Opinion
NO. 01-19-00278-CR
03-23-2021
JOHNNIFER CLAY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Tarrant County, Texas
Trial Court Case No. 1443547D
MEMORANDUM OPINION
A Tarrant County jury convicted appellant Johnnifer Clay of the first-degree felony of continuous sexual abuse of a young child, and the trial court sentenced him to thirty-five years' confinement.See TEX. PENAL CODE § 21.02(b), (h). In his first two issues, Clay argues that the trial court abused its discretion in admitting the State's evidence of an extraneous offense, namely the testimony of the complainant and a witness that Clay had also sexually abused the witness. In his third issue, Clay argues that Penal Code section 21.02 is facially unconstitutional because it does not require a unanimous jury verdict on each underlying act of sexual abuse in an indictment charging the offense of continuous sexual abuse of a young child.
The Texas Supreme Court transferred this appeal from the Court of Appeals for the Second District of Texas to this Court pursuant to its docket equalization powers. See TEX. GOV'T CODE § 73.001; Misc. Docket No. 19-9022 (Tex. Mar. 26, 2019). We are unaware of any conflict between the precedent of the Second Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
We affirm.
Background
On February 3, 2016, a criminal complaint was filed in Tarrant County against Clay alleging continuous sexual abuse of his daughter, Anna, who was under the age of fourteen years at the time of the sexual abuse. Clay was indicted on four counts. Count one alleged that Clay committed two or more acts of aggravated sexual abuse against Anna from February 2008 until February 2014, when Anna was under the age of fourteen. Counts two through four alleged lesser-included sexual offenses.
In this opinion, we refer to the complainant, Anna, and her friend who is a witness, Nina, by pseudonyms.
The indictment in this case also charged Clay with sexually abusing Nina, but Clay contends that the indictment was amended to dismiss the charges of sexual abuse against Nina. The record on appeal does not include an amended indictment, but the State does not dispute that Clay was only charged in this case with continuous sexual abuse of Anna. Accordingly, we assume without deciding that Clay was not charged in the underlying case with continuous sexual abuse of Nina.
The State filed a notice of intent to offer evidence of extraneous offenses and conduct, including "the offense of Aggravated Sexual Assault of a Child against [Nina]," who was Anna's friend. See TEX. CODE CRIM. PROC. art. 38.37, § 3. The notice also listed fourteen other extraneous offenses it intended to introduce. Clay filed a motion in limine requesting an order prohibiting any mention of extraneous offenses prior to a hearing. The record on appeal does not indicate that the court ruled on Clay's motion in limine. A. Clay's Objection to Anna's Testimony
Trial began on November 13, 2018. After the jury was seated and sworn, the State read the indictment and Clay pleaded not guilty to each count. Before the jury returned to the courtroom following a recess, the State notified the court that it intended to introduce evidence of Clay's extraneous offenses or acts under Code of Criminal Procedure article 38.37. Specifically, the State "expect[ed] to elicit testimony from the victim in this case, [Anna]," regarding Clay's "sexual abuse of a second child named [Nina]."
The trial court held a hearing outside the presence of the jury limited in scope to Anna's testimony about the sexual abuse of Nina. See id. § 2-a. Anna testified at the hearing and identified Clay in the courtroom as her father. She further testified that she lived with him in an apartment at the time of the sexual abuse at issue. Nina would stay at Anna's apartment from time to time when they were fourteen or fifteen years old. Nina and her family once lived with Anna's family for three or four weeks during this time period. Anna recounted that she had seen Clay having sex with Nina in a bedroom of the apartment.
After both parties examined Anna on voir dire, defense counsel made a Texas Rule of Evidence 403 objection to Anna's testimony about Clay's sexual abuse of Nina. Defense counsel argued that the indictment in the case initially included allegations that Clay had sexually abused Nina, but that the State had amended the indictment to dismiss those counts and had indicted Clay for sexually abusing Nina in a separate case. Defense counsel argued that the evidence was "highly prejudicial" and "highly inflammatory," such that the prejudicial effect "clearly" outweighed its probative value. See TEX. R. EVID. 403. The trial court overruled the objection, concluding that the evidence "is probative and outweighs the prejudicial value[.]"
Clay also objected at trial that the testimony violated his rights under the Confrontation Clause of Sixth Amendment of the United States Constitution and Crawford v. Washington, 541 U.S. 36 (2004). See U.S. CONST. amend. VI. Clay does not raise these arguments on appeal. See TEX. R. APP. P. 38.1(i).
