Affirmed and Opinion filed July 23, 2013.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-13-00106-CR

                      EX PARTE HERIBERTO MORALES

                    On Appeal from the 178th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1357899

                                    OPINION

      The question in this interlocutory appeal is whether section 25.11 of the
Texas Penal Code is unconstitutional on its face. The trial court denied habeas
relief, having determined that the statute did not operate unconstitutionally in all of
its applications. We affirm the trial court’s judgment.

      Section 25.11 is a criminal statute proscribing continuous acts of family
violence. Its pertinent provisions state as follows:

           (a) A person commits an offense if, during a period that is 12
      months or less in duration, the person two or more times engages in
      conduct that constitutes an [assault] under Section 22.01(a)(1) against
      another person or persons whose relationship to or association with
      the defendant is described by Section 71.0021(b), 71.003, or 71.005,
      Family Code.
             (b) If the jury is the trier of fact, members of the jury are not
      required to agree unanimously on the specific conduct in which the
      defendant engaged that constituted an offense under Section
      22.01(a)(1) against the person or persons described by Subsection (a)
      or the exact date when that conduct occurred. The jury must agree
      unanimously that the defendant, during a period that is 12 months or
      less in duration, two or more times engaged in conduct that
      constituted an offense under Section 22.01(a)(1) against the persons or
      persons described by Subsection (a).

Tex. Penal Code § 25.11.

      Appellant Heriberto Morales was charged with committing an offense under
Section 25.11. He applied for a pretrial writ of habeas corpus, arguing that the
statute is unconstitutional on its face because it violates the guarantee of a
unanimous jury verdict. The trial court denied appellant’s application, prompting
this interlocutory appeal.

      The pretrial writ is an ―extraordinary remedy.‖ See Ex parte Doster, 303
S.W.3d 720, 724 (Tex. Crim. App. 2010). Appellate courts must be careful, on
interlocutory review, not to entertain an application for writ of habeas corpus when
there is an adequate remedy by direct, post-conviction appeal. See Ex parte Weise,
55 S.W.3d 617, 619 (Tex. Crim. App. 2001); see also Ex parte Smith, 178 S.W.3d
797, 801 n.13 (Tex. Crim. App. 2005) (―[A] writ of habeas corpus cannot be used
as a substitute for an appeal or to serve the office of an appeal.‖ (citing Ex parte
Rathmell, 717 S.W.2d 33, 48 (Tex. Crim. App. 1986)). Only issues cognizable on
habeas grounds, such as those that protect the applicant’s substantive rights or
conserve the use of judicial resources, may be considered on interlocutory appeal.
See Weise, 55 S.W.3d at 620. We have jurisdiction in this case because a facial


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challenge to a statute is cognizable for purposes of pretrial habeas. See Ex parte
Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010) (―Pretrial habeas can be used to
bring a facial challenge to the constitutionality of the statute that defines the
offense . . . .‖).

       Facial challenges to a statute are difficult to mount successfully. See
Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992). To prevail, the
defendant must establish that the statute ―always operates unconstitutionally in all
possible circumstances.‖ See State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim.
App. 2013). As the reviewing court, we consider the statute only as it is written,
rather than how it operates in practice. See State ex rel. Lykos v. Fine, 330 S.W.3d
904, 908 (Tex. Crim. App. 2011). Furthermore, we presume that the statute is valid
and that the legislature did not act unreasonably or arbitrarily by choosing to enact
it. See Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). The
defendant, as the individual challenging the statute, has the burden of establishing
its unconstitutionality. See Briggs v. State, 789 S.W.2d 918, 923 (Tex. Crim. App.
1990).

       Appellant argues that the statute is invalid under both the United States and
Texas Constitutions. We analyze only the challenge asserted under the Texas
Constitution because appellant concedes that his state rights are ―more expansive‖
than those federally secured. Compare Landrian v. State, 268 S.W.3d 532, 535
(Tex. Crim. App. 2008) (―Under the Texas Constitution . . . a Texas jury must
reach a unanimous verdict.‖), with Apodaca v. Oregon, 406 U.S. 404, 411 (1972)
(holding that the Sixth Amendment, as applied to the states through the Fourteenth
Amendment, does not require unanimity in state trials), and Johnson v. Louisiana,
406 U.S. 356, 362–63 (1972) (holding that state conviction supported by a
―substantial majority of the jury‖ was not subject to constitutional challenge).

