              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                        NO. PD-0822-08



                         NIKOLAI IVANOV KARENEV, Appellant

                                                v.

                                  THE STATE OF TEXAS

              ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE SECOND COURT OF APPEALS
                              DENTON COUNTY

      C OCHRAN, J., filed a concurring opinion in which P RICE, W OMACK and
J OHNSON, JJ., joined.

                                           OPINION

       I concur in the judgment of the Court. Although I agree with much of the majority’s

reasoning, I think it paints with too broad a brush. In particular, I respectfully disagree with

the absolutist conclusion “that a defendant may not raise for the first time on appeal a facial

challenge to the constitutionality of a statute.” 1 What is particularly ironic in this case is that

appellant did not, in fact, raise a facial challenge to the constitutionality of the harassment


       1
           Majority Op. at 11.
                                               Karenev          Concurring Opinion         Page 2


statute, so this is an “all hat and no cattle” theoretical issue.

A.     “Facial” vs. “As Applied” Constitutional Challenges.

       First, what is the difference between a facial challenge and an “as applied” challenge

to the constitutionality of a penal statute? Evidence. A facial challenge is based solely upon

the face of the penal statute and the charging instrument, while an applied challenge depends

upon the evidence adduced at a trial or hearing.

       A facial challenge to the constitutional validity of a statute considers only the
       text of the measure itself, and not its application to the particular
       circumstances of an individual. A party asserting a facial challenge to a statute
       seeks to vindicate not only his own rights, but also those of others who may
       also be adversely impacted by the statute in question.2

       For example, in Lawrence v. Texas,3 the defendants successfully challenged the facial

constitutionality of the Texas sodomy statute without producing one whit of evidence.4 As

the lower court had noted in Lawrence, “because appellants subsequently entered pleas of

nolo contendere, the facts and circumstances of the offense are not in the record. . . . Thus,

the narrow issue presented here is whether [Penal Code] Section 21.06 is facially

unconstitutional.”5 The defendants did not need any evidence other than the fact of their

prosecution to give them standing to challenge the constitutionality of the penal statute under

       2
           16 C.J.S. Constitutional Law § 113, at 149 (2005).
       3
           539 U.S. 558 (2003).
       4
           Id. at 563.
       5
        Lawrence v. State, 41 S.W.3d 349, 350 (Tex. App.—Houston [14th Dist.] 2001), rev’d,
539 U.S. 558 (2003).
                                                Karenev           Concurring Opinion           Page 3

which they were convicted. A facial attack upon a penal statute is solely and entirely a legal

question and is always subject to de novo review.6 It can be brought before any trial, during

any trial, or after any trial because it is wholly divorced from the specific facts of the

purported crime.7

B.     Why Appellate Courts Should Entertain a Facial Challenge to the
       Constitutionality of a Penal Statute.

       There are two good reasons why appellate courts should entertain a facial challenge

to the penal statute setting out the offense for which the defendant was convicted, even when

it is raised for the first time on appeal:8

       6
          See generally, Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Johnson v.
State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997); Henderson v. State, 962 S.W.2d 544, 551
(Tex. Crim. App. 1997); see also 43A GEORGE E. DIX & ROBERT O. DAWSON , TEXAS PRACTICE :
CRIMINAL PRACTICE AND PROCEDURE § 43.444, at 672 (2d ed. 2001) (“Purely ‘legal question[s]’
are always reviewed de novo review on appeal. Appellate courts have no authority to in any way
defer to the trial court’s resolution of them.”).
       7
        See, e.g., United States v. Williams, 128 S.Ct. 1830, 1838 (2008) (defendant pled guilty
to pandering child pornography, but reserved his right to challenge its facial constitutionality on
both overbreadth and vagueness grounds).
       8
          Although I think that the majority paints with too broad a brush, I think that “the Rabb
rule” paints with an even broader brush in the opposite direction. In Rabb v. State, 730 S.W.2d
751, 752 (Tex. Crim. App. 1987), this Court stated:
        Questions involving the constitutionality of a statute upon which a defendant’s
        conviction is based should be addressed by appellate courts, even when such
        issues are raised for the first time on appeal.
Id. That sentence is subject to considerable misunderstanding and misapplication. One might
think that any statute applicable to a criminal prosecution could be challenged as facially invalid
for the first time on appeal. Clearly, that is not so.
        The correct statement, at least under federal law, is that a defendant may raise for the first
time on appeal the constitutionality of the statute creating and defining the crime for which the
defendant has been convicted. See note 9 infra; see also Anthony v. State, 209 S.W.3d 296, 304
(Tex. App.—Texarkana 2006, no pet.) (defendant could raise facial challenge to the city
trespassing regulation for the first time on appeal because a “facial challenge claims that a statute
                                                  Karenev            Concurring Opinion            Page 4

