Shumski, Mark Joseph

Opinion

PD-0408-15

Cause No. ________________ TO THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS

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MARK JOSEPH SHUMSKI

Petitioner

VS.

THE STATE OF TEXAS

Respondent.

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Petition For Discretionary Review in Cause CR-16247 from the 271st Judicial District Court of Wise County, Texas and Cause No. 11-13-00054-CR from the Court of Appeals for the Eleven Supreme Judicial District of Texas.

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PETITION FOR DISCRETIONARY REVIEW

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Law Office of Paul Belew, PLLC.

/s/ Paul Belew

S.B.N.: 00794926

P.O. Box 1026

April 23, 2015 Decatur, Texas 76234 (940) 627 - 6400

(940) 627 - 6408 (facsimile)

ATTORNEY FOR PETITIONER,

MARK JOSEPH SHUMSKI

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IDENTITY OF THE PARTIES

The following is a complete list of the names and addresses of all parties to the trial court's final judgment and the names and addresses of trial counsel:

APPELLANT / DEFENDANT MARK JOSEPH SHUMSKI TRIAL COURT Texas Department of Criminal Justice Appeal from the 271st H. H. Coffield Unit District Court 2661 FM 2054 Wise County, Texas Tennessee Colony, TX 75884 Hon. John Fostel presiding

Paul Belew S.B.N.: 00794926

LAW OFFICES OF PAUL BELEW, PLLC P.O. Box 1026 Decatur, Texas 76234 (940) 627-6400 (940) 627-6408 (facsimile)

ATTORNEY FOR APPELLANT / PETITIONER State Of Texas / Appellee

Preston Gregory Lowery, Wise County District Attorney S.B.N: 00787926 John J. "Jay" Lapham, Wise County District Attorney S.B.N: 00784448

Wise County Courthouse, Second floor Decatur, Texas 76234

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TABLE OF CONTENTS

Identity of Parties and Counsel i Table of Contents ii Index of Authorities iii Statement Regarding Oral Argument iv Standard of Review iv Statement of the Case iv, v Issue Presented for Review vi Argument vi, vii, vii, ix, 1

I. THE APPELLATE COURT ERRED IN FAILING TO FIND THAT SECTION 21.02 WAS UNCONSTITUTIONAL FOR NUMEROUS REASONS AS SET FORTH BELOW:

Prayer for Relief 1 Certificate of Service 2, 3 Certificate of Compliance 3 Appendix 4

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INDEX OF AUTHORITIES

Cases: Shumski v. State, No. 02-13-00565-CR (December 4, 2014) (Memorandum Opinion) v, 4

U.S. Supreme Court: Andres v. United States, 333 U.S. 740 (1948) vii Duncan v. Louisiana, 391 U. S. 145 (1968) viii In re Winship, 397 U. S. 358 (1970) viii Richardson v. United States, 526 U.S. 813 (1999) vii

Texas Court of Criminal Appeals: Jefferson v. State, 189 S.W.3d 305 (Tex. Crim. App. 2006) vii Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) vii State v. Moff, 154 S.W.3d 599 (Tex. Crim. App. 2004) iv Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007) vii

Texas Courts of Appeals: Casey v. State, 349 S.W.3d 825 (Tex. App.--El Paso 2011, pet. ref'd) 1 Jacobsen v. State, 325 S.W.3d 733 (Tex. App.--Austin 2010, no pet.) viii, 1 Owens v. State, 19 S.W.3d 480 (Tex. App.--Amarillo 2000, no pet.) iv State v. Salinas, 982 S.W.2d 9 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd) iv

Constitutions: FED, CONST., art. VIII 1 TEX. CONST., art. V, § 13 vii

Texas Statutes: TEX. PENAL CODE ANN.,, § 21.02 (West 2013) in passim i, vii, vii, 1 TEX. PENAL CODE ANN., § 21.02(c), (d), (e), (f) (West 2013) vi, vii, vii, 1 TEX. PENAL CODE ANN., § 21.02(d) (West 2013) vi, vii, vii, 1

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PETITIONER REQUESTS ORAL ARGUMENT Petitioner requests oral argument for the reason that the issue is highly controversial and can best argued and presented before a live and interactive panel that cannot be done justice via paper nor electronic means as the Texas Court of Criminal Appeals has not yet written on the constitutionality of Section 21.02.

