John Robert Sievers, Jr. v. the State of Texas ( 2023 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00158-CR
JOHN ROBERT SIEVERS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th District Court
Hopkins County, Texas
Trial Court No. 2229154
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice Rambin
MEMORANDUM OPINION
A Hopkins County jury convicted John Robert Sievers, Jr., of the first-degree felony
offense of continuous sexual abuse of a young child.1 In accordance with the jury’s verdict, the
trial court sentenced Sievers to life in prison. On appeal, Sievers claims that, because Section
21.02 of the Texas Penal Code permits a jury to return a non-unanimous verdict as to the specific
acts of sexual abuse to support a guilty verdict, it is unconstitutional on its face and as applied in
this case. Sievers has failed to preserve his constitutional claims for our review. As a result, we
affirm the trial court’s judgment.
I. Background
Because Sievers does not challenge the sufficiency of the evidence to support his
conviction, we restrict our recitation of the facts to those relevant to the resolution of this appeal.
The indictment against Sievers alleged that he,
being 17 years of age or older, . . . during a period of 30 or more days,
intentionally or knowingly commit[ted] two or more . . . acts of sexual abuse
against a child younger than 14 years of age at the time the acts of sexual abuse
occurred.
The indictment then alleged a specific instance of indecency with a child by contact and a
specific instance of aggravated sexual assault of a child.
Before trial, the State filed an unobjected-to motion to amend the indictment. The trial
court issued an order granting the motion, which alleged two additional acts of aggravated sexual
assault of a child.
1
TEX. PENAL CODE ANN. § 21.02(b) (Supp.).
2
At trial, the jury was instructed, in pertinent part, that it “must determine whether the
state has proved, beyond a reasonable doubt, four elements. The elements are that—”
1. the defendant, in Hopkins County, Texas, during a period between
on or about April 1, 2019, and on or about September 1, 2019, committed two or
more of the following alleged acts of sexual abuse:
The first alleged act of sexual abuse is that the defendant engaged
in indecency with a child. Specifically —
a. that on or about April 1, 2019, the defendant intentionally
or knowingly caused [S.S.] to engage in sexual contact by
touching [S.S.’s] genitals with the Defendant’s hand; and
b. [S.S.] was a child younger than fourteen years old; and
c. the defendant did this with the intent to arouse or gratify his
sexual desire.
The second alleged act of sexual abuse is that defendant engaged
in aggravated sexual assault of a child. Specifically —
a. that on or about June 1, 2019, the defendant intentionally or
knowingly caused the sexual organ of [S.S.] to contact the
sexual organ of the Defendant; and
b. [S.S.] was a child younger than fourteen years of age.
The third alleged act of sexual abuse is that defendant engaged in
aggravated sexual assault of a child. Specifically—
a. that on or about August 1, 2019, the defendant intentionally
or knowingly caused the anus of [S.S.] to contact the sexual
organ of the Defendant; and
b. [S.S.] was a child younger than fourteen years of age.
The fourth alleged act of sexual abuse is that defendant engaged in
aggravated sexual assault of a child. Specifically—
3
a. that on or about September 1, 2019, the defendant
intentionally or knowingly caused the sexual organ of
[S.S.] to contact the sexual organ of the Defendant; and
b. [S.S.] was a child younger than fourteen years of age.
....
With regard to element 1, you need not all agree on which specific acts of
sexual abuse were committed by the defendant or the exact date when those acts
were committed. You must, however, all agree that the defendant committed two
or more acts of sexual abuse.
Sievers did not object to the language of the court’s charge.
II. Sievers Failed to Preserve his Constitutional Challenge to Section 21.02
In his sole point of error, Sievers complains that Section 21.02 of the Texas Penal Code 2
is facially unconstitutional and is unconstitutional as applied in that it permits the jury to return a
non-unanimous verdict as to the specific acts of sexual abuse in support of the jury’s guilty
verdict.
“Issues of procedural default are systemic and must be reviewed by the courts of appeals,
even when the issue is not raised by the parties.” Leal v. State, 456 S.W.3d 567, 568 (Tex. Crim.
App. 2015) (per curiam) (citing Gipson v. State, 383 S.W.3d 152, 159 (Tex. Crim. App. 2012)).
“‘As applied’ constitutional claims are subject to the preservation requirement and
therefore must be objected to at the trial court in order to preserve error.” Reynolds v. State, 423
2
Section 21.02(d) states:
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.
TEX. PENAL CODE ANN. § 21.02(d) (Supp.).
4
S.W.3d 377, 383 (Tex. Crim. App. 2014) (quoting Flores v. State, 245 S.W.3d 432, 437 n.14
(Tex. Crim. App. 2008)). Although the objecting party need not employ “hyper-technical or
formalistic use of words or phrases” to preserve error, “the objecting party must still ‘let the trial
judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the
judge to understand him at a time when the judge is in the proper position to do something about
it.’” Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (quoting Pena v. State, 285
S.W.3d 459, 464 (Tex. Crim. App. 2009)); see Villareal v. State, 590 S.W.3d 75, 79 (Tex.
App.—Waco 2019, pet. ref’d) (finding “as applied” constitutional challenge to Section 21.02
unpreserved in trial court); Williams v. State, 305 S.W.3d 886, 893 (Tex. App.—Texarkana
2010, no pet.) (same).
Likewise, “a defendant may not raise for the first time on appeal a facial challenge to the
constitutionality of a statute.” Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009);
see Ibenyenwa v. State, 367 S.W.3d 420, 422 (Tex. App.—Fort Worth 2012, pet. ref’d) (facial
constitutional challenge to Section 21.02 unpreserved in trial court); Williams, 305 S.W.3d at
893 (Section 21.02 voidness claim must be preserved in trial court).
The record reflects that Sievers did not move to quash the original or amended
indictments on any ground. Likewise, Sievers did not urge his jury unanimity argument in an
objection to the court’s charge to the jury3 and did not otherwise make that complaint known to
the trial court. As a result, Sievers has not preserved his Section 21.02 constitutional claims for
our review.
3
Sievers does not complain of jury charge error on appeal.
5
III. Conclusion
We affirm the trial court’s judgment.
Jeff Rambin
Justice
Date Submitted: June 1, 2023
Date Decided: June 21, 2023
Do Not Publish
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