No. 05-09-01260-CR
Opinion Filed June 30, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-25966-PQ.
Before Justices MORRIS, MOSELEY, and LANG.
Opinion By Justice LANG.
The State appeals the trial court's order granting appellee Alejandro Luna Espinoza's motion to quash the indictment. In one issue, the State argues the trial court erred in concluding that Section 21.02 of the Texas Penal Code, the statute under which Appellee was charged, is unconstitutional.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellee was indicted for continuous sexual abuse against a child younger than fourteen years of age during a period of at least thirty days. See Tex. Penal Code Ann. § 21.02 (Vernon Supp. 2009). Specifically, the indictment alleged that "on or about and between" January 1 and August 24, 2008, Appellee committed six acts of sexual abuse against complainant. Appellee filed a "Motion to Quash Indictment Based on an Unconstitutional Statute," claiming that section 21.02 violates the unanimity clauses of the United States and Texas Constitutions, the Due Process clause of the United States Constitution, and the Due Course of Law provision of the Texas Constitution. Following a pretrial hearing, Appellee filed a "Second Motion to Quash Indictment," claiming that the indictment failed to adequately describe and provide sufficient notice of the charges against him and the date of each alleged act of sexual abuse, violating the United States and Texas Constitutions and the Texas Code of Criminal Procedure. The trial court, in its "Order Granting Motion to Quash Indictment," granted Appellee's motion to quash the indictment on the grounds that Section 21.02 of the Texas Penal Code is unconstitutional. This appeal followed. II. APPLICABLE LAW A. Standard of Review
The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). Therefore, we review de novo a trial court's ruling on a motion to quash an indictment. Id. An indictment is sufficient when it charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged. Tex. Code Crim. Proc. Ann. art. 21.11 (Vernon Supp. 2009). The constitutionality of a criminal statute is a question of law which we also review de novo. 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). When reviewing the constitutionality of a statute, we presume the statute is valid and the legislature has not acted unreasonably or arbitrarily in enacting the statute. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978). The burden rests on the party challenging the statute to establish its unconstitutionality. Rodriguez, 93 S.W.3d at 69. We are obliged to uphold a statute if we determine a reasonable construction which will render it constitutional. See Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979). B. Section 21.02 of the Texas Penal Code
Appellee was charged with violating Section 21.02 of the Texas Penal Code, which provides that: (b) A person commits an offense if:
(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and
(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.
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(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.
Tex. Penal Code Ann. § 21.02 (Vernon Supp. 2009). The statute authorizes conviction if the defendant is found to have violated one or more of the following penal laws: (1) aggravated kidnapping under Section 20.04(a)(4), if the actor committed the offense with the intent to violate or abuse the victim sexually;
(2) indecency with a child under Section 21.11(a)(1), if the actor committed the offense in a manner other than by touching, including through clothing, the breast of a child;
(3) sexual assault under Section 22.011;
(4) aggravated sexual assault under Section 22.021;
(5) burglary under Section 30.02, if the offense is punishable under Subsection (d) of that section and the actor committed the offense with the intent to commit an offense listed in Subdivisions (1) — (4); and
(6) sexual performance by a child under Section 43.25.
Tex. Penal Code Ann. § 21.02(c). The State directs our attention to the legislative history of section 21.02, in particular, Judge Cochran's concurring opinion in Dixon v. State. Here, Judge Cochran acknowledged that before section 21.02 was enacted, it was difficult to prosecute crimes involving sexual abuse of young children because child witnesses are generally not able to testify about the specific time, place, and number of incidents of sexual abuse. Dixon v. State, 201 S.W.3d 731, 736 (Tex. Crim. App. 2006) (Cochran, J., concurring). Judge Cochran suggested that the Texas Legislature consider adopting a new penal statute that focused on a continuing course of conduct. Id. She added the new statute "might well assist in preserving our bedrock criminal-procedure principles of double jeopardy, jury unanimity, due-process notice, grand-jury indictments and election law." Id. III. ANALYSIS
In his two motions to quash, Appellee asserted section 21.02 is unconstitutional on three grounds: (1) section 21.02 violates the jury unanimity requirement of the United States and Texas Constitutions, (2) section 21.02 violates Due Process under the United States Constitution and Due Course of Law under the Texas Constitution, and (3) section 21.02 is unconstitutional because, as applied, it will allow the State to indict on charges that do not give sufficient notice of the claim against Appellee. A. Jury Unanimity under the United States and Texas Constitutions
