JOSE EDGAR HERNANDEZ v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

JOSE EDGAR HERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–10–00493–CR

Decided: October 27, 2011

Before Justices Morris, O'Neill, and Fillmore

MEMORANDUM OPINION

Opinion By Justice Morris

In a single issue, Jose Edgar Hernandez complains that the trial court abused its discretion when it denied his motion to quash the indictment.   We affirm the trial court's judgment.   The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts.   We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.

Before trial, appellant filed a motion to quash the indictment in his case, arguing that the offense for which he was indicted, continuous sexual abuse of a young child, permits a jury verdict that is not unanimous in violation of the Texas Constitution and the Texas Code of Criminal Procedure.   The trial court denied the motion to quash.   Appellant now asserts on appeal that the trial court abused its discretion in denying the motion because the statute fails to require a unanimous verdict in violation of the United States and Texas constitutions.   Evidence at trial showed appellant engaged in sexual contact with the child complainant starting when she was seven years old.   When she was approximately eleven years old he began having sexual intercourse with her three to four times a week and eventually impregnated her at age thirteen.

Appellant attacks the constitutionality of the continuous sexual abuse of young child statute, penal code section 21.02.   See Tex. Penal Code Ann. § 21.02(d) (West 2011).   This Court has already concluded that section 21.02 does not violate the unanimity requirements of the United States and Texas constitutions.   See Render v. State, 316 S.W.3d 846, 856–58 (Tex.App.—Dallas 2010, pet. ref'd), cert. denied, 131 S.Ct. 1533 (2011).   We therefore resolve appellant's sole issue against him.   We affirm the trial court's judgment.

JOSEPH B. MORRIS JUSTICE

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