

 
 


 


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




 Keller, P.J., delivered the opinion of the Court in which Meyers,
Keasler, Hervey, and Holcomb, JJ., joined.  Cochran, J., filed a concurring
opinion in which Price, Womack, and Johnson, JJ., joined.


 

 The question in this case is whether a facial challenge to the constitutionality of the
harassment statute may be raised for the first time on appeal.  We hold that it may not, and we
reverse the judgment of the court of appeals.
I. BACKGROUND

	Elena Karenev filed for a divorce from appellant in October 2004.  During March of 2005,
appellant sent Elena several e-mail messages.  These messages became the basis of a prosecution for
harassment. (1)  Consistent with the allegations in the information, the jury charge provided that the
jury find appellant guilty if it found beyond a reasonable doubt that he:
did then and there with the intent to harass, annoy, alarm, abuse, torment, or
embarrass Elena Karenev, send electronic communications to Elena Karenev in a
manner reasonably likely to harass or annoy or alarm or abuse or torment or
embarrass or offend the said Elena Karenev, to wit: sending harassing and/or
threatening e-mail to Elena Karenev with the intent to harass, annoy, alarm, abuse,
torment, or embarrass Elena Karenev.

Appellant was convicted.  On appeal, he claimed for the first time that the harassment statute was
unconstitutionally vague.  
	The court of appeals held that a challenge to the constitutionality of a statute as applied to
a particular defendant must be raised at trial in order to preserve error. (2)   But the court also held,
based on one of its earlier decisions (3) and relying upon what it called the Rabb (4) rule, that a claim that
a statute is unconstitutional on its face may be raised for the first time on appeal. (5)  The court of
appeals outlined the following rationale for this "Rabb exception" to the contemporaneous objection
rule:
[I]f 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.  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. (6)

	The court of appeals then proceeded to address whether the harassment statute was
constitutional on its face.  Discussing and relying upon the Fifth Circuit's decision in Kramer v.
Price, (7) and our decisions in May v. State (8) and Long v. State, (9) the court of appeals held that the
portion of the harassment statute under which appellant was prosecuted was unconstitutionally vague
on its face because it suffered from the same defects that prompted the Fifth Circuit and this Court
to declare earlier versions of the statute unconstitutional. (10)  Consequently, the court of appeals held
that the statute was void and rendered a judgment of acquittal. (11)
	In its petition for discretionary review, the State claims that (1)  appellant forfeited his facial
challenge to the constitutionality of the harassment statute by failing to raise it in the trial court, and
(2) the statute is not unconstitutionally vague.
II. ANALYSIS

	The State advances several arguments in support of its contention that appellant forfeited
error by failing to object at trial.  First, the State attacks the Rabb opinion as poorly reasoned. 
Second, the State claims that the court of appeals's "lack of jurisdiction" rationale is undercut by the
1985 amendment to Article V, §12 of the Texas Constitution that provided that the presentment of
an information or indictment vests the trial court with jurisdiction over the cause.  Third, the State
relies upon Nix v. State, (12) contending that the "very nearly" exclusive list of rare situations in which
a trial court's judgment is void does not include statutes that are facially unconstitutional.  Finally,
the State contends that the procedural default rule it urges has been adopted in other jurisdictions. 
1. Federal Cases

