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The Crime of Continuous Sexual Abuse of a Child, Texas Penal Code 21.02(c) Part Two of Two: Is Texas’ Version of Jessica’s Law Unconstitutional?

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Criminal Defense Discussion of Constitutional Challenges to Texas’ Version of Jessica’s Law

Recently a petitioner took his case to the highest court in the land, the Supreme Court of the United States (SCOTUS), asking the High Court to consider whether or not the Texas statute enacting the Lone Star State’s version of Jessica’s Law violates the federal constitution.  The future of Tex. Penal Code §21.02 was specifically challenged in James Dalton Smith vs. the State of Texas, Case No. 18-7967, in the Supreme Court of the United States on Petition for Writ of Certiorari.

For more on this specific Texas sex crime law, read our discussion in “The Crime of Continuous Sexual Abuse of a Child, Texas Penal Code 21.02(c): Part One of Two.

Key here: the petitioner represented himself:  inmate James Dalton Smith filed his Petition for Writ of Certiorari in forma pauperis.  He presented two questions to SCOTUS:

  1. Whether a criminal defendant may raise for the first time on direct appeal the constitutionality of the statute creating and defining the crime for which the defendant has been convicted – To wit, a facial challenge to a penal statute?
  2. Whether the Texas ‘Continuous Sexual Abuse of a child’, Texas Penal Code § 21.02, is Unconstitutional?

In support of his arguments, he offered only two precedents:  Casey v. State, 349 S.W.3d 825 (Tex. App.-El Paso 2011, pet. ref’d) and Jacobsen v. State, 325 S.W.3d 733, 739 (Tex. App.-Austin 2010, no pet.).  Both were advanced in support of his constitutional challenge to the statute.  No precedent was provided for the first question dealing with timing of the constitutional challenge (e.g., being presented for the first time on direct appeal).

As backstory to Mr. Smith’s petition, he was tried and convicted on one count of violating Texas Penal Code §21.02, Continuous Sexual Abuse of a Child Younger than Fourteen, and two counts of Indecency with a Child by Sexual Contact.  After a jury trial, Mr. Smith was found guilty on both counts and sentenced to 30 years on the CSA count and 4 years on each indecency count. For details, read Smith v. State, No. 05-16-01318-CR (Tex. App. July 16, 2018).

His appeal of the trial court’s judgment to the Court of Appeals for the Fifth District of Texas here in Dallas was based upon nine issues, including a direct challenge to the constitutionality of the Texas CSA statute.  The state appeals court ruled as follows:

“In his first issue, appellant argues the continuous sexual abuse statute, penal code section 21.02, in unconstitutional on its face and as applied and resulted in fundamental error as applied in this case. However, appellant did not raise the issue of the constitutionality of section 21.02 in the trial court. A defendant may not raise for the first time on appeal a facial challenge to the constitutionality of a statute. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). Further, appellant must preserve an “as applied” constitutional challenge by raising it at trial. Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008). Thus, we conclude appellant has waived his right to challenge the constitutionality of section 21.02. We overrule appellant’s first issue.”

In April 2019, SCOTUS summarily denied his request that the High Court consider his case.  The petition for writ was denied without explanation.

Of importance here is the reality that Mr. Smith brought a challenge of the constitutionality of the Crime of Continuous Sexual Abuse of a Child, Texas Penal Code 21.02(c) before a state criminal appeals court as well as SCOTUS and his only answer dealt with the timing of the constitutional question.  As the Dallas appeals court explained, in Texas it has been held that a facial challenge to a statute’s constitutionality must be addressed during the trial, and not for the first time on appeal.  Smith, citing Karenvev at 434.

This leaves us to ponder whether or not Texas’ version of Jessica’s Law is vulnerable to constitutional challenge in the future.  Consider the following.

1.  Unanimous Jury.

In Jacobsen v. State, 325 S.W.3d 733, 737-9 (Tex. App.-Austin 2010, no pet.), a Texas state court of appeals (without review by a higher court) held that the CSA statute is constitutionally acceptable insofar as it requires the jury to agree unanimously on a single element of a “series” of sexual abuse.  The statute does not make each “act of sexual abuse” (violation of Texas sex crime law as described in the CSA statute) a separate element of the offense to be agreed upon unanimously.

