Michael Ray Waters v. State

• Court: Court of Appeals of Texas
• Decided: December 13, 2018
• Docket: 02-17-00368-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-17-00368-CR ___________________________

MICHAEL RAY WATERS, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 432nd District Court Tarrant County, Texas Trial Court No. 1464942R

Before Meier, Kerr, and Pittman, JJ. Memorandum Opinion by Justice Pittman MEMORANDUM OPINION

A jury convicted Appellant Michael Ray Waters of continuous sexual abuse of a

child and assessed his punishment at life imprisonment. The trial court sentenced

him accordingly. Appellant does not challenge the sufficiency of the evidence

supporting his conviction. Instead, in three points, he contends that Section 21.02 of

the Texas Penal Code is unconstitutional on its face because it allows a nonunanimous

verdict (Point One); that Article 38.37, section 2 of the Texas Code of Criminal

Procedure is unconstitutional as applied because it violates his rights to due process, a

fair trial, and the presumption of innocence (Point Two); and that Article 102.0186 of

the Texas Code of Criminal Procedure—by which the “Child Abuse Prevention Fee”

was assessed—is unconstitutional because it violates the Separation of Powers Clause

in the Texas Constitution (Point Three). See Tex. Code Crim. Proc. Ann. arts. 38.37,

§ 2, 102.0186 (West 2018); Tex. Penal Code Ann. § 21.02 (West Supp. 2018). Because

this court has previously rejected the same complaints Appellant raises and his

arguments do not compel us to revisit our precedent, we affirm.

BACKGROUND FACTS

Appellant had children with five different women, and some of those women

first had children with other men. In 2015, M.S., the adult daughter of one of

Appellant’s former girlfriends and another man, was arrested and confined on capital

murder charges. M.S. had a young daughter. M.S. wrote her mother a letter

instructing her to keep the little girl away from Appellant because, M.S. later explained

2 to her mother, Appellant had sexually abused M.S. as a child. C.W. (Mother), the

mother of L.B. and K.B., the complainants in this case, and former wife of Appellant,

heard about the allegations. Around this time, L.B. outcried to Appellant’s biological

daughter, M.W. Within a day or two of that outcry, L.B. and K.B., along with three

other girls—M.W., her biological sister, and M.S.’s sister D.B.—told Mother that

Appellant had sexually abused them. Mother contacted the police that night.

L.B. testified that Appellant committed multiple acts of sexual abuse against

her over a span of several years, but K.B., who had recanted before the trial, denied all

sexual abuse in her testimony. L.B. testified that she saw Appellant make K.B. give

him oral sex when K.B. was twelve or thirteen years old, and the forensic interviewer

and sexual assault nurse examiner testified about the multiple acts of sexual abuse by

Appellant that L.B. and K.B. both reported to them. Additionally, M.S., D.B., and

Appellant’s daughter A.W. all testified that Appellant had sexually abused them as

children. Finally, M.W. testified that Appellant sexually assaulted her when she was

seventeen years old.

DISCUSSION

I. This Court Has Already Held Section 21.02 of the Texas Penal Code Constitutional on Its Face.

In his first point, Appellant contends that Section 21.02 of the Texas Penal

Code, the statute defining the offense of continuous sexual abuse of a child, is

unconstitutional because it allows a nonunanimous jury verdict. See Tex. Penal Code

3 Ann. § 21.02. As Appellant concedes, this court has already held that the statute does

not violate a constitutional right to a unanimous jury verdict. See Pollock v. State,

405 S.W.3d 396, 405 (Tex. App.—Fort Worth 2013, no pet.). Appellant’s argument

does not persuade us to depart from our precedent. See id.; see also Harris v. State,

No. 02-17-00278-CR, 2018 WL 3153605, at *2 (Tex. App.—Fort Worth June 28,

2018, pet. ref’d) (mem. op., not designated for publication). We overrule his first

point.

II. This Court Has Already Rejected Appellant’s Arguments in Holding Article 38.37 of the Texas Code of Criminal Procedure Constitutional as Applied.

In his second point, Appellant contends that the trial court’s admission of

character and propensity evidence under Article 38.37, section 2 of the Texas Code of

Criminal Procedure—specifically the testimony at the guilt-innocence phase of M.S.,

D.B., M.W., and A.W. about extraneous offenses he committed against them—was

unconstitutional in that it violated his rights to due process, a fair trial, and the

presumption of innocence. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2. This court

has rejected these and similar arguments raised in as-applied challenges to the statute

in other cases involving extraneous-offense evidence and sexual abuse of a child. See

Gusman v. State, No. 02-18-00157-CR, 2018 WL 3060213, at *1–2 (Tex. App.—Fort

Worth June 21, 2018, pet. ref’d) (mem. op., not designated for publication); McNamara

v. State, No. 02-16-00422-CR, 2018 WL 2248665, at *8–9 (Tex. App.—Fort Worth

May 17, 2018, pet. ref’d) (mem. op., not designated for publication). This court has

4 also held the statute constitutional on its face, rejecting due process and fair-trial

arguments. See Perez v. State, No. 02-17-00226-CR, 2018 WL 4627126, at *6–8 (Tex.

App.—Fort Worth Sept. 27, 2018, no pet. h.). Because we see no reason to depart

from these holdings, we overrule Appellant’s second point.

III. We Have Already Held Article 102.0186 of the Texas Code of Criminal Procedure Constitutional on Its Face.

In his third point, Appellant argues that Article 102.0186, which directs persons

convicted of child sexual assault or related offenses to pay $100 in court costs to be

deposited in the county child abuse prevention fund, is facially unconstitutional

because it violates the Texas Constitution’s Separation of Powers Clause. See Tex.

Code Crim. Proc. Ann. art. 102.0186. As Appellant notes, this court has previously

rejected this argument, holding that article 102.0186 is not facially unconstitutional

because the $100 fee relates to the administration of the criminal justice system. See

Horton v. State, 530 S.W.3d 717, 725 (Tex. App.—Fort Worth 2017) (en banc), pet. ref’d,

537 S.W.3d 515 (Tex. Crim. App. 2017); Ingram v. State, 503 S.W.3d 745, 749 (Tex.

App.—Fort Worth 2016, pet. ref’d); see also Peraza v. State, 467 S.W.3d 508, 517–

18 (Tex. Crim. App. 2015) (holding that when a statute “provides for . . .

allocate[ed] . . . court costs to be expended for” a purpose “relate[d] to the

administration of our criminal justice system,” it does not violate the Separation of

Powers Clause), cert. denied, 136 S. Ct. 1188 (2016). We see no reason to disturb this

holding. We overrule Appellant’s third point.

5 CONCLUSION

Having overruled Appellant’s three points, we affirm the trial court’s judgment.

/s/ Mark T. Pittman Mark T. Pittman Justice

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

Delivered: December 13, 2018