statute must demonstrate

that the statute operates unconstitutionally in all of its applications.”). Appellant

has not attempted to do that, instead limiting his argument to the situation in

which an individual receives a life sentence for continuous sexual abuse of a

child. We therefore overrule Appellant’s fourth point.




      8
       This is the offense of aggravated sexual assault committed against a
child. Tex. Penal Code Ann. § 22.021(f) (West Supp. 2016).


                                         11
                                      Conclusion

         Having overruled Appellant’s points, we affirm the judgment of the trial

court.



                                                      /s/ Bonnie Sudderth
                                                      BONNIE SUDDERTH
                                                      JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.

DAUPHINOT, J., filed a concurring opinion.

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

DELIVERED: August 25, 2016




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