Other Texas appeals courts have joined in ruling that the CSA statute does not violate constitutional protections insofar as its requirements for juries to be unanimous in their findings.  See, e.g., Navarro v. State, 535 S.W.3d 162, 165-66 (Tex. App.-Waco 2017, pet. ref’d)Ingram v. State, 503 S.W.3d 745, 748 (Tex. App.-Fort Worth 2016, pet. ref’d)Fulmer v. State, 401 S.W.3d 305, 313 (Tex. App.-San Antonio 2013, pet. ref’d)McMillian v. State, 388 S.W.3d 866, 872-73 (Tex. App.-Houston [14th Dist.] 2012, no pet.)Kennedy v. State, 385 S.W.3d 729, 732 (Tex. App.-Amarillo 2012, pet. ref’d)Casey v. State, 349 S.W.3d 825, 829 (Tex. App.-El Paso 2011, pet. ref’d)Reckart v. State, 323 S.W.3d 588, 600-01 (Tex. App.-Corpus Christi 2010, pet. ref’d)Render v. State, 316 S.W.3d 846, 857-58 (Tex. App.-Dallas 2010, pet. ref’d).

2.  Due Process.

In Martin v. State, 335 S.W.3d 867, 872-73 (Tex. App.-Austin 2011, pet. ref’d), a Texas appeals court (with approval of the state’s highest criminal court) found the Texas CSA statute does not violate constitutional due process protections when it allows a conviction after the jury unanimously finds there has been a course of conduct consisting of repeated acts of sexual abuse, without a unanimous verdict on the individual acts that made up that course of conduct, because the “acts of sexual abuse” defined by the CSA law are viewed to be morally and conceptually equivalent.

As another Texas appeals court explained that next year:

“The alternate acts of sexual abuse listed under section 21.02(b) all are felonies involving the actual or intended sexual abuse of a young child. We believe the alternate acts are morally equivalent and conceptually similar, and we conclude that the legislature has not violated due process by treating these alternate acts as manner and means under section 21.02.” McMillian v. State, 388 S.W.3d 866, 872-3 (Tex.App.-Houston [14th Dist.] 2012, no pet.)

Other Texas appeals courts that have found that the CSA law does not violate constitutional due process include: Fulmer, 401 S.W.3d at 313Casey, 349 S.W.3d at 829-30Reckart, 323 S.W.3d at 600-01; and Render, 316 S.W.3d at 858.

The Constitutional Problems with States’ Various Versions of Jessica’s Law

The Texas CSA law is one of many versions of state sex crimes laws passed after Florida’s initial passage of its criminal statute in response to the outrage and outcry following the Jessica Lunsford case in 2005.  (We discuss this in our previous post.)  Similar legislation has been passed in other countries, too (such as Australia). See Woiwod, D. M., & Connolly, D. A. (2017). Continuous Child Sexual Abuse: Balancing Defendants’ Rights and Victims’ Capabilities to Particularize Individual Acts of Repeated AbuseCriminal Justice Review42(2), 206–225.

However, in the lawmakers’ zeal to pass legislation addressing sex crimes involving minor victims, there continues to be concerns that the rights of the accused (innocent until convicted) are being trampled. 

Constitutional challenges to these various Jessica’s Laws, including Texas Penal Code §21.02, can be expected to continue in the courts.  Why?


1.  Different Treatment for Those Charged with CSA

For one thing, it is clear that those accused under Texas’ Continuous Sexual Abuse of a Child law as enacted in under Texas Penal Code 21.02 receive different treatment than if they were charged under other state or federal sex crimes.  Or other serious felonies, like murder, for that matter.

2.  More Severe Punishment than Almost Any Other Crime

Another concern, as we discussed in our past post, is that the reality today in the State of Texas that anyone convicted of CSA faces a more severe punishment than if they had been found guilty of almost any other crime on the books.  As we’ve pointed out already:

  • Given that most CSA defendants are 40+ years old, a conviction for Continuous Sexual Abuse of a Child in Texas is in reality the same thing as a life sentence, as a general rule. This is how the Texas Legislature effectively eliminated the jury’s discretion in sentencing CSA defendants.
  • Those convicted of CSA are not eligible for probation. Deferred adjudication is not available under the law. Also, parole is not available in a CSA case.  These are calendar sentences.
  • Consider that in Texas, murder convictions result in a sentencing range of 5 to 99 years, or life imprisonment. A Texas defendant convicted of murder is eligible for parole after serving one-half of the sentence, or 30 years, whichever is less.  From this perspective, it’s clear that Continuous Sexual Abuse of a Child is a far more serious crime than first degree murder according to current Texas law.
  • An average CSA conviction almost always results in a more severe punishment than most murder defendants receive in this state.