	It appears that the trend in federal courts is to disallow facial constitutional challenges that
were not raised in the trial court.  In some early cases, the United States Supreme Court held that a
challenge to the constitutionality of the statute that defines the crime could be raised for the first time
on habeas corpus because, if successful, it would render the statute void, affecting "the foundation
of the whole proceedings." (13)  But the Court backed off from that statement in subsequent cases.  In
Glasgow v. Moyer, the defendant was charged with depositing an obscene book in the United States
mails. (14)  Among other claims, the defendant contended that the statute defining the offense with
which he was charged was constitutionally invalid on several grounds. (15)  Declining to address the
merits of his claims, the Supreme Court explained, "The writ of habeas corpus cannot be made to
perform the office of a writ of error [appeal]." (16)  So long as the trial court "had jurisdiction to try the
issues and to render judgment," the habeas court was not concerned with trial matters, including a
claim that "the law which was the foundation of the indictment and trial is asserted to be
unconstitutional or uncertain in the description of the offense." (17)  In Sunal v. Large, the Supreme
Court explained that  in the past it had recognized "some exceptions" to the general rule that habeas
corpus "will not be allowed to do service for an appeal" but suggested that the trend has been to
narrow the availability of habeas relief for these types of claims where an "appellate procedure was
available for correction of the error." (18)  In a later case, the Supreme Court explained that the
statement that an unconstitutional law is "not a law" must "be taken with qualifications." (19)  "The
actual existence of a statute, prior to" a determination of unconstitutionality, "is an operative fact and
may have consequences that cannot be justly ignored." (20)
	In United States v. Baucum, the D.C. Circuit addressed a claim that a constitutional challenge
to the federal "schoolyard statute" could be raised for the first time on appeal because it amounted
to an attack on the trial court's subject matter jurisdiction. (21)  In its own research, the D.C. Circuit was
surprised to find no universally accepted answer to that question. (22)  Citing Glasgow and Yarbrough,
the court acknowledged the existence of "precedent on both sides of the issue," and, citing an
Eleventh Circuit case, the court acknowledged that the defendant's "approach has some support in
the caselaw." (23)  Nevertheless, the D.C. Circuit held that, "[o]n balance . . . the weight of the
precedent, as well as prudential considerations, counsel toward treating facial constitutional
challenges to presumptively valid statutes as nonjurisdictional." (24)  The court observed that the
obligation of federal courts to raise subject matter jurisdiction questions sua sponte seems to conflict
with the requirement that constitutional questions be avoided whenever possible. (25)  The court further
explained that the Supreme Court's holding in Chicot that an unconstitutional statute can be an
"operative fact" constitutes a rejection of the broad-sweeping proposition that an unconstitutional
statute is void ab initio. (26)  The D.C. Circuit found that, usually, federal circuit courts have either
refused to address constitutional challenges to criminal statutes that were not raised at trial or have
addressed such challenges under the rubric of "plain error." (27) 
 2. Texas Cases

	The same trend is apparent in Texas.  Developments in the law of charging instruments and
void judgments undercut the notion that a facial challenge to the constitutionality of a statute
involves a question of "jurisdiction."  As currently written, the Texas Constitution defines an
indictment or information, in part, as a "written instrument . . . charging a person with the
commission of an offense" and provides: "The presentment of an indictment or information to a
court invests the court with jurisdiction of the cause." (28)  This language was added in 1985 and was
designed to overturn the doctrine that a trial court lacked jurisdiction if there was a "fundamental"
defect in the charging instrument. (29)   Furthermore, we have narrowed the situations in which a
judgment can be considered void, formulating a "very nearly" exclusive list in Nix:
(1) the document purporting to be a charging instrument (i.e. indictment, information,
or complaint) does not satisfy the constitutional requisites of a charging instrument,
thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks
subject matter jurisdiction over the offense charged, such as when a misdemeanor
involving official misconduct is tried in a county court at law,  (3) the record reflects
that there is no evidence to support the conviction, or (4) an indigent defendant is
required to face criminal trial proceedings without appointed counsel, when such has
not been waived, in violation of Gideon v. Wainwright. (30) 