Afterwards, during the defense opening statement, defense counsel explained that the jury would "hear from different witnesses that state specifically that [Anna's] reputation in the community for telling the truth is bad," including a CPS worker and multiple family members, which "goes to her character for being a truthful person." Defense counsel stated there was "no evidence at all . . . as far as any physical examination" that Clay "ever touched his daughter [Anna] that he cared a great deal about. He wouldn't abuse her. He loved her."
Anna testified that Clay first sexually abused her at her aunt's house when Anna was five years old. She went home to her grandmother's house, where Anna lived at the time with her mother, but Anna did not tell her mom about her father's abuse. Anna did not see Clay much after that incident until her grandmother died when Anna was about thirteen years old. Left without a place to live, Anna and her mother moved in with Clay at his Fort Worth apartment. Anna described her discomfort at moving in with her father. A few days after moving in, Clay began sexually abusing Anna again. At first, Clay touched her inappropriately, threatening that he would beat her if she told anyone. The family moved to another apartment, and Clay began having sexual intercourse with Anna when she was fourteen or fifteen years of age. Anna described several of the incidents in detail, stating that she had sexual intercourse with Clay nearly "every day" and "every night."
Anna also testified to Clay's sexual assault of Nina. Anna testified that Clay forced Anna and Nina to have sex with each other in front of him. Anna further testified that Clay had sex with Nina in front of Anna. B. Clay's Objection to Nina's Testimony
At the end of the second day of trial, the State notified the court during a bench conference that it intended to call Nina as its final witness and requested a hearing outside the presence of the jury. See TEX. CODE CRIM. PROC. art. 38.37, § 2-a. The court held a hearing outside the jury's presence the following morning. The State announced its intention to offer Nina's testimony under article 38.37, section two, regarding similar evidence that was offered earlier.
At the hearing, Nina testified that when she was twelve or thirteen years old, she would stay at Anna's apartment. Clay would "constantly" sexually abuse her and Anna. Clay tried to have sex with Nina on one occasion, he inappropriately touched Anna, and he would make Anna and Nina perform sexual acts together. Nina further testified that Clay was physically abusive to Anna, and that Clay "would pay [her and Anna] . . . if we did it."
After cross examining Nina, defense counsel objected to Nina's testimony under Rule 403 on the grounds that it was inflammatory and that its prejudice to Clay outweighed its probative value. The court overruled the objection, finding that the testimony was "more probative than it is prejudicial." The trial court also stated that it had "determined that the evidence is likely [to] be admitted at trial [and] will be adequate to support a finding by the jury that [Clay] committed a separate offense beyond a reasonable doubt."
Before the jury, Nina identified Clay as Anna's father. Nina testified that she had been friends with Anna in school. When Anna was thirteen or fourteen years old, Nina and her family moved in with Anna's family for a few weeks. Clay would come into Anna's bedroom at night, where Anna and Nina slept, and would sexually abuse Anna. Clay eventually began waking Nina up and inappropriately touching her as well, and she testified that it happened "very often"—all but two days per week. Clay attempted to have sex with Nina, and he made Nina and Anna perform sexual acts on each other. C. Conviction and Sentencing
After both parties rested, the trial court held a conference on the jury charge outside the jury's presence. Both parties confirmed that they had no objection to the charge. The court read the charge to the jury, and the jury ultimately returned a unanimous verdict of guilty on count one for continuous sexual abuse of a child under the age of fourteen. Because the jury found Clay guilty on count one, it did not return a verdict on the lesser-included offenses in counts two through four.
At the end of the sentencing phase of trial, the court assessed Clay's punishment at thirty-five years' confinement. Clay filed a combined motion for new trial and motion in arrest of judgment, asking the court to set aside the judgment of conviction and to order a new trial. See TEX. R. APP. P. 21, 22. The trial court did not rule on the motion, and it was overruled by operation of law. See TEX. R. APP. P. 21.8 (a), (c), 22.4. This appeal followed.
