Shumski, Mark Joseph ( 2015 )

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
i
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
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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
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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
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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)
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