                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-18-00157-CR
                              NO. 02-18-00158-CR


JORGE LUIS GUSMAN                                                     APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE

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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                 TRIAL COURT NOS. 1420665D, 1420669D

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                         MEMORANDUM OPINION1

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      Appellant Jorge Luis Gusman appeals his convictions for continuous

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

a child. In three points, he argues that (1) penal code section 21.02 is facially

unconstitutional, (2) the admission of his prior convictions under code of criminal

procedure article 38.37 violated his right to a fair trial, and (3) the “child abuse

      1
       See Tex. R. App. P. 47.4.
prevention fee” assessed under code of criminal procedure article 102.0186 is

unconstitutional. We affirm.

                                     Background

         Because Appellant does not challenge the sufficiency of the evidence to

support his convictions, a brief recitation of the facts will suffice.

         M.S. is the mother of Billy, Bobby, and Barbara.2 M.S. met Appellant in

1996 and married him in 2000 or 2001. Billy testified that starting when he was

three years old, Appellant touched Billy’s private areas over and under his

clothes, made Billy touch Appellant’s penis, and anally and orally penetrated Billy

with his penis. This abuse continued until Billy was seven years old.

         Barbara testified that Appellant touched her vaginal area over and under

her clothes two to four times per week for more than thirty days. Once, Appellant

removed his and Barbara’s pants so that he could touch her vaginal area with his

penis.

         Barbara and Bobby testified about playing the “lollipop” game in which

Appellant would blindfold them and put something in their mouths while

instructing them not to bite down. Bobby described the object as cylindrical and

filling his entire mouth. Barbara stated that the object was Appellant’s penis.




         2
       To protect the anonymity of the victims, we use pseudonyms. See
McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.]
1982).


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      The abuse stopped when Appellant moved away from the family in 2008.

Appellant was in prison from 2010 to 2015. When he was released from prison,

Appellant texted Barbara and asked her to meet him in his hotel room. Around

the same time, all three children made outcry statements against Appellant.

      Regarding Barbara, a grand jury indicted Appellant for continuous sexual

abuse of a child, two counts of aggravated sexual assault of a child, and

indecency with a child by contact.         Regarding Billy, a grand jury indicted

Appellant for two counts of aggravated sexual assault of a child and indecency

with a child by contact. Appellant pleaded not guilty to all the charges.

      At trial, the trial court admitted over Appellant’s objections evidence that

Appellant had previously been convicted of and imprisoned for sexually

assaulting the complainants’ cousins.

      A jury found Appellant guilty on all counts.         The trial court assessed

punishment of fifty years’ confinement for the continuous-sexual-abuse count,

forty years’ confinement for each count of aggravated sexual abuse of a child,

and twenty years’ confinement for each count of indecency with a child, with all

sentences to run concurrently. This appeal followed.

                                Standard of Review

      All of Appellant’s points raise constitutional challenges to provisions of the

Texas Penal Code and the Texas Code of Criminal Procedure. We must review

the constitutionality of a statute in light of the presumption of the statute’s validity

and presume that the legislature did not act unreasonably or arbitrarily in


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enacting the statute. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App.

1978). It is Appellant’s burden to show that the statute is unconstitutional. Id.

                                    Discussion

1. Penal code section 21.02(d) and jury unanimity

      In his first point, Appellant argues that penal code section 21.02(d) violates

his constitutional right to jury unanimity. See Tex. Penal Code Ann. § 21.02(d)

(West Supp. 2017) (providing that jury in continuous-sexual-abuse case is “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”).

As Appellant acknowledges, this court rejected the identical argument in Pollock

v. State, 405 S.W.3d 396, 404–05 (Tex. App.—Fort Worth 2013, no pet.). For

the reasons stated in Pollock, we overrule Appellant’s first point.

2. Constitutionality of article 38.37

      In his second point, Appellant argues that the trial court’s admission of his

prior convictions under article 38.37 violated his due-process and presumption-

of-innocence rights.

      Generally, an accused must be tried only for the offense for which he is

charged and may not be tried for a collateral crime or for being a criminal

generally. Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991); see

also Tex. R. Evid. 404(b)(1) (“Evidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.”). But article 38.37,


                                         4
section 1 permits—in a prosecution for certain enumerated crimes, including

sexual offenses and assaultive offenses against a child under the age of

seventeen—the       admission   of   evidence   concerning   extraneous   offenses

committed by the defendant against the complainant:

       Notwithstanding Rules 404 and 405, Texas Rules of Evidence,
       evidence of other crimes, wrongs, or acts committed by the
       defendant against the child who is the victim of the alleged offense
       shall be admitted for its bearing on relevant matters, including:

       (1) the state of mind of the defendant and the child; and

       (2) the previous and subsequent relationship between the defendant
           and the child.

Tex. Code Crim. Proc. Ann. art. 38.37, § 1 (West 2018). Section 2 permits—in

the prosecution of certain enumerated offenses, including continuous sexual

abuse of a child, indecency with a child, and sexual assault of a child—the

admission of evidence of other sexual offenses, including those committed

against someone other than the complainant in the instant prosecution:

       Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and
       subject to Section 2-a, evidence that the defendant has committed a
       separate offense described by Subsection (a)(1) or (2) may be
       admitted in the trial of an alleged offense described by Subsection
       (a)(1) or (2) for any bearing the evidence has on relevant matters,
       including the character of the defendant and acts performed in
       conformity with the character of the defendant.