Admissibility of Extraneous Offense Evidence Under Rule 403
In his first two issues, Clay argues that the trial court abused its discretion in admitting extraneous offense evidence that was unduly prejudicial under Rule 403. See TEX. R. EVID. 403. Clay contends that he was only charged in the underlying indictment with sexual abuse of Anna; he was not charged with sexual abuse of Nina in this case. Consequently, he argues that Anna's and Nina's testimony about Clay's alleged sexual abuse of Nina is evidence of an extraneous offense that unduly prejudiced his defense.A. Standard of Review
Both parties address Clay's first two issue together on appeal. Because the subject matter of Anna's and Nina's testimony was similar and because both parties address their arguments as to both witnesses' testimony together, we likewise consider Clay's first two issues simultaneously.
We review a trial court's ruling on the admissibility of evidence of extraneous offenses for an abuse of discretion. Pawlak v. State, 420 S.W.3d 807, 810 (Tex. Crim. App. 2013) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g)); Alvarez v. State, 491 S.W.3d 362, 370 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd) (citing Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007)). We will affirm a trial court's evidentiary ruling that is within the zone of reasonable disagreement and correct under any theory of law. Pawlak, 420 S.W.3d at 810; Alvarez, 491 S.W.3d at 370. B. Governing Law
Generally, "an accused may not be tried for some collateral crime or for being a criminal generally." Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991) (quoting Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App. 1983)). To that end, evidence of prior crimes, wrongs, or other acts that is otherwise relevant is typically inadmissible to show that the defendant "'acted in accordance with that character' or had a propensity to commit the crime." Alvarez, 491 S.W.3d at 367 (quoting TEX. R. EVID. 404(b)); see TEX. R. EVID. 401, 402. However, at a trial for continuous sexual abuse of a young child, such as this one, "a different rule applies to recognize that '[t]he special circumstances surrounding the sexual assault of a child victim outweigh normal concerns associated with evidence of extraneous acts.'" Alvarez, 491 S.W.3d at 367 (quoting Jenkins v. State, 993 S.W.2d 133, 136 (Tex. App.—Tyler 1999, pet. ref'd)).
Thus, article 38.37 describes the circumstances in which certain extraneous-act evidence can be admitted:
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.TEX. CODE CRIM. PROC. art. 38.37, § 2(b). Subsections (a)(1) and (a)(2) list eight specific offenses, including Penal Code sections 21.02 (continuous sexual abuse of a young child), 21.11 (indecency with a child), 22.011(a)(2) (sexual assault of a child), and 22.021(a)(1)(B) and (2) (aggravated sexual assault of a child). Id. § 2(a)(1), (2).
Before evidence of such offenses is admitted, the court must first "(1) determine that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt; and (2) conduct a hearing out of the presence of the jury for that purpose." Id. § 2-a; see Alvarez, 491 S.W.3d at 367 (reciting "procedural safeguards" that must be satisfied before admitting evidence under article 38.37) (quoting Harris v. State, 475 S.W.3d 395, 402 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd)). The State must also provide notice to the defendant of its intent to introduce evidence under article 38.37. TEX. CODE CRIM. PROC. art. 38.37, § 3. The parties do not dispute that these statutory procedures were followed.
Such evidence is not exempt from the scope of Rule 403, however. Rule 403 states that the "court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." TEX. R. EVID. 403. The Texas Court of Criminal Appeals has set forth a four-factor balancing test to determine whether unfair prejudice substantially outweighs the probative value of an extraneous offense under Rule 403:
(1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable—a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;De La Paz v. State, 279 S.W.3d 336, 348-49 (Tex. Crim. App. 2009) (citing Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000)); Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (citation omitted).
(2) the potential the other offense evidence has to impress the jury "in some irrational but nevertheless indelible way;"
(3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and
(4) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.
The Court of Criminal Appeals has cautioned that Rule 403 "should be used sparingly to exclude relevant, otherwise admissible evidence that might bear upon the credibility of either the defendant or complainant in such 'he said, she said' cases." Hammer v. State, 296 S.W.3d 555, 562 (Tex. Crim. App. 2009); see Alvarez, 491 S.W.3d at 371 ("Without the evidence of the other children that Alvarez abused, 'this becomes a "he said, she said" case.'") (citation omitted). "Texas law, as well as the federal constitution, requires great latitude when the evidence deals with a witness's specific bias, motive, or interest to testify in a particular fashion." Hammer, 296 S.W.3d at 562.
