/65-/S No. PD-10165-15 )R!G!NAL RECEIVED IN In The Court of Criminal Appeals COURT OF CRIiiMAL APPEALS Austin Texas
APR 17 2015
Eric L. Hill, Abel Acosta, Clerk Appellant
vs
The State of Texas, Appellee FILED \H COURT OF CRIMINAL APPEALS From The Six Court of Appeals APR 17 2015 No. 06-14-00014-CR Trial No. 43,089B Appellant Petition For Discretionary Review Aoe/ Acosta, Clerk
Respectfully Submitted Eric L. Hill TDCJ-CID No. 1917752 Allred Unit 2101 FM 369 North . Iowa Park, Tx. 76367 Appellant. Table of Contents Page No-
3 Index of Authorities
3 Statement Regarding Oral Arguement 4 Statement Regarding Case 3 Statement of Procedual History 4,5 Grounds for Review Number One The jury charged violated the requirement of a unanimous verdict 4,5 Grounds for Review Number Two There is insufficient evidence to sustain a conviction
Prayer for Relief/Conclusion %
Certificate of Services l
Unsworn Declaration
[2] Oral Arguement
The Appellant does not wish to have a oral arguement the Appellant is incarce rated and does not wish to incur the cost upon the court so no oral arguement is requested.
Index of Authorities page
Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010) 5,7 Johnson v. State, 23 S.W.3d 1 (Tex.Crim.App. 2000) 5,7 Lane v. State, 151 S.W.3d 188 (Tex.Crim.App. 2004) 5,7
Morales v. State, 416 S.-W.3d (Tex.App. Houston 14th Dist-2013) 5 Ngo v. State, 175 S.W.3d 738 (Tex.Crim.App. 2005) 5 Young v. State, 14 S.W.3d 748 (Tex.Crim.App. 2000) 5,7
Statement of Procedural History
On January 9,2015 the sixth court of appeals issued its opinion -affirming, the Appellant's conviction for the offense of continuous violence against the family. The Appellant's attorney on appeal files a motion with the 188th Dist rict Court for Leave to file a Discretionary Review for the appellant and was Granted. Attorney later filed a motion for extension of time. The PDR Brief w- as due on 2-8-15. Time was granted- Attorney has filed a Motion to Withdrawl. Notice was served on the Appellant on Feb. 18,2015. The state granted the Pro se petitioner time to file April 10,2015.
Statues
Texas Code of Criminal Procedure Art- 4.06 5,7 Texas Family Code Chapter 91.003 6 Texas Code Criminal Art- 11-43 5'7
[3] No. PD-0165-15
Eric L. Hill Appellant
The State of Texas Appellee
Petition For Discretionary Review
To The Honorable Court of Criminal appeals of Texas: Appellant Eric L. Hill- submits his Petition for discretionary review to c- orrect errors of law committed by the sixth court of appeals, in favor of app ellee, State of Texas. Appellant was the accused in the trial court and the a- ppellant in the court of appeals. For clarity, Eric L. Hill will be referred to as the Appellant and The State of Texas will be referred to as the Appellee Please note that the appellant does so without the benefit of the record which a copy was not afforded to the Petitioner.
Statement of the Case
On October 10,2013, the Appellant was indicted for the offense continuous violence aqainst the family under the authority of Texas Penal Code, Sec. 25. 11. The indictment sets out three misdemeanor offense. of;: family violence-alleg ing acts by the appellant against Raven Thomas. The indictment also contained two sequential prior felony enhancement allergation, making the range of puni shment 25 years to Life confinement. The second enhancement allergation conta ined an incorrect cause number but was corrected before trail by a motion to amend which was granted by the trial court. On February 25 trial began and ended with a verdict of guitly. February 26, the defendant was sentenced to 27 years confinement to TDCJ and this Appeal p- rocess began.
Grounds for Review One
1 ) The sixth court has misconstrued a statue and has decided an important qu estion of state law that has not been but should be settled by the.Court of Cr minal Appeals. Further, they have not applied the correct analysis to the case at bar in regards to the error in the jury charge. Denying the defendant a fa ir and impartial trail due to a now unanimous verdict- Ground Number Two
The-.sixth:court of appeals has relied on perjured and false stjtemegt^an^ the stacking of inferences "*«d^ ^ ^theTin away that conflicts wi- t^Ll^hafth/SS S aaduSCtoe^competent reliable, substanive [4] evidence to prove every element of that a person actually committed a crime.
