                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-10-00053-CR


DAVID LEE FAIRCHILD                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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                        MEMORANDUM OPINION1
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      A jury found Appellant David Lee Fairchild guilty of fraudulent use or

possession of identifying information with ten or more items of identifying

information and assessed his punishment at thirty-five years’ confinement. The

trial court sentenced him accordingly. In a single issue, Fairchild argues that

Texas Penal Code section 32.51(b-1)(1) is unconstitutional because it is arbitrary

and irrational in its application and wrongly shifts the burden of proof to the

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       See Tex. R. App. P. 47.4.
defendant in violation of the Sixth Amendment of the United States Constitution.

See Tex. Penal Code Ann. § 32.51(b-1)(1) (Vernon Supp. 2010).              Because

Fairchild did not preserve his complaint for appeal, we will affirm.

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v. State, 280 S.W.3d

235, 238–39 (Tex. Crim. App. 2009). Further, the trial court must have ruled on

the request, objection, or motion, either expressly or implicitly, or the complaining

party must have objected to the trial court’s refusal to rule. Tex. R. App. P.

33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A

reviewing court should not address the merits of an issue that has not been

preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App.

2009).

      Generally, constitutional errors are forfeited by failure to object at trial.

Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995); see Mendez, 138

S.W.3d at 342. Neither an “as applied” challenge nor a facial challenge to the

constitutionality of a statute can be raised for the first time on appeal. Karenev v.

State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (holding a defendant may not

raise for the first time on appeal a facial challenge to the constitutionality of a

statute); Curry, 910 S.W.2d at 496 (holding appellant waived his vague-as-

applied challenge because he did not specifically object at trial).


                                          2
      Here, because Fairfield did not raise an as applied or a facial challenge to

the constitutionality of penal code section 32.51(b-1)(1) in the trial court, he has

not preserved this issue for our review. See Karenev, 281 S.W.3d at 434; Curry,

910 S.W.2d at 496. Accordingly, we overrule Fairchild’s sole issue and affirm the

trial court’s judgment.



                                                   SUE WALKER
                                                   JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

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

DELIVERED: March 24, 2011




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