Although the Court of Criminal Appeals has held that "sexually related bad acts and misconduct involving children are inherently inflammatory," "the plain language of Rule 403 does not allow a trial court to exclude otherwise relevant evidence when that evidence is merely prejudicial." Pawlak, 420 S.W.3d at 811 (citing TEX. R. EVID. 403); see Alvarez, 491 S.W.3d at 370. "Indeed, all evidence against a defendant is, by its very nature, designed to be prejudicial." Pawlak, 420 S.W.3d at 811 (citing Wheeler v. State, 67 S.W.3d 879, 889 (Tex. Crim. App. 2002) (Keller, P.J., concurring)). Rather, Rule 403 only authorizes a court to "exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice . . . ." TEX. R. EVID. 403 (emphasis added); see Wheeler, 67 S.W.3d at 888 (trial court abuses its discretion in admitting otherwise relevant and admissible testimony "only if the danger of unfair prejudice substantially outweigh[s] the probative value of [the] testimony"). C. Analysis
Clay argues that Anna's and Nina's challenged testimony is not connected to any fact of consequence in the underlying proceeding; it is inherently inflammatory with a "grave potential" of allowing a jury to convict him "out of a revulsion" for his propensity to be attracted to young girls; there was no physical evidence of the charged offense; the State spent an "inordinate" amount of time presenting the evidence; and there was no need for the evidence because it did not relate to a fact of consequence. The State responds that the testimony was probative of Clay's propensity to sexually abuse young girls who lived with him; it rebutted the defensive theory that Anna had fabricated her allegations; it was necessary because there was no physical evidence in the case; it did not cause undue delay at the trial; and its inherently inflammatory nature is not enough to make it inadmissible, especially where the testimony was similar to the evidence regarding the sexual abuse of Anna.
In Wheeler v. State, the Court of Criminal Appeals considered a similar fact pattern. See 67 S.W.3d at 880, 886-89. Wheeler was indicted for aggravated sexual assault of a child who was his daughter's friend. Id. at 880. He presented various defensive theories at trial, including that the complainant had "made up" the allegations against him for profit, and that he lacked opportunity because he was never alone with the complainant or, alternatively, it was impossible to commit the offense "in a room full of people." Id. at 887.
At trial, the State called Wheeler's niece to testify about an incident nine years earlier, when she was six years old, during which Wheeler inappropriately touched her in a "very similar" manner as he had touched the complainant: underneath her clothes while family members were nearby. Id. at 886, 887. The trial court admitted the niece's testimony, and the Court of Criminal Appeals affirmed, stating that "[e]xtraneous sex offenses were and are still admissible if they fall into one of the proper 'exceptions' to the 'general rule' barring their admission." Id. at 886-87, 889 (citation omitted). The court determined that the niece's testimony was relevant to rebut Wheeler's defensive theories, including by showing that the complainant was not motivated by greed in her allegations that Wheeler had sexually assaulted her. Id. at 887.
After determining that the testimony of the extraneous offense was relevant, the court reiterated that relevant evidence may be inadmissible under Rule 403 "only if the danger of unfair prejudice substantially outweighed the probative value of [the niece's] testimony." Id. at 888 (citing TEX. R. EVID. 403). The court "recognized that in prosecutions for sexual offenses, a successful conviction 'often depend[s] primarily on whether the jury believe[s] the complainant, turning the trial into a swearing match between the complainant and defendant.'" Id. (citation omitted). The niece's testimony described an incident "quite similar to the charged event," and it "provided, at a minimum, the 'small nudge' towards contradicting [Wheeler's] defensive theories and towards proving that the molestation did indeed occur." Id. (quoting Montgomery, 810 S.W.2d at 381) That is, there was "[o]ne little girl [who] said the events did occur." Id. at 889. The court held that the trial court did not abuse its discretion in admitting the niece's testimony under Rule 403. Id.
In Alvarez v. State, this Court held that similar evidence of extraneous offenses was not unduly prejudicial character evidence. See 491 S.W.3d at 371. Alvarez was convicted of the offense of sexual assault of a young child, and the only direct evidence was the complainant's testimony. There was no physical evidence of the offense. Id. at 365, 371. At trial, the State offered the testimony of two of Alvarez's girlfriend's nieces, who both testified that Alvarez had sexually abused them when they were children. Id. at 365, 366-67.