Reason for Review One The jury charged violated the Requirement of a unanimous verdict-
It is without question that Texas law requires a unanimous verdict in a fe elony case Ngo- v. State, 175 S.W.3d 738(Tex.Crim.App. 2005).Unanimously means that each and every juror agree that the defendant committed the same single, specific criminal act- Jurors must unanimously agree on all elements of a cri me in order to convict but they need not agree on all underlying ^acts that compose a particular element- Ngo, 175 S.W.3d a 747.
The lower court has misconstrued the charge. The indictment set out three seperate and specific dated offenses each of the offense contained acts the m- anner and means by which each offense occured. The first offense charged that the defendant committed a assault by striking the victim with a chair,hand, a- nd feet. The second offense alleged that the assault occured by striking vict im with hand and feet. And the third assault alleged only one act by hand. The jury was not presented with any menu of these alleged acts (six) in total. However, the jury was given three seperate and specific dated offense and told it could choose without agreeing on any two specific offenses. And it is unde rstood that the underlying facts that compose a element does not require unani minity. The indictment alleged with certainty what the state was required to prove. Not only did the jury charge violate verdict unanimity it violated the due process of the appellant- Each of the alleged offense charges were unajud- icate misdemeanors the state proceeded to the felony portion of the indictme nt.with out there being any findings on the charges listed above it- The felo ny was plead after these offense and there was no time period alleged nor tes tified to the jury charge at bar circumvented the whole trial process and all owed for a non-unanimous verdict. The essential elements where the offense th emselves. The manner by which they were committed is another issue. The case at bar should be decided on its own merits based on the indictment and Texas law. The correct analysis should be used in determining if the jury charge at bar violated the Texas law requiring unanimous jury verdicts in all felony cases. The only case related to the case at bar is Morales v. State 416 S.W.3d 546 (Tex.App-Hou. 14th Dist-) However that case only involved two offe nse and it was a interlocutory appeal and required a high standard to prove i- nvalidity on its face. And the court didn't answer the question of whether the statue acts/operates in a unconstitutional manner since the charge only contai ned the basis 2 offense the question was not answered. And the lower failed to answer the question. They only construed the charge in a way that it is not c- harged. If the law requires a unanimous jury verdict and that the jury must be unanimous on the essential elements. Then the law must prevail in the case at bar.
Reason for Review Two The Evidence was Insufficient
It has been recognized by the courts that the charging of defendants with multiple offense before a single jury is highly prejudical which the case at bar shows, the court was charged with whether there was insufficient evidence in two of the alleged offense contained in the indictment. .The lower court- is
[5] relying on the stacking of inferance based of a showing that the Appellant co mmitted one of the alleged offense. And based on that offense determine the b- elievability of the witness even though the state failed to produce reliab le, substative, credible, and compotent evidence showing that the appellant actua lly committed a crime or that a crime was even committed in the two offense ti nder review. For clarity the indictment alleges 3 specific Assault of Family Violence alleging acts committed by the appellant on appeal the Appellant only challenged the Insufficency on 2 of these assault, thta being the first Assau lt which allege occured on February 22,2013 at the home of the victim and the 3rd assault that allege occured on June 29,2013 at the home of the alleged vi ctim raven Thomas. For clarity the Appellant's attorney at Trial input the ap pellant's guilt to the 2nd assault charged in the Indictment and maintain this position throughout Trial for the Appellant didn't testify during thsi portion of the trial. The states witness Raven Thomas testifying for the state stated that the appellant had located her at a club and hand punched and kicked her although things where unclear to her because she was knocked to the ground and disorientated. However even with the Appellants attorney inputing the Appella nt's guilt before any evidence was offered by the state and the states witness testifying to this assault. The state put on an elaborate display of evidence, detailing thsi assault. Police had witness this assault for it occured at a c- lub and each of those officers testified to witnessing this assault and one J- acob Zimmerman was even ask to demonstrate the kick that the appellant delive red to the victim photo's were taken state's exhibit's and there is no question as to the assault- It was unchallenged at the trial and on appeal-The Appellant firmly assert that this was the bases for the Jury's verdict of gui lt and there was no alternative of guilt- The 2 assault that are under analys is are the February 22,2013 assault alleged in the indictment and the June 29, 2013 assault alleged in the'indictment. The state alleges that on February 22, 2013 the alleged victim accused the Appellant of a assault occuring in the ea rly morning hours of February 22,2013 at trial the alleged victim testifying for the state admits to making a false report against the Appellant and that because of her anger at::the-^appellant unwillingness to/icome home. The injury that she alleges she substained was due to her slamming her hand .in a car door. The alleged victim also stated that she had went to the hospital because of her injury- However, there is no medical record/ or medical staff testifying to confirm any of this. There is nobody who ident ified the Appellant or witness any such assault- The state witness Grace Bagl- ey claims to have seen injuries but because of her camera conveniently not w- orking she didn't take any photos of the injuries She claims to have put details in her report but her report doesn't make any notes of a chair fi tting the description of a rolling desk chair nor does her testimony. She also stated that prior to trail that she had never before seen the Appellant.And t- hat no body was at home but Raven Thomas.