STANDARD OF REVIEW

The constitutionality of a criminal statute is a question of law which is reviewed de novo. See, e.g., Owens v. State, 19 S.W.3d 480, 483 (Tex. App.-- Amarillo 2000, no pet.); State v. Salinas, 982 S.W.2d 9, 10-11 (Tex. App.--Houston[1st Dist.] 1997, pet. ref'd); State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App.)

STATEMENT OF THE CASE

On June 22, 2011 a Wise County Grand Jury indicted Mark Shumski on the charge of "Sexual Abuse of a Child, Continuous: Victim Under 14" alleging that on February 16, 2008 and continuing through and including May 16, 2011, "commit two or more acts of sexual abuse against A.G., a child younger than 14 years of age, said acts of sexual abuse having been violations of one or more of

the following penal law, namely: 1. indecency with a child . . .; [and] aggravated -IV-

sexual assault of a child . . ." CR 7. On December 11, 2012 this case was tried before a jury in the 271 st Judicial District Court for Wise County, Texas, Judge John Fostel Presiding (Trial Cause Number CR16247). See, e.g., R.R. 2:1. On December 12, 2013 a judgment was entered against Mr. Shumski sentencing him to sixty (60) years incarceration in the Texas Department of Criminal Justice. C.R. 121. Mr. Shumski remains incarcerated. On January 11, 2013 Defendant filed his notice of appeal to the Second Court of Appeals and the case was assigned Cause Number 02-13-00011-CR. C.R. 123. On February 11, 2013 this case was transferred to 11th Court of Appeals pursuant to Order and assigned Number 11-13-00054-CR. See, Shumski v. State, No. 02-13-00565-CR (December 4, 2014) (Memorandum Opinion). March 5, 2105, the 11th Court affirmed.

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ISSUES PRESENTED FOR REVIEW

I. THE APPELLATE COURT ERRED IN FAILING TO FIND THAT SECTION 21.02 WAS UNCONSTITUTIONAL.

The Texas Court of Criminal Appeals has not yet written on the constitutionality of Section 21.02. The 11TH Court of Appeals erroneously ruled against Petitioner's constitutional challenge in an unpublished opinion dated March 5, 2015. See Appendix. This Petition for Discretionary Review is filed in response to that decision. The issue in controversy affects so many defendants, it is critical to due process and other concerns that this Honorable Court take up the matter.

ARGUMENT AND AUTHORITIES

Texas requires all jury verdicts in a felony cases to be unanimous. In addition due process mandates proof beyond a reasonable doubt of every fact necessary to constitute the crime with which a defendant is charged. The requirement of a unanimous verdict is sacrosanct. Section 21.02 of the Texas Penal Code (Continuous Sexual Abuse of Young Child or Children) does not require unanimity with respect to the required predicate conduct. Section 21.02's failure to require a unanimous finding of the predicate conduct indicates that a conviction is possible where the jurors are not agreed that two specific predicate

acts took place. The erroneous response of Texas Courts addressing this claim -VI-

is that unanimity is required as to element, not manners and means. This reasoning is flawed at best. Section 21.02 permits the jury to never be compelled to carefully scrutinize – as a whole jury – the evidence for any specific sexual act. It means the jury is free to act as twelve autonomous "mini-juries" with respect to the very heart of the crime -- the occurrence of sexual misconduct.

The Supreme Court's addressed this issue in Richardson v. United States.

