            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

             K ELLER, P.J., delivered the opinion of the Court in which M EYERS,
K EASLER, H ERVEY, and H OLCOMB, JJ., joined. C OCHRAN, J., filed a concurring
opinion in which P RICE, W OMACK, and J OHNSON, 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,
                                                                                      KARENEV – 2

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 decisions3 and relying upon what it called the Rabb4 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:



        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).
                                                                                         KARENEV – 3

        [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. State8 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.


        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.
                                                                                         KARENEV – 4

                                            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




        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.”).
                                                                                        KARENEV – 5

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




        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).
                                                                                        KARENEV – 6

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




        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.
                                                                                     KARENEV – 7

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

       26
            Baucum, 80 F.3d at 541.
       27
            Id. at 541, 541 n.2 (citing cases).
       28
         T   EX . CONST .,   Art. 5, §12(b).
       29
            Studer v. State, 799 S.W.2d 263, 268-70 (Tex. Crim. App. 1990).
                                                                                     KARENEV – 8

        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



        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
   th
[14 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.
                                                                                     KARENEV – 9

       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


       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).
                                                                                     KARENEV – 10

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


       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).
                                                                                     KARENEV – 11

        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


        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.
                                                                                    KARENEV – 12

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




       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”).
