Garcia v. State

• Decision Date: 23 November 2022
• Docket Number: 02-21-00203-CR
• Parties: Vidal Presas Garcia, Appellant v. The State of Texas
• Court: Texas Court of Appeals

Vidal Presas Garcia, Appellant
v.
The State of Texas

No. 02-21-00203-CR

Court of Appeals of Texas, Second District, Fort Worth

November 23, 2022

Do Not Publish Tex.R.App.P. 47.2(b)

On Appeal from Criminal District Court No. 1 Tarrant County, Texas Trial Court No. 1690338R

Before Kerr, Birdwell, and Womack, JJ.

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MEMORANDUM OPINION

DANA WOMACK, JUSTICE

I. Introduction

In December 2021, Appellant Vidal Presas Garcia was found guilty of continuous sexual abuse of a young child. The jury assessed his punishment at thirty years' incarceration. On appeal, Garcia argues in a single point that his conviction violated his right to due process because the jury charge failed to require unanimity. We affirm.

II. Background

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.^[1] This 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

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(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. [Emphasis added]

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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 offense.

The jury found Garcia guilty and assessed his sentence at thirty years in prison. This appeal followed.^[2]

III. Discussion

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

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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...