Alvarez argued on appeal that the testimony was unfairly prejudicial because it allowed the jury to convict him based on character evidence—which was "'the very reason the statute [article 38.37]—and the documented legislative history—allows for its admissibility,' namely that sexual assault of a child is a highly offensive crime." Id. at 371 (quoting Bradshaw v. State, 466 S.W.3d 875, 884 (Tex. App.—Texarkana 2015, pet. ref'd)). The Court stated that character evidence "is often relevant and therefore otherwise admissible." Id. The rules do not exclude character evidence because it is not probative of a fact of consequence and therefore irrelevant, or because it is "an 'irrational' basis for determining a person's conduct." Id. Rather, character evidence "offered to prove conduct or a state of mind conforming to that character is logically relevant. . . . [A] person's conduct on one occasion would be thought by most persons to be presumptively probative on the issue of her disputed behavior on another." Id. (citation omitted).
Moreover, "the evidence of prior sexual abuse of children 'was especially probative of [Alvarez's] propensity to sexually assault children,' [and] the Rule 403 balancing test normally will not favor the exclusion of evidence of the defendant's prior sexual assaults of children." Id. (citation omitted). Without the two nieces' testimony about Alvarez's sexual abuse of them, the case would become a "he said, she said" case between Alvarez and the child complainant. Id. (quoting Bradshaw, 466 S.W.3d at 884); see also Wheeler, 67 S.W.3d at 888. Alvarez did not identify any particular facts about the two nieces' testimony that made it unfairly prejudicial, and thus this Court held that he had not demonstrated the trial court abused its discretion in overruling his objection under Rule 403. Alvarez, 491 S.W.3d at 371.
Here, the testimony about Clay's alleged sexual abuse of Nina is relevant to rebut Clay's defensive theory that Anna was untruthful. See Wheeler, 67 S.W.3d at 887; see also De La Paz, 279 S.W.3d at 348-49 (stating first factor of Rule 403 balancing test). It is also evidence of Clay's character and propensity to act in conformity with his character, namely that he has a propensity to sexually abuse young girls of the same age and in the same manner. See Alvarez, 491 S.W.3d at 371; TEX. CODE CRIM. PROC. art. 38.37, § 2(b). The testimony thus "provided, at a minimum, the 'small nudge' towards contradicting [Clay's] defensive theories and towards proving that the molestation did indeed occur." See Wheeler, 67 S.W.3d at 888 (quoting Montgomery, 810 S.W.2d at 381).
While both parties agree that testimony of sexual abuse of a young child can be inherently inflammatory, we agree with the State that the testimony in this case had little potential to impress the jury "in some irrational but nevertheless indelible way." See De La Paz, 279 S.W.3d at 348-49 (stating second factor of Rule 403 balancing test). The testimony from Anna and Nina about Clay's alleged sexual abuse of Nina was "quite similar to the charged event." See Wheeler, 67 S.W.3d at 888. Clay allegedly sexually abused Nina in the same manner as he had sexually abused Anna; Anna and Nina were the same age; the sexual abuse of both girls mostly occurred during the same time period; and, on at least one occasion, Clay sexually abused both girls at the same time. Clay essentially argues that the testimony is unfairly prejudicial for the very reason article 38.37—and its documented legislative history—allows for its admissibility: sexual assault of a child is a highly offensive crime. See Alvarez, 491 S.W.3d at 371; TEX. CODE CRIM. PROC. art. 38.37, § 2(b); see also Pawlak, 420 S.W.3d at 811 (stating that "sexually related bad acts and misconduct involving children are inherently inflammatory," but that Rule 403 does not allow exclusion of "merely prejudicial" evidence) (citations omitted). Clay points to nothing in the testimony showing that it is unfairly prejudicial.
Moreover, the parties agree that there was no physical evidence of the offense, and thus the case primarily turned on Anna's credibility, which Clay attacked in his opening statement. See Wheeler, 67 S.W.3d at 888 ("[I]n prosecutions for sexual offenses, a successful conviction 'often depend[s] primarily on whether the jury believe[s] the complainant, turning the trial into a swearing match between the complainant and defendant.'"); Hammer, 296 S.W.3d at 562 ("Rule 403 . . . is a remedy that should be used sparingly, especially in 'he said, she said' sexual-molestation cases"); Alvarez, 491 S.W.3d at 371 (stating that, without testimony of extraneous sexual abuse of other children, "this becomes a 'he said, she said' case"). Having already determined that the testimony was relevant to prove a fact of consequence, we also conclude that the testimony was necessary to the State's case. See De La Paz, 279 S.W.3d at 348-49 (stating fourth factor of Rule 403 balancing test).