3.  Unanimous Jury Decisions on Crimes and SCOTUS Precedent

Additionally, while Texas courts have ruled that the CSA law’s perspective on unanimous juries is constitutionally okay, there’s an argument that this might not always hold up under SCOTUS constitutional scrutiny.

The Texas CSA statute states that someone can be found guilty of violating Texas Penal Code §21.02 even if all the jurors do not agree (no unanimous jury verdict) on things like whether or not there was (1) aggravated kidnapping with the intent to sexually abuse the victim or (2) aggravated sexual assault of a child.  Instead, the CSA law states the accused can be convicted if the jury votes two or more acts listed in the statute has been committed, and the jury does not need a unanimous vote here.

Thing is: there are cases out there where the United States Supreme Court has held that a jury must unanimously vote that the accused has committed a series of acts in order for there to be a conviction that passes constitutional muster.

Texas has circumvented this requirement by discussing CSA as looking at the “acts of sexual abuse” as elements in a series and not separate crimes.

This, it’s argued, brings the CSA statute under a SCOTUS exception which allows for the jury to convict without unanimity if they all agree that the accused committed the statute’s stated number of “acts of sexual abuse” and not going into the elements of the crimes defined in the list.

From Jacobsen, 325 SW3d at 736-7, comes first the Texas explanation of SCOTUS’s requirements:

The United States Constitution limits a state’s power to define crimes in ways that would permit juries to convict while disagreeing about means, at least where that definition risks serious unfairness and lacks support in history or tradition. Richardson v. United States, 526 U.S. 813, 820, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) (citing Schad v. Arizona, 501 U.S. 624, 632-33, 111 S.Ct. 2491, 115 L.Ed.2d 555 1991)); see Jefferson, 189 S.W.3d at 313-14 (discussing Richardson and Schad); Ngo, 175 S.W.3d at 745-47 (same). “[N]othing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of `Crime’ so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction.” Schad, 501 U.S. at 633, 111 S.Ct. 2491.

Then Jacobsen explains how it rules that the CSA law is constitutionally acceptable:

The legislature left no doubt as to its intent.… Under the plain language of section 21.02, it is the commission of two or more acts of sexual abuse over the specified time period — that is, the pattern of behavior or the series of acts — that is the actus reus element of the offense as to which the jurors must be unanimous in order to convict. The individual acts of sexual abuse that make up this pattern of behavior or series of acts are not themselves elements of the offense, but are merely evidentiary facts, the manner and means by which the actus reus element is committed. …. Decisions about what facts are necessary to constitute a crime, and therefore must be proved individually, and what facts are mere means represent value choices more appropriately made in the first instance by a legislature than by a court. Schad, 501 U.S. at 638, 111 S.Ct. 2491…. We presume that the legislature did not act unreasonably or arbitrarily, and that it had due regard for constitutional requirements. See Frieling v. State, 67 S.W.3d 462, 472 (Tex.App.-Austin 2002, pet. ref’d).

Will SCOTUS Agree With Lack of Unanimous Jury Verdicts for CSA Cases?

The petition filed by convicted inmate James Dalton Smith may have been denied by SCOTUS last April, but for some criminal defense lawyers, it’s a stark reminder that SCOTUS has yet to approve the Texas version of Jessica’s Law, particularly how Tex. Penal Code §21.02  fails to require what does, in fact, seem to be clearly demanded by the language of the statute itself.

Reading the CSA statute, it states that the prosecution must plead that the accused committed at least two “acts of sexual abuse” which are then defined by reference to other criminal statutes.  The CSA law then adds the requirement that the prosecution show that these two (or more) criminal acts have to have taken place over a time period of 30 days or more.

The CSA statute defines the “acts of sexual abuse” by reference other sections of the Texas Penal Code.  If the accused had been charged with ONLY one of these sections, then the jury would have to have a unanimous verdict in order to convict.  For instance, anyone facing a single charge of aggravated sexual assault of a child cannot be convicted without a unanimous jury verdict.

Why should the burden of proof be less for the prosecutor when he (or she) stacks the indictment to include a CSA count?  Aren’t all the “acts of sexual abuse” listed in the CSA statute distinct criminal offenses that must be proven with a unanimous jury verdict in order for there to be a conviction?

The challenged in James Dalton Smith vs. the State of Texas, Case No. 18-7967, in the Supreme Court of the United States on Petition for Writ of Certiorari  may have failed, but many are waiting for another petition to present itself before SCOTUS in order for these constitutional considerations regarding Tex. Penal Code §21.02 to be heard.


For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, Top 10 Mistakes In Sexual Assault And Indecency With A Child Cases.”

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