There is nothing of proof that the Appellant committed this assault. There is no medical record which would prove injuries. Its common knowledge that if one goes to a hospital complaining of a family violence it would be a detail record of any injuries. There is simply no proof beyond a reasonavle doubt th at a crime was ever committed. In the third alleged:assault.on;June :29,2013.it- he state alleges that Appellant assaulted the alleged victim after getting out of jail. Again there is no proof of any assault. No state witness cla ims to have witness any assault. The alleged victim stated at trial and at the scene that she was not assaulted and the injuries she had substained was from the earlier assault that had occured on June 29,2013 the 2nd assault alleged in the indictment. two officer testifying for the state calims t-
[6] he state claims that a witness told them of a assault- But failed to make any positive identification of that witness. And the claim witness a A-Morgan sta ted that at no time did she state to police that she was a witness to an assa ult by the Appellant against Raven Thomas.
The state witness gregg Thomas state that it sounded like somebody was hav ing a fight. Somebody could be anybody- This doesn't prove anything. Nobody w- as in the residence when police arrived but the Appellant and his family. And there was no hostility noted between the two parties. The alleged assault that was; testified to was that the Appellant had assaulted Brittney Morgan this is what the jury heard and the fact that Appellant dealt with the police rudely. There was simply no assault that occured. No photos were taken of any new or pre-existing injuries. Because a defendant had been arrested and charged with a crime doesn't defeat his presumption of innocence.•There is simply no proof beyond a reasonable doubt that a crime was even committed. There was no evidence :or •testimony present ,to.»the,7jury of the.offense of 25 11 the fourth offense alleged in the Indictment. The state case rested after Mr.Thomas testimony and no further witness was called to testify to the eleme nts and give evidence of the offense of 25.11. The time period start date-Thru end date. And there was no victim that testified that they were assaulted by the defendant 2 or more times within any time period. The state incorporated this offense into a jury charge without any proof b eing offered. For the other offense alleged contain there own elements and fa cts.
The proper analysis for sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt Brooks v. State 323 S.W.3d 893 (Tex.Crim.App. 2010); Johnson v.State,23 SW 3d 1Tex.Crim.App- 2000); Lane v- State, 151 S.W.3d 188 (Tex.Crim.App. 2- 004; and Young v. State, 14 S.W.3d 748 (Tex.Crim.App. 2000).
[7] Conclusion and Prayer
The appellant ask this Court to Review the lower Courts ruling because the lo wer Court has errored on a matter of Law and has decide against the Law and this Court has the power to decide on matters.of; law. Also.the. case, at.Bar has not been properly decided by the Texas Supreme Court on its own merits. The A- ppellant ask that this court remand and reverse this case with Instruction of Acquital reordered or in the alternative, without waiving the above reversed and remanded for a new trial.
Respectfully Submitted Eric L. Hill #1917752 Pro se Petitioner Allred Unit 2101 FM 369 N. Iowa Park, Tx. 76367
Certificate of Service
My name is Eric Lamothe hill 7-22-75, my inmate ID #1917752. I am presently i- ncarcerated in James allred unit in Iowa Park, Wichita Tx 76367 and I declare that a true and correct copy of the above pleading has been sent to District Attorney William M Jennings, 101 E.Methvin. Ste.333 Longview, Tx.76501 By U.S. Mail on 8th day of April, 2015. Eric L. Hill <_
My name is Eric Lamothe Hill D.O.B. is 7-22-75. My inmate number is #1917752. I'm presently incarcerated in James Allred'Unit in Iowa Park, Tx. 76367. r de clare under penalty of perjury that the foregoing is true and correct. Executed on the 8th day of April 2015.
