                               PD-0408-15

                           Cause No. ________________

                TO THE COURT OF CRIMINAL APPEALS

                           OF THE STATE OF TEXAS

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                           MARK JOSEPH SHUMSKI
                                       Petitioner

                                           VS.

                              THE STATE OF TEXAS
                                                  Respondent.
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Petition For Discretionary Review in Cause CR-16247 from the 271st Judicial
District Court of Wise County, Texas and Cause No. 11-13-00054-CR from the
Court of Appeals for the Eleven Supreme Judicial District of Texas.
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               PETITION FOR DISCRETIONARY REVIEW

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                                                  Law Office of Paul Belew, PLLC.

                                                  /s/ Paul Belew
                                                  S.B.N.: 00794926
                                                  P.O. Box 1026
          April 23, 2015                          Decatur, Texas 76234
                                                  (940) 627 - 6400
                                                  (940) 627 - 6408 (facsimile)
                                                  ATTORNEY FOR PETITIONER,
                                                  MARK JOSEPH SHUMSKI



                                             i
                       IDENTITY OF THE PARTIES

The following is a complete list of the names and addresses of all parties to
the trial court's final judgment and the names and addresses of trial counsel:

APPELLANT / DEFENDANT
MARK JOSEPH SHUMSKI                                   TRIAL COURT
Texas Department of Criminal Justice                  Appeal from the 271st
H. H. Coffield Unit                                   District Court
2661 FM 2054                                          Wise County, Texas
Tennessee Colony, TX 75884                            Hon. John Fostel
                                                      presiding
Paul Belew
S.B.N.: 00794926

LAW OFFICES OF PAUL BELEW, PLLC
P.O. Box 1026
Decatur, Texas 76234
(940) 627-6400
(940) 627-6408 (facsimile)

ATTORNEY FOR APPELLANT / PETITIONER
State Of Texas / Appellee

Preston Gregory Lowery, Wise County District Attorney
S.B.N: 00787926
John J. "Jay" Lapham, Wise County
District Attorney
S.B.N: 00784448

Wise County Courthouse, Second floor
Decatur, Texas 76234




                                       -I-
                            TABLE OF CONTENTS

Identity of Parties and Counsel                                  i

Table of Contents                                                ii

Index of Authorities                                            iii

Statement Regarding Oral Argument                               iv

Standard of Review                                              iv

Statement of the Case                                        iv, v

Issue Presented for Review                                      vi

Argument                                        vi, vii, vii, ix, 1

      I.    THE APPELLATE COURT ERRED IN FAILING TO FIND
            THAT SECTION 21.02 WAS UNCONSTITUTIONAL FOR
            NUMEROUS REASONS AS SET FORTH BELOW:

Prayer for Relief                                                1

Certificate of Service                                         2, 3

Certificate of Compliance                                        3

Appendix                                                         4




                                    -II-
                         INDEX OF AUTHORITIES

Cases:
Shumski v. State,
     No. 02-13-00565-CR (December 4, 2014) (Memorandum Opinion) v, 4

U.S. Supreme Court:
Andres v. United States, 333 U.S. 740 (1948)                               vii
Duncan v. Louisiana, 391 U. S. 145 (1968)                                 viii
In re Winship, 397 U. S. 358 (1970)                                       viii
Richardson v. United States, 526 U.S. 813 (1999)                           vii

Texas Court of Criminal Appeals:
Jefferson v. State, 189 S.W.3d 305 (Tex. Crim. App. 2006)                 vii
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005)                       vii
State v. Moff, 154 S.W.3d 599 (Tex. Crim. App. 2004)                       iv
Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007)                   vii

Texas Courts of Appeals:
Casey v. State, 349 S.W.3d 825 (Tex. App.--El Paso 2011, pet. ref'd)         1
Jacobsen v. State, 325 S.W.3d 733 (Tex. App.--Austin 2010, no pet.)    viii, 1
Owens v. State, 19 S.W.3d 480 (Tex. App.--Amarillo 2000, no pet.)           iv
State v. Salinas, 982 S.W.2d 9 (Tex. App.--Houston [1st Dist.]
1997, pet. ref'd)                                                          iv

Constitutions:
FED, CONST., art. VIII                                                     1
TEX. CONST., art. V, § 13                                                 vii

Texas Statutes:
TEX. PENAL CODE ANN.,, § 21.02 (West 2013) in passim         i, vii, vii, 1
TEX. PENAL CODE ANN., § 21.02(c), (d), (e), (f) (West 2013) vi, vii, vii, 1
TEX. PENAL CODE ANN., § 21.02(d) (West 2013)                vi, vii, vii, 1




                                      -III-
                 PETITIONER REQUESTS ORAL ARGUMENT

      Petitioner requests oral argument for the reason that the issue is highly

controversial and can best argued and presented before a live and interactive

panel that cannot be done justice via paper nor electronic means as the Texas

Court of Criminal Appeals has not yet written on the constitutionality of

Section 21.02.

