Affirmed and Memorandum Opinion filed July 9, 2013.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-12-00957-CR

                   JOSEPH VINCENT SZADA, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 179th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1314862

                MEMORANDUM                      OPINION


      A jury convicted appellant of aggravated sexual assault of a child under
fourteen years of age. The trial court sentenced appellant to forty years in the
Texas Department of Criminal Justice.         Appellant seeks to challenge the
constitutionality of section 22.021 of the Texas Penal Code for the first time on
appeal. Appellant concedes the issue was not raised in the trial court but argues
that “fundamental error” may be raised for the first time on appeal and contends
that appellate courts should entertain a facial challenge to the statute under which
the defendant was convicted, even when raised for the first time on appeal.

      Appellant claims section 22.021 is unconstitutional because it fails to require
proof of a defendant’s culpable mental state relating to the alleged victim’s age,
i.e., that the defendant knew the victim was younger than fourteen years of age.
Appellant also argues this failure renders the indictment, which similarly requires
no such proof, fundamentally defective. Appellant further contends section 22.021
is unconstitutional because it fails to recognize an affirmative defense based on a
defendant’s reasonable believe that the alleged victim was seventeen years of age
or older at the time of the offense.

        “[A] defendant may not raise for the first time on appeal a facial challenge
to the constitutionality of a statute.” Karenev v. State, 281 S.W.3d 428, 434 (Tex.
Crim. App. 2009).       See also Ibenyenwa v. State, 367 S.W.3d 420, 422 (Tex.
App.—Ft. Worth 2012, pet. ref’d).         Likewise, an as-applied challenge to the
constitutionality of a statute can also be forfeited. Curry v. State, 910 S.W.2d 490,
496 (Tex. Crim. App. 1995). Accordingly, we overrule appellant’s issues and
affirm the judgment of the trial court.



                                       PER CURIAM



Panel consists of Justices Boyce, Jamison, and Busby.
Do Not Publish - TEX. R. APP. P. 47.2(b)




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