CLYDIE RAY HENSHAW JR v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Lang

Appellant, pursuant to a plea agreement, pleaded guilty to the continuous sexual abuse of a child.   The trial court assessed punishment at twenty-five years' confinement.   On appeal, appellant challenges the trial court's denial of appellant's pre-trial motion to declare section 21.02 of the Texas Penal Code unconstitutional.   We overrule appellant's sole issue and affirm the trial court's judgment.

Prior to trial, appellant filed a motion to declare section 21.02 of the penal code unconstitutional.   In his motion, appellant alleged the continuous sexual abuse statute found in section 21.02 was unconstitutional because it:  (1) violates his right to a unanimous jury verdict under the Texas Constitution;  and (2) violates his rights to due process under both the United States and the Texas Constitutions.   After the trial court denied appellant's motion, appellant pleaded guilty to the offense of continuous sexual abuse of a child and was sentenced to twenty-five years' confinement.   This appeal followed.

In his sole issue, appellant contends section 21.02 of the penal code unconstitutionally allows a jury to convict a defendant without being unanimous as to the underlying predicate offenses which compose the umbrella offense of continuous sexual abuse.   This Court has previously considered the constitutionality of the statute in question and concluded, contrary to appellant's argument, that section 21.02 of the penal code does not violate the unanimity requirement.  Render v. State, 316 S.W.3d 846, 857 (Tex.App.-Dallas 2010, pet. ref'd), cert. denied, 131 U.S. 1533 (2011).   We have also considered the Supreme Court's analysis in Richardson v. United States, 526 U.S. 813 (1999), cited by appellant in his brief, and concluded it did not support the argument appellant raises.   See Render, 316 S.W.3d at 857–58.   Appellant presents no new analysis or persuasive argument to convince us to change our conclusion in Render.   We overrule appellant's sole issue.

Accordingly, we affirm the trial court's judgment.

100104F.U05

DOUGLAS S. LANG JUSTICE