Pro-Se Litigant
[%\ No- PD-0165-15
In The Case of Criminal Appeals
At
Austin, Texas
Eric L. Hill Appellant/Petitioner
The State of Texas Appellee/Respondent
Motion To Suspend Rules
To The Honorable Justice of the Texas Court of Criminal Appeals:
comes now, Eric L. Hill, the Appellant/Petitioner, who does makes proper a- nd file this Motion To Suspend Rules in accordance and pursuant to Tx.Cr.App. Pro., rule 2 and does state, declare, varify, confirm, acknowledge, and plead, in support hereof as follows:
I. Jurisdiction
The Appellant/Petitioner maintains and aver.The court of Criminal Appeals has both the authority and jurisdiction over the subject matter and parties to this matter in accordance with the pursuant to Texas Constitution article 5 Seq.; Texas Rules of Appellant Procedure, and any and all rulings and authori ties applicable and relevent to this pleading and the relief sought and reque sted.
II. Reason for Motion
The Appellant/Petitioner does maintain and aver the foregoing and instant Motion to Suspend Rules is being made and filed to afford the appellant/Petit ioner, a laymon In The "art" and "science" of the field of law to have the H- onorable Texas Court of Criminal Appeals relax the fromal requisties of the R- ules governing form and procedure of making and filing a Petition For Discret ionary review invoking the mandate and ruling of Haines v. Kearner 404 U.S. 5- 19 (1972), allowing the "pro se litigant", such as the Appellant/Petitioner to be held to liberal review without stringent and strict requirements as one who is formally schooled and trained in the "art", "science", and "practice" of t- he field of law as a Student of the State of Texas academy of the Bar, an att orney. For the Appellant/Petitioner contends' the. substance ..and^subject: matter of his advanced Petition For discretionary Review is of more import relevance then his having failed to adherer: to.:iform.andnprocedure, when the same plead and
[1] subtantiates an error and miscarriage of Justice at the Court of Appeals and trial Court levels-
In light of the Appellant/Petitioner's aforegoing reason moving this atone- able Texas Court of Criminal appeals to suspend the Rules as to form and proc edure governing Petitioner For Discretionary Review the Appellant/ Petitoner seeks any and all relief hereinafter prayed for in this matter. For this plea ding is made a part of the accompanying Petition For Discretionary Review-
Prayer
Wherefore,. Promises Considered; Appellant/Petitioner,, does. PRAY -that, this Honorable Texas Court of Criminal Appeals suspends any and all strict require ment and application of rules governing the process and procedure of Petition For discretionary review and its review.
And Further, the Appellant/Petitioner PRAYS that this Honorable Texas Court of Criminal Appeals grant and Order any and all other available relief and re- emdy as authorized by both law and equity as relevant to the foregoing plead ing-
Respectfully Submitted,
Eric L. Hill #1917752 Appellate/Petitioner Pro:- Se Allred Unit/TDCJ-CID 2101 FM 369 N. Iowa Park, Texas 76367
[2] VERIFICATION
I, Eric L. Hill, #1917752, an offender, who is the Appellant/Pettitioner, who does declare, state, confirm, acknowledge, verify, and plead under the Penalty of Perjury of the laws of the United States and the State of Texas that the c- ontents of the foregoing Motion To suspend Rules is true and correct as decla red, confirmed, and stated therein by hereinafter affixing my signature and t- he date of its execution in accordance with and pursuant to 28 U.S.C. 1746 a- nd Tex.Civ.Proc and Rem.Code, sections 132.001-132.003 as executed on this d- ate of 8th of April 2015.
Eric.L. Hill, #1917752 Appellant/Petitioner,"Pro Se" Allred Unit/TDCJ-CID 2101 FM 369 N. Iowa^ParkV Tx- 76367
I, Eric L. Hill,#1917752, do declare, certify, verify, acknowledge, state, and plead under the penalty of perjury of its laws of the United States and T- he State of Texas that I have sowed a true and correct copy of the Motion .To suspend rule upon the appellee/Respondant by placing the same in a postage pr epaid stamped/envelope addressed to the Appellee/Respondent, namely; Honorable william M. Jennings, Gregg County District A Horney at Gregg County District A Horney's Office; 101 E.Methvin; Suite 333; Longview, Tx. 76501 by placing :.the same in the allred Unit Mail Box to be subsequently picked up by Allred Unit M ail Room Personel, who will log the same in outgoing Legal/Special Mail Corre spondence Log and subsequently deposit in the United State Postal Service for delivery as stated, declared, confirmed, certified, pled to be a tr ue and correct act of service in accordance and"pursuant to 28 U.S.C 1746 a- nd Tex.Civ.Proc. and Rem.Code, sections 132.001-132.003 to which my signature is affixed below on this date of 8th of April, 2015.
