Opinion
NO. 02-16-00375-CR
05-18-2017
RONALD PAUL HESLIP APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1469613R MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Ronald Paul Heslip appeals his conviction for continuous sexual abuse of a young child. In three points, he argues that section 21.02 of the penal code —the statute authorizing his conviction—is facially unconstitutional and that two statutes from which the trial court assessed court costs against him are likewise facially unconstitutional. With respect to each of the three points, prior opinions from this court foreclose the relief that appellant seeks. Thus, we affirm the trial court's judgment.
See Tex. Penal Code Ann. § 21.02(b) (West Supp. 2016).
Background Facts
Because appellant's points concern only facial challenges to statutes, we will not detail the facts leading to his charge and conviction for continuous sexual abuse of a young child.
The State charged appellant with continuous sexual abuse of a young child; the indictment alleged that during a period of thirty days or more, he committed two or more acts of sexual abuse against the child. Appellant pled not guilty, but after the parties presented evidence and arguments, a jury found him guilty. The trial court heard more evidence and arguments concerning his punishment and sentenced him to forty-five years' confinement.
In its judgment of conviction, the trial court required appellant to pay court costs of $679. The district clerk issued a bill of costs, showing that the $679 total included costs of $133 for "CCC-Felony" and $100 for "Child Abuse Prv." Appellant brought this appeal.
Constitutional Challenges
Appellant's points on appeal each concern facial constitutional challenges to Texas statutes. In his first point, he contends that section 21.02 of the penal code, which creates the offense of continuous sexual abuse of a young child, is facially unconstitutional. See Tex. Penal Code Ann. § 21.02. In his second point, he argues that article 102.0186 of the code of criminal procedure, which authorizes a $100 cost for child abuse prevention upon a defendant's conviction for certain offenses, is facially unconstitutional. See Tex. Code Crim. Proc. Ann. art. 102.0186 (West Supp. 2016). In his third point, he asserts that certain provisions within section 133.102 of the local government code are facially unconstitutional. See Tex. Loc. Gov't Code Ann. § 133.102 (West Supp. 2016).
Section 21.02Appellant first contends that section 21.02 of the penal code is unconstitutional and that we should therefore reverse his conviction and enter a judgment of acquittal. Specifically, appellant argues that section 21.02(d) violates the constitutional requirement of jury unanimity. See Tex. Penal Code Ann. § 21.02(d); Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011) ("Texas law requires that a jury reach a unanimous verdict about the specific crime that the defendant committed."); see also Pollock v. State, 405 S.W.3d 396, 404 (Tex. App.—Fort Worth 2013, no pet.) (explaining that every juror must agree that the defendant committed the same criminal act but that the jurors need not agree that the defendant committed the crime in one specific way). Section 21.02(d) states that to convict a defendant of continuous sexual abuse of a young child, members of the jury are not required to "agree unanimously on which specific acts of sexual abuse were committed . . . 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).
Appellant forthrightly concedes that we have rejected the argument that section 21.02(d) violates the constitutional requirement of jury unanimity. Indeed, we have repeatedly held that section 21.02(d) does not violate the unanimity requirement. See Ingram v. State, 503 S.W.3d 745, 748 (Tex. App.—Fort Worth 2016, pet. ref'd) (collecting cases); Pollock, 405 S.W.3d at 405 ("[S]ection 21.02(d) does not allow jurors to convict on the basis of different elements, and this court and our sister courts have held that the statute does not violate the state constitutional right to jury unanimity."); see also Machado v. State, No. 02-15-00365-CR, 2016 WL 3962731, at *4 (Tex. App.—Fort Worth July 21, 2016, pet. ref'd) (mem. op., not designated for publication) (citing decisions from other courts of appeals that have reached the same conclusion). Appellant's argument in this appeal does not persuade us to depart from our precedent or to differ from the persuasive decisions of other courts of appeals. Thus, based on the rationale expressed in the cases cited above, we again hold that section 21.02 does not violate the constitutional requirement of jury unanimity. We overrule appellant's first point.
Appellant states that he is raising the argument here to preserve it for further review.