                          STANDARD OF REVIEW

      The constitutionality of a criminal statute is a question of law which is

reviewed de novo. See, e.g., Owens v. State, 19 S.W.3d 480, 483 (Tex. App.--

Amarillo 2000, no pet.); State v. Salinas, 982 S.W.2d 9, 10-11 (Tex.

App.--Houston[1st Dist.] 1997, pet. ref'd); State v. Moff, 154 S.W.3d 599, 601

(Tex. Crim. App.)


                        STATEMENT OF THE CASE

      On June 22, 2011 a Wise County Grand Jury indicted Mark Shumski on

the charge of "Sexual Abuse of a Child, Continuous: Victim Under 14" alleging

that on February 16, 2008 and continuing through and including May 16, 2011,

"commit two or more acts of sexual abuse against A.G., a child younger than 14

years of age, said acts of sexual abuse having been violations of one or more of

the following penal law, namely: 1. indecency with a child . . .; [and] aggravated
                                       -IV-
sexual assault of a child . . ." CR 7. On December 11, 2012 this case was tried

before a jury in the 271 st Judicial District Court for Wise County, Texas, Judge

John Fostel Presiding (Trial Cause Number CR16247). See, e.g., R.R. 2:1. On

December 12, 2013 a judgment was entered against Mr. Shumski sentencing him

to sixty (60) years incarceration in the Texas Department of Criminal Justice.

C.R. 121. Mr. Shumski remains incarcerated. On January 11, 2013 Defendant

filed his notice of appeal to the Second Court of Appeals and the case was

assigned Cause Number 02-13-00011-CR. C.R. 123. On February 11, 2013 this

case was transferred to 11th Court of Appeals pursuant to Order and assigned

Number 11-13-00054-CR.         See, Shumski v. State, No. 02-13-00565-CR

(December 4, 2014) (Memorandum Opinion). March 5, 2105, the 11th Court

affirmed.




                                       -V -
                    ISSUES PRESENTED FOR REVIEW

  I. THE APPELLATE COURT ERRED IN FAILING TO FIND THAT
            SECTION 21.02 WAS UNCONSTITUTIONAL.

      The Texas Court of Criminal Appeals has not yet written on the

constitutionality of Section 21.02. The 11TH Court of Appeals erroneously ruled

against Petitioner's constitutional challenge in an unpublished opinion dated

March 5, 2015. See Appendix. This Petition for Discretionary Review is filed in

response to that decision. The issue in controversy affects so many defendants,

it is critical to due process and other concerns that this Honorable Court take up

the matter.

                     ARGUMENT AND AUTHORITIES

      Texas requires all jury verdicts in a felony cases to be unanimous. In

addition due process mandates proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which a defendant is charged. The

requirement of a unanimous verdict is sacrosanct. Section 21.02 of the Texas

Penal Code (Continuous Sexual Abuse of Young Child or Children) does not

require unanimity with respect to the required predicate conduct. Section 21.02's

failure to require a unanimous finding of the predicate conduct indicates that a

conviction is possible where the jurors are not agreed that two specific predicate

acts took place. The erroneous response of Texas Courts addressing this claim
                                       -VI-
is that unanimity is required as to element, not manners and means. This

reasoning is flawed at best. Section 21.02 permits the jury to never be compelled

to carefully scrutinize – as a whole jury – the evidence for any specific sexual act.

It means the jury is free to act as twelve autonomous "mini-juries" with respect

to the very heart of the crime -- the occurrence of sexual misconduct.

      The Supreme Court's addressed this issue in Richardson v. United States.

526 U.S. 813 (1999). Applying its analysis to Section 21.02 the grammar of

Section 21.02 makes it clear acts of sexual abuse are the focus of the Section and

therefore properly are the object of the unanimity requirement. The Sixth

Amendment to the United States Constitution requires unanimous jury verdicts

in federal criminal trials. Andres v. United States, 333 U.S. 740, 748, 68 S.Ct.

880b (1948); see Sanchez v. State, 23 S.W.3d 30, 39 (Tex. Crim. App. 2000).