526 U.S. 813 (1999). Applying its analysis to Section 21.02 the grammar of Section 21.02 makes it clear acts of sexual abuse are the focus of the Section and therefore properly are the object of the unanimity requirement. The Sixth Amendment to the United States Constitution requires unanimous jury verdicts in federal criminal trials. Andres v. United States, 333 U.S. 740, 748, 68 S.Ct. 880b (1948); see Sanchez v. State, 23 S.W.3d 30, 39 (Tex. Crim. App. 2000). Under the Texas Constitution, a jury verdict in a felony case is required to be unanimous, and Texas statutes require unanimity in all criminal cases. Stuhler v. State, 218 S.W.3d, 706, 716 (Tex. Crim. App. 2007); Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App. 2006); Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005); TEX. CONST. ART. V, § 13; TEX.CODE CRIM. PROC. ANN. art. 36.29 (2013). Under Texas law, unanimity means that each and every juror agrees that the defendant committed the same, single, specific criminal act.

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Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005), however, inexplicably Section 21.02 does not require unanimity as to predicate acts. See, Section 21.02 of the Texas Penal Code.

The 11th Court of Appeals, erred when applying the law of the referring jurisdiction, when they held that the continuous sexual statute did not violate due process, even without a unanimous verdict as to manner and means. “Although virtually unanimous adherence to the reasonable-doubt standard in common-law jurisdictions may not conclusively establish it as a requirement of due process, such adherence does "reflect a profound judgment about the way in which law should be enforced and justice administered." Duncan v. Louisiana, 391 U. S. 145, 155 (1968). In re Winship, 397 U. S. 358, 361-362 (1970). The Court concluded that due process mandates "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged." In re Winship, 397 U. S. 358, 364 (1970).

Section 21.02 has been previously and unsuccessfully challenged on the grounds of lack of a unanimity requirement. The San Antonio Court of Appeals’ response is fairly indicative, although misplaced, of the response of the various Courts of Appeals that have considered the challenge: “As discussed herein, Texas law is clear that "[t]he individual acts of sexual abuse . . . are not -VIII-

themselves elements of the offense, but are merely evidentiary facts, the manner and means by which the actus reus element is committed." See Jacobsen, 325 S.W.3d at 737; see also Casey, 349 S.W.3d at 829. In addition, it is well settled that "section 21.02 does not violate due process by permitting a conviction based on a jury's unanimous finding that the defendant engaged in a course of conduct consisting of repeated acts of sexual abuse, but without requiring jury unanimity as to the individual acts that made up that course of conduct." See Martin, 335 S.W.3d at 872 (discussing Jacobsen, 325 S.W.3d at 739). This reasoning is flawed and oppressive.

In addition to above compelling reasons to grant PDR in this case, the statute in question is also violative of the VIII Amendment to the Federal Constitution, inter alia, “FED, CONST., art. VIII” citing a prohibition of cruel and unusual punishment. The tremendous appellate questions arising out of criminal convictions relating to Section 21.02 make this petition for PDR especially attractive to this Court to address. These issues include, but are certainly not limited to, due process issues, jury unanimity issues and issues relating to cruel and unusual punishment, all violative of a defendant’s constitutional rights afforded one by law ands common sense.

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PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, MARK JOSEPH SHUMSKI respectfully requests that the Court of Criminal Appeals grant Appellant's Petition for Discretionary Review and for such other and further relief to which he may show himself to be entitled.

Respectfully submitted,

/s/ Paul Belew

Paul Belew

S.B.N.: 00794926

LAW OFFICES OF PAUL BELEW, PLLC.

P.O. Box 1026

Decatur, Texas 76234

(940) 627-6400

(940) 627-6408 (facsimile)

FOR APPELLANT/PETITIONER

MARK JOSEPH SHUMSKI

CERTIFICATE OF SERVICE

This is to certify that on this, the 22nd day of April, 2015 a true and correct copy of the above and foregoing document has been forwarded by means of electronic filing as follows:

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Greg Lowery, Wise County District Attorney's Office Wise County Courthouse Decatur, Texas 76234

/s/ Paul Belew

Paul Belew

CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)(3)

WordPerfect X6 was used to prepare this document in 14 Point Times New Roman. Using WordPerfect X6 I certify that the total number of words contained herein, including the identity of parties and counsel, table of contents, index of authorities, statement of the case, statement of issues presented, signature, and certificate of compliance is 1944.

_/s/_________________________ Paul Belew

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Appendix

See attached, Shumski v. State, No. 02-13-00565-CR (December 4, 2014) (Memorandum Opinion)