        (1)     American law prohibits the conviction and punishment of a person under an
                unconstitutional penal statute; 9 in other words, it is an “absolute requirement”


is ‘invalid in toto–and therefore incapable of any valid application’”) (quoting Steffel v.
Thompson, 415 U.S. 452, 474 (1974)); Sullivan v. State, 986 S.W.2d 708, 711 (Tex.
App.—Dallas 1999, no pet.) (defendant was not required to raise in trial court his constitutional
challenge that the indecency-with-a-child statute was facially invalid and therefore void ab
initio); Ravenbark v. State, 942 S.W.2d 711, 711 (Tex. App.—Houston [14th Dist.] 1997, no pet.)
(“The statute under which appellant was convicted was declared unconstitutional for vagueness
in Long v. State, 931 S.W.2d 285, 297 (Tex. Crim. App.1996). Appellant did not challenge the
constitutionality of the statute in the trial court, nor did she raise the issue in her brief filed in this
court . . .; nor has she filed an amended brief raising the issue following the decision in Long.
This, however, does not amount to a waiver. . . . Accordingly, on this direct appeal from a
conviction under a void statute, we hold the judgment is void.”).
         On the other hand, unconstitutional procedural statutes or evidentiary rules do not affect
the jurisdiction of the court, its authority, or its power to render a judgment. Therefore, the
failure to object in the trial court waives any appellate claim. See Webb v. State, 899 S.W.2d
814, 817-19 (Tex. App.—Waco 1995, pet. ref’d) (noting that “because a statute criminalizing the
defendant's conduct is necessary to the jurisdiction of the convicting court, the Rabb rule is
properly applied when the defendant challenges the constitutionality of the specific statute he is
charged with violating.”; distinguishing that rule from a facial attack on the constitutionality of a
statute relating to arrests as that statute does not go to the judicial power of the court to enter and
enforce a judgment of conviction; holding that the usual rules concerning error preservation
apply to such procedural statutes); Lasher v. State, 202 S.W.3d 292, 296 (Tex. App.—Waco
1995, pet. ref’d) (quoting and following Webb).
        9
           Well over a century ago, the Supreme Court stated, “If the law which defines the offense
and prescribes its punishment is void, the court was without jurisdiction and the prisoners must
be discharged.” Ex parte Yarbrough (The Ku Klux Klan Cases), 110 U.S. 651, 654 (1884).
Similarly, in Ex parte Siebold, 100 U.S. 371 (1879), the Supreme Court held that if the law that
defines a criminal offense is unconstitutional, then
         it affects the foundation of the whole proceedings. An unconstitutional law is
         void, and is as no law. An offence created by it is not a crime. A conviction
         under it is not merely erroneous, but is illegal and void, and cannot be a legal
         cause of imprisonment.
Id. at 376-77. Justice Scalia repeated that basic proposition over a hundred years later: “[A] law
repugnant to the Constitution ‘is void, and is as no law.’” Reynoldsville Casket Co. v. Hyde, 514
U.S. 749, 760 (1995) (Scalia, J., concurring). The same is true in Texas. See Ex parte Weise, 55
S.W.3d 617, 620 (Tex. Crim. App. 2001) (defendant is entitled to file for pretrial habeas relief
when he alleges “that the statute under which he or she is prosecuted is unconstitutional on its
face; consequently, there is no valid statute and the charging instrument is void”).
         We do not put people in prison for non-crimes or for violating an unconstitutional penal
statute, such as the now-defunct sodomy statute. Courts frequently delve deeply into the intricate
                                                Karenev           Concurring Opinion           Page 5

