             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-18-00185-CR
      ___________________________

    BRYAN JOSEPH MELE, Appellant

                      V.

          THE STATE OF TEXAS


On Appeal from Criminal District Court No. 2
           Tarrant County, Texas
        Trial Court No. 1503581R


 Before Sudderth, C.J.; Gabriel and Bassel, JJ.
  Memorandum Opinion by Justice Gabriel
                           MEMORANDUM OPINION

      Appellant Bryan Joseph Mele appeals from his conviction for the first-degree

felony offense of continuous sexual abuse of a child under fourteen (CSA) and from

the resulting thirty-year sentence. See Tex. Penal Code Ann. § 21.02(b) (West Supp.

2018). He argues that his sentence, which is ineligible for parole, is unconstitutional

as violative of the prohibition against cruel and unusual punishment and the guarantee

of equal protection. Because Mele failed to preserve these issues for appeal, we

affirm.

                                 I. BACKGROUND

      Mele sexually abused his young daughter over the span of seven years and was

indicted for CSA. Mele pleaded guilty without a plea-bargain agreement. At the

punishment hearing, the trial court found Mele guilty, and the State proffered a

presentence-investigation report, which the trial court admitted into evidence. Mele’s

counsel then urged the trial court to sentence Mele at the “low end” of the sentencing

range—twenty-five to ninety-nine years’ or life confinement. See id. § 21.02(h). The

State asked that the trial court sentence Mele to a term “sufficient to ensure the safety

of this community.” The trial court sentenced Mele to thirty years’ confinement.

Mele now appeals and contends that the statutory parole prohibition for CSA is




                                           2
unconstitutional.1 See Tex. Gov’t Code Ann. § 508.145(a) (West Supp. 2018); Tex.

Penal Code § 21.02.

                                       II. DISCUSSION

         In Mele’s first and second issues, he argues that his statutory ineligibility for

parole constitutes cruel and unusual punishment in violation of the Eighth and

Fourteenth Amendments to the United States Constitution and of article I, section 13

of the Texas Constitution. U.S. Const. amend. VIII, XIV; Tex. Const. art. I, § 13;

Tex. Gov’t Code Ann. § 508.145(a); Tex. Penal Code Ann. § 21.02. And in Mele’s

third and fourth issues, he argues that the categorical denial of parole based on his

CSA conviction violates the Equal Protection Clause of the Fourteenth Amendment

to the United States Constitution and of article I, section 3 of the Texas Constitution.

U.S. Const. amend. XIV; Tex. Const. art. I, § 3. Mele acknowledges that these federal

and state constitutional provisions are coextensive. See Cannady v. State, 11 S.W.3d

205, 215 (Tex. Crim. App. 2000); Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App.

1997).

         “[A] challenge to the constitutionality of a statute is a forfeitable right and must

be preserved in the trial court during or after trial.” Holmes v. State, 380 S.W.3d 307,

308 (Tex. App.—Fort Worth 2012, pet. ref’d); see Ibenyenwa v. State, 367 S.W.3d 420,


        Mele does not clearly identify his constitutional arguments to be either facial or
         1

as-applied challenges. We consider Mele to be asserting both because his briefing
could liberally be read to encompass both. See Tex. R. App. P. 38.9.


                                              3
422 (Tex. App.—Fort Worth 2012, pet. ref’d) (op. on reh’g). A defendant may not

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

Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); Ibenyenwa, 367 S.W.3d at

422. Similarly, the constitutionality of a statute as applied must be raised in the trial

court in order to preserve error. Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App.

1995); Ibenyenwa, 367 S.W.3d at 422; see Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex.

Crim. App. 2008) (noting the “well-established requirement that appellant must

preserve an ‘as applied’ constitutional challenge by raising it at trial”).

          Mele did not raise these issues during the trial and did not file a motion for new

trial.    Tex. R. App. P. 21.4(a), 33.1(a).       He has, thereby, failed to preserve his

constitutional complaints for our review. See Kim v. State, 283 S.W.3d 473, 475 (Tex.

App.—Fort Worth 2009, pet. ref’d) (holding constitutional sentencing complaint not

preserved because defendant did not raise it during sentencing or in motion for new

trial).

          But even if Mele had preserved his complaints, we have held that the

sentencing scheme for CSA convictions is facially constitutional.2 See McCain v. State,

No. 02-16-00411-CR, 2018 WL 1324485, at *1–7 (Tex. App.—Fort Worth Mar. 15,

2018, no pet.); accord Martin v. State, 335 S.W.3d 867, 878–79 (Tex. App.—Austin


       A statute is unconstitutional on its face when its terms always operate
          2

unconstitutionally. Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex. Crim. App.
2006).


                                              4
2011, pet. ref’d). Further, the circumstances of Mele’s offense would not convince us

that this statutory-sentencing scheme operated unconstitutionally as applied to him.3

See, e.g., Long v. State, Nos. 02-17-00406-CR, 02-17-00407-CR, 2018 WL 3581008, at *2

(Tex. App.—Fort Worth July 26, 2018, pet. ref’d) (mem. op., not designated for

publication); McCain, 2018 WL 1324485, at *7.

                                  III. CONCLUSION

       Because Mele failed to preserve his issues for appeal, we overrule his issues and

affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).


                                                        /s/ Lee Gabriel

                                                        Lee Gabriel
                                                        Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: December 13, 2018




       3
         A statute is unconstitutional as applied if the statute is generally constitutional
but operates unconstitutionally as applied to the claimant’s specific circumstances.
Estes v. State, 546 S.W.3d 691, 698 (Tex. Crim. App. 2018).


                                             5