This list does not include a judgment resulting from a facially unconstitutional statute.
	The court of appeals cited one of its earlier cases that purported to rely upon the "Rabb
rule." (31)  In Rabb, the defendant was charged with three offenses. (32)  In each case, the defendant
waived trial by jury, requested a referral to a magistrate, and pled guilty pursuant to an agreement. (33) 
For the first time on appeal, the defendant challenged the constitutionality of the Dallas County
Magistrate's Act. (34)  This Court's analysis regarding why the defendant's claim was not procedurally
defaulted consisted of a single sentence: "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." (35)  In support of this proposition, Rabb cited the court
of appeals decision in Moore v. State and Judge Campbell's concurring opinion in Ex parte
Chambers. (36) 
 Rabb's summary statement suggests that it was treating the issue as one of settled law, but
the opinion recited no binding authority for the proposition.  We agree with the State that the
authority that Rabb did cite, even if viewed for persuasive value, offers questionable support.  Moore
stated that "there is authority to conclude that this complaint is waived" but then said that it would
address the merits of the defendant's constitutional challenge to the organized criminal activity
statute because "the Court of Criminal Appeals generally permits constitutional issues to be raised
for the first time on appeal." (37)  Such an opinion can hardly be considered a solid endorsement for
raising a claim for the first time on appeal, and the latter portion appears to be far too broad a
statement of law, at least after Marin v. State. (38)  Judge Campbell's concurring opinion in Chambers
did not address whether a challenge to the constitutionality of a statute could be raised for the first
time on appeal, (39) and indeed, that type of error was not before the Court. (40)   Rather, Judge
Campbell's concurrence argued for a "right not recognized" exception to the contemporaneous
objection rule. (41)  To the extent that Judge Campbell's position might be construed to inferentially
support the ability to challenge the constitutionality of a statute for the first time on appeal, we
observe that "'[t]he right not recognized' exception to the contemporaneous objection rule relates
to a kind of fundamental error . . . that Marin generally eliminated from our jurisprudence." (42)  
	We recognize that this Court arrived at the same conclusion in Rose v. State, where a majority
of the Court held that a facial challenge to the constitutionality of a parole instruction statute could
be raised by an appellant for the first time on appeal. (43)
   But the lead opinion based its conclusion
upon earlier, splintered decisions in which the appellee benefitted from a holding that the Speedy
Trial Act was unconstitutional and where the lead opinions in those cases stated that an
unconstitutional statute was "no law" and  "void." (44)  None of the opinions in the cited cases
suggested that an appealing party would be relieved of the usual obligation to raise an objection at
trial. (45)   To the extent that the Rose plurality inferred by analogy that an appellant would not have
to object because appellees do not have to do so, that basis for decision has been obviated by more
recent caselaw that makes clear that an appellee has no obligation to preserve error. (46) 
	In his concurring opinion in Rose, providing the fifth vote, Judge Teague contended that,
under well-established law, even absent objection, "a court will always adjudicate whether a statute
is unconstitutional when its unconstitutionality is obvious and apparent." (47)  This "obvious and
apparent" rationale seems to be the exact opposite of the "right not recognized" rationale
inferentially cited in Rabb. (48)
  We conclude that the "Rabb/Rose" rule is "a made-up . . . rule in search
of a rationale to justify its existence." (49)
	Both Rabb and Rose preceded Marin, our watershed case in the area of error preservation. (50)
Marin took a functional approach to error preservation, dividing rules into three types: (1) absolute
requirements or prohibitions, (2) rights that are waivable-only, and (3) rights that can be forfeited. (51) 
A facial challenge to the constitutionality of a statute falls within the third category.  Statutes are
presumed to be constitutional until it is determined otherwise. (52)  The State and the trial court should
not be required to anticipate that a statute may later be held to be unconstitutional. 
 3. Conclusion

 We conclude that a defendant may not raise for the first time on appeal a facial challenge to
the constitutionality of a statute.  We reverse the judgment of the court of appeals and remand to that
court so that it may address appellant's remaining claims. (53) 