               that a person be criminally punished only for the violation of a valid penal
               law;10 and


distinctions between “void” laws, “voidable” laws, and a trial court’s jurisdiction, power, or
authority over a “void” or unconstitutional law, but Justice Scalia has the proper laymen’s
approach: just ignore it. 514 U.S. at 760. An unconstitutional penal law has no force and no
effect. Courts ignore or disregard it. According to Justice Scalia, “In fact, what a court does with
regard to an unconstitutional law is simply to ignore it. It decides the case “disregarding the
[unconstitutional] law.” Id. (emphasis in original). And if the law defining a penal offense is
facially unconstitutional, then no prosecution is valid, no conviction is valid, and no judgment is
valid. All three may be ignored or disregarded. For example, the sodomy statute, TEX . PENAL
CODE § 21.06, is still on the books some five years after Lawrence, but it is not and cannot be
enforced.
       10
           See Marin v. State, 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993) (“any party
entitled to appeal is authorized to complain that an absolute requirement or prohibition was
violated, and the merits of his complaint on appeal are not affected by the existence of a waiver
or a forfeiture at trial”). Post-Marin Texas cases have assumed that conviction under a facially
unconstitutional penal statute is a category one–fundamental and jurisdictional–right that cannot
be waived. See Barnett v. State, 201 S.W.3d 231, 232-33 (Tex. App.—Fort Worth 2006, no pet.)
(stating that “if the statute giving rise to a prosecution is unconstitutional, it is void from its
inception, is no law, confers no rights, bestows no power on anyone, and justifies no act
performed under it. . . . Requiring the defendant to preserve such a challenge in the court below
on pain of waiver could result in a criminal conviction based upon an unconstitutional statute.”);
Adams v. State, 222 S.W.3d 37, 53 (Tex. App.—Austin 2005, pet. ref’d) (“A facial constitutional
challenge to the statute under which a defendant has been charged may be raised for the first time
on appeal because the facial challenge affects the jurisdiction of the trial court to have entered a
judgment.”); Long v. State, 903 S.W.2d 52, 54 (Tex. App.—Austin 1995) (addressing facial
constitutional challenge to the anti-stalking statute even though defendant had not raised that
issue in the trial court and holding that statute was not unconstitutionally vague), rev'd, 931
S.W.2d 285, 287 & n.3 (Tex. Crim. App.1996) (reversing conviction and holding that statute was
facially unconstitutional on vagueness grounds; noting, “Although appellant did not raise his
constitutional challenge at trial, the Court of Appeals held it appropriate to address his facial
attack on the statute for the first time on appeal. The State does not challenge that holding.”); See
also, Herrera v. Commonwealth, 483 S.E.2d 492, 493-95 (Va. Ct. App. 1997) (stating that “‘[a]
court lacks jurisdiction to enter a criminal judgment if the judgment is predicated upon an
unconstitutional or otherwise invalid statute or ordinance’”; defendant was not procedurally
barred from relief on appeal even though he had not challenged facial unconstitutionality of
statute in trial court; “Because the dispositive issue here is one of jurisdiction, we hold that its
determination is not procedurally defaulted by [defendant’s] failure to raise it.”); Trushin v. State,
425 So.2d 1126, 1129-30 (Fla. 1982) (even though defendant had not raised facial challenges to
penal statute under which he was convicted in trial court, appellate court must “‘consider their
merits because a conviction for the violation of a facially invalid statute would constitute
                                               Karenev           Concurring Opinion             Page 6