Eric L. Hill,#1917752 Appellate/Petitioner, "Pro Se"
[3] In The Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-14-00044-CR
ERIC L. HILL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court Gregg County, Texas Trial Court No. 43089-B
Before Morriss, C.J., Moseley and Carter,* JJ. Opinion by Justice Moseley
*Jack Carter, Justice, Retired, Sitting by Assignment OPINION
Eric L. Hill was convicted by a jury of continuous family violence, based on allegations
that he had done violence to his girlfriend, Raven Thomas, on three occasions within twelve
continuous months. The charge alleged that he had committed such violence once on
February 22, 2013, and that there were two such acts of violence committed by him June 29,
2013 (one of these was alleged to have occurred at a club and another one on the same day in the
apartment they shared). After the jury finding of guilt, Hill entered a "true" plea to two
enhancement allegations and tried the issue of punishment to the jury. He was sentenced to
serve twenty-seven years in prison.
Although Hill does not dispute that Thomas falls within the class of people designated as
"family" pursuant to the statute under which he was charged, he contends on appeal (1) that there
is insufficient evidence to sustain his conviction and (2) that the jury charge failed to require the
jurors to return a unanimous verdict. To explain his position a bit more, although Hill admitted
that he attacked Thomas at the club, he maintains that there is insufficient evidence that he did
violence to her during either of the other two incidents that were alleged to have occurred.
In addition to Hill's claim that there was insufficient evidence for the jury to have found
the existence of the other two alleged incidents, he argues that the trial court erred in its refusal
to instruct the jury that in order to convict, it was necessary for thejury to agree on the existence
of the same offenses. A person commits the offense of continuous violence against the family, a third degree
felony, if the person, within a twelve-month period, assaults a family member two or more times.
Tex. Penal Code Ann. § 25.11 (West 2011). Its pertinent provisions state as follows:
(a) A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an [assault] under Section 22.01(a)(1) against another person or persons whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code.
(b) If the jury is the trier of fact, members of the jury are not required to agree unanimously on the specific conduct in which the defendant engaged that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a) or the exact date when that conduct occurred. The jury must agree unanimously that the defendant, during a period that is 12 months or less in duration, two or more times engaged in conduct that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a).
Id.
I. Claim of Insufficiency of the Evidence
In evaluating legal sufficiency in this case, we must review all the evidence in the light
most favorable to the jury's verdict to determine whether any rational jury could have found,
beyond a reasonable doubt, that Hill committed the offense. See Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));
Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref d) (citing
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). We examine legal sufficiency
under the direction of the Brooks opinion, while giving deference to the responsibility of the jury
"to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007) (citing Jackson, 443 U.S. at 318-19).
Legal sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). The hypothetically correct jury charge "sets out the law, is authorized by the indictment,
does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's
theories of liability, and adequately describes the particular offense for which the defendant was
tried." Id.; see Allen v. State, 436 S.W.3d 815 (Tex. App.—Texarkana 2014, pet. ref d).
Hill's indictment alleges that he committed an offense under Section 25.11 by
committing three acts of violence—one in February 2013 and two others on the same day in June
2013—causing injury to a member of his "family"—Raven, his girlfriend.
Thomas told different versions at different times of her encounters with Hill. In each of
the circumstances, she told people one story at or near the time of each incident, but radically
changed her rendition of the facts at the time oftrial.1 The police officer who responded to the February complaint testified that Thomas had told him, and had told the dispatcher, that Hill
assaulted her by throwing a rolling desk chair at her, that she broke her finger blocking it, and
that Hill then jumped on her and punched and kicked her. The officer testified that Thomas had
bruising on her back, shoulder, and ribs, and that her right middle finger was in a splint. At trial, i although Thomas admitted that she had made those statements at the time, she said she had lied
when she previously related that story. At trial, she said instead that her finger had been broken
'There is no indication that the Stateplans to pursue perjury charges against the alleged victim. 4 when she slammed it in a car door and that she had lied to the police and hospital staff about the
injuries having been the result of Hill's assault because she was then angry at him. Her anger,
she maintained, originated because Hill would not come home. At trial, she testified that she had
warned him that she would call the police and tell them a story to get him in trouble if he did not
return home.