Delivered: April 22, 2009
Publish

1.   See Tex. Penal Code §42.07(a)(7).  Appellant was also prosecuted for harassment on the
basis of telephone calls, but the jury acquitted him of that charge, so we are not concerned with it
here. 
2.   Karenev v. State, 258 S.W.3d 210, 213 (Tex. App.-Fort Worth 2008).
3.  Barnett v. State, 201 S.W.3d 231 (Tex. App.-Fort Worth 2006, no pet.).
4.   Rabb v. State, 730 S.W.2d 751 (Tex. Crim. App. 1987).
5.   Karenev, 258 S.W.3d at 213 (quoting Barnett, 201 S.W.3d at 232-33).
6.   Id..
7.   712 F.2d 174 (5th Cir.), reh'g en banc granted, 716 F.2d 284 (1983), grant of relief aff'd,
723 F.2d 1164 (1984).
8.   765 S.W.2d 438 (Tex. Crim. App. 1989).
9.   931 S.W.2d 285 (Tex. Crim. App. 1996).
10.   Karenev, 258 S.W.3d at 213-18.
11.   Id. at 218.
12.   65 S.W.3d 664 (Tex. Crim. App. 2001).
13.   Ex parte Siebold, 100 U.S. 371, 376-77(1879)(but ultimately upholding the statutes as
constitutional); see also Ex parte Yarbrough, 110 U.S. 651, 654 (1884)("If the law which defines
the offence and prescribes its punishment is void, the court was without jurisdiction and the prisoners
must be discharged.").
14.   225 U.S. 420, 424 (1912).
15.   Id. at 427-28.  The habeas petitioner raised the constitutional challenges to the offense
provision for the first time on appeal in the federal habeas action, but the Supreme Court did not
address this particular procedural complication.  See id.
16.   Id. at 428.
17.   Id.
18.   332 U.S. 174, 177-179 (1947).
19.   Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374 (1940).
20.   Id.
21.   80 F.3d 539, 540 (D.C. Cir. 1996).
22.   Id.
23.   Baucum, 80 F.3d at 540, 542.
24.   Id. at 540.
25.   Id. at 541.
26.   Baucum, 80 F.3d at 541.
27.   Id. at 541, 541 n.2 (citing cases).
28.   Tex. Const., Art. 5, §12(b).
29.   Studer v. State, 799 S.W.2d 263, 268-70 (Tex. Crim. App. 1990).
30.   65 S.W.3d at 668.
31.   See this opinion, ante.
32.   730 S.W.2d at 751.
33.   Id. at 752.
34.   Id.
35.   Id.
36.   Rabb, 730 S.W.2d at 752 (citing Moore v. State, 672 S.W.2d 242 (Tex. App.-Houston
[14th Dist.] 1984, no pet.) and Ex parte Chambers, 688 S.W.2d 483, 485 (Tex. Crim. App.
1985)(Campbell, J., concurring)).  The Rabb opinion ultimately concluded that the Magistrate's Act
was constitutional.  730 S.W.2d at 752-54.
37.   Moore, 672 S.W.2d at 243.
38.   851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993)(categorizing the system as containing
three different types of rules for the purpose of error preservation); see also Sanchez v. State, 120
S.W.3d 359, 365-66 (Tex. Crim. App. 2003)(Marin a watershed decision in the law of error
preservation); Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008)("almost all error - even
constitutional error - may be forfeited if the appellant failed to object").  
39.   688 S.W.2d at 485-86.
40.   Id. at 484-84 (Court's op.)(constitutional error at issue was the admission of expert
testimony). 
41.   Chambers, 688 S.W.2d at 486 (arguing for a right not recognized exception to the rule that
a failure to object procedurally defaults a claim of improper admission of evidence). 
42.   Sanchez,120 S.W.3d at 367.
43.   752 S.W.2d 529, 553 (lead opinion), 555 (Teague, J. concurring), 557 (Duncan, J.,
concurring, joined by Miller, J.) (Tex. Crim. App. 1988).  
44.   Id. at 553 (citing Reyes and Jefferson).  See Reyes v. State, 751 S.W.2d 382, 382-84 (Tex.
Crim. App. 1988)(plurality op.); Jefferson v. State, 751 S.W.2d 502, 502-03 (Tex. Crim. App.
1988)(lead opinion is a plurality, but dissent appears to agree with the proposition that an
unconstitutional law affords no rights or protection that a defendant can now assert).  
45.   See Reyes and Jefferson, passim.
46.   Rhodes v. State, 240 S.W.3d 882, 887 n.9 (Tex. Crim. App. 2007); State v. Herndon, 215
S.W.3d 901, 909 (Tex. Crim. App. 2007).
47.   752 S.W.2d at 555.
48.    We note that in Long we resolved a facial constitutional challenge to the stalking
statute that was raised for the first time on appeal, but we did not address whether such a
challenge should have been preserved by an objection at trial.  Instead, in a footnote, we simply
observed the State did not challenge the lower court's holding that the defendant could raise his
facial attack on the stalking statute for the first time on appeal.  Long v. State, 931 S.W.2d at 287
n.3 (Tex. Crim. App. 1996).
49.   See Ex parte Lewis, 219 S.W.3d 335, 369 (Tex. Crim. App. 2007)(quoting Ex parte
Peterson, 117 S.W.3d 804, 829 (Tex. Crim. App. 2003)(Hervey, J. dissenting)).  
50.    See footnote 41.
51.   851 S.W.2d at 279-80.  Marin briefly discussed Rose, but in doing so it did not cite
Rose for the proposition that the facial unconstitutionality of a statute can always be raised on
direct appeal; rather, Marin incorporated Rose's holding into the functional approach of its
framework, explaining that "this Court has held that nonjurisdictional principles of due process
and separation of powers are such as to render void from its inception conflicting legislation." 
Marin, 851 S.W.2d at 279.
52.   Flores v. State, 245 S.W.3d 432, 438 (Tex. Crim. App. 2008); Doe v. State, 112 S.W.3d
532, 539 (Tex. Crim. App. 2003). 
53.   Due to our disposition of the preservation of error issue, we dismiss State's second and
third grounds for review, regarding the constitutionality of the statute.  We note that appellant raised
two other points of error that the court of appeals did not reach due to its own disposition.  See State
v. Plambeck, 182 S.W.3d 365, 367 n.10 (Tex. Crim. App. 2005)("court is not required to address
issues that become moot because of the resolution of other issues").