Under the Texas Constitution, a jury verdict in a felony case is required to be

unanimous, and Texas statutes require unanimity in all criminal cases. Stuhler

v. State, 218 S.W.3d, 706, 716 (Tex. Crim. App. 2007); Jefferson v. State, 189

S.W.3d 305, 311 (Tex. Crim. App. 2006); Ngo v. State, 175 S.W.3d 738, 745 (Tex.

Crim. App. 2005); TEX. CONST. ART. V, § 13; TEX.CODE CRIM. PROC.

ANN. art. 36.29 (2013). Under Texas law, unanimity means that each and every

juror agrees that the defendant committed the same, single, specific criminal act.

                                         -VII-
Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005), however, inexplicably

Section 21.02 does not require unanimity as to predicate acts. See, Section 21.02

of the Texas Penal Code.

      The 11th Court of Appeals, erred when applying the law of the referring

jurisdiction, when they held that the continuous sexual statute did not violate

due process, even without a unanimous verdict as to manner and means.

“Although virtually unanimous adherence to the reasonable-doubt standard in

common-law jurisdictions may not conclusively establish it as a requirement of

due process, such adherence does "reflect a profound judgment about the way

in which law should be enforced and justice administered." Duncan v. Louisiana,

391 U. S. 145, 155 (1968). In re Winship, 397 U. S. 358, 361-362 (1970). The

Court concluded that due process mandates "proof beyond a reasonable doubt

of every fact necessary to constitute the crime with which [the defendant] is

charged." In re Winship, 397 U. S. 358, 364 (1970).

      Section 21.02 has been previously and unsuccessfully challenged on the

grounds of lack of a unanimity requirement. The San Antonio Court of Appeals’

response is fairly indicative, although misplaced, of the response of the various

Courts of Appeals that have considered the challenge: “As discussed herein,

Texas law is clear that "[t]he individual acts of sexual abuse . . . are not

                                      -VIII-
themselves elements of the offense, but are merely evidentiary facts, the manner

and means by which the actus reus element is committed." See Jacobsen, 325

S.W.3d at 737; see also Casey, 349 S.W.3d at 829. In addition, it is well settled

that "section 21.02 does not violate due process by permitting a conviction based

on a jury's unanimous finding that the defendant engaged in a course of conduct

consisting of repeated acts of sexual abuse, but without requiring jury unanimity

as to the individual acts that made up that course of conduct." See Martin, 335

S.W.3d at 872 (discussing Jacobsen, 325 S.W.3d at 739).       This reasoning is

flawed and oppressive.

      In addition to above compelling reasons to grant PDR in this case, the

statute in question is also violative of the VIII Amendment to the Federal

Constitution, inter alia, “FED, CONST., art. VIII” citing a prohibition of cruel

and unusual punishment. The tremendous appellate questions arising out of

criminal convictions relating to Section 21.02 make this petition for PDR

especially attractive to this Court to address. These issues include, but are

certainly not limited to, due process issues, jury unanimity issues and issues

relating to cruel and unusual punishment, all violative of a defendant’s

constitutional rights afforded one by law ands common sense.




                                       -1-
                             PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, MARK JOSEPH SHUMSKI

respectfully requests that the Court of Criminal Appeals grant Appellant's

Petition for Discretionary Review and for such other and further relief to which

he may show himself to be entitled.

                                      Respectfully submitted,

                                       /s/ Paul Belew
                                      Paul Belew
                                      S.B.N.: 00794926

                                      LAW OFFICES OF PAUL BELEW, PLLC.
                                      P.O. Box 1026
                                      Decatur, Texas 76234
                                      (940) 627-6400
                                      (940) 627-6408 (facsimile)

                                      FOR APPELLANT/PETITIONER
                                      MARK JOSEPH SHUMSKI

                         CERTIFICATE OF SERVICE

      This is to certify that on this, the 22nd day of April, 2015 a true and

correct copy of the above and foregoing document has been forwarded by means

of electronic filing as follows:




                                        -2-
      Greg Lowery, Wise County District Attorney's Office
      Wise County Courthouse
      Decatur, Texas 76234



                                              /s/ Paul Belew
                                             Paul Belew




         CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)(3)

      WordPerfect X6 was used to prepare this document in 14 Point Times

New Roman. Using WordPerfect X6 I certify that the total number of words

contained herein, including the identity of parties and counsel, table of

contents, index of authorities, statement of the case, statement of issues

presented, signature, and certificate of compliance is 1944.


                                             _/s/_________________________
                                             Paul Belew




                                       -3-
                                 Appendix

See attached, Shumski v. State, No. 02-13-00565-CR (December 4, 2014)
(Memorandum Opinion)




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