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      Under Texas law, unanimity means that ―each and every juror agrees that the
defendant committed the same, single, specific criminal act.‖ Ngo v. State, 175
S.W.3d 738, 745 (Tex. Crim. App. 2005). Jurors must unanimously agree on all
elements of a crime in order to convict, but they need not agree on all underlying
facts that compose a particular element. See Jefferson v. State, 189 S.W.3d 305,
311 (Tex. Crim. App. 2006) (citing State v. Johnson, 627 N.W.2d 455, 459–60
(Wis. 2001)); Ngo, 175 S.W.3d at 747. When alternative manners and means of
committing an offense are developed during trial, the jury may return a verdict of
guilty if the evidence supports a conviction under any theory submitted. See, e.g.,
Jefferson, 189 S.W.3d at 312 (concluding that jury could be charged disjunctively
where statute did not define ―act or omission‖ as a specific element of the offense
and where the evidence supported three separate bases for finding that the
defendant caused injury to a child); see also Kitchens v. State, 823 S.W.2d 256,
258 (Tex. Crim. App. 1991); McMillian v. State, 388 S.W.3d 866, 871 (Tex.
App.—Houston [14th Dist.] 2012, no pet.).

      According to appellant, Section 25.11 functions like an ―umbrella offense‖
that encompasses two or more underlying assaults. Appellant argues that this
umbrella framework violates his right to a unanimous verdict because the statute
has no requirement that each assault be committed against the same complainant.
Appellant also attacks the statute because it has no requirement that the jury
unanimously agree on the occasions in which each alleged assault was committed.
Appellant draws on an example where evidence of twenty-four discrete acts of
family violence is adduced during trial. Appellant claims that in that ―extreme‖
case, a jury could return a verdict of guilty without any two jurors believing that
the same component assaults had been proven beyond a reasonable doubt.



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      When lodging a facial challenge, it is not enough to argue that a statute
might operate unconstitutionally in a single circumstance, much less an extreme
one. See Santikos, 836 S.W.2d at 633. As the challenger below, appellant assumed
the burden of demonstrating that the statute operates unconstitutionally in every
circumstance. See Lykos, 330 S.W.3d at 908–99. Appellant has not satisfied this
difficult burden.

      The indictment alleges that appellant committed an offense under Section
25.11 by committing two acts of violence—one in November 2011 and the other in
January 2012—both of which caused bodily injury to the same member of
appellant’s family. If the evidence supported this most basic of allegations, a
conviction could be had only if the jurors unanimously agreed that the defendant
committed both component assaults against the same individual complainant. See
Tex. Penal Code § 25.11. The statute would not operate unconstitutionally in that
specific factual circumstance. Cf. Martin v. State, 335 S.W.3d 867, 872–73 (Tex.
App.—Austin 2011, pet. ref’d) (holding that unanimous verdict requirement was
not violated in an as-applied challenge to a similar statute involving a ―continuous‖
pattern of conduct); Casey v. State, 349 S.W.3d 825, 829–30 (Tex. App.—El Paso
2011, pet. ref’d) (same); Jacobsen v. State, 325 S.W.3d 733, 739 (Tex. App.—
Austin 2010, pet. ref’d) (same). Therefore, appellant cannot show that Section
25.11 is unconstitutional on its face. Cf. Rosseau, 396 S.W.3d at 558 (rejecting a
facial challenge to a statute after recognizing one factual circumstance in which the
statute would be valid).




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      We affirm the trial court’s judgment denying habeas relief.


                                      /s/     John Donovan
                                              Justice
Panel consists of Justices Frost, Boyce, and Donovan.
Publish — Tex. R. App. P. 47.2(b).




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