                                               COURT OF APPEALS
                                            EIGHTH DISTRICT OF TEXAS
                                                 EL PASO, TEXAS


                                                                    '
                                                                                          No. 08-16-00220-CR
                                                                    '
                                                                                             Appeal from the
    EX PARTE: MARINDA PALACIOS,                                     '
                                                                                      County Court at Law No. 7
                                                                    '
                                                                                       of El Paso County, Texas
                                                                    '

                                                                     '                   (TC# 2016DCV2587)

                                                         OPINION

          Appellant, Marinda Palacios, who was charged with the misdemeanor offense of Failure

to Report Felony with Serious Bodily Injury or Death under Texas Penal Code § 38.171, challenges

the constitutionality of the statute. Appellant filed a pretrial application for writ of habeas corpus

in which she asserted that the failure to report a felony statute is facially unconstitutional for

vagueness. The trial court denied relief.1

          On appeal, Appellant brings the constitutional challenge that she raised below and one

other. We find Appellant did not preserve error as to one of the constitutional challenges brought

for the first time on appeal and find Section 38.171 is not vague. We affirm.


1
  Appellant did not argue that the statute was unconstitutional as applied to her. The trial court’s order denying the writ application
made clear that it was only ruling on her facially unconstitutional argument and held that Appellant “may re-urge unconstitutionality
as applied or any other grounds during the trial[.]”
                         FACTUAL AND PROCEDURAL BACKGROUND

         In July 2016, Appellant was charged by information and complaint of violating Section

38.171 of the Texas Penal Code. The complaint affidavit alleged Appellant admitted to an

El Paso Police Detective she had witnessed a murder, but out of fear for her safety and life, had

not reported it. Appellant allegedly, after witnessing the murder, drove to a hotel to spend the

night, and during a time she was unaccompanied, she had an opportunity to report the murder, but

she failed to do so. Further, upon returning to her residence, allegedly Appellant also failed to

report the murder. The complaint affidavit stated Appellant encouraged her husband not to report

the murder.

         Appellant filed a pretrial Application for a Writ of Habeas Corpus asserting the statute is

facially unconstitutional for vagueness because an “accused is only required to comply based upon

what a reasonable person might or might not have done[.]” 2 Further, she argued a potential

defendant must make a decision regarding whether reporting would place him or her in danger.

The crux of Appellant’s argument contends “compliance or non-compliance” is based on a

“mythical” reasonable person standard, which causes the vagueness and uncertainty, because,

Palacios asserts, how can anyone be certain as to what a reasonable person may or may not do. In

addition, she argues the statute is vague because it does not set out when it does not apply. She

also claims the statute shifts the burden of proof from the State to a defendant and no affirmative

defenses have been permitted under Section 2.04 of the Texas Penal Code. Last, she declares her

arrest was without probable cause.

         The trial court held a hearing on Appellant’s application. Appellant informed the trial


2
  See Ex Parte Thompson, 442 S.W.3d 325, 333 (Tex.Crim.App. 2014)(a defendant may file a pretrial application
for a writ of habeas corpus raising a facial challenge to the constitutionality of the statute he is charged with).
                                                          2
judge only two issues were being litigated, (1) the facial unconstitutionality of the statute; and (2)

lack of probable cause for the arrest. Appellant asserted the statute, by virtue of the reasonable

person standard, has created vagueness; it does not include a culpable mental state; and has shifted

the burden of proof. She also argues the statute is vague regarding a defendant’s awareness of

serious bodily injury or death.

                                          DISCUSSION

       Appellant brings two points of error. Point of Error No. One is whether Section 38.171 is

void for vagueness. Point of Error No. Two is whether Section 38.171 is void for overbreadth.

                                            Standard of Review

       Whether a statute is unconstitutional on its face is a question of law that we review de novo.

Ex Parte Lo, 424 S.W.3d 10, 14 (Tex.Crim.App. 2013). We begin with the presumption that the

statute is valid and that the legislature has not acted unreasonably or arbitrarily. Id. at 14-15.

