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Fort Worth, Texas – Criminal lawyer represented Defendant with continuous sexual abuse of a young child. charge.
In June 2021, Garcia was reindicted for the felony offense of continuous sexual
abuse of a young child pursuant to Section 21.02 of the Texas Penal Code.
statute provides in pertinent part as follows:
(b) A person commits an offense if:
(1) during a period that is 30 or more days in duration, the person
commits two or more acts of sexual abuse, regardless of whether the acts
of sexual abuse are committed against one or more victims; and
(2) at the time of the commission of each of the acts of sexual abuse,
the actor is 17 years of age or older and the victim is
(A) a child younger than 14 years of age.
. . . .
1The indictment contained four additional counts, all of which were lesser
included offenses of the continuous sexual abuse of a young child offense. Having
convicted Garcia of continuous sexual abuse of a young child, the jury did not reach
any of the other counts.
(c) For purposes of this section, “act of sexual abuse” means any act that
is a violation of one or more of the following penal laws:
. . . .
(2) indecency with a child under Section 21.11(a)(1), if the actor
committed the offense in a manner other than by touching, including
touching through clothing, the breast of a child;
(3) sexual assault under Section 22.011;
(4) aggravated sexual assault under Section 22.021;
. . . .
(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(b)–(d) (emphasis added).
Garcia’s trial took place in November and December 2021. Tracking the text
of the statute, the trial court’s jury charge included the following language:
You are further instructed that in order to find the defendant
guilty of the offense of continuous sexual abuse of a young child or
children, you 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. However, . . . you
must unanimously agree that the defendant, . . . during a period that is 30
or more days in duration, committed two or more acts of sexual abuse.
Garcia did not object to the jury charge, nor did he request a jury instruction requiring
unanimity regarding the specific acts of sexual abuse that form the basis of the
The jury found Garcia guilty and assessed his sentence at thirty years in prison.
This appeal followed.2
In his sole point on appeal, Garcia argues that his due process rights were
violated because the trial court’s jury charge did not require unanimity. The State
counters that Garcia’s sole point is, in substance, a constitutional due process
complaint, not one of charge error, and that, therefore, Garcia failed to preserve the
issue by objecting at trial. Because we agree with the State that Garcia has failed to
preserve his sole point and because we have consistently rejected this argument in the
past, we will affirm.
“Jury charge complaints need not be preserved with an objection.” Shafer v.
State, No. 02-10-00496-CR, 2012 WL 745422, at *1 (Tex. App.—Fort Worth Mar. 8,
2012, pet. ref’d) (mem. op., not designated for publication); see also Bluitt v. State,
137 S.W.3d 51, 53 (Tex. Crim. App. 2004) (noting that “[a]n appellant may
raise . . . unobjected-to charge error on appeal”). Rather, whether a defendant objects
to the charge merely determines which harm analysis a reviewing court undertakes if it
2Garcia also filed a motion for new trial, which was denied by operation of law.
finds the charge to be erroneous.3
Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex.
Crim. App. 1994); Almanza, 686 S.W.2d at 171. Thus, a charge error complaint may
be raised for the first time on appeal. See Abdnor, 871 S.W.2d at 732.
In contrast, constitutional due process complaints must be preserved by an
objection at trial. See Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009)
(“Indeed, our prior decisions make clear that numerous constitutional rights,
including those that implicate a defendant’s due process rights, may be forfeited for
purposes of appellate review unless properly preserved.”); Briggs v. State, 789 S.W.2d
918, 924 (Tex. Crim. App. 1990) (holding that defendant was required to object at trial
that his constitutional right to due process was violated in order to preserve the issue
for appeal); see also Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008) (noting
that “almost all error—even constitutional error—may be forfeited if the appellant
failed to object”). Thus, by failing to raise a constitutional due process complaint in
3As the Texas Court of Criminal Appeals has explained, the harm analysis is
more stringent if the defendant failed to object to the charge:
If there was error and appellant objected to the error at trial, reversal is
required if the error “is calculated to injure the rights of the defendant,”
which we have defined to mean that there is “some harm.” Almanza[ v.
State], 686 S.W.2d[ 157,] 171 [(Tex. Crim. App. 1985) (op. on reh’g)]. If
the error was not objected to, it must be “fundamental” and requires
reversal . . . only if it was so egregious and created such harm that the
defendant “has not had a fair and impartial trial.” Id.
Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009).
the trial court, a defendant forfeits appellate review of the issue. See Clark v. State,
365 S.W.3d 333, 340 (Tex. Crim. App. 2012).
Here, Garcia did not raise a constitutional due process objection at trial and
therefore has forfeited the right to appeal his conviction on this basis. See id.; see also
Anderson, 301 S.W.3d at 280; Briggs, 789 S.W.2d at 924. In order to circumvent the
rules of issue preservation, Garcia attempts to characterize his sole point—which is
clearly a constitutional due process complaint—as a charge error issue.