Appellee contends that the United States Constitution grants a state defendant the right to a unanimous verdict. 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. 880 (1948); see Sanchez v. State, 23 S.W.3d 30, 39 (Tex. Crim. App. 2000). In addition, the Sixth Amendment is applicable to the states by virtue of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 149-50, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). However, there is no United States Supreme Court authority that states the United States Constitution requires a unanimous verdict in state cases. Apodaca v. Oregon, 406 U.S. 411-12, 92 S.Ct. 1628 (1972) (the Sixth Amendment does not require a conviction by a unanimous verdict in state court); see Phillips v. State, 130 S.W.3d 343, 352 n. 6 (Tex. App.-Houston [14 Dist.] 2004), aff'd, 193 S.W.3d 904 (Tex. Crim. App. 2006) (citing Apodaca, the court stated, "The United States Constitution clearly does not grant a right to a unanimous verdict."). Accordingly, we address Appellee's claimed right to unanimity under Texas law only. Under the Texas Constitution, a jury verdict in a felony case is required to be unanimous, and under our state statutes, unanimity is required in all criminal cases. Tex. Const. Art. V, § 13; Tex. Code Crim. Proc. Ann. art. 36.29 (Vernon Supp. 2009); Stuhler v. State, 218 S.W.3d 706, 716 (Tex. Crim. App. 2007). Unanimity means that every juror must agree that the defendant committed the same, single, specific criminal act. Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005). This does not mean, however, that jurors must unanimously agree that the defendant committed that crime in one specific way or even with one specific act. Id. at 746; Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008) (citing Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006)). The Legislature has considerable discretion in defining crimes and the manner in which those crimes can be committed. Landrian v. State, 268 S.W.3d at 535. That discretion is limited only by the Due Process Clause of the United States Constitution and the Due Course of Law provision of the Texas Constitution. Id. (citing Schad v. Arizona. 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (plurality opinion)). Appellee describes the charge against him under section 21.02 as two "predicate offenses" of indecency with a child and sexual assault, which were part of the "more global crime of continuous sexual abuse." He argues that section 21.02 "permits a jury to convict a defendant without unanimous agreement that the defendant committed any discrete culpable act" and that is unconstitutional, citing Ngo, 175 S.W.3d at 745. We disagree. Appellee's reliance on Ngo is misplaced. In Ngo, the defendant was charged with credit card abuse under Section 32.31 of the Texas Penal Code with three separate offenses: (1) stealing a credit card; (2) receiving a credit card known to be stolen with the intent to use it; and (3) presenting a credit card to obtain a fraudulent benefit without the effective consent of the cardholder. Ngo, 175 S.W.3d at 740. Section 32.31 lists eleven different ways to commit credit card abuse. Tex. Penal Code Ann. § 32.31 (Vernon Supp. 2009). The State sought one conviction for the commission of one credit card abuse offense by proving any one of the three criminal acts, which occurred at different times in different ways. Ngo, 175 S.W.3d at 744. The court of criminal appeals held that, "the failure to instruct the jury that it must be unanimous on which specific criminal act the defendant committed violated the defendant's state constitutional and statutory right to a unanimous jury verdict." Id. at 752. However, that court also held the jury need not agree on all the "underlying brute facts [that] make up a particular element." Id. at 747 (citing Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999)). This case is distinguishable from Ngo. In Ngo, the State sought one conviction for credit card abuse with evidence that at different times the defendant committed three different acts that the applicable statute defined as separate criminal offenses and not as means of committing a single criminal offense. See id. at 745. The applicable statute in Ngo defined the three acts involved as separate criminal offenses while the applicable statute here defines the two or more acts involved as means of committing a single criminal offense. Id.; see Jefferson, 189 S.W.3d at 312-13. In this case, the State sought one conviction for a "series" of acts of sexual abuse with evidence that, during the relevant time period, Appellee committed two or more different acts, namely indecency with a child and sexual assault, that section 21.02 defines as means of committing a single criminal offense and not as two or more separate criminal offenses. Accordingly, unlike in Ngo, this statute does not violate any constitutional requirements raised by Appellee. Appellee acknowledges that a jury verdict need not be unanimous as to the manner and means of how a crime is committed. However, Appellee makes a distinction between a "means" of a crime and the "specific actus reus element of a crime." Citing Richardson, Appellee argues that the "predicate offenses" comprising the crime of continuous sexual abuse are each distinct violations of the penal code, not merely the "manner and means" of committing the offense, that must be agreed upon unanimously by the jury. Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). We conclude that Richardson is distinguishable from this case. In Richardson, the appellant was convicted under a federal criminal statute forbidding any person from engaging in a "continuing criminal enterprise." Id. at 815. A person is engaged in a "continuing criminal enterprise" if he "violates any provision of [the federal drug laws]" and "such violation is a part of a continuing series of violations . . ." Id. The Supreme Court held that for this particular federal crime, a jury must unanimously agree not only that the defendant committed some "continuing series of violations," but also about which specific "violations" make up that "continuing series." Id. at 813. The Supreme Court stated, "if the statute makes each `violation' a separate element, then the jury must agree unanimously about which three crimes the defendant committed." However, "[i]f the statute creates a single element, a `series,' in respect to which individual violations are but the means, then the jury need only agree that the defendant committed at least three of all the underlying crimes the Government has tried to prove. The jury need not agree about which three." In this case, 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 "violation" (act of sexual abuse) a separate element of the offense that needs to be agreed upon unanimously, like in Richardson. Appellee urges another argument respecting unanimity. He asserts section 21.02, in violation of his rights to Due Process under the United States Constitution, improperly allows a jury to render a verdict that is not unanimous as to the acts of sexual abuse constituting the "series" of sexual abuse. Appellee supports this argument by attempting to distinguish this case from Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). In Schad v. Arizona, where the Supreme Court held that the trial court's decision to not require the jury to unanimously agree regarding the theory of murder for which petitioner was convicted did not deny petitioner his due process. Appellee acknowledges that the plurality in Schad "seemed willing to allow states to determine, within due process constraints, what constitutes different offenses." See Schad, 501 U.S. at 632. However, Appellee argues that Schad is distinguishable from the instant case because the two offenses the petitioner was being charged with, premeditated murder and felony murder, were "basically morally and conceptually equivalent" and part of a single crime of first-degree murder. According to Appellee, in this case, the underlying predicate offenses under section 21.02 are different and separate offenses and are not "morally and conceptually equivalent," and hence, Schad is inapplicable. Appellee also attempts to minimize the precedential value of the plurality opinion in Schad by contending it is undercut by Richardson. Appellee cites Richardson again for the proposition that when a defendant is charged with a series of violations, the jury must be unanimous about each specific violation that it found the defendant had committed. See Richardson, 526 U.S. at 815. It is Appellee's position that the offense of continuous sexual abuse was an aggregation of individual crimes of sexual abuse, namely indecency with a child and sexual assault. Appellee contends because some jurors were allowed to convict based upon sexual abuse on some days and other jurors could convict based on sexual abuse on other days, this scenario violated due process as enunciated by Richardson. We are unpersuaded by Appellee's argument respecting Schad and Richardson. The holding in Schad supports the proposition that a jury is not required to unanimously agree upon which offenses make up continuous sexual abuse. In Schad, the record reflected the trial court did not require the jury to unanimously agree as to the theory of murder for which petitioner was convicted. Schad, 501 U.S. at 632. The Supreme Court upheld the trial court's decision, stating, "different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict." Id. (citing McKoy v. North Carolina, 494 U.S.433, 449, 110 S.Ct. 1227, 1236-37, 108 L.Ed.2d 369 (1990) (Blackmun, J., concurring)). Richardson is also not applicable to this particular issue because it did not address the constitutionality of the continuing statute based on due process grounds. Accordingly, we cannot agree with Appellee that section 21.02 is unconstitutional based on jury unanimity. We next address Appellee's due course of law argument. Appellee contends that the Texas Constitution provides greater protection than the United States Constitution in terms of the requirement of jury unanimity. Article I § 9 of the Texas Constitution provides that "no citizen of this State shall be deprived of life, liberty, property . . . except by the due course of the law of the land." Tex. Const. art. I, § 19. Article V § 13 requires a unanimous jury verdict in all felony cases. Stuhler v. State, 218 S.W.3d 706, 716 (Tex. Crim. App. 2007) (interpreting Article V § 13 to require a unanimous jury verdict in all felony cases); see Tex. Const. art. V, § 13. Appellee argues that Article I § 19 and Article V § 13, read together, require that due course of law in Texas mandates jury unanimity. We agree the Texas Constitution is broader than the United States Constitution because, as stated above, the Texas Constitution requires jury unanimity for state defendants. However, as described above, section 21.02 does not give rise to a unanimity defect as argued by Appellee. Additionally, the State addressed another argument made by Appellee in his first motion to quash. Appellee asserted that section 21.02 violated Due Process of the United States Constitution by raising the minimum punishment for continuous acts of child abuse to twenty-five years, establishing