Prior to April 20, 2020, 48 states and the federal system required unanimous jury verdicts for serious criminal offenses. Louisiana and Oregon, however, only required a 10-2 jury verdict, meaning only 10 jury members needed to be in full agreement that a defendant was “guilty” of the serious crime with which he or she was charged. This is due, in part, to the 1972 plurality decision Apodaca v. Oregon, which held that a jury could convict a defendant with a non-unanimous verdict without violating the Constitution. In the past 120 or so years, the Supreme Court had touched on this subject about 13 times but had never barred non-unanimous jury verdicts.
On April 20, 2020, the Supreme Court issued a landmark decision in Ramos v. Louisiana ruling the Sixth Amendment requires a unanimous jury verdict in serious criminal cases and this extends to the states through the 14th Amendment.
Ramos v. Louisiana
Evangelisto Ramos was indicted in a Louisiana state court for second-degree murder in 2015 for allegedly stabbing Trinece Fedison to death in 2014. In 2016, Ramos was found guilty and sentenced to life in prison without the possibility of parole by a 10-2 jury decision. Ten jury members believed Ramos was guilty, but two believed he was innocent. In most courtrooms across the nation, including all courtrooms in Texas, a 10-2 jury decision for the charge of murder would have resulted in a hung jury – a mistrial for Ramos.
Ramos’s defense team appealed the case to the Louisiana Fourth Circuit Court of Appeal. Ramos argued that his conviction by a non-unanimous jury violated his constitutional rights under the Sixth Amendment right to a trial by an “impartial” jury. The Louisiana Fourth Circuit Court of Appeal affirmed the lower court’s judgment, and the Louisiana Supreme Court denied review.
Overturning Apodaca v. Oregon
The Apodaca plurality decision spent little time grappling with the historical meaning of the Sixth Amendment. Louisiana argued the ruling in Apodaca v. Oregon allowed the sentencing of Ramos to life in prison without parole without a unianimous verdict. In Ramos v. Louisiana the Supreme Court considered the language of the Sixth Amendment and “the right to an impartial jury,” acknowledging that racial discrimination was a significant motivating factor for the 10-2 laws in both Louisiana and Oregon, and ultimately overruled the longstanding precedent established by Apodaca v. Oregon. After over 120 years of periodically discussing this topic, the Supreme Court finally made the landmark decision that unanimous jury verdicts are required to convict a defendant of a serious crime. As a result of this decision, Ramos v. Louisiana was reversed, and Evangelisto Ramos will have the opportunity to have his case tried again, this time by an “impartial jury.”
Continuous Sexual Assault in Texas
Texas has long required a unanimous verdict in criminal cases. This is codified under Code of Criminal Procedure 36.29(a) and it can be found in Article V, Section 13 of the Texas Constitution. However, Texas Penal Code 21.02, which applies to Continuous Sexual Assault allegations, allows a jury to return a non-unanimous verdict as to the specific instances of conduct.
Aside from capital murder, continuous sexual abuse of a child is the most serious crime in which an individual can be charged and arguably the allegation that comes with the greatest stigma. The Texas Penal Code Section 21.02 provides that a person commits continuous sexual abuse if he or she is over the age of 17 and has engaged in two or more acts of sexual abuse with a child – or multiple children – within a 30-day period. For purposes of this charge, a child means a person under the age of 14 when the sexual acts were allegedly committed. If convicted, a person faces anywhere from 25 years to life in prison without the possibility of probation, a deferred adjudication program, or even parole.
In Texas, a person can be convicted of continuous sexual assault of a child without the jury being unanimous as to the specific instances of conduct. That means, if all 12 jurors believe that the accused is guilty of continuous sexual assault, they do not have to agree on which two instances of sexual misconduct actually occurred.
Specifically, Texas Penal Code 21.02 which provides:
(d) 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.
Simply put, all 12 members of the jury do not all have to agree on which two or more acts of sexual abuse the accused committed to convict the accused of continuous sexual abuse. This statutory exception makes it different than other cases where the Court of Criminal Appeals has ruled that a jury must be unanimous as to the discrete offense that the accused was guilty of. See Cosio v. State, 353 S.W.3d 766 where the Court ruled a jury charge must include a unanimity-as-to-specific-instance charge when multiple instances are presented to the jury.
The Effect of Ramos v. Louisiana on Continuous Sexual Assault Charges in Texas
In the years to come, expect to see defense attorneys preserve this issue at the trial level and for the argument to be raised in Texas courts of appeal in the future.
Since its enactment in 2007, section 21.02 of the Texas Penal Code has been challenged on multiple occasions, resulting in no modification to the statute to date. In 2010 the Court of Appeals of Texas—Dallas published Render v. State. Here, the defendant argued, among other things, that the continuous sexual abuse statute he was charged under violated the unanimity requirement. The appellate court affirmed the trial court’s judgment and explained that section 21.02 of the Texas Penal Code is a statute that creates a single element of a “series” of sexual abuse. It does not make each act of sexual abuse a separate element of the offense that needs to be agreed upon unanimously. In the Ramos v. Louisiana decision, the court repeatedly mentioned that only the criminal justice systems in Louisiana and Oregon would be affected by this decision because on the surface these are the only two states that allowed non-unanimous verdicts. Those states will have to retry the defendants who were convicted by non-unanimous juries whose cases are still pending on direct appeal. Despite this, expect to see further challenges to Penal Code Section 21.02 in light of Ramos v. Louisiana.
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