Ordinarily, the party challenging the statute carries the burden to establish the statute’s

unconstitutionality. Id. at 15.

                Preservation of Error: Is Section 38.171 unconstitutionally overbroad?

       We first address whether Appellant preserved her second point of error for our review.

See TEX.R.APP.P. 33.1(a)(1). As a general rule, trial counsel must object or otherwise preserve

error, even if it is “incurable.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996).

Absent proper preservation, even constitutional error may be waived. Wright v. State, 28 S.W.3d

526, 536 (Tex.Crim.App. 2000).

       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). To review an


                                                  3
attack on the constitutionality of a statute “as applied,” due to vagueness or uncertainty, the

complaint must have raised the issue in the trial court or it is waived. Curry v. State, 910 S.W.2d

490, 496 n.2 (Tex.Crim.App. 1995)(en banc); Bader v. State, 15 S.W.3d 599, 603 (Tex.App.—

Austin 2000, pet. ref'd). In Karenev, the court explained that there are the following three

categories of rights: “(1) absolute requirements or prohibitions, (2) rights that are waivable-only,

and (3) rights that can be forfeited.” 281 S.W.3d at 434. The court concluded that challenges to

the constitutionality of a statute fall within the third category and may be waived and that statutes

are “presumed to be constitutional until it is determined otherwise.”3 Id.

          We find constitutional challenges to a statute of being overbroad also fall into the third

category and must be asserted in the trial court or it is waived. In this case, the record is

unambiguous, Appellant, in the trial court, failed to raise her constitutional complaint that Section

38.171 is overbroad. Accordingly, Appellant has forfeited this constitutional challenge that was

not raised below. We address Appellant’s sole remaining constitutional complaint.

                             Is Section 38.171 unconstitutionally vague on its face?

          Section 38.171 provides:

          (a)       A person commits an offense if the person:

          (1)     observes the commission of a felony under circumstances in which a
          reasonable person would believe that an offense had been committed in which
          serious bodily injury or death may have resulted; and

          (2)     fails to immediately report the commission of the offense to a peace officer
          or law enforcement agency under circumstances in which:


3
  However, if a statute has already been held unconstitutional; the statute is “void ab initio,” and there is no valid law to base the
conviction on. Smith v. State, 463 S.W.3d 890, 896-97 (Tex.Crim.App. 2015); Ex Parte Chance, 439 S.W.3d 918, 922
(Tex.Crim.App. 2014)(Cochran, J., concurring)(distinguishing constitutional challenges to a statute that has not been declared void,
which may not be raised for the first time on appeal, from requests for relief from a statute that has been declared void, which can
be raised for the first time on appeal). Because Section 38.171 has not been held unconstitutional, the exception is not triggered
here.
                                                                  4
       (A)    a reasonable person would believe that the commission of the offense had
       not been reported; and

       (B)    the person could immediately report the commission of the offense without
       placing himself or herself in danger of suffering serious bodily injury or death.

       (b)     An offense under this section is a Class A misdemeanor.

TEX.PENAL CODE ANN. § 38.171.

       Appellant challenges the statute as being unconstitutionally vague on its face in the

following ways:

       1)      an individual must make a determination that a) whether a ‘reasonable
       person’ would believe an offense has been committed in which b) whether serious
       bodily injury or death ‘may’ have resulted;

       2)      the term ‘immediately’ is undefined and ambiguous; and

       3)      an individual must make a determination a) as to whether a ‘reasonable
       person’ would believe the offense has or has not been reported and b) whether a
       ‘reasonable person’ could report the offense without placing himself in danger of
       suffering serious bodily injury or death.

       The main thrust of her argument is that the “reasonable person” standard is undeterminable

and therefore, as a matter of course, the statute is facially vague. Appellant further asserts that

Section 38.171(a)(2)(B) is ambiguous and undefined. Appellant also alleges that no culpability

requirement can be applied to the statute when serious bodily injury or death may or may not have

resulted; or if something may or may not have happened.

