Opinion
No. 05-11-00532-CR
07-31-2012
MICHAEL ALLEN BLAKE, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued July 31, 2012
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-33947-P
OPINION
Before Chief Justice Wright and Justices Lang-Miers and Lagarde
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice Lagarde
This is an appeal of a pretrial adverse ruling on a motion to quash the indictment following appellant Michael Allen Blake's plea of guilty to the offense of continuous sexual abuse of a child. Because this issue has previously been decided against appellant by this Court, we affirm.
Appellant was sentenced to twenty-five years' imprisonment.
--------
The indictment charged that during a period of thirty days or more in duration, when the defendant was seventeen years of age or older, he committed two or more acts of sexual abuse against D. P., a child younger than fourteen years of age. See Tex. Penal Code Ann. § 21.02(b) (West 2011). The trial court denied appellant's pretrial motion to quash the indictment. Appellant retained the right to appeal the trial court's pretrial ruling. See Tex. Code Crim. Proc. Ann. art. 44.02 (West Supp. 2011); Tex. R. App. P. 25.2(a)(2)(A).
Appellant's basis for the motion to quash was that the statute underlying the charged offense allows a jury verdict which is not unanimous, in violation of the United States Constitution and Article V, section 13 of the Texas Constitution. Specifically, the statute provides in relevant part
(d) If a jury is the trier of fact, 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. 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.Tex. Penal Code Ann. § 21.02(d), (h).
* * *
(h) An offense under this section is a felony of the first degree, punishable by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.
At the outset of his brief, in footnote, appellant states:
Appellant recognizes that in two recent opinions this Court has rejected arguments similar to the ones advanced in this brief and has found that Section 21.01 is not unconstitutional. Render v. State, 316 S.W.3d 846 (Tex. App.-Dallas 2010, pet. ref'd), cert. denied, Render v. Texas, 131 S. Ct. 1533 (U.S. 2011); State v. Espinoza, No. 05-09-01260-CR, 2010, Tex. App. LEXIS 4952 (Tex. App.-Dallas June 30, 2010 pet. ref'd) [unpublished].
Because the constitutionality of the continuing sexual abuse statute has not yet been decided by a court of last resort, Appellant presents this issue to preserve for further review, if necessary.
Appellant is correct in his recognition that the issue presented here has previously been decided by this court. The State agrees. As stated in the State's brief,
"In Render and Espinoza, this Court held that section 21.02 creates a single criminal offense with alternative means of commission. See Render, 316 S.W.3d at 857-58; Espinoza, 2010 Tex. App. LEXIS 4952, at *10-12. This Court explained that the predicate acts of sexual abuse under section 21.02 are not separate elements of the offense that need to be agreed upon unanimously, but rather are alternative means by which to commit the primary element of the offense - a "series" of acts of sexual abuse. See id. Furthermore, this Court determined that dispensing with jury unanimity on the underlying acts of sexual abuse does not violate due process or due course of law. See Render, 316 S.W.3d at 858; Espinoza, 2010 Tex. App. LEXIS 4952, at *12-15.
Appellant does not raise any new arguments or legal theories in support of his contention that the statute is unconstitutional. Based upon this Court's previous opinions, we conclude the trial court did not err when it denied appellant's motion to quash the indictment. We resolve appellant's sole issue against him.
We affirm the trial court's judgment.
SUE LAGARDE
JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
110532F.U05
Court of Appeals Fifth District of Texas at Dallas
MICHAEL ALLEN BLAKE, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00532-CR
Appeal from the 203rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 33947-P).
Opinion delivered by Justice Lagarde, Chief Justice Wright and Justice Lang-Miers participating.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 31, 2012.
SUE LAGARDE
JUSTICE, ASSIGNED