ineligibility from probation, if it is shown that any two of such acts were committed thirty or more days apart. See Tex. Penal Code Ann. § 21.02(h) (minimum punishment for continuous sexual abuse of a child is twenty-five years); Tex. Code Crim. Proc. Ann. art. 42.12, § 4(d)(1) (a defendant is not eligible for jury recommended community supervision if the defendant is sentenced to a term of imprisonment that exceeds ten years); Tex. Code Crim. Proc. Ann. art. 42.12, § 3(e)(1) (a defendant is also not eligible for judge ordered community supervision with the elevated punishment range). In his motion to quash, Appellee elaborated on his argument by stating, "Thus Defendant is placed in the untenable position of showing both that an act of abuse did not occur but if it did occur in order to be eligible for probation from a jury, that the abuse occurred within 30 days of all other acts of alleged abuse. Defendants cannot render affective [sic] assistance of counsel if he is forced to simultaneously discredit the fact that an act of abuse occurred and that it occurred within a 30 day time period of the other alleged acts of abuse. Placing an attorney in such a quandary violates basic concepts of fairness and thus Due Process." The State asserts Appellee's argument is not well founded. According to the State, had Appellee been indicted for the separate acts of aggravated sexual assault and indecency with a child, rather than under section 21.02, an elevated punishment range would nevertheless apply and Appellee would be ineligible to receive probation. To support that proposition, the State cites us to "Jessica's Law" which states a jury cannot recommend community supervision for a defendant who is convicted of certain sexual offenses, including aggravated sexual assault and indecency with a child, if the victim is younger than fourteen years of age. Tex. Code Crim. Proc. Ann. art. 42.12, §§ 4(d)(5), (6) (Vernon Supp. 2009). The indictment in this case alleged the complainant was a child younger than fourteen years of age. Were a jury to convict Appellee of aggravated sexual assault and/or indecency with a child, instead of continuous sexual abuse, believing the acts occurred over a period of thirty or more days, under Jessica's Law Appellee would still be ineligible for community supervision. See id. In his brief before this Court, Appellee adds to his elevated punishment argument a proposition not raised to the trial court. He asserts that section 21.02 is a "recidivist statute" that "lacks the procedural safeguards traditionally associated with enhanced punishment provisions." In explaining his position, Appellee directs us to another enhancement/recidivist statute, section 12.42(d) of the penal code, which states that if a defendant is found guilty of a first degree felony and is found to have been previously convicted of two prior felonies, the minimum sentence is twenty-five years. See Tex. Penal Code Ann. § 12.42(d). It is Appellee's position section 12.42(b) provides "safeguards and due process guarantees," namely that the two prior felonies used for enhancement are final convictions (jury already unanimously found him guilty). Appellee argues that section 21.02 does not provide those "safeguards and due process guarantees," therefore violating due process and due course of law because "there is no requirement that a defendant charged under that statute be found guilty of the underlying predicate offenses by a unanimous jury before an enhanced sentence is assessed." Appellee cites no authority, and we find none, to support his proposition that section 21.02 violates due process and due course of law based on the lack of, what Appellee calls, procedural safeguards. We apply the plain language of a statute as written by the legislature. See State v. Webb, 12 S.W.3d 808, 811 (Tex. Crim. App. 2000); State v. Mason, 980 S.W.2d 635, 638 (Tex. Crim. App. 1998). Accordingly, we cannot agree with Appellee. B. Notice on Indictment
Appellee contends that the indictment failed to adequately describe and provide sufficient notice of the charges against him. This contention was addressed in Appellee's "Second Motion to Quash Indictment" and not the first motion, that was specifically entitled only "Motion to Quash Indictment Based on an Unconstitutional Statute." The trial court's order quashing the indictment recited only that it granted Appellee's "Motion to Quash" based on the unconstitutionality of section 21.02. The order did not identify on which motion to quash or what ground or grounds it relied. The State did not address whether or not this Court should address the notice issue. Accordingly, we address this third ground. The right to notice is set forth in both the United States and Texas Constitutions. See U.S. Const. amend. VI; Tex. Const. art. I, § 10; Moff, 154 S.W.3d at 601. In addition, the Texas Code of Criminal Procedure provides guidelines relating to the sufficiency of an indictment. See, e.g., Tex. Code Crim. Proc. Ann. art. 21.03 (Vernon Supp. 2009) ("Everything should be stated in an indictment which is necessary to be proved."); Tex. Code Crim. Proc. Ann. art. 21.04 ("The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense."); Tex. Code Crim. Proc. Ann. art. 21.11 ("An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment. . . ."). Accordingly, the charging instrument must be specific enough to inform the accused of the nature of the accusation against him so that he may prepare a defense. Moff, 154 S.W.3d at 601. "An indictment is generally sufficient as long as it tracks the language of a penal statute that itself satisfies the constitutional requirement of notice." Lawrence v. State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007). A complaint that an indictment does not provide adequate notice alleges a defect in form. Olurebi v. State, 870 S.W.2d 58, 61 (Tex. Crim. App. 1994); Hodge v. State, 756 S.W.2d 353, 357 (Tex. App.