                                                 Analysis

       We consider two factors when reviewing a criminal statute for vagueness. First, the

statute must give a person of ordinary intelligence a reasonable opportunity to know an act is

prohibited. State v. Holcombe, 187 S.W.3d 496, 499 (Tex.Crim.App. 2006). The statute in

question does not have to be exact, but it does need to give fair notice. Sanchez v. State, 995

                                                5
S.W.2d 677, 689 (Tex.Crim.App. 1999). Second, it must provide sufficient guidelines for law-

enforcement so as to prevent arbitrary or discriminatory enforcement. Id.

       A constitutional challenge will be sustained only if the statute is impermissibly vague in

every possible application. Briggs v. State, 740 S.W.2d 803, 806 (Tex.Crim.App. 1987). Absent

a First Amendment complaint, “a facial challenge could be mounted successfully only if the statute

were vague in all of its applications.” Long v. State, 931 S.W.2d 285, 295 (Tex.Crim.App.

1996)(citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494–495

(1982)). Therefore, the criminal statute must necessarily be vague as to the challenger and if it is

not vague to him, a Due Process complaint fails: a person “who engages in some conduct that is

clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.”

Village of Hoffman Estates, 455 U.S. at 495.

       A criminal statute is not unconstitutionally vague just because it fails to define words or

phrases. Engelking v. State, 750 S.W.2d 213, 215 (Tex.Crim.App. 1988). When words are not

defined in a statute, they are ordinarily given their plain meaning unless the statute clearly shows

that they were used in some other sense. Daniels v. State, 754 S.W.2d 214, 219 (Tex.Crim.App.

1988); Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App. [Panel Opin.] 1979). Words defined in

dictionaries with meanings so well known as to be understood by a person of ordinary intelligence

have been held not to be vague and indefinite. Floyd v. State, 575 S.W.2d 21, 23 (Tex.Crim.App.

1978); Ex Parte Anderson, 902 S.W.2d 695, 700 (Tex.App.—Austin 1995, pet. ref’d). Statutory

words are to be read in context and construed according to the rules of grammar and common

usage. TEX.GOV'T CODE ANN. § 311.011(a).




                                                 6
       It is well-settled law that a statute which includes a “reasonable person” standard will

generally suffice to survive a constitutional challenge. Woodson v. State, 191 S.W.3d 280, 282

(Tex.App.—Waco 2006, pet. ref’d); Long v. State, 931 S.W.2d 285, 290 (Tex.Crim.App. 1996);

Clements v. State, 19 S.W.3d 442, 450 (Tex.App.—Houston [1st Dist.] 2000, no pet.); DeWillis v.

State, 951 S.W.2d 212, 215–17 (Tex.App.—Houston [14th Dist.] 1997, no pet.). In Long, the

Court of Criminal Appeals cited with approval several statutes which contain such a standard.

931 S.W.2d at 290. Because the statute incorporates a “reasonable person” standard, we hold that

it is not unconstitutionally vague. See Long, 931 S.W.2d at 290; Clements, 19 S.W.3d at 450;

DeWillis, 951 S.W.2d at 215–17. We overrule Appellant’s point of error asserting the statute is

void for vagueness, Sub-Part One and Three.

       The term “immediate” is well-known and understood.          It is defined as “[o]ccurring

without delay; instant.” Immediate, Black’s Law Dictionary (10th ed. 2014). Here, the statute

makes clear the reporting must take place immediately, but only if a “reasonable person would

believe that the commission of the offense had not been reported” and “the person could

immediately report the commission of the offense without placing himself or herself in danger of

suffering serious bodily injury or death.” TEX.PENAL CODE ANN. § 38.171(a)(2)(A)&(B). The

imperative that the reporting must take place “immediately” is modified by two provisions, 1) the

individual believes the offense has not been reported and 2) only report if the reporting does not

place the individual in danger of suffering serious bodily injury and death. We do not find

TEX.PENAL CODE ANN. § 38.171(a)(2)(B) unconstitutionally vague. Appellant’s Sub-Part Two

of her constitutional vagueness challenge is overruled.

                                            CONCLUSION


                                                7
       Having overruled Appellant’s two points of error on appeal, we affirm.



July 24, 2018
                                            YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




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