       (2)     Appellate courts are in at least as good a position as trial courts to review the
               purely legal question of whether a particular penal statute is facially
               unconstitutional.11


fundamental error’”; “Only the constitutionality of the statute under which [defendant] was
convicted was the kind of alleged error which must be considered for the first time on appeal
because the arguments surrounding the statute’s validity raised a fundamental error.”).
       11
           Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim. App. 2008) (“Because statutory
interpretation is a question of law, this court conducts a de novo review.”); Guzman v. State, 955
S.W.2d 85 (Tex. Crim. App.1997). See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App.
2004). As we explained in Moff,
        Prior to our decision in Guzman . . . , abuse of discretion was the standard
        employed by our Court when reviewing a trial court's decision to quash an
        indictment. But we did not have occasion to analyze its appropriateness. However,
        we now determine that a de novo review is more appropriate in a case such as the
        one before us. The amount of deference appellate courts afford a trial court's
        rulings depends upon which “judicial actor” is better positioned to decide the
        issue. . . . The sufficiency of an indictment is a question of law. When the
        resolution of a question of law does not turn on an evaluation of the credibility
        and demeanor of a witness, then the trial court is not in a better position to make
        the determination, so appellate courts should conduct a de novo review of the
        issue. While this case is different from Guzman in that it involves the Appellee's
        due process right to notice of the charges against him, our reasoning for modifying
        the standard of review is the same. The trial court's decision in this case was based
        only on the indictment, the motion to quash, and the argument of counsel, so the
        trial court was in no better position than an appellate court to decide this issue.
Id. See also Staples v. United States, 511 U.S. 600, 612 n.6 (1994) (“the mens rea requirement
under a criminal statute is a question of law, to be determined by the court”).
        When it comes to factual findings, the trial court, not the appellate court, is in a better
position to make the determination. As the Supreme Court explained in Anderson v. City of
Bessemer, 470 U.S. 564, 574 (1985),
        The rationale for deference to the original finder of fact is not limited to the
       superiority of the trial judge’s position to make determinations of credibility. The
       trial judge’s major role is the determination of fact, and with experience in
       fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the
       court of appeals would very likely contribute only negligibly to the accuracy of
       fact determination at a huge cost in diversion of judicial resources. In addition, the
       parties to a case on appeal have already been forced to concentrate their energies
       and resources on persuading the trial judge that their account of the facts is the
       correct one; requiring them to persuade three more judges at the appellate level is
                                                Karenev           Concurring Opinion           Page 7


       First, I do not think that the majority is suggesting that it is quite acceptable to send

someone to prison for violating an unconstitutional penal statute if that person failed to object

to the statute’s unconstitutionality in the trial court.         But its language could well be

misconstrued as allowing persons who are not guilty of violating any valid penal statue to

be punished nonetheless if they failed to complain soon enough. The moral of that story

would be: Because you were a slowpoke at noticing that you were not guilty of any valid

criminal offense, we will punish you as if you really were guilty of some valid criminal

offense.     That is not the American way: every person has an absolute, fundamental, and

unforfeitable right to be punished only for the violation of a valid criminal statute.12

       Second, the general rationale for requiring an objection in the trial court to preserve

error on appeal simply does not apply when the claim is that the penal statute is facially

unconstitutional and cannot be used to punish any person, now or in the future.13 The two



       requiring too much. As the Court has stated in a different context, the trial on the
       merits should be “the ‘main event’ ... rather than a ‘tryout on the road.’ ”
Id. But when the appellate court is reviewing the facial validity of a statute defining the penal
offense, it does not need a trial or evidence or facts. Review of the law itself, unencumbered
with facts, is “the main event,” and appellate judges, at least in theory, are more experienced in
resolving issues of pure law.
       12
            See note 9, supra.
       13
          Indeed, I do not think that an objection in the trial court is necessary to preserve an “as
applied” challenge to the constitutionality of the penal statute upon which the defendant is
convicted. As I have previously stated,
       A defendant must make an “as applied” challenge to the constitutionality of a
       procedural statute in the trial court. That timely challenge gives the trial court an
       opportunity to decline to apply that procedural statute or make appropriate
                                               Karenev           Concurring Opinion             Page 8

main reasons for requiring a contemporaneous objection in the trial court are (1) to give the

opposing party an opportunity to respond or cure the problem before it becomes error; and