Id. art. 38.37, § 2(b).

       Appellant concedes that this court has previously held that article 38.37,

section 1 is constitutional.    See Martin v. State, 176 S.W.3d 887, 902 (Tex.

App.—Fort Worth, 2005, no pet.); see also Gregg v. State, No. 02-16-00117-CR,


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2016 WL 7010931, at *4–5 (Tex. App.—Fort Worth Mar. 29, 2016, pet. ref’d)

(mem. op., not designated for publication). But he observes that our opinion in

Martin did not address article 38.37, section 2, which the legislature added to the

statute in 2013. See Act of June 14, 2013, 83rd Leg., R.S., ch. 387, §§ 2–3,

2013 Tex. Gen. Laws 1167, 1168.

      Although this court has not previously considered whether section 2(b)

violates due process guarantees, several of our sister courts have, and all of

them have held that section 2(b) is constitutional. See Buxton v. State, 526

S.W.3d 666, 688–89 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d); Bezerra v.

State, 485 S.W.3d 133, 139 (Tex. App.—Amarillo 2016, pet. ref’d), cert. denied,

137 S. Ct. 495 (2016); Harris v. State, 475 S.W.3d 395, 399–403 (Tex. App.—

Houston [14th Dist.] 2015, pet. ref’d); Belcher v. State, 474 S.W.3d 840, 847

(Tex. App.—Tyler 2015, no pet.); see also Holcomb v. State, No. 09-16-00198-

CR, 2018 WL 651228, at *1 (Tex. App.—Beaumont Jan. 31, 2018, pet. ref’d)

(mem. op., not designated for publication).

      In Harris, the Fourteenth Court of Appeals conducted a thorough analysis

of article 37.38, section 2. 475 S.W.3d at 401. The court noted that in enacting

section 2(b), the legislature “recognized that the rule would ‘bring the Texas

Rules of Evidence closer to the Federal Rules of Evidence, specifically [f]ederal

Rule 413(a), which allows evidence of previous sexual assault cases to be

admitted at trial.’” Id. (quoting Senate Comm. on Criminal Justice, Bill Analysis,

Tex. S.B. 12, 83d Leg., R.S. (2013)).         Federal courts have determined that


                                        6
federal rule 413 does not violate the Due Process Clause because it does not

implicate a fundamental right. Id. (citing United States v. Mound, 149 F.3d 799,

801 (8th Cir. 1998), cert. denied, 525 U.S. 1089 (1999); United States v.

Enjady, 134 F.3d 1427, 1433 (10th Cir.), cert. denied, 525 U.S. 887 (1998)).

      The Harris court reasoned that the legislature has carved out specific and

limited exceptions to the prohibition against using extraneous offenses in a

criminal trial. Id. Article 38.37, section 1 is one such exception; article 38.37,

section 2 is another. Id. at 401–02. “‘The special circumstances surrounding the

sexual assault of a child victim outweigh normal concerns associated with

evidence of extraneous acts.’” Id. at 402 (quoting Jenkins v. State, 993 S.W.2d

133, 136 (Tex. App.—Tyler 1999, pet. ref’d)).

      Article 38.37 contains several procedural safeguards to protect a

defendant’s right to a fair trial.      Id.       Before admitting extraneous-offense

evidence, the trial court must determine that the evidence is likely to support a

finding beyond a reasonable doubt that the defendant committed the extraneous

offense. Tex. Code Crim. Proc. Ann. art. 38.37, § 2–a(1), (2). And the State

must give the defendant notice of its intent to introduce this evidence in its case-

in-chief not later than the thirtieth day before the date of the defendant’s trial. Id.

art. 38.37, § 3.   As the Harris court noted, “The statute does not lessen

appellant’s presumption of innocence. The statute does not alter the State’s

burden of proof because the State is still required to prove every element of the

charged offense beyond a reasonable doubt.” 475 S.W.3d at 402.


                                              7
      For these reasons, we join our sister courts in holding that article 38.37,

section 2 does not violate Appellant’s right to due process or to an impartial jury.

We overrule Appellant’s second point.

3. Constitutionality of article 102.0186

      In his third point, Appellant argues that the $100 “child abuse prevention

fee” assessed under code of criminal procedure article 102.0186 is

unconstitutional because it violates the Texas constitution’s separation of powers

clause.   See Tex. Code Crim. Proc. Ann. art. 102.0186(a) (West 2018)

(mandating assessment of $100 fee upon conviction of certain offenses against a

child, including sexual assault and indecency).      As Appellant concedes, we

previously rejected the same argument in Ingram v. State, 503 S.W.3d 745, 748–

49 (Tex. App.—Fort Worth 2016, pet. ref’d). For the reasons stated in Ingram,

we overrule Appellant’s third point. See id.

                                   Conclusion

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

judgment. See Tex. R. App. P. 43.2(a).

                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: WALKER, GABRIEL, and BIRDWELL, JJ.

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

DELIVERED: June 21, 2018


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