Unanimity of Jury Verdict in Continuous Sex Abuse Cases

Following the horrendous kidnapping and murder of nine-year-old Jessica Lunsford in 2005, Florida enacted Jessica’s Law. The statute was intended to create tough penalties for sex offenders, such as 25-year minimum sentences for certain offenses and a lifetime of electronic monitoring for crimes against a child under 12. Following Florida’s lead, 46 states have adopted some version of Jessica’s Law.  

 

Texas created its version of Jessica’s Law in 2007. This version has five primary components:

 

1. 1. 1. Increased punishments by recategorizing specific offenses to a higher degree of felonies, such as upgrading third-degree sexual performance to a second-degree felony;
      2. Increased the penalty for aggravated sexual assault of a child to require a minimum of 25 years to a maximum of 99 years or a life sentence without an option for early release;
      3. Eliminated the statute of limitations for most sex offenses involving children;
      4. Eliminated probation eligibility for a majority of Texas’s child sex offenses; and
      5. Created the offense of continuous sexual abuse of a child, Texas Penal Code Section 21.02, which mandates a minimum sentence of 25 years to a maximum of 99 years with any second conviction requiring life without parole sentence.

 

Continuous Sexual Abuse of a Child

 

Section 21.02 has proven to be the most legally controversial part of Texas’s version of Jessica’s Law. This statute requires that the State prove that a defendant committed one or more sexual offenses against a child during a period that is 30 days or more in duration. The constitutional dilemma posed by the statute is that the jury does not have to reach a unanimous decision as to the underlying predicate offenses to convict the defendant of this crime.

 

The issue is this: Article V, Section 13 of the Texas Constitution, and Article 36.29 of the Texas Code of Criminal Procedure require that jury verdicts be unanimous. The Texas Court of Criminal Appeals has interpreted those requirements to mean that a jury must reach a unanimous verdict that “the defendant committed the same, single, specific criminal act.”

 

Elements v. Manner and Means

 

The Court of Criminal Appeals, however, has held that unanimity applies to a jury’s finding that a defendant committed all the “elements” necessary to prove a given offense but does not necessarily extend to a jury’s finding of the “manner and means” by which the offense is committed. In other words, a jury must unanimously agree that a defendant committed all the elements of the crime but does not have to unanimously agree on how the offense was committed. In “continuous” cases, this means that the jury 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. The courts have not required that juries must agree unanimously on the specific acts of sexual abuse supporting the offense.  

 

This constitutional issue emerged almost immediately after Section 21.02 was enacted. It continues to be addressed by the Texas courts of criminal appeals. For example, as recently as May 11, 2021, in Nguyen v. State, the Fourteenth District Court of Appeals [Houston] found that the court of criminal appeals in Austin, Waco, Fort Worth, San Antonio, Amarillo, El Paso, and Dallas have all endorsed the notion that a jury’s verdict need not be unanimous when it comes which acts of sexual abuse they relied upon in finding the defendant guilty of continuous sexual abuse.

 

The Texas Court of Criminal Appeals (“TexCrimApp”) has yet to weigh in on this issue. However, the court let stand the decisions reached by the courts of appeal in Austin, Waco, San Antonio, Amarillo, El Paso, and Dallas. By refusing to accept petitions for discretionary review in these six cases, the TexCrimApp signaled it had no problem with the statutory and constitutional interpretations made in those cases.  

 

Jury Unanimity in “Continuous” Cases

 

The TexCrimApp has, however, announced the law on jury unanimity. “A jury in Texas must reach a unanimous verdict. The jurors must agree that the defendant committed one specific crime, but not that the defendant committed the crime in one specific way or even with one specific act. The jurors must agree on each essential element of the crime. But the requirement of unanimity is not violated when the jury charge “presents the jury with the option of choosing among various alternative manner and means of committing the same statutorily defined offense.” 

 

SCOTUS Requires Unanimous Jury Verdicts to Convict

 

Last year, the U.S. Supreme Court, in Ramos v. Louisiana, held that a jury must reach a unanimous guilty verdict to convict. The impact the Ramos decision will have on the convoluted rulings by the Texas criminal appeals courts’ findings that there is a constitutional distinction between jury unanimity on the “elements” of the offense and the “manner and means” is subject to legal speculation.

 

A Ramos review by the TexCrimmApp was given added interest by yet another U.S. Supreme Court decision handed down on May 17, 2021, Edwards v. Vannoy, which held the court’s decision in Ramos is not retroactive to cases in which inmates are seeking federal post-conviction relief. 

 

Time for Texas Court of Criminal Appeals to Visit Unanimity in Continuous Cases

 

The TexCrimApp should address whether Ramos has any constitutional impact on the “manner and means” interpretation in Section 21.02 cases at the first opportunity. Defendants are being sentenced to life without parole under Section 21.02. We put it this way in 2010:

 

“... under Sec. 21.02 the State must specifically allege in the indictment that the defendant committed two or more’ acts of sexual abuse,’ which can only be specific, enumerated criminal sexual offenses, during a period of 30 days or more. Sexual assault, indecency with a child, or aggravated sexual assault of a child are not ‘theories’” as to how the offense of “continuous sexual abuse of a child” occurred. They are specific, predicate criminal offenses that must be proven—and since Art. V, § 13 of the Texas Constitution requires a unanimous jury to convict when these offenses are tried on their own merits, the same constitutional requisite should apply when they are used as a ‘series’ of acts of sexual abuse to make up the single offense of continuous sexual assault of a child.

 

‘Beyond the political inspiration of ‘Jessica’s Law’, the Texas Legislature was also encouraged to enact Sec. 21.02 by a concurring opinion delivered by Judge Cathy Cochran in State v. Dixon. In that aggravated sexual assault of a child case the child victim testified that the defendant had sexually assaulted her in a similar manner one hundred times over a period of months. Judge Cochran warned that ‘we are headed for a train wreck in Texas because our bedrock procedural protections cannot adapt to the common factual scenario of an ongoing crime involving an abusive sexual relationship of a child under current penal provisions.’ Judge Cochran suggested that ‘a new penal statute that focuses upon a continuing course of conduct crime—a sexually abusive relationship that is marked by a pattern or course of conduct of various sexual acts’ might’ “assist in preserving our bedrock criminal-procedure principles of double jeopardy, jury unanimity, due-process notice, grand-jury indictments, and election law.’

 

“The politically-motivated Texas Legislature, with its ear always to the ground trying to hear anything about another restrictive penal statute it can enact, particularly one dealing with the pedophile boogey-man, apparently heard Judge Cochran’s lamentations and enacted Sec. 21.02 the following year.”

 

Well, the “train wreck” is not coming; it’s here, and the ashes are smoldering...

 

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