Garcia asserts that the jury charge was erroneous because it violated Code of
Criminal Procedure art. 36.14, which requires the charge to “distinctly set[ ] forth the
law applicable to the case.” Tex. Code Crim. Proc. Ann. art. 36.14. However, as
Garcia concedes, the jury charge tracked the language of Section 21.02(d) of the Texas
Penal Code. Thus, Garcia’s actual complaint cannot be that the jury charge failed to
clearly or accurately set forth the applicable law. Rather, his complaint lies with the
As the following excerpts from Garcia’s brief demonstrate, his argument is, in
essence, that Section 21.02(d) should be changed to require jury unanimity regarding
the underlying acts of sexual abuse, not that the trial court’s charge failed to properly
set forth the applicable law as currently reflected in the statute:
• The jury charge on the continuous sexual assault of a young child
charge permits the jury to convict without obtaining unanimity
regarding the acts of sexual abuse alleged to have been committed.
The conviction without jury unanimity therefore violates appellant’s
right to due process.
• Because the statute is clear, the question becomes whether it is
consistent with due process for the legislature to criminalize a pattern
of conduct consisting of the commission of two or more sexually
abusive offenses over a period of time without requiring the jury to
unanimously agree about the individual offenses the defendant
• Because the statute dispenses with the requirement of jury
unanimity[,] it arguably violates the United States and Texas
Constitutions, the Texas Code of Criminal Procedure, and is contrary
to decades of Texas and federal case law.
As these passages illustrate, Garcia “drapes his complaint in a jury-charge-error
claim through which is plainly visible a bare challenge to the constitutionality of
[S]ection 21.02(d).” Shafer, 2012 WL 745422, at *2. In Shafer, we addressed a similar
attempt to recast a constitutional due process complaint as one of charge error. Id. at
*1–2. Shafer, like Garcia, failed to raise a constitutional due process objection at trial
and thus tried to frame his appellate argument as charge error. Id. at *2. However,
disregarding the label of Shafer’s complaint and looking instead to its substance, we
concluded that Shafer’s argument was actually “a plain challenge to the
constitutionality of [S]ection 21.02(d)” and that Shafer had forfeited this issue by
failing to object at trial. Id.
Because Garcia’s appellate argument—like Shafer’s—is, in substance, a
constitutional due process challenge to Section 21.02(d) and Garcia—like Shafer—
failed to object on constitutional due process grounds at trial, Garcia has forfeited his
claim for review. Id. (first citing Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App.
2009); then citing Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008);
then citing Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995); and then citing
Carmell v. State, 331 S.W.3d 450, 460 (Tex. App.—Fort Worth 2010, pet. ref’d)); see also
Anderson, 301 S.W.3d at 280; Briggs, 789 S.W.2d at 924.
Moreover, even assuming that Garcia had not forfeited appellate review of his
sole point, we must overrule it on the merits. We and our sister courts have
consistently rejected the argument that Section 21.02 violates a defendant’s
constitutional due process rights or the jury unanimity requirement. See Williams v.
State, No. 02-20-00104-CR, 2021 WL 5227167, at *7 (Tex. App.—Fort Worth
Nov. 10, 2021, no pet.) (mem. op., not designated for publication) (rejecting argument
“that unanimity is required under [Section 21.02] as to the underlying offenses and
that the trial court erred by not including such an instruction in the charge”); Heide v.
State, No. 02-20-00056-CR, 2021 WL 2460734, at *3 (Tex. App.—Fort Worth
June 17, 2021, pet. ref’d) (mem. op., not designated for publication) (holding that
Section 21.02 does not violate a defendant’s right to a unanimous jury verdict); Salinas
v. State, No. 02-18-00060-CR, 2019 WL 1574953, at *11 (Tex. App.—Fort Worth
Apr. 11, 2019, pet. ref’d) (mem. op., not designated for publication) (noting that “this
court has already held that [Section 21.02] does not violate a constitutional right to a
unanimous jury verdict”); Waters v. State, No. 02-17-00368-CR, 2018 WL 6565939, at
*1 (Tex. App.—Fort Worth Dec. 13, 2018, pet. ref’d) (mem. op., not designated for
publication) (same); Harris v. State, No. 02-17-00278-CR, 2018 WL 3153605, at *2
(Tex. App.—Fort Worth June 28, 2018, pet. ref’d) (mem. op., not designated for
publication) (holding Section 21.02 does not violate the Due Process Clause); Pollock v.
State, 405 S.W.3d 396, 404–05 (Tex. App.—Fort Worth 2013, no pet.) (holding that
Section 21.02 did not violate the right to jury unanimity, even though the statute did
not require jury unanimity on which specific acts of sexual abuse were committed by a
defendant or the exact dates when the acts were committed); see also Navarro v. State,
535 S.W.3d 162, 165–66 (Tex. App.—Waco 2017, pet. ref’d) (holding Section 21.02
does not violate Article V, Section 13); Fulmer v. State, 401 S.W.3d 305, 312–13 (Tex.
App.—San Antonio 2013, pet. ref’d) (holding Section 21.02 does not violate Article
V, Section 13 or Article I, Section 19 of the Texas Constitution or the federal Due
Process Clause); Jacobsen v. State, 325 S.W.3d 733, 736–39 (Tex. App.—Austin 2010,
no pet.) (holding Section 21.02 does not violate Article V, Section 13 or the federal
Due Process Clause). Garcia’s argument does not persuade us to depart from our
precedent or to differ from the persuasive decisions of other courts of appeals.
We overrule Garcia’s sole point.
Outcome: Having overruled Garcia’s sole point, we affirm the trial court’s judgment.