(2) to give the trial judge an opportunity to prevent the error from occurring. 14 A third

rationale is that “judicial economy requires that issues be raised first in the trial court to spare




       modifications to its operation. But the trial court can do nothing more or less than
       an appellate court when the defendant challenges the constitutionality of a penal
       statute under which he is prosecuted after all of the evidence is submitted and a
       jury has returned a guilty verdict. If the defendant prevails on his “as applied”
       constitutional claim, there will be no new trial. There is only one remedy for either
       the trial or appellate court: dismiss the indictment and enter an acquittal because
       the defendant was convicted under an unconstitutional application of an otherwise
       valid penal statute. The contemporaneous-objection rule, essential though it may
       be in most contexts, serves little purpose in a post-trial proceeding attacking the
       constitutionality of a penal statute as it was applied.
                It is polite to give the trial judge the first crack at determining whether a
       penal statute was applied unconstitutionally to the defendant under a specific body
       of evidence, but the trial judge can do nothing to salvage its operation or correct
       its application. The purpose of the contemporaneous-objection rule is to provide
       both the trial judge and the opposing party an opportunity to avoid or correct
       potential errors and thus avoid a procedurally improper conviction and a
       subsequent retrial. That purpose is not served when, after the jury returns its
       verdict, the defendant challenges the constitutionality of a penal statute as it was
       applied. If the defendant is correct, the conviction disappears, and he cannot be
       held criminally liable. If the defendant is incorrect, the conviction stands.
Flores v. State, 245 S.W.3d 432, 443-44 (Tex. Crim. App. 2008) (Cochran, J., concurring)
(footnotes omitted).
       14
           See Loredo v. State, 159 S.W.3d 920, 923 (Tex. Crim. App. 2004) (“Preservation of
error is not merely a technical procedural matter by which appellate courts seek to overrule points
of error in a cursory manner. Fairness to all parties requires a party to advance his complaints at a
time when there is an opportunity to respond or cure them.”); Maynard v. State, 685 S.W.2d 60,
65 (Tex. Crim. App. 1985) (noting that “the purpose of an objection [made at trial] is twofold:
first, a specific objection is required to inform the trial judge of the basis of the objection and
afford him or her an opportunity to rule on it; and second, a specific objection is required to
afford opposing counsel an opportunity to remove the objection or supply other testimony.”).
                                             Karenev          Concurring Opinion          Page 9

the parties and the public the expense of a potentially unnecessary appeal.” 15

       The first two rationales do not apply when a penal statute defining the criminal

offense is facially unconstitutional in its entirety. The statute cannot be repaired by the

parties or the trial judge. The only two options at the trial level are to dismiss the charges or

proceed with the prosecution.

       The third rationale, conservation of scarce judicial resources, does apply when the

prosecutor or judge agrees with the defendant that the penal statute is facially

unconstitutional, the charges are dismissed, and there is no appeal from dismissal. But the

likelihood of that occurring is minuscule. Trial judges very rarely declare a penal statute

unconstitutional; prosecutors would generally be remiss if they failed to appeal a ruling that

a legislatively enacted penal statute was unconstitutional and therefore unenforceable; and

public policy is best served by a published appellate decision declaring a penal statute

       15
          Beall v. Ditmore, 867 S.W.2d 791, 793-94 (Tex. App.—El Paso 1993, writ denied); see
generally, Young v. State, 826 S.W.2d 141, 149 (Tex. Crim. App. 1991) (Campbell, J.,
dissenting). In Young, Judge Campbell explained that there
        are many rationales for this raise-or-waive rule: that it is a necessary corollary of
        our adversary system in which issues are framed by the litigants and presented to
        the trial court; that fairness to all parties requires a litigant to advance his
        complaints at a time when there is an opportunity to respond to them or cure
        them; that reversing for error not raised in the trial court permits the losing party
        to second-guess its tactical decisions after they do not produce the desired result;
        and that there is something unseemly about telling a trial court it erred when it
        was never presented with the opportunity to be right. The princip[al] rationale for
        the rule, however, is judicial economy. If the losing side can obtain a reversal on a
        point not argued in the trial court, the parties and the public are put to the expense
        of a retrial that could have been avoided by better lawyering. Furthermore, if the
        issue had been timely raised in the trial court, it could have been resolved there,
        and the parties and the public would have been spared the expense of an appeal.
Id.
                                             Karenev           Concurring Opinion             Page 10

