Michael Ray Waters v. State ( 2018 )

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
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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
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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
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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.
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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
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