Article 102.0186
Next, appellant challenges the facial constitutionality of code of criminal procedure article 102.0186, which authorizes the assessment of a $100 cost upon a conviction for continuous sexual abuse of a young child, among other offenses. See Tex. Code Crim. Proc. Ann. art. 102.0186(a), (c) (stating that the $100 cost must be placed in a county's child abuse prevention fund and may be used "only to fund child abuse prevention programs in the county where the court is located"). He contends that this cost violates the separation of powers clause of the Texas constitution. See Tex. Const. art. II, § 1.
Like in his first point, appellant recognizes that we have previously rejected his constitutional argument concerning article 102.0186. See Ingram, 503 S.W.3d at 749 ("Because the imposition of this cost is limited to those defendants found guilty of crimes against children, the $100 imposed to be deposited in 'the county child abuse prevention fund' is related to the administration of the criminal justice system such that this cost is not facially unconstitutional."); see also Machado, 2016 WL 3962731, at *4 (rejecting a constitutional challenge to article 102.0186). We are not persuaded that we should overrule our recent holding in Ingram. Thus, we continue to hold that article 102.0186 is facially constitutional. We overrule appellant's second point.
Section 133.102In his third point, appellant contends that section 133.102 of the local government code, which authorizes a $133 cost upon conviction of a felony and allocates that cost by percentages to several accounts, is unconstitutional to the extent that it allocates the cost to accounts for "abused children's counseling" and for "comprehensive rehabilitation." He asks us to reduce his $133 cost by an amount equal to the percentages allocated to those accounts.
Recently in Salinas v. State, the court of criminal appeals held that section 133.102 is facially unconstitutional (as violating separation of powers principles) to the extent that it allocates funds to those two accounts. No. PD-0170-16, 2017 WL 915525, at *3-5 (Tex. Crim. App. Mar. 8, 2017). But the court appeared to conclude that only defendants who had brought challenges to section 133.102 in that court before the date of that court's opinion or defendants whose trials end after the date of the court's mandate could benefit from this constitutional holding. See id. at *6. Applying Salinas, the majority of this court has held that we cannot grant relief from the unconstitutional costs under section 133.102 related to abused children's counseling and comprehensive rehabilitation. See Horton v. State, No. 02-16-00229-CR, 2017 WL 1953333, at *5-6 (Tex. App.—Fort Worth May 11, 2017, no pet. h.) (en banc); Hawkins v. State, No. 02-16-00104-CR, 2017 WL 1352097, at *2 (Tex. App.—Fort Worth Apr. 13, 2017, no pet. h.). But see Horton, 2017 WL 1953333, at *9 (Livingston, C.J., dissenting) (opining that the holding regarding retroactivity in Salinas "rests on inconsistent reasoning and violates principles of due process, due course of law, equal protection, and equal access to courts"); Bridges v. State, No. 06-16-00162-CR, 2017 WL 1424811, at *1 (Tex. App.—Texarkana Apr. 19, 2017, no pet. h.) (mem. op., not designated for publication) (applying the constitutional holding in Salinas and modifying a judgment to eliminate the costs under section 133.102 attributable to abused children's counseling and comprehensive rehabilitation).
The court of criminal appeals has not yet issued the mandate in Salinas.
In accordance with my dissenting opinion in Horton, in this appeal, the State argues that we should modify the trial court's judgment to reduce the $133 cost under section 133.102.
Therefore, following this court's and the court of criminal appeals's recent precedent, we sustain appellant's third point to the extent that he argues that the costs under section 133.102 for "comprehensive rehabilitation" and "abused children's counseling" are unconstitutional, but we decline to modify the trial court's judgment to reduce the cost based the retroactivity analysis in Salinas. See Horton, 2017 WL 1953333, at *5-6; Hawkins, 2017 WL 1352097, at *3.
Conclusion
Having overruled appellant's first two points and having sustained his third point only to the extent described above, we affirm the trial court's judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE PANEL: LIVINGSTON, C.J.; WALKER and PITTMAN, JJ. PITTMAN, J., concurs without opinion. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 18, 2017