facially unconstitutional and therefore unenforceable against any person. Thus, while it is

conceivable that requiring a defendant to complain of a penal statute’s facial

unconstitutionality in the trial court might save some scare judicial resources, that expense

is a very small price to pay when balanced against the bedrock American notion that we do

not convict and punish people for unconstitutional crimes. Surely this Court would not, after

the Supreme Court’s decision in Lawrence v. Texas, uphold a sodomy conviction today even

though the defendant had not complained in the trial court about the unconstitutionality of

the “still in the books” sodomy statute.

C.     Appellant did not make a facial challenge to the constitutionality of the
       harassment statute.

       But all’s well that ends well. Appellant did not raise–either in the trial court or the

appellate court–a facial challenge to the constitutionality of the harassment statute. I quote

his second Point of Error on direct appeal and associated argument in toto:16

       Penal Code 42.07(a) is Unconstitutionally Vague so that a Person of Ordinary
       Circumstances Cannot Tell What Is Prohibited and What Is Not

              The plain requirement of the statute is for repeated proscribed emails
       to have been sent by the defendant to permit conviction under the statute. The
       evidence presented by the state showed only separate different emails sent on
       five occasions. . . . None of the emails were either repeated or closely tracked
       one another. There is no profanity or other offensive language threatening the
       well being of the alleged victim. They are, in short, messages from a husband
       who has separated from his wife to his wife.




       16
         I have omitted appellant’s references to the reporter’s record and indicated their
omission by ellipses.
                                               Karenev          Concurring Opinion       Page 11

                The defendant testified . . . that the purpose of the communication were
       to reach an agreement without going through a messy divorce. One exhibit .
       . . is an invited response to a communication from the alleged victim accusing
       the defendant of changing a password to an account of some nature. . . .
       Another is a statement of comfort to the alleged victim about lighting a candle
       at their common church for her.

               The conduct the State has shown in this trial is so vaguely put forth that
       it violates the standard set forth in Kramer v. Price, 712 F.2d 174 (5 th
       Cir.1983) that a person of ordinary circumstances cannot tell what is
       prohibited and what is not.

               Additionally, Art. 1, Sec. 8 of the Texas Constitution provides “Every
       person shall be at liberty to speak, write or publish his opinions on any subject,
       being responsible for the abuse of that privilege; and no law shall ever be
       passed curtailing the liberty of speech or of the press.[”] That is all the record
       in this case shows the defendant to have done.17

Whatever type of complaint this was, it most assuredly was not a facial attack upon the

constitutionality of the harassment statute. The mere fact that appellant relied upon the

evidence at trial shows that his complaint is not a facial attack because that type of attack can

and must be made without reference to evidence. It is an attack upon the face of the statute

in isolation. Once it does or must refer to specific evidence it has passed out of the “facial

attack” arena and has become something else.

       Was this then an “as applied” attack upon the constitutionality of the harassment

statute? No. Appellant does not contend that the statutory word “repeated” is inherently

vague in reference to appellant’s conduct, he merely asserts that he had a legitimate reason

for sending the emails that he sent on five different occasions. It is an underground attack


       17
            Appellant’s Brief on Direct Appeal at 5-6 (emphasis in original).
                                           Karenev         Concurring Opinion         Page 12

upon the sufficiency of the evidence in this particular case to prove that appellant sent

“repeated” harassing emails. Appellant’s defenses were that (1) he did send the emails, but

he had a legitimate reason for doing so; and (2) these emails were not of the sort to cause

alarm, embarrassment, etc., to his estranged wife. His was a good jury argument, but the jury

disagreed with his factual position, as it was entitled to do. Appellant may put on new

clothing and call a sufficiency sheep a constitutional wolf, but that does not make it so.

       I think that the court of appeals was mistaken in transforming appellant’s subterranean

sufficiency of evidence argument into a full-fledged First Amendment attack upon the facial

constitutionality of the harassment statute.

       It is upon that basis that I agree with the majority’s judgment.

Filed: April 22, 2009

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