Regarding the June incident, the testimony is more widely sourced. Antoinette Morgan,
Thomas' friend, told police that at about the time the incident took place, she and Thomas were
in Thomas' bedroom talking when Hill came in and struck both of them.2 At the trial, Morgan's story of the incident changed. Under the newer version, Morgan testified that Hill had struck
her, causing her to leave the bedroom; she maintained that after she departed, she did not know
what later transpired. Thomas' father was also in the apartment. He testified that he telephoned
9-1-1 when he saw Hill enter and go upstairs to Thomas' bedroom; he said that he subsequently
heard noises like "someone's getting beat up." The investigating officer testified that he saw
Thomas as she came out of the apartment, that her face was "real red and puffy, swollen, still
quite red," and that her apparent injuries were fresh. However, it is also apparent that she was
beaten and injured only thirteen hours previously in the club incident.
All of this evidence (both the stories that were given at the time of the incidents and the
changed stories provided by the women at the time of trial) was presented to the jury. In other
words, there is evidence that could have been understood to support either the State's case or
Hill's version of events. Sorting out and weighing the strength of the evidence is the jury's role
2As an aside, at the time this report was originally given, Morgan provided the police a false name, and she was, at the time of trial, incarcerated, charged with forgery. 5 in a trial, and there was evidence to support its decision. In the circumstances of this case, there
was sufficient evidence for the jury to have found that Hill committed family violence during
each of the three events mentioned in the charge. That being the case, there was sufficient
evidence to support a finding by the jury that Hill committed continuous family violence.
II. Claim of Jury Charge Error
The next issue raised by Hill concerns the appropriateness of the jury charge. Before
submission, Hill requested that an instruction be included informing the jury that it was required
to come to a unanimous decision on two offenses, rather than some jurors finding the evidence
sufficient as to one, and some sufficient as to the other. The trial court considered the matter
overnight, but then refused the request. Hill argues that this was error of sufficient gravity to
dictate reversal, because it is axiomatic that Texas law requires a unanimous verdict in a felony
case. See Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005).
Unanimity means that "each and every juror agrees that the defendant committed the
same, single, specific criminal act." Id. at 745. Jurors must unanimously agree on all elements
of a crime in order to convict, but they need not agree on all underlying facts that compose a
particular element. See Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App. 2006) (citing State v. Johnson, 627 N.W.2d 455, 459-60 (Wis. 2001)); Ngo, 175 S.W.3d at 747. Thus, as will
be addressed below, courts have tended to lock in on the question of exactly what constitutes the
elements of the statutory crime.
Understandably (because the statute under which Hill was charged is a relatively new
law), no opinion of an appellate court in Texas is directly on point. As raised on appeal, the question is whether the trial court erred by failing to properly submit the charge as requested, as
a violation of Hill's Sixth Amendment rights. See U.S. Const, amend. VI.
The pertinent part of the submitted charge reads as follows:
To find the Defendant "guilty" of Continuous Violence Against the Family you must all agree that the State has proven elements 1, 2, and 3 listed above beyond a reasonable doubt, but you do not have to agree on which two Assaults listed in elements 2(a), 2(b) and 2(c) above.
As set out at trial and now on appeal, the question is whether it was proper to tell the jury that if
each juror believed Hill assaulted Thomas twice (out of any number of possibilities) during a
year, then it should convict, or, alternatively, if the Constitution requires the jurors to
unanimously conclude that two particular assaults occurred before it can properly convict.
The State suggests that we should import the reasoning utilized in connection with the
continuous sexual abuse statute,3 which contains similar language to the continuous family
violence statute applied in this case. In a case involving the continuous sexual abuse statute, the
Austin Court of Appeals concluded that the right to a unanimous jury verdict was not violated
when the jury was not required to unanimously agree on which of the various offenses had
occurred so long as the jury was required to unanimously decide that the defendant had
committed at least two of the alleged sexual acts. Martin v. State, 335 S.W.3d 867, 872 (Tex.
App.—Austin 2011, pet. ref d), cert, denied, 133 S.Ct. 645 (2012).
