                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                              NO. 02-10-00217-CR


CHARLES MYERS                                                      APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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      FROM COUNTY CRIMINAL COURT NO. 10 OF TARRANT COUNTY

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                           MEMORANDUM OPINION1

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      A jury convicted Appellant Charles Myers of misdemeanor cruelty to an

animal and fined him $2,000. See Tex. Penal Code Ann. § 42.092(b)(3) (West

2011). In his sole point, Myers, pro se, challenges the constitutionality of the

statute. We will affirm.

      On April 10, 2009, Myers went to the animal shelter in Fort Worth to

reclaim some animals. An animal cruelty investigator subsequently conducted a

      1
       See Tex. R. App. P. 47.4.
follow-up investigation of Myers’s home to determine if it was safe for the animals

to return there. The investigator had warned Myers on prior occasions that state

law required him to provide adequate shelter, food, and water and that it is

unlawful to tether animals on a chain. The investigator reiterated these warnings

on the day of the investigation and gave Myers a handwritten notice of violations

that the investigator observed. When the investigator returned to Myers’s home

the following day, she observed that the condition of a dog that needed treatment

had worsened, so she took pictures, obtained a warrant, and seized the dog the

following day. A detective with the Fort Worth Police Department who spoke to

Myers about the animal cruelty allegations testified that Myers admitted that he

was the caretaker of the dog in question, he had failed to provide adequate care,

and he did not feel the need to provide veterinary care to his animals. The

detective used this information to obtain and have issued an arrest warrant, and

a police officer arrested Myers a month later. A jury convicted Myers of animal

cruelty and assessed a fine of $2,000, and the trial court sentenced him

accordingly.

      Myers’s entire argument is as follows:

      Authorized KING JAMES VERSION HOLY BIBLE BOOK
      DEUTERONOMY CHAPTER 32 Verse 39, which in pertinent part
      read as follows: ―See now that I, even I, am he, and there is no god
      with me: . . . I wound, and I heal: NEITHER IS THERE ANY THAT
      CAN DELIVER OUT OF MY HAND‖.

      UNITED STATES CONSTITUTION OF AMERICA AMENDMENT 1,
      WHICH IN [PERTINENT] PART READ AS FOLLOWS:
      ―CONGRESS SHALL MAKE NO LAW RESPECTING AN


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      ESTABLISHMENT OF RELIGION, OF PROHIBITING THE FREE
      EXERCISE THEREOF‖ . . . .

      UNITED STATES CONSTITUTION OF AMERICA ARTICLE 6.
      WHICH IN PERTINENT PART READ AS FOLLOWS: ―THIS
      CONSTITUTION, and the Laws of the United States, shall be the
      supreme Law of the Land; and the Judges in every State shall be
      bound thereby, any Thing in the Constitution or Laws of any State to
      the contrary notwithstanding . . . The . . . [judicial] Officers, both of
      the United States and of the several States, shall be bound by Oath
      or Affirmation, to support this Constitution.‖2

We construe Myers’s argument to mean that the animal cruelty statute violates

the First Amendment of the United States Constitution because the statute

interferes with the free exercise of his religious beliefs. Myers does not attack

the facial constitutionality of the statute; rather, his argument seems to attack the

statute’s constitutionality as applied to him. See Burton v. State, 194 S.W.3d

686, 687–88 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Unless a statute is

facially unconstitutional, appellant must preserve any error concerning

application of the statute or it is waived. See Garcia v. State, 887 S.W.2d 846,

861 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 1005 (1995) (citing Tex. R.

Evid. 103(a)(1)). We conclude that Myers failed to preserve this alleged error for

our review.

      To preserve an issue for appeal, the complaining party must make a

timely, specific objection and obtain a ruling. See Tex. R. App. P. 33.1(a); Pena

      2
         After Myers filed his brief, we notified him that the brief did not comply with
the rules of appellate procedure and asked that he file an amended brief. Myers
filed a supplemental brief attempting to cure the deficiencies. The State did not
file a brief.


                                           3
v. State, 285 S.W.3d 459, 463–64 (Tex. Crim. App. 2009). Even constitutional

errors may be waived by failing to object at trial. Briggs v. State, 789 S.W.2d

918, 924 (Tex. Crim. App. 1990). Preserving error is not technical or formulaic,

so ―[s]traightforward communication in plain English will always suffice.‖

Lankston v. State, 827 S.W.2d 907, 908–09 (Tex. Crim. App. 1992). To give the

trial judge and opposing party an opportunity to correct the error, the party must

let the trial judge know what he wants and why he is entitled to it, clearly enough

for the judge to understand him while in the proper position to correct it. Reyna

v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005); Lankston, 827 S.W.2d at

909.

       A witness’s recitation of Biblical scriptures and an appellant’s contention

that they support his religious beliefs is not sufficient to preserve for appeal the

issue of the constitutionality of a statute. See Burton, 194 S.W.3d at 687. In

Burton, a defendant who represented himself against charges of marijuana

possession argued that the earth and nature, including marijuana, were created

by God for man’s use and should not be inhibited by government.            Id. The

appellate court affirmed the conviction because the appellant ―never argued to

the court or requested a ruling that the statute was unconstitutional,‖ so the issue

was not preserved for appeal. Id. at 688.

       Here, just like the appellant in Burton, Myers urged the jury to consider his

religious beliefs, but he never argued to the court or requested a ruling on the

constitutionality of the statute. Nor did Myers’s motion for new trial challenge the


                                         4
constitutionality of the statute. Consequently, Myers failed to preserve this point

for our review.

      Accordingly, we overrule Myers’s sole point, and we affirm the trial court’s

judgment.


                                                   PER CURIAM

PANEL: MEIER, J.; LIVINGSTON, C.J.; and GABRIEL, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 21, 2011




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