Texas Pick 'Em; No Jury Unanimity In Continuing Child Sexual Abuse Cases

The issue of jury unanimity in Texas felony cases is a complicated area of the law.  TDCAA published a good article on the subject a couple of years ago.  Simply speaking, Texas criminal law generally requires a unanimous jury verdict wherein the all members of the jury agree on the elements of the offense.  A bit of a wrench is thrown into this system when we consider the offense of "continuous sexual abuse of a young child or children" under section 21.02 of the Texas Penal Code.

Under section 21.02, a jury is 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.  Specifically, subsection (d) of 21.01 provides:

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.

Arguably, allowing jurors to simply pick and choose which instances (2 or more) of abuse they believe the State proved beyond a reasonable doubt without requiring that they all agree on the specific instances "undermines the weight or effect of [Texas's] rules for the mere purposes of returning a verdict."  This was the argument of Richard Michael Reckart in his appeal of his conviction to the 13th District Court of Appeals.

With a wave of the hand, the 13th Court dismissed Reckart's claim, holding:

Reckart, however, does not cite any cases that support his claim that the right to an impartial jury under the Federal or State Constitution includes the right to a unanimous jury, and we have found none. See Apodaca v. Oregon, 406 U.S. 404, 411-12 (1972) (plurality agreeing that in state criminal prosecution, less than unanimous verdict did not violate Sixth Amendment right to impartial jury); see also State v. Espinoza, No. 05-09-01260-CR, 2010 WL 2598982, at *3 (Tex. App.–Dallas June 30, 2010, pet. filed) (not designated for publication).

I guess I should know as well as anyone that there is no Constitutional right to a unanimous jury verdict, because we in the military justice system do not require such in any case except those involving the death penalty case (sentencing phase).  It just seems to me that if we, as a State, are going to require a unanimous jury verdict, that the requirement should be consistent as applied the the underlying offenses in a continuous abuse case.  If the jurors cannot agree on which acts were committed, isn't that called "reasonable doubt?"