Finally, the testimony did not consume an undue amount of time at trial or distract the jury from considering the indicted offense. See id. (stating third factor of Rule 403 balancing test). The guilt-innocence phase of Clay's trial comprises nearly four-hundred pages in three volumes of the seven-volume reporter's record on appeal. Ten of those pages were devoted to Anna's testimony about Clay's alleged sexual abuse of Nina, and eleven pages were devoted to Nina's testimony on the same subject. Considering the State's need for the testimony in this "he said, she said" case and its relevancy on several grounds, the State spent a reasonable amount of time developing Anna's and Nina's testimony about the extraneous offense.
We therefore conclude that the trial court's admission of Anna's and Nina's testimony about Clay's alleged sexual abuse of Nina, an extraneous offense, was not unfairly prejudicial under Rule 403. See TEX. R. EVID. 403. We hold that the trial court did not abuse its discretion in overruling Clay's objections to the testimony. See Alvarez, 491 S.W.3d at 370-71.
We overrule Clay's first two issues.
Constitutionality of Penal Code Section 21.02
In his third issue, Clay argues that Penal Code section 21.02 is facially unconstitutional because it does not require jury unanimity on each underlying act when a defendant is charged with committing "two or more acts of sexual abuse." See TEX. PENAL CODE § 21.02(b), (d).
Clay concedes that he did not preserve this issue for review on appeal because he did not raise it in the trial court. "Constitutional challenges to statutes, including facial challenges, must be preserved in the trial court and cannot be raised for the first time on appeal."Alvarez, 491 S.W.3d at 368 (citing Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009)); see Ex parte Beck, 541 S.W.3d 846, 852-53 (Tex. Crim. App. 2017) (discussing, in habeas context, "the general rule that a facial constitutional challenge must be preserved during the trial proceedings or later attacks will be forfeited"); Smith v. State, 463 S.W.3d 890, 896 (Tex. Crim. App. 2015) (distinguishing exception to general rule that facial challenge may not be raised for first time on appeal in situation where "appellant is seeking relief for a conviction of a non-crime under a statute that has already been held to be invalid").
Clay relies on Ngo v. State to argue that jury charge error is "fundamental" and thus may be challenged for the first time on appeal even if not preserved in the trial court. See 175 S.W.3d 738 (Tex. Crim. App. 2005). Ngo states that courts analyze jury-charge issues to determine whether error exists regardless of whether such error was preserved, and that courts do not consider preservation of charge error until the harm analysis. Id. at 743. However, Clay does not challenge the jury charge in this case. Rather, he challenges the facial constitutionality of a statute, which must be preserved in the trial court. See Alvarez v. State, 491 S.W.3d 362, 368 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd) (citing Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009)); Ex parte Beck, 541 S.W.3d 846, 852-53 (Tex. Crim. App. 2017). Thus, Ngo does not apply in this case. --------
Even if Clay had preserved his constitutional challenge, we note that numerous courts of appeals, including this Court and the Second Court of Appeals, have rejected similar challenges to the constitutionality of section 21.02. See Guzman v. State, 591 S.W.3d 713, 729-31 (Tex. App.—Houston [1st Dist.] 2019, no pet.) ("We agree with the intermediate appellate courts that have addressed this issue and hold that Penal Code section 21.02 does not violate the state and federal guarantees of jury unanimity.") (collecting cases); Ingram v. State, 503 S.W.3d 745, 748 (Tex. App.—Fort Worth 2016, pet. ref'd) (collecting cases); see also, e.g., Kennedy v. State, 385 S.W.3d 729, 732 (Tex. App.—Amarillo 2012, pet. ref'd) ("[W]e conclude that section 21.02 does not violate Appellant's constitutional and statutory right to a unanimous jury verdict."), cert. denied sub nom., Kennedy v. Texas, 571 U.S. 1074 (2013); Martin v. State, 335 S.W.3d 867, 872-73 (Tex. App.—Austin 2011, pet. ref'd) (citing Jacobsen v. State, 325 S.W.3d 733, 739 (Tex. App.—Austin 2010, no pet.)), cert. denied sub nom., Martin v. Texas, 568 U.S. 1026 (2012)).
We overrule Clay's third issue.
Conclusion
We affirm the judgment of the trial court. We dismiss any pending motions as moot.
April L. Farris
Justice Panel consists of Justices Hightower, Countiss, and Farris. Do not publish. TEX. R. APP. P. 47.2(b).