In that case, the State alleged eleven different "acts" and, similar to this case, the charge
simply required the juryto find, as a group, that Martin had committed two of the sex abuse acts.
Id. The jury was not required to make findings showing that each juror concurred as to which of
3Tex.Penal Code Ann. § 21.02 (West Supp. 2014). 7 the acts had been committed. Clearly, if we assume the jury in the Martin case followed its
instructions, the jurors could have found an enormous number of combinations that did not
involve any degree of unanimity. Although there is a lesser number of possibilities to add in the
mix here, the argument raised in the Martin case basically raised the same kind of constitutional
issues implicated by this appeal. Here, the State urges that we should adopt the reasoning in
Martin to decide that the unanimity constitutionally required is not as to the specifically claimed
wrongful acts, but is instead to a generic finding beyond a reasonable doubt that Hill had
committed (at least) any two of the alleged actions.
In Pollock v. State, 405 S.W.3d 396, 405-06 (Tex. App.—Fort Worth 2013, no pet.), our
sister court affirmed a conviction under the continuous sexual abuse law with only the briefest
discussion of the issue of unanimity as to which of several incidents had occurred, concluding
that the element of the offense was two prohibited acts. The Fort Worth Court held that all that
was required for conviction was proof beyond a reasonable doubt that two such acts had
occurred/but that it was not necessary to prove each act upon which the State relied. The San
Antonio court in Fulmer v. State, 401 S.W.3d 305, 312-13 (Tex. App.—San Antonio 2012, pet.
refd), cert, denied, 134 S.Ct. 436 (2013), provided a much more detailed examination of the
issue. As did the Austin court in Martin, the San Antonio court concluded in Fulmer that the
individual acts of sexual abuse were not the elements of the offense, but instead were only
evidentiary facts of the charged offense, '"the manner and means by which the actus reus
element is committed.'" Id. at 312 (quoting Jacobsen v. State, 325 S.W.3d 733, 737 (Tex. App.—Austin 2010, no pet.)); see Casey v. State, 349 S.W.3d 825, 829-30 (Tex. App.—El Paso
2011, pet. ref d); Render v. State, 316 S.W.3d 846, 857-58 (Tex. App.—Dallas 2010, pet. ref d).
In a case analyzing the family violence statute which was the basis of the conviction in
this case, one Texas appellate court does suggest some discomfort with this reasoning. See
Exparte Morales, 416 S.W.3d 546, 548-49 (Tex. App.—Houston [14th Dist] 2013, pet. ref d).
In that case, although the court worked its way through this logic in connection with the family
violence statute, it then concluded (without agreeing that it was correct) that it did not need to
reach that question because only two allegations were made, and a facial pretrial challenge to the
constitutionality of the statute was thus not adequately shown.
Except for Morales, none of these cases analyze the statute at issue in this case, and the
Morales case is easily distinguishable because the jury was presented with only two incidents of
family violence. However, the reasoning utilized in those decisions is directly applicable to the
continuous family violence statute. Although the relevant parts of the continuous sexual abuse
statute and the continuous family violence statute are not precisely identical, they are sufficiently
close to be compared. We adopt the reasoning in the continuous sexual abuse cases and apply it
in continuous family violence cases. In the circumstances of construing the statute under
examination here, it is sufficient to allow a jury to select from a menu of possible bad acts and
agree that a defendant committed two of them without the concomitant requirement that the
jurors be shown to all concur as to which of the acts did occur. In other words, we acquiesce in the analysis employed by our sister courts in their analysis of the perceived problem with the continuous sexual abuse statute; that is to say that the elements of the offense are not the individual bad acts, but are the sufficiency of the evidence to prove the commission of any
combination of any two of those acts during the requisite time period.
We have previously concluded that there was sufficient evidence to prove all three of the
allegations.
Accordingly, we affirm the judgment of the trial court.
Bailey C. Moseley Justice
Date Submitted: December 29, 2014 Date Decided: January 9, 2015
Publish
10 j Eric L. Hill #1917752 j Allred Unit | 2101 "369 N. .. iioRTH.TEXAS TX P- Iowa Park* Tx. DALLAS TX 750 76367 Court of Criminal Appeals of Tx P.O.Box 12308 Capital Station Austin, Texas 78711 r'ea / 1 1 j23UtdOe3 li)i|ii""'U('l'lUii»lJll('lili'"'"if"'i"'l','l