-Dallas 1988, no pet.). A defect of form does not render an indictment insufficient unless the defect "prejudice[s] the substantial rights of the defendant." Tex. Code Crim. Proc. Ann. art. 21.19 (Vernon Supp. 2009); Olurebi, 870 S.W.2d at 61. To determine whether the defendant had notice adequate to prepare his defense, we must first determine whether the charging instrument failed to provide all the requisites of "notice." Olurebi, 870 S.W.2d at 61 (citing Adams v. State, 707 S.W.2d 900, 903 (Tex. Crim. App. 1986). If the indictment gave sufficient notice, our inquiry ends. Id. If it did not, we must ask whether, in the context of this case, the deficiency had an impact on the defendant's ability to prepare a defense and finally, how great was such impact. Id. at 61-62. In this case, the indictment alleged that "on or about and between" January 1 and August 24, 2008, Appellee did: during a period that was 30 or more days in duration, when the defendant was 17 years of age or older, commit two or more acts of sexual abuse against [A.E.], a child younger than 14 years of age, hereinafter called complainant, namely by the contact and penetration of the complainant's female sexual organ by the defendant's sexual organ, and by the contact between defendant's hand and complainant's genitals with the intent to arouse and gratify the sexual desire of defendant, and by contact between the hand of the complainant and the genitals of the defendant with the intent to arouse and gratify the sexual desire of the defendant, and by the penetration of the complainant's female sexual organ by the defendant's finger, and by the contact and penetration of the complainant's anus by the defendant's sexual organ, and by the contact and penetration of the complainant's female sexual organ by the defendant's mouth In Appellee's "Second" motion to quash, he first complained the indictment "fails to allege an offense with a degree of certainty that would give the defendant notice of the particular offense with which he is charged." However, the State claims, and we agree, that the indictment tracks the applicable statutory language by alleging each element of the offense of continuous sexual abuse of a child. See Tex. Penal Code Ann. § 21.02(b). The indictment also alleges the different means by which Appellee committed the offense by listing in detail the specific acts of sexual abuse allegedly committed by him. Each of the acts listed constitutes an "act of sexual abuse" under the statute. See Tex. Penal Code Ann. § 21.02(c)(2), (4). Second, Appellee complained that the indictment "fails to adequately describe the offense charged in that the indictment alleges that the defendant committed six separate acts of sexual abuse over a period of 30 or more days in duration, but fails to [sic] out the dates of said period of 30 or more days in duration." The State responds that the language of the indictment, specifying the offense was committed "[o]n or about and between the 1st day of January A.D., 2008 and the 24th day of August A.D., 2008," was sufficient to describe the period during which Appellee allegedly committed the offense of continuous sexual abuse. We agree. The indictment specified the thirty day date range, between January 1 and August 24, when Appellee allegedly committed the offense. Finally, Appellee complained the indictment inadequately describes the six alleged acts of sexual abuse because it "fails to allege the date of each said act of sexual abuse." The State responds that the specific dates of the acts are not required for adequate notice because they are evidentiary in nature. We agree. The State is not required to plead evidentiary facts which are not essential to provide notice. Livingston v. State, 739 S.W.2d 311, 321 (Tex. Crim. App. 1987); Epps v. State, 811 S.W.2d 237, 243 (Tex. App.-Dallas 1991, no pet.); State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998); see Moff, 154 S.W.3d at 603 (State is not required to "lay out its case in the indictment"). An indictment that tracks the language of the statute is legally sufficient and the State need not allege facts that are merely evidentiary in nature. Livingston, 739 S.W.2d at 321. Furthermore, the court of criminals appeals has held that the State need not allege a specific date in an indictment. Sledge v. State, 953 S.W.2d 253, 255-56 (Tex. Crim. App. 1997). When an indictment alleges an offense occurred "on or about" a specific date, this allows the State to prove a date other than the one alleged in the indictment as long as the date is "anterior to the presentment of the indictment and within the statutory limitation period." Id. Here, the indictment alleged Appellee committed six acts of sexual abuse "on or about and between" January 1 through August 24, 2008. We conclude this was sufficient to provide Appellee notice of when the acts of sexual abuse occurred for his charge of continuous sexual abuse. See id. Based on the foregoing, we conclude that the indictment provided adequate notice of the offense with which Appellee was being charged so that he could prepare a defense. See Moff, 154 S.W.3d at 601. IV. CONCLUSION
We reverse